                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    October 1, 2004 Session

        GARY DEWAYNE FINN v. MARY LOUISE SUMMER BUNDY

                     Appeal from the Chancery Court for Sumner County
                          No. 96D-216    Tom E. Gray, Chancellor



                   No. M2003-01368-COA-R3-CV - Filed February 22, 2005


This appeal involves enforcement of a divorce decree incorporating a marital dissolution agreement
and the obligation of a parent to support a child beyond the child’s majority in certain circumstances.
The trial court determined that the former husband’s alimony obligation had terminated upon the
payment of the entire amount of alimony in solido created in the order and MDA. The court also
held that the father had a continuing obligation to support his adult son because the son was disabled.
We affirm both holdings.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM B. CAIN , and FRANK
G. CLEMENT , JR., JJ., joined.

M. Allen Ehmling, Gallatin, Tennessee, for the appellant, Mary Louise Summer Bundy.

Clark Lee Shaw, for the appellee, Gary Dewayne Finn.

                                              OPINION

        These parties were divorced by order entered September 11, 1996, and the final decree
approved and incorporated a marital dissolution agreement. The wife was given custody of the
parties’ two minor children, and the husband was ordered to pay child support. The instant
proceedings began with the September 24, 2002, filing by Mr. Finn of a petition to terminate child
support and alimony and was concluded with the trial court’s final order entered May 5, 2003. Ms.
Bundy, the former wife, appeals the trial court’s termination of alimony. Mr. Finn, the former
husband, appeals the court’s holding that he must continue to pay support for the parties’ adult
disabled child. We begin with the issue of child support.
                                          I. CHILD SUPPORT

        In his petition, Mr. Finn alleged that both of the parties’ children had reached the age of
eighteen and graduated from high school and, as a result, he should be relieved of his obligation to
pay child support. There is no dispute that the parties’ older child, Mary Ann, born March 19, 1982,
had reached the age of majority, graduated from high school, and was married at the time of the
hearing. The trial court held that Mr. Finn’s obligation to pay support for this child had terminated.
No appeal is taken from this holding.

       The parties’ younger child, Gary Dewayne Finn II, was born August 23, 1983; thus, he turned
eighteen in August of 2001. Mr. Finn alleged this child had graduated from high school in May of
2002 and asked to be relieved of child support retroactive to that date.

       Ms. Bundy responded that the parties’ son Dewayne was disabled, unable to care for himself,
continued to live with and was dependent upon his mother, and, consequently, the need for child
support was continuing. She alleged that Dewayne was entitled to continuing support from his father
pursuant to Tenn. Code Ann. § 36-5-101(p) and asked the court to set an appropriate amount of
support for Dewayne.

        After the hearing, the trial court found that the parties’ son was a mentally challenged adult
whom both parties had an obligation to support beyond age eighteen. The court set the father’s
monthly support obligation at $331.80 per month.1 On appeal Mr. Finn concedes that his son has a
physical or mental impairment that substantially limits one or more major life activity. However, he
argues that Dewayne is not so severely disabled as to require the father to pay support for an indefinite
future.

       Mr. Finn’s argument is based on the difference between the two provisions of Tenn. Code
Ann. § 36-5-101(p):

       (p)(1) Except as provided in subdivision (p)(2), the court may continue child support
       beyond a child’s minority for the benefit of a child who is handicapped or disabled,
       as defined by the Americans with Disabilities Act, until such child reaches twenty-one
       (21) years of age.

       (2) Provided, that such age limitation shall not apply if such child is severely disabled
       and living under the care and supervision of a parent and the court determines that it
       is in the child’s best interest to remain under such care and supervision and the obligor
       is financially able to continue to pay child support. In such cases, the court may




       1
           The amount is not at issue.

                                                  -2-
           require the obligor to continue to pay child support for such period as it deems in the
           best interest of the child.2

        Essentially, Mr. Finn argues that, although his son may meet the requirements of subpart (1),3
support under that provision is limited in duration,4 and that Dewayne is not severely disabled so as
to qualify for continuing support under subsection (2). The trial court did not use the language of
either subpart (1) or (2), but clearly held that the son was handicapped and that the father had a
continuing obligation to support his handicapped child. Implicit in this holding is a finding that the
parties’ son was severely disabled. Because the trial court did not make specific findings of fact about
the son’s situation, we review the facts in the record under a purely de novo review. In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002). Issues of law are reviewed de novo. Id. The record does not
include a transcript of the hearing, but does include a statement of the evidence.5

        Ms. Bundy testified that Dewayne lives with her and she provides his daily care. The parties’
adult daughter also testified that she helps her mother with Dewayne’s care. Both had extensive
personal knowledge of Dewayne’s condition and capabilities. Mr. Finn testified that he had not
visited or seen Dewayne for several years. Therefore, he had no personal knowledge of Dewayne’s
daily activities or needs.

       Several evaluation reports on Dewayne were introduced and are included in the record before
us. From these reports, we learn that he has had serious medical problems since his premature birth,
including spina bifida with encephalopathy, cerebral palsy, hydrocephalus, myelodysplasia, and
neurogenic bladder. He underwent fourteen surgical procedures before he was one year old, and
removal of cerebral tissue during one surgery impaired his muscular coordination. He is also mentally
retarded and has impaired speech and fine-motor problems.

        A psychoeducational evaluation performed February 21, 2003, by Trousdale County Schools
stated that Dewayne had received special education services all his life, graduated from Trousdale
County High School in 2002, and was currently obtaining adult services through H.A.T.S., an agency
that provides vocational, learning, and social opportunities to adults with disabilities. Dewayne’s


           2
               Subsection (3) provides that the court may use the child support guidelines in setting the amount of continuing
support.

           3
          The Americans with Disabilities Act defines disability, in part, as a physical or mental impairment that
substantially limits one or more of the major life activities of an individual. 42 U.S.C. § 12102(2).

           4
           Mr. Finn argues that any obligation under that section would have expired because Dewayne was born March
19, 1982. That date is the date given for the daughter’s birth in Mr. Finn’s modification petition. Dewayne’s birth date
is stated in the petition as August 23, 1983. The trial court’s order on the statement of the evidence states that the
daughter, Mary Ann Tomlinson, was born March 19, 1982. All the evaluation reports list D ewayne’s birth date as
August 23, 1983. Thus, he would have turned 21 in August of 2004, after the petition and proceedings herein.

           5
          Both parties submitted statements of the evidence. The trial court approved Ms. Bundy’s statement with
specified corrections.

                                                                -3-
intellectual functioning score placed him in the mentally retarded range. His adaptive skills were
within the mild range of mental retardation and showed relative weaknesses in functional academics,
home living, health and safety, and self-care. The report concluded that his overall intellectual
functioning placed his mental age at from 5 years, 7 months to 8 years, 2 months. It also stated
individuals in this range generally cannot live independently.

        Both his mother and his sister testified that Dewayne requires a great deal of supervision. He
does not remember to eat and cannot prepare his food. He cannot operate any basic equipment in the
house including the microwave, dishwasher, stove, washer and dryer. He has little control over his
bodily functions, and he soils his underwear daily. He cannot handle money or make change and has
no concept of the value of money. He works in a sheltered workshop through H.A.T.S. and earns $25
to $45 per month. He uses the money to buy extra things for himself, but his mother or sister must
assist with any purchases. He is incapable of being left alone for more than a couple of hours because
he begins to panic. He cannot take care of his physical needs, his affairs, or his personal hygiene.

         Ms. Bundy testified Dewayne was able to graduate from high school through a special
education program that allows a diploma equivalent. Dewayne’s sister, Mary Ann Tomlinson,
testified that even at the workshop Dewayne attends, he cannot work without supervision and must
be reminded what task to perform and how to perform it. Ms. Bundy receives supplemental social
security of $249 or $289 per month payments for Dewayne’s benefit, and he receives Tenn Care
benefits.6

       The testimony that Dewayne needs supervision and cannot function independently was
consistent with a report from a physician, dated October 22, 2002, stating that Dewayne Finn is
unable to live without adult supervision and assistance and stated:

         Mr. [Dewayne] Finn needs continuous assistance and supervision due to the following
         conditions:

         1.       Mr. [Dewayne] Finn is unable to comprehend or cope with danger in his
                  environment;

         2.       He is unable to prepare a meal competently or safely;

         3.       He is unable to finish a meal without assistance due to becoming distracted;

         4.       Mr. [Dewayne] Finn is unable to operate sophisticated machinery, (e.g.
                  washing machine, car, motorcycle, or bicycle) due to lack of comprehension
                  and/or coordination. He is therefore unable to wash clothing and travel to a
                  market for food.


         6
          Prior to entry of the final order, the trial court asked the attorneys to determine whether any continued award
of support would adversely affect the SSI or medical benefits.

                                                           -4-
        The undisputed evidence shows the parties’ son is living under the care and supervision of his
mother, that such care and supervision is necessary, and that remaining in such care and supervision
is in Dewayne’s best interest. The evidence also establishes that Dewayne is severely disabled.
Although Mr. Finn testified that he thought his son was capable of working to support himself, that
opinion is totally unsupported by any evidence in the record. Dewayne’s work at the sheltered
workshop, while important and beneficial, is not comparable to a job that could provide his necessary
financial support.

       The final requirement for the application of Tenn. Code Ann. § 36-5-101(p)(2) is that the
obligor parent, here Mr. Finn, is financially able to pay support. Mr. Finn asserts he is himself
disabled and his only income is from social security and an annuity from a personal injury settlement
discussed more fully below. More specific evidence regarding Mr. Finn’s financial condition is not
included in the record. The evidence does not preponderate against the trial court’s implicit finding
that Mr. Finn is financially able to pay the $331 per month ordered by the trial court.

       Accordingly, we affirm the trial court’s order that Mr. Finn continue to provide support for
the benefit of his adult disabled child pursuant to Tenn. Code Ann. § 36-5-101(p)(2).

                                           II. ALIMONY

        Mr. Finn also petitioned to be relieved of his alimony obligation. During the marriage, the
parties had settled a lawsuit for personal injuries to Mr. Finn during the course of his employment.
The settlement provided for an annuity contract with Safeco Insurance under which the parties
received $1580 per month, with payments guaranteed for five years. The MDA addressed these
settlement payments, providing:

       The parties receive $1580.00 per month from a settlement of a personal injury lawsuit
       wherein the above mentioned amount is paid for as long as the parties live with the
       survivor to receive 100% of the payments upon the death of the other for the life of
       the survivor guaranteed for five (5) years. The last guaranteed payment is on
       December 19, 2000. As alimony to the Plaintiff, the Defendant shall pay to the WIFE
       the sum of $500 per month for as long as $1,580 is received by the Defendant.
       Nothing in this Order or Agreement shall be deemed to extinguish the Plaintiff’s right
       to receive the $1,580 per month payment guaranteed for five (5) years in the event the
       Defendant predeceases the Plaintiff. The Defendant shall make the payment to the
       Plaintiff within five (5) days of the Defendant receiving the $1,580 payment.

        This provision became the source of continuing disputes over its meaning and effect and the
basis for the trial court’s alimony decision that is the subject of this appeal.

        The parties herein disagree over whether the alimony awarded to Ms. Bundy in the divorce
decree incorporating the parties’ MDA was subject to modification. Whether an alimony award is
subject to modification depends upon the type of alimony involved, as determined from the language


                                                 -5-
of the order or agreement establishing the award. The parties disagree as to whether the alimony
provided for in the MDA provision quoted earlier was alimony in solido or alimony in futuro.7

         Alimony in solido is an award of a definite sum of money, and the total amount to be paid is
ascertainable at the time of the award. Burlew v. Burlew, 40 S.W.3d 465, 471 (Tenn. 2001); Waddey
v. Waddey, 6 S.W.3d 230, 232 (Tenn. 1999). It retains its character as alimony in solido even if paid
in installments, provided the payments are ordered over a definite period of time and the total amount
to be paid is definite and ascertainable. Burlew, 40 S.W.3d at 471; Waddey, 6 S.W.3d at 232.
Alimony in solido is often used to adjust the distribution of the parties’ marital property. Burlew,
40 S.W.3d at 471. It promotes the twin goals of certainty and finality though finality though the
award of a fixed amount without conditions. Bryan v. Leach, 85 S.W.3d 136, 145 (Tenn. Ct. App.
2001). The determinative factor in deciding whether an award of alimony is in solido is the intent
of the parties (in an MDA) or the court (in final order). Bryan, 85 S.W.3d at 146; Self v. Self, 861
S.W.2d 360, 363 (Tenn. 1993).

        A final award of alimony in solido is not subject to future modification. Burlew, 40 S.W.3d
at 471; Day v. Day, 931 S.W.2d 936, 939 (Tenn. Ct. App. 1996). The other type of alimony at issue,
alimony in futuro, however, remains subject to modification. Burlew, 40 S.W.3d at 471; Bryan, 85
S.W.3d at 146.

         Alimony in futuro continues support that was incident to the marriage and continues
indefinitely. Bryan, 85 S.W.3d at 146. The purpose of an award of alimony in futuro is to provide
support to a spouse who cannot be rehabilitated. Burlew, 40 S.W.3d at 471. Alimony in futuro “lacks
sum-certainty due to contingencies affecting the total amount of alimony to be paid.” Burlew, 40
S.W.3d at 471, quoting Waddey, 6 S.W.3d at 232. Its duration, and therefore the total amount to be
paid, is subject to contingencies agreed to by the parties (in an MDA) or imposed by the court (in the
final order). Burlew, 40 S.W.3d at 471.

         In the case before us, the trial court held that the MDA provided for $30,000 as alimony in
solido by payment of $500 per month for 60 months. Although both parties attempted to testify in
the trial in these proceedings as to their understanding of the MDA provision, the trial court limited
such testimony, determining that interpretation of the provision was a question of law. Additionally,
the trial court entered an order correcting the Statements of the Evidence submitted by both parties
which clarifies the proof at trial regarding the settlement proceeds. The court stated that there was
no testimony “as to both parties,” as opposed to Mr. Finn only, “being the recipients of the
settlement.” The court also recounted prior litigation over the MDA provision.

        As the trial court noted, the settlement document itself was not introduced into evidence in
this proceeding. The trial court also noted that in 1998 Mr. Finn had petitioned to modify the alimony
award, and the settlement document was introduced in the trial on that petition. The prior proceeding


           7
               Rehabilitative alimony is not at issue, and neither party claims the award was intended to be rehabilitative
alimony.

                                                              -6-
was brought into the matter here on appeal by Ms. Bundy’s answer in which she asserted that the
issue of alimony was res judicata in that it had been litigated regarding the Safeco Insurance annuity,
referring to the order entered August 19, 1999, nunc pro tunc to February 4, 1999.

       The record indicates there were two prior orders entered. The first, entered December 16,
1998, appeared to respond to Mr. Finn’s petition and stated that the issue before the court was
whether or not the alimony provision could be modified. The court held:

        . . . the amount of the obligation of Gary Dewayne Finn is a determinable amount.
        That amount is $30,000.00 ($500.00 for 60 months). It is alimony in solido.

        Apparently, this order was not appealed. The second order, referenced by Ms. Bundy in her
answer and by the trial court in its order approving and correcting the statement of the evidence,
resolved two sets of issues. The first was heard August 4, 1998, and involved Mr. Finn’s failure to
pay child support. The court found Mr. Finn to be in arrears in the amount of $1,869. The order
noted the check from Safeco payable to the parties had been held by one of the attorneys, and the
court ordered that the checks should be executed and the proceeds used to pay Mr. Finn’s alimony
and child support obligation including the arrearage.

        The second part of the order resulted from a hearing on February 4, 1999, on an unidentified
petition filed by Mr. Finn. In pertinent part, the order stated:

        That nothing in this Order shall be deemed to change the contractual rights that both
        parties have to the funds distributed pursuant to the annuity contract with SAFECO
        LIFE INSURANCE COMPANY or to alter the contract or the contractual rights of
        GARY FINN and MARY FINN with SAFECO LIFE INSURANCE COMPANY so
        that both parties are entitled to receive the funds from SAFECO LIFE INSURANCE
        COMPANY.

        Accordingly, the court ordered that Safeco send $789 per month (alimony and child support)
directly to Ms. Bundy and send the remainder of the monthly payment ($791) to Mr. Finn. It is the
above-quoted language that Ms. Bundy relied upon in her answer. In its order on the statements of
the evidence in the proceeding that is the subject of this appeal, the trial court explained the language
it had used in the prior order, stating:

        That statement was entered as part of the Court’s order because paragraph 6 of the
        Marital Dissolution Agreement which is incorporated and a part of the final decree of
        divorce ordered that the husband pay alimony in the sum of $500 per month for so
        long as he received the $1,580 per month on the annuity with the last guaranteed
        payment of $1,580 per month to be the 19th day of December, 2000. Further, the final
        Decree provided that in event the husband died before December 19, 2000 and the
        wife survived him then she would be entitled to receive the full $1,580 per month
        payment. It was certainly the intent of the Court not to have an order entered before


                                                  -7-
         the 19th day of December, 2000 that would cause that agreement of the parties not to
         be followed.

      The court’s reference to December 19, 2000, was to the date of the last guaranteed monthly
payment under the settlement annuity.8

        On appeal, Ms. Bundy argues that the $500 per month she was to receive under the MDA was
either a distribution of marital property or was alimony in solido and, in either case, was not
modifiable. The trial court had resolved these issues in a previous order that was not appealed,
finding the MDA provision constituted an award of alimony in solido in the total amount of $30,000.
On the basis of that holding, the trial court did not allow Mr. Finn in the earlier proceedings to cease
his alimony payments or reduce them in amount until the total amount was paid.

         However, Ms. Bundy argues she is entitled to receive $500 per month as alimony in solido
for an indefinite time, i.e., as long as the annuity proceeds are received by Mr. Finn. This argument
is not tenable in view of the definition of alimony in solido, since at the time of the divorce there was
no way to ascertain the duration beyond five (5) years.

        The language of the MDA provision is less than clear on the issue at hand, but the parties
agreed to this language. The trial court’s holding that the provision constituted an award of alimony
in solido for 60 months, the duration of the guaranteed payments, was enforced to prevent Mr. Finn
from modifying the $500 per month payment during the five-year period. The trial court’s rulings
have been consistent in considering the alimony award to be a total of $30,000, to be paid in monthly
installments. We do not disagree with the trial court’s holding that the payments to Ms. Bundy
constituted alimony in solido.9




         8
            Although there appears to be implicit assumption that the date of the last guaranteed payment from the annuity
is the same as the date of the last alimony in solido payment, that is not the case. The five years of settlement payments
began before the divorce decree was entered. The court’s order herein, however, reaffirmed its earlier holding that the
total amount of alimony in solido was $30,000, calculated at 60 months of $500 payments. Neither party has addressed
this issue.

         9
           Because of the MDA provision’s language that Mr. Finn was to pay to Ms. Bundy, as alimony, “the sum of
$500 per month for as long as $1,580 is received by [him],” it is arguable that the five years of payments was not the
entirety of Mr. Finn’s obligations and that any amount beyond the five years would be alimony in futuro. However, Ms.
Bundy has not made that argument, instead insisting that even payments beyond five years were alimony in solido.
Perhaps she adopted that strategy because alimony in futuro or alimony the amount of which is not calculable on the date
the decree was entered terminates “automatically and unconditionally” upon the remarriage of the person receiving such
alimony. Tenn. Code Ann. § 36-5-101(a)(2)(B). W hile the parties herein could have agreed the payments would not
cease upon Ms. Bundy’s remarriage, they did not explicitly state any such agreement. It is not clear from the record when
Ms. Bundy remarried, but she was referred to as M s. B undy in the August 1999 order, so she remarried before the
expiration of the five years of alimony in solido.

                                                           -8-
       Accordingly, we affirm the trial court’s holding that Mr. Finn’s alimony obligation ceased
upon the payment of the total amount of $30,000

                                         III. CONCLUSION

       We affirm the trial court’s order that Mr. Finn provide continued support for his adult disabled
child. We also affirm the trial court’s determination that Mr. Finn’s alimony obligation terminated
upon his payment of the total amount of alimony in solido. Costs of this appeal are divided equally
between the appellant, Mary Louise Summer Bundy, and the appellee, Gary Dewayne Finn, for which
execution may issue if necessary.



                                                       ___________________________________
                                                       PATRICIA J. COTTRELL, J.




                                                 -9-
