VIRGINIA GRAF WADDEY,                  )
                                       )     Davidson Circuit
      Plaintiff/Appellant,             )     No. 81D-2266
                                       )
VS.                                    )
                                       )     Appeal No.
IRA CLINTON WADDEY, JR.,               )     01A01-9708-CV-00374
                                       )
      Defendant/Appellee,              )


                  IN THE COURT OF APPEALS OF TENNESSEE
                                                          FILED
                       MIDDLE SECTION AT NASHVILLE
                                                            June 12, 1998
         APPEAL FROM THE DAVIDSON COUNTY CIRCUIT COURT
                    AT NASHVILLE, TENNESSEE       Cecil W. Crowson
                                                 Appellate Court Clerk
           HONORABLE ROBERT E. CORLEW, III, Designated Judge



F. Dulin Kelly, #4085
Clinton L. Kelly, #16171
Andy L. Allman, #17857
KELLY & KELLY
629 East Main Street
Hendersonville, Tennessee 37075
ATTORNEYS FOR PLAINTIFF/APPELLANT

Albert F. Moore, #6709
NEAL & HARWELL, PLC
2000 First Union Tower
150 Fourth Avenue North
Nashville, Tennessee 37219
ATTORNEY FOR DEFENDANT/APPELLEE



                        AFFIRMED AND REMANDED



                             HENRY F. TODD
                             PRESIDING JUDGE, MIDDLE SECTION




CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM B. CAIN, JUDGE
VIRGINIA GRAF WADDEY,                                   )
                                                        )       Davidson Circuit
       Plaintiff/Appellant,                             )       No. 81D-2266
                                                        )
VS.                                                     )
                                                        )       Appeal No.
IRA CLINTON WADDEY, JR.,                                )       01A01-9708-CV-00374
                                                        )
       Defendant/Appellee,                              )



                                      OPINION

       The plaintiff Virginia Graf Waddey, has appealed from the Trial Court’s dismissal of her

post-divorce decree petition to extend her periodic alimony because of a change in

circumstances.



       On September 1, 1982, the Trial Court entered a divorce decree adopting a “Child

Custody and Property Settlement Agreement” executed by the parties and providing:

                         This cause came on to be heard on the 2nd day of
                 September, 1982, before the Honorable Thomas A. Greer, Jr.,
                 Special Judge designated by appointment, upon the Divorce
                 Bill heretobefore filed in this cause, upon the Agreed Order
                 permitting a withdrawal of the Amendments to said Divorce
                 Decree and allowing this matter to be presented on the
                 statutory grounds of irreconcilable differences as alleged in
                 the Divorce Bill, upon the written Child Custody and Property
                 Settlement Agreement executed by the parties, upon the
                 testimony of witnesses presented in open Court, upon
                 statement of counsel, and upon the entire record in this cause,
                 from all of which the Court finds that the Complainant,
                 Virginia Graf Waddey, and the Defendant, Ira Clinton
                 Waddey, Jr., have experienced such irreconcilable differences
                 in their marriage as would render further cohabitation
                 improper.

                         It is, therefore, ORDERED, ADJUDGED and
                 DECREED that the bonds of matrimony subsisting between
                 the Complainant, Virginia Graf Waddey, and the Defendant,
                 Ira Clinton Waddey, Jr., be absolutely and forever dissolved
                 and that the Complainant, Virginia Graf Waddey, be granted
                 an absolute divorce and be vested with all the rights and
                 privileges of an unmarried person.

                        It is, therefore, ORDERED, ADJUDGED and
                 DECREED that the Child Custody and Property Settlement
                 Agreement as executed by the parties is in all respects
                 approved and ratified in full and is incorporated as a part of
                 this Divorce Decree, the same as if copied herein verbatim,

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              and said Agreement shall be given full force and effect in all
              respects between the parties hereto as an Order of this Court.


       The Child Custody and Property Settlement Agreement contained the following

provision:

                     2.      Mr. Waddey agrees to pay to Mrs. Waddey as
              periodic alimony in futuro the sum of One Thousand ($1,000)
              Dollars per month with the first of said payments being made
              on or before September 10, 1982, and subsequent payments
              at monthly intervals thereafter until the death of Mrs.
              Waddey, the remarriage of Mrs. Waddey, or March 1, 1996,
              whichever event shall first occur.
                                           ----
                     Further, each of the parties reserve the right to petition
              the Court for proper modification of provisions remaining
              within the jurisdiction of the Court upon a change of
              circumstance.


       On March 29, 1996, plaintiff filed a “Petition for Contempt and for Modification of

Award of Support” alleging:

                       13.     Further, the Petitioner, in or about July 10,
              1995, was diagnosed with a malignant tumor which resulted
              in bilateral mastectomies revealing additional malignant sites.

                      14.    As a result of this diagnosis, Petitioner has
              undergone two breast reconstruction surgeries and six
              chemotherapy treatments causing premature menopause and
              hot flashes resulting in fatigue due to sleep disturbances.

                      15.     Due to the resection of her abdominal muscles
              during this reconstruction, Petitioner now suffers abdominal
              weakness which limits her physical activities.

                     16.    Thus far Petitioner has incurred approximately
              Fifty-Six Thousand Dollars ($56,000.00) in medical expenses,
              some of which was covered by her medical insurance under
              an 80/20 PPO plan with a One Thousand Dollar ($1,000.00)
              deductible.

                      17.    Petitioner’s medical condition will require her
              to take certain medications for the remainder of her life as
              well as additional physician visits and has already forced her
              to spend substantial amounts of time away from work.

                      18.     Petitioner’s medical condition has severely
              diminished her ability to earn a living and created a material
              and substantial change in circumstances which were not in the
              contemplation of the parties, or before this Court, at the time
              this Final Decree was entered.



                                              -3-
       The petition requested:

                       4.      That the Court modify its original Final
               Decree and order the Respondent to continue his alimony
               obligation in the amount of One Thousand Dollars
               ($1,000.00) per month for the remainder the Petitioner’s life
               or until she remarries.


       The defendant moved to dismiss for lack of jurisdiction.



       The Trial Court entered an order stating:

                       The portion of Ms. Waddey’s Petition for Contempt
               and for Modification of Award of Support seeking to extend
               or revive the alimony obligation of Mr. Waddey which
               terminated absolutely by its terms on March 1, 1996, was
               untimely filed on March 29, 1996, and that Mr. Waddey’s
               Motion to Dismiss Claims for Modification of Alimony
               should be GRANTED.


       Plaintiff appealed and presented a single issue as follows:

               I.      Does the divorce court have jurisdiction to entertain
               a petition for modification of alimony in futuro if the wife
               files her petition after the payment termination date?

               Yes, the Divorce Court retains jurisdiction because it has a
               continuing statutory power to modify the settlement
               agreement as to alimony in futuro, and the parties specifically
               reserved within the settlement agreement the right to petition
               the Court for modification in the event of a change in
               circumstances.


       T.C.A. § 36-4-101(11) makes irreconcilable differences a valid cause of absolute divorce.



       T.C.A. § 36-5-101(a)(1) provides that a divorce decree may provide for the suitable

support and maintenance of either spouse by the other spouse, the order to remain in the court’s

control.



       T.C.A. § 36-5-101(d)(1) provides

                      It is the intent of the general assembly that a spouse
               who is economically disadvantaged, relative to the other
               spouse, be rehabilitated whenever possible by the granting of
               an order for payment of rehabilitative, temporary support and

                                            -4-
               maintenance. Where there is such relative economic
               disadvantage and rehabilitation is not feasible in consideration
               of all relevant factors, including those set out in this
               subsection, then the court may grant an order for payment of
               support and maintenance on a long-term basis or until the
               death or remarriage of the recipient except as otherwise
               provided in subdivision (a)(3). Rehabilitative support and
               maintenance is a separate class of spousal support as
               distinguished from alimony in solido and periodic alimony.


       Termination or modification of an alimony award after a divorce decree becomes

final depends upon whether the original award was in solido, or lump sum or in futuro, or

periodic. Alimony in solido is not subject to change after the decree becomes final. The

mere fact that lump sum alimony is payable in installments is neither conclusive nor

determinative regarding its statue as in solido or in futuro alimony. Phillips v. Webster,

Tenn. App. 1980, 611 S.W.2d 591.



       The awarding of alimony in solido in installments is an acceptable practice. The

determinative factor in distinguishing between alimony in futuro and alimony in solido is the

definiteness or indefiniteness of the amount ordered to be paid. Isbell v. Isbell, Tenn. 1991,

816 S.W.2d 735.



       In Phillips, supra, the 1975 divorce decree provided lump sum alimony of $100,000

payable in specified installments. In 1977, the parties executed an agreement modifying the

security pledged to secure the support.       The agreement refers to “periodic alimony

payments.” This Court held that the quoted words were ineffective to transform court-

ordered unchangeable lump sum alimony into periodic changeable alimony.



       In the present case, by the unique wording of the property settlement agreement and

divorce decree, a unique status of lump sum alimony was created. That is, it was agreed and

decreed that, during the time frame of the installment payments, the alimony would be

considered periodic and changeable.      The special and unusual reservation of power to

change what would otherwise be unchangeable ended on the date of the last scheduled

                                             -5-
payment. After the expiration of the time fixed for installment payments, the alimony

became lump sum and unchangeable.



       This resolution of the problem is not entirely satisfying, for it is subject to the

characterization of “make-shifting.” However, the reverse of this resolution would produce

an even more unsatisfactory result, for it would authorize a trial court to perpetuate its power

to change lump sum alimony until the death or remarriage of the recipient.



        The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against

the appellant. The cause is remanded to the Trial Court for necessary further proceedings.



                            AFFIRMED AND REMANDED




                                                ___________________________________
                                                HENRY F. TODD
                                                PRESIDING JUDGE, MIDDLE SECTION




CONCUR:


______________________________
BEN H. CANTRELL, JUDGE


______________________________
WILLIAM B. CAIN, JUDGE




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