                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                January 23, 2013 Session

   KITTY FERN (DARDEN) SARTAIN v. MITCHELL CARL SARTAIN

             Appeal from the Chancery Court for Montgomery County
          No. MC-CH-CV-DI-07-50      Laurence M. McMillan, Chancellor


                 No. M2012-01603-COA-R3-CV - Filed June 27, 2013


This appeal arises from the second divorce between these parties. Husband and Wife were
married for nineteen years, divorced in 1997, and then married again for thirteen additional
years. In this second divorce, the trial court awarded Wife alimony in futuro and alimony in
solido in addition to 45% of Husband’s military retirement pay. As part of the first divorce
the trial court had awarded Wife 36% of Husband’s military retirement pay. Although
Husband retired in 2006, Wife had not received any portion of his retirement pay. Wife
requested the court in this second divorce award her the money she should have been paid
from the date of Husband’s retirement to the date of the second divorce. The trial court
declined to make that award. On appeal we affirm the trial court’s judgment awarding Wife
alimony in futuro and alimony in solido. We reverse the court’s judgment denying Wife the
portion of Husband’s retirement pay she had been awarded in the first divorce, and we
remand the case for a hearing on the issues surrounding the Survivor Benefit Plan.

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

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R. and R ICHARD H. D INKINS, JJ., joined.

Justin Sensing, Clarksville, Tennessee, for the appellant, Mitchell Carl Sartain.

Larry B. Watson, Clarksville, Tennessee, for the appellee, Kitty Fern (Darden) Sartain.

                                        OPINION

      Kitty Fern (Darden) Sartain (“Wife”) and Mitchell Carl Sartain (“Husband”) were
married for thirteen years when they were granted a divorce in 2012. This was their second
marriage to one another.1 The trial court awarded Husband the marital home and ordered
Husband to pay Wife one half of the equity in the home. The court awarded Wife 45% of
Husband’s retirement pay, alimony in futuro in the amount of $1,000 per month, and alimony
in solido in the amount of $5,000. The court also ordered Husband to designate Wife as the
recipient of Husband’s military Survivor Benefit Plan (“SBP” or the “Plan”), stating that
Husband “shall execute any documents to designate the Wife as said beneficiary. Any
previous waiver signed by Wife is set aside.”

        Husband filed a notice of appeal, arguing the trial court erred in the following ways:
(1) awarding Wife alimony in futuro; (2) awarding Wife alimony in solido; and (3) awarding
Wife Husband’s SBP Benefits. Wife raises an issue on appeal as well. Wife argues the trial
court erred by refusing to award her a judgment for 36% of Husband’s retirement pay that
she was awarded when the parties were divorced in 1997. Husband retired in 2006, and Wife
claims that 36% of Husband’s retirement pay constituted separate property that she was
entitled to receive from the date of Husband’s retirement until the date she was awarded 45%
of Husband’s retirement as a result of the second divorce.

                                      I. A LIMONY A WARDS

       The trial court awarded Wife alimony in futuro and alimony in solido, stating the
following from the bench at the end of the trial:

             The alimony component, the Court does find that Mrs. Sartain should
       be awarded the sum of $5,000 as alimony in solido, which are her attorney’s
       fees.

               And taking into account the statutory factors, to include the relative
       earning capacity, obligations, needs and financial resources of each party,
       certainly Mr. Sartain outweighs her in that regard. The relevant education and
       training of each party would be likewise. He has quite a bit more education
       and training than she does. The duration of the marriage; in this case, it being
       13 years approximately. The age and mental condition of each party, the
       physical condition of each party, the extent to which it would be undesirable
       for a party to seek employment outside the home, the separate assets of each
       party, the provisions made with regard to marital property, the standard of
       living of the parties, the extent to which each party has made tangible and
       intangible contributions, the relative fault of the parties and other factors, to

       1
        The parties’ first marriage lasted for nineteen years and ended in 1997, two years before they
remarried.

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        include tax consequences; the Court will award Mrs. Sartain the sum of $1,000
        per month as alimony in futuro, conditioned upon her death or remarriage.

        Our review on appeal of the trial court’s findings of fact is de novo with a
presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App. P.
13(d); Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn. 2006); Bogan v. Bogan, 60 S.W.3d
721, 727 (Tenn. 2001); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). We review
a trial court’s conclusions of law de novo, with no presumption of correctness. Whaley v.
Perkins, 197 S.W.3d 665, 670 (Tenn. 2006); Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993).

        Trial courts have “wide discretion in determining matters of spousal support.”
Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). This discretion extends to the
nature, the amount, and the duration of an award. Id. (citing Bratton v. Bratton, 136 S.W.3d
595, 605 (Tenn. 2004), Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001), and Crabtree
v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000)). A trial court’s decision regarding spousal
support is factually driven and involves the careful balancing of several factors. Gonsewski,
350 S.W.3d at 105. An appellate court is therefore disinclined to second-guess a trial court’s
spousal support decision and will limit its review to determining whether the trial court
abused its discretion. Id. (citing Robertson v. Robertson, 76 S.W.3d 337, 343 (Tenn. 2002)).
A trial court abuses its discretion if it applies an incorrect legal standard, reaches an illogical
result, resolves an issue based on a clearly erroneous assessment of the evidence, or relies on
reasoning that causes an injustice. Gonsewski, 350 S.W.3d at 105 (citing Wright ex rel.
Wright, 337 S.W.3d 166, 176 (Tenn. 2011) and Henderson v. SAIA, Inc., 318 S.W.3d 328,
335 (Tenn. 2010)). An appellate court is not to substitute its judgment for that of the trial
court where reasonable minds can disagree about the propriety of the trial court’s decision.
Jackman v. Jackman, 373 S.W.3d 535, 541-42 (Tenn. Ct. App. 2011) (citing Myint v. Allstate
Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998) and Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001)).

        A. Alimony in Futuro

       Husband contends the trial court abused its discretion in awarding Wife alimony in
futuro in light of the court’s award to Wife of 45% of Husband’s retirement pay,2 Wife’s




       2
        The evidence introduced at trial showed that Wife’s portion of Husband’s retirement pay would be
approximately $2,200 per month until July 2014 and then about $2,800 per month thereafter.

                                                  -3-
award of half the equity in the marital home,3 and Wife’s ability to earn a living.

       In determining whether an award of support and maintenance is appropriate, and in
determining the nature, amount, length of term, and manner of payment, the court is to
consider factors specified in Tenn. Code Ann. § 36-5-121(I). Among those are relative
earning capacity and financial resources of the parties, relative education and training of
each party, duration of the marriage, and the standard of living during the marriage. Also
relevant, as Husband asserts, are the separate assets of each party and the marital property
awarded to each.

      Tennessee law recognizes several different types of spousal support. Tenn. Code
Ann. § 36-5-121. Alimony in futuro is intended to provide long-term support to an
economically disadvantaged spouse when rehabilitation is not feasible:

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

Tenn. Code Ann. § 36-5-121(f)(1).

        The parties were married most recently for 13 years, and prior to this marriage the
parties were married for 19 years. Thus, by the time the parties were divorced in 2012, they
had been married for 32 of the prior 34 years. During a majority of the time the parties were
married, Wife took care of the home and family needs while Husband worked and supported
the family financially.

      The evidence showed that Husband retired in 2006 from the military as a full colonel.
He has two bachelor degrees and is just a few classes shy of earning his master’s degree.
Husband earns in excess of $14,000 per month. Husband’s monthly expenses are about
$4,360.


       3
          The trial court valued the marital home at $161,500 and determined that Wife’s one-half equity
interest was $23,175.50, which amount Husband was ordered to pay by April 30, 2013.

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       Wife has an associates degree in interior design and is not currently employed. She
worked for less than two years during the parties’ second marriage and testified she did not
work more because Husband did not want her to work. Wife has suffered health problems
over the past six years and testified that she is depressed as a result of Husband’s demeaning
treatment of her. Wife introduced evidence that her monthly expenses total about $3,820.

        In making its award of alimony, the trial court considered the parties’ relative earning
capacities, financial resources, education, training, mental and physical conditions, the
duration of the marriage, and the extent to which each party contributed to the marriage. The
most important factors are Wife’s need and Husband’s ability to pay. Bratton v. Bratton, 136
S.W.3d at 604. Husband does not deny his ability to pay Wife $1,000 per month. Given the
trial court’s wide discretion in determining the type and amount of spousal support to award,
we find the evidence does not preponderate against the trial court’s award and that the trial
court did not abuse its discretion in awarding Wife $1,000 per month of alimony in futuro.
Accordingly, we affirm the trial court’s judgment in this regard.

       B. Alimony in Solido

        An award of attorney’s fees in the context of a divorce constitutes alimony in solido
that is payable in one lump sum. Riggs v. Riggs, 250 S.W.3d 453, 459, n.3 (Tenn. Ct. App.
2007); Kinard v. Kinard, 986 S.W.2d 220, 235 (Tenn. Ct. App. 1998). As with other types
of alimony, a trial court should consider the relevant factors set out in Tenn. Code Ann. § 36-
5-121(I) in determining whether an award of alimony in solido is warranted. Riggs, 250
S.W.3d at 459. The decision to award alimony in solido lies within the sound discretion of
the trial court judge, however, and we will not interfere with the trial court’s decision unless
the evidence preponderates against it. Kinard, 986 S.W.2d at 236.

       When Wife was asked at trial whether she had money to pay her attorney, she
responded “No.” To demonstrate her entitlement to attorneys’ fees, Wife was not required,
as Husband suggests, to prove that he prolonged the divorce proceedings. As with other
types of alimony, the need of Wife and the ability of Husband to pay are the primary
considerations. Husband has not shown the trial court abused its discretion in awarding Wife
alimony in solido or that the evidence preponderates against the trial court’s award. We
therefore affirm the trial court’s award of alimony in solido to Wife in the amount of $5,000.

                           II. S URVIVOR B ENEFIT P LAN A WARD

      The SBP is a federal benefit that provides an annuity to a military retiree’s spouse,
former spouse, or dependent child following the retiree’s death, and is governed by federal
law. See generally 10 U.S.C. § 1448(a)(1)(A)-(2)(A). Tennessee law treats survivorship

                                              -5-
benefits as marital property. Stiel v. Stiel, 348 S.W.3d 879, 891-92 (Tenn. Ct. App. 2011).
As part of its division of the parties’ marital property in this divorce, the trial court awarded
Wife SBP benefits by ordering Husband to designate Wife as the SBP beneficiary.

        The federal law governing SBP provides that participation is automatic unless the
individual entitled to military retirement pay elects not to participate. An individual who is
married when he or she retires cannot opt out of the Plan without the concurrence of the
individual’s spouse. 10 U.S.C. § 1448(a)(3)(A)(I). If an individual then elects to opt out
of the Plan, that election is irrevocable after the date when the individual first becomes
entitled to retirement pay. 10 U.S.C. § 1448(a)(4)(A). Opting out of SBP increases the
amount of the retiree’s monthly retirement pay.

       Husband retired in September 2006 and began to receive his retirement pay at that
time. Husband did not testify about whether he formally elected to opt out of the Plan before
he became eligible to receive his retirement pay. A document called “Retiree Account
Statement” was marked as an exhibit at trial, and in the section “Survivor Benefit Plan (SBP)
Coverage” is the following sentence: “No SBP election is reflected on your account.”
However, no testimony was provided to explain the document or the particular notation on
it. Consequently, we do not know if this language means (a) Husband elected to opt out of
the Plan or (b) Husband made no election to opt out of the Plan and is, therefore, still a
participant in the Plan.

       Wife testified at trial that during the parties’ first divorce she signed a paper waiving
her rights to receive SBP payments in exchange for Husband’s promise to name her as the
sole beneficiary on his Veterans’ Group Life Insurance (“VGLI”), which she testified has a
value of $400,000. Wife testified that Husband did not follow through on his promise,
however, and named Husband’s mother instead of Wife as the sole beneficiary on his VGLI
policy.4

        The question of whether Husband in fact opted out of the Plan before he began
receiving his retirement payments is relevant to the efficacy of the trial court’s order that
Husband designate Wife as the SBP beneficiary. According to the language of the federal
statute, that election may have become irrevocable.

       Because we cannot speculate as to how the trial court’s other awards might have been
affected by the unenforceability of its order regarding the SBP, we remand this case back to


        4
          Wife testified that only after Husband’s mother died did Husband change the beneficiaries, but it
is not clear whether Wife is currently listed as a beneficiary, whether the parties’ children are listed as
beneficiaries, or whether Wife and the children are listed as beneficiaries on Husband’s life insurance policy.

                                                     -6-
trial court with directions that the court consider additional proof to determine (1) whether
Husband has irrevocably opted out of the Plan and (2) whom Husband has named as the
beneficiary(ies) on his VGLI policy. The trial court may then, based upon that evidence,
make an appropriate ruling.

             III. R ETIREMENT P AY A WARDED TO W IFE I N E ARLIER D IVORCE

        When the parties were first divorced in 1997, the trial court awarded Wife 36% of
Husband’s retirement pay,5 which was to become payable when Husband retired from the
military. Husband retired in 2006 and began receiving his retirement pay. Wife has not
received any portion of the retirement pay. Wife asked the trial court in this case to award
her the amount she was entitled to receive from the date of Husband’s retirement in 2006
through the date of the parties’ second divorce. The trial court denied this request, stating
the following in its Final Decree of Divorce:

               4. The Wife was previously awarded Thirty Six percent (36%) of the
        Husband’s retirement from the military. She is not to receive that portion and
        an additional portion from this divorce. This new award is cumulative of both
        the previous marriage percentage and this marriage and her total award for
        both marriages is 45%.

                5. There is no award to the Wife for portions of the military retirement
        that the Wife claims the Husband did not pay to her between the last divorce
        and this marriage and divorce so the Wife’s request for back pay is denied.

        Wife contends the trial court erred in refusing to award her this portion of Husband’s
retirement pay, arguing that the 36% award constitutes “separate property” to which she is
entitled, regardless of the parties’ later decision to get remarried in 1999. Wife relies on
Hurst v. Hurst, 2001 WL 456063 (Tenn. Ct. App. April 30, 2001), in support of her
argument. The parties in Hurst were married and divorced twice, as Wife and Husband were
here. When the trial court granted the Hursts their first divorce in 1991, it awarded Ms. Hurst
one-half of Mr. Hurst’s retirement benefits, one-half of the amount Mr. Hurst received from
a profit-sharing program, and some stock pursuant to a marital dissolution agreement the
parties presented to the court. Id. at *1. Ms. Hurst never received any of these assets. Mr.
and Ms. Hurst then remarried for a second time in 1992, and after they were divorced in 1997


        5
          The record does not contain any orders from the parties’ first divorce, but Wife testified she was
awarded 36% of Husband’s retirement pay as part of the parties’ initial divorce. Husband acknowledged in
his pre-trial brief that the parties entered into a Marital Dissolution Agreement (“MDA”) as part of the first
divorce and that the MDA provided Wife would receive 36% of his military retirement.

                                                     -7-
Ms. Hurst filed a complaint seeking an award of the property she was awarded from the first
divorce. Id. Ms. Hurst argued that the final decree of divorce was just like any other
judgment that can be satisfied when one party obtains a judgment against another party. Id.
at *2.

         The trial court denied Ms. Hurst’s request on the basis that “the original divorce
decree was compromised and settled by the parties’ subsequent remarriage and re-divorce
. . . almost like a novation of a contract.” Id. at *2. The Court of Appeals reversed the trial
court’s judgment on the basis that the MDA dividing the marital property constituted a
contract, and Ms. Hurst had the contractual right to the property described in the MDA,
regardless of the parties’ subsequent marriage and divorce. Id. at *4. The Court of Appeals
also found that the property Ms. Hurst was awarded as part of the first divorce became
“separate property” upon entry of the decree approving the MDA:

       The property awarded to Ms. Hurst in MDA # 1, more specifically, one-half
       of the Alcoa Retirement Plan, one hundred percent (100%) of the stock at
       Merrill Lynch, and one-half of all sums received by husband from Alcoa Profit
       Sharing Program became the separate property of Ms. Hurst upon the
       execution of MDA # 1. Mr. and Ms. Hurst signed an MDA which is a legal
       binding contract. The property at issue then became separate property Ms.
       Hurst brought into her second marriage. It is irrelevant that it was Mr. Hurst
       that Ms. Hurst married following her first divorce. Had Ms. Hurst married Mr.
       Hurst following a divorce from someone other than Mr. Hurst, there would be
       no argument as to whom the property she received from her first divorce
       belonged. An argument that Ms. Hurst somehow waives her right to property
       that became hers in her first divorce simply because she married the same man
       twice is without merit.

Id. at *6.

       Applying that holding to the facts herein, we agree with Wife that the award to her
from the parties’ first divorce of 36% of Husband’s retirement pay, whenever he started
drawing it, became her separate property when the parties divorced in 1997. Husband had
signed an enforceable contract to pay Wife that amount upon his retirement, and that
obligation was never canceled. As the court in Hurst pointed out, had Wife herein married
someone else after the parties’ first divorce, Husband would have been required to pay her
the percentage of his retirement pay that he had agreed to, and that he had been ordered to
pay.

       Husband contends the trial court properly denied Wife an award of this 36% because

                                              -8-
Husband paid Wife alimony pendente lite from 2009 until the time of trial. As explained
above, this 36% award constituted separate property awarded as part of the first divorce. It
was not alimony, nor did it substitute for Husband’s obligation to pay support during the
pendency of the second divorce.




        Additionally, Husband does not disagree that the 36% award to Wife became her
separate property in 1997, but he contends Wife has waived her rights to this money by
failing to take any steps to enforce her rights to receive these funds. Husband relies on
Richmond v. Richmond, 2012 WL 1594280 (Tenn. Ct. App. May 7, 2012), to support his
argument.6 The parties in Richmond were divorced in 1999, and the wife was awarded one-
half of the husband’s military retirement pay up until the date of divorce when the husband
retired at some then unknown time in the future. The husband retired in 2010, and the wife
filed a motion the following year to clarify the amount of his retirement pay she was to
receive. Id. at *1. The trial court determined that the wife was entitled to 42.5% of the
husband’s retirement pay and that the husband was required to pay her the amount that had
accrued from the date of his retirement in 2010 through June 2011, which was when the trial
court ruled on the wife’s motion. Id.

        On appeal the husband contended the trial court erred in awarding the wife the amount
he should have paid pursuant to the earlier judgment. He argued she had waived her right
to receive this portion of his retirement pay because she waited twelve years to complete the
paperwork necessary to receive this money. Id. at *3. The Court of Appeals rejected the
husband’s argument and upheld the trial court’s judgment because it found no evidence in
the record to suggest the wife intended to disclaim her share of the husband’s retirement. Id.
at *3-4. The court noted that there was nothing to collect until 2010, when the husband
retired, which was just one year before the wife filed her motion to clarify the amount she
was entitled to receive. Id. at *4.

        In this case Husband retired on September 30, 2006. The parties were still married,
but the evidence showed that they were living separately during this time. Wife filed her
complaint seeking a divorce in January 2007. Wife testified during the trial that Husband
retired in 2006, but she was not asked when she became aware that he had retired, and
Husband did not testify that he informed Wife of his retirement at any time.


        6
         Even though the Richmond court concluded the wife did not waive her rights to receive the
husband’s retirement benefits, Husband argues the result should be different here because Wife waited for
longer than a year after Husband retired to request the 36% she was awarded in the first divorce.

                                                  -9-
       Waiver is a voluntary relinquishment or renunciation of some right, a
       foregoing or giving up of some benefit or advantage, which, but for such
       waiver, [s]he would have enjoyed. It may be proved by express declaration;
       or by acts and declarations manifesting an intent and purpose not to claim the
       supposed advantage; or by a course of acts and conduct, or by so neglecting
       and failing to act, as to induce a belief that it was his intention and purpose to
       waive.

Baird v. Fidelity Phenix Fire Ins. Co., 162 S.W.2d 384, 389 (Tenn. 1942) (quoted with
approval by Reed v. Washington Cnty. Bd. of Educ., 756 S.W.2d 250, 255 (Tenn. 1988)). If,
on the other hand, an individual does not know of her rights, or if she fails to understand
them, she cannot waive those rights. Faught v. Estate of Faught, 730 S.W.2d 323, 326
(Tenn. 1987).

       In the absence of evidence showing Wife voluntarily relinquished her rights to the
36% of Husband’s retirement she was awarded in the first divorce, we conclude Wife has not
waived her rights to this money. We remand this issue to the trial court to calculate the
amount accrued for the period starting from the date of Husband’s retirement in 2006 until
the Final Decree was entered in this case.

                                      IV. C ONCLUSION

        We affirm the trial court’s judgment awarding Wife alimony in futuro in the amount
of $1,000 per month and alimony in solido in the amount of $5,000. We remand the case to
the trial court for additional evidence to determine whether or not Husband has opted out of
the federal SBP program and/or complied with the life insurance beneficiary obligation and
for rulings based on that evidence. The trial court shall also calculate the amount of
Husband’s retirement pay that she should have received from Husband’s retirement from the
date of Husband’s retirement to the time when Wife began receiving 45% of these benefits
and enter a judgment in that amount to Wife.

       Costs of this appeal are taxed to Mitchell Carl Sartain for which execution may issue
if necessary.




                                                           ____________________________
                                                           PATRICIA J. COTTRELL, JUDGE




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