Towner v. Towner
| Decision Date | 06 July 1993 |
| Citation | 858 S.W.2d 888 |
| Parties | Linda Kay Keys TOWNER, Plaintiff/Appellee, v. John Anthony TOWNER, Defendant/Appellant. |
| Court | Tennessee Supreme Court |
Rodger N. Bowman, Clarksville, for plaintiff-appellee.
William L. Aldred, Jr., Clarksville, for defendant-appellant.
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 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 v. Penland, 521 S.W.2d 222 (Tenn.1975). In that case, the husband and wife had entered into an agreement whereby the husband assumed liability for the future educational expenses of the parties' children beyond high school, and the agreement had been made a part of the court's judgment. The court stated:
The authority of the courts to order child support and, if necessary, to enforce same by the process of contempt, is statutory, and generally exists only during minority. When the husband and wife contract with respect to the legal duty of child support, upon approval of that contract, the agreement of the parties becomes merged into the decree and loses its contractual nature.
However, ... it is clear that the reason for stripping the agreement of the parties of its contractual nature is the continuing statutory power of the Court to modify its terms when changed circumstances justify. It follows, and we so hold, that only that portion of a property settlement agreement between husband and wife dealing with the legal duty of child support, or alimony over which the court has continuing statutory power to modify, loses its contractual nature when merged into a decree for divorce.
Id. at 224 (citations omitted).
Based on Penland, the determinative issue in this case is whether the provision in the agreement for the making of monthly payments retained its contractual nature because it constitutes the division of marital property, or lost its contractual nature because it constitutes alimony in futuro which the court has the continuing statutory power to modify upon a showing of changed circumstances. That question can be resolved only by an examination of the language of the provision and the circumstances under which the agreement was executed and made a part of the court's judgment.
The parties, so far as the record shows, entered into the agreement freely, knowingly, in good faith and without duress, for the purpose stated in the agreement, the settlement of all rights and obligations incident to their marital relationship. The record does not show explicitly that those rights and obligations to be settled included spousal support. The record does not show whether the wife sued for support; but, there was no adjudication that the wife was entitled to support. The decree recites only that the "Marital Dissolution Agreement makes adequate and sufficient provisions ... for the equitable settlement of any property rights between the parties" and finds that the agreement is "sufficient and equitable." However, the monthly payments to be made to the wife are characterized as being "spousal support/alimony ... specifically in consideration of the wife waiving any right to the husband's military retirement."
If the payments were not an integral part of the agreement with regard to the disposition of Mr. Towner's military retirement benefits, the provision would approximate the language of T.C.A. § 36-5-101(d) (Supp.199...
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