                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  May 21, 2014 Session

          JEFFREY WADE MYRICK v. GLORIA DENISE MYRICK

                 Appeal from the Chancery Court for Sumner County
                         No. 2007D9    Tom E. Gray, Judge




                No. M2013-01513-COA-R3-CV           - Filed June 19, 2014



The issue presented in this case is whether alimony in futuro was properly terminated by the
trial court. The parties entered into a marital dissolution agreement, which provided that
Husband/Appellee would pay Wife/Appellant alimony in futuro until death, remarriage, or
“until a third person not the Wife’s child, moves into the Wife’s residence.” The marital
dissolution agreement was incorporated, by reference, into the final decree of divorce.
Thereafter, Wife’s mother moved into Wife’s home, and Husband filed a motion to terminate
his support obligation based upon the occurrence of the suspending condition. The trial court
granted Husband’s petition, finding that the parties’ agreement for alimony in futuro was
contractual in nature and that the unambiguous language mandated cessation of Husband’s
support obligation when Wife’s mother moved into Wife’s home. Based upon the provision
for attorney’s fees in the parties’ marital dissolution agreement, the trial court also awarded
Husband his attorney’s fees and costs. Wife appeals. Discerning no error, we affirm and
remand.

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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.

Russell E. Edwards, Hendersonville, Tennessee, for the appellant, Gloria Denise Myrick.

Abby R. Rubenfeld, Nashville, Tennessee, for the appellee, Jeffery Wade Myrick.
                                          OPINION

       Jeffery Wade Myrick (“Husband,” or “Appellee”) and Gloria Denise Myrick (“Wife,”
or “Appellant”) were divorced on March 9, 2009 by final decree entered in the Chancery
Court for Sumner County. Prior to their divorce, the parties entered into mediation with a
Tennessee Supreme Court Rule 31 mediator. During the mediation, and during the entire
divorce proceeding, both parties were represented by counsel. At the conclusion of
mediation, on or about February 10, 2009, the parties signed a hand-written document, which
outlined the agreed terms of their mediated agreement. These terms were later written into
a formal marital dissolution agreement (“MDA”), which was approved by both parties, as
well as the trial court, before it was incorporated, by reference, into the final decree of
divorce.

       As is relevant to the instant appeal, the alimony provision of the MDA provides:

                      The Husband agrees to pay to the Wife as alimony in
              futuro the sum of two thousand ($2,000.00) Dollars per month,
              until the Wife dies or remarries, until the Husband dies, or until
              a third person not the Wife’s child, moves into the Wife’s
              residence. The amount shall further be reduced by payments
              received by Wife from either retirement plan and/or Social
              Security payments.1

(Emphasis added to denote language germane to the appeal).

       On November 7, 2011, Husband filed a petition to modify and terminate alimony. As
the ground for his petition, Husband averred, inter alia, that:

              9. [Husband] has learned that in approximately August 2011,
              Patricia Clark, who is the mother of [Wife], moved into the
              residence of [Wife]; Ms. Clark is not the child of [Wife] and
              thus the alimony obligation of [Husband] must now terminate.
              10. [Husband] understands that Ms. Clark has sold her own
              home and that alterations have been made at the home of [Wife]
              for Ms. Clark to continue living there on a full time basis.
              11. Consistent with the agreed terms of the Marital Dissolution
              Agreement incorporated into the Final Decree of Divorce, the


       1
       The parties’ MDA, at §XV, includes a provision that specifically states that the terms of
the MDA contain “the entire understanding of the parties.”

                                              -2-
              alimony obligation of [Husband] thus must now be terminated.

On December 16, 2011, Wife filed a response in opposition to Husband’s petition, wherein
she specifically denied the allegation that her mother was living with her.

        A bench trial was held on April 10, 2013. By order of May 1, 2013, the trial court
granted Husband’s petition and terminated his alimony obligation. In relevant part, the order
states:

              The Court also finds that this case is about a contract with
              certain conditions. . . .
                     The Court further finds that both parties, each with the
              advice of counsel, signed off on the terms of the agreement,
              including the alimony provisions, on a handwritten list of terms
              at the mediation itself. The Court also finds that a month later,
              the same terms regarding alimony were included in the
              typewritten Marital Dissolution Agreement, and again approved
              and signed by both parties with the advice of counsel, after
              which that MDA was incorporated in the Final Decree of
              Divorce entered by this Court.

The trial court’s findings that the parties freely negotiated and agreed to the MDA terms is
supported by Wife’s trial testimony:

              Q [to Wife]: So you both [i.e., Wife and Husband] had to agree
              to the terms before you got divorced, right?

              A. Yes.

              Q. So you had a chance to put in there that your mom could live
              with you without terminating alimony, didn’t you?

              A. I did have that opportunity.

The trial court’s order continues, in relevant part, as follows:

              The Court further finds that [after entry of the Final Decree of
              Divorce]. . . [Wife’s] mother . . . came to live with her for 80 to
              85 days. The Court finds that [Wife’s] mother . . . made
              arrangements to sell her own home, which sold a short time after


                                              -3-
              being listed for sale. The Court also finds that [Wife’s] mother
              . . . needed a place to live and to move her furniture. The Court
              finds that the [Wife’s] mother . . . then moved in with [Wife],
              with the intent to live there at least for several months.
              [Wife’s] mother . . . had taken certain steps to formalize her
              move to [Wife’s] home. . . such as notifying the Post Office of
              a permanent change of address to the [Wife’s] home . . . . The
              Court further finds that when [Wife] was informed of this
              lawsuit, her mother moved out of her home but that the contract
              between the parties had already been breached. The Court finds
              that while this may be a harsh result, the MDA contained a
              contractual condition that only the children of [Wife] could
              move in with her without her forfeiting the alimony in futuro to
              which the [Husband] had agreed subject to the specific
              conditions listed.

              *                                 *                           *

              The Court also finds that there is no ambiguity in the alimony
              provision of the MDA. The Court further finds as a fact that the
              [Wife] intended for her mother to move in with her, although
              that intent changed in November 2011 when she realized that
              the move violated the terms of the MDA.

Based upon the foregoing findings, the trial court terminated Husband’s alimony obligation
“effective immediately and dating back to the date the Petition was filed.”

        Following entry of the trial court’s order, on April 30, 2013, Husband filed a motion
for immediate repayment of alimony overpayment, alleging that he had paid $34,000.00 in
alimony “[f]or the 17 months between the date [Husband] filed this action and when this
Court ruled in his favor. . . .” On the same day, Husband also filed a separate motion for
attorney’s fees. As the ground for attorney’s fees, Husband cited the parties’ MDA provision
“mandating that if either party had to return to court to enforce the terms of the Decree, that
party shall be awarded a judgment for the reasonable attorney fees he or she incurred as a
result.” This motion was supported by Husband’s attorney’s fee affidavit, which was
uncontested.

       On May 17, 2013, Wife filed a motion to alter or amend the judgment. The trial court
heard all pending motions on June 17, 2013. By order of June 21, 2013, the court denied
Wife’s motion to alter or amend based upon the “unambiguous language of the MDA and


                                              -4-
the full record in this case.” By the same order, the court granted both of Husband’s motions.
Husband was awarded judgment for $34,000.00 in alimony overpayment “between the date
[] the petition was filed and the ruling of the Court.” Husband was awarded attorney’s fees
and expenses in the total amount of $10,134.99 “pursuant to the agreed requirements of
§XVI of the MDA.” The trial court stayed the judgment pending appeal.

       Wife appeals. She raises four issues as stated in her brief:

              1. Whether the trial court erred in terminating the ex-husband’s
              alimony obligation.

              2. Whether the trial court erred in awarding the ex-husband his
              attorney’s fees and costs.

              3. Whether the ex-wife should have been awarded her
              attorney’s fees and costs at trial.

              4. Whether the ex-wife should be awarded her attorney’s fees
              and costs incurred on appeal.

       Because this case was tried by the court, sitting without a jury, we review the factual
determinations de novo upon the record with a presumption of correctness. Tenn. R. App. P.
13(d). Unless the evidence preponderates against the trial court’s findings, we must affirm,
absent error of law. Id. In order for the evidence to preponderate against the trial court’s
findings, it must support another finding of fact with greater convincing effect. Walker v.
Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000). No presumption of
correctness, however, attaches to the trial court’s conclusions of law and our review is de
novo. Blair v. Brownstone, 197 S.W.3d 681, 684 (Tenn. 2006) (citing Bowden v. Ward, 27
S.W.3d 913, 916 (Tenn.2000)). The interpretation of a written contract, including a marital
dissolution agreement, is a matter of law and this Court reviews such questions de novo
affording the trial court’s conclusions no presumption of correctness. Gray v. Estate of Gray,
993 S.W.2d 59, 63 (Tenn. Ct. App. 1998)

                            Termination of Alimony in futuro

      In her brief, Wife relies upon Tennessee Code Annotated Section 36-5-121(f), which
provides, in pertinent part, as follows:

              (f)(1) Alimony in futuro, also known as periodic alimony, is a
              payment of support and maintenance on a long term basis or


                                             -5-
              until death or remarriage of the recipient. Such alimony may be
              awarded when the court finds that there is relative economic
              disadvantage and that rehabilitation is not feasible, meaning that
              the disadvantaged spouse is unable to achieve, with reasonable
              effort, an earning capacity that will permit the spouse’s standard
              of living after the divorce to be reasonably comparable to the
              standard of living enjoyed during the marriage, or to the
              post-divorce standard of living expected to be available to the
              other spouse, considering the relevant statutory factors and the
              equities between the parties.

              (2)(A) An award of alimony in futuro shall remain in the court’s
              control for the duration of such award, and may be increased,
              decreased, terminated, extended, or otherwise modified, upon a
              showing of substantial and material change in circumstances.

              (B) In all cases where a person is receiving alimony in futuro
              and the alimony recipient lives with a third person, 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.

       Based upon the foregoing statute, Wife contends that the trial court should have
applied a rebuttable presumption as outlined at Tennessee Code Annotated Section 36-5-
121(f)(2)(B). Because Wife’s mother allegedly provided no additional support to Wife’s
household, Wife contends that alimony in futuro should not have been terminated based upon
Wife’s mother living with her. On the other hand, Husband contends, and the trial court
held, that the provisions of the MDA require the interpreting court to apply contract
principles. Because there is no ambiguity in the MDA language that when a “third person
not the Wife’s child, moves into the Wife’s residence,” and because Wife’s mother did, in
fact, move into Wife’s home, Husband contends that the trial court did not err in terminating
his alimony obligation on contract grounds.


                                             -6-
       In the case of Honeycutt v. Honeycutt, 152 S.W.3d 556 (Tenn. Ct. App. 2002), this
Court held that the alimony statutes were not applicable where the parties had agreed in an
MDA to terms different from those set out in the statues:

              In this particular case, we find T.C.A. § 36-5-101(a)(3)(A) and
              (B) inapplicable. This is a case of contract interpretation. Our
              review is governed by the plain language of the parties’ MDA.
              The MDA does not reference, cite, or incorporate this statute
              with regard to suspension or termination of Husband’s alimony
              obligations. Rather, the MDA explicitly provides for the
              termination of these obligations upon Wife’s death, remarriage,
              cohabitation with an unrelated male, her becoming qualified for
              receipt of Social Security benefits, or her reaching age 65,
              “whichever occurs first.”

Honeycutt, 152 S.W.3d at 564. We conclude that Honeycutt is controlling in this case
insofar as it requires the application of contract principles to MDAs, when the dispute
concerns an express condition regarding the termination of alimony contained in the MDA.
Therefore, the trial court did not err in interpreting the express condition placed on the
continued payment of alimony in futuro as a contract between these parties.

       It is well settled that an MDA is contractual in nature and is binding between the
parties; therefore, the interpretation of the MDA is “subject to the rules governing
construction of contracts.” Barnes v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006) (citing
Johnson v. Johnson, 37 S.W.3d 892, 896 (Tenn. 2001); Honeycutt, 152 S.W.3d at 561).
This Court has recognized that an MDA is a binding contract on the parties and that the
parties’ contractual rights vest upon the execution of the MDA:

              An MDA’s provisions pertaining to the division of the parties’
              marital estate are essentially contractual, even after they have
              been judicially approved and incorporated into a divorce decree.
              Johnson v. Johnson, 37 S.W.3d at 896; Wade v. Wade, 115
              S.W.3d 917, 924 (Tenn. Ct. App.2002); Gray v. Estate of Gray,
              993 S.W.2d 59, 63 (Tenn. Ct. App.1998). The parties may not
              unilaterally modify an MDA once it has been approved by the
              trial court. Johnson v. Johnson, 37 S.W.3d at 895.

Elliott v. Elliott, 149 S.W.3d 77, 84 (Tenn. Ct. App. 2004). As noted above, because “the
interpretation of a contract is a matter of law, our review is de novo on the record with no
presumption of correctness in the trial court’s conclusions of law.” Honeycutt, 152 S.W.3d


                                            -7-
at 561 (citations omitted).

       The “cardinal rule” of contract construction is to ascertain the intent of the parties and
effectuate that intent consistent with applicable legal principles. Frizzell Constr. Co. v.
Gatlinburg, LLC, 9 S.W.3d 79, 85 (Tenn. 1999). This principle is also applied when
interpreting an MDA:

              [O]ur goal is to ascertain and give effect to the parties’
              intentions. Ahern v. Ahern, 15 S.W.3d 73, 81 (Tenn. 2000). Our
              search for the parties’ intentions must focus on the MDA itself.
              Each provision of an MDA should be construed in light of the
              entire MDA, and the language in these provisions should be
              given its natural and ordinary meaning. We should construe
              MDAs fairly and reasonably, and we should avoid rewriting
              these agreements under the guise of “construing” them. Duvier
              v. Duvier, No. 01 A01-9311-CH-00506, 1995 WL 422465, at *3
              (Tenn. Ct. App. July 19, 1995) (No Tenn. R. App. P. 11
              application filed).

Elliott, 149 S.W.3d at 84. When the language of the MDA is plain and unambiguous, courts
determine the intent of the parties from the four corners of the contract and enforce its plain
terms as written. See Int’l Flight Ctr. v. City of Murfreesboro, 45 S.W.3d 565, 570 (Tenn.
Ct. App. 2000). If, however, the contractual terms are ambiguous and the parties’ intent
cannot be ascertained from simply reading the language, courts then apply established rules
of construction. Planters Gin Co. v. Federal Compress & Warehouse Co., 78 S.W.3d 885,
890 (Tenn. 2002). “A contract [or MDA] is ambiguous only when it is of uncertain meaning
and may fairly be understood in more ways than one.” Johnson, 37 S.W.3d at 896 (quoting
Farmers–Peoples Bank v. Clemmer, 519 S.W.2d 801, 805 (Tenn. 1975)). An MDA is not
ambiguous merely “because the parties may differ as to interpretations of certain of its
provisions.” Id. at 896 (quoting Cookeville Gynecology & Obstetrics, P.C. v. Southeastern
Data Sys., Inc., 884 S.W.2d 458, 462 (Tenn. Ct. App. 1994)).

       As in the Honeycutt case, here, the parties chose to include, in their MDA, a
suspensory condition, i.e., a “condition[ ] precedent that suspend[s] the operation of a
contractual promise [in this case, Husband’s promise to pay alimony]. . . .” Bryan A. Garner,
A Dictionary of Modern Legal Usage 862 (2nd ed. 1995). The language used, i.e., “until a
third person not the Wife’s child, moves into the Wife’s residence,” is not ambiguous, and
the parties’ choice to use this language in their agreement binds them to it. As discussed in
Honeycutt:



                                               -8-
              We further note that the parties freely chose to include in the
              MDA, as a condition for termination of alimony in futuro,
              Wife’s “cohabit[ation] with a man not related to her.”
              (emphasis added). If it was truly the intention of the parties to
              premise termination of Husband’s alimony payments upon
              Wife’s receipt of financial assistance from a cohabitor, we find
              no reason for the parties’ to elect to explicitly terminate alimony
              upon cohabitation with an unrelated male, and not upon
              cohabitation with any third party, such as family members or
              girlfriends. That said, we find that the parties explicitly
              contracted for the termination of Husband’s alimony obligations
              in the event Wife cohabits with an unrelated male, regardless of
              whether said male was providing Wife with financial assistance
              or support.

Honeycutt, 152 S.W.3d at 564. Because the parties here chose the suspensory condition,
and are thus bound by it, the only question is whether the evidence preponderates against the
trial court’s finding that Wife’s mother did, in fact, move into the Wife’s residence. If the
evidence supports the trial court’s finding, then the suspensory condition has been met, and
the trial court correctly held that Husband’s obligation to pay alimony ceased upon the
occurrence of that condition, i.e., Wife’s mother moving into Wife’s home.

       According to the record, Husband testified that in the late summer or early fall of
2011, he learned, from the parties’ adult children, that Wife’s mother had moved into Wife’s
home . Husband called Wife to express his condolences on the loss of her father and, during
that conversation, he testified that Wife admitted that her mother was living in her home:

              A. I called [Wife] to express my sorrow that her father ha[d]
              passed away. . . . And in the course of the conversation [Wife]
              started to tell me, well, you understand that Mom has moved in
              with me.

                      And I said, yeah, I’ve heard that through the kids.

                     And she said, it was only a matter of time. It just, you
              know, made sense to do it. And she is here with me now that
              Dad is gone.

       Wife testified that at the time she was served with the instant lawsuit, her mother
“was staying with me until we could find her a solution . . . [t]o her living conditions.” It is


                                              -9-
undisputed that Wife’s mother filed a permanent change of address form with the Post
Office:

              Q [to Wife]. So you’re aware that your mom sent in a change of
              address card, correct?

              A. I was, yes.

              *                            *                           *

              Q. Okay. And it was a permanent change of address card,
              wasn’t it?

              A. I guess whenever you do a change of address it is permanent.
              ...

              *                                *                           *

              Q. So you were getting her bills—her change of address
              changed everything to your home, right?

              A. Right.

Wife further testified that her mother moved some of her furniture into Wife’s home, and that
her mother stayed with her for approximately three months.

      The parties’ daughter, Ashton Leigh Sanders, was deposed during discovery. She was
unavailable to testify at the hearing; however, her deposition was admitted as Trial Exhibit
1. Therein, she testified, in relevant part, as follows:

              Q. At one point your grandmother was staying there [i.e., at
              Wife’s home], wasn’t she?

              A. Yes. . . . I don’t remember exactly when she moved in. I
              couldn’t give you dates of when she moved in or moved out. It
              wasn’t a very long period of time.

      Here, the only question is whether Wife’s mother “move[d] into Wife’s residence.”
Despite the fact that Wife’s mother eventually moved out of Wife’s residence, the evidence
supports a finding that Wife’s mother did “move[] into Wife’s residence” for a period of


                                            -10-
time. Wife’s mother’s stay at Wife’s residence was clearly not simply a visit: Wife’s mother
changed her permanent address to Wife’s address and moved not only her clothes, but also
some of her furniture to Wife’s residence. Thus, the fact that Wife’s mother eventually
moved out of her home after the filing of this lawsuit, and the question of whether Wife’s
mother provided any financial support to Wife are both irrelevant to the question of whether
the suspensory condition occurred. From the totality of the circumstances, and the record as
a whole, we cannot conclude that the evidence preponderates against the trial court’s finding
that Wife’s mother did, in fact, move into Wife’s home. Accordingly, the suspensory
condition was triggered and the trial court did not err in relieving Husband of his obligation
to pay alimony in futuro.

                                      Attorney’s Fees

       The parties’ MDA, at §XVI, further provides that:

              In the event it becomes reasonably necessary for either party to
              institute legal proceedings to procure the enforcement of any
              provision of this agreement, and if successful, he or she shall
              also be entitled to a judgment for reasonable expenses including
              attorney fees incurred in prosecuting the action.

       We review the trial court’s ruling on attorney’s fees under an abuse of discretion
standard. See, e.g., Owens v. Owens, 241 S.W.3d 478, 496 (Tenn. Ct. App. 2007). An abuse
of discretion occurs when a trial court’s “decision is not supported by the evidence, when it
applies an incorrect legal standard, [or] when it reaches a decision which is against logic or
reasoning that causes an injustice to the party complaining.” Id. at 501. This Court must
presume that the trial court’s discretionary decision was correct, and must consider the
evidence in the light most favorable to the decision of the trial court. Henderson v. SAIA,
Inc., 318 S.W.3d 328, 335 (Tenn. 2010). The abuse of discretion standard does not allow
this Court to substitute its judgment for that of the trial court. Williams v. Baptist Mem’l
Hosp., 193 S.W.3d 545, 551 (Tenn. 2006).

        The section of the parties’ MDA cited above mandates an award of attorney’s fees to
the successful party in a “reasonably necessary” proceeding to procure enforcement of the
MDA terms. Here, there is no indication that Husband’s petition was not reasonable,
especially in light of our holding above that the suspensory condition did occur. In addition,
Husband’s request for attorney’s fees was supported by the uncontested fee affidavit of his
attorney. It appears that the trial court applied the plain language of the MDA in awarding
Husband his fees, and we cannot find an abuse of discretion. Moreover, the amount of the
fees is supported by the record. Simply put, Husband, as the prevailing party is entitled to


                                             -11-
his attorney’s fees under the MDA; Wife, as the losing party, is not.

       Concerning Wife’s request for an award of attorney’s fees and costs associated with
this appeal, we note that the decision whether to award attorney’s fees on appeal is a matter
within the sole discretion of this Court. Hill v. Hill, No. M2006-02753-COA-R3-CV, 2007
WL 4404097, at *6 (Tenn. Ct. App. Dec. 17, 2007) (citing Archer v. Archer, 907 S.W.2d
412, 419 (Tenn. Ct. App .1995)). The parties’ MDA, as discussed above, provides for the
award of attorney’s fees to the prevailing party, which, in this case, is Husband. In light of
the clear language in the parties’ MDA, we respectfully deny Wife’s request to recoup her
fees and costs for this appeal.

       For the foregoing reasons, we affirm the trial court’s order, and remand for further
proceedings as may be necessary and are consistent with this Opinion. Costs of the appeal
are assessed to the Appellant, Gloria Denise Myrick, and her surety.




                                                    _________________________________
                                                    J. STEVEN STAFFORD, JUDGE




                                             -12-
