                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                   October 10, 2002 Session

               EILENE COPENHAGEN v. ROGER COPENHAGEN

                      Appeal from the Circuit Court for Davidson County
                          No. 96D-627     Muriel Robinson, Judge



                    No. M2002-00217-COA-R3-CV - Filed February 6, 2003

Appellant, former wife of Appellee, filed a Petition seeking to convert alleged rehabilitative alimony
into permanent alimony in futuro and requesting certain other relief, including all accrued and vested
benefits in her former husband’s retirement plan. The trial court dismissed the Petition in its entirety
holding the alimony previously awarded to be alimony in solido. We reverse the finding as to the
character of the alimony previously awarded and affirm as to all other relief sought. The case is
remanded to the trial court for further proceedings.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in Part,
                            Affirmed in Part, and Remanded

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL , J., and
JOHN TURNBU LL SP . J., joined.

Larry D. Crabtree, Nashville, Tennessee, for the appellant, Eilene Copenhagen.

Lawrence D. Wilson, Nashville, Tennessee, for the appellee, Roger Copenhagen.

                                              OPINION

       Eilene Copenhagen and Roger J. Copenhagen were divorced by Decree of the Circuit Court
of Davidson County entered October 30, 1998. This Decree declared the parties divorced and
divided all marital property, including an equal division of benefits under a retirement plan of Mr.
Copenhagen at Aladdin Industries, Inc. The Decree provided:

               It is further ORDERED, ADJUDGED and DECREED that Defendant, Roger
        J. Copenhagen, shall pay to Plaintiff, Eilene Copenhagen, as and for alimony, the
        sum of Five Hundred and no/100 ($500.00) Dollars per month for three years.

               It is further ORDERED, ADJUDGED and DECREED that Defendant, Roger
        J. Copenhagen, shall pay, as additional alimony, the Cobra insurance premium for
       thirty-six (36) months to continue Plaintiff’s health insurance through his
       employment.

        Neither party appealed the decree of October 30, 1998, and, on June 28, 2001, before the
expiration of the thirty-six month period for the payment by Roger J. Copenhagen of alimony
pursuant to the Final Decree, Eilene Copenhagen filed a Petition for Continued and Increased
Alimony. By this Petition she sought an increase in the amount of alimony together with a
requirement that Mr. Copenhagen continue alimony payments until her death or remarriage, alleging
in support thereof that she was afflicted with a degenerative disease. She further sought to have the
court assign to her the remaining balance of Mr. Copenhagen’s retirement benefits and requested that
he be ordered to amend previous tax returns and pay self-employment taxes to the end that Mrs.
Copenhagen might qualify for Social Security disability benefits.

        Appellee moved for summary judgment asserting that the October 30, 1998 Decree was in
all respects final and that the alimony awarded therein was alimony in solido, not rehabilitative
alimony. At the hearing on this Motion for Summary Judgment on December 7, 2001, the following
occurred:

               MR. WILSON: This is my motion for summary judgement. Filed in
       response to a petition to modify previous Final Decree of the Court.
               THE COURT: Okay.
               MR. WILSON: The Petition to Modify asks the Court to modify what was
       we believe clearly an in solido alimony award in that the husband was ordered to pay
       a specific sum, being $500, for a specific period of time, being 36 months, therefore
       making the award determinable and therefore in solido. That request must be
       rejected inasmuch as in solido alimony awards are, as Your Honor knows, I believe,
       as the petitioner should know, are not modifiable.
               The second request is that the previous Final Decree be modified to continue
       an award of alimony. The alimony award is not and may not be changed.
               The Court is also asked to modify the previous award of marital property. In
       that case the husband’s retirement fund was divided 50/50 as between he and the
       petitioner and they are asking now that they be awarded the balance of it; in other
       words, that the Court modify a previous distribution of marital property which again,
       likewise, is not modifiable.
               They have asked for certain other items of relief, being that the Court ordered
       Mr. Copenhagen to refile income tax returns for many, many years in the past. We
       maintain that’s not appropriate, in so much as the Court’s ruling on its face, and we
       have a transcript of the Court’s findings, specifically provided that Ms. Copenhagen,
       the petitioner here, participated in the running of the business and basically had the
       returns filed in respect of, that she signed the checks, and the Court very specifically
       found she knew what was going on or she certainly could have known what was
       going on. Therefore that request is equally inappropriate.



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        So we ask the Court to grant summary judgement on the basis of the fact that
there is no law in support of the request, either singularly or in its entirety.
        THE COURT: All right.
        MS. MOSES: Your Honor, if I may pass up Ms. Copenhagen’s supplemental
response to Mr. Copenhagen’s Motion for Summary Judgement. It was filed but it
may not have gotten in the file yet because it was filed this morning.
        I’m Marlene Eskind Moses and I along with Mr. Larry Crabtree represent Ms.
Copenhagen in this matter. Ms. Copenhagen is 55 years old and she and her husband
were married for 31 years. She currently and has suffered from osteogenesis
imperfecta, which is a congenital collagen defect, Your Honor, and it continues to
impair her tissues, organs, her skin and her bones.
        And Your Honor ruled at the time of the divorce hearing that alimony should
be awarded to her. At the time Evalina Cheadle represented Ms. Copenhagen. Mr.
Wilson represented Mr. Copenhagen and the award specifically stated as follows, and
I’ll quote from the Final Decree.
        “As in for alimony the sum of $500 per month for three years.”
        So the Final Decree was silent, Your Honor, as to the property categorization
of the alimony.
        Specifically in the transcript Your Honor found, and I’ll quote - - actually it
was from the excerpt of the transcript of the proceeding. Your Honor found that:
        “Ms. Copenhagen at the time appears not to be employable. It is
         obvious. I’m looking at her. She’s quite frail. She weighs 85 pounds
         and when she walks up to the table it appears that she is somewhat
         crippled. So for Mr. Copenhagen to think that she can go and get
         employment right away is pretty ridiculous to me.”
You go on to say:
         “I do feel that she is a candidate for some period of alimony.”
         You ordered, Your Honor, that will be his alimony deductible by him and
listed as income by Ms. Copenhagen for these three years.
         Specifically, when we were last here Your Honor allowed us to come back
and have a court reporter and asked if there was any case law to be instructive to
bring that before Your Honor. In fact there is a case that is right on point, Your
Honor. It’s Moore versus Moore.
         And in that case the wife at the time was 62 years old. She had an eighth
grade education. She was unemployed and her only regular income at the time was
$399 per month in Social Security retirement benefits.
         The Final Decree awarded the wife alimony. And it specifically stated, and
I’ll quote:
         “$1,000 per month in alimony to be paid for 24 months or until her
         death or remarriage, whichever comes sooner.”
         She also had serious health problems and was uncertain whether or not she
would be able to work to supplement her Social Security benefits.
         The Appellate Court noted that:


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               “Due to her age, her health and her lack of skills, it appears unlikely
               that Ms. Moore will be able to fully rehabilitate herself but she should
               be encouraged to make the attempt. If she does not succeed then she
               will be able to apply to the Court for a more permanent arrangement
               because an award of rehabilitative alimony remains within the
               Court’s control for the duration of such award and may be increased,
               decreased, terminated or otherwise modified upon a showing of
               substantial and material change in circumstance.”
       So Moore case is on all fours to this Copenhagen case.
               THE COURT: Really it’s not because in the Moore case it had the
       stipulation, “or until her death or remarriage,” which made it adjust[a]ble, so that’s
       the distinguishing phrase in there.
               I’ve read these. I remember this. The alimony stops at the appointed time.
       Your motion is denied and your petitioner is dismissed. Mr. Wilson’s relief is
       granted.
               MR. WILSON: Thank-you, Your Honor. I do have by way of a follow-up,
       and I’m not sure it’s on the docket, but it’s a request for Rule 11 sanctions.
               THE COURT: I’m not going to do that at this time, but, you know, if they
       want to go to the Court of Appeals, the Court of Appeals may think different. But
       I remember this case and I meant it to be this amount of money for a fixed period.
       So I’ve granted your wish. I’ve granted your relief. It’s dismissed. It’s their cost and
       you can file an Affidavit for attorneys’ fees and we will let the Court of Appeals
       decide. I remember this case and I said what I meant and meant what I said.
               MS. MOSES: Your Honor, I have numerous cases that I would like to cite,
       but if you. . . .
               THE COURT: I’ve already ruled, Ms. Moses. Thank-you.

       The Order reflecting the December 7, 2001 hearing granted the Motion for Summary
Judgment in its entirety and assessed attorney’s fees against Appellant in the amount of $1,650.
From this judgment, Eilene Copenhagen appeals.

       As to all relief sought by the Petition other than on the alimony question, the Decree of
October 30, 1998, not having been appealed, is final and constitutes the law of the case. As to
matters other than alimony, summary judgment was property granted.

        As to the proper characterization of the alimony granted in the October 30, 1998 Decree, the
trial court may have meant what it said, but it did not say what it meant. The alimony established
was for the fixed period of 36 months at the fixed amount of $500 per month. Prior to the 1993
amendments to Tennessee Code Annotated section 36-5-101, effected by Chapter 243 of the Public
Acts of 1993, we would have no difficulty in classifying this alimony as alimony in solido for
reasons set forth in Dennis v. Dennis, No. C.A.45, 1986 WL 7608 (Tenn. Ct. App. July 9, 1986).
These legislative changes, in full force and effect on October 30, 1998, are far reaching. This Court
has held:


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               Mrs. Gerbman argues that when the trial court modified the insurance
       obligation to make it a fixed number of payments of a fixed size, without stating any
       conditions or limitations on the award, the award was converted into alimony in
       solido, which the court no longer had any power to modify. Thus, she impliedly
       argues, the court was in error in reducing the monthly payments, and extending the
       length of the payment obligation.

               The advent of rehabilitative alimony as a distinct category of spousal support
       has added complexity to the problem of correctly classifying an alimony award.
       Whereas alimony in solido and alimony in futuro can usually be distinguished
       without difficulty, rehabilitative alimony has some of the characteristics of both. It
       has a calculable total value like alimony in solido, but it is modifiable like alimony
       in futuro.

               In the present case, the trial court modified an insurance obligation of
       indefinite duration (which, if it was alimony, was alimony in futuro) to an obligation
       of limited duration and fixed total value (which could theoretically be considered
       either rehabilitative alimony or alimony in solido). Responding to arguments from
       both sides, the chancellor stressed the purpose of the original award and the
       circumstances that made its initial modification necessary. Based on these
       considerations, he concluded that the modification created the kind of temporary
       support that remained within the jurisdiction of the courts to adjust as circumstances
       required.

Rust v. Gerbman, No. 01-A01-9608-CH-00361, 1997 WL 266844, at * 4 (Tenn. Ct. App. May 21,
1997) (no Tenn. R. App. P. 11 application filed). The alimony awarded in the October 30, 1998
Decree could qualify as either alimony in solido or rehabilitative alimony. The Decree is now a final
judgment.

       This Court has held:

             Arguments of both parties focus on the meaning of the trial judge’s order,
       which requires construction. The rule of construction in construing orders and
       judgment is:
                     The general rule is that a judgment should be so construed as
             to give effect to every part of it and where there are two possible
             interpretations that one will be adopted which is in harmony with the
             entire record, and is such as ought to have been rendered and is such
             as is within the jurisdictional power of the court. Moreover, the
             judgment will be read in the light of the pleadings and the other parts
             of the record . . .”




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John Barb, Inc. v. Underwriters at Lloyds of London, 653 S.W.2d 422, 423 (Tenn. Ct. App. 1983)
(citing Grant v. Davis, 8 Tenn. C.C.A. 315, 8 Higgins 315 (Tenn. Ct. App. 1918). At the hearing
of December 7, 2001, no testimony was offered, but the trial court asserted that she had intended the
award in the October 30, 1998 Decree to have been alimony in solido.

       The decree of October 30, 1998 was final when the Petition at issue in this case was filed in
June of 2001 and when the Motion for Summary Judgment in response thereto was heard on
December 7, 2001. The opinion of the trial court as to what it previously meant by the now final
Decree is not relevant. The Supreme Court of Nebraska addressed the question in an analagous
context.
               This appeal involves the question of whether one may obtain an interpretation
       of a decree by merely filing a motion requesting the court which initially entered the
       decree to interpret its own decree after the decree has become final.

               ....

               If we were to follow the procedure suggested by Ms. Neujahr, the only
       appropriate and proper witness would be the judge who entered the order. That judge
       then would change the decree so that, in light of a problem that has later arisen, the
       decree would conform to what it is he or she originally meant. Obviously, what the
       parties thought the judge meant is of no moment in interpreting the decree. Yet, the
       fact is that neither what the parties thought the judge meant nor what the judge
       thought he or she meant, after time for appeal has passed, is of any relevance. What
       the decree, as it became final, means as a matter of law as determined from the four
       corners of the decree is what is relevant.

                There are, obviously, instances when a decree is ambiguous and parties are
       left at their peril to know what they are authorized to do. When that situation arises,
       the parties must bring some form of action which raises the issue and thereby
       requires the court before whom the matter is then pending to resolve the issue as a
       matter of law in light of the evidence and the meaning of the decree as it appears.

              What the district court did in the instant case was simply to enter a modified
       supplemental decree, without authority, after the decree had already become final.

Neujahr v. Neujahr, 393 N.W.2d 47, 48, 50-51 (Neb. 1986).

        Since the repeal of former Tennessee Code Annotated section 24-1-205 by the provisions of
Chapter 273 of the Public Acts of 1991 and the adoption of Tennessee Rule of Evidence 605 by the
supreme court, a trial judge is not competent to testify at a trial over which he or she presides. The
final judgment of October 30, 1998 is to be construed, like other written instruments, with the
determinative factor being the intent of the court to be gathered from all parts of the judgment and,
where there are two possible interpretations, the interpretation to be adopted is the one most in


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harmony with the entire record. Branch v. Branch, 249 S.W.2d 581 (Tenn. Ct. App. 1952);
Livingston v. Livingston, 429 S.W.2d 452 (Tenn. Ct. App. 1967); Grant v. Davis, 8 Tenn. C.C.A.
315, 8 Higgins 315 (Tenn. Ct. App. 1918). If the order of the trial court is ambiguous, appellate
courts will adopt a construction that correctly applies the law. McGregor v. Rich, 941 S.W.2d 74
(Tex. 1997); Garcia v. Mireles, 14 S.W.3d 839 (Tex. App. 2000).

        Since the 1993 amendments to section 36-5-101 of the Code: “The law professes a distinct
preference for rehabilitative alimony ‘whenever possible,’ and it is the type of support to be awarded
unless the trial court finds that rehabilitation is not feasible. Tenn. Code Ann. § 36-5-101(d)(1).
This record contains no such findings.” Stockman v. Stockman, No. 01A01-9801-CH-00026, 1999
WL 617637 at * 4 (Tenn. Ct. App. Aug. 17, 1999).

        At the trial October 30, 1998, the trial court made a specific finding that Mrs. Copenhagen
was not, at that time, employable, but made no findings that rehabilitation was not feasible. The
alimony awarded, giving proper effect to the legislative preference expressed by Tennessee Code
Annotated section 36-5-101(d)(1), is rehabilitative and not in solido. The grant of summary
judgment in this respect is reversed; the case is remanded to the trial court for consideration of the
Petition for Continued and Increased Alimony on its merits. The grant of summary judgment is in
all other respects affirmed. The award of attorney fees is reversed. Costs on appeal are assessed
equally to the parties. Costs in the trial court will await trial on the merits of the alimony Petition.




                                                        ___________________________________
                                                        WILLIAM B. CAIN, JUDGE




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