IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 23, 1998

DELBERT STONE v. PATRICIA STONE

Appeal from the Chancery Court for Putnam County

No. 94-196 Vernon Neal, Judge

No. M1997-00218-COA-R3-CV - Filed November 9, 2000

This appeal involves a former spouse’s efforts to extricate himself from the spousal support

obligations contained in a marital dissolution agreement. Approximately one year after the entry of

the divorce decree approving the agreement, the former husband requested the Chancery Court for

Putnam County to set the agreement aside because he did not have independent legal advice and his

judgment was impaired by antidepressant medication when he signed the agreement. The trial court

modified portions of the decree but did not relieve the former husband of his spousal support

obligation. Thereafter, the former husband filed a second motion seeking to terminate or reduce his

spousalsupport obligations because of his former wife’s improved financial circumstances. The trial

court again declined to relieve the former husband of his obligation to pay spousal support. On this

appeal, the former husband renews his argument that he should no longer be required pay spousal

support because of his former wife’s improved financial circumstance and his own weakened

financial condition. We affirm the trial court’s decision that the former husband has failed to prove

the existence of a substantial, material change in circumstances that would warrant modifying his

spousal support obligation.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

WILLIAM C. KOCH, Jr., J., delivered the opinion of the court, in which BEN H. CANTRELL and

WILLIAM B. CAIN, JJ., joined.

J. Brent Travelsted, Nashville, Tennessee, for the appellant, Delbert Stone.

Charles L. Hardin, Cookeville, Tennessee, for the appellee, Patricia Stone.

OPINION

Delbert E. Stone and Patricia Jackson Stone, now in their mid-fifties, were married on

December 25, 1974, in North Carolina. They have one child, a son, who was born in November

1979. Professor Stone holds a doctorate degree and is an associate professor of industrial technology
1

The agreemen t provided that Professo r Stone’s mo nthly spousal su pport pa yments would be increased by 25%

to $1,125 when his child s upport o bligations cea sed and tha t Ms. Ston e would b e entitled to 50 % of his retirement

benefits after he retired.

2

This obligation ended for the parties’ son when he reached 24 years of age or completed college but continued

for Ms. Stone for the rest of her life.

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at Tennessee Technological University in Cookeville. Ms. Stone holds a master’s degree and works

for the Tennessee Department of Human Services. 

As time passed, the parties’ marriage soured, and in March 1994, they filed a joint petition

for an irreconcilable differences divorce in the Chancery Court for Putnam County. They stated in

the petition that they contemplated entering into a marital dissolution agreement that would

“adequately provide for the custody and support of the minor child and represent a fair and equitable

division of the parties’ property and debts.” After approximately five months of direct negotiations,

the parties signed a marital dissolution agreement on August 8, 1994. Both parties certified in the

agreement that they fully understood its terms and they believed that they were “fair, just, and

reasonable.” 

The spousal support provisions of the marital dissolution agreement were particularly

favorable to Ms. Stone. The agreement required Professor Stone to pay Ms. Stone $900 per month

in “permanent alimony, whether or not Wife remarries.” It also contained provisions for adjusting

Professor Stone’s spousal support obligation when he was no longer required to pay child support

and when he retired.1

 In addition, the agreement required Professor Stone to maintain major medical

and hospitalization insurance for Ms. Stone and his son and to pay all of their medical expenses not

covered by insurance.2

 Finally, the agreement provided that “[w]ife shall be the sole beneficiary of

the estate of Husband in the event Husband predeceases Wife.” 

On August 12, 1994, the trial court entered the final divorce decree declaring the parties

divorced from each other and incorporating the parties’ marital dissolution agreement. This order

was prepared for entry by the lawyer who had undertaken to represent both parties from the inception

of the divorce proceeding.

Professor Stone eventually had second thoughts about the marital dissolution agreement and

consulted another lawyer. On July 11, 1995, nearly one year after the entry of the final divorce

decree, he filed a motion under Tenn. R. Civ. P. 60.02(1) & (2) seeking relief from the decree.

Referring to the marital dissolution agreement as an “egregious document,” Professor Stone asserted

that he was entitled to relief because he had been taking an antidepressant during the 1994

negotiations with Ms. Stone that impaired his ability to comprehend the consequences of the

agreement. He also asserted that the lawyer who represented both him and Ms. Stone in 1994 had

not provided him with appropriate independent legal advice.

The trial court held a hearing regarding Professor Stone’s motion on August 11, 1995. Based

on the testimony and other evidence presented at this hearing, the trial court entered an order on

September 8, 1995, declining to relieve Professor Stone of his spousal support obligation. However,
3

The trial court did order Ms. Stone to pay Professor Stone $1,150 representing an overpayment of dental

insurance premiums and to return certain photograp hs and other family items.

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the trial court modified the agreement in two particulars. First, the court determined that Professor

Stone would not be required to continue paying spousal support if Ms. Stone remarried. Second, the

trial court removed from the agreement the provision making Ms. Stone the sole beneficiary of

Professor Stone’s estate should he predecease her. The trial court also found as a fact that the parties

had done most of their own negotiating and that the lawyer who represented them at the time had

acted competently and ethically. Professor Stone attempted to appeal this decision; however, this

court dismissed his appeal for failure to comply with Tenn. R. App. P. 24. Stone v. Stone, No.

01A01-9601-CH-00009 (Tenn. Ct. App. Feb. 21, 1996). 

In April 1996, two months after the dismissal of his appeal, Professor Stone filed another

petition in the trial court seeking either to terminate or reduce his spousal support obligations. On

this occasion, he asserted that there had been a material change in the parties’ circumstances since

the entry of the divorce decree that warranted granting him relief from the obligations he had agreed

to assume in August 1994. The material change of circumstances on which Professor Stone relied

was his belief that Ms. Stone was “fully rehabilitated” and that she had “accumulated a substantial

savings” since the divorce. For her part, Ms. Stone denied that there had been a material change in

the parties’ circumstances and counterclaimedfor alleged arrearage in child support, spousal support,

medical payments, and insurance premiums.

The trial court held yet another hearing on March 25, 1997. During this hearing, the parties

introduced evidence that Ms. Stone had used the proceeds from the sale of the home she had received

as part of the agreed upon division of martial property to purchase two pieces of real property valued

at $231,900. Evidence was also presented that Ms. Stone had approximately $25,000 in her savings

account and that her salary had increased from $17,864.01 to $20,120.53. Professor Stone testified

that he had since remarried and provided tax returns showing that he had $52,150 in taxable income

in 1995. On May 2, 1997, the trial court entered an order denying Professor Stone relief from the

spousal support obligations.3 Professor Stone thereafter filed a Tenn. R. Civ. P. 59 motion seeking

a new trial based on the fact that his current wife had lost her $45,000 per year job “causing him

serious financial problems.” On August 13, 1997, the trial court entered an order denying Professor

Stone’s request to consider post-judgment facts and motion for a new trial. Professor Stone has now

perfected this appeal. 

I.

Professor Stone argues that there are two reasons why the trial court erred by denying his

request to terminate or reduce his spousal support obligation. First, he asserts that Ms. Stone no

longer needs support because of her improved financial circumstances. Second, he asserts that he

is no longer able to pay the amount of spousal support he had agreed to pay in 1994 because his

current wife has lost her job. Like the trial court, we have concluded that neither claim provides a

basis for triggering a reconsideration of Professor Stone’s spousal support.
4

Because a marital disso lution agreem ent is the prod uct of bargaining between the parties themselves, trial

courts may not make material or substantive changes in a marital dissolution agreemen t without both p arties’ consen t.

If the parties do not agree with a material or substantive modification proposed by the trial court, the trial court should

simply decline to approve the agreement and should explain to the parties why it is doing so.

5

There are, of cours e, matters that are not subjec t to modificatio n after a divor ce decree become s final. These

matters include (1) the classification and division of marital prop erty, Towner v. Towner, 858 S.W.2d 888 , 892 (Tenn.

1993); (2) awards of alimony in solido, Day v. Day, 931 S.W .2d 936 , 939 (T enn. Ct. Ap p. 1996 ); Brewer v. Brewer, 869

S.W.2d 928, 93 5 (Tenn . Ct. App. 1 993); and (3) child support obligations beyond those that the trial court could order,

Duck v . Howe ll, 729 S.W .2d 110 , 113 (T enn. Ct. Ap p. 1986 ). 

6

Tenn. Code A nn. § 36-5 -101(a)(1 ) specifically provides that orders or decrees involving spousal support

“remain in the court’s control.” 

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A.

A marital dissolution agreement is nothing more than a contract between spouses who are

contemplating a divorce. Gray v. Estate of Gray, 993 S.W.2d 59, 63 (Tenn. Ct. App. 1998). It is

not binding on the trial court where the divorce is pending. Youree v. Youree, 217 Tenn. 53, 58, 394

S.W.2d 869, 871 (1965). Thus, a trial court is free to satisfy itself that the terms of a marital

dissolution agreement are appropriate and fair and may accept or reject a marital dissolution

agreement based on the court’s understanding of the parties’ circumstances.4 Even after a marital

dissolution agreement has been approved and incorporated into the divorce decree, it does not

prevent the trial court from considering matters that remain, as a matter of law, within the court’s

jurisdiction.5

Spousal support is one of the subjects that remains within a trial court’s jurisdiction even

after the entry of a marital dissolution agreement containing spousal support provisions. A marital

dissolution agreement does not divest the trial court of its power under Tenn. Code Ann. § 36-5-

101(a)(1) (1996 & Supp. 1999) to modify a spousal support award if the circumstances warrant it.

Thomas v. Thomas, 46 Tenn. App. 572, 575-76, 330 S.W.2d 583, 585 (1959).6

 However, when a

spousal support provision is the result of arm’s length bargaining between the parties, the courts will

be reluctant to disturb it because it was most likely part of the inducement or consideration for other

provisions in the marital dissolution agreement which may have become unmodifiable. Lampley v.

Lampley, No. 01A01-9708-CH-00423, 1998 WL 44398, at *4 (Tenn. Ct. App. Feb. 6, 1998), perm

app. denied (Tenn. July 27, 1998).

Spousal support provisions, whether agreed to by the parties or fashioned by a court, are not

subject to revision for just any reason. Tenn. Code Ann. § 36-5-101(a)(1) states that they can be

modified “only upon a showing of a substantial and material change of circumstances.” In order to

be “substantial and material,” the circumstance must involve something that the parties either did

not or could not have reasonably contemplated when the divorce decree was entered. Givler v.

Givler, 964 S.W.2d 902, 906 (Tenn. Ct. App. 1997); Seal v. Seal, 802 S.W.2d 617, 620 (Tenn. Ct.

App. 1990); Curtis v. Curtis, No. 01A01-9810-CV-00566, 1999 WL 652000, at *2 (Tenn. Ct. App.
7

This requirement is also expressed in terms of foreseeability. Thus, some courts have stated that the change

of circumstanc es must not ha ve been re asonably fo reseeable at the time of the d ecree. McCa rty v. McCarty, 863 S.W.2d

716, 71 9 (Tenn . Ct. App. 1 992); Elliot v. Elliot, 825 S.W.2d 87, 90 (Tenn. Ct. App. 1991).

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Aug. 27, 1999) (No Tenn. R. App. P. 11 application filed).7

 The circumstance must also relate either

to the obligor spouse’s ability to pay spousal support or to the obligee spouse’s need for spousal

support. Bowman v. Bowman, 836 S.W.2d 563, 568 (Tenn. Ct. App. 1991).

The party seeking to modify an existing spousal support arrangement has the burden of

demonstrating that there has been a substantial and material change in the parties’ circumstances and

that the requested modification is warranted. Sannella v. Sannella, 993 S.W.2d 73, 76 (Tenn. Ct.

App. 1999). If the party seeking the modification meets his or her burden, then the trial court must

utilize the factors in Tenn. Code Ann. § 36-5-101(d)(1) to determine how the spousal support

obligation should be modified. Sannella v. Sannella, 993 S.W.2d at 76; Brewer v. Brewer, 869

S.W.2d at 936. Based on our review of this record, we have determined that Professor Stone has not

carried his threshold burden of demonstrating that either his or Ms. Stone’s circumstances have

changed substantially and materially since the entry of the original divorce decree in 1994.

B.

MS. STONE’S CURRENT FINANCIAL CIRCUMSTANCES

Professor Stone bases one of his substantial and material change of circumstances claims on

Ms. Stone’s current financial circumstances. He asserts that she no longer needs spousal support

because she has rehabilitated herself financially, as evidenced by the property she owns, her salary,

and the balance in her savings account. These circumstances do not provide a basis for reopening

the question of Professor Stone’s spousal support obligation because each of them could reasonably

have been foreseen by the parties when they divorced in 1994.

As part of their 1994 marital dissolution agreement, Ms. Stone received the parties’ residence

on North Dixie Avenue. Following the divorce, Ms. Stone sold the property at a favorable price and

used the proceeds to purchase two other pieces of real property, both of which are now

unencumbered. While Ms. Stone may have received more for the house than what Professor Stone

thought it was worth in 1994, both parties could easily have foreseen that Ms. Stone might elect at

some point to sell some of the real property she received in the divorce and that she might benefit

from the favorable housing market in the Cookeville area. Thus, Ms. Stone’s sale of the parties’

home and her reinvestment of the proceeds into other real property does not constitute a substantial

and material change in circumstances.

We reach a similar result when we consider the modest increase in Ms. Stone’s income. She

continues to work for the Tennessee Department of Human Services, just as she did when the parties

were divorced. She has received modest cost-of-living raises since the divorce. Both parties could,

and most likely did, anticipate that Ms. Stone would continue to be employed following the divorce

and that she would continue to receive the same cost-of-living raises received by other state

employees. An increase in a recipient spouse’s income, without more, does not trigger a
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reconsideration of spousal support. McCarty v. McCarty, 863 S.W.2d at 720; Jones v. Jones, 784

S.W.2d at 353.

Finally, we turn to the fact that Ms. Stone had approximately $25,000 in savings at the time

of the 1997 hearing. This too is not a substantial and material change of circumstances because the

parties could reasonably have foreseen that Ms. Stone would be required to be frugal with her

resources after being divorced following a twenty-year marriage. In light of the other property she

received as a result of the marital dissolution agreement, it is not surprising that Ms. Stone has been

able to maintain and accumulate some liquid assets.

C.

PROFESSOR STONE’S CURRENT FINANCIAL CONDITION

Professor Stone also asserts that his financial circumstances took an unexpected turn for the

worse when his new wife lost her $45,000 per year job. He asserts that the loss of this income has

caused him serious financial problems, and therefore, that it should trigger a reconsideration of his

spousal support obligation to Ms. Stone. While his new wife’s loss of employment may very well

be unanticipated, we have concluded that it does not provide a basis for terminating or reducing

Professor Stone’s spousal support.

We have no doubt that Professor Stone’s finances became strained when his new wife lost

her job. However, this unfortunate occurrence does not qualify as a substantial and material change

in circumstances. The voluntary assumption of new financial obligations following a divorce do not

amount to a substantial or material change in circumstances for the purpose of Tenn. Code Ann. §

36-5-101(a)(1). Sannella v. Sannella, 993 S.W.2d at 76; Jones v. Jones, 784 S.W.2d at 353. Such

voluntarily assumed obligations include remarrying, having later children, purchasing a home, and

moving to another state. Turnage v. Turnage, No. 01A01-9409-CV-00424, 1995 WL 89778, at *2

(Tenn. Ct. App. March 1, 1995) (No Tenn. R. App. P. 11 application filed); Elliot v. Elliot, 825

S.W.2d at 91-92.

When Professor Stone first agreed to pay Ms. Stone long-term spousal support in 1994, he

was certainly not married. Therefore, the amount of support he agreed to pay was based on his salary

alone. In light of his 1994 salary, Professor Stone agreed to pay Ms. Stone $900 per month and to

increase this amount to $1,125 when the parties’ son completed his education. Professor Stone was

earning $52,150 per year in 1995, and there is no evidence that his salary had declined since 1994.

Accordingly, based on Professor Stone’s salary alone, the amount of his spousal support is

appropriate. The salary or lack of salary being earned by Professor Stone’s new wife has no direct

bearing on Professor Stone’s continuing spousal support obligation.

D.

THE NATURE OF MS. STONE’S SPOUSAL SUPPORT

Finally, Professor Stone argues that his support obligation should be terminated or reduced

because the Legislature has now expressed a preference for rehabilitative alimony. He asserts that
8

The express preference for rehabilitation in Tenn. Code Ann. § 36-5-101(d)(1) was contained in Act of May

9, 1984, ch. 818, § 3, 1984 Tenn. Pub. Acts 658, 659.

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Ms. Stone is more than capable of rehabilitating herself financially, and therefore, that she was not

a candidate for long-term spousal support. Professor Stone overlooks the fact that he agreed to

support Ms. Stone on a long-term basis.

Tennessee’s divorce statutes had reflected a preference for rehabilitative support for ten years

by the time the parties began negotiating their marital dissolution agreement in 1994.8

Notwithstanding this preference,spousesmaystillreceive long-term support when the circumstances

warrant it. Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995); Isbell v. Isbell, 816 S.W.2d 735, 739

(Tenn. 1991). In light of the duration of the parties’ marriage, their educational attainments, the

respective ability to earn money and accumulate assets, it was not unreasonable in 1994 for Ms.

Stone to seek, and for Professor Stone to agree to pay, long-spousal support. Professor Stone cannot

now seek to recharacterize Ms. Stone’s support in light of current circumstances. As we observed

almost forty years ago, if Professor Stone made a bad bargain “he has no one to blame but himself..

. . The Courts should not assume a paternalistic role when the rights of persons who are sui juris are

involved.” Pipkin v. Lentz, 49 Tenn. App. 206, 217, 354 S.W.2d 87, 92 (1961). 

II.

We affirm the trial court’s denial of Professor Stone’s petition to terminate or reduce his

spousal support obligation and of his motion for a new trial and consideration of post-judgment facts,

and remand the case to the trial court for further proceedings consistent with this opinion. We tax

the costs of this appeal to Delbert Stone and his surety for which execution, if necessary, may issue.

____________________________________

WILLIAM C. KOCH, JR., JUDGE