Isbell v. Isbell

• Decision Date: 16 September 1991
• Citation: 816 S.W.2d 735
• Parties: Pamela ISBELL (Frazier), Plaintiff-Appellant, v. Don L. ISBELL, Defendant-Appellee. 816 S.W.2d 735
• Court: Tennessee Supreme Court

Page 735

816 S.W.2d 735

Pamela ISBELL (Frazier), Plaintiff-Appellant, v. Don L. ISBELL, Defendant-Appellee.

816 S.W.2d 735

Supreme Court of Tennessee,

at Nashville.

Sept. 16, 1991.

Randle W. Hill, Jr., Gallatin, for plaintiff-appellant.

William B. Vest, Hendersonville, for defendant-appellee.

OPINION

DAUGHTREY, Justice.

The issue in this appeal is whether and under what circumstances an award of rehabilitative support and maintenance in a fixed amount may later be modified or terminated. Because of sharply conflicting opinions released by different sections of the Court of Appeals, and because of what we find in this case to be an erroneous interpretation of the so-called "live-in boyfriend statute," T.C.A. Sec. 36-5-101(a)(3), we granted review in this case. We now reverse the judgment of the Court of Appeals. In that judgment, the intermediate court affirmed the trial court's termination of support on the ground that the recipient had remarried and thus was no longer entitled to receive rehabilitative alimony.

As with many domestic relations cases, the litigation in this lawsuit has taken on a life of its own. The parties were divorced in 1986, at which time the trial judge awarded child custody to the mother, divided the marital property between the parties, and awarded the wife "rehabilitative alimony" of $300 a month, from May 1986 to September 1986, for the express purpose of permitting her to finish her nursing studies and secure an LPN certificate. On appeal, the Court of Appeals (Western Section) decided that the rehabilitative alimony award was too little and for too short a period of time to permit true rehabilitation, given the fact that the wife had spent many years at home raising children and had little ability to support herself and her children without further training. The court increased the monthly payments to $900 and lengthened the period to four years, beginning with the May 1986 payment. The court's intent was to give the plaintiff an opportunity to secure an RN degree and thus a real possibility of self-sufficiency.

In fact, Pamela Isbell dropped out of school at some point during the next three years, and on May 2, 1989, she remarried. Her ex-husband immediately petitioned the trial court to terminate his alimony payments, on the ground that his ex-wife was no longer in school and, in fact, had gained an alternative source of support through remarriage.

The trial court terminated the alimony payments and the Court of Appeals (Middle Section) affirmed. In doing so, the intermediate court rejected the plaintiff's argument that the original award was for a sum certain over a fixed period and therefore constituted "alimony in solido," which under Tennessee case law is not subject to later modification or termination. The court declined to follow the holding of its sister court, the Court of Appeals for the Eastern Section, which had ruled to the contrary on this same issue, in the unreported case of Gerlach v. Gerlach, Court of Appeals, Eastern Section at Knoxville, October 6, 1988, 1988 WL 102744. The intermediate panel in this case said, diplomatically of course, that the Gerlach court had failed to give heed to the provisions of T.C.A. Sec. 36-5-101(a)(3).

That statutory provision is a part of T.C.A. Sec. 36-5-101, which governs liability for "support of spouse and children" at the time of marital dissolution or separation. Guidelines for setting spousal support, formerly (and still commonly) referred to as "alimony," are found in T.C.A. Sec. 36-5-101(d). The statute distinguishes two kinds of support. One is temporary and designed to rehabilitate; the other is appropriate for long-term support, when rehabilitation is not feasible. The exact provisions of Sec. 36-5-101(d) are as follows:

It is the intent of the general assembly that a spouse who is economically disadvantaged relative to the other spouse be rehabilitated whenever possible by the granting of an order for payment of rehabilitative, temporary support and maintenance. Where there is such relative economic disadvantage and rehabilitation is not feasible in consideration of all relevant factors, including those set out in the subsection, then the court may grant an order for payment of support and maintenance on a long-term basis or until the death or remarriage of the recipient except as otherwise provided in subdivision (a)(3). In determining whether the granting of an order for payment of support and maintenance to a party is appropriate, and in determining the nature, amount, length of term, and manner of payment, the court shall consider all relevant factors, including:

(1) The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources;

(2) The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve his or her earning capacity to a reasonable level;

(3) The duration of the marriage;

(4) The age, and physical and mental condition of each party;

(5) The extent to which it would be undesirable for a party to seek employment outside the home because he or she will be custodian of a minor child of the marriage;

(6) The separate assets of each party, both real and personal, tangible and intangible;

(7) The provisions made with regard to the marital property as defined in Sec. 36-4-121;

(8) The standard of living of the parties established during the marriage;

(9) The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;

(10) The relative fault of the parties in cases where the court, in its discretion, deems it appropriate to do so; and

(11) Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

Id. (emphasis added).

In turn, subsection (a)(3) creates the following legal presumption:

(3) In all cases where a person is receiving alimony in futuro and the alimony recipient lives with a third person, a rebuttable presumption is thereby raised that:

(A) The third person is contributing to the support of the alimony recipient and the alimony recipient therefore does not need the amount of support previously awarded, and the court therefore should suspend all or part of the alimony obligation of the former spouse; or

(B) The third person is receiving support from the alimony recipient and the alimony recipient therefore does not need the amount of alimony previously awarded and the court therefore should suspend all or part of the alimony obligation of the former spouse.

This subdivision (a)(3) shall in no way be construed to create any common-law marriage obligation as to third parties.

The Court of Appeals panel in this case interpreted subsection (a)(3) to be "applicable to all maintenance and support of a spouse ordered by a court with the possible exception of a lump sum cash award payable immediately and subject to execution upon the finality of the judgment" (emphasis added). A close reading of the statute, however, demonstrates that this interpretation is clearly erroneous, for at least three reasons.

In the first place, subsection (a)(3), by its own terms, applies only to "alimony in futuro." Thus, to the extent that alimony can be granted in some other form, such as the "alimony in solido" discussed below, the provision in subsection (a)(3) is irrelevant. Indeed, if the intermediate court's interpretation were permitted to stand, it would effectively prohibit the awarding of alimony in solido in installments, a practice that was initially approved in Spalding v. Spalding, 597 S.W.2d 739 (Tenn.App.1980), and has been followed in a line of cases, both reported and unreported, relying on Spalding. See, e.g., McKee v. McKee, 655 S.W.2d 164 (Tenn.App.1983). Although the Court of Appeals does not mention Spalding, its opinion in this case has the effect, perhaps unintended, of overruling it. According to the Court of Appeals, alimony in solido could only be awarded in lump sum, payable immediately. This would work a serious hardship in cases where the marital estate has been substantially depleted or dissipated and a sufficiently large sum of cash is not available at the time of divorce, but the obligor nevertheless has the ability to make payments over time.

Secondly, by the terms of Sec. 36-5-101(d), the provisions in subsection (a)(3) are applicable only to long-term, permanent alimony, and not to temporary, rehabilitative support.

Thirdly, and finally, we note that the statutory presumption created by subsection (a)(3), that further spousal support is not needed when the recipient is living with "a third person," is expressly made rebuttable by the terms of (a)(3) and thus will not serve to cut off automatically the right to receive periodic alimony payments. Hence, there is no basis for the Court of Appeals ruling that this statute prevents the award of a fixed amount of alimony by anything other than a lump sum.

In summary, we hold that the provisions of T.C.A. Sec. 36-5-101(a)(3) are not relevant to the circumstances presented in this case. Moreover, while we recognize that an unpublished opinion of an intermediate court in no way binds our decision, we conclude that the opinion in Gerlach v. Gerlach presents the better-reasoned treatment of the issue now before us, as well as the better result. Finding that we cannot improve upon the analysis set out in Gerlach, we expressly adopt its salient points, as set out here:

An award of alimony may be in solido (a definite amount), or in futuro (an indefinite amount over an indefinite period of...