                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                             February 15, 2005 Session


    THE ESTATE OF FLOYD LEROY OLMSTEAD, DECEASED and
   BARBARA D. OLMSTEAD, Executrix, v. BETTY JAYNE OLMSTEAD

                 Direct Appeal from the Chancery Court for Greene County
                 No. 2003P090     Hon. Thomas R. Frierson, II., Chancellor



                  No. E2004-01843-COA-R3-CV - FILED MARCH 21, 2005



In the Divorce Decree Decedent was ordered to pay alimony “until remarriage or death of plaintiff”.
Decedent’s estate refused to pay alimony. The Trial Court held the Decree required the payment of
alimony after Decedent’s death. On appeal, we reverse and dismiss.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Reversed.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and SHARON G. LEE, J., joined.

William S. Nunnally, Greeneville, Tennessee, for appellants.

C. Todd Chapman, Greeneville, Tennessee, for appellee.




                                             OPINION


              In this action against the estate, the Trial Court held the Estate was liable to continue
to pay alimony to the Deceased’s former wife. The estate has appealed.

               The factual background is set forth in the Trial Court’s Memorandum which we
quote:
                       Floyd Leroy Olmstead and Betty Jayne Olmstead were divorced by Final
                 Judgment entered in the Circuit Court for Greene County, Tennessee, case No. 43739
                 on June 28, 1974. With respect to spousal support, paragraph 6 of the Final
                 Judgment contained the following pertinent language:

                         “The Defendant shall pay the sum of two hundred seventy-five dollars
                 ($275.00) directly to the Plaintiff on or before the fifth day of each month hereafter
                 as alimony until the remarriage or death of the Plaintiff; provided further that either
                 party may move the court for modification of said alimony in the event of a change
                 of circumstances.”

                       Mr. Olmstead died on April 3, 2003. Claimant Betty Olmstead asserts that
                 Mr. Olmstead’s death did not terminate his alimony obligation.

                 The Trial Court concluded:

                         In the case at bar, the Final Judgment of Divorce does not specifically provide
                 for survival of the monthly alimony obligation following the death of the obligor. No
                 other contractual agreement between the parties provides for such survival benefits.
                 However, the Final Judgment of Divorce specifically reflects that Ms. Betty
                 Olmstead had not been gainfully employed during the main portion of the parties’
                 marriage and that she was then physically disabled and unemployable. During his
                 lifetime, Mr. Olmstead took no steps to modify his alimony obligation, but instead
                 kept his payments current. The Final Judgment made no provision of life insurance
                 in favor of Ms. Olmstead, see Prim, supra. Considering the language of the Final
                 Judgment, as well as the attendant circumstances, this Court determines that Mr.
                 Olmstead intended to carry out the agreement, obligating him to pay spousal support
                 until Ms. Betty Olmstead’s death or remarriage.

                The Trial Court, in reaching its conclusion, relied heavily on the unpublished case of
Colson v. Colson, 1996 LEXIS 188 (Tenn. App. 1996). Colson is factually distinguishable on
several grounds. In Colson, the parties had mutually agreed to the payment of alimony, but in this
case, the Deceased resisted the payment of alimony, and it was the Court’s Order that required him
to pay. Also, it was established in the Colson case that Ms. Colson needed the alimony subsequent
to Colson’s death.1 Also in the Colson case, the nature of Ms. Colson’s condition would deteriorate,
which was not necessarily true at the time of the divorce in this case. While the foregoing factors
distinguish Colson from the case before us, the Colson case is not otherwise controlling authority
in our view.2 The principles set forth in Prim v. Prim, 754 S.W.2d 609 (Tenn. 1988) are the


       1
           Ms. Olmstead did not establish need.
       2
       Supreme Court Rules. Rule 4(H)(1).
       An unpublished opinion shall be considered controlling authority between the parties to the

                                                   -2-
controlling authority on this issue. In Prim, Chief Justice Harbison wrote at page 612:

                       As pointed out in the cases cited above, general provisions that alimony will
               be payable to the wife until her death or remarriage have frequently been held
               sufficient to support such claims as continuing obligations after the death of the
               husband. In almost every instance, however, there has been some circumstance, in
               addition to this general language, from which an intent that the obligation survive has
               been gleaned.

                       In our opinion, this subject is primarily one of draftsmanship and intent. In
               order for an alimony obligation to survive, in our opinion, something more than the
               general provisions “until death or remarriage” should be required. Whether the
               obligation is to continue past the death of the obligor is a most important and critical
               consideration in preparing a decree in a contested case or in drafting a property
               settlement agreement.

                        Survival of the obligation is the exception, not the general rule. . . . The cases
               have repeatedly pointed out that the matter is one of intention, not of law. The law
               itself terminates general support obligations at death because the marriage relation
               itself is terminated at death. Further provisions for a surviving spouse and children
               of an existing marriage are contained in the laws of intestacy or in the terms of wills,
               trusts or insurance policies. In alimony cases such further provisions must be
               contained in a divorce decree or in a property settlement agreement. They are not to
               be imposed merely by implication or from ambiguous terms.

                It is the widely followed general rule that where there is no statute and the divorce
decree is silent as to whether the deceased’s estate is obligated to pay alimony, the right to receive
alimony and the corresponding duty to pay, being personal, are terminated at the death of either
party. See 27(B) CJS Divorce, § 374, p.222.

               Applying the Prim principles to this case, we find no basis to imply from the Decree
that the husband intended to bind his estate to pay alimony to his former wife. For the foregoing
reasons, we reverse the Judgment of the Trial Court and remand, with the cost of the appeal assessed


case when relevant under the doctrines of the law of the case, res judicata, collateral estoppel, or in
a criminal post-conviction, or habeas corpus action involving the same defendant. Unless designated
“Not For Citation,” “DCRO” OR “DNP” pursuant to subsection (F) of this Rule, unpublished
opinions for all other purposes shall be considered persuasive authority. . . .

        (2) Opinions reported in the official reporter, however, shall be considered controlling
authority for all purposes unless and until such opinion is reversed or modified by a court of
competent jurisdiction.


                                                  -3-
to Barbara D. Olmstead.



                                ______________________________
                                HERSCHEL PICKENS FRANKS, P.J.




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