Susan Hembree (Schumacher) Deluca v. Kerry James Schumacher ( 2020 )

03/06/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 5, 2020 Session
SUSAN HEMBREE (SCHUMACHER) DELUCA
V. KERRY JAMES SCHUMACHER
Appeal from the Circuit Court for Davidson County
No. 00D-2918 Philip E. Smith, Judge
No. M2019-00601-COA-R3-CV
A husband and wife executed a marital dissolution agreement (“MDA”) providing that
the husband would pay the wife alimony in futuro even if she remarried. Following the
wife’s remarriage, the husband sought to have his alimony obligation terminated pursuant
to Tenn. Code Ann. § 36-5-121(f)(3), which provides that an alimony in futuro award
“shall terminate automatically and unconditionally upon the death or remarriage of the
recipient.” The trial court terminated the husband’s alimony obligation, and the wife
appealed. We reverse the trial court’s judgment because the parties voluntarily agreed to
terms outside of the statute, and their contract is enforceable as written.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.
Karla C. Miller, Nashville, Tennessee, for the appellant, Susan Hembree (Schumacher)
DeLuca.
Helen Sfikas Rogers, Lawrence James Kamm, and Laura S. Blum, Nashville, Tennessee,
for the appellee, Kerry James Schumacher.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
Susan Hembree (Schumacher) DeLuca (“Wife”) and Kerry James Schumacher
(“Husband”) were divorced in September 2008 following a marriage of over thirty years.
The parties executed an MDA in August 2008 that specified, among other things, the
amount and terms of the alimony Husband would pay to Wife. The trial court found that
the MDA provided for “a fair and equitable settlement of the property rights between the
parties” and entered an order approving all provisions of the MDA and making it the
judgment of the court.
The MDA included a section titled “Spousal Support” that provided, in relevant
part, as follows:
Husband agrees to pay alimony as long as the wife shall live in an
amount equal to 30% of his gross income capped at an annual income of
$500,000. This $500,000 cap shall be indexed to the Consumer Price Index
for the South-All Items, which as [of] the date of this agreement is 335.257
(1997=100). Gross income shall be defined as all income on which
Medicare taxes shall be paid plus any pension payments made on the behalf
of the Husband as a fringe benefit that are not currently taxed by Medicare.
Additionally, gross income shall include any payments to which the
Husband is entitled and has otherwise been deferred under IRC Section
457.
....
In addition to the alimony stipulated in the above, Husband agrees to
pay Wife rehabilitative alimony of $3100.00 per month for five years,
commencing 30 days after this agreement is signed.
Husband’s obligation to pay alimony shall cease upon the death of
Wife. Should Husband predecease wife, his estate shall pay the support
obligation as long as Wife is alive. Given that the life expectancy of
Husband is approximately 3.75 years less than that of the Wife, Husband
agrees to maintain an un-encumbered, $1,000,000 life insurance policy,
with Husband as the insured, making Wife the owner and beneficiary, and
to fund the obligation payable at the time of his death. Additionally, the
parties agree, that should the Wife remarry or cohabit more than 90 days
with a romantic partner, and should the Wife’s new Husband or romantic
partner have any gross income, determined in the same manner as that of
the Husband’s, the Husband’s obligation to pay alimony shall be reduced
dollar-for-dollar, based on the amount of the gross income of Wife’s new
Husband or romantic partner, EXCEPT, in no case shall alimony be
reduced any lower than the amount of funds needed to pay the first and
second mortgages on Wife’s residence based on the total amount of the
mortgages ($525,730.70) in existence as of the date of the signing of this
agreement.
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(Emphasis added.)
Wife remarried on October 17, 2015, and Husband learned of the remarriage
shortly thereafter. Husband initially stopped paying alimony to Wife once he found out
that she had remarried, but he resumed sending Wife alimony payments after a couple of
months. Husband eventually sought legal counsel to determine whether he was required
to continue paying alimony to Wife in light of her married status, and on August 1, 2016,
Husband filed a petition seeking to terminate his alimony obligation. By the time of the
hearing, the parties agreed Husband had paid a total of $85,200 to Wife since her
remarriage. Husband sought a judgment in that amount, which he termed an
overpayment of alimony. He also asked the court to reduce or eliminate his obligation to
continue paying premiums on life insurance policies that were transferred to Wife when
the parties were divorced. Husband asserted that the policies were transferred to Wife to
insure his alimony obligation and were not marital assets that the parties divided as part
of the property settlement.
Husband filed a motion for summary judgment, and the trial court held a hearing
to consider the motion on October 28, 2016. The court issued a memorandum and order
on November 23, 2016, in which it ruled that Husband’s obligation to pay Wife alimony
terminated as a matter of law upon her remarriage, regardless of the terms set forth in the
MDA. The court relied for its ruling on Tenn. Code Ann. § 36-5-121(f)(3), which states
in pertinent part: “An award for alimony in futuro shall terminate automatically and
unconditionally upon the death or remarriage of the recipient.” The trial court concluded
that the alimony Husband was paying to Wife was properly classified as alimony in
futuro and summarized its ruling thusly:
[T]he Court finds that the MDA in the present case merged into the final
decree of divorce, and as a result, this Court retained its continuing
jurisdiction to modify the alimony in futuro obligation pursuant to Tenn.
Code Ann. § 36-5-121(f)(2)(A). Furthermore, because Tenn. Code Ann.
§ 36-5-121(f)(3) provides for the automatic and unconditional termination
of an alimony in futuro award upon the remarriage of the recipient, the
Court finds that it must follow the statute as written by the General
Assembly and terminate the Petitioner’s alimony obligation.
In a separate ruling, following an evidentiary hearing, the trial court awarded
Husband a portion of the alimony he paid Wife following her remarriage but denied
Husband’s request that he be permitted to stop paying the premiums on the life insurance
policies that were transferred to Wife when the parties were divorced. Both parties
requested an award of their attorney’s fees. The trial court awarded Wife the fees
attributable to her defense of Husband’s request to be relieved from paying the life
insurance premiums and denied Husband’s request for fees.
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Wife appeals the trial court’s decision granting Husband’s motion for summary
judgment and terminating Husband’s alimony obligation. She contends that the alimony
provisions of the MDA did not merge into the final decree but retained their contractual
nature, with the result that they should be enforced as written. She requests an award of
her attorney’s fees incurred at trial and on appeal. Husband appeals the trial court’s
decision that the life insurance premium payments were partially in the nature of a
property settlement as well as its award to Wife of a portion of her attorney’s fees.
II. STANDARD OF REVIEW
The trial court granted Husband summary judgment on the issue whether he was
required to continue paying Wife alimony once she was remarried. This case involves
the interpretation of the statute addressing alimony, Tenn. Code Ann. § 36-5-121. “The
tasks of statutory construction and applying a statute to a particular set of facts involve
questions of law rather than questions of fact,” and “appellate courts must review a trial
court’s construction of a statute or application of a statute to a particular set of facts de
novo without a presumption of correctness.” Midwestern Gas Transmission Co. v.
Lassiter, No. M2005-00829-COA-R3-CV, 2006 WL 464119, at *5 (Tenn. Ct. App. Feb.
24, 2006); see also Sneed v. City of Red Bank, 459 S.W.3d 17, 22 (Tenn. 2014) (stating
statutory interpretation is an issue of law that appellate courts review de novo). Summary
judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of
law.” TENN. R. CIV. P. 56.04. We review a trial court’s ruling on a motion for summary
judgment de novo, affording the trial court’s decision no presumption of correctness. Rye
v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015).
III. ANALYSIS
A. Alimony Payments
An MDA is a contract that “is subject to the rules governing construction of
contracts.” Eberbach v. Eberbach, 535 S.W.3d 467, 474 (Tenn. 2017). If a trial court
approves an MDA, it becomes incorporated into the decree of divorce. Eberbach, 535
S.W.3d at 474. The trial court in this case filed the parties’ final decree of divorce on
September 17, 2008, and the court wrote that “all provisions of said Marital Dissolution
Agreement are hereby approved and made the judgment of this Court as attached.”
Wife does not dispute the trial court’s determination that the type of spousal
support Husband agreed to pay her was properly classified as alimony in futuro.
Pursuant to Tenn. Code Ann. § 36-5-121(f)(1), “[a]limony in futuro, also known as
periodic alimony, is a payment of support and maintenance on a long term basis or until
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death or remarriage of the recipient.” The section of the statute focusing on alimony in
futuro provides, in pertinent part, that:
(2)(A) 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.
(B) 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) An award for alimony in futuro shall terminate automatically and
unconditionally upon the death or remarriage of the recipient. The
recipient shall notify the obligor immediately upon the recipient’s
remarriage. Failure of the recipient to timely give notice of the remarriage
shall allow the obligor to recover all amounts paid as alimony in futuro to
the recipient after the recipient’s marriage. Alimony in futuro shall also
terminate upon the death of the payor, unless otherwise specifically stated.
Tenn. Code Ann. § 36-5-121(f) (emphasis added).
Husband relies on section (f)(3) of the statute to support his argument that Wife’s
alimony “was subject to automatic and unconditional termination upon her remarriage”
regardless of the terms of the MDA. Husband cites the merger doctrine, which dates
back to 1946 in Tennessee, to support his position. See Osborne v. Osborne, 197 S.W.2d
234, 236 (Tenn. Ct. App. 1946). In the Osborne case, the Court of Appeals wrote that
when divorcing parties agree to the terms for alimony and child support, the agreements
“are not absolute and binding when the court retains jurisdiction for their modification or
the statute law of the state provides that such decrees remain open and subject to
modification.” Id. (citing 27 C.J.S., Divorce, § 234, p. 961). The Osborne court
continued:
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It is the theory of the majority of the courts that an agreement of the parties
becomes “merged into the decree and thereby loses its contractual nature at
least to the extent that the court has the power to modify the decree when
changed circumstances so justify.”
Id. (quoting Worthington v. Worthington, 139 So. 334, 335 (Ala. 1932)). Since that time,
the courts of Tennessee have found that when divorcing parties agree about their legal
duty of child support or alimony, the parties’ agreement becomes merged into the court’s
decree once it is approved, and it “loses its contractual nature.” Penland v. Penland, 521
S.W.2d 222, 224 (Tenn. 1975); see also Karsonovich v. Kempe, No. M2017-01052-COA-
R3-CV, 2018 WL 1091735, at *3 (Tenn. Ct. App. Feb. 27, 2018) (“Once the MDA is
incorporated, issues governed by statute, like alimony and child support, ‘lose their
contractual nature and become a judgment of the court.’”) (quoting Eberbach, 535
S.W.3d at 474). The Penland Court explained the reason for the rule:
[I]t is clear that the reason for stripping the agreement of the parties of its
contractual nature is the continuing statutory power of the Court to modify
its terms when changed circumstances justify. It follows, and we so hold,
that only that portion of a property settlement agreement between husband
and wife dealing with the legal duty of child support, or alimony over
which the court has continuing statutory power to modify, loses its
contractual nature when merged into a decree for divorce.
Penland, 521 S.W.2d at 224; see also Beck v. Beck, No. W2011-01806-COA-R3-CV,
2012 WL 1656228, at *4-5 (Tenn. Ct. App. May 11, 2012). The issue in Penland was
the enforceability of a provision of the parties’ agreement in which the husband agreed to
“assume liability for all future educational expenses of the children beyond high school
level.” Penland, 521 S.W.2d at 223. The Court concluded that this provision was
enforceable and retained its contractual nature despite the fact that it was incorporated
into the final decree of divorce because it fell “outside the scope of the legal duty of
support during minority.” Id. at 224-25.
Wife argues that the terms of the MDA should be enforced despite the language of
Tenn. Code Ann. § 36-5-121(f)(3) because the parties expressly agreed that Husband
would continue to pay Wife alimony even if she remarried. Wife relies on two different
provisions of § 36-5-121 to support her position. The first provision Wife relies on is
subsection (a), which states:
In any action for divorce, legal separation or separate maintenance, the
court may award alimony to be paid by one spouse to or for the benefit of
the other, or out of either spouse’s property, according to the nature of the
case and the circumstances of the parties. The court may fix some definite
amount or amounts to be paid in monthly, semimonthly or weekly
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installments, or otherwise, as the circumstances may warrant. Such award,
if not paid, may be enforced by any appropriate process of the court having
jurisdiction including levy of execution. Further, the order or decree shall
remain in the court’s jurisdiction and control, and, upon application of
either party, the court may award an increase or decrease or other
modification of the award based upon a showing of a substantial and
material change of circumstances; provided, that the award is subject to
modification by the court based on the type of alimony awarded, the terms
of the court’s decree or the terms of the parties’ agreement.
Tenn. Code Ann. § 36-5-121(a) (emphasis added). The other provision Wife relies on is
what is currently subsection (n), but at the time of the parties’ divorce was subsection
(m):
Nothing in this section shall be construed to prevent the affirmation,
ratification and incorporation in a decree of an agreement between the
parties as to support and maintenance of a party.
Tenn. Code Ann. § 36-5-121(m) (2008).
Recognizing the “tension between the enforceability of a valid contract and the
court’s continuing authority to modify alimony awards,” Winne v. Winne, No. E2018-
01050-COA-R3-CV, 2019 WL 5606928, at *2 (Tenn. Ct. App. Oct. 30, 2019), we have
held that trial courts do not retain jurisdiction to modify alimony in cases where the
divorcing parties have specified in their MDAs that an alimony award is not modifiable.
See, e.g., Karsonovich, 2018 WL 1091735, at *5 (“If a divorcing party wishes to be able
to modify alimony, that party should avoid including language in the MDA stating the
alimony is non-modifiable.”); Vick v. Hicks, No. W2013-02672-COA-R3-CV, 2014 WL
6333965, at *2-4 (Tenn. Ct. App. Nov. 17, 2014) (denying husband’s petition to
terminate transitional alimony upon wife’s remarriage due to non-modification language
of MDA); cf. Winne, 2019 WL 5606928, at *3 (holding alimony award was modifiable
where parties did not expressly state in MDA that alimony award was not modifiable).
The reason for the courts’ willingness to enforce these agreements is 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.” Holt v. Holt, 751 S.W.2d 426, 428 (Tenn. Ct. App.
1988).1
1
In Holt, the Court of Appeals affirmed the trial court’s denial of the payor’s request to be relieved from
his promise to pay the recipient $80,000 as alimony in solido over a period of ten years in addition to ten
percent of the payor’s gross income for five years after the final payment of alimony in solido was made.
Holt, 751 S.W.2d at 427-28. The payor argued that the alimony provisions were void because they
violated public policy, and the court did not address the modification or termination provisions of Tenn.
Code Ann. § 36-5-121. Id.
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In Vick v. Hicks, the husband agreed in the parties’ MDA to pay the wife
transitional alimony for a period of sixty months. Vick, 2014 WL 6333965, at *2. Their
MDA stated that “[t]he alimony shall be not modifiable by either party.” Id. The wife
remarried before the end of the sixty-month period, and the husband filed a petition to
terminate his alimony obligation. Id. at *1. The trial court granted the wife’s motion to
dismiss the petition, and the husband appealed. Id. Similar to Husband’s contention in
the case at bar, the husband in Vick argued that the alimony statute gives the court
“continuing statutory authority to modify his alimony obligation” irrespective of the
terms of the MDA, and the wife’s remarriage gave him the right to seek relief under the
statute. Id. at *3. The Court of Appeals disagreed:
Undoubtedly, transitional alimony is generally subject to modification post-
divorce if one of the contingencies in Tennessee Code Annotated § 36-5-
121(g)(2) is established. Trial courts do possess such authority, as Husband
has argued, as a matter of statute. See Tenn. Code Ann. § 36-5-121(g)(2)
(2014). When, however, parties expressly agree in a marital dissolution
agreement that a transitional alimony obligation shall not be modifiable,
such an agreement should be deemed to have force. The alimony statutes
are not applicable where the parties agree in a marital dissolution agreement
to terms different from those set out in the statutes. See Honeycutt v.
Honeycutt, 152 S.W.3d 556, 563 n.5 (Tenn. Ct. App. 2003); Myrick v.
Myrick, No. M2013-01513-COA-R3-CV, 2014 WL 2841080, at *4-6
(Tenn. Ct. App. June 19, 2014). Thus, notwithstanding whatever potential
relief might otherwise be available generally as a matter of statute, the
parties’ agreement should take precedence. “Parties should be free to
obligate themselves by agreement beyond what the courts could order them
to do as a matter of law.” Holt v. Holt, 751 S.W.2d 426, 428 (Tenn. Ct.
App. 1988) (citation omitted). Moreover, the alimony statute specifically
contemplates that divorcing parties, will at times, reach their own
agreements as to support payments. See Tenn. Code Ann. § 36-5-121(n)
(2014) (stating that “[n]othing in this section shall be construed to prevent
the affirmation, ratification and incorporation in a decree of an agreement
between the parties as to support and maintenance of a party”). In cases
such as this one where the parties plainly state that the agreed-upon
transitional alimony is nonmodifiable, courts should hold the parties to their
agreement.
Id. at *4 (footnotes omitted). The Vick court clarified in a footnote that the MDA’s “plain
language is controlling and makes the circumstances listed in Tenn. Code Ann. § 36-5-
121(g)(2)(A-C) inapplicable.” Id. at *4 n.2; see also Karsonovich, 2018 WL 1091735, at
*4 (denying husband’s petition to modify alimony payments where MDA stated alimony
was “non-modifiable”).
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The MDA at issue here does not include the “non-modifiable” language discussed
above. However, the parties’ MDA addresses the possibility of Wife’s remarriage and
unambiguously states that Husband’s alimony payments will continue notwithstanding
her remarriage:
[T]he parties agree, that should the Wife remarry or cohabit more than 90
days with a romantic partner, and should the Wife’s new Husband or
romantic partner have any gross income, determined in the same manner as
that of the Husband’s, the Husband’s obligation to pay alimony shall be
reduced dollar-for-dollar, based on the amount of the gross income of
Wife’s new Husband or romantic partner, EXCEPT, in no case shall
alimony be reduced any lower than the amount of funds needed to pay the
first and second mortgages on Wife’s residence based on the total amount
of the mortgages ($525,730.70) in existence as of the date of the signing of
this agreement.
We have held that the alimony statute is not applicable to reduce or terminate an
alimony obligation where the parties have agreed in an MDA to terms different from
those contained in the statute even when the MDA does not state that it is not modifiable.
For example, in Honeycutt v. Honeycutt, 152 S.W.3d 556, 558 (Tenn. Ct. App. 2003), the
parties to an MDA agreed that the husband’s alimony in futuro payments would cease if
the wife cohabited with “a man not related to her.” When the wife began living with an
unrelated man, the husband sought to terminate his alimony payments. Id. at 558-59.
The wife argued that she was still entitled to the alimony based on evidence she presented
that she was not receiving financial support from the unrelated man. Id. at 563 n.5. She
argued that her evidence rebutted the presumption currently contained in Tenn. Code
Ann. § 36-5-121(f)(2)(B) that her alimony in futuro payments should be reduced or
terminated if she lived with a third person who contributed to her support or who
received support from her. Id.2 The trial court agreed with the wife and denied the
husband’s request, and the husband appealed. Id. at 560-61. We reversed the trial
court’s judgment on appeal, holding that the statute did not apply to the facts of that case
and that the terms of the MDA determined whether the husband should be relieved of his
alimony obligation. Id. at 564. We wrote:
[W]e find that the parties explicitly contracted for the termination of
Husband’s alimony obligations in the event Wife cohabits with an unrelated
male, regardless of whether said male was providing Wife with financial
assistance or support. We therefore find that the trial court erred in denying
Husband’s petition on the basis that he failed to introduce proof that Wife
was receiving financial assistance from Barclay.
2
The presumptions currently codified at Tenn. Code Ann. § 36-5-121(f)(2)(B) were codified at Tenn.
Code Ann. § 36-5-101(a)(3)(A) and (B) for all relevant purposes in Honeycutt.
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Id.
This court reached a similar result in Myrick v. Myrick, No. M2013-01513-COA-
R3-CV, 2014 WL 2841080 (Tenn. Ct. App. June 19, 2014). In that case, the parties’
MDA provided that the husband would pay the wife $2,000 in alimony “until the Wife
dies or remarries, until the Husband dies, or until a third person not the Wife’s child,
moves into the Wife’s residence.” Myrick, 2014 WL 2841080, at *1. When the wife’s
mother moved into the wife’s residence two years later, the husband filed a petition
seeking to modify or terminate his alimony. Id. The trial court terminated the husband’s
alimony obligation based on the terms of the MDA, and the wife appealed. Id. at *2-3.
The wife argued that the trial court erred by failing to apply the rebuttable presumption
set forth in Tenn. Code Ann. § 36-5-121(f)(2)(B) before terminating her alimony. Id. at
*4. This court affirmed the trial court’s termination, stating, “The language used [in the
MDA], i.e., ‘until a third person not the Wife’s child, moves into the Wife’s residence,’ is
not ambiguous, and the parties’ choice to use this language in their agreement binds them
to it.” Id. at *6.
In Cherqui v. Laor, No. W2016-02502-COA-R3-CV, 2017 WL 4843185, at *4
(Tenn. Ct. App. Oct. 25, 2017), the Court of Appeals terminated a wife’s alimony
obligation when the husband failed to cooperate with the wife in obtaining a passport for
the parties’ child within the time period specified in the MDA and the permanent
parenting plan referenced in the MDA. In their MDA, the wife agreed to pay the husband
alimony in the amount of $5,000 per month for forty months. Id. at *1. The MDA
provided: “The total monthly payments shall not be modifiable with the following
exception: should Husband fail to comply with the provisions enumerated [in the MDA
or parenting plan], Wife shall be immediately relieved of any further obligation to
comply with this Alimony provision, beginning on Husband’s date of non-compliance.”
Id. (emphasis omitted). Acknowledging that “‘our courts are without power to make
another and different contract from the one executed by the parties themselves,’” the
Cherqui court held that the MDA relieved the wife of her alimony obligation due to the
husband’s failure to comply with the terms of the passport provision of the MDA and
parenting plan. Id. at *4 (quoting Eberbach, 535 S.W.3d at 478).
When divorcing parties do not address the statutory conditions warranting a
modification or termination of alimony in their MDA, we have held that the alimony
obligation is subject to modification or termination according to the statute. For example,
in Winne v. Winne, the husband agreed in the parties’ MDA to pay the wife $2,200 each
month as periodic alimony until either party’s death, the wife’s remarriage, or the passage
of seven years. Winne, 2019 WL 5606928, at *3. The husband sought to modify or
terminate his alimony obligation when the wife began living with a paramour in a house
that the wife and her paramour owned. Id. at *1. The trial court modified the alimony
obligation pursuant to Tenn. Code Ann. § 36-5-121(f)(2)(B), finding that the wife failed
to rebut the statutory presumption that she no longer needed the full amount of alimony
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because she was receiving support from a third party. Id. at *2. The wife appealed,
arguing that the alimony provision of the MDA precluded the court from modifying the
husband’s alimony obligation for any reason not included in the MDA. Id. This court
disagreed, noting that the MDA addressed only termination, not modification, and that
“[s]ilence does not preclude modification.” Id. at *3. We explained that “[t]he failure to
include cohabitation in the list of events that terminate alimony does not evidence an
intent to preclude modification of the award as authorized in the alimony statute.” Id.;
see also Scherzer v. Scherzer, No. M2017-00635-COA-R3-CV, 2018 WL 2371749, at *9
(Tenn. Ct. App. May 24, 2018) (“[A]lthough divorcing parties may contract to forego the
statutory cohabitation exception to the nonmodifiability of transitional alimony provided
in Tennessee Code Annotated § 36-5-121(g)(2), they need not include the exception in
their MDA for the statute to apply.”).
In Bryan v. Leach, 85 S.W.3d 136, 140 (Tenn. Ct. App. 2001), the divorcing
parties entered into an MDA in which the father agreed to pay weekly child support
“until each child is 22 years of age provided they are enrolled annually in and attending
college full-time.” In addition, the father agreed to pay for the children’s private school
tuition as well as “college expenses, including room, boarding, tuition, books and
supplies, and other expenses related to college until each such child graduates from
college.” Bryan, 85 S.W.3d at 140. Both parties subsequently remarried, the father
incurred additional expenses, and the mother’s estate increased in value with the rise in
the stock market. Id. at 142. The father requested that a portion of his child support
payments be placed into a trust and sequestered from the mother’s access because he
believed the mother and her husband were using the payments for themselves rather than
for the children’s benefit. Id. at 142, 151. The trial court denied the father’s request, and
the father appealed. Id. at 142-43. This court affirmed the trial court’s ruling as it related
to the child support payments payable after the children reached eighteen years old. Id. at
151-52. We wrote:
Any amounts of support that are not legally mandated but are imposed
solely by the MDA, are not subject to revision by the court. That includes
Father’s agreement to pay support and college expenses beyond the date
each child reaches the age of majority and graduates from high school.
....
While it is generally true that a parent cannot be ordered by the
courts to pay child support for an adult child, Blackburn v. Blackburn, 526
S.W.2d 463, 465 (Tenn. 1975); Garey v. Garey, 482 S.W.2d 133, 135
(Tenn. 1972), a party to a divorce may by agreement obligate himself or
herself beyond the support duties imposed by law. Such a provision in an
agreement constitutes “a contractual obligation outside the scope of the
legal duty of support during minority and retains its contractual nature,
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although incorporated in a final decree of divorce.” Penland v. Penland,
521 S.W.2d 222, 224-25 (Tenn. 1975); Blackburn, 526 S.W.2d at 465. Any
voluntarily assumed obligation exceeding the minimum child support
required by statute is based on the parties’ contract, enforceable as a
contractual obligation, and controlled exclusively by the agreement. Haas
v. Haas, No. 02A01-9604-CV-00073, 1997 WL 194852, at *3 (Tenn. Ct.
App. Apr. 22, 1997) (no Tenn. R. App. R. 11 application filed). A parent’s
agreements to pay college expenses as well as to provide support beyond
majority are contractual obligations for which the parent has no legal duty
and which are not subject to modification by the courts. Penland, 521
S.W.2d at 224-25; Dorris v. Dorris, No. 01A01-9304-CV-00170, 1993 WL
380778, at *2 (Tenn. Ct. App. Sept. 29, 1993) (no Tenn. R. App. P. 11
application filed) (the trial court has no statutory power to award child
support beyond the age of majority and no continuing power to modify
such support).
Id. at 151. The Bryan court continued, stating “‘The courts may not make a new contract
for the parties who have spoken for themselves and may not relieve parties of the
contractual obligations simply because these obligations later prove to be burdensome or
unwise.’” Id. at 152 (quoting Marshall v. Jackson & Jones Oils, Inc., 20 S.W.3d 678,
682 (Tenn. Ct. App. 1999) (citations omitted)).
Turning now to the facts of this case, we find that Husband’s promise to pay Wife
alimony even if she were to remarry is similar to the father’s promise in Bryan to pay his
children’s expenses following their eighteenth birthdays. Just as a parent may agree to
pay more child support than he or she may be statutorily required to pay, one spouse may
agree to pay more alimony to the other spouse than he or she may be statutorily required
to pay. By specifying in the MDA that Husband would pay Wife alimony even if she
were to remarry, the parties essentially agreed that Tenn. Code Ann. § 36-5-121(f)(3) is
not applicable to their MDA. An MDA is a contract, and parties are free to contract for
provisions outside a statute’s realm. Karsonovich, 2018 WL 1091735, at *5; Vick, 2014
WL 6333965, at *4; see Scherzer, 2018 WL 2371749, at *8 (stating that Tenn. Code Ann.
§ 36-5-121(n) “specifically contemplates that divorcing parties, will at times, reach their
own agreements as to support payments”). As the Court of Appeals has noted, “our
statutes permit and encourage divorcing parties to resolve by agreement their disputes
regarding child custody and visitation, child support, spousal support, and the distribution
of marital property.” Gibbs v. Gibbs, No. E2015-01362-COA-R3-CV, 2016 WL
4697433, at *4 (Sept. 7, 2016) (citing Tenn. Code Ann. § 36-5-121(n), which was
codified as subsection (m) at the time of Husband and Wife’s divorce) (footnotes
omitted).
As the Tennessee Supreme Court reminds us, “courts must interpret contracts so
as to ascertain and give effect to the intent of the contracting parties consistent with legal
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principles.” Individual Healthcare Specialists, Inc. v. BlueCross BlueShield of Tenn.,
Inc., 566 S.W.3d 671, 688 (Tenn. 2019). “[S]ubsequent modification of an agreement
that retains its contractual nature would violate the Tennessee Constitution’s prohibition
against the impairment of contractual obligations.” Gibbs, 2016 WL 4697433, at *4
(citing Blackburn, 526 S.W.2d at 465). We hold that Husband must comply with the
terms of the MDA that he signed on August 8, 2014, and that he is not relieved of his
obligation to pay Wife alimony because of her remarriage. The parties acknowledged in
paragraph 21 of the MDA that “they believe this agreement to be fair, just, and
reasonable [and] acknowledge that this agreement is the free and voluntary act of each
other.” In paragraph 22 each party represented that “he or she understands the meaning
of the various provisions of this agreement, and that the text does set forth the agreement
in the manner they had intended, and that they both had ample opportunity to have it
reviewed by separate and independent counsel.” In paragraph 26 the parties stated:
It is further understood and agreed by and between the parties that this
Marital Dissolution Agreement is entered into without any undue influence,
fraud, coercion, or misrepresentation or for any reason not herein stated.
Each party has had the opportunity to seek legal advice regarding the
provisions in this Agreement and their legal effects, each party
acknowledges that the agreement is fair and equitable and that it is being
entered into voluntarily. The parties further acknowledge that they have
had an opportunity to receive tax advice from a tax professional and did not
receive or rely upon any tax advice from their respective attorneys.
On the day of the final divorce hearing, the trial judge asked Wife for Husband’s
telephone number. The judge then telephoned Husband and asked him to initial each
page of the MDA and then fax the initialed pages back to the court. After Husband
complied with this request, the trial judge wrote “Treat as original” and added her initials
to the bottom of pages 3 and 4 of the MDA, which are the pages containing the section
titled “SPOUSAL SUPPORT.” This extra step by the trial judge reflects her effort to be
sure Husband was aware of the terms of the MDA before incorporating it into the parties’
decree of divorce.
B. Public Policy
Husband contends that the MDA violates public policy, and is therefore
unenforceable, because it contradicts Tenn. Code Ann. § 36-5-121(f)(3). The question
whether a contract violates public policy is an issue of law which we review de novo,
with no presumption of correctness. Baugh v. Novak, 340 S.W.3d 372, 381 (Tenn. 2011).
The Baugh Court wrote that a court must act “with great delicacy” when invalidating a
contract on the grounds of public policy because “‘exercising the authority to declare
contracts as void as against public policy is in tension with freedom of contract and the
need to bind parties to their voluntary agreements,’” id. at 382 (quoting 21 Steven W.
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Feldman, TENNESSEE PRACTICE: CONTRACT LAW AND PRACTICE § 7:3, at 732 (2006)),
and “Tennessee law recognizes that ‘[t]he individual right of freedom of contract is a
vital aspect of personal liberty,’” id. (quoting 21 Feldman, TENNESSEE PRACTICE:
CONTRACT LAW AND PRACTICE § 7:3, at 728).
In Karsonovich v. Kempe, this court held that a husband’s promise to pay “non-
modifiable transitional alimony” for over thirteen years did not violate public policy
despite the fact that the parties agreed to terms that exceeded the scope of the statute.
2018 WL 1091735, at *4-5. Citing Tenn. Code Ann. § 36-5-121(n), we wrote: “‘[T]he
alimony statute specifically contemplates that divorcing parties, will at times, reach their
own agreements as to support payments.’” Id. at *5 (quoting Vick, 2014 WL 6333965, at
*4). We further stated: “The parties contracted for elements outside the statute, and
these deviations from the statute do not conflict with the policy set forth in Tenn. Code
Ann. § 36-5-121 because the statute explicitly contemplates separate agreements.” Id.
In Holt v. Holt we wrote that “‘[p]ublic policy is practically synonymous with
public good,’” Holt, 751 S.W.2d at 428 (quoting Lazenby v. Universal Underwriters Ins.
Co., 383 S.W.2d 1, 5 (Tenn. 1964)), and that “[a] contract may not be held invalid as
against public policy unless some public detriment will probably result” or “the object of
the contract has a tendency to injure the public,” id. (citing Twin City Pipeline Co. v.
Harding Glass Co., 283 U.S. 353, 358 (1931), and Nashville Ry. & Light Co. v. Lawson,
229 S.W. 741, 743 (Tenn. 1921)). The Holt court held that the husband’s agreement to
pay the wife $80,000 as alimony in solido for ten years and then a percentage of his gross
income as alimony in futuro for an additional five years did not violate the public policy
of Tennessee. Holt, 751 S.W.2d at 428. As the court explained,
The court did not order the appellant to pay alimony in solido; the court
simply incorporated into its final decree the appellant’s agreement to do so.
Enforcement of the appellant’s agreement would not establish any
precedent contrary to our holding in Aleshire [v. Aleshire, 642 S.W.2d 729
(Tenn. Ct. App. 1981)]. Parties should be free to obligate themselves by
agreement beyond what the courts could order them to do as a matter of
law. See generally Blackburn v. Blackburn, 526 S.W.2d 463, 465 (Tenn.
1975). In such cases the courts are not sympathetic to a party who promises
more than he can reasonably expect to pay in order to induce the other
spouse to obtain a divorce and then seeks the termination of the agreed
payments. Richardson v. Richardson, 598 S.W.2d 791, 794 (Tenn. App.
1980).
Id.
For the reasons set forth in Baugh, Karsonovich, and Holt, we hold that Husband’s
promise to pay Wife alimony in futuro after her remarriage does not violate the public
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policy of Tennessee. No court is ordering Husband to pay Wife alimony in futuro
following her remarriage; we are simply enforcing an agreement the parties voluntarily
executed when they were divorced.
C. Insurance Policy Premiums
In light of our holding that Husband is obligated to comply with the express terms
of the MDA and continue paying Wife alimony as set forth in the agreement, Husband’s
argument regarding the trial court’s holding that he is not relieved from paying the
premiums on the life insurance policies is pretermitted.
D. Attorney’s Fees
Wife contends that she is entitled to an award of the attorney’s fees she incurred at
trial as well as on appeal. The MDA specifies that if either party is required to retain
counsel to enforce or defend any provision of the agreement, “the prevailing party shall
be entitled to recover all reasonable attorney’s fees and costs of court incurred during
such procedure.” The trial court awarded Wife only a portion of the fees she incurred at
trial based on its holding that Husband’s alimony obligation terminated as a matter of law
upon Wife’s remarriage. Because we reverse the trial court’s decision on this issue, Wife
is entitled to recover all of the reasonable attorney’s fees she incurred at trial and on
appeal. On remand, the trial court shall determine the amount of Wife’s reasonable
attorney’s fees incurred at trial and on appeal and shall enter an order awarding such
amount to Wife.
IV. CONCLUSION
The judgment of the trial court terminating Husband’s alimony obligation is
reversed, and this matter is remanded for the determination of Wife’s reasonable
attorney’s fees incurred at trial and on appeal. Costs of appeal shall be assessed against
the appellee, Kerry James Schumacher, for which execution may issue if necessary.
________________________________
ANDY D. BENNETT, JUDGE
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