Self v. Self

• Decision Date: 30 August 1993
• Citation: 861 S.W.2d 360
• Parties: Wanda S. SELF, Plaintiff-Appellant, v. Charles Cooper SELF, Defendant-Appellee.
• Court: Tennessee Supreme Court

Page 360

861 S.W.2d 360

Wanda S. SELF, Plaintiff-Appellant, v. Charles Cooper SELF, Defendant-Appellee.

Supreme Court of Tennessee,

at Nashville.

Aug. 30, 1993.

Mary Frances Lyle and David R. Lyle, Bruce, Weathers, Corley, Dughman & Lyle, Nashville, for plaintiff-appellant.

Charles H. Warfield and James G. Martin, III, Farris, Warfield & Kanaday, Nashville, for defendant-appellee.

OPINION

REID, Chief Justice.

The trial court found a rehabilitative alimony award payable monthly for 48 months or until the remarriage or death of the wife, whichever should occur first, to be alimony in solido, not subject to subsequent modification. The Court of Appeals reversed. This Court finds that the record supports the trial court's determination that the award is not subject to modification.

Wanda S. Self, the plaintiff, was granted an absolute divorce from the former husband, Charles C. Self. During their marriage of 28 years, the parties accumulated an estate that included a residence in Franklin, a farm, and several businesses operated by Mr. Self. The trial court divided the marital property by awarding the residence and furnishings to the former wife, the farm and business properties to the former husband, and the cash and other personal property so as to make an equitable division pursuant to T.C.A. § 36-4-121 (1991).

After reciting the statutory factors applicable to the awarding of alimony, the court found that:

the wife is both capable of and entitled to rehabilitation, within the meaning of Tennessee Code Annotated, Section 36-5-101(d).

The court ordered:

The husband should equitably contribute to the wife's support in the form of alimony in solido by paying directly to the wife the sum of $3,000.00 per month for forty-eight (48) months from the date of the entry of the final order in this case. This will, if Mrs. Self desires, allow support for her in an amount sufficient to allow her to be self supporting and obtain a Bachelor's Degree in a field of her choosing. The Court feels that the husband is the cause of this divorce which necessitated the wife filing for divorce under the circumstances manifested during the course of the marriage and she should be rehabilitated to such an extent that she can be gainfully employed and after four years take her place in the economic market place. The parties shall treat these payments as alimony for all purposes including tax purposes. These payments shall cease on the wife's death or remarriage or upon the expiration of a term of forty-eight (48) consecutive months from the entry of the final order, which ever occurs first.

The trial court denied Mrs. Self's post-trial motion to revise the decree to provide "for an award of in futuro periodic alimony rather than ... rehabilitative alimony as awarded by the Court." The court, however, did amend the decree to require Mr. Self to purchase a decreasing term life insurance policy in the original amount of $144,000, being the sum of 48 monthly payments of $3,000, to insure the payment of the award in the event of Mr. Self's death. The decree contained no provision retaining jurisdiction. There was no appeal from the final decree, as amended, which was entered on July 9, 1987.

On January 22, 1991, Mrs. Self filed a petition to extend the rehabilitative alimony payments on the grounds that even though she had made a good faith effort, she had not become rehabilitated. The trial court dismissed the petition, finding that the petition

is not well taken due to the fact that this Court has lost jurisdiction in said matter, and that the Court ordered alimony in solido paid for a certain number of months and in a certain amount. The Court in its Final Decree ordered $3,000.00 a month for 48 months--no less, and no more, no longer and no shorter. The Court in its opinion could not be more precise in its Order. Alimony was to be for a specific time and a specific amount and for no longer.

The Court of Appeals reversed, holding that the provision in the decree that the award would terminate upon the wife's death or remarriage rendered the duration of the payments uncertain and prevented the award "from being in solido and, further, that the trial court retained jurisdiction to modify the award."

The critical factor in determining whether an award for the support and maintenance of a former spouse is subject to modification is the initial finding by the trial court regarding the relative economic conditions of the parties and the feasibility of rehabilitation of the disadvantaged spouse. T.C.A. § 36-5-101(d) (1992) provides "that a spouse who is economically disadvantaged relative to the other spouse [shall] be rehabilitated whenever possible by the granting of an order for payment of rehabilitative, temporary support and maintenance." That section continues:

Where there is such relative economic disadvantage and rehabilitation is not feasible in consideration of all relevant factors, including those set out in this 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)....

Under the statute, long-term support and maintenance is appropriate only where there is relative economic disadvantage and rehabilitation of the disadvantaged party is not feasible. The trial court is assigned the responsibility and the discretion to fashion an award that is appropriate under the circumstances of each case. T.C.A. § 36-5-101. The circumstances of the parties as found by the trial court, particularly the potential for rehabilitation of one who is economically disadvantaged, rather than the particulars of the award, determine if the award is subject to modification.

The statute reflects an obvious legislative policy that, if possible, the dependency of one ex-spouse on the other be eliminated and both parties be relieved of the impediments incident to the dissolved marriage, and that an ex-spouse be adjudged permanently dependent upon the other only when the court granting the divorce finds that economic rehabilitation is not feasible and long-term support is necessary.

The trial court in this case found that Mrs. Self was economically disadvantaged relative to Mr. Self--that Mrs. Self was "untrained" and had "no marketable skills," while Mr. Self had "expert professional skills" and "unlimited earning capacity." The court also found that Mrs. Self was "both capable of and entitled to rehabilitation." The award of $3,000 per month for four years would, the court found, "allow her to be self supporting and obtain a Bachelor's Degree in a field of her choosing" and "after four years take her place in the economic marketplace." These findings, under the statute, constitute the basis for rehabilitative, temporary support and maintenance, rather than support and maintenance on a long-term basis.

Mrs. Self insists, and the Court of Appeals held, that since the decree provides that the payments will terminate upon Mrs. Self's death or remarriage, the uncertainty of the duration of the payments prevents the award from being characterized as in solido. This argument gives credence to form rather than substance. Even though some prior decisions have distinguished awards as in solido or in futuro by the definiteness of the term of the award, that distinction actually reflects the essential purpose of each award--rehabilitative support is designed to accomplish a stated result within a limited time, while in futuro support continues the support that was incident to the marriage relationship.

In the case of Isbell v. Isbell, 816 S.W.2d 735 (Tenn.1991), the award was $900 a month for four years so that the ex-wife could...