Posted by: K.O. Herston | March 14, 2013

Termination of Alimony in Murfeesboro Divorce Reversed: Averitte v. Averitte

Knoxville alimony lawyerFacts: Husband and Wife divorced in 2011. The final decree of divorce incorporated the parties’ marital dissolution agreement (“MDA”), which required Husband to pay alimony to Wife in the amount of $1,200 per month. The specific terms of the alimony provision were as follows:

SPOUSAL SUPPORT: Husband agrees to pay Wife periodic alimony in the amount of $1,200 per month for a period of 7 years which is 84 months with the first such payment to be due on February 15, 2011 and a like payment to be due on the 15th day of each and every month thereafter for a total of 84 payments.

Shortly after the divorce, Wife remarried. Husband then filed a motion to terminate his alimony obligation. Although the MDA did not state that Husband’s alimony obligation would terminate upon Wife’s remarriage, Husband argued that termination was required as a matter of law because the MDA specifically referred to the alimony award as “periodic alimony.” Tennessee Code Annotated § 36-5-121(f) provides that alimony in futuro is “also known as periodic alimony,” and such an award “shall terminate automatically and unconditionally upon the death or remarriage of the recipient.”

After a hearing, the trial court entered an order granting Husband’s motion to terminate his alimony obligation. The trial court noted that “periodic alimony” is one of the four types of alimony available in Tennessee, and because the MDA referred to the obligation as “periodic alimony,” the court concluded that Husband’s obligation was subject to the statutory rules for periodic alimony “even though” the alimony obligation described was for “a period of time” and “a fixed amount.”

Wife appealed.

On Appeal: The Court of Appeals reversed the trial court.

Tennessee law recognizes several distinct types of spousal support, including (1) alimony in futuro, (2) alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony. This case only involves alimony in futuro and alimony in solido because neither party argued that the award described in the MDA was rehabilitative or transitional alimony.

The first type of spousal support, alimony in futuro, is intended to provide support on a long-term basis until the death or remarriage of the recipient. An award of alimony in futuro remains in the court’s control for the duration of the award and may be modified upon a showing of substantial and material change in circumstances.

The second type of support, alimony in solido, is also a form of long-term support. However, it differs from alimony in futuro due to the definiteness of the award. The total amount of alimony in solido is set on the date of the divorce decree and is either paid in a lump sum payment of cash or property, or paid in installments for a definite term. An award of alimony in solido is considered a final judgment, not modifiable, except by agreement of the parties, and it does not terminate upon death or remarriage.

The nature of the alimony award becomes important when one party seeks to modify or terminate the award, as alimony in futuro is modifiable and alimony in solido is not. Discerning the nature of the award can be challenging if the language of the decree is not sufficiently descriptive, because both types of alimony are typically comprised of court-ordered periodic payments. The mere fact that the obligation is payable in installments is neither conclusive nor determinative regarding its status as in solido or in futuro. Both alimony in futuro and alimony in solido are forms of long term or more open-ended support.

Whether alimony is in futuro or in solido is determined by either the definiteness or indefiniteness of the sum of alimony ordered to be paid at the time of the award. Alimony in solido is an award of a definite sum of alimony. Alimony in solido may be paid in installments provided the payments are ordered over a definite period of time and the sum of the alimony to be paid is ascertainable when awarded. Alimony in futuro, however, lacks sum-certainty due to contingencies affecting the total amount of alimony to be paid.

The Court reversed the trial court, reasoning:

The fact that the obligation was to be paid in installments is “neither conclusive nor determinative regarding its status as in solido or in futuro.” The “determining factor . . . is the definiteness or indefiniteness of the amount ordered to be paid.” We conclude that Husband’s alimony obligation was definite and ascertainable at the time of the award because the MDA did not provide any contingencies upon which Husband’s obligation would terminate. It required him to pay $1,200 per month for seven years, “for a total of 84 payments,” which indicates that the parties intended the obligation to be for a definite term and a definite sum. “Tennessee law has long recognized that an award of monthly payments of alimony for a definite period, without any conditions or terminating factors, is an award of alimony in solido.” Although the MDA did not specify the total amount to be paid, the full amount of alimony payable—$100,800—can be definitely determined by simply multiplying the monthly sum ($1,200) times the designated duration (84 months). It is “not necessary” for a decree to set forth the total amount of an award of alimony in solido as a lump sum, because it can be easily determined by mathematical calculation.

Because Husband’s alimony obligation was definite and calculable when awarded, with no contingencies, and therefore, it was alimony in solido, which is considered a final judgment, not modifiable except by agreement of the parties, and it does not terminate upon death or remarriage. Consequently, the trial court erred in granting Husband’s motion to terminate his alimony obligation upon Wife’s remarriage.

K.O.’s Comment: The Tennessee Supreme Court said the following in Self v. Self, and it bears repeating here:

Obviously, great care should be exercised by counsel and trial courts in crafting decrees. The decree should reflect the court’s findings with regard to the circumstances of the parties, the purpose or expected results of the relief granted, and the specific benefits granted to and obligations imposed upon the respective parties. In addition to the rights and obligations of the parties with respect to each other, the liability for taxes, the rights of creditors, and other significant consequences may depend upon the preciseness of the language employed in the decree. Construction by the courts of uncertain and ambiguous language is a poor substitute for careful articulation.

Averitte v. Averitte (Tennessee Court of Appeals, Middle Section, January 29, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.


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