Isbell v. Isbell

CourtSupreme Court of Tennessee
Writing for the CourtDAUGHTREY; REID; O'BRIEN; O'BRIEN
Citation816 S.W.2d 735
Decision Date16 September 1991
PartiesPamela ISBELL (Frazier), Plaintiff-Appellant, v. Don L. ISBELL, Defendant-Appellee. 816 S.W.2d 735

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.

Page 736

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

Page 737

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.1...

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77 practice notes
  • Earls v Earls, 99-00035
    • United States
    • Court of Appeals of Tennessee
    • May 31, 2000
    ...when the facts warrant long term or more open-ended support. See Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995); Isbell v. Isbell, 816 S.W.2d 735, 739 (Tenn. Even though fault is a relevant consideration when setting spousal support, see Tenn. Code Ann. ' 36-5-101(d)(1)(K), these decision......
  • Kinard v. Kinard
    • United States
    • Tennessee Court of Appeals
    • August 5, 1998
    ...when the facts warrant long-term or more open-ended support. See Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn.1995); Isbell v. Isbell, 816 S.W.2d 735, 739 (Tenn.1991). Trial judges have the prerogative to determine the type of spousal support that best fits the circumstances of the case, and t......
  • Evans v. Evans, No. M2002-02947-COA-R3-CV (TN 8/23/2004), No. M2002-02947-COA-R3-CV.
    • United States
    • Supreme Court of Tennessee
    • August 23, 2004
    ...the right of the recipient to receive alimony; it merely shifts the evidentiary burden in a modification proceeding. Isbell v. Isbell, 816 S.W.2d 735, 738 (Tenn. 1991); Wright, 83 S.W.3d at 775. Once the presumption arises, the alimony recipient bears the burden of demonstrating a need for ......
  • Smith Corona Corp. v. Pelikan, Inc., No. 3-90-0479.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • January 9, 1992
    ...that an unpublished decision may present a better-reasoned analysis of a particular issue than published opinions. See Isbell v. Isbell, 816 S.W.2d 735 (Tenn.1991). Because the Court cannot improve upon the analysis set forth in Spence, the Court utilizes the Spence holding 27 The fact that......
  • Request a trial to view additional results
77 cases
  • Earls v Earls, 99-00035
    • United States
    • Court of Appeals of Tennessee
    • May 31, 2000
    ...when the facts warrant long term or more open-ended support. See Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995); Isbell v. Isbell, 816 S.W.2d 735, 739 (Tenn. Even though fault is a relevant consideration when setting spousal support, see Tenn. Code Ann. ' 36-5-101(d)(1)(K), these decision......
  • Kinard v. Kinard
    • United States
    • Tennessee Court of Appeals
    • August 5, 1998
    ...when the facts warrant long-term or more open-ended support. See Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn.1995); Isbell v. Isbell, 816 S.W.2d 735, 739 (Tenn.1991). Trial judges have the prerogative to determine the type of spousal support that best fits the circumstances of the case, and t......
  • Evans v. Evans, No. M2002-02947-COA-R3-CV (TN 8/23/2004), No. M2002-02947-COA-R3-CV.
    • United States
    • Supreme Court of Tennessee
    • August 23, 2004
    ...the right of the recipient to receive alimony; it merely shifts the evidentiary burden in a modification proceeding. Isbell v. Isbell, 816 S.W.2d 735, 738 (Tenn. 1991); Wright, 83 S.W.3d at 775. Once the presumption arises, the alimony recipient bears the burden of demonstrating a need for ......
  • Smith Corona Corp. v. Pelikan, Inc., No. 3-90-0479.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • January 9, 1992
    ...that an unpublished decision may present a better-reasoned analysis of a particular issue than published opinions. See Isbell v. Isbell, 816 S.W.2d 735 (Tenn.1991). Because the Court cannot improve upon the analysis set forth in Spence, the Court utilizes the Spence holding 27 The fact that......
  • Request a trial to view additional results

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