Marital Dissolution Agreement Trumps Alimony Law in Memphis Divorce: Vick v. Hicks

Facts: Husband and Wife were divorced by agreement. They entered into a marital dissolution agreement that contained an alimony provision under which Husband agreed to pay Wife “transitional alimony” for 60 months. Notably, this alimony provisions stated “[t]he alimony shall not be modifiable by either party.”

The alimony provision in the marital dissolution agreement read as follows:

11. ALIMONY. Husband shall pay to the Wife transitional alimony for a period of sixty (60) months following the granting of the Final Decree of Divorce, to be determined as follows: child support shall be set in compliance with the Tennessee Child Support Guidelines as set forth in the Permanent Parenting Plan. It is agreed that Husband shall pay to the Wife the sum of $3,000 per month. Any amount paid by Husband above court ordered child support shall be considered alimony and shall be includible as income to the Wife. The alimony shall not be modifiable by either party. The parties agree that Husband shall be allowed to pay the alimony directly to the mortgage company if Wife becomes more than 30 days late on any payment. The parties agree to divide equally any income tax refund received for calendar year 2011.

After the divorce from Husband, Wife remarried.

Citing Wife’s remarriage as an event that would permit modification of transitional alimony under Tennessee Code § 36-5-121(g)(2)(C), Husband filed a petition to terminate his alimony obligation.

The trial court ruled it was unable to modify the final decree and terminate Husband’s alimony obligation because of the non-modification clause that accompanied the alimony provision in the marital dissolution agreement.

Husband appealed.

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

Wife argued the non-modification language is controlling as a matter of contract law.

Husband argued the non-modification language merely restates the pronouncement in Tennessee Code § 36-5-121 that transitional alimony is generally nonmodifiable.

A marital dissolution agreement is essentially a contract between a husband and wife in contemplation of divorce proceedings. The cardinal rule for contract interpretation is to ascertain the intention of the parties from the contract as a whole and to give effect to that intention consistent with legal principles. Words expressing the parties’ intentions should be given their usual, natural, and ordinary meaning, and absent a showing of fraud or mistake, a court must enforce a contract as written, even though it contains terms which may seem harsh or unjust.

Here, the marital dissolution agreement denominated the alimony to be paid to Wife as “transitional alimony,” and it is generally true that such alimony is, by statute, potentially modifiable if one of the three contingencies outlined in Tennessee Code § 36-5-121(g)(2) is implicated. Under the statute, transitional alimony is nonmodifiable unless one of the following qualifying events applies:

(A) The parties otherwise agree in an agreement incorporated into the initial decree of divorce or legal separation, or order of protection;
(B) The court otherwise orders in the initial decree of divorce, legal separation or order of protection; or
(C) The alimony recipient lives with a third person, in which case a rebuttable presumption is raised that:
(i) The third person is contributing to the support of the alimony recipient and the alimony recipient does not need the amount of support previously awarded, and the court should suspend all or part of the alimony obligation of the former spouse; or
(ii) The third person is receiving support from the alimony recipient and the alimony recipient does not need the amount of alimony previously awarded and the court should suspend all or part of the alimony obligation of the former spouse.

After finding the parties’ marital dissolution agreement to be clear and unambiguous, the Court reasoned:

Although [Tennessee Code § 36-5-121(g)(2)] certainly represents a basis on which courts may exercise jurisdiction to modify transitional alimony awards, and courts within this state have frequently commented that marital dissolution agreements lose their contractual nature as to matters of alimony and child support when merged into final decrees, Husband’s petition to terminate his alimony obligation cannot be maintained under the facts of this case. To adopt Husband’s argument and disregard the non-modification language in the parties’ MDA would rid that language of any meaning or effect, contravening elementary contract interpretation principles. Although Husband may argue that the language is superfluous and has no specific relevance other than to restate a general default rule pronounced by statute elsewhere, such a meaning is not gleaned from the four corners of the MDA. If the language of a written instrument is unambiguous, the Court must interpret it as written rather than according to the unexpressed intention of one of the parties. The non-modification language is unambiguous in this case, and we will enforce it as such….

Undoubtedly, transitional alimony is generally subject to modification post-divorce if one of the contingencies in Tennessee Code Annotated § 36-5-121(g)(2) is established. Trial courts do possess such authority, as Husband has argued, as a matter of statute. When, however, parties expressly agree in a marital dissolution agreement that a transitional alimony obligation shall not be modifiable, such an agreement should be deemed to have force. The alimony statutes are not applicable where the parties agree in a marital dissolution agreement to terms different from those set out in the statutes. Thus, notwithstanding whatever potential relief might otherwise be available generally as a matter of statute, the parties’ agreement should take precedence.

Accordingly, the trial court was affirmed.

K.O.’s Comment: Compare this case with Miller v. McFarland, where the Court held the “obligor spouse’s right to seek modification based on the alimony recipient’s cohabitation with a third party is guaranteed by statute.” In that case, the Court determined the alimony awarded in a marital dissolution agreement was transitional alimony and thus subject to modification under Tennessee Code § 36-5-121(g)(2). Unlike the marital dissolution agreement in this case, however, the parties’ marital dissolution agreement in Miller v. McFarland contained no specific terms as to whether the obligor spouse’s alimony obligation was, or was not, modifiable.

Vick v. Hicks (Tennessee Court of Appeals, Western Section, November 17, 2014).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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