### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs J

une 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

Th is appeal involves a

former spouse’s

efforts to extrica

te himself from the

spousal s uppor t obligations contained in a marital dissolution agreement. Approximately one y ear after the entry of the divorce decree

approving the a

greement, the former husband requested the Chancery Court for Putnam County to set

the agreemen

t aside because h

e did not have inde

pendent legal a

dvice and his judgment was impaired by antidepressant medication when hesigned the agreement. The trial court mod ifiedportions of the dec ree but did not rel

ieve the former

husband of his spous

a l suppor t obligation. Thereafter, the former husband filed a second motion seeking to terminate or reduce his spousal suppo rt 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 fo

rmer wif e’s impr oved financial circumstance and his own weakened financial condition. We affirm the trial court’s decision that theformer husband has failed to prove the existence of a subs

tantial, materia

l change in circ

umstances that w

oul d warrant modify

ing his spousal support obligation.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
W ILLI AM C. K OCH , Jr., J., de livered the opinion of the court, in which B EN H. C ANTRELL and W ILLI AM B. C AIN , 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 Patric

ia Jackso n St one, now in their mid-fifties, were married on December

25, 1974, in North Ca

rolina. They

have one chil

d, a son, who was born in November 1979. Professor Stone ho

lds a doctorate

degree and is

an associat e professor of industr ial techno logy1 The agreemen t provided that Professo r Stone’s mo nthly spousal su pport pa yments would be in creased by

25% t o $1,125 when his child s upport o bligations cea sed and tha t Ms. Ston e would b e entitled to 50 % of h is retir emen t benefit s afte r he ret ired.
2 This obligation en

ded for the parti

es’ son when he r

eached 24 years of age or completed college but continued for Ms. Stone for t

he rest of her

life. -2- 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 i rrec onc ila ble dif fere nces div orce in t he C han cery C our t fo r Pu tna m Co unt y. They stated in the petition that they

contemplated ent

ering into a mar

ital dissolution ag

reement that woul

d “adequately

provide for

the custody and

support of the minor

child and repres

ent a fair and eq

uitable division of the parties’ property and debts.” After approximate

ly five month

s of direct nego

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

that they fully understood its terms and t hey believe d that they were “fair, just, and reasonable.”
The spousal support provisions of the marital dissolution agreement were pa rticul arly favorable to Ms. Stone. The ag

reement requir

ed 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 andwhen he retired. 1 In addition, the agreement required Professor Stone to maintain major medical andhospitalization insurance for Ms. Stone andhis son and to pay all of their medical expenses not covered by insurance. 2 Finally, the agreement provided that “[w]if

e 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 par ties divorced from each other and incorporatin

g the parties’ m

arital dissolution a

greement. This order was prepared for entry by

the lawyer

who hadundertaken to represent both parties from the inception of the divo rce proceedi ng. Professor Stone eventually had second thoughts about the marital dissolution agreement and consultedanother lawyer. O n July 11, 1995, nearly one y ear 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 eviden

ce presented a

t 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 di d order Ms. Ston

e to p ay P rofessor Stone $1, 150 representing an overpayment of dent

al insurance premiums and to return certain photograp hs and other family items. -3- 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 p rovision 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 haddone most of their own negotiating and that the lawy er who r epresented them at the time had acted competently and ethically. Professor Stone attempted to appeal this decision; however, this court d ismissed 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, t wo months a fter the dismissal of his appeal, Professor Stone filed another petition in the trial court s eeking either t

o terminate

or reducehis 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 agre ed to assume in August

1994. The m aterial chan ge 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 chang

e in the parties’ circum

s tances and counterclaimed f or alleged arr

earage in chi

ld support, spousal s

upport, medical pay

ments, and insuran

ce premiums.
The trial court held yet another hearing on March 25, 1997. During this hearing, the parties introducedevidence that Ms. Stone had used the proceeds from the sale of the home she hadreceived as part of the agreed upon division of martial property to purchase two pieces of realproperty valued at $231,900. Evidence was also presented that Ms. Stone had approx imately $25,0 00 in her sav ings 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 obligatio

ns. 3 Professor Stone the

reafter 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 pe r 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.
P rofessor Stone argues that there are two reasons why the tria l court erred by denying

hi s request to terminate or re

duce his spousal su

pport obligation.

First, he asse

rts that Ms. St

one no longer needs su

pport because of

her improved fina

ncial circumstan

ces. Second, he a

sserts that he is no longer able t

o pay the amo

unt of spousal suppo

rt he had agreed to pay

in 1994 because hi

s current wife has lost her job. Like the trial court, we have concluded that ne

ither claim provid

es a basis for trigg

ering a recon

sideration of Prof

essor Stone’s spou

sal support.4 Because a marital disso lution agreem ent is the prod uct of b argain ing between th e parties t

hemselves, t

rial courts may not mak

e material or

substan tive ch anges in a marita l dissol ution 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 t he agreemen

t and shoul

d explain

to the par

ties wh y it i s 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 c lassi ficat ion and div

ision of marital prop erty, Towner v. Towner , 858 S.W.2d 888 , 892 (Tenn. 1993); (2) awards of

alimony in soli do, 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 tri al 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 ) specifi cally pro vides that orders or decrees involving spousal support “remain in t

he court’s cont

rol.” -4- A.
A marital dissolution agreement is nothing more tha n a contract between spouses who are contemplating a divorce. Gray v. Estate of Gray , 993 S.W.2d 59, 63 (Tenn. C t. App. 1998). It

is notbinding 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 an d mayaccept or reject a marital dissolution agreement

based on the court’s understanding of the parties’ circumstances. 4 Even after a marital dissol ution agre ement has been approved and incorporated into the divorce decree, it does not prevent the trial court from considering matters that re mai n, as a matter of law, within the court’s jurisdiction. 5 Spousal support is one of the subjects that rem ains 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 u nder 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 c

ourts will be reluctant

to disturb it because it was most likely part of the inducement or consideration for other provisions in the marital disso lution agreeme

nt 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 m

aterial,” the c

ircumstance must i nvolve something that the parties e

ither did notor could not

have reaso

nably contemplated when the divorce decree was e ntered. Givler v. Givler , 964 S.W.2d 902, 906 (Tenn. Ct. App. 1997); Seal v. Seal , 802 S.W.2d 617, 620 (T enn. Ct. App. 1990); Curtis v. Curtis , No. 01A01-9810-CV-00566, 1999 WL 652000, at *2 (Tenn. Ct. App.7 This requirement i s also express ed in terms of f oreseeabilit

y. Thus, some court

s have stat

ed 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. McC arty , 863 S.W.2d 716, 71 9 (Tenn . Ct. App. 1 992); Elliot v. Elli ot , 825 S.W.2d 87, 90 (Tenn. Ct. App. 1991). -5- Aug. 27, 1999) (No Tenn. R. App. P. 11 application filed). 7 The circumstance must also relate either to the obl igor spo use ’s a bil ity t o pa y s pousal s upport 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 e xisting 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. San ne lla , 993 S.W.2d 73, 76 (Te nn. Ct. App. 1999). If the party seeking the modification meets his or her burden, then the trial court mus

t utilize the factors in Tenn. C ode Ann. § 36-5-101(d)(1) to determine how the spousal support obligation should be modified. Sannella v. Sannel la , 993 S.W.2d a t 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 burde n 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. M S . S TONE ’ S C URRENT F INANCIAL C IRCUMSTANCES
Professor Stone bases one of his substantial and material change of circumstances claims on Ms. Stone’s current f

in an cial circumstances. He asserts that she no longer needs spousal support because she has rehabilitated herself financially, as evidenced by the property she owns, her sal ary, and the balance

in her savings a

ccount. These circumstances do not provide a basis for reopening the question of

Professor Stone’s spousal support obligation beca

use each of them c

ould 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’ resi dence on North Dixie Avenue. Following the divorce, Ms. Stone sold theproperty at a favorable price and usedthe proceeds to purchase two other pieces of real propert y, bo th 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 somepoint to sell some of the real property she received in the divorce and

that she might ben

efit from the favorable ho

using market in th

e Cookeville are

a. Thus, Ms. Stone’s

sale of the parties’ homeand her reinvestment of the proceeds into other real property does not constitute a substantial and material cha

nge in circumsta

nces.
We reach a similar

result when we co

nsider the modest in

crease 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, andmost likely did, anticipate that Ms. Stone would continue to be employed following the divorce andthat she would continue to rece ive the same cost-

of-living raise

s received by

other state employees.

An increase in a recipient spouse’s income, without more, does not trigger a-6-

reconsiderationof spousal support. McCarty v. McCart y , 863 S.W.2d at 72 0; Jones v . Jones , 784 S.W.2d at 353.
Fin all y, we turn to the fac t that Ms. Stone had approxima tely $25,000

in savings at the t

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

y have forese

en that Ms. Stone would be required to be frugal with her resources after beingdivorced following a twenty-y ear marriage. In light of the other property she received as a result of the marital dissolution agreement, it is not surprisingthat Ms. Stone has been able to maintain an

d accumulate some

liquid assets.
C. P ROFESSOR S TONE ’ S C URRENT F INANCIAL C ONDITION
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 i t does not provide a basis for terminating or reducing Professor Stone’s

spousal support.
We have no doubt that Professor Stone’s finances

became straine

d when his new wife

lost her job. However, this unfortunate occurrence does not qualif y as a substant ial and mat erial 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. Sannel la , 993 S.W.2d at 76; Jones v. Jones , 784 S.W.2d at 353. Such voluntarily

assumed obligations include remarrying, having later child ren, purchas ing a home, and moving to another state. Turnage v. Turnage , No. 01A01-94 09-CV-00

424, 1995 W

L 89778, at *2 (Tenn. Ct. App. March 1, 19 95) (No Tenn. R. Ap

p. P. 11 applicati

on 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 a

greed 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. Acco rdi ngly, based on Professo r Stone’s salary

alone, the amount o

f his spousal suppor

t is appropriate. The salary or lack of salary being earned by Professor Stone’s new wife has no dire ct bearing on Professor Stone’s continuing spousal support obligation.
D. T HE N ATURE OF M S . S TONE ’ S S POUSAL S UPPORT
Fin all y, 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 that8 The express prefer ence for rehabil

itation i n Tenn. Code Ann. § 36-5-101(d)(1) was c ontained in Act

of May 9, 1984, ch. 818, § 3, 1984 Tenn. Pub. Acts 658, 659. -7- Ms. Stone is more than capable of rehabilitatingherself financially, and therefore, that she was not a candidate for long-term spousal support. Professor Stone overlooks th e fact that he ag reed to support Ms. Stone on a

long-term basis

. Tennessee’s divorce statutes had refle cted a pref erence for rehabilitative support for ten years by the time the partie

s began negot

iating their mar

ital d issolutio n agreement in 1994. 8 Notwithstanding this p reference, spouses may still receive lo ng-term support when the circumstances warrant it. Aaron v. Aaron , 909 S.W.2d 408, 410 (T enn. 1995); Isbell v. Isbell , 816 S.W.2d 735, 739 (Tenn. 1991). In lig

ht of the duratio

n of the parties’ marriage, their educational attainments, the respectiveability to earn money and accumulate assets, it was not unreasona ble in 1994 for Ms. Stone to s eek, and for Pro fes sor Sto ne t o agr ee t o pa y, long-spousal support. Professor Stone cannot now seek to recharacterize Ms. Stone’s support in light of current circumstances. As we observed almost forty y ears ago, if

Professor Stone ma

de a bad barga

in “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 c

ourt’s denial of Pr

ofessor Sto

ne ’s petition to termin

ate or reduce h

is spousal support obligatio

n and of his motion fo

r a new trial and c

onsideration of po

st-judgment fac

ts, andremand the c ase to the t rial court f or further p roceedings consisten t with this o

pinion. We

tax the costs of this appea

l to Delbert Stone a

nd his surety

for whi ch ex ecut ion , if nece ssa ry, may issue.

____________________________________ WILLIA M C. KOCH, JR., JUDGE