Posted by: koherston | August 14, 2014

Cohabitation with Widowed Mother Leads to Termination of Permanent Alimony in Gallatin, TN Post-Divorce Dispute: Myrick v. Myrick

Facts: At mediation, Husband and Wife settled their case and agreed to the terms of a marital dissolution agreement (“MDA”).

The alimony provision of the MDA provides:

The Husband agrees to pay to the Wife as alimony in futuro the sum of two thousand ($2,000.00) dollars per month, until the Wife dies or remarries, until the Husband dies, or until a third person not the Wife’s child, moves into the Wife’s residence. The amount shall further be reduced by payments received by Wife from either retirement plan and/or Social Security payments.

Knoxville divorceNearly three years later, Husband petitioned to terminate the alimony obligation. Husband alleged Wife’s mother had moved into Wife’s residence after her husband — Wife’s father — passed away and, therefore, Husband’s alimony obligation must be terminated consistent with the agreed terms of the MDA.

The trial court found Wife’s mother had indeed moved in with Wife with the intent to live there for at least several months. For example, Wife’s mother notified the post office of a permanent change of address to Wife’s home.

The trial court terminated Husband’s alimony obligation, noting “while this may be a harsh result, the MDA contained a contractual condition that only the children of [Wife] could move in with her without her forfeiting the alimony in futuro to which the [Husband] had agreed subject to the specific conditions listed.”

Husband was also awarded a judgment for $34,000 for the overpayment of alimony retroactive to the date his petition was filed. Husband was also awarded attorney’s fees of approximately $10,000 pursuant to the MDA.

Wife appealed.

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

Alimony in futuro is governed by Tennessee Code § 36-5-121(f)(1), which provides that in all cases way person is receiving alimony in futuro and the alimony recipient lives with a third person, a rebuttable presumption exists that the third person is either contributing to the support of the alimony recipient or is receiving support from the alimony recipient such that the alimony recipient no longer needs the amount of support previously awarded.

Relying on Tennessee Code § 36-5-121(f)(1), Wife argued the trial court should have applied the rebuttable presumption created therein. Because Wife’s mother provided no support to Wife’s household, Wife argued her alimony in futuro should not have been terminated based upon Wife’s mother living with her.

It is well settled that an MDA is contractual in nature and is binding between the parties. Therefore, the interpretation of the MDA is subject to the rules governing construction of contracts. Tennessee courts recognize an MDA as a binding contract on the parties such that their contractual rights vest upon the execution of the MDA. When the language of the MDA is plain and unambiguous, courts are to determine the intent of the parties from the four corners of the contract and enforce its plain terms as written.

After reviewing the record, the Court found as follows:

[T]he parties chose to include, in their MDA, a suspensory condition, i.e., a condition precedent that suspends the operation of a contractual promise [in this case, Husband’s promise to pay alimony]. The language used, i.e., “until a third person not the Wife’s child, moves into the Wife’s residence,” is not ambiguous, and the parties’ choice to use this language in their agreement binds them to it….

Wife’s mother’s stay at Wife’s residence was clearly not simply a visit: Wife’s mother changed her permanent address to Wife’s address and moved not only her clothes, but also some of her furniture to Wife’s residence. Thus, the fact that Wife’s mother eventually moved out of her home after the filing of this lawsuit, and the question of whether Wife’s mother provided any financial support to Wife are both irrelevant to the question of whether the suspensory condition occurred. From the totality of the circumstances, and the record as a whole, we cannot conclude that the evidence preponderates against the trial court’s finding that Wife’s mother did, in fact, move into Wife’s home. Accordingly, the suspensory condition was triggered and the trial court did not err in relieving Husband of his obligation to pay alimony in futuro.

The Court also affirmed the trial court’s ruling on attorney’s fees, noting it was required by a standard enforcement provision in the MDA that provided if a party was successful in a post-divorce action to enforce the MDA, that party “shall” be entitled to a judgment for reasonable attorney’s fees and expenses.

Accordingly, the trial court’s judgment was affirmed.

Myrick v. Myrick (Tennessee Court of Appeals, Middle Section, June 19, 2014).

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


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