                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  November 8, 2006 Session

          ANN MARIE GILLESPIE v. ANDREW MARK GILLESPIE

                       Appeal from the Circuit Court for Sevier County
                        No. 2004-0726-II   Richard R. Vance, Judge



                   No. E2006-00734-R3-CV - FILED DECEMBER 19, 2006


The issue presented in this case is whether the Wife’s alimony award is modifiable due to her
remarriage when the divorce decree does not classify the alimony award, stating only that “the
[Husband] shall pay alimony to the [Wife] in the amount of five hundred dollars per month for a
period of two years.” The trial court, presented with Husband’s petition to modify spousal support,
held that the alimony award was “periodic/rehabilitative alimony,” and terminated Husband’s
spousal support obligation to Wife because of her remarriage. We hold that the award of alimony
is properly classified as alimony in solido, because (1) both the alimony award in the divorce decree
and the parties’ marital dissolution agreement provided for a sum certain – $500 per month for two
years – with no contingencies that would cause termination of the alimony, such as Wife’s death or
remarriage; and (2) the trial court made no finding in the divorce judgment regarding the relative
economic status of the parties, nor of the Wife’s need or potential for rehabilitation. Therefore,
because an award of alimony in solido is not subject to modification, we reverse the judgment of the
trial court terminating Wife’s alimony payments.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                      Case Remanded

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

Ann Marie Gillespie Ward, Kodak, Tennessee, Pro Se Appellant.

Rebecca D. Slone and J. Derrick Whitson, Dandridge, Tennessee, for the Appellee, Andrew Mark
Gillespie.
                                             OPINION

                                           I. Background

        Andrew Mark Gillespie and Ann Marie Gillespie Ward were married on December 31, 1990.
One child was born to the marriage on May 28, 1991. After nearly fourteen years of marriage, Ms.
Ward filed for divorce on October 27, 2004. Mr. Gillespie counterclaimed for divorce shortly
thereafter. After negotiation, the parties executed a marital dissolution agreement (“MDA”).
Regarding spousal support, the MDA provided the following: “ALIMONY: Alimony shall be
awarded to the Plaintiff [Ms. Ward] in the amount of five hundred dollars a month for a period of
two years.”

       On May 6, 2005, the trial court entered its final judgment of divorce. No transcript of the
divorce hearing is included in the record, and neither party makes reference to such a hearing in his
or her brief. The trial court’s divorce decree made the following findings and conclusions,
reproduced in their entirety:

               That the allegations of the Complaint are sustained by the proof; that
               is, that the parties have stipulated grounds for divorce pursuant to
               T.C.A. 36-4-129.

               That each party shall be granted an absolute divorce from the other on
               stipulated grounds and that both Parties be restored to all the rights
               and privileges of unmarried persons.

               That there is a child born of the marriage and a Parenting Plan is filed
               and is approved by this Court.

               The Parties are owners of certain personal items and effects and each
               Party shall be awarded his or her own personal items and effects and
               the other Party divested of any interest in the effects of the other.

               The Parties’ marital debt, including credit cards, but excluding the
               home, will be paid solely by [Mr. Gillespie]. In addition, [Mr.
               Gillespie] has signed a quit claim deed giving rights to the marital
               home to [Ms. Ward]. Costs of said deed and filing fees shall be paid
               by [Ms. Ward].

               That [Mr. Gillespie], when able, shall provide [Ms. Ward] with half
               of his retirement fund after January 1, 2005 within ten days of
               receiving said funds.

               [Mr. Gillespie] shall be required to pay for any secondary schooling
               or college training for the minor child, Andrea Michele Gillespie.


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                [Mr. Gillespie] will maintain medical insurance on [Ms. Ward] for a
                period of two years from the date of divorce. He will maintain
                medical insurance on the child until she is at least eighteen years of
                age.

                That [Mr. Gillespie] shall pay child support in the amount of five
                hundred and thirty dollars per month until the child is at least eighteen
                or graduates from college. This amount may be modified if both
                parties agree or by a petition to modify submitted to this Court by
                either party.

                That [Mr. Gillespie] shall pay alimony to [Ms. Ward] in the amount
                of five hundred dollars per month for a period of two years.

                Neither party is a member of the Military or Armed Forces.

The divorce judgment does not incorporate or mention the parties’ MDA. As can be seen, the trial
court’s judgment does not classify the alimony award, does not make a finding regarding the parties’
relative economic situations, and does not contain a finding as to whether Ms. Ward is in need of
rehabilitation or whether rehabilitation is feasible in her situation.

         Five months after entry of the final decree of divorce, Mr. Gillespie filed a petition to modify
spousal support, arguing that his alimony obligation should be terminated or reduced because of Ms.
Ward’s remarriage. The trial court heard no proof at the hearing of this motion, other than a
stipulation that Ms. Ward had remarried. Ms. Ward argued that the alimony awarded was properly
classified as in solido, and therefore it was not modifiable. The trial court’s order holds as follows
in its entirety:

                1. The award of alimony is found to be periodic/rehabilitative alimony.

                2. The Court hereby terminates said alimony due to wife’s remarriage
                retroactively to the date of wife’s marriage.

                3. Costs are taxed to wife.

                                          II. Issue Presented

      Ms. Ward appeals, raising the issue of whether the trial court erred in terminating her
alimony because of her remarriage.


                                       III. Standard of Review

        In this non-jury case, our review is de novo upon the record of the proceedings below, but
the record comes to us with a presumption of correctness as to the trial court's factual determinations

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that we must honor unless the evidence preponderates against those findings. Tenn. R. App. P.
13(d); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995); Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court's conclusions of law, however, are
accorded no such presumption. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996);
Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).

        Our Supreme Court has further elaborated upon our standard of review in a spousal support
modification case by noting that “[b]ecause modification of a spousal support award is factually
driven and calls for a careful balancing of numerous factors, . . .a trial court’s decision to modify
support payments is given wide latitude within its range of discretion.” Bogan v. Bogan, 60 S.W.3d
721, 727 (Tenn. 2001) (internal quotation marks and citations omitted). Consequently, appellate
courts “are generally disinclined to second-guess a trial judge’s spousal support decision unless it
is not supported by the evidence or is contrary to the public policies reflected in the applicable
statutes.” Id. In the present case, the parties have agreed that there is no issue of fact presented,
either before the trial court or this court; the only question is the proper classification of the alimony
award.

                                                   IV. Analysis

        Based on our review of the sparse record before us, we have concluded that the trial court
erred in classifying the alimony award as “periodic/rehabilitative.” We hold that the award of
alimony is properly classified as alimony in solido, because (1) both the alimony award in the
divorce decree and the parties’ MDA provided for a sum certain – $500 per month for two years –
with no contingencies that would cause termination of the alimony, and (2) the trial court did not
make a factual finding in the divorce judgment that Ms. Ward was in need of rehabilitation and that
she was capable of being rehabilitated within the meaning of the law.

        There are four separate classes of spousal support in Tennessee, including rehabilitative
alimony,1 alimony in futuro (or periodic alimony),2 alimony in solido (or lump-sum alimony),3 and
transitional alimony.4 Tennessee law recognizes a statutory preference for rehabilitative spousal
support and transitional spousal support. T.C.A. § 36-5-101(C)(Supp. 2004) (now § 36-5-121(d)(2));
Bratton v. Bratton, 136 S.W.3d 595, 605 (Tenn. 2004); Perry v. Perry, 114 S.W.3d 465, 467 (Tenn.
2003); Crabtree v. Crabtree, 16 S.W.3d 356, 358 (Tenn. 2000). This statutory preference does not
entirely displace the other forms of spousal support when the facts of the case warrant long-term or
more open-ended support. Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995); Isbell v. Isbell, 816
S.W.2d 735, 739 (Tenn. 1991).



        1
            T.C.A. § 36-5-101(d)(1)(C)(Supp. 2004) (now recodified at T.C.A. § 36-5-121).

        2
            T.C.A. § 36-5-121(f).

        3
            T.C.A. § 36-5-121(h).

        4
            T.C.A. § 36-5-101(d)(1)(D)(Supp.2004) (now recodified at T.C.A. § 36-5-121(g)).

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        Neither the parties’ MDA nor the divorce decree designated the classification of alimony that
Ms. Ward was to receive. This is important because alimony in solido is not subject to modification
after the decree is final, whereas the other types of alimony are subject to change. T.C.A. §§ 36-5-
121(e)(2) (rehabilitative alimony); 36-5-121(f)(2) (alimony in futuro); 36-5-121(g)(2) (transitional
alimony); 36-5-121(h)(2) (alimony in solido).

         The law in Tennessee regarding rehabilitative alimony was codified at T.C.A. § 36-5-
101(d)(1)(C) (Supp. 2004) (now recodified at T.C.A. §§ 36-5-121(d)(2) and (3), -121(e)). Our courts
interpreting this statute have consistently required a factual finding by the trial court that a spouse
is “economically disadvantaged relative to the other spouse,” and that rehabilitation of the
economically disadvantaged spouse is feasible, in order to properly classify an award of alimony as
“rehabilitative.” For instance, the Supreme Court in Self v. Self, 861 S.W.2d 360 (Tenn. 1993) stated
that “[t]he critical factor in determining whether an award for the support and maintenance of a
former spouse is subject to modification is the initial finding by the trial court regarding the relative
economic conditions of the parties and the feasibility of rehabilitation of the disadvantaged spouse.”
Self, 861 S.W.2d at 361; accord Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995)
(“there must be a threshold determination by the trial judge that, considering all relevant factors,
rehabilitation of the economically disadvantaged spouse is not feasible”); Knowles v. Knowles, No.
M2001-012820-COA-R3-CV, 2002 WL 598551, at *2 (Tenn. Ct. App. M.S., Apr. 19, 2002);
Sanders v. Sanders, No. M2001-02694-COA-R3-CV, 2003 WL 21004628, at *3 (Tenn. Ct. App.
M.S., May 6, 2003) (“[t]he essential finding for an award of rehabilitative support is that the
disadvantaged spouse is ‘capable of rehabilitation’”); Campbell v. Campbell, No. M2005-00288-
COA-R3-CV, 2006 WL 2354766, at *5 (Tenn. Ct. App. M.S., Aug. 8, 2006). In the present case,
the trial court made no such finding, and therefore the alimony award to Ms. Ward was not properly
classified as rehabilitative.

        The law in Tennessee regarding transitional alimony was codified at T.C.A. § 36-5-
101(d)(1)(D)(Supp. 2004) (now recodified at T.C.A. § 36-5-121(g)). The trial court did not classify
its spousal support award as transitional alimony, either at the time of the divorce decree or in its
order granting Mr. Gillespie’s petition to terminate alimony. Neither party argues on appeal that the
award should be classified as transitional alimony. Transitional alimony “is awarded when the court
finds that rehabilitation is not necessary, but the economically disadvantaged spouse needs assistance
to adjust to the economic consequences of a divorce... .” T.C.A. § 36-5-101(d)(1)(D) (Supp. 2004).
The court made no such finding in this case, and we do not find that the award is properly classified
as transitional alimony under the circumstances presented here.

       In Waddey v. Waddey, 6 S.W.3d 230 (Tenn. 1999), the Supreme Court discussed the
characteristics of an award of alimony in futuro (also known as periodic alimony), as distinguished
from alimony in solido, as follows:

                Whether alimony is in futuro or in solido is determined by either the
                definiteness or indefiniteness of the sum of alimony ordered to be
                paid at the time of the award. McKee v. McKee, 655 S.W.2d 164, 165
                (Tenn.App.1983). Alimony in solido is an award of a definite sum of


                                                  -5-
               alimony. Spalding v. Spalding, 597 S.W.2d 739, 741
               (Tenn.App.1980). Alimony in solido may be paid in installments
               provided the payments are ordered over a definite period of time and
               the sum of the alimony to be paid is ascertainable when awarded. Id.
               Alimony in futuro, however, lacks sum-certainty due to contingencies
               affecting the total amount of alimony to be paid. McKee, 655 S.W.2d
               at 165-66 (holding alimony was in futuro where husband was ordered
               to pay the mortgage note until either the son turned twenty-two or the
               house was sold). It is therefore clear that the duration of an award of
               alimony in futuro may be affected by contingencies agreed upon by
               the parties or imposed by courts.

               The continued payment of alimony in the case now before us was
               subject to three contingencies: remarriage, death, or the passage of
               March 1, 1996. These contingencies affected the duration of the
               alimony. Accordingly, the sum of the alimony payable to Mrs.
               Waddey was not determinable when the alimony was awarded. The
               mere happening of a contingency does not convert an award of
               alimony in futuro to an award of alimony in solido. The award of
               alimony in solido must be ascertainable when ordered, not years later
               when a contingency terminates the award.

Waddey v. Waddey, 6 S.W.3d 230, 232 (Tenn. 1999); accord Burlew v. Burlew, 40 S.W.3d 465, 471
(Tenn. 2001).

        In this case, both the MDA and the divorce decree provide for an award of a definite sum,
$500 per month for two years. There are no contingencies present that would potentially affect the
duration or total amount of the alimony. Under Waddey and the later cases following it, therefore,
the alimony is properly classified as in solido. As noted, alimony in solido is not modifiable after
the divorce decree has become final. Burlew, 40 S.W.3d at 472.

       Moreover, the parties’ MDA provided as follows:

               [to] memorialize their full, complete and final agreement as to all of
               these matters, the parties have executed and acknowledged this
               contractual MARITAL DISSOLUTION AGREEMENT which
               they request the Court to ratify and approve and incorporate by
               reference into its Final Decree of Divorce if it should grant a divorce
               on the Original Complaint filed herein, but which will retain its
               contractual nature regardless of any action taken by the Court.
                               *              *                *
               ALIMONY: Alimony shall be awarded to the Plaintiff [Ms. Ward]
               in the amount of five hundred dollars a month for a period of two
               years.


                                                -6-
The parties could have included a provision in their MDA that the alimony payments would
terminate upon remarriage, but they did not do so. As this court stated in Bryan v. Leach, 85 S.W.3d
136 (Tenn. Ct. App. 2001),
               Where the parties see fit to include alimony obligations in their
               marital dissolution agreement, [i]t must be presumed that the alimony
               provision was part of the inducement or consideration for the other
               provisions regarding division of the marital estate. The Courts are
               justified in being reluctant to disturb an alimony obligation assumed
               under such conditions.
                                *               *              *
               Parties should be free to obligate themselves by agreement beyond
               what the courts could order them to do as a matter of law. 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.

Bryan, 85 S.W.3d at 150 (internal quotation marks and citations omitted).

                                           V. Conclusion

        For the aforementioned reasons, we hold that the alimony award in the trial court’s divorce
decree is properly classified as alimony in solido and is therefore non-modifiable by the trial court.
The judgment of the trial court terminating Ms. Ward’s alimony payments is reversed. The case is
remanded for collection of costs below, which the trial court should reconsider upon remand in light
of our disposition of this appeal. Costs on appeal are assessed to the Appellee, Andrew Mark
Gillespie.



                                               _________________________________________
                                               SHARON G. LEE, JUDGE




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