McKee v. McKee

• Court: Tennessee Court of Appeals
• Writing for the Court: HIGHERS
• Citation: McKee v. McKee, 655 S.W.2d 164 (Tenn. App. 1983)
• Decision Date: 11 May 1983
• Parties: Donald A. McKEE, Appellant, v. Linda Kay McKEE, Appellee. 655 S.W.2d 164

Page 164

655 S.W.2d 164

Donald A. McKEE, Appellant, v. Linda Kay McKEE, Appellee.

655 S.W.2d 164

Court of Appeals of Tennessee Western Section, at Jackson.

May 11, 1983.

Permission to Appeal Denied by

Supreme Court Aug. 1, 1983.

Lawrence E. Marshall, Memphis, for appellant.

Eugene G. Douglass, Bartlett, for appellee.

HIGHERS, Judge.

The parties to this action were divorced by a final decree entered on July 2, 1982, in which the Chancellor ordered the following:

It is further ordered, adjudged and decreed that as alimony the counter-defendant be, and he hereby is, ordered to pay by the tenth of each month and be responsible for the mortgage note as to the parties' residence ... until June 5, 1986 when the parties' minor son has attained the age of twenty-two or until the residence is sold should that occur prior to the child's twenty-second birthday, but then only at the option of the counter-plaintiff.

The only issue is whether the above-quoted language from the final decree makes an award of alimony which is in futuro or in solido. The final decree also provided: "It is still an unresolved issue as to whether said alimony should be considered alimony in solido or periodic alimony and an Amended and Supplemental Order will be entered on that issue at a later date pending a decision by this Court."

It appears, however, that the Chancellor who entered the final decree left the bench without ever entering a supplemental order, but the matter was duly presented to the successor Chancellor who ruled on October 27, 1982, as follows:

It is, therefore, ordered, adjudged and decreed that the house payments which the plaintiff was ordered to pay to the defendant until the parties' child becomes twenty-two years of age should be considered alimony in solido.

The determining factor in distinguishing whether alimony is in futuro or in solido is the definiteness or indefiniteness of the amount ordered to be paid. In Spalding v. Spalding, 597 S.W.2d 739 (Tenn.App.1980), the Court quoted the following with approval from 24 Am.Jur.2d, Divorce and Separation, Sec. 614 (1966):

Alimony in gross, or "lump-sum alimony," is fundamentally the award of a definite sum of money; and if the sum is payable in installments, the payments run for a definite length of time. The sum is payable in full, regardless of future events such as the death of the husband or the remarriage of the wife. Gross alimony becomes a vested right from the date of the rendition of the judgment, and the manner of its payment in no wise affects its nature or effect. The fact that the award is payable in installments is not determinative of the question whether it is gross alimony or periodic alimony.

In Spalding the trial court ordered the defendant husband to pay as alimony the sum of $2000 per month "for a period of One Hundred and Eight (108) months or Nine (9) years." The Court of Appeals found that this called for a certain amount and that, of necessity, it constituted alimony in solido. 597 S.W.2d at 741-42.

In Phillips v. Webster, 611 S.W.2d 591 (Tenn.App.1980), the parties entered into an agreement, which was incorporated into the final decree, that the husband would pay to the wife the "total sum of ONE HUNDRED...