                   IN THE COURT OF APPEALS OF TENNESSEE

                         EASTERN SECTION AT KNOXVILLE




LORI LEE GRISSOM (BROWN),                   )       KNOX CIRCUIT
                                            )
       Plaintiff/Appellee                   )       NO. 03A01-9607-CV-00219
                                            )
v.                                          )       HON. BILL SWANN
                                            )       JUDGE
JEFFREY DONALD GRISSOM,                     )
                                            )       VACATED and
       Defendant/Appellant                  )       REMANDED




                                     JUDGMENT


       This appeal came on to be heard upon the record from the Circuit Court of

Knox County and briefs filed on behalf of the respective parties. Upon consideration

thereof, this Court is of the opinion that there is reversible error in the trial court's

judgment.

       It is, therefore, ORDERED and ADJUDGED by this Court that the judgment

of the trial court is vacated and the case is remanded to the Circuit Court of Knox

County for trial. Costs are assessed to the appellee.




                                       PER CURIAM
                  IN THE COURT OF APPEALS OF TENNESSEE

                        EASTERN SECTION AT KNOXVILLE




LORI LEE GRISSOM (BROWN),                 )     KNOX CIRCUIT
                                          )
       Plaintiff/Appellee                 )     NO. 03A01-9607-CV-00219
                                          )
v.                                        )     HON. BILL SWANN
                                          )     JUDGE
JEFFREY DONALD GRISSOM,                   )
                                          )     VACATED and
       Defendant/Appellant                )     REMANDED


Jack W. Piper, Jr., Knoxville, for Appellant.

Robert L. Crossley, Knoxville, for Appellee.




                                     OPINION

                                                INMAN, Senior Judge

       A Marital Dissolution Agreement was incorporated in a divorce judgment

entered August 8, 1994.

       As pertinent here, the Marital Dissolution Agreement provided:

6.     Husband shall pay the wife as alimony in solido the sum of
       $221.000.00, which alimony in solido shall be payable
       $425.00 per week for ten (10) years or 520 consecutive
       weeks, on Friday of each week, beginning the first Friday
       after the final judgment of divorce is entered, provided,
       however, the alimony in solido monthly payments shall
       terminate upon the wife's death.


       The wife's remarriage on May 26, 1995 triggered this action to modify the

judgment by terminating the alimony requirement. The trial court considered the

issue at length and made a determination that ordinarily an award of alimony in

solido is beyond the reach of the court after the judgment becomes final, but in this

case, the award was in futuro since the judgment provided for its termination by the

death of the recipient and hence subject to modification.
          An issue of law is presented and no presumption of correctness of the trial

court's judgment attaches. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91

(Tenn. 1993).

          T. C. A. § 36-5-101(a)(2)(B)1 provides:

          In all cases where a person is receiving alimony in futuro or alimony
          the amount of which is not calculable on the date the decree was
          entered, and that person remarries, the alimony in futuro or alimony
          the amount of which is not calculable on the date the decree was
          entered, will terminate automatically and unconditionally upon the
          remarriage of the recipient. The recipient shall notify the obligor of the
          remarriage timely upon remarriage. Failure of the recipient to timely
          give notice of the remarriage will allow the obligor to recover all
          amounts paid as alimony in futuro or alimony the amount of which is
          not calculable on the date the decree was entered, to the recipient
          after the recipient's marriage.

          The appellant argues that an award of alimony in solido is not modifiable after

the judgment becomes final. We readily agree. See Spalding v. Spalding, 597

S.W.2d 739 (Tenn. Ct. App. 1980); Isbell v. Isbell, 816 S.W.2d 735 (Tenn. 1991).

          The appellee argues that the award is in futuro because of the termination

provision [death of the wife] , since the amount "is not calculable on the date the

decree was entered," and therefore the judgment is modifiable, as found by the trial

court. T.C.A. § 36-5-101(a)(2)(B) is apparently reflexive to Butcher v. Webb, 869

S.W.2d 356 (Tenn. 1994), holding that alimony once paid is not recoverable under

the prevailing statutory scheme.

          We think that had the trial court initially decreed the subject provision it would

clearly fall within the purview of the statute because the amount is not calculable on

the date the decree was entered; but inquiry cannot stop at this point. It is well

settled in Tennessee that parties in domestic relations disputes may settle property

rights between themselves consistent with legal and equitable requirements.

          Marital Dissolution Agreements are expressly provided for, T.C.A. § 36-4-103,

and it is a public policy of this state that their use is to be encouraged. To that end

the courts have consistently held that a property contract is not subject to

modification after it has been approved by the court. In Penland v. Penland, 521

S.W.2d 227 (Tenn. 1975), the principle was reaffirmed that a Marital Dissolution

Agreement provision lost its contractual nature if it was by law subject to


1
    This statute had been in effect about three months before the case at bar was heard.
modification. Otherwise, it remained a binding contract. Typically, agreements as to

child and spousal support constitute, as a practical matter, those subject to

modification; alimony in solido is generally never modifiable because it is a part of

the property division scheme. See Vanatta v. Vanatta, 701 S.W.2d 824 (Tenn. Ct.

App. 1985).

       But superimposed upon these principles is one that is essentially

transcendent: to ascertain the intent of the parties as expressed in the agreement,

as distinguished from a decretal finding. In many instances such intent will be

derived from the language employed, because parties to a contract will not be

allowed to stultify themselves, absent a compelling circumstance; but if the provision

is ambiguous, extrinsic evidence may properly be adduced to resolve the element of

intent. See Bob Pearsall Motors v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578

(Tenn. 1975); Taylor v. White Stores, Inc., 707 S.W.2d 514 (Tenn. Ct. App. 1985).

       The appellant forcefully argues that these parties negotiated the Marital

Dissolution Agreement with the assistance of knowledgeable counsel who advised

them with respect to the impact of the language employed, and stresses the singular

reference to "alimony in solido" as contrasted to alimony in futuro or to rehabilitative

alimony. Inapposite to this argument is the stark presence of the statute which

prima facie 'converts' the alimony in solido to an award of alimony in futuro.

       We cannot sacrifice substance to form, Self v. Self, 861 S.W.2d 360 (Tenn.

1993), and conclude that an evidentiary hearing is required in order to determine the

intention of these parties, and to arrive at the justice of the case. Accordingly, the

judgment is vacated and the case is remanded for trial. Costs are assessed to the

appellee.

                                          ______________________________
                                          William H. Inman, Senior Judge


CONCUR:


_____________________________________
Houston M. Goddard, Presiding Judge


_____________________________________
Herschel P. Franks, Judge
