John Michael Kelly v. Stacey Lynn Kelly ( 2009 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 17, 2009 Session
JOHN MICHAEL KELLY v. STACEY LYNN KELLY
Appeal from the Chancery Court for Coffee County
No. 06-155 L. Craig Johnson, Judge
No. M2008-02170-COA-R3-CV - Filed May 11, 2009
The trial court denied a motion to terminate alimony based upon a finding that the award was for
alimony in solido. Because the marital dissolution agreement provided that the award was subject
to review, we find the award to be for alimony in futuro and therefore subject to termination upon
the remarriage of the wife. We reverse the decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed
ANDY D. BENNETT , J., delivered the opinion of the court, in which FRANK G. CLEMENT , JR. and
RICHARD H. DINKINS, JJ., joined.
Roger James Bean, Tullahoma, Tennessee, for the appellant, John Michael Kelly.
Robert L. Huskey, Manchester, Tennessee, for the appellee, Stacey Lynn Kelly.
OPINION
John Michael Kelly (“Husband”) and Stacey Lynn Kelly (“Wife”) married in 1986 and
divorced on grounds of irreconcilable differences pursuant to a final decree entered on November
1, 2007. The decree incorporated the parties’ marital dissolution agreement, which contains the
following language with respect to alimony:
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.
In December 2007, Wife remarried. On May 21, 2008, Husband filed a motion to terminate alimony
based upon Wife’s remarriage. The trial court found the award of alimony to be for alimony in
solido and denied the motion to terminate. Husband appeals.
STANDARD OF REVIEW
The facts in this case are undisputed.1 The only issue for our determination is whether the
alimony award in the marital dissolution agreement is alimony in futuro or alimony in solido. This
is a question of law, which we review de novo with no presumption of correctness. Burlew v.
Burlew, 40 S.W.3d 465, 470 (Tenn. 2001).
ANALYSIS
Tenn. Code Ann. § 36-5-121, which took effect in July 2005, governs the types of alimony
available in Tennessee and their characteristics. Alimony in futuro, or periodic alimony, is “a
payment of support and maintenance on a long term basis or until death or remarriage of the
recipient.” Tenn. Code Ann. § 36-5-121(f)(1). An award of alimony in futuro is appropriate where
there is “relative economic advantage” and rehabilitation of the disadvantaged spouse is not feasible.
Id. Pursuant to Tenn. Code Ann. § 36-5-121(f)(2)(A), “[a]n 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.” In addition, Tenn. Code Ann. § 36-5-121(f)(3) provides that an award of alimony
in futuro “shall terminate automatically and unconditionally upon the death or remarriage of the
recipient.”
Alimony in solido, or lump sum alimony, “is a form of long term support, the total amount
of which is calculable on the date the decree is entered, but which is not designated as transitional
alimony.” Tenn. Code Ann. § 36-5-121(h)(1). This type of alimony may be payable in installments
as long as the installments “are ordered over a definite period of time and the sum of the alimony to
be paid is ascertainable when awarded.” Tenn. Code Ann. § 36-5-121(h)(1). In addition to
providing financial support to the recipient, alimony in solido can include attorney fees. Id.
Pursuant to Tenn. Code Ann. § 36-5-121(h)(3), alimony in solido does not terminate upon the
recipient’s death or remarriage. Tenn. Code Ann. § 36-5-121(h)(2) states: “A final award of alimony
in solido is not modifiable, except by agreement of the parties only.”
Thus, in the present case, whether the alimony award should terminate with Wife’s
remarriage depends upon whether it is classified as alimony in futuro, which is modifiable, or
alimony in solido, which is not modifiable.
The distinguishing factor between alimony in solido and alimony in futuro is the definiteness
or indefiniteness of the amount to be paid at the time of the award. Burlew, 40 S.W.3d at 471
(quoting Waddey v. Waddey, 6 S.W.3d 230, 232 (Tenn. 1999)). Alimony in solido is
“‘fundamentally the award of a definite sum of money; and if the sum is payable in installments, the
1
W ife’s brief includes arguments based upon the parties’ negotiations leading up to the signing of the marital
dissolution agreement. There is no proof in the record concerning the negotiations or the intent of the parties with respect
to their agreement. W e cannot, therefore, consider these arguments.
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payments run for a definite length of time.’” McKee v. McKee, 655 S.W.2d 164, 165 (Tenn. Ct.
App. 1983) (quoting Spalding v. Spalding, 597 S.W.2d 739, 741 (Tenn. Ct. App. 1980)). The
amount of the alimony in solido award “must be ascertainable when ordered, not years later when
a contingency terminates the award.” Waddey, 6 S.W.3d at 232. If the alimony award contains
contingencies that may affect the total amount to be paid, the award is for alimony in futuro because
the total amount of alimony is not definite and ascertainable at the time the award is made. McKee,
655 S.W.2d at 165-66; see also Page v. Page, No. 03A01-9108-CH-290, 1992 WL 55574, *4 (Tenn.
Ct. App. Mar. 24, 1992).
Applying these principles to the present case, we conclude 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. Therefore, pursuant to Tenn. Code Ann. § 36-5-121(f)(3), the alimony award terminates
automatically upon Wife’s remarriage.
Wife argues that the alimony language should be interpreted as creating 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. In support of this argument, Wife cites two cases
in which the court reserved the issue of alimony for determination at a later date. See Robinette v.
Robinette, 726 S.W.2d 524, 525 (Tenn. Ct. App. 1986) (reserving judgment on issue of alimony in
light of wife’s health conditions); Walton v. Walton, No. W2004-02474-COA-R3-CV, 2005 WL
1922565, *2 (Tenn. Ct. App. Aug. 10, 2005) (reserving jurisdiction to evaluate and review award
of rehabilitative alimony after 18 months while wife sought disability benefits). These cases are
distinguishable from the present case, however, because the courts expressly stated they were
reserving a final determination regarding alimony until a later date in light of specific concerns.
Robinette, 726 S.W.3d at 525; Walton, 2005 WL 1922565, at *2. In the present case, the alimony
award was included in a marital dissolution agreement, and there is nothing in the award to indicate
that the parties intended to establish two different types of alimony.
Wife also cites Gillespie v. Gillespie, emphasizing the statement that “‘[p]arties should be
free to obligate themselves by agreement beyond what the courts could order them to do as a matter
of law.’” Gillespie, No. E2006-00734-R3-CV, 2006 WL 3732195, *5 (Tenn. Ct. App. Dec. 19,
2006) (quoting Bryan v. Leach, 85 S.W.3d 136, 150 (Tenn. Ct. App. 2001)). In Gillespie, the trial
court’s decree provided that the husband would pay alimony of $500 per month for two years. Id.
at *1. Presented with a petition to modify after the wife’s remarriage, the trial court classified the
alimony award as “periodic/rehabilitative alimony” and terminated the award. Id. at *2. This court
reversed based on our conclusion that the award was for alimony in solido and, therefore, not subject
to modification. Id. at *3. In support of this conclusion, the court cited two reasons: the definiteness
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of the amount of the award with no contingencies to cause termination, and the lack of any factual
findings in the divorce judgment that the wife was in need of or was capable of rehabilitation. Id.
Gillespie is distinguishable from the present case because here we have contingencies that make the
total amount of the alimony award indefinite.
The trial court and Wife have cited the language of Tenn. Code Ann. § 36-5-121(h)(2) that
“[a] final award of alimony in solido is not modifiable, except by agreement of the parties only.”
As discussed above, this court classifies the award at issue as being one for alimony in futuro
because of the indefiniteness of the amount of the award in light of the contingency specified in the
award. Thus, Tenn. Code Ann. § 36-5-121(h)(2) does not apply.
CONCLUSION
For the foregoing reasons, we conclude that the alimony awarded in this case was alimony
in futuro and that, therefore, pursuant to Tenn. Code Ann. § 36-5-121(f)(3), the alimony award
terminated automatically upon Wife’s remarriage. We reverse the decision of the trial court and
remand for further proceedings, if necessary, consistent with this opinion. Costs of appeal are
assessed against the appellee.
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ANDY D. BENNETT, JUDGE
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