Alimony Agreement Challenged as Void in Savannah, Tennessee Divorce: Estate of McCullough v. McCullough

June 1, 2022 K.O. Herston 0 Comments

Facts: After 18 years of marriage, Husband and Wife went to see Attorney for an agreed divorce. They agreed Attorney would represent Wife and prepare the documents necessary to memorialize their agreement. Attorney advised Husband to retain his own legal counsel.

Husband and Wife told Attorney they agreed Husband would pay $5000 to Wife each month: $4521 would be for alimony, and $479 would be for child support.

About one month later, Husband and Wife returned to Attorney’s office to review the drafts. Husband had not retained his own lawyer despite being advised to do so by Attorney. The draft marital dissolution agreement (“MDA”) said:

Alimony in solido. The parties agree that the purpose of the award of alimony in solido is to provide financial support to Wife. The alimony is a form of support, the amount as specified herein being not modifiable.

Husband and Wife agree that alimony in solido is necessary for the support and maintenance of Wife…. The parties agree … that alimony in solido is nonmodifiable…. Further, these alimony payments are nondeductible by Husband nor are the alimony payments includable as income for Wife.

Husband agrees to pay alimony in solido to Wife in the sum of $4521 per month until the date of his death, at which time the parties agree and stipulate that it shall terminate. The parties also agreed that Husband’s obligation for alimony in solido payments referenced herein also terminate upon the death of Wife.

The parties signed the same day it was first presented to them in Attorney’s office. The documents were filed with the trial court that same day. A few months later, the trial court entered a final judgment of divorce incorporating the MDA by reference.

Four months later, Husband filed a Rule 60.02(3) motion to declare the final judgment of divorce “void” because what the MDA calls alimony in solido is actually alimony in futuro. Husband also complained he was denied the opportunity to meet with his own attorney before signing the MDA.

Wife argued the MDA was clear and Husband knew what he was doing when he signed it.

The trial court denied Husband’s motion after finding Husband did not satisfy his burden of proving the final judgment was void. Wife was awarded her attorney’s fees totaling $13,000.

Husband appealed. He argued the alimony in solido provision in the MDA is void.

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

A void judgment is one so affected by a fundamental infirmity that the infirmity may be raised even after the judgment becomes final. The list of such infirmities is exceedingly short. Examples of void judgments are those entered by a court lacking subject matter or personal jurisdiction. A judgment is presumed to be valid and will be held void only when its invalidity is apparent on the face of that judgment or in the record of the case in which the judgment was rendered.

Husband argued the final judgment is void because while the alimony is labeled as alimony in solido, it has no definite end date and actually constitutes alimony in future, which is modifiable unless the parties agree otherwise.

The Court was unpersuaded for several reasons:

First, Husband cites no legal authority, nor did our own research reveal any, providing that the labeling of the alimony provision or its wording renders the provision at issue, or the final decree as a whole, void….

Here, Husband argued that his alimony obligation should be modifiable because it constitutes alimony in futuro. Nonetheless, the modifiability of the alimony has no bearing on whether the final decree is “void” as that term is contemplated by Rule 60.02(3). Indeed, a judgment is not void because it is or may have been erroneous, nor is a judgment void because a party is dissatisfied with the result, chose not to participate in the proceedings, or claims the judgment is unjust. Insofar as Husband’s argument is that his alimony should be modifiable, the essence of his position is that the final decree is void because it is or may have been erroneous, and Husband is dissatisfied with the result. That is not a basis for relief under Rule 60.03(3).

Moreover, while Husband argued that the alimony provision is void because it actually obligates Husband to pay alimony in futuro, which is typically modifiable, there is nothing illegal or inimical to public policy about contracting for nonmodifiable alimony in an MDA. Rather, this Court has many times held that parties may execute an MDA with terms different from those provided in the alimony statute, and parties are free to obligate themselves by agreement beyond what the courts could order them to do as a matter of law. In such cases the courts are not sympathetic to a party who promises more than he can reasonably expect to pay in order to induce the other spouse to obtain a divorce and then seeks the termination of the agreed payments.

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Accordingly, if a divorcing party wishes to be able to modify alimony, that party should avoid including language in the MDA stating the alimony is nonmodifiable…. Husband was free to obligate himself to pay more alimony than a court could have ordered him to pay….

Finally, Husband’s own testimony from the final hearing undermines any argument that the MDA or the final decree is somehow void or unenforceable, as it reflects that Husband signed the MDA willingly and after having had an opportunity to retain independent counsel.

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[T]he record clearly establishes that Husband sought to terminate his alimony obligation not because of any legal error in the MDA’s execution but because of circumstances that arose after the divorce was final. In this sense, Husband’s argument is that the final decree is void because Husband is dissatisfied with the result. [R]elief under Rule 60.02 is not available to a party whose circumstances change after entry of the judgment or when the party is dissatisfied with a particular outcome.

The Court affirmed the trial court’s denial of Husband’s request to set aside the final judgment of divorce. Wife was also awarded her attorney’s fees on appeal.

K.O.’s Comment: There are many cases where the type of alimony was never specified so the Court must determine the type based on its characteristics. For example, one characteristic of alimony in solido is the ability to ascertain the total amount owed at the time of the agreement. That’s obviously impossible when the payments continue until one party dies. But that’s still not dispositive. See, e.g., Young v. Young, where footnote four summarizes the caselaw holding that conditioning the payment of alimony on the lifetime of the obligor does not prevent the alimony from being alimony in solido.

Estate of McCullough v. McCullough (Tennessee Court of Appeals, Western Section, May 19, 2022).

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Alimony Agreement Challenged as Void in Savannah, Tennessee Divorce: Estate of McCullough v. McCullough was last modified: May 28th, 2022 by K.O. Herston

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