Lori Lee Grissom (Brown) v, Jeffrey Donald Grissom ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
EASTERN SECTION AT KNOXVILLE
LORI LEE GRISSOM (BROWN), ) KNOX CIRCUIT
)
Plaintiff/Appellee ) NO. 03A01-9607-CV-00219
)
v. ) HON. BILL SWANN
) JUDGE
JEFFREY DONALD GRISSOM, )
) VACATED and
Defendant/Appellant ) REMANDED
JUDGMENT
This appeal came on to be heard upon the record from the Circuit Court of
Knox County and briefs filed on behalf of the respective parties. Upon consideration
thereof, this Court is of the opinion that there is reversible error in the trial court's
judgment.
It is, therefore, ORDERED and ADJUDGED by this Court that the judgment
of the trial court is vacated and the case is remanded to the Circuit Court of Knox
County for trial. Costs are assessed to the appellee.
PER CURIAM
IN THE COURT OF APPEALS OF TENNESSEE
EASTERN SECTION AT KNOXVILLE
LORI LEE GRISSOM (BROWN), ) KNOX CIRCUIT
)
Plaintiff/Appellee ) NO. 03A01-9607-CV-00219
)
v. ) HON. BILL SWANN
) JUDGE
JEFFREY DONALD GRISSOM, )
) VACATED and
Defendant/Appellant ) REMANDED
Jack W. Piper, Jr., Knoxville, for Appellant.
Robert L. Crossley, Knoxville, for Appellee.
OPINION
INMAN, Senior Judge
A Marital Dissolution Agreement was incorporated in a divorce judgment
entered August 8, 1994.
As pertinent here, the Marital Dissolution Agreement provided:
6. Husband shall pay the wife as alimony in solido the sum of
$221.000.00, which alimony in solido shall be payable
$425.00 per week for ten (10) years or 520 consecutive
weeks, on Friday of each week, beginning the first Friday
after the final judgment of divorce is entered, provided,
however, the alimony in solido monthly payments shall
terminate upon the wife's death.
The wife's remarriage on May 26, 1995 triggered this action to modify the
judgment by terminating the alimony requirement. The trial court considered the
issue at length and made a determination that ordinarily an award of alimony in
solido is beyond the reach of the court after the judgment becomes final, but in this
case, the award was in futuro since the judgment provided for its termination by the
death of the recipient and hence subject to modification.
An issue of law is presented and no presumption of correctness of the trial
court's judgment attaches. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91
(Tenn. 1993).
T. C. A. § 36-5-101(a)(2)(B)1 provides:
In all cases where a person is receiving alimony in futuro or alimony
the amount of which is not calculable on the date the decree was
entered, and that person remarries, the alimony in futuro or alimony
the amount of which is not calculable on the date the decree was
entered, will terminate automatically and unconditionally upon the
remarriage of the recipient. The recipient shall notify the obligor of the
remarriage timely upon remarriage. Failure of the recipient to timely
give notice of the remarriage will allow the obligor to recover all
amounts paid as alimony in futuro or alimony the amount of which is
not calculable on the date the decree was entered, to the recipient
after the recipient's marriage.
The appellant argues that an award of alimony in solido is not modifiable after
the judgment becomes final. We readily agree. See Spalding v. Spalding, 597
S.W.2d 739 (Tenn. Ct. App. 1980); Isbell v. Isbell, 816 S.W.2d 735 (Tenn. 1991).
The appellee argues that the award is in futuro because of the termination
provision [death of the wife] , since the amount "is not calculable on the date the
decree was entered," and therefore the judgment is modifiable, as found by the trial
court. T.C.A. § 36-5-101(a)(2)(B) is apparently reflexive to Butcher v. Webb, 869
S.W.2d 356 (Tenn. 1994), holding that alimony once paid is not recoverable under
the prevailing statutory scheme.
We think that had the trial court initially decreed the subject provision it would
clearly fall within the purview of the statute because the amount is not calculable on
the date the decree was entered; but inquiry cannot stop at this point. It is well
settled in Tennessee that parties in domestic relations disputes may settle property
rights between themselves consistent with legal and equitable requirements.
Marital Dissolution Agreements are expressly provided for, T.C.A. § 36-4-103,
and it is a public policy of this state that their use is to be encouraged. To that end
the courts have consistently held that a property contract is not subject to
modification after it has been approved by the court. In Penland v. Penland, 521
S.W.2d 227 (Tenn. 1975), the principle was reaffirmed that a Marital Dissolution
Agreement provision lost its contractual nature if it was by law subject to
1
This statute had been in effect about three months before the case at bar was heard.
modification. Otherwise, it remained a binding contract. Typically, agreements as to
child and spousal support constitute, as a practical matter, those subject to
modification; alimony in solido is generally never modifiable because it is a part of
the property division scheme. See Vanatta v. Vanatta, 701 S.W.2d 824 (Tenn. Ct.
App. 1985).
But superimposed upon these principles is one that is essentially
transcendent: to ascertain the intent of the parties as expressed in the agreement,
as distinguished from a decretal finding. In many instances such intent will be
derived from the language employed, because parties to a contract will not be
allowed to stultify themselves, absent a compelling circumstance; but if the provision
is ambiguous, extrinsic evidence may properly be adduced to resolve the element of
intent. See Bob Pearsall Motors v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578(Tenn. 1975); Taylor v. White Stores, Inc., 707 S.W.2d 514 (Tenn. Ct. App. 1985).
The appellant forcefully argues that these parties negotiated the Marital
Dissolution Agreement with the assistance of knowledgeable counsel who advised
them with respect to the impact of the language employed, and stresses the singular
reference to "alimony in solido" as contrasted to alimony in futuro or to rehabilitative
alimony. Inapposite to this argument is the stark presence of the statute which
prima facie 'converts' the alimony in solido to an award of alimony in futuro.
We cannot sacrifice substance to form, Self v. Self, 861 S.W.2d 360 (Tenn.
1993), and conclude that an evidentiary hearing is required in order to determine the
intention of these parties, and to arrive at the justice of the case. Accordingly, the
judgment is vacated and the case is remanded for trial. Costs are assessed to the
appellee.
______________________________
William H. Inman, Senior Judge
CONCUR:
_____________________________________
Houston M. Goddard, Presiding Judge
_____________________________________
Herschel P. Franks, Judge