               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                March 10, 2015 Session

           ANDREW R. LUNN, DDS V. CAROLE MICHELLE LUNN

               Appeal from the Chancery Court for Hamilton County
                 No. 11-0240     Jeffrey M. Atherton, Chancellor




                No. E2014-00865-COA-R3-CV-FILED-JUNE 29, 2015




D. MICHAEL SWINEY, J., concurring and dissenting.


              I concur in the majority’s opinion with the sole exception that I cannot
agree with the majority that the amount of alimony in futuro awarded to Wife should be
increased from $500 per month after eight years to $2,288. I agree with the majority that
the transitional alimony must be changed to another type of alimony to comply with
Tennessee law, and that the only other type that fits under the statutes is alimony in
futuro. My only disagreement is with the majority’s sua sponte changing of the amount
ordered by the trial court.
               The majority states in a footnote that “we conclude that there exists no
reason for the award to automatically decrease to $500 per month after eight years.” My
response to this is that Wife never raised an issue as to this $500 per month alimony
award. It is unsurprising that the majority was given “no reason for the award to
automatically decrease to $500 per month after eight years” as Husband never had a
reason on appeal to make any such argument as this issue never was raised by Wife on
appeal. It has been my experience that usually this Court encourages parties both in their
briefs and in oral argument to address only the issues that are before this Court on appeal.
             The majority’s changing of the alimony from transitional to in futuro, a
change I agree with, means that Wife likely will receive considerably more in this
alimony than she would have under the trial court’s alimony award. Despite that
unrequested but required beneficial change to Wife, something Wife never raised on
appeal but which I agree with the majority is required, the majority without any request
or argument being made by Wife to increase the $500 per month alimony then decides
sua sponte and without the legal necessity of doing so to increase the amount from $500
per month to $2,288 per month. The majority has not only more than just tinkered with
the amount of alimony awarded, something we normally avoid if possible, it has done so
without any request or legal necessity that it do so. I cannot agree with this sua sponte
modification of the monthly amount of alimony to be awarded to Wife after the first eight
years of what is now alimony in futuro. I, rather, would have the now alimony in futuro
decrease from $2,288 per month to $500 per month as originally ordered by the trial
court.



                                                 _____________________________
                                                 D. MICHAEL SWINEY, JUDGE




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