               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               February 1, 2011 Session

               CAROL D. DAVIS v. KOLO LYNN DAVIS, ET AL.

                Appeal from the Chancery Court for Bradley County
                     No. 93-293 Jerri S. Bryant, Chancellor




              No. E2010-00958-COA-R3-CV-FILED-AUGUST 30, 2011




In this post-divorce case, Kolo Lynn Davis (“Husband”) appeals the trial court’s
classification of an agreement to maintain health insurance through his company, Cleveland
Building Materials (“CBM”), as alimony in futuro. Husband and Carol D. Davis (“Wife”)
were married in 1964 and divorced in 1995. Pursuant to the mutual agreement of the parties,
Wife was given the option of maintaining health insurance through CBM. In furtherance of
this agreement, Wife was given a paid position as a non-voting member of CBM’s board of
directors, which allowed her to maintain health insurance through CBM. Wife was tasked
with reimbursing CBM for all costs associated with the health insurance coverage. Husband
later sold CBM to Kolo Lynn Davis, II (“Son”). Son, through CBM, continued to pay Wife
for her services as a board member. In 2005, CBM discontinued its group health insurance,
thereby removing Wife from the plan and ceased paying Wife for her services as a board
member. Wife filed suit, naming Husband and CBM as parties. Following a hearing, the
trial court classified the payments from CBM as alimony in futuro, held Husband personally
liable for CBM’s non-payment, and instructed Husband to continue with future payments
pursuant to the agreement. Husband appeals. We reverse the decision of the trial court.

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

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and D. MICHAEL SWINEY, J., joined.

H. Franklin Chancey, Cleveland, Tennessee, for the appellant, Kolo Lynn Davis.

Eric S. Armstrong, Cleveland, Tennessee, for the appellee, Carol D. Davis.
Shari Tayloe Young, Cleveland, Tennessee, for the appellee, Cleveland Building Materials,
Inc.

                                        OPINION

                                   I. BACKGROUND

        Pursuant to the mutual agreement of the parties that was entered April 23, 1996, nunc
pro tunc September 11, 1995, Husband and Wife agreed to the division of various properties,
vehicles, and other items. Wife obtained the property at which Century 21, Davis Real Estate
was operating. Wife agreed to lease the property for three years to Husband, who would, in
turn, pay her each month. In addition, Husband agreed to give Wife a lump-sum cash
payment of $50,000 and to pay her $540,000 in equal installments of $3,000 per month for
180 months. The $540,000 payment was secured by a trust deed in which Husband pledged
property equal to the unpaid amount, with the understanding that as Husband paid the
monthly amounts, the security interest in the property would correspondingly decrease. The
parties crafted the portion of the agreement at issue in this case, which provided,

       FURTHER ORDERED that [Wife], shall be designated a non-voting member
       of the Board of Directors of [CBM] and for her services shall receive the sum
       of $342.00 per month, said amount to be fixed and not subject to increase or
       decrease. [Wife] may, at her cost, maintain health insurance coverage through
       [CBM’s] group policy provided that she reimburses [CBM] on a monthly
       basis, any amounts which [CBM] incurs by way of premium for her coverage.
       In the event [Wife] elects not to maintain her health insurance through [CBM],
       she shall forfeit her position as a non-voting director as well as all benefits
       therefrom. Nothing herein contained will prevent [Husband] from selling or
       disposing of his stock or the business interest in [CBM], nor taking any other
       action, including liquidation of said company.

Husband and Wife also agreed that “neither party shall be responsible for the payment of
spousal support to the opposite party.”

       The health care portion of the agreement was crafted because at the time of the
divorce, Wife suffered from lupus and related health care problems that necessitated her
maintaining health insurance coverage. The monthly health insurance premiums exceeded
the $342 that Wife received from CBM. Therefore, after Wife received her payment from




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CBM in the amount of $342, she would then send the total monthly premium to CBM’s
group health insurance carrier, Guardian Insurance Company (“GIC”).1

        This arrangement continued until early 2005, when CBM informed Wife that she had
been released from the group health insurance because GIC was no longer providing health
insurance coverage. Wife then obtained health insurance through a policy available to her
husband, Joseph Richard Schultz. When Mr. Schultz retired in 2006, Wife remained covered
under COBRA until July 31, 2008. Wife attempted to obtain health insurance through other
avenues but was denied full coverage because of her pre-existing medical conditions. Wife
filed suit on February 6, 2008, naming Husband and CBM as parties.

       At the hearing held on February 24, 2010, Wife testified that “before her health
insurance coverage was discontinued, she made her premium payments in a timely manner.”
She said that she did not know that Husband sold CBM to Son and that she continued to
receive the monthly payments after Husband sold CBM. She considered the monthly
premium payments to be Husband’s obligation.

       Husband testified that at the time of the divorce, he was “president and sole
stockholder” of CBM and that following the divorce, he sold 51 percent of his interest in
CBM to Son on October 14, 1999. In 2003, he sold the remaining 49 percent of his interest
in CBM to Son. After he sold 51 percent of his interest, he “exercised no control over the
business functions of [CBM].” He said that CBM kept Wife insured on the group health
insurance plan and made the premium payments. He said that he considered the monthly
payments to be CBM’s obligation, not his, and that his obligation was to pay Wife $3,000
per month for 180 months.

       Son testified that Husband did not play an active role in the company after Husband
sold him 51 percent of CBM. He said that CBM continued to pay Wife until March 2005,
when CBM stopped carrying health insurance through GIC. He said that he told Husband
that CBM would no longer pay Wife and that Husband needed to pay Wife because it was
Husband’s obligation, not CBM’s. He explained that CBM had “struggled through a
business downturn” and that he did not feel comfortable “being stuck in the middle between
his parents.”




1
 Approximately one year after the entry of the judgment evidencing the agreement between the parties, Wife
filed suit, alleging that Husband had failed to make his March and April $3,000 monthly payments.
Apparently, Husband had been off-setting the difference between the $342 and the total health insurance
premium payment that Wife had failed to make. Husband and Wife resolved the dispute amicably, and a
judgment was entered evidencing the compromise and settlement.
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       Schansa Lee Davis, Son’s wife, testified that she “managed the books” for CBM. She
said that CBM paid Wife until March 2005, when it learned that GIC would no longer
provide health insurance in the local area. She explained that the “cost of obtaining other
health insurance had become cost prohibitive” for CBM and that she informed Wife of the
changes.

        Following the hearing, the trial court found that the monthly payment of $342 was
alimony in futuro “because it was a specific monthly payment that had no set termination
date.” The court also found that Husband, as president and sole owner of CBM, had the
authority to bind CBM to this obligation and that because Husband “did not sign the Final
Decree in his capacity as President and sole owner of [CBM], he is personally responsible
for the nonpayment of this sum from March, 2005 through February, 2010 and a judgment
for $20,520.00 should enter accordingly.” The court further found that Husband was
“responsible for the continuing payment of the sum of $342.00 per month, due and payable
a the beginning [o]f each month pursuant to the terms of the final decree of divorce.”

                                        II. ISSUES

       We consolidate and restate the issues raised by Husband as follows:

       A. Whether the trial court erred in classifying the payments from CBM as
       alimony in futuro.

       B. Whether the trial court erred in holding Husband personally liable for
       CBM’s non-payment and all future payments.

       C. Whether the trial court erred in concluding that Wife was entitled to
       alimony in futuro in the form of health insurance coverage when Wife had
       remarried and obtained insurance through her current spouse.

Wife also raised an issue for our consideration:

       D. Whether the trial court should have awarded her attorney fees because she
       was the prevailing party at trial.

                            III. STANDARD OF REVIEW

       On appeal, the factual findings of the trial court are accorded a presumption of
correctness and will not be overturned unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d). The trial court’s conclusions of law are subject to a de novo review

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with no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn.
2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Mixed
questions of law and fact are reviewed de novo with no presumption of correctness; however,
appellate courts have “great latitude to determine whether findings as to mixed questions of
fact and law made by the trial court are sustained by probative evidence on appeal.” Aaron
v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995).

                                     IV. DISCUSSION

                                              A.

       Husband and Wife contend that the trial court erred in classifying the monthly
payments from CBM as a form of alimony in futuro. Husband relates that their agreement
regarding health insurance was not a personal liability but was a good faith concession to
provide Wife with the option of obtaining insurance through CBM in exchange for her
services as a non-voting board member. Wife relates that the payments, unlike alimony in
futuro, could not be modified and were not subject to end upon her death or remarriage.
CBM responds that the trial court did not err in classifying the payments as alimony in futuro
because even though the payments were funneled through CBM, the agreement was for
Husband to provide Wife with an avenue by which to maintain health insurance.

       “Alimony” is defined, in pertinent part, by Black’s Law Dictionary, 9th ed., as

       [a] court-ordered allowance that one spouse pays to the other spouse for
       maintenance and support . . . after they are divorced. Alimony is distinct from
       a property settlement.

Tennessee recognizes four different types of alimony: rehabilitative alimony, transitional
alimony, alimony in futuro, and alimony in solido. The type of alimony that is arguably at
issue in this case, alimony in futuro, is a long term form of spousal support that is typically
awarded when a spouse is economically disadvantaged and 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.




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Tenn. Code Ann. § 36-5-121(f)(1). Awards of alimony in futuro “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.” Tenn. Code Ann. § 36-5-121(f)(2)(A).

        We must first note that the court had the authority to order Husband “to pay the
premiums for insurance insuring the health care costs of the other party, in whole or in part,
for such duration as the court deems appropriate.” Tenn. Code Ann. § 36-5-121(k). In
contrast to an award of alimony in futuro or the court’s direct order to pay health insurance
premiums, the agreement at issue here was created to provide Wife with the option of paying
for health insurance through CBM because of her pre-existing medical conditions. Wife was
tasked with reimbursing CBM for the deficit between the monthly payment she received for
her services and the total monthly premium amount. While this portion of the agreement had
no set termination date, the agreement was terminable by Wife at any time and by Husband
upon the sale of his stock or business interest or if the company was liquidated. Wife could
elect to obtain health care coverage elsewhere, thereby forfeiting her position as a non-voting
board member and the compensation for that position. Likewise, Husband maintained his
right to sell his interest in CBM or liquidate CBM, thereby removing Wife from CBM’s
health insurance coverage and her position as a non-voting board member. The parties
agreed that the amount of the payments made to Wife by CBM were not subject to change
by either party. We believe that the agreement between the parties is more aptly
characterized as a good faith concession on the part of Husband to provide Wife with an
avenue in which to seek health insurance for the time being and is properly designated as a
part of the parties’ division of marital property. When Husband sold his interest in the
company, Husband was no longer tasked with providing Wife with an avenue in which to
seek health insurance. Accordingly, we conclude that the trial court erred in classifying this
agreement as alimony in futuro and holding Husband liable for CBM’s non-payment and all
future payments.

                                              B.

        Husband contends that he was not personally liable for the $342 monthly payments
because CBM ratified his agreement to provide Wife with a position on the board and the
commensurate compensation. Wife responds that she may collect from either Husband or
CBM because CBM ratified Husband’s agreement with Wife. CBM responds that it was not
liable for the non-payment or any future payments because the agreement was between
Husband and Wife, not CBM and Wife. CBM relates that Husband did not bind the company
because Husband did not sign the agreement in his corporate capacity and that CBM, through
Son, continued the payments to Wife out of respect for the familial relationship between Son
and Wife, not as an act of ratification.

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       While Husband, as president and owner of CBM, had the authority to bind CBM to
an employment contract with Wife, the agreement before us cannot be characterized as such.
Husband and Wife crafted the agreement to equitably divide the marital estate while ensuring
that Wife was able to maintain health insurance for the time being because of her medical
condition. Following the divorce, Wife remarried and had other health insurance options
available to her. Moreover, the agreement was not of a binding nature because it was merely
a good faith concession to provide the option of health insurance that was terminable by Wife
without limitation and terminable by Husband under certain circumstances. Neither Husband
nor CBM could be tasked with indefinitely providing Wife with health insurance because the
agreement itself belied this result. Accordingly, we conclude that Wife cannot recover
payments from CBM.

                                              C.

        Having concluded that Husband’s good faith concession to provide an avenue in
which to provide health insurance for Wife was not alimony in futuro, we will not address
the issue as to whether the trial court erred in concluding that Wife was entitled to alimony
in futuro in the form of health insurance coverage when Wife had remarried and obtained
insurance through her current spouse.

                                              D.

        Wife contends that as the prevailing party at trial, the trial court should have awarded
her attorney fees. “A party who prevails in the trial court but loses on appeal is no longer the
prevailing party.” Donald F. Bradford v. James W. Sell, No. E2008-02424-COA-R3-CV,
2009 WL 3103814, at *7 (Tenn. Ct. App. Sept. 29, 2009) (citing Progressive Casualty Ins.
Co. v. Chapin, 243 S.W.3d 553, 562 (Tenn. Ct. App. 2007)). If Wife had been awarded
attorney fees at trial, reversal of that award on appeal would be appropriate. Id.
Accordingly, we uphold the trial court’s denial of attorney fees.

                                     V. CONCLUSION

       The judgment of the trial court is reversed, and the cause is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellee, Carol D.
Davis. Wife has asked this court to award her appellate attorney fees. Wife was not the
prevailing party on appeal; therefore, we will not award her appellate attorney fees. Id.

                                            ______________________________________
                                            JOHN W. McCLARTY, JUDGE



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