                                                                                        01/28/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                         Assigned on Briefs October 17, 2019

                   DEBORAH BALZER V. JOSEPH BALZER

                 Appeal from the Chancery Court for Sevier County
                  No. 10-6-173      Telford E. Forgety, Jr., Judge
                      ___________________________________

                           No. E2019-00576-COA-R3-CV
                       ___________________________________

Following a divorce, husband and wife agreed that wife was to receive monthly alimony
payments from husband for eight and a half years. The last four years of payments were
contingent upon husband attaining the rank of airline captain. The type of alimony
awarded was never specified. Wife later remarried and cohabitated with her new
husband. Husband filed for a modification alleging that the alimony was transitional
alimony and therefore statutorily modifiable upon wife’s cohabitation with a third person.
See Tenn. Code Ann. § 36–5–121(g)(2)(C) (2019). Wife instead argued that the alimony
awarded was alimony in solido and therefore not modifiable except by agreement of the
parties. See Tenn. Code Ann. § 36–5–121(h)(2). The trial court held that the expressly
conditional nature of the alimony rendered it more properly classifiable as transitional
alimony. The court terminated husband’s alimony obligation based upon wife’s
remarriage and cohabitation with her new husband. Wife appeals. Discerning no error,
we affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Kevin W. Shepherd, Maryville, Tennessee, for the appellant, Deborah Balzer.

Steven E. Marshall, Sevierville, Tennessee, for the appellee, Joseph Balzer.




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                                                OPINION

                                                      I.

      On September 12, 1987, husband, Joseph Balzer, and wife, Deborah Balzer, were
married. On June 17, 2010, wife filed for absolute divorce; on July 8, 2011, husband
answered and also counter claimed for absolute divorce. Both parties alleged
inappropriate marital conduct and irreconcilable differences.

      Husband and wife have two children together; one was born in 1995 and the other
in 1997. The children were minors at the time of the divorce. Both children have now
reached the age of majority.

       On September 13, 2011, the trial court held a hearing on the complaint and counter
claims. On October 25, 2011, the court found that stipulated grounds exist sufficient to
declare the parties divorced, pursuant to Tenn. Code Ann. § 36-4-129(b).1 The court
reserved “[a]ll other issues regarding marital property and division of marital debts.”

       On November 1, 2011, the court held a second hearing. Prior to the hearing, the
parties had agreed on terms pertaining to property division, parenting, child support, and
alimony. Their agreements were announced to the court. Wife’s counsel stated that wife
would

                 receive alimony for the eight and a half years, and I don’t
                 even know if [husband’s counsel] recalls this, but on the last
                 four years the continuation of the alimony is conditioned
                 upon Mr. Balzer, his seniority being as a condition where he
                 would be flying left seat or as captain on the plane.

The alimony was set at $1,100 a month; the type of alimony was never specified. On July
13, 2012, the trial court entered its final judgment of divorce incorporating the parties’
agreements. The final judgment also did not specify the type of alimony awarded to wife.

       On July 5, 2018, husband filed a motion to terminate his alimony obligation. In his
motion, husband alleged that wife remarried, on May 15, 2018. He alleged that his
obligation to pay alimony should terminate based upon wife’s remarriage and
cohabitation with a third party. See Tenn. Code Ann. § 36–5–121(g)(2)(C) (stating that if
the “alimony recipient lives with a third person…a rebuttable presumption is raised
that…[t]he 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


      1
          The trial court did not specify the stipulated grounds. The parties did not appeal this issue.

                                                     -2-
should suspend all or part of the alimony obligation to the former spouse.”) Wife
answered denying husband’s averment that his obligation should terminate.

        On January 23, 2019, the trial court held a hearing on husband’s motion. Husband
argued that the alimony award should be characterized as transitional, because it was a
sum of money payable to wife for a determinate period of time. He argued that the
continued payment of alimony was expressly conditioned upon certain events occurring,
which indicates the parties’ intention that the alimony was subject to modification and
therefore transitional alimony. Furthermore, he argued that the court should find the
alimony to have been transitional, because there is a statutory bias toward awarding
short-term support, such as transitional alimony, over long-term support, such as alimony
in solido.

       Wife instead argued that the alimony should be characterized as alimony in solido.
She argued that the parties never indicated that the alimony would terminate upon the
death of the recipient, which is characteristic of transitional alimony. Despite its
expressly conditional nature, she alleged that the alimony award should be understood by
the court as an ascertainable lump sum that was to be paid to her in installments. She
further argued that the trial court’s decision to reserve “issues regarding marital property
and division of marital debts” indicates that the alimony award was considered by the
court to be part of the marital property and not a separate component, which she alleges is
indicative of an award of alimony in solido.

       In rendering its decision, the court reviewed the four types of alimony awards. See
Tenn. Code Ann. § 36–5–121(d)(1) (stating that a “court may award rehabilitative
alimony, alimony in futuro, also known as periodic alimony, transitional alimony, or
alimony in solido, also known as lump sum alimony or a combination of these.”) The
court stated that the language of the agreement indicates that the continuation of alimony
payments was conditioned upon husband achieving the rank of airline captain; if this
condition was not met, then the alimony payments would cease. The court held that the
conditional nature of the alimony renders it more properly classifiable as transitional
alimony. The court held that the alimony award should terminate due to wife’s
remarriage and co-habitation with her new husband. See Tenn. Code Ann. § 36–5–
121(g)(2)(C). Wife appeals.

                                            II.

      Wife asks this Court to consider whether the trial court erred by classifying the
alimony awarded to her as transitional alimony instead of alimony in solido.




                                            -3-
                                          III.

       We review a non-jury case de novo upon the record, with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
2000). We review questions of law, including those of statutory construction, de
novo with no presumption of correctness. Bowden, 27 S.W.3d at 916 (citing Myint v.
Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see also In re Estate of Haskins,
224 S.W.3d 675, 678 (Tenn. Ct. App. 2006).

                                          IV.

                                           A.

       Tennessee law recognizes four distinct types of spousal support: (1) alimony in
futuro, (2) alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony.
Tenn. Code Ann. § 36–5–121(d)(1). Two types are relevant to our present discussion:
alimony in solido and transitional alimony.

       Alimony in solido is a form of long-term support. The total amount of alimony in
solido awarded is set on the date of the divorce decree and is either paid in a lump sum
payment of cash or property, or paid in installments for a definite term. Tenn. Code Ann.
§ 36–5–121(h)(1). Alimony in solido:

             may be paid in installments; provided, that the payments are
             ordered over a definite period of time and the sum of the
             alimony to be paid is ascertainable when awarded.

Tenn. Code Ann. § 36–5–121(h)(1). Alimony in solido is considered a final judgment,
“not modifiable, except by agreement of the parties only,” and does not terminate upon
the death or remarriage of the recipient or payor spouse. Tenn. Code Ann. § 36–5–
121(h)(2)–(3). Alimony in solido “promotes the twin goals of certainty and finality
through an award of a fixed amount without conditions.” Averitte v. Averitte, 2013 WL
357602, at *5 (Tenn. Ct. App. Jan. 29, 2013) (citation omitted).

      Conversely, transitional alimony is a form of short-term support. It is appropriate
when a court finds that rehabilitation is not required but that the economically
disadvantaged spouse needs financial assistance in adjusting to the economic
consequences of the divorce. Tenn. Code Ann. § 36–5–121(d)(4). Transitional alimony is
payable for a definite period of time and shall be nonmodifiable unless:




                                           -4-
             (A) The parties otherwise agree in an agreement incorporated
                 into the initial decree of divorce or legal separation, or
                 order of protection;

             (B) The court otherwise orders in the initial decree of divorce,
                 legal separation or order of protection; or

             (C) The alimony recipient lives with a third person, in which
                 case 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.

Tenn. Code Ann. § 36–5–121(g)(2).

      The Supreme Court has held that

             [t]he statutory framework for spousal support reflects a
             legislative preference favoring short-term spousal support
             over long-term spousal support, with the aim being to
             rehabilitate a spouse who is economically disadvantaged
             relative to the other spouse and achieve self-sufficiency
             where possible. Thus, there is a statutory bias toward
             awarding transitional [] alimony over alimony in solido [].

Gonsewski v. Gonsewski, 350 S.W.3d 99, 109 (Tenn. 2011) (internal citations omitted).




                                           -5-
                                             B.

                                             1.

       Turning to the present matter, wife argues on appeal that the trial court’s:

              [October 25, 2011] [o]rder did not make any reference to
              alimony, nor did it reserve the issue of alimony. That [o]rder
              simply reserved the issues of property and debt…The [f]inal
              [j]udgment of [d]ivorce does not set forth alimony as a
              separate element, but merely refers to issue of parenting and
              property.

She alleges that the alimony award must therefore be understood as a part of the parties’
property division. Given that alimony in solido is often used as a means of adjusting the
distribution of marital property, she argues that the alimony awarded here must have been
alimony in solido, because property division was the only issue the court had left to
address. See, e.g. Gonsewski v. Gonsewski, 350 S.W.3d 99, 108 (Tenn. 2011) (stating
that a typical purpose of an award of alimony in solido is to adjust the distribution of the
parties’ marital property.)

       The court’s October 25th order granted the parties an absolute divorce on
stipulated grounds. The court further stated that wife had orally requested a continuance
of the trial. The court “reluctantly granted” her request and ordered wife to produce
medical proof that she was in fact sick on the trial date. The order reset the trial for
November 1, 2011.

        At the November 1st trial, the parties announced several agreements to the court.
On July 13, 2012, the court entered an order approving and ratifying the parties’
agreements. The July 13th order incorporated the transcript of the November 1st hearing
into it by reference. The order addressed the parties’ permanent parenting plan, father’s
child support obligation, property division, and spousal support for wife.

       As memorialized by the transcript and incorporated into the court’s final
judgment, wife’s counsel presented the parties’ agreement regarding alimony to the court
at the hearing. The alimony agreement was specifically identified as an agreement
pertaining to spousal support and not property division:

              alimony will be paid at the rate of $1,100 a month for eight
              and a half years. That is when the husband will be retiring
              from the airline. That, of course, is spousal support, tax
              deductible to the husband and the wife will be required to pay
              taxes on that amount.

                                             -6-
(Emphasis added). No mention was made that the alimony was intended to adjust the
distribution of the parties’ marital property. Wife made no mention of the alimony issue
not having been reserved as a separate issue; instead, she specifically presented it to the
trial court as spousal support. Therefore, wife’s argument on appeal that the issue of
alimony was not reserved and not set forth as a separate agreement between the parties is
inconsistent with the record before this Court. We hold that this argument is without
merit.

                                            2.

        In addition, wife also alleges on appeal that she “did not ask for transitional
alimony in her [c]omplaint, but did ask for alimony in solido.” However, a review of her
complaint indicates that she asked for all types of alimony available under Tennessee law
(albeit some identified by misnomers). Wife requested to be awarded:

              suitable alimony in future (sic), alimony in solido, temporary
              alimony, rehabilitative alimony, permanent alimony, attorney
              fees and suit expenses, both pendente lite and permanent; that
              said alimony shall be assigned from the Defendant’s income;
              that a lien be imposed on property to ensure the payment of
              said alimony; and that the Defendant be required to obtain
              and/or maintain life insurance to pay said funds upon the
              Defendant’s death.

We hold that this argument is also inconsistent with the record and is therefore without
merit.

                                            3.

       Lastly, we consider whether the record supports the trial court’s finding that the
alimony awarded to wife is more properly characterized as transitional alimony than
alimony in solido. When determining matters of spousal support, Tennessee law has
recognized that trial courts should be accorded wide discretion. As stated by the Supreme
Court,

              [t]his well-established principle still holds true today, with
              this Court repeatedly and recently observing that trial courts
              have broad discretion to determine whether spousal support is
              needed and, if so, the nature, amount, and duration of the
              award.



                                            -7-
              Equally well-established is the proposition that a trial court’s
              decision regarding spousal support is factually driven and
              involves the careful balancing of many factors.

      Gonsewski v. Gonsewski, 350 S.W.3d 99, 105–06 (Tenn. 2011) (internal citations
omitted).

        We find that the court’s decision to characterize the award as transitional alimony
is sufficiently supported by the record. The parties’ agreement never mentioned a total
amount due to wife, as is characteristic of an award of alimony in solido. There is also no
mention that the parties were awarding wife alimony in an attempt to adjust the
distribution of the parties’ marital property, as is characteristic of an award of alimony in
solido. Furthermore, the final four years of alimony payments were expressly made
conditional upon husband attaining the rank of airline captain. Given the conditional
nature of the award, the sum of alimony to be paid was not definitively ascertainable
when awarded. See Tenn. Code Ann. § 36–5–121(h)(1) (stating that, alimony in solido
“is a form of long term support, the total amount of which is calculable on the date the
decree is entered…may be paid in installments; provided, that…the sum of the alimony
to be paid is ascertainable when awarded.”)

       Ultimately, when reviewing a trial court’s determination regarding the nature of
spousal support awards, we find the following direction by the Supreme Court
particularly instructive:

              [t]he role of an appellate court in reviewing an award of
              spousal support is to determine whether the trial court applied
              the correct legal standard and reached a decision that is not
              clearly unreasonable. Appellate courts decline to second-
              guess a trial court’s decision absent an abuse of discretion. An
              abuse of discretion occurs when the trial court causes an
              injustice by applying an incorrect legal standard, reaches an
              illogical result, resolves the case on a clearly erroneous
              assessment of the evidence, or relies on reasoning that causes
              an injustice. This standard does not permit an appellate court
              to substitute its judgment for that of the trial court, but
              reflects an awareness that the decision being reviewed
              involved a choice among several acceptable alternatives, and
              thus envisions a less rigorous review of the lower court’s
              decision and a decreased likelihood that the decision will be
              reversed on appeal. Consequently, when reviewing
              a discretionary decision by the trial court, such as
              an alimony determination, the appellate court should presume


                                             -8-
              that the decision is correct and should review the evidence in
              the light most favorable to the decision.

Gonsewski v. Gonsewski, 350 S.W.3d 99, 105–06 (Tenn. 2011) (internal citations and
quotations omitted).

       It is clear that the trial court applied the correct legal standard in reaching its
decision; its result is neither illogical nor unjust. We decline to consider substituting our
judgment for that of the trial court. We hold that the court did not abuse its discretion in
designating the alimony awarded to wife as transitional alimony, and therefore subject to
modification, pursuant to Tenn. Code Ann. § 36–5–121(g)(2).

                                             V.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the
appellant, Deborah Balzer. This matter is remanded to the trial court for collection of
costs assessed below.


                                                    _______________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




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