Towner v. Towner

CourtSupreme Court of Tennessee
Writing for the CourtREID
Citation858 S.W.2d 888
Decision Date06 July 1993
PartiesLinda Kay Keys TOWNER, Plaintiff/Appellee, v. John Anthony TOWNER, Defendant/Appellant.

Page 888

858 S.W.2d 888
Linda Kay Keys TOWNER, Plaintiff/Appellee,
v.
John Anthony TOWNER, Defendant/Appellant.
Supreme Court of Tennessee,
at Nashville.
July 6, 1993.

Rodger N. Bowman, Clarksville, for plaintiff-appellee.

William L. Aldred, Jr., Clarksville, for defendant-appellant.

OPINION

REID, Chief Justice.

This case presents for review the modification by the trial court of its decree granting a divorce and approving a property settlement agreement entered into by the parties, which modification, after further revision by the Court of Appeals, was affirmed. This Court concludes that the original decree of the trial court was not subject to modification.

The parties divorced after 16 years of marriage, during which time they accumulated certain real and personal property. The appellant, Mr. Towner, was a career soldier in the United States Army. At the time of the divorce in 1989, he had approximately 16 years of military service and was eligible to retire on May 22, 1993, with a pension of $807.75 per month. The parties had no children.

The original decree affirmatively found that the Property Dissolution Agreement "makes adequate and sufficient provisions ... for the equitable settlement of any property rights between the parties." The agreement was incorporated into the judgment

Page 889

of the court granting the wife a divorce. The agreement recites that its purpose is for "the complete settlement of [the parties'] property rights, support, maintenance of husband and wife, and other rights and obligations growing out of their marital relationship." The agreement provides for the division of personal property, real property and debts. A mutual release provision of the agreement provides that each party "waives, relinquishes, and quitclaims any and all rights, title, interest and control" in and to all property of the other party including pension plans. The "alimony" section of the agreement provides:

The husband shall pay to the wife, beginning August 1, 1989, as spousal support, and shall continue paying to the wife in the event there is a divorce, $387.30 per month. The spousal support/alimony is specifically in consideration of the wife waiving any right to the husband's military retirement and therefore shall continue for the lifetime of the husband.

Upon Mrs. Towner's remarriage less than a year after the divorce, Mr. Towner discontinued the monthly payments of $387.30; whereupon, Mrs. Towner filed a motion for contempt. Mr. Towner responded with a motion that his obligation to make the monthly payments be terminated, pursuant to T.C.A. § 36-5-101(a)(3) (Supp.1992), which provides:

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.

However, the trial court, rather than basing relief on the above statute, held that the provision that Mr. Towner pay Mrs. Towner $387.30 per month until his death, in consideration of her waiver of any claim against his lifetime military pension, was "unconscionable," and reduced the monthly payments to $234.24 per month effective as of the date of the original judgment.

Mr. Towner appealed, asserting that the payments constituted alimony in futuro and that the trial court erred in reducing the monthly payment rather than terminating all payments pursuant to T.C.A. § 36-5-101(a)(3).

Relying upon Isbell v. Isbell, 816 S.W.2d 735 (Tenn.1991), the Court of Appeals found that the obligation could not be characterized as alimony in solido because "the lifetime of the husband did not define an ascertainable total amount to be paid." And, relying upon Jones v. Jones, 784 S.W.2d 349 (Tenn.App.1989), and Noble v. Stubblefield, 755 S.W.2d 454 (Tenn.App.1988), the court found the trial court "was without authority to modify its former decree as to the property division, including the award of the entire retirement to the husband." However, even though the Court of Appeals found the monthly payment obligation was "inseparable" from the waiver of retirement benefits, that court, "considering all factors" found the trial court had "reached a just and equitable modification" of the previous judgment and affirmed the action of the trial court reducing the monthly payments, except that it made the revision effective as of the date of the wife's motion for contempt rather than the date of the original decree. The Court of Appeals' opinion does not indicate the specific statutory authority on which its decision was based.

The first issue to be resolved is whether the monthly payment provision of the original decree is subject to modification. The legal principle applicable to this issue was stated in Penland...

To continue reading

Request your trial
78 practice notes
  • Cohen v. Cohen
    • United States
    • Supreme Court of Tennessee
    • September 16, 1996
    ...whether payment of a portion of military pension benefits was alimony in futuro or a division of marital property. Towner v.Towner, 858 S.W.2d 888 (Tenn.1993). Although the husband's right to the pension was unvested at the time of the divorce and the vesting issue was not raised, this Cour......
  • Kendrick v. Kendrick
    • United States
    • Court of Appeals of Tennessee
    • November 16, 1994
    ...Court has recognized the trend in other jurisdictions toward treating nonvested pension rights as marital property. Towner v. Towner, 858 S.W.2d 888, 891 (Tenn.1993). In addition, this court has held that a pension's vesting has no bearing on its classification as marital property, Marzo v.......
  • Johnson v Johnson, 99-00015
    • United States
    • Court of Appeals of Tennessee
    • September 14, 1999
    ...available for equitable distribution, subject to the limitations imposed by the Former Spouses' Protection Act. Towner v. Towner, 858 S.W.2d 888, 891 (Tenn. 1993). Thus, the payments to [the wife] in this case are, in effect, a distribution to her of a portion of [the husband's] military re......
  • Coleman v. Olson, No. M2015-00823-COA-R3-CV
    • United States
    • Court of Appeals of Tennessee
    • October 20, 2016
    ...App. 1979). [An MDA] is essentially a contract between a husband and wife in contemplation of divorce proceedings. See Towner v. Towner, 858 S.W.2d 888 (Tenn. 1993). In this proceeding, Husband seeks specific performance of the MDA agreement [with regard to real property]. . . . The general......
  • Request a trial to view additional results
78 cases
  • Cohen v. Cohen
    • United States
    • Supreme Court of Tennessee
    • September 16, 1996
    ...whether payment of a portion of military pension benefits was alimony in futuro or a division of marital property. Towner v.Towner, 858 S.W.2d 888 (Tenn.1993). Although the husband's right to the pension was unvested at the time of the divorce and the vesting issue was not raised, this Cour......
  • Kendrick v. Kendrick
    • United States
    • Court of Appeals of Tennessee
    • November 16, 1994
    ...Court has recognized the trend in other jurisdictions toward treating nonvested pension rights as marital property. Towner v. Towner, 858 S.W.2d 888, 891 (Tenn.1993). In addition, this court has held that a pension's vesting has no bearing on its classification as marital property, Marzo v.......
  • Johnson v Johnson, 99-00015
    • United States
    • Court of Appeals of Tennessee
    • September 14, 1999
    ...available for equitable distribution, subject to the limitations imposed by the Former Spouses' Protection Act. Towner v. Towner, 858 S.W.2d 888, 891 (Tenn. 1993). Thus, the payments to [the wife] in this case are, in effect, a distribution to her of a portion of [the husband's] military re......
  • Coleman v. Olson, No. M2015-00823-COA-R3-CV
    • United States
    • Court of Appeals of Tennessee
    • October 20, 2016
    ...App. 1979). [An MDA] is essentially a contract between a husband and wife in contemplation of divorce proceedings. See Towner v. Towner, 858 S.W.2d 888 (Tenn. 1993). In this proceeding, Husband seeks specific performance of the MDA agreement [with regard to real property]. . . . The general......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT