Facts: Husband and Wife obtained an agreed divorce in 1997. Their final decree of divorce contained the following provision:

The wife shall receive custody of the parties’ four minor children and the husband shall receive liberal visitation subject to his and the children’s schedules. The husband shall pay support equal to 46% of his net income, including any and all bonuses, pursuant to the Tennessee Child Support Guidelines. Said amount is equal to $3,114.00 per month. Said amount shall never be decreased as any child reaches the age of majority as the amount for which the husband would be entitled a decrease shall be deemed spousal support. It is the intent of the parties and is so ordered by the Court that even after the last minor child reaches the age of majority, the husband shall continue to pay the above referenced amount as spousal support until the wife remarries or dies.

Husband paid the child support and alimony payments as ordered, continuing such payments after the parties’ youngest child reached the age of majority in 2006.

In May 2012, Husband filed a petition to terminate the alimony obligation. Husband alleged his health had declined significantly, his income was reduced, and he was approaching retirement. Husband asserted he would no longer be able to pay the agreed amount of alimony. He also claimed Wife no longer needed spousal support.

The trial court denied Husband’s petition, concluding the parties’ agreement “clearly set out that [the alimony] would be alimony in futuro that would not be modified, would not be decreased for any reason until the wife died or remarried, neither of which events have occurred.” The trial court agreed with Wife’s argument that the parties had “contracted out” the ability of the alimony award to be modified.

Husband appealed.

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

Tennessee Code § 36-5-121(a) provides an alimony award “is subject to modification by the court based on the type of alimony awarded, the terms of the court’s decree or the terms of the parties’ agreement.”

Tennessee Code § 36-5-121(f)(2)(a)  provides an “award of alimony in futuro shall remain in the court’s control for the duration of such award, and may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of substantial and material change in circumstances.”

Tennessee courts sometimes have to interpret alimony provisions contained in marital dissolution agreements, often concerning the particular question of whether the alimony awarded is modifiable. The outcome usually depends on whether the original award is alimony in solido (i.e., a lump sum) or alimony in futuro (i.e., periodic alimony).

Alimony in solido, or “lump sum alimony,” is fundamentally the award of a definite sum of money, and if the sum is payable in installments, the payments run for a definite length of time. The sum is payable in full, regardless of future events such as the death of the husband or the remarriage of the wife. Alimony in solido becomes a vested right from the date of the judgment. The fact that the award is payable in installments is not determinative of the question whether it is alimony in solido or periodic alimony.

Alimony in futuro, however, lacks sum-certainty due to contingencies affecting the total amount of alimony to be paid. The duration of an award of alimony in futuro may be affected by contingencies agreed upon by the parties or imposed by courts. Common contingencies affecting the duration of an award of alimony in futuro are the death or remarriage of the receiving spouse.

In this case, the award lacked sum-certainty because it was subject to contingencies affecting the total amount of spousal support to be paid. Thus, Wife conceded it was an award of alimony in futuro. Awards of alimony in futuro are generally subject to modification by the courts, whereas awards of alimony in solido are not.

After reviewing the record, the Court of Appeals concluded:

The agreement simply and unambiguously provides that Husband’s child support obligation would not decrease as any child attained the age of majority. As a result, Husband would continue to pay the amount he had previously paid as “spousal support until the wife remarries or dies.” We conclude that the language of the provision sub judice is not susceptible to more than one reasonable interpretation. The agreement clearly provides that Husband will pay alimony in futuro upon the termination of his child support obligation but fails to address the modifiability of that alimony obligation….

In this case, neither the terms of the court’s final decree nor the provisions of the parties’ agreement specifically address whether the alimony award at issue is subject to modification. Our statutory scheme regarding alimony, however, provides that alimony in futuro is modifiable “upon a showing of a substantial and material change of circumstances.” Therefore, pursuant to Tennessee Code § 36-5-121(a), the court may modify the alimony award because the type of alimony awarded is modifiable.

Accordingly, the trial court’s judgment was reversed and the case was remanded to the trial court for reconsideration.

K.O.’s Comment: Divorce attorneys searching for additional guidance in figuring out whether an alimony award is modifiable alimony in futuro or non-modifiable alimony in solido should look at Averitte v. Averitte. For guidance distinguishing between modifiable transitional alimony or non-modifiable alimony in solido, see Miller v. McFarland.

Stewart v. Stewart (Tennessee Court of Appeals, Eastern Section, September 9, 2014).

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