Facts: At the time of divorce in 2005, the trial court incorporated the parties’ marital dissolution agreement into the final judgment of divorce, specifically finding the marital dissolution agreement to be a “fair and equitable distribution of the parties’ marital assets and liabilities.” Neither the trial court nor the marital dissolution agreement made any reference to alimony. The marital dissolution agreement provided:

Wife shall receive a monthly payment of One Thousand Seventy-One Dollars ($1,071.00) from Husband’s military retirement account . . . free from any claim, let or hindrance of Husband. Wife shall receive this payment until the youngest child reaches the age of eighteen.

Wife remarried in 2006. Husband continued to make the court-ordered monthly payments until mid-2008 when, acting upon the advice of counsel, he stopped. Wife filed a motion asking that Husband be held in contempt. After a hearing, the trial court ruled that the above-quoted provision constituted alimony in futuro and, therefore, it was appropriate for Husband to stop paying upon Wife’s remarriage. Wife appeals.

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

Wife argued the marital dissolution agreement created installment payments of equitably divided property, not alimony.

A marital dissolution agreement is a contract and, therefore, is generally subject to the rules governing construction of contracts. In interpreting a marital dissolution agreement, the Court’s goal is to ascertain and give effect to the parties’ intentions, which necessarily requires the Court to focus on the marital dissolution agreement itself. Each provision of a marital dissolution agreement should be construed in light of the entire written agreement, and the language therein should be given its natural and ordinary meaning. Marital dissolution agreements should be construed fairly and reasonably, and courts should avoid rewriting these agreements under the guise of “construing” them.

Applying these principles here, the Court reasoned:

First, we are persuaded that if the parties had intended the payments to be alimony, they would have called them something of that nature or at least made some mention of some term indicative of spousal support. The marital dissolution agreement in this case recites an intent to settle “respective property rights” but makes no mention of spousal support. Statutory language at Tennessee Code Annotated § 36-5-121(m) that allows a court to affirm, ratify or incorporate in its judgment “an agreement of the parties as to support and maintenance” suggests to us that an agreement which makes no mention of need, maintenance, or spousal support, cannot have been ratified or incorporated as an alimony award. Surely, an agreement to provide some form of spousal support would make some mention of some term that is at least synonymous with or indicative of alimony. . . .

Our second reason for holding that the ordered payment is a division of property is, as Wife points out, that Tennessee Code Annotated § 36-4-121(b)(1)(B) defines “marital property” to include “the value of vested and unvested pension, vested and unvested stock option rights, retirement and other fringe benefit rights relating to employment that accrued during the period of the marriage.” This is exactly the type of “property” that is the subject of this appeal. The payment is to be made “from Husband’s military retirement account.” Husband attempts to make much of the fact that his military time was longer than the length of the marriage, and that he is now obligated to pay Wife the full measure, rather than part, of his military retirement. Neither Husband nor this Court is in a position to question the wisdom of the distribution agreed to by the parties. We do not rewrite contracts simply to avoid harsh or unwise provisions.

The Court held the trial court erred in treating the payment of $1,071 from Husband’s military retirement account as alimony instead of the distribution of marital property that was not subject to modification.

Cornwell v. Cornwell (Tennessee Court of Appeals, Eastern Section, September 27, 2011).

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