Spalding v. Spalding

• Decision Date: 29 February 1980
• Citation: 597 S.W.2d 739
• Parties: Michael Jon SPALDING, Petitioner-Appellee, v. Helen Victoria Nixon SPALDING, Respondent-Appellant.
• Court: Tennessee Court of Appeals

Page 739

597 S.W.2d 739

Michael Jon SPALDING, Petitioner-Appellee, v. Helen Victoria Nixon SPALDING, Respondent-Appellant.

Court of Appeals of Tennessee, Middle Section.

Feb. 29, 1980.

Certiorari Denied by Supreme Court April 21, 1980.

Joe P. Binkley, Nashville, for petitioner-appellee.

Edward C. Blank, II, N. Houston Parks, Colley, Blank & Jack, Columbia, for respondent-appellant.

OPINION

LEWIS, Judge.

This appeal arises from the holding of the Trial Judge that alimony awarded to respondent was in futuro and not in solido. Respondent has assigned the following three errors which we discuss together:

1. The Trial Court erred in construing the original award of alimony in this cause to be an award of alimony in futuro rather than of alimony in solido.

2. The Trial Court erred in reducing the amount of alimony originally awarded to Appellant in that said original award of alimony was an award of alimony in solido, had already become a final judgment not appealed from when the Trial Court acted upon Appellee's Petition to reduce said award of alimony, and was hence not subject to modification or reduction.

3. The Trial Court erred, in its determination of the issue of whether or not the original award of alimony was one in futuro or in solido, in "reviewing (the) entire file" and expressing that the Court "feels that the equities will best be served if the alimony as set forth will be as in futuro ", since the determination of whether the original award of alimony was in futuro or in solido, was, properly considered, a construction of the original Decree and award as a matter of law, and it was improper to make that determination by considering changes of circumstances and "the equities", which are proper matters for consideration only after the Court determines that the award of alimony was in futuro and subject to modification.

The parties were married June 29, 1962, and the final decree awarding respondent an absolute divorce was entered in June, 1977. Respondent was awarded custody of the parties' two minor children, $1000 per month child support, and the "home place" with respondent assuming the "balance of the encumbrance owing on said property." The personal property in the home, except for certain items which were to be delivered to petitioner, was to remain in the home and "ultimately to become the property of the children." The property to be delivered to petitioner was to be used by him, and it likewise was "ultimately to become the property of the minor children." Respondent, in her original complaint, alleged that petitioner was a "medical doctor and surgeon and from his professional specialty practice earns an extremely substantial income" and that they (the parties) "own real property and personal property as tenants by the entirety and (the petitioner) owns property in his name purchased from their marital estate, both real and personal, of substantial value." The defendant's answer admitted these allegations.

That portion of the final decree in question is:

It is, further ORDERED, ADJUDGED AND DECREED by the Court that the defendant Michael Jon Spalding, pay to the plaintiff, Helen Victoria Nixon Spalding, as alimony, the sum of Two Thousand and 00/100 ($2,000.00) Dollars per month for a period of One Hundred and Eight (108) months or Nine (9) years. The first payment shall become due and payable on the 15th day of June, 1977, and the payment shall continue in that amount until the entire amount mentioned above has been paid.

The decree then states: "In considering the above awards to the plaintiff, all the rest and residuce (sic ) of the bonds now owned by the parties shall be and become the sole property of the defendant, Michale (sic ) John Spalding, with the plaintiff having no resulting claim thereto." Respondent's attorney was awarded a fee of $25,000 for his representation of her in the original divorce.

On September 27, 1978, petitioner filed a "petition to Reduce Alimony Payments." After an evidentiary hearing, the Court reduced the alimony payments from $2000 per month to $1000 per month retroactive to September 27, 1978. Subsequently, respondent remarried and an order relieving petitioner "from paying any future alimony payments to the respondent, Helen Victoria Nixon Spalding, as of the date of the marriage, the same being May 24, 1979," was entered on July 18, 1979. Respondent has duly perfected her appeal to each of these orders.

This case comes to this Court from a trial before the Judge without the intervention of a jury, (and) there is a presumption of correctness of the judgment below and that judgment will be affirmed unless there is an error of law or unless the evidence is found by this Court to preponderate against the judgment below. Smith v. Jarnagin, 58 Tenn.App. 668, 674, 436 S.W.2d 310, 313 (1968); T.C.A. § 27-303.

Sections 36-820 and 828, Tennessee Code Annotated vests the trial court with the power to modify periodic alimony and child support prospectively and retroactively. This changes the common law rule that the right vests on the due date and prohibits retroactive modifications. Prior to the enactment of the Tennessee Code of 1932, it was necessary to make provision in the decree for retention of jurisdiction to empower the court to retroactively modify alimony and child support. A court could provide essentially the same relief by reduction of future support and injunction against garnishment or execution. After the expiration of thirty days the trial court may not modify an award of alimony in solido. . Garrett, Tennessee Divorce, Alimony and Child Custody § 19-2, at 186 (1978).

Clearly, if the alimony awarded respondent is periodic alimony, the trial court may modify the award, T.C.A. § 36-820; see Zeitlin v. Zeitlin, 544 S.W.2d 103, 109 (Tenn.App.1976); however, if the alimony awarded is in solido, the trial court cannot modify the award after the expiration of thirty days. See Bauer v. Bauer, 184 Tenn. 217, 197 S.W.2d 892 (1946); Pendergrass v. Pendergrass, 56 Tenn.App. 227, 405 S.W.2d 666 (1966).

The policy in Tennessee "has always been that alimony in gross was preferred to periodic alimony in cases of divorce from bonds of matrimony." . Garrett, Tennessee Divorce, Alimony and Child Custody §...