# FILED Jan. 17, 1996 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE

TERESA K. ROSS, ) ) Plaintiff /Responde

nt/ ) Counter- Petitioner

/Appella nt, ) ) 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 DA VIDSON COUNTY AT NASHVIL

LE, TENNESSEE THE HONORABLE JAMES EVERETT

T. TURNER SN ODGRASS 2300 21st A

venue Sou

th Nashville, Tennessee 37212 Attorney for Plain tiff/Resp ondent/ Counter-Petitioner/Appellant
GRAYSON

SMITH CANN ON One Nort hChase 1000 NorthChase Drive, Suite 109 P.O. Box 749 Goodlettsville, Tennessee 37070-0749 Attorney for D efendant/Petitioner Counter-Respondent/Appellee
REVERSED A ND REMAN DED
ROBERT E. COR LEW, III SPECIAL JUD GE
CONCUR: HENRY F. TODD , JUDGE SAM L. LE WIS, JUDGE2 

### O P I N I O N From the decision of the Trial Cour t modifying the fina l decree of divorce between the parties, terminat

ing pay ments of sp ousal supp ort 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

yearsbefore

their divo rce, and the evid

ence sho ws that fr

om time to tim

e during their marri age the parties enj oyed favorable fin ancial c ircumsta nces, and at other

times unfa

vorable financial circumstances. The parties separate d, and the husband, who it is ackn owledged was engaged in an extra-marita

l affair with his secretary , sought a divorce. The husband had moved to Ne w 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 i nitially chose not to agr ee to the entry

of a decree of divorce, butsubseque

ntly , unbekno wnst to the husba nd, beg an to eng age in a

n extra-ma

rital af fair withan attorney who ha

d represented both of the parties at least at one point during their marriage
. The wife initially resisted the divor ce, but after her rel at ionship developed with the attorney , she contacted the hu sband , tell ing h im she woul d agree to the entry of the divorce if it could be done qu ic kl y. The Husband, who h ad been eage r to divor

ce for a lengthy period of

time, quic

kly proceeded

to negotiate. The wife

hired an attorney w

ho had just completed law school and either had ju st be en li ce ns ed or wa s p ro vi si on al ly l icensed, and who worked in the law office of the attorney with whom she was engaged i n the affair. This attorney met with the wife on only one occasion, found emp loy ment elsewhere, and the di vorce w as ultimat ely present ed to th e Cou rt by the attorney with whom the wif e was socially e

ngaged. In an effo rt to expedite the granting of the divorce, the wif e suggested to the husband that he should hire a Te nnessee lawyer who wo

uldfile an a

nswer fo r him, thus p

reventi ng a wa

it of thirty da ys after the filing of the divorce before the fina l decree could be entered. To this end, the a ttorney withwhom the wife was engag ed in the affair contacted another attorney who agreed to serve as counsel for the husband. The rec ord ref lects 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 re taine r fee fo r the h usban d's law yer. The ev idenc e refle cts th at the husba nd's attorney did give him advic e, althou gh prima rily after th e decree of divorce was ente red. The3

husband and wife agreed upon a ma rital dissolution agreement which the husband's attorney did not review but which was entered as a pa rt 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 a cknowle dge tha

t w i fe has advanced husband certa in monies during their

marriage and that husband desires to re pay these monies as well as pay to wife monies for their y ears of marriage. Husband agrees to pay wife $5,000.00 for each of the twenty-four y ears of their marriage; $80,000.00 for the money wife placed into t he home a

t Abbottsford that was foreclosed upon; $35,000.00 for the money wife placed into the home on Park Avenue, M ilan, Tennessee; and $2 2,000.00 wife loaned husband's brother and sister in law, f or a total o f $257,000.00. Husband a greesto repay

the $257, 000.00 as alimony in monthly installme nts 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 pay ments shall continue until the $257,000.00 has been pa id in full; that is husband agrees to pay the $2,000.00 for 128 mon th s with the final $1,000.00 due in the 129th month.
Some two weeks after the entry of the final de cr ee of

di vo rc e, th e w if e m ar ri ed he r a tt or ne y. The husband a sserts that the wife concealed her remarriage fr

om 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 month ly pay

ment s that he was contacted by a representative of the Fede ral 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 Cour

t to set asi de the de cree of divorce , assert

ing that it
was granted upon

a fraud ulent bas is, in that t

he wife w as then e

ngag ed in an e

xtra-mar ital aff air and failedto disclose that fact to the husband. It was the contention of the husband that the wife knew of the aff air in which he was engaged, and thus that she had grounds for divorce, but that he knew of no grou nd that he

had for d

iv orce, fo rcing h

im to agr ee to a ma

rital diss olution ag

reemen t to which he would not have otherwise agree d had he known that he also had grounds for divorce
. The filecontains no eviden

ce of an y qu estions fa

lsely answer ed by the wife , either

in deposit

ions, interrog atories, or in open court. Further, the husband acknowledg es that the wife's attorney never provided any a

dvice 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 al te rn at iv el y, modifying the a ward of spousal support. The Trial Court, apparently incensed by

the conduct of trial counsel, none of whom a re involv ed in this a

ppellate action, g ranted t he petitio n to4

modify support, term inati ng the award of alimony immediately. We find that the decr ee was improvide

ntly modified, and we therefor e rever se the Tr

ial Court. We concur, however, with the Trial Courtthat the conduct of trial counsel in this matter was extremely unfortunate. The unethical behavior of counsel, however, is a collateral issue, and does notaffect the merits of this case. Nonetheless, being faced with the unethica l actions, it is the dut

y of this Court to recognize more appropriate behavior whi ch couns el s hould have followed. The Tennessee Code of Pro

fessional R esponsibi lity sets forth guidelines which attorneys should follow in the practice of law. Canon 1 of that code provides "a lawy er should assist in maintaining the integr ity and confidence of the

legal p rofess ion. " Furth er, law yers are enc ouraged to "ma intai n high standards of professio n conduct." T enn essee Co de of Profe ssional Re sponsibilit y , Ethical Consideration 1-5. Lawy ers should be ... dignified, and should refrai n from all i llegal and mora

lly repreh ensible conduct. Becau se of the lawyer's po sition in soc iety , even mi nor violations of law by a la

wy er may tend to lessen the public confidence in the legal profession.
Id . A lawy

er should decline to represent an individual where he is emotionally involved with that individual and the intensity of his p ersonal feeling may tend to impair his effective professional representationof that individual. Tennessee Code of Profession al Respo nsibility , Ethical Consideration 2-30. Eth

ical Consi deratio n 5-3 fur ther sug gests th at a lawy

er's j udgment may

be clouded when he gains an interest in prope rt y i n which the client also has an interest. Id . It is further sugge sted that the possibility of an adverse e ffect upon the exercise of free judgment by a lawy er on behalf of a clie nt during litigati on gene

rally makes it undesirab le for the lawyer to a cquire a proprietary

interest in the cause of a client or otherwise to beco m e financially intere sted in the outcome of the litigation.
Tennessee Code of Pro

fessional R esponsibi lity , Ethical Consideration 5-7 . One of the Canons of the Code provides that an attorney should avoi d even th e a pp ea ra nc e o f p ro fe ss io na l i mp ro pr ie ty. Tennessee Code of Pro

fessional R esponsibi lity , Can on 9. "Public confidence in law and lawy ers may be eroded by

irresponsible or

improper con duct of a lawyer." Tennessee Code of Professional Responsib ility , Ethical Consideration 9-2. The evidence contained herein reflects that the actions of the wife's attorney certainly we

re questionable, and the in depende nce of th e attorn ey for the h usb and c ertainly

may be calle d into5

question because of the manner in which he was hired. Unfortunate though these circumstanc es are, they merely

divert our attention from the issues presented in this cause. Succin ctly

sta ted, the issues presented for our review ar e (1) whether the failure of a divorcing litigant

to volunta

rily disclose to her spouse the existence of an extra-marital affair, without responding fals ely to interr ogator ies, ques tions in

a deposit ion, or oth

er disco very

matters, combined with the failure of the other party otherwise to learnof 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 remar riage of a recipient of spousal suppor t, after the entry of the decree of divorce, pre sents a ground for modification of a decree of divorce, ter minating an order for spousal support. We must recognize initially that in many , many divorces the full spectrum of misconduct of eachof the pa

rties is not known to the other. Were we to recognize this as a g round for modification of a final decree of divorc e, 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. B rown , 863 S.W.2d 432, 434 (Tenn. Ct. App. 1993) perm. app. denied
. A party moving f

or 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 th e party for mall y, through permissibl e discovery proc edures. Certainly a different decision is reached whe re perjur ed testimon y 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 evidenc e which was formally requested ever withhel d, nor wa s perjured testimony eve r provided. Si mi la rl y, there is no obligation to disclose the fact of r emarr iage. Butcher v. Webb , 869 S.W.2d 336, 338 (Tenn. 1994). Where the actions on the part of a p arty conc ealing the fact of
remarr iage are not m ade at a time when there is an affirmative duty to notify the former spouse of remarriage, it has been he ld that these actions do not constitute fraud. Id
.6

We must also consider whether the subsequent remarriag e of the wife, separat e and apart from any alleg ation of fraud, should justify the ter mination of her

right to continue to receive spousal support. Tennessee Code Annotated § 36-5-101 (a) (3) (1991) pr ovides asfollows: In all cases where a

person is receiving alimony in futuro and the alimony recipient lives with a third pe

rson, a r ebuttal p resumptio n is there

by r aised tha t: (A) The th ird per son is contributing to the support of the alimony recipient and the alimony rec ipient therefore does not nee d the amount of support

previously awa

rded, and the court the

refore should suspend all or part of

the alimony obligation of the f ormer spouse; or (B) The third person is receivingsupport from the alimony recipient and the al im on y r ecipient therefore does not need the amount of alimony previously

awarded and the court therefor e should suspend all or part of the alimony oblig ation of the former spouse.
Id
. The proof is uncontradicted that the wife remar ried immediately af

ter the entry

of the decreeof divorce. Theref

ore, if in fact the alimony which she

was orde red to receive is alimony in futuro, the rebutta ble presumption arises. Alimony in futuro has be en defined to continue the support incident to the marit

al relat ionship, f or an inde finite period of time. Self v. Se lf , 861 S.W.2d 360, 361 (Tenn. 1993); Isbell v. Isbell , 816 S.W.2d 735, 738 (Tenn. 1 991); 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 th e recip ient 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 awa rded herein is not alimony in futuro, a nd thus not subject

to the statutory presumpt ion. The p ayments discussed in the marital dissolution agreement betwee n these parties do not meet the definition of alimony in futuro. Further, were the statutory presumpt ion to arise, as asserted

by the Appellee , then we find that the factua l circums tances p

resente d in this ca

use show that the w ife, des pite her remarriage, c ontinues to be in need of spousal support. Testimony concerning this issue, presented by the wife's current husband, shows that she is separ ated from her husband, and receives no income from him. Further, it was introduced that she has been convic ted under provisions of federal law, and was sentenced to serve a brief period of time in fe deral prison, and was placed on probation for a leng thy period of time. Given these factual circumstance s, we cannot find that the wife's need for support ha s ceased. If, rather than alimony

in futuro, the spousal support ordered is considered to be rehabilitative al im on y, 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 t he wife to be rehabilitated, however, as demonstrated by the facts cited above, we find it to ha

ve been an abuse of discretion for the Honorable Trial Court to modify the support award. Fi na ll y, upon close examination of the marital dissolution agreement incorporated into the decree of divo rce, we must consider that the languag e contained therein appears to rec ognize that
a su bst antia l sum of the total payments ordere d to b e paid by the hus band t o the w ife, al thou gh denominated alimony within the marital dissolution agree ment, actually wa s not alimony at all, but in the nature of property

division. C ertainly the pay ments to the wife in contemplation of funds which she had e

xpended in p

urchase s of resid

ences a nd loans to

the husba

nd's fa mily members,
w here properl

y r epaid to t he wife, constitute

divisions o f proper

ty, and not pa

yme nts of suppor

t. Where su ms of

mo ne y ar e p ai d b y on e s po us e t o a no th er in co ns id er at io n o f t he di vi si on of pr op er ty,
a court should not subsequ entl y 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 notconcer n him self w ith t he prec ise la ngu age 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 i nto the hom

e
on Park Avenue" is not a division of property
. In fa ct, only $120,000, repre senting "$5,000 for each of the 24 yea

rs of their marriage" a

ppears 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 Tr ial Court. Pa yments of spousal support from the husband to the wife shall be resumedimmediately, and shal l continue at the monthly rate pr ovided by the marital dissolution agreement until paid in full. This cause is remande d to the Trial Court for further proceeding s consistentwith the te rms of this Opinion. Costs of appeal must be borne by the A ppellee.

ROBERT E. CORLEW, II I, SPECIAL

JUDGE8

CONCUR:

HENRY F. TODD, JUDGE

SAM L. LEWI S, JUDGE

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE

TERESA K. ROSS, ) ) Plaintiff /Responde

nt/ )Counter- Petitioner /Appella nt, ) ) vs. ) No. 01A01-9410-PB-00470 ) Davidson County Probate WILLIAM P . ROSS , ) ) Defendant/Petitioner/ ) Counter-Respondent/Appellee. )

JUDGMENT
This cause c ame on fu

rther to be considered by

the Court upon the notice of appeal filed by the Plaintiff, and upon the briefs of both parties, thearguments of counsel, and upon the entire record in t his cause, from all of which the Court finds that the judgment of the Trial Court should be reversed, and that the decree of divorce orig inally entered by

the Trial Court

should not be modified, but should remain in force as originally issued. I T IS THER EFORE ORDERED that the judgment of the Trial Court is reversed, a nd the
cause is remand

ed for f urther p roceed ings con sistent wit

h the Opin

ion of this C ourt. Costs of appeal are taxed against the Appellee.

ROBE RT E. CORL EW, III, SPECIAL JUDG E

HENRY F. TODD, JUDGE

SAM L. LEWI S, JUDGE