FILED

Jan. 17, 1996

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

 

TERESA K. ROSS, ) 

)

Plaintiff/Respondent/ )

 Counter-Petitioner/Appellant, )

)

vs. ) No. 01A01-9410-PB-00470

) Davidson County Probate

WILLIAM P. ROSS, ) No. 90D-3573

)

Defendant/Petitioner/ )

 Counter-Respondent/Appellee. )

APPEAL FROM THE PROBATE COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE JAMES EVERETT

T. TURNER SNODGRASS

2300 21st Avenue South

Nashville, Tennessee 37212

Attorney for Plaintiff/Respondent/

Counter-Petitioner/Appellant

GRAYSON SMITH CANNON

One NorthChase

1000 NorthChase Drive, Suite 109

P.O. Box 749

Goodlettsville, Tennessee 37070-0749

Attorney for Defendant/Petitioner

Counter-Respondent/Appellee

REVERSED AND REMANDED

ROBERT E. CORLEW, III

SPECIAL JUDGE

CONCUR:

HENRY F. TODD, JUDGE

SAM L. LEWIS, JUDGE
2

O P I N I O N

From the decision of the Trial Court modifying the final decree of divorce between the

parties, terminating payments of spousal support previously ordered to be paid by the husband to the

wife, the wife appeals. 

The facts present a particularly troublesome situation for the Court. The parties were married

for twenty-four years before their divorce, and the evidence shows that from time to time during their

marriage the parties enjoyed favorable financial circumstances, and at other times unfavorable

financial circumstances. The parties separated, and the husband, who it is acknowledged was

engaged in an extra-marital affair with his secretary, sought a divorce. The husband had moved to

New York state, but found that he was unable to file for divorce there and feared that he had no

ground for divorce in Tennessee. The wife initially chose not to agree to the entry of a decree of

divorce, but subsequently, unbeknownst to the husband, began to engage in an extra-marital affair

with an attorney who had represented both of the parties at least at one point during their marriage.

 The wife initially resisted the divorce, but after her relationship developed with the attorney, she

contacted the husband, telling him she would agree to the entry of the divorce if it could be done

quickly. The Husband, who had been eager to divorce for a lengthy period of time, quickly

proceeded to negotiate. The wife hired an attorney who had just completed law school and either

had just been licensed or was provisionally licensed, and who worked in the law office of the

attorney with whom she was engaged in the affair. This attorney met with the wife on only one

occasion, found employment elsewhere, and the divorce was ultimately presented to the Court by

the attorney with whom the wife was socially engaged. 

In an effort to expedite the granting of the divorce, the wife suggested to the husband that he

should hire a Tennessee lawyer who would file an answer for him, thus preventing a wait of thirty

days after the filing of the divorce before the final decree could be entered. To this end, the attorney

with whom the wife was engaged in the affair contacted another attorney who agreed to serve as

counsel for the husband. The record reflects that the husband, then, transmitted a large amount of

funds to the escrow account of the wife's attorney for the payment of outstanding bills, and also for

payment of the retainer fee for the husband's lawyer. The evidence reflects that the husband's

attorney did give him advice, although primarily after the decree of divorce was entered. The
3

husband and wife agreed upon a marital dissolution agreement which the husband's attorney did not

review but which was entered as a part of the decree of divorce. 

At issue in this appeal is a provision of the marital dissolution agreement, which provided

in part:

1. The parties acknowledge that wife has advanced husband certain monies

during their marriage and that husband desires to repay these monies as well as pay

to wife monies for their years of marriage. Husband agrees to pay wife $5,000.00

for each of the twenty-four years of their marriage; $80,000.00 for the money wife

placed into the home at Abbottsford that was foreclosed upon; $35,000.00 for the

money wife placed into the home on Park Avenue, Milan, Tennessee; and

$22,000.00 wife loaned husband's brother and sister in law, for a total of

$257,000.00. Husband agrees to repay the $257,000.00 as alimony in monthly

installments of $2,000.00 per month commencing October 15, 1990 with subsequent

installments due and payable on or before the 15th of each successive month. The

parties agree that these payments shall continue until the $257,000.00 has been paid

in full; that is husband agrees to pay the $2,000.00 for 128 months with the final

$1,000.00 due in the 129th month. 

Some two weeks after the entry of the final decree of divorce, the wife married her attorney.

The husband asserts that the wife concealed her remarriage from him, and on occasions represented

to him that she was contemplating marriage to other persons. It was not until the husband had made

thirty-one monthly payments that he was contacted by a representative of the Federal Bureau of

Investigation, who was investigating the wife, and from when the husband learned that the wife had

in fact married her attorney. 

The husband then moved the Trial Court to set aside the decree of divorce, asserting that it

was granted upon a fraudulent basis, in that the wife was then engaged in an extra-marital affair and

failed to disclose that fact to the husband. It was the contention of the husband that the wife knew

of the affair in which he was engaged, and thus that she had grounds for divorce, but that he knew

of no ground that he had for divorce, forcing him to agree to a marital dissolution agreement to

which he would not have otherwise agreed had he known that he also had grounds for divorce. The

file contains no evidence of any questions falsely answered by the wife, either in depositions,

interrogatories, or in open court. Further, the husband acknowledges that the wife's attorney never

provided any advice to him, and never made representations to him. 

The husband filed suit seeking the order of the Court setting aside the decree of divorce, or

alternatively, modifying the award of spousal support. The Trial Court, apparently incensed by the

conduct of trial counsel, none of whom are involved in this appellate action, granted the petition to
4

modify support, terminating the award of alimony immediately. We find that the decree was

improvidently modified, and we therefore reverse the Trial Court.

We concur, however, with the Trial Court that the conduct of trial counsel in this matter was

extremely unfortunate. The unethical behavior of counsel, however, is a collateral issue, and does

not affect the merits of this case. Nonetheless, being faced with the unethical actions, it is the duty

of this Court to recognize more appropriate behavior which counsel should have followed. The

Tennessee Code of Professional Responsibility sets forth guidelines which attorneys should follow

in the practice of law. Canon 1 of that code provides "a lawyer should assist in maintaining the

integrity and confidence of the legal profession." Further, lawyers are encouraged to "maintain high

standards of profession conduct." Tennessee Code of Professional Responsibility, Ethical

Consideration 1-5.

Lawyers should be ... dignified, and should refrain from all illegal and morally

reprehensible conduct. Because of the lawyer's position in society, even minor

violations of law by a lawyer may tend to lessen the public confidence in the legal

profession.

Id. A lawyer should decline to represent an individual where he is emotionally involved with that

individual and the intensity of his personal feeling may tend to impair his effective professional

representation of that individual. Tennessee Code of Professional Responsibility, Ethical

Consideration 2-30. Ethical Consideration 5-3 further suggests that a lawyer's judgment may be

clouded when he gains an interest in property in which the client also has an interest. Id. It is

further suggested that 

the possibility of an adverse effect upon the exercise of free judgment by a lawyer on

behalf of a client during litigation generally makes it undesirable for the lawyer to

acquire a proprietary interest in the cause of a client or otherwise to become

financially interested in the outcome of the litigation. 

Tennessee Code of Professional Responsibility, Ethical Consideration 5-7. One of the Canons of

the Code provides that an attorney should avoid even the appearance of professional impropriety.

Tennessee Code of Professional Responsibility, Canon 9. "Public confidence in law and lawyers

may be eroded by irresponsible or improper conduct of a lawyer." Tennessee Code of Professional

Responsibility, Ethical Consideration 9-2. 

The evidence contained herein reflects that the actions of the wife's attorney certainly were

questionable, and the independence of the attorney for the husband certainly may be called into
5

question because of the manner in which he was hired. Unfortunate though these circumstances are,

they merely divert our attention from the issues presented in this cause. 

Succinctly stated, the issues presented for our review are (1) whether the failure of a

divorcing litigant to voluntarily disclose to her spouse the existence of an extra-marital affair,

without responding falsely to interrogatories, questions in a deposition, or other discovery matters,

combined with the failure of the other party otherwise to learn of the existence of that extra-marital

affair, sets forth a ground for modification of a divorce decree subsequently entered, incorporating

a marital dissolution agreement entered by the parties; and (2) whether the secret remarriage of a

recipient of spousal support, after the entry of the decree of divorce, presents a ground for

modification of a decree of divorce, terminating an order for spousal support. 

We must recognize initially that in many, many divorces the full spectrum of misconduct of

each of the parties is not known to the other. Were we to recognize this as a ground for

modification of a final decree of divorce, there would be no end to orders of modification. A former

spouse is not entitled to relief from a decree of divorce upon the ground that the former spouse failed

to disclose matters of significance, which were not provided through discovery. Brown v. Brown,

863 S.W.2d 432, 434 (Tenn. Ct. App. 1993) perm. app. denied. 

A party moving for post-judgment relief must describe with specificity the basis upon which

relief should be granted, and show by clear and convincing evidence that relief from the judgment

is warranted. Duncan v. Duncan, 789 S.W.2d 557, 563 (Tenn. Ct. App. 1990) perm. app. denied.

There is no provision of law which requires a party voluntarily to disclose all indiscretions or

circumstances of marital infidelity, absent such issues being addressed to the party formally, through

permissible discovery procedures. Certainly a different decision is reached where perjured testimony

is presented, or withholding of evidence which has been sought occurs. Id. There is no evidence,

however, in the record before us which reflects that any requests for discovery were ever made, nor

was any evidence which was formally requested ever withheld, nor was perjured testimony ever

provided. 

Similarly, there is no obligation to disclose the fact of remarriage. Butcher v. Webb, 869

S.W.2d 336, 338 (Tenn. 1994). Where the actions on the part of a party concealing the fact of

remarriage are not made at a time when there is an affirmative duty to notify the former spouse of

remarriage, it has been held that these actions do not constitute fraud. Id. 
6

We must also consider whether the subsequent remarriage of the wife, separate and apart

from any allegation of fraud, should justify the termination of her right to continue to receive spousal

support. Tennessee Code Annotated §36-5-101 (a) (3) (1991) provides as follows:

In all cases where a person is receiving alimony in futuro and the alimony recipient

lives with a third person, a rebuttal 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.

Id. The proof is uncontradicted that the wife remarried immediately after the entry of the decree of

divorce. Therefore, if in fact the alimony which she was ordered to receive is alimony in futuro, the

rebuttable presumption arises. Alimony in futuro has been defined to continue the support incident

to the marital relationship, for an indefinite period of time. Self v. Self, 861 S.W.2d 360, 361 (Tenn.

1993); Isbell v. Isbell, 816 S.W.2d 735, 738 (Tenn. 1991); Brewer v. Brewer, 869 S.W.2d 928, 935

(Tenn. Ct. App. 1993) perm. app. denied. This presumption may be overcome, however, when there

is a showing that the recipient of the spousal support award is still in need of support, despite her

new relationship. Azbill v. Azbill, 661 S.W.2d 682, 686 (Tenn. Ct. App. 1993) perm. app. denied.

We first find that the alimony awarded herein is not alimony in futuro, and thus not subject to the

statutory presumption. The payments discussed in the marital dissolution agreement between these

parties do not meet the definition of alimony in futuro. Further, were the statutory presumption to

arise, as asserted by the Appellee, then we find that the factual circumstances presented in this cause

show that the wife, despite her remarriage, continues to be in need of spousal support. Testimony

concerning this issue, presented by the wife's current husband, shows that she is separated from her

husband, and receives no income from him. Further, it was introduced that she has been convicted

under provisions of federal law, and was sentenced to serve a brief period of time in federal prison,

and was placed on probation for a lengthy period of time. Given these factual circumstances, we

cannot find that the wife's need for support has ceased. 

If, rather than alimony in futuro, the spousal support ordered is considered to be rehabilitative

alimony, then under current law, this support remains subject to the continued orders of the Court.
7

Tennessee Code Annotated §36-5-101 (d) (2) (1991). Due to the failure of the wife to be

rehabilitated, however, as demonstrated by the facts cited above, we find it to have been an abuse

of discretion for the Honorable Trial Court to modify the support award.

Finally, upon close examination of the marital dissolution agreement incorporated into the

decree of divorce, we must consider that the language contained therein appears to recognize that

a substantial sum of the total payments ordered to be paid by the husband to the wife, although

denominated alimony within the marital dissolution agreement, actually was not alimony at all, but

in the nature of property division. Certainly the payments to the wife in contemplation of funds

which she had expended in purchases of residences and loans to the husband's family members,

where properly repaid to the wife, constitute divisions of property, and not payments of support.

Where sums of money are paid by one spouse to another in consideration of the division of property,

a court should not subsequently modify those payments as they remain contractual in nature. 

Towner v. Towner, 858 S.W.2d 888, 890 (Tenn. 1993). Although the husband testified that he did

not concern himself with the precise language of the marital dissolution agreement, leaving such

wording to his wife, it is difficult to find that payment to the wife of "$22,000.00 for the money wife

loaned husband's brother and sister in law" and "$35,000.00 for the money wife placed into the home

on Park Avenue" is not a division of property. In fact, only $120,000, representing "$5,000 for each

of the 24 years of their marriage" appears to be in the nature of alimony. 

We therefore find that it is not proper to modify the decree of divorce, and we reverse the

decision of the Trial Court. Payments of spousal support from the husband to the wife shall be

resumed immediately, and shall continue at the monthly rate provided by the marital dissolution

agreement until paid in full. 

This cause is remanded to the Trial Court for further proceedings consistent with the terms

of this Opinion. Costs of appeal must be borne by the Appellee. 

 

ROBERT E. CORLEW, III, SPECIAL JUDGE
8

CONCUR:

 

HENRY F. TODD, JUDGE

 

SAM L. LEWIS, JUDGE

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

 

TERESA K. ROSS, ) 

)

Plaintiff/Respondent/ )
 Counter-Petitioner/Appellant, )

)

vs. ) No. 01A01-9410-PB-00470

) Davidson County Probate

WILLIAM P. ROSS, )

)

Defendant/Petitioner/ )

 Counter-Respondent/Appellee. )

JUDGMENT

This cause came on further to be considered by the Court upon the notice of appeal filed by

the Plaintiff, and upon the briefs of both parties, the arguments of counsel, and upon the entire record

in this cause, from all of which the Court finds that the judgment of the Trial Court should be

reversed, and that the decree of divorce originally entered by the Trial Court should not be modified,

but should remain in force as originally issued. 

IT IS THEREFORE ORDERED that the judgment of the Trial Court is reversed, and the

cause is remanded for further proceedings consistent with the Opinion of this Court. Costs of appeal

are taxed against the Appellee.

 

ROBERTE.CORLEW,III,SPECIALJUDGE

 

HENRY F. TODD, JUDGE

 

SAM L. LEWIS, JUDGE