Deborah P. Linn v. Mark A. Linn

11/29/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 1, 2021
DEBORAH P. LINN v. MARK A. LINN
Appeal from the Chancery Court for Sumner County
No. 2008D-236 Louis W. Oliver, III, Chancellor
___________________________________
No. M2020-01624-COA-R3-CV
___________________________________
At issue in this appeal is the trial court’s characterization of the alimony obligation in the
parties’ divorce decree. The trial court determined that the alimony is part alimony in solido
and part alimony in futuro. Based in part on this conclusion, the court denied Husband’s
petition to modify his alimony obligation. The trial court also entered judgment against
Husband for alimony arrearages, life insurance premiums, and Wife’s discretionary costs
and attorney’s fees. Additionally, the court found Husband in contempt for failing to pay
alimony and life insurance premiums. Because we conclude the trial court mischaracterized
the alimony at issue, we affirm in part, reverse in part, and vacate in part its judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
in Part; Reversed in Part; and Vacated in Part.
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II and W. NEAL MCBRAYER, JJ., joined.
Russell E. Edwards, Hendersonville, Tennessee, for the appellant, Mark A. Linn.
Mary Arline Evans and Charles R. Niewold, Nashville, Tennessee, for the appellee,
Deborah P. Linn.
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
Appellant Mark A. Linn (“Husband”) and Appellee Deborah P. Linn (“Wife”) were
divorced by a final decree filed on January 5, 2012 in the Sumner County Chancery Court
(“the trial court”). They had been married for over twenty years and had no minor children
by the time of the divorce. When they divorced, Wife was fifty-four years old, and Husband
was fifty years old. The divorce decree incorporated the parties agreed-upon marital
dissolution agreement (“MDA”), relevant portions of which read as follows:
7. LIFE INSURANCE.
[] Husband agrees that he shall keep in effect that life insurance
which he presently has in the sum of $250,000.00 with Wife as sole
and irrevocable beneficiary, so long as [] Husband is under an
obligation to pay alimony. [] Husband agrees to provide to [] Wife
proof of said coverage by January 1st of each year.
* * *
9. ALIMONY.
[] Husband agrees to pay to [] Wife as alimony in futuro the
sum of Two Thousand Five Hundred ($2,500.00) Dollars per month,
for (120) consecutive months and thereafter, he shall pay the sum of
One Thousand Five Hundred ($1,500.00) Dollars per month, until []
Wife dies or remarries, or until [] Husband dies. Said alimony shall be
payable on the fifteenth (15th) day of each month, with the first
payment to begin January 1, 2012.
* * *
18. ENFORCEMENT.
It is agreed by and between the parties that in the event it
becomes reasonably necessary for either party to institute legal
proceedings to procure the enforcement of any provision of this
Agreement, and if successful, he or she shall also be entitled to a
judgment for reasonable expenses including attorney fees incurred in
prosecuting the action.
(Italics added).
Subsequently, Husband paid Wife alimony in the amount of $1,150.00 every two
weeks, rather than $2,500.00 per month as per the divorce decree. Without Wife’s consent,
Husband reduced his alimony payments to $2,300.00 per month beginning in February
2017, and then to $1,500.00 per month beginning in August 2017. In 2017, Husband paid
a total of $23,800.00 in alimony. He further reduced his alimony payments in 2018 to
$12,100.00 for the year. In 2019, Husband paid $10,000.00 in alimony. He paid $2,835.00
in alimony between January and April of 2020, and stopped paying alimony after April
2020. The parties stipulate that Husband owed Wife $61,515.001 in alimony arrearages as
1
The trial court calculated this number to be $61,265.00. It is unclear how the parties and the trial
court arrived at these different figures. Further, in its final order the trial court at one point states that
-2-
of August 26, 2020.
Husband filed a petition in the trial court to modify his alimony on June 18, 2018.
Therein, he alleged, inter alia, that he had been paying what he could in alimony, but was
behind in payments according to the MDA and final divorce decree; he no longer had the
ability to pay the amount of alimony set forth in the MDA; Wife no longer needed the
amount of alimony that was established in the MDA; alimony should end when Wife
becomes eligible to draw social security benefits in February 2020; and one of the parties’
children, a twenty-eight year-old daughter, was living with Wife, therefore creating a
presumption that Wife no longer needed the amount of alimony previously awarded,
pursuant to Tennessee Code Annotated section 36-5-121(f)(2)(B).2 Husband asked for his
alimony obligation to be terminated or substantially decreased, pursuant to Tennessee Code
Annotated section 36-5-121(f)(2)(A),3 in light of the substantial and material change in
circumstances since the divorce, and asserted that alimony should be modified unless Wife
could overcome the statutory presumption in section 36-5-121(f)(2)(B).
In her answer, Wife raised, inter alia, the following affirmative defenses: Husband
had substantial assets from which he could have been making full alimony payments; and
he was believed to be supporting a live-in girlfriend, choosing to spend his money on her
instead of his alimony obligation. Wife also filed a counter-petition on November 5, 2018,
wherein she alleged, inter alia, that Husband had the ability to comply with the divorce
decree and had sufficient assets from which to pay as ordered, but willfully failed to
comply. She asked the court to find Husband in civil contempt and sought reimbursement
for fees associated with the qualified domestic relations order that was prepared to divide
Husband’s 401k plan,4 premium payments on his life insurance plan, and alimony
Husband stipulated that he owed $61,575.00 in alimony arrearages, but this appears to be a typographical
error.
2
Section 36-5-121(f)(2)(B) states:
In all cases where a person is receiving alimony in futuro and the alimony recipient lives
with a third person, a rebuttable presumption is raised that:
(i) The third person is contributing to the support of the alimony recipient and the alimony
recipient does not need the amount of support previously awarded, and the court should
suspend all or part of the alimony obligation of the former spouse; or
(ii) The third person is receiving support from the alimony recipient and the alimony
recipient does not need the amount of alimony previously awarded and the court should
suspend all or part of the alimony obligation of the former spouse.
3
Section 36-5-121(f)(2)(A) states:
An award of alimony in futuro shall remain in the court’s control for the duration of such
award, and may be increased, decreased, terminated, extended, or otherwise modified,
upon a showing of substantial and material change in circumstances.
4
Wife since abandoned this claim in the trial court, so it is not at issue on appeal.
-3-
arrearages. She also sought attorney’s fees for having to enforce the divorce decree.
Husband filed an answer that included various affirmative defenses.
There was a hearing in the trial court5 on August 26 and 27, 2020 on Husband’s
petition and Wife’s counter-petition. Husband’s employment income was $198,000.00
when the parties divorced, until July 2015, when it increased to $258,000.00. Beginning in
approximately 2018, his income decreased to around $70,000.00 annually. He also
received two government loans in 2020. Husband owns no real property, but has a 401k
retirement account, which, as of November 2020, was valued at approximately
$477,121.00, but could not be accessed without penalty until June 14, 2021. Husband’s
assets include an unencumbered thirty-foot boat; a few thousand dollars in his checking
and savings accounts; and a Hyundai, which is financed as a leased vehicle. His monthly
personal expenses are approximately $6,000.00. He lives with his fiancé, who earns
$1,200.00 per month and gives Husband approximately $600.00 per month or contributes
food and cleaning supplies.
Wife owns a spa, which she started in 2006, and the building that houses the spa.
The mortgage on the building is approximately $2,000.00 per month. Wife loaned the spa
$171,000.00, and between 2012 and July 31, 2020, the spa mostly operated at a loss. Wife’s
income fluctuated between 2012 and 2019, ranging from $20,639.00 to $65,869.00. She
has also received two government loans, along with unemployment income of $13,217.00
in 2020. Wife claims that she has withdrawn a significant amount from the retirement
account she received in the divorce, sometimes incurring penalties, partially in order to pay
for her daughter’s college, per the parties’ oral agreement. The retirement account is worth
approximately $82,000.00. Her monthly personal expenses are approximately $3,226.56.
She owns at least one vehicle, has no car note, and owns the home she lives in. Her adult
daughter lives with her, pays her $400.00 per month, and pays for Wife’s cell phone bill.
At the close of proof, the trial court sua sponte asked the parties to address the issue
of whether the 120-month alimony obligation in the MDA was, in fact, modifiable, in their
proposed findings of fact and conclusions of law. In other words, the trial court wanted to
know if the 120-month obligation was alimony in futuro or alimony in solido, and whether
that depended upon how it was designated in the MDA (as “in futuro”), or how it was
scheduled to be paid (as a specific amount for a specific time period).
The trial court filed a final order on November 6, 2020. With respect to the alimony
obligation, the trial court found that “[a]lthough Paragraph 9 of the [MDA] labels the first
120 months alimony as alimony in futuro, the Court finds it is not alimony in futuro, but
alimony in solido.” The trial court reasoned that alimony in solido is an award of a definite
sum, and “the first part of the alimony paragraph . . . is $2,500.00 per month for a definite
period of time of 120 months and for an ascertainable amount $2,500.00 x 120 months =
5
A different trial court judge presided over this trial than the original divorce trial.
-4-
$300,000.00.” Therefore, according to the trial court, “the first part of the alimony
paragraph in the parties’ [MDA] is clearly alimony in solido.” The trial court noted that
alimony in solido is not modifiable except by the parties’ agreement, and concluded that
“[t]he parties clearly did not agree to a modification of the alimony in solido.” Further, the
trial court explained as follows:
The Court considered the specific wording of the alimony provision in
paragraph 9 of the MDA. After the definite description of “2,500.00 per
month, for 120 consecutive months” the provision states “and thereafter, he
shall pay $1,500.00 per month until Wife dies or marries, or until Husband
dies[.]” (emphasis added) The second portion of the alimony provision
contains terminable provisions, and is therefore alimony in futuro, and not
alimony in solido. However, the first portion prior to the phrase “and
thereafter” contains no terminable or review provision. The alimony
provision (paragraph 9) of the MDA clearly included two separate and
distinct alimony provisions. []Husband’s Petition to Modify the portion of
alimony requiring him to pay $2,500.00 per month for 120 consecutive
months, is denied in that it is not modifiable alimony in solido of
$300,000.00[.]
(Internal citation omitted).
As to the portion of alimony that the trial court found was alimony in futuro—
beginning in January 2022, in the amount of $1,500.00 per month until Wife dies or
remarries, or Husband dies—the trial court found as follows:
The trial of this matter was in August 2020, a year and four (4) months
before the start of the alimony in futuro. Both parties are self-employed. Both
parties suffered financial losses to their businesses in 2020 due to COVID-
19. It is now unknown how long the financial repercussions of COVID-19
will last. []Husband has requested the Court to modify or terminate his
alimony in futuro obligation that begins in January 2022. There is no way for
the Court at this time, based on August 2020 testimony and proof, to
determine what will be the needs of []Wife and the ability of []Husband to
pay in January 2022. . . .
[]Husband’s Petition, as to modification of alimony in futuro set to
begin in 2022, is premature, and is respectfully denied by the Court at this
time.
The court went on to state that because it “ha[d] found the alimony not modifiable at this
time for the reasons stated herein,” it “w[ould] not consider at this time the modification
of either the alimony in solido or the alimony in futuro.”
-5-
The trial court also concluded that the issues surrounding the cohabitation of Wife
with the parties’ adult daughter and Husband with his fiancé were moot, given that it had
already found that part of the alimony was not modifiable and the other part was not ripe
for modification or termination. On the issue of contempt, the trial court found that the
final divorce decree was lawful; the divorce decree was clear, specific, and unambiguous
regarding alimony; and, “[c]onsidering the income and assets available to []Husband, the
financial choices he [] made, and the months when he did not pay alimony in full as
ordered, . . . the failure to pay [wa]s willful.” The trial court also found that Husband chose
not to pay the life insurance premiums,6 despite being able to. Thus, the trial court held
Husband in civil contempt of court.
Finally, the trial court found that Wife was entitled to reasonable attorney’s fees in
accordance with Tennessee Code Annotated section 36-5-103(c),7 and also pursuant to the
Enforcement clause of the MDA. The trial court explained:
[]Wife’s Counter Petition seeking relief from []Husband due to his
failure to pay alimony and life insurance premiums, and to hold []Husband
in civil contempt is granted in part. The attorney for []Wife has requested
attorney fees and expenses in the amount of $53,587.00. The Court has
carefully examined the affidavits submitted by the attorney for []Wife, and
finds that the attorney expended 98.4 hours of time representing []Wife with
a reasonable hourly rate of $300.00 per hour. The Court awards []Wife a
judgment for her reasonable attorney fees in the amount of $29,520.00.
The Court did not award fees for legal assistants and support staff.
The Court will consider court reporter fees upon the filing of a motion for
discretionary costs.
The trial court therefore dismissed Husband’s petition for modification and ordered
6
In his brief, Husband states that “he does not dispute on appeal the judgment entered against him
in the amount of $4,991.00 for life insurance premiums owed to []Wife.” Therefore, we will not address
this issue, and we leave the portion of the trial court’s order dealing with it undisturbed. See further
discussion, infra. Wife also apparently requested ownership of the life insurance policy in the trial court.
The trial court denied that request, and Wife does not raise the denial on appeal, so that portion of the trial
court’s order will also remain unchanged by this Opinion.
7
Section 36-5-103(c) states:
A prevailing party may recover reasonable attorney’s fees, which may be fixed and
allowed in the court’s discretion, from the nonprevailing party in any criminal or civil
contempt action or other proceeding to enforce, alter, change, or modify any decree of
alimony, child support, or provision of a permanent parenting plan order, or in any suit or
action concerning the adjudication of the custody or change of custody of any children,
both upon the original divorce hearing and at any subsequent hearing.
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him to immediately pay, within ten days of the entry of the court’s order, “alimony in the
amount of $2,500.00 per month and reimbursement of life insurance premiums for
September and October, 2020 to []Wife.” The court also ordered Husband to keep all future
payments timely. Wife was granted a judgment “in the amount of $96,026.00 (alimony
arrearage $61,515.00; life insurance premium $4,991.00; and reasonable attorney fees
$29,520.00) plus accrued statutory interest at the rate of 5.25% to be paid in full on or
before August 31, 2021.”8
The court’s order went on to state:
Should []Husband fail to pay the judgment plus statutory interest to []Wife
on or before August 31, 2021, then, in that event []Husband shall be
incarcerated in the Sumner County Jail until the amount is paid in full. Should
[]Husband fail to pay the prospective payments on alimony in solido and
insurance premiums beginning September, 2020 and keep same current, as
Ordered hereinabove, []Wife is directed to file a petition and show cause
order with this Court, seeking immediate relief due to []Husband’s non-
payment and contempt.
[]Wife [] is awarded a lien against []Husband’s boat and his Collier-
Wealth 401(k) account in the amount of the judgment, until satisfied.
Wife subsequently filed a motion for discretionary costs in the trial court pursuant
to Rule 54.04(2) of the Tennessee Rules of Civil Procedure,9 arguing that she was entitled
to judgment for her reasonable and necessary court reporter costs, as the prevailing party.
8
According to Husband’s brief, following the entry of the final judgment,
the [t]rial [c]ourt stayed payment of this judgment by partially granting []Husband’s motion
to stay proceedings pending appeal by impressing a $200,000.00 lien on []Husband’s
401(k)/IRA account and his boat in favor of []Wife to secure payment of the judgment,
interest that accrues on the same, court costs, discretionary costs, and any other
judgments/costs that may be assessed to []Husband.
The trial court’s decision to grant a stay is largely immaterial to this appeal.
9
Rule 54.04(2) states, in part:
Costs not included in the bill of costs prepared by the clerk are allowable only in the court’s
discretion. Discretionary costs allowable are: reasonable and necessary court reporter
expenses for depositions or trials, reasonable and necessary expert witness fees for
depositions (or stipulated reports) and for trials, reasonable and necessary interpreter fees
not paid pursuant to Tennessee Supreme Court Rule 42, and guardian ad litem fees; travel
expenses are not allowable discretionary costs. Subject to Rule 41.04, a party requesting
I
discretionary costs shall file and serve a motion within thirty (30) days after entry of
judgment. The trial court retains jurisdiction over a motion for discretionary costs even
though a party has filed a notice of appeal. The court may tax discretionary costs at the
time of voluntary dismissal. . . .
-7-
After a hearing via Zoom on December 7, 2020, the trial court found that it was appropriate
to award Wife, as the prevailing party, her court reporter fees in the amount of $1,861.75.
Execution of the judgment was stayed pending resolution of this appeal, and the issue of
interest on that judgment was reserved, pending the stay being lifted.
Husband appealed.10
II. ISSUES PRESENTED
Each of the parties raises the following issues, which we have slightly restated:
1. Whether the initial 120-month period of Husband’s alimony obligation is alimony
in solido and thus not modifiable; and, consequently, whether the trial court erred
in finding that it is in solido.
2. Whether the trial court erred in dismissing Husband’s petition to modify the
spousal support obligation.
3. Whether the trial court erred in finding Husband in contempt.
4. Whether the trial court erred in awarding Wife discretionary costs.
Husband raises the following additional issue, which we have slightly restated:
1. Whether the trial court erred by sua sponte raising a legal defense/argument on
behalf of Wife and dismissing Husband’s petition on that ground.
Wife raises as additional issues whether the trial court erred in awarding her
attorney’s fees and whether she should be awarded appellate attorney’s fees.
IV. DISCUSSION
A.
We begin by addressing the first issue: whether the alimony in the MDA is alimony
in solido or alimony in futuro. “The determining factor in distinguishing whether alimony
10
There was some disagreement between the parties at the trial level regarding the transcript and
statement of the evidence. In short, Wife filed a statement of the evidence, to which Husband objected.
Husband ultimately filed the trial transcript and a request that Wife’s statement of the evidence therefore
not be included in the record. However, it appears that the trial court never officially ruled on whether
Wife’s statement of the evidence would be included in the record, and it ended up being included. While
the trial court should have resolved the issue, see Tenn. R. App. P. 24(e) (“Any differences regarding
whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by
the trial court . . . .”), we will proceed to consider only the transcript, and not Wife’s statement of the
evidence, given that the transcript is the most “fair, accurate and complete account of what transpired in the
trial court,” Tenn. R. App. P. 24(g).
-8-
is in futuro or in solido is the definiteness or indefiniteness of the amount ordered to be
paid.” Averitte v. Averitte, No. M2012-00738-COA-R3-CV, 2013 WL 357602, at *3
(Tenn. Ct. App. Jan. 29, 2013) (citation omitted). “Thus, to determine the type of alimony
created, courts must look at the award of alimony at the time the award is made and
determine if the sum of the alimony to be paid was definite and ascertainable at that time.”
Id. (quoting In re Estate of Steil, No. M2011-00701-COA-R3-CV, 2012 WL 1794979, at
*4 (Tenn. Ct. App. May 16, 2012)). Alimony in futuro “is intended to provide support on
a long-term basis until the death or remarriage of the recipient.” Gonsewski v. Gonsewski,
350 S.W.3d 99, 107 (Tenn. 2011) (citing Tenn. Code Ann. § 36-5-121(f)(1)). Alimony in
futuro is modifiable by the court “upon a showing of substantial and material change in
circumstances.” Tenn. Code Ann. § 36-5-121(f)(2)(A). Alimony in solido is also a form of
long-term support, but consists of a definite amount of money payable either as a lump sum
or in installments over a definite period of time. Tenn. Code Ann. § 36-5-121(h)(1);
Gonsewski, 350 S.W.3d at 108. Alimony in solido is not modifiable, except by the parties’
agreement, and does not terminate upon either party’s remarriage or death. Tenn. Code
Ann. §§ 36-5-121(h)(2), (3); Gonsewski, 350 S.W.3d at 108.
“[T]he type of alimony involved [is] determined from the language of the order or
agreement establishing the award.” Finn v. Bundyl, No. 96D–216, 2005 WL 418793, at
*4 (Tenn. Ct. App. Feb. 22, 2005). “A marital dissolution agreement is a contract and thus
is generally subject to the rules governing construction of contracts. Because the
interpretation of a contract is a matter of law, our review is de novo on the record with no
presumption of correctness in the trial court’s conclusions of law.’” Barnes v. Barnes, 193
S.W.3d 495, 498 (Tenn. 2006) (citations and quotation marks omitted). “In ‘resolving
disputes concerning contract interpretation, our task is to ascertain the intention of the
parties based upon the usual, natural, and ordinary meaning of the contractual language.’”
Planters Gin Co. v. Fed. Compress & Warehouse Co., 78 S.W.3d 885, 889–90 (Tenn.
2002) (quoting Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999)). “The central tenet
of contract construction is that the intent of the contracting parties at the time of executing
the agreement should govern.” Id. at 890 (citation omitted). “The intent of the parties is
presumed to be that specifically expressed in the body of the contract. . . . If clear and
unambiguous, the literal meaning of the language controls the outcome of contract
disputes.” Id.
Wife essentially contends that it does not matter how the alimony is characterized
for purposes of Husband’s obligation to pay. Nevertheless, she argues that the trial court
was correct and the alimony provision in the MDA “is clearly divided into two [] separate
and distinct phases”—with the first being alimony in solido (a sum certain over a period of
120 months, with no contingencies), and the second, alimony in futuro (an indefinite award
subject to contingencies). According to Wife, “[t]he second phase is marked by the phrase
‘and thereafter,’ (with a comma) indicating a break from phase one and subsequent change
in the nature of the award,” and
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[a]t the time of the award, the amount of alimony in that second phase was
not for a definite period of time, nor was it for an ascertainable amount. It
would be hard to fashion two more different forms of alimony, as the former
is definite and ascertainable, and the latter is indefinite and unascertainable.
Even though the MDA states that the alimony is “in futuro,” Wife avers that we should not
prioritize form over substance by “interpret[ing] the entire alimony obligation as in futuro.”
She also argues, inter alia, that “[t]here are no facts in the record to support a conclusion
about the intent of either party.”
Husband argues that the MDA explicitly states that the alimony is in futuro, and
“[t]he parties simply desired to fashion an alimony in futuro award that had an initial
amount for 10 years, then a reduced amount for the remainder of the award.” He submits
that “[t]o uphold the [t]rial [c]ourt’s decision in this case would mean that parties could not
agree and courts could not order that alimony in futuro awards can change in value over a
period of time.” Husband cites Kelly v. Kelly, No. M2008-02170-COA-R3-CV, 2009 WL
1312839 (Tenn. Ct. App. May 11, 2009), in support of this position.
In that case, the issue was also whether the alimony in the MDA was alimony in
futuro or in solido. 2009 WL 1312839, at *1. The language of the MDA in Kelly was as
follows: “The Husband will pay alimony in the amount of $400.00 per month due on the
15th of each and every month for a period of five (5) consecutive years. Payments are to
be made by direct bank deposit. This will be reviewed at the end of the period.” Id. Similar
to the argument Wife makes in this case, the wife in Kelly argued that the MDA created “a
kind of hybrid alimony: an award of alimony in solido for five years with a reservation of
the issue of alimony in futuro for determination at the end of that period.” Id. at *2. This
Court rejected that argument, concluding that
the alimony award at issue is for alimony in futuro because the total amount
awarded was not ascertainable at the time of the award. The first sentence of
the alimony award suggests a classification as alimony in solido since the
award calls for payments of $400 per month for five years. The final sentence
of the paragraph, however, makes the total amount of the award indefinite
because the award is to be reviewed at the end of five years. Thus, it is
possible that Husband would be required to continue making monthly
payments for some period of time after the end of the five years. Because the
total amount of the award was unascertainable at the time of the award, we
must classify the award as being alimony in futuro.
Id.
Husband contends that the trial court impermissibly rewrote the parties’ MDA, and
that the contingencies—Wife’s remarriage or either party’s death—are applicable not only
- 10 -
to the portion of the award due after the first 120 months, but also to the initial 120-month
period. He also argues, inter alia, that the reason Wife likely never raised the issue of
whether the alimony is in solido or in futuro, until the trial court raised it sua sponte, is
because the alimony provision has always been understood to provide for alimony in
futuro.
We agree with Husband’s position that the alimony at issue is alimony in futuro.
First, the MDA explicitly states that the alimony is “alimony in futuro.” While this express
designation may not be dispositive, it is certainly persuasive evidence of the parties’ intent
that this award be treated as alimony in futuro. Compare Averitte, 2013 WL 357602, at *4
(holding that the label on the award as “periodic alimony” was not “conclusive”), with
Schmidt v. Schmidt, No. M2004-01350-COA-R3-CV, 2005 WL 2240960, at *6 (Tenn. Ct.
App. Sept. 15, 2005) (citing Waddey v. Waddey, 6 S.W.3d 230 (Tenn. 1999); Self v.
Self, 861 S.W.2d 360 (Tenn. 1993); Grissom v. Grissom, 15 S.W.3d 474 (Tenn. Ct. App.
1999)) (noting that in the cited cases, “the ultimate decision of the appellate court was
consistent with the description of the alimony in the divorce decree as either in futuro or in
solido”). Moreover, if the parties intended to create two categories of alimony, we are left
to wonder why they would only label one of them. See, e.g., S.M.R. Enterprises, Inc. v. S.
Haircutters, Inc., 662 S.W.2d 944, 949 (Tenn. Ct. App. 1983) (citation omitted) (“The
maxim expressio unius est exclusio alterius is here applicable. Its meaning is that the
expression of one implies the exclusion of the others. Stated differently, where a contract
by its express terms includes one or more things of a class it simultaneously implies the
exclusion of the balance of that class.”). Here, Wife does not dispute that this label is
properly applied to the second portion of the alimony award; only that it should not apply
to the initial 120-month award. But the designation of the alimony as in futuro is stated at
the outset of the provision in the MDA, indicating that it modifies both the 120-month
award and the award “thereafter.”
The alimony award also does not appear to be consistent with an award of alimony
in solido. “‘A typical purpose of such an award would be to adjust the distribution of the
parties’ marital property.’” Gonsewski, 350 S.W.3d at 108 (quoting Burlew v. Burlew, 40
S.W.3d 465, 471 (Tenn. 2001)). Alimony in solido may also be used to award attorney’s
fees to one spouse. Id. (citing Tenn. Code Ann. § 36-5-121(d)(5)). Here, nothing in the
MDA indicates that the alimony award was intended to adjust the distribution of marital
property. Moreover, the MDA expressly provides that each party was to pay his or her
respective attorney’s fees. Thus, nothing in the MDA indicates that any portion of the
alimony award was intended to meet the typical purposes of an award of alimony in solido.
Rather, there is evidence in the record that at the time of divorce, Wife was economically
disadvantaged compared to Husband. Alimony in futuro is precisely designed to remedy
such a situation. See Gonsewski, 350 S.W.3d at 107 (citations omitted) (stating that
alimony in futuro “can be awarded where ‘the court finds that there is relative economic
disadvantage and that rehabilitation is not feasible.’”).
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Most importantly, the alimony is also not for a definite duration or amount. Averitte,
2013 WL 357602, at *3. Here, the MDA contains a single provision awarding alimony.
Indeed, the nature of the award is contained in a single sentence. Just because there is a
second clause in that sentence does not mean two different types of alimony have been
established. Rather, there is a single award of alimony in futuro, the amount of which is to
decrease over time. Neither Wife nor the trial court cited any law in which this Court has
held that parties cannot structure an alimony in futuro award in this manner. From our
research, this appears to be a perfectly acceptable way to structure an award of alimony in
futuro. See, e.g., Head v. Head, No. M2009-01351-COA-R3-CV, 2010 WL 3853291, at
*10 (Tenn. Ct. App. Sept. 30, 2010) (affirming an “award of alimony in futuro of $6,400
per month until July 2013, when Wife [was to] turn[] sixty years old, at which time the
amount [was to] decrease[] to $4,400 per month and continue[] thereafter until Wife’s
remarriage or either party’s death.”). And as this Court explained in Kelly, “[b]ecause the
total amount of the award was unascertainable at the time of the award, we must classify
the award as being alimony in futuro.” 2009 WL 1312839, at *2. Wife’s argument ignores
the fact that the total amount of alimony was not ascertainable at the time the alimony was
awarded, but rather the alimony is to continue indefinitely, or until remarriage or death,
which are necessary termination conditions of alimony in futuro. See Tenn. Code Ann. §
36-5-121(f)(2)(A) (emphasis added) (“An award for alimony in futuro shall terminate
automatically and unconditionally upon the death or remarriage of the recipient.”).
Additionally, alimony in futuro is inherently modifiable. Id. Thus, the fact that the parties
built in a modification at the outset—it would start at $2,500.00 per month and eventually
decrease to $1,500.00 per month—actually supports the conclusion that the award is for
alimony in futuro, rather than two separate types of alimony.
Wife cites Self v. Self, 861 S.W.2d 360 (Tenn. 1993), in support of her position that
even if the 120-month award is subject to termination by the parties’ deaths or Wife’s
remarriage, this Court should still conclude that the 120-month provision is alimony in
solido. In that case, “[t]he trial court found a rehabilitative alimony award payable monthly
for 48 months or until the remarriage or death of the wife, whichever should occur first, to
be alimony in solido, not subject to subsequent modification.” Id. at 360. The Tennessee
Supreme Court affirmed the trial court. However, that case is distinguishable from this
case. In Self, the maximum amount of time the wife could have received alimony was
forty-eight months. Here, there is no similar set amount of maximum time for the alimony
payments—the award is to continue consistently and indefinitely, with the only automatic
terminating conditions being either party’s death and Wife’s remarriage.
Wife also cites Holt v. Holt, 751 S.W.2d 426 (Tenn. Ct. App. 1988), for the
proposition that hybrid alimony “is not unknown in Tennessee.” In that case,
[t]he [divorce] decree incorporated a property settlement agreement in which
the defendant-appellant agreed to pay the plaintiff the sum of $80,000 as
alimony in solido in graduated payments over the next ten years. In addition
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the appellant agreed to pay the plaintiff alimony in futuro in the amount of
ten percent of his gross income for five years after the last payment of
alimony in solido.
Holt v. Holt, 751 S.W.2d 426, 427 (Tenn. Ct. App. 1988). However, as Wife
acknowledges, whether the alimony was alimony in solido or in futuro was not at issue in
that case, unlike the case-at-bar. Moreover, while the above language does not directly
quote the parties’ settlement agreement in Holt, the $80,000.00 is explicitly labeled
“alimony in solido,” and the next portion of alimony is explicitly labeled “alimony in
futuro.” Here, the only label in the MDA is “alimony in futuro.” So Holt is further
distinguishable from this case to the extent that the hybrid alimony in Holt was expressly
labeled as such. In this case, the express label chosen by the parties in their MDA supports
Husband’s position that the alimony as a whole constitutes alimony in futuro. Cf. Schmidt,
2005 WL 2240960, at *3 (Tenn. Ct. App. Sept. 15, 2005) (emphasis added) (noting that
“[d]iscerning the nature of the award can also be challenging if the language of the decree
is not sufficiently descriptive”).
In sum, we hold that the entire award of alimony at issue is alimony in futuro, and
thus the trial court erred in bifurcating the award into alimony in solido and alimony in
futuro. Our holding on this issue therefore pretermits the issue Husband raises regarding
whether it was proper for the trial court to sua sponte raise the issue of how to categorize
the alimony. We note, however, that Husband correctly points out that Wife did not raise
this issue until the trial court brought it up, after which she began arguing that the MDA
provides for alimony in solido.11 Regardless of the trial court’s propriety in sua sponte
raising this issue, Wife’s inaction at the very least does not undermine our conclusion that
the parties’ intent, at the time the alimony was awarded, was for it to be alimony in futuro.
See Planters Gin Co., 78 S.W.3d at 890 (citation omitted) (“The central tenet of contract
construction is that the intent of the contracting parties at the time of executing the
agreement should govern.”).
Therefore, the trial court erred in denying Husband’s modification petition as to the
120-month obligation on the basis that it was nonmodifiable alimony in solido. The trial
court also erred in denying as premature Husband’s petition with respect to the alimony
scheduled to begin in 2022, because, again, the alimony here is alimony in futuro—a single,
ongoing obligation, not a future obligation. Finally, the trial court erred in concluding that
11
Generally, parties are not permitted to change their theories after the conclusion of the trial court
proceedings. Cf. State v. Alder, 71 S.W.3d 299, 303 (Tenn. Crim. App. 2001) (“It is well-settled that an
appellant is bound by the evidentiary theory set forth at trial, and may not change theories on appeal.”).
Here, Wife essentially admitted in her answer to the petition that the alimony was in futuro and therefore
subject to the statutory presumption regarding cohabitation. Wife only began arguing otherwise after the
close of proof. Wife’s attempt to distinguish this case from one cited by Husband, Winne v. Winne, No.
E2018-01050-COA-R3-CV, 2019 WL 5606928 (Tenn. Ct. App. Oct. 30, 2019), on the basis that the wife
in that case agreed that the alimony constituted alimony in futuro, is therefore less than persuasive.
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the issues surrounding the parties’ cohabitants were moot based on its erroneous
conclusions regarding the alimony.
B.
The next issue is the trial court’s decision to hold Husband in civil contempt of court
“for failure to pay alimony and life insurance premiums as Ordered.” As Husband notes,
he continued paying alimony after he filed his modification petition on June 18, 2018.
Husband asks that the question of contempt be remanded in light of our holding that the
trial court improperly classified the alimony in this case as non-modifiable. Wife argues
that even if there is an insufficient basis for a finding of contempt regarding payments
Husband made after he filed his modification petition, Husband failed to pay the full
amount of alimony and life insurance even prior to his requested modification; as such, she
asserts that there was sufficient evidence to uphold the contempt finding.
We conclude that Husband’s proposed resolution of this issue is the better option.
Here, the trial court found that Husband willfully failed to pay alimony as ordered in the
years 2017, 2018, 2019, and 2020. Certainly, much of that time followed Husband’s
petition to modify. Any finding that contempt occurred after he sought to modify must
therefore be vacated in light of this Opinion. If the trial court determines that Husband’s
alimony should be modified as of the date of his petition,12 any arrearages will need to be
recalculated, and the amounts he paid after he filed the petition will need to be accounted
for. While we express no opinion as to the likelihood of this occurrence, it is possible that
a modification will occur such that Husband in fact overpaid post-June 2018. That
overpayment could account for any arrearage in 2017. In light of Husband’s pending
petition to modify alimony, reconsideration of the alimony contempt issue as a whole
appears prudent at this juncture. Thus, the trial court’s finding that Husband was in
contempt for failure to pay alimony is vacated.
We note, however, that the contempt finding was based in part on Husband’s failure
to pay life insurance premiums, which Husband has not appealed. The trial court’s finding
of contempt related to the insurance premiums in the amount of $4,991.00 plus interest is
therefore affirmed.
C.
Because we hold that the trial court mischaracterized the alimony and are vacating
12
This Court has held that the question of whether an alimony modification should be retroactive
lies in the discretion of the trial court. See Cook v. Iverson, No. M2014-01206-COA-R3-CV, 2015 WL
7748798, at *6 (Tenn. Ct. App. Nov. 30, 2015) (citing Howell v. Howell, No. M2005-01262-COA-R3-CV,
2006 WL 1763660, at *4 (Tenn. Ct. App. June 28, 2006)) (“We leave it to the court on remand to determine
whether any modification in alimony should be retroactive and, if so, the date to which it should be made
retroactive.”).
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the denial of Husband’s modification petition, we also vacate the trial court’s award of
attorney’s fees and interest to Wife. The trial court reasoned that Wife is entitled to
attorney’s fees as a “prevailing party” under Tennessee Code Annotated section 36-5-
103(c) and a “successful” party under the MDA’s Enforcement provision. Pursuant to our
holding, Wife is no longer the prevailing or successful party, at least at this juncture.
Therefore, the trial court is to reconsider the award of attorney’s fees on remand.
The same reasoning applies to the trial court’s award of Wife’s discretionary costs—
it was based on concluding that Wife was the prevailing party, and thus it is vacated and
remanded for reconsideration in light of this Opinion. Likewise, Wife’s request for
attorney’s fees on appeal is denied.
D.
In light of the foregoing analysis, the trial court’s judgment on the issue of how the
alimony is to be categorized is reversed, and its dismissal of Husband’s modification
petition is vacated. The trial court’s judgments against Husband for alimony arrearages and
interest, for alimony of $2,500.00 per month for September and October 2020,13 and for
future alimony payments thereafter are also vacated. Upon remand, the trial court is to
reconsider the original issue of whether the alimony in futuro should be modified. See
Miller v. McFarland, No. M2013-00381-COA-R3-CV, 2014 WL 2194382, at *8 (Tenn.
Ct. App. May 23, 2014) (“Based on its erroneous conclusion that the alimony at issue was
non-modifiable, the trial court did not consider whether Husband was entitled to a
modification based upon Wife’s remarriage and cohabitation. Accordingly, we remand to
the trial court to consider whether Husband is entitled to a modification or termination of
his alimony obligation . . . .”); Finchum v. Finchum, No. M2012-00975-COA-R3-CV,
2013 WL 593275, at *4 (Tenn. Ct. App. Feb. 13, 2013) (“We hold the trial court erred in
ruling that the alimony payments could not be modified. Accordingly, we remand this case
to the trial court to determine whether Husband can prove a substantial and material change
in circumstances sufficient to warrant a modification or termination of his rehabilitative
alimony as of the date of his petition . . . .”).
The only portion of the monetary judgment against Husband that shall remain
undisturbed is the judgment for $4,991.00 in life insurance premiums because Husband
does not dispute that award on appeal. Husband does not explicitly concede that he owes
interest on that amount, but he also does not contest the portion of the trial court’s judgment
ordering him to pay such interest. Therefore, Husband must also pay the interest due on
the $4,991.00 he owes in insurance premiums. However, as previously stated, the Life
Insurance provision of the parties’ MDA only requires Husband to keep in effect the life
13
The trial court likely decided to make explicit orders with respect to September and October 2020
because the trial occurred in August 2020 and the trial court’s final order was not filed until November
2020.
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insurance policy “so long as [he] is under an obligation to pay alimony.” Given our holding
in this appeal, Husband’s alimony obligations may be modified upon remand. Thus, the
trial court’s order that Husband pay the life insurance premiums for September and October
2020, and thereafter, is also vacated. Upon remand, the trial court is to reconsider
Husband’s obligations with respect to life insurance premiums other than the $4,991.00
plus interest previously awarded.
We also vacate the portion of the trial court’s final order that awarded Wife a lien
against Husband’s property, as the bulk of the lien was imposed for the awards of alimony
arrearages and attorney’s fees, which have been vacated. The portion of the trial court’s
order mandating that Husband shall be incarcerated if he does not pay the judgment with
respect to the alimony arrearages, attorney’s fees, and interest as ordered is also vacated.
The portion of the trial court’s order mandating that Husband be incarcerated for failing to
pay the $4,991.00 plus interest for life insurance premiums in the manner prescribed
remains undisturbed.
V. CONCLUSION
The judgment of the Sumner County Chancery Court is affirmed in part, reversed
in part and vacated in part. The case is remanded to the trial court for further proceedings
consistent with this Opinion. Costs of this appeal are taxed to Appellee Deborah P. Linn,
for which execution may issue if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
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