Holt v. Holt
| Decision Date | 03 February 1988 |
| Citation | 751 S.W.2d 426 |
| Parties | Rose Ann Lewis HOLT, Plaintiff-Appellee, v. Timothy Albert HOLT, Defendant-Appellant. 751 S.W.2d 426 |
| Court | Tennessee Court of Appeals |
Charles C. Burridge, Nashville, for defendant-appellant.
Ricky L. Wood, Parsons, for plaintiff-appellee.
This case involves our prior decision in Aleshire v. Aleshire, 642 S.W.2d 729 (Tenn.App.1981) concerning the propriety of awarding alimony in solido to be paid out of future earnings. The appellant contends that this decision makes his agreement to pay alimony in solido out of future earnings void as against public policy.
On September 5, 1985 Rose Ann Lewis Holt filed a complaint for divorce in the Chancery Court of Perry County seeking a divorce from the defendant, Timothy Albert Holt, on the grounds of cruel and inhuman treatment and irreconcilable differences. The complaint alleged that the parties married in 1977 and that since then she had worked, holding two jobs on some occasions, to provide a home and financial support for the defendant while he attended college and medical school; that the defendant had recently graduated from medical school and was an intern receiving substantial compensation for his work in Atlanta, Georgia; and that the parties had not accrued any jointly owned property during the marriage.
The next entry in the record is the final decree of divorce entered on December 12, 1985 granting the plaintiff a divorce on the ground of irreconcilable differences. The decree incorporated a property settlement agreement in which the defendant-appellant agreed to pay the plaintiff the sum of $80,000 as alimony in solido in graduated payments over the next ten years. In addition the appellant agreed to pay the plaintiff alimony in futuro in the amount of ten percent of his gross income for five years after the last payment of alimony in solido.
On January 19, 1987 the appellant filed a "Petition" for relief under Rule 60.02 of the Tennessee Rules of Civil Procedure alleging that the alimony provisions in the property settlement agreement were void. Although no facts supporting the allegation were alleged, the petition prayed for a declaration by the court that the alimony provisions were unenforceable.
After the legal questions were briefed by the parties the chancellor overruled the prayer for Rule 60.02 relief and dismissed the petition.
On appeal the defendant asserts that the property settlement agreement is void because it violates the public policy of this state as established in Aleshire v. Aleshire. In Aleshire this Court held that it was improper for the trial court to award alimony in solido to be paid out of future earnings. As stated by Judge Lewis once an award of alimony in solido becomes final it is beyond the power of the court to change it, see Spalding v. Spalding, 597 S.W.2d 739 (Tenn.App.1980), and while a person obtaining a medical degree may have an expectation of high earnings in the future no one can predict with certainty the course of future events. Therefore, a medical degree in and of itself has no present value out of which to make an award of alimony in solido. Aleshire v. Aleshire, 642 S.W.2d at 732.
As we see it there are two problems with the appellant's position in this case. First, there is no evidence in the record showing that the only source for the payment of the alimony in solido is his future earnings. The parties assume as a fact that the appellant has no present estate but the record consists solely of the original complaint, the property settlement agreement, the final decree of divorce, and the petition for relief pursuant to Rule 60.02. The pleadings do not contain any allegations that the appellant is bereft of a personal estate. The nearest thing to such an allegation is the averment in the complaint for divorce that the parties do not possess any jointly owned property. The complaint is silent, however, as to the appellant's separate property.
The petition filed for relief from the judgment...
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...214 Tenn. 639, 648, 383 S.W.2d 1, 5 (1964); Home Beneficial Ass'n v. White, 180 Tenn. at 588–89, 177 S.W.2d at 546; Holt v. Holt, 751 S.W.2d 426, 428 (Tenn.Ct.App.1988). 11. The General Assembly has enacted numerous statutes of this type. See, e.g., Tenn.Code Ann. § 29–19–101 (2000) (“All c......
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