Facts: Husband, 50, and Wife, 54, divorced after over 20 years of marriage. Their marital dissolution agreement (MDA) said:

Husband agrees to pay to Wife as alimony in futuro the sum of $2500 per month for 120 consecutive months and thereafter, he shall pay the sum of $1500 per month until Wife dies or remarries, or until Husband dies.

Without Wife’s consent, Husband unilaterally reduced his alimony payments and eventually stopped paying alimony altogether. Husband owed alimony arrearages of over $61,000.

Husband petitioned to terminate or reduce his alimony because

• he could no longer pay it;
• Wife no longer needed it; and
• Wife was cohabitating with their 28-year-old daughter, creating a presumption that Wife no longer needed the same amount of alimony.

The trial court determined that the MDA created two distinct alimony provisions. It found the first 120 months of alimony was not alimony in futuro as stated in the MDA but was alimony in solido because it is an award of a definite sum. Alimony in solido is not modifiable, so the trial court ruled it could not modify that portion of the award.

The trial court found the second portion—$1500 per month until death or remarriage—is alimony in futuro, and therefore modifiable, but the trial court declined to modify it.

Wife was also awarded over $29,000 for attorney’s fees.

Husband appealed.

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

To determine the type of alimony created, Tennessee courts must look at the alimony award when the award was made and determine if the sum of the alimony to be paid was definite and ascertainable at that time.

Alimony in futuro is modifiable by the court upon showing a substantial and material change in circumstances.

Alimony in solido is not modifiable, except by the parties’ agreement, and does not terminate upon either party’s remarriage or death.

The Court found the trial erred in finding the 120-month obligation was nonmodifiable alimony in solido:

We agree with Husband’s position that the alimony at issue is alimony in futuro. First, the MDA explicitly states that the alimony is “alimony in futuro.” While this express designation may not be dispositive, it is certainly persuasive evidence of the parties’ intent that this award be treated as alimony in futuro. … Here, Wife does not dispute that this label is properly applied to the second portion of the alimony award; only that it should not apply to the initial 120-month award. But the designation of the alimony as in futuro is stated at the outset of the provision in the MDA, indicating that it modifies both the 120-month award and the award “thereafter.”

The alimony award also does not appear to be consistent with an award of alimony in solido. … Here, nothing in the MDA indicates that the alimony award was intended to adjust the distribution of marital property. Moreover, the MDA expressly provides that each party was to pay his or her respective attorney’s fees. Thus, nothing in the MDA indicates that any portion of the alimony award was intended to meet the typical purposes of an award of alimony in solido. Rather, there is evidence in the record that at the time of divorce, Wife was economically disadvantaged compared to husband. Alimony in futuro is precisely designed to remedy such a situation.

Most importantly, the alimony is also not for a definite duration or amount. Here, the MDA contains a single provision awarding alimony. Indeed the nature of the award is contained in a single sentence. Rather, there is a single award of alimony in futuro, the amount of which is to decrease over time. Neither Wife nor the trial court cited any law in which this Court has held that parties cannot structure an alimony in futuro award in this manner. From our research, this appears to be a perfectly acceptable way to structure an award of alimony in futuro. Thus, the fact that the parties built in a modification at the outset—it would start at $2500 per month and eventually decrease to $1500 per month—actually supports the conclusion that the award is for alimony in futuro, rather than two separate types of alimony.

*     *     *     *     *

In sum, we hold that the entire award of alimony at issue is alimony in futuro, and thus the trial court erred in bifurcating the award into alimony in solido and alimony in futuro.

The Court vacated the trial court’s denial of Husband’s petition as well the award of attorney’s fees to Wife because she “is no longer the prevailing or successful party, at least at this juncture.”

Linn v. Linn (Tennessee Court of Appeals, Western Middle Eastern Section, , 2021).

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