Facts: Husband and Wife divorced after 23 years of marriage. Husband worked as an airline pilot.

Their lawyers announced this agreement to the trial court regarding alimony:

The wife will receive alimony for eight and a half years, but on the last four years the continuation of the alimony is conditioned upon [Husband], his seniority being as a condition where he would be flying left seat or as a captain on the plane. . . . Alimony will be paid at the rate of $1100 a month for eight and a half years. That is when the husband will be retiring from the airline. That, of course, is spousal support, tax deductible to the husband and the wife will be required to pay taxes on that amount.

The trial court approved their agreement and awarded alimony of $1100 per month. The final judgment did not specify the type of alimony awarded.

Six years later, Husband moved to terminate his alimony obligation based on Wife’s remarriage and cohabitation with her new husband.

Husband argued the alimony award should be characterized as transitional alimony, which is a form of alimony that may be modifiable.

Wife argued the alimony award should be characterized as alimony in solido, which is a form of alimony that is not modifiable.

The trial court found the language of the agreement indicates the continuation of alimony payments was conditioned upon Husband achieving the rank of airline captain; if this condition was not met, then the alimony payments would end.

The trial court held the conditional nature of the alimony renders it classifiable as transitional alimony. The trial court further held that the award should terminate because of Wife’s remarriage and cohabitation with her new husband.

Wife appealed.

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

Tennessee law recognizes four types of spousal support:

• alimony in futuro,
• alimony in solido,
• rehabilitative alimony, and
• transitional alimony.

Alimony in solido is a form of long-term support. Alimony in solido is paid in a lump sum or paid in installments for a definite term. The sum of the alimony to be paid is ascertainable when awarded. Alimony in solido is not modifiable and does not terminate upon the death or remarriage of the recipient or the payor spouse. It provides certainty and finality through an award of a fixed amount without conditions.

Transitional alimony is a form of short-term support. It is payable for a definite period and is not modifiable unless

• the parties agree to modify it,
• the court orders it be modified in the final judgment, or
• the recipient lives with a third person, in which case a rebuttable presumption arises that the recipient does not need the amount of support previously awarded, and the court should suspend all or part of the alimony obligation.

The Court found the trial court’s characterization of the award as transitional alimony was appropriate:

The parties’ agreement never mentioned a total amount due to Wife, as is characteristic of an award of alimony in solido. . . . Furthermore, the final four years of alimony payments were expressly made conditional upon Husband attaining the rank of airline captain. Given the conditional nature of the award, the sum of alimony to be paid was not definitively ascertainable when awarded.

The Court affirmed the trial court’s judgment.

K.O.’s Comment: (1) It’s not uncommon for courts to go back in time to figure out what type of alimony was intended at the time of the award. This could be avoided if lawyers identified the type of alimony at the time of the award.

Here are a handful of other examples where the Court examines the characteristics of the award to determine the type of alimony:

• Miller v. McFarland (transitional vs. in solido),
• Averitte v. Averitte (in futuro vs. in solido), and
• Church v. Elrod (in futuro vs. in solido).

(2) Husband and Wife could have agreed to make the transitional alimony nonmodifiable in the event of Wife’s cohabitation, as the parties did in Scherzer v. Sherzer.

Balzer v. Balzer (Tennessee Court of Appeals, Eastern Section, January 28, 2020).