Posted by: K.O. Herston | April 25, 2013

“Self-Terminating” Alimony Leads to Arrearage in Memphis Divorce: Wilkinson v. Wilkinson

Facts: When the parties divorced in 2008, the trial court approved their Marital Dissolution Agreement (“MDA”) that provided Husband would pay Wife transitional alimony of $3000 per month for two years followed by $1500 per month for one year. The MDA further provided that the alimony

payments will self-terminate upon the death of Wife. Said payments will self-terminate upon the remarriage of Wife. Remarriage includes both the ceremonial marriage and cohabitation with an unrelated person for a total of 30 days.

Knoxville alimony lawyerIn 2011, Wife filed a petition for civil contempt because Husband stopped paying the court-ordered alimony in late 2008. Husband did so based upon what he claimed was evidence that Wife was cohabitating with someone.Wife denied living with anyone.

After a hearing, the trial court ruled that Wife was entitled to receive the alimony withheld by Husband, which alimony totaled $72,000, even though the trial court found Husband was not in contempt because of the ambiguous “self-termination” language used in the MDA. Wife was awarded her attorney’s fees of approximately $11,000.

Husband appealed.

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

Civil Contempt. Husband argued the trial court could not order payment of the alimony arrearage in the absence of finding him to be in civil contempt.

Civil contempt is imposed at the insistence and for the benefit of the party who has suffered a violation of rights and the purpose of civil contempt is to coerce compliance with the court’s orders. Civil contempt occurs when a person does not comply with a court order and an action is brought by a private party to enforce rights under the order that has been violated. Punishment for civil contempt is designed to coerce compliance with the court’s order and is imposed at the insistence and for the benefit of the private party who has suffered a violation of rights. Also, in civil contempt cases, the quantum of proof necessary to convict is a preponderance of the evidence.

The substantive difference between civil contempt and criminal contempt is that criminal contempt is not used to enforce a private right of a party, instead, criminal contempt is used to “preserve the power and vindicate the dignity and authority of the law” as well as to preserve the court “as an organ of society.” Another substantive difference is that in criminal contempt proceedings, the defendant is presumed to be innocent and must be proven guilty beyond a reasonable doubt.

The Court rejected Husband’s argument, writing:

Tennessee courts have held that a finding of civil contempt is not a prerequisite to a trial court’s ability to enforce its orders…. [B]ecause the trial court has the power and discretion to enforce its orders in the way it deems best, a finding of contempt was not a mandatory requirement for the award of arrears. Here, the court chose to reduce the arrearage to a monetary judgment without going so far as to hold [Husband] in contempt. From the record, we cannot conclude that the court’s decision in this regard constitutes an abuse of discretion. However, the mere fact that the court relieved [Husband] of a contempt finding will not, ipso facto, relieve him of the judgment made by the court for the purpose of enforcing its order. Thus, the court did not err in granting a judgment to [Wife] on the alimony arrears, notwithstanding the trial court’s failure to hold [Husband] in contempt.

Attorney’s fees. Husband also argued that Wife should not have been awarded her attorney’s fees, even though the MDA said the prevailing party is entitled to his or her attorney’s fees in any action seeking to enforce the MDA. Conversely, Wife argued the trial court erred in awarding her only $11,000 of her nearly $39,000 in attorney’s fees.

The trial court’s determination of a reasonable attorney’s fee is a subjective judgment based on evidence and the experience of the trier of facts, and Tennessee has no fixed mathematical rule for determining what a reasonable fee is. Accordingly, a determination of attorney’s fees is within the discretion of the trial court and will be upheld unless the trial court abuses its discretion.

The Court concluded:

In this case, it is clear that the court limited the award of attorney’s fees to those portions of the litigation in which [Wife] prevailed…. The MDA provides for an award of “reasonable attorney’s fees.” It does not provide for an award of all attorney’s fees. In addition the MDA contemplates that the fees and expenses will be awarded to the party for his or her “successful effort to enforce this marital dissolution agreement.” Based upon the plain and unambiguous language of the MDA, we cannot conclude that the court abused its discretion in limiting the amount of attorney’s fees only to those amounts accrued in the portions of [Wife's] case on which she was actually successful, i.e. the petition for contempt. Moreover, a review of the affidavits filed in support of [Wife's] request for attorney’s fees are itemized and, therefore, the portion of fees attributable to the contempt petition is easily ascertainable.

The trial court’s award of attorney’s fees to Wife was affirmed. In addition, Wife was awarded her attorney’s fees incurred on appeal. The case was remanded to the trial court for a determination of those fees.

K.O.’s Comment: Regarding the propriety of so-called “self-terminating” alimony, the issue was not presented on appeal so the Court declined to either approve or disapprove such a practice. The Court did caution litigants that they rely on “self-termination” clauses at their peril. It noted in a footnote that contracting to allow an obligor spouse to terminate alimony based on a contingency, such as the fact-intensive cohabitation inquiry, without a court order, appears to conflict with established case law. Specifically, the Tennessee Supreme Court has held that a marital dissolution agreement providing for ongoing alimony is subject to modification only by court order. Thus, the best practice for Tennessee divorce lawyers is to avoid using such clauses.

Wilkinson v. Wilkinson (Tennessee Court of Appeals, Western Section, February 19, 2013).

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


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