IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

December 12, 2013 Session

DEIDRA KAY MINOR v. MELVIN RICHARD NICHOLS

An Appeal from the Circuit Court for Shelby County

No. CT-005750-08 Robert L. Childers, Judge

No. W2012-01720-COA-R3-CV - Filed January 31, 2014

This appeal involves the interpretation of a marital dissolution agreement. In the parties’

divorce, the wife was awarded the marital home and the associated debt on the home. In the

parties’ marital dissolution agreement, the husband wasrequired to pay alimony in an amount

that covered half of the wife’s monthly mortgage payments. The alimony payments were to

be made for fifteen years or until the mortgage on the marital home was “paid off in full.”

The husband stopped making his alimony payments and the wife filed a contempt petition

against him. While the contempt petition was pending, the wife fell behind on her mortgage

payments and the house was sold in foreclosure. The husband then filed a petition to

terminate his alimony obligation. After a hearing on both petitions, the trial court held the

husband’s failure to pay alimony constituted willful contempt of court. Interpreting the

marital dissolution agreement, however, the trial court also held that the husband’s alimony

obligation ended when the marital home was sold in foreclosure, because at that point the

mortgage was “paid off in full.” The wife now appeals. We decline to interpret the parties’

marital dissolution agreement in a manner that would terminate the husband’s alimony

obligation if the foreclosure resulted from his contemptuous failure to pay alimony to the

wife. Accordingly, we vacate the trial court’s decision and remand for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is

Vacated in Part and Remanded

HOLLY M. KIRBY,J., delivered the opinion of the Court, in which DAVID R. FARMER,J., and

J. STEVEN STAFFORD, J., joined.

William E. Friedman, Memphis, Tennessee, for the Plaintiff/Appellant, Deidra Kay Minor

No brief filed on behalf of Defendant/Appellee, Melvin Richard Nichols
MEMORANDUM OPINION

1

FACTS AND PROCEEDINGS BELOW

On March 2, 2009, Plaintiff/Appellant Deidra Kay Minor (“Wife”) and Defendant/Appellee

Melvin Richard Nichols (“Husband”) were divorced by final decree. The final decree

incorporated the parties’ marital dissolution agreement (“MDA”), signed on January 12,

2009. The MDA reflects that the parties’ marital home was the only marital property and the

mortgage on the home was the only marital debt.

Under the MDA, Wife received the marital home, along with the mortgage and all of the

related obligations. Husband, in turn, was to convey to Wife by quitclaim deed his interest

in the house. The MDA provided:

20. REAL ESTATE. . . . The parties agree that Wife will continue to live in

the marital residence and will be responsible for payment of all upkeep of the

property, including all bills associated with the residence including, but not

limited to, mortgage payments, utilities, phone service, house cleaning service

and minor and major repairs.

Husband agrees that he will sign a Quit Claim deed conveying any

interest he has in the property to Wife and disclaims any interest he has in the

equity of the home. Wife agrees to hold Husband harmless and indemnify him

from any payments thereof. She shall also remove Husband’s name from the

mortgage within one (1) year from the entry of the Final Decree if it is possible

for her to do so.

The MDA included a specific provision linking Husband’s alimony obligation to the

mortgage on the marital home:

21. ALIMONY. Husband shall pay the sum of $314.00 per month to Wife

as periodic alimony, with said amount being paid to Wife beginning on the

Rule 10. Memorandum Opinion 1

This Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the actions of the trial court by memorandum opinion when a formal opinion

would have no precedential value. When a case is decided by memorandum opinion it shall

be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited

or relied on for any reason in any unrelated case.

Tenn. Ct. App. R. 10.

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fifth day of the first month after the [MDA] is signed, and continuing on the

fifth day of each month thereafter for fifteen years, or until the mortgage on the

parties’ home, as it exists as of the time the [MDA] is signed, is paid off in

full. These payments will terminate automatically upon the first to occur of

Wife’s death or remarriage or Husband’s death. . . . This provision is not

modifiable by the court. After the amount set out herein has been paid in full,

Husband will have no further obligation to Wife for any spousal support,

except as set out herein. . . .

(Emphasis added). It is undisputed that Husband’s alimony was intended to help Wife meet

her mortgage obligation of $636 per month.

2

Husband quickly fell behind in his alimony payments. On November 19, 2009, Wife filed

her first petition for contempt against Husband for failure to make his alimony payments in

October and November 2009. On July 8, 2010, the trial court entered an order holding

Husband in contempt of court and finding that Husband owed Wife a total of $2,940.85, for

alimony for October 2009 through June 2010 plus interest and $2,000 in attorney fees.

The trial court’s order apparently did not motivate Husband to stay current on the required

alimony payments. On November 1, 2011, over a year after the trial court’s first contempt

order, Wife filed a second petition for contempt against Husband. This second petition

asserted that Husband had failed to pay eight months of alimony in 2011. The missed

payments totaled $2,512.00. Wife’s contempt petition asserted that Husband “deliberately,

willfully and wrongfully failed and refused to comply with” his alimony obligation.

Meanwhile, Wife fell behind on her mortgage payments. On January 6, 2012, Wife’s home

was sold in a foreclosure sale to the lender. Documents filed in the appellate record indicate

that, at the end of 2011, the county property assessor valued the marital home at about

$111,900. At that time, Wife owed about $41,700 on the mortgage, so she had significant

3

equity in the home. In the foreclosure, however, the lender purchased the home for only the

amount remaining due on the mortgage. Thus, while the outstanding debt on the house was

satisfied or “paid off,” Wife lost the substantial equity she had in the home.

On March 22, 2012, before the trial court held a hearing on Wife’s second contempt petition,

Husband filed a petition to modify the final decree of divorce to terminate his alimony

obligation. In the petition to modify, Husband acknowledged that the MDA stated that the

The mortgage amount was taken from Wife’s affidavit filed in the trial court.

2

This valuation is taken from the records of the Assessor of Property of Shelby County of Tennessee. 3

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alimony obligation was “not modifiable by the Court.” Husband asserted that, nevertheless,

he was not represented by counsel during the divorce proceedings, and that the provision in

the MDA making the alimony “not modifiable” was “unconscionable and unenforceable.”

Husband asked the trial court to relieve him of his alimony obligation because he did not

have the ability to pay it, noting that his only income was $1,342 per month in social security

and retirement benefits. At the time he executed the MDA, Husband claimed, he was living

with family members and had no rental or mortgage expense. In January 2011, Husband

said, he moved into his own residence, thus increasing his expenses substantially. He argued

that this was a substantial and material change in circumstances that left him unable to make

his alimony payments and warranted the termination of his alimony obligation.

In the alternative, Husband argued, the fact that “the parties’ home was sold in a foreclosure

sale on January 6, 2012,” constituted a substantial and material change in circumstances:

“The alimony payments were related to the mortgage payments. [Wife] no longer has this

mortgage payment, and the main reason for [Husband] paying alimony has ceased to exist.”

He claimed that he “has struggled to make his payments since entry of the Final Decree of

Divorce and this further shows that he does not have the present ability to pay the alimony.”

Thus, for this additional reason, Husband asked the trial court to terminate his alimony

obligation.

In her response to Husband’s petition to modify, Wife agreed that “the alimony payments

were related to the mortgage payments on the parties’ home,” and that the home was sold at

a foreclosure sale in January 2012. But she opposed Husband’s request for termination of

his alimony obligation because she “lost the house to foreclosure because of [Husband’s]

failure and refusal to pay her the $314.00 per month.” As a result of the foreclosure sale,

Wife claimed, she lost about $70,000 of equity in the house. Wife asserted that this loss was

a direct result of Husband’s willful failure to abide by his obligation to pay her the $314 per

month in alimony. Wife asked the trial court to dismiss Husband’s petition to modify and

to award her a judgment against Husband for the entire arrearage plus the equity she had in

the house as of the January 2012 foreclosure sale.

On June 22, 2012, the trial court conducted a hearing on the parties’ motions. The trial court

apparently issued an oral ruling at the hearing, but the appellate record does not contain a

transcript of either the hearing or the oral ruling. On July 2, 2012, the trial court entered a

written order outlining its ruling:

1. [Husband] was ordered to pay $314.00 per month alimony to [Wife]

pursuant to a Final Decree of Divorce entered on March 2, 2009. The Court

found that [Husband] was in arrears $3,454.00 plus $317.45 interest through

June, 2012. The arrears and interest total $3,771.45.

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2. The Court also awarded [Wife’s] attorney . . . an attorney fee of $1,500.00,

making the total amount awarded to [Wife] $5,271.45.

3. [Husband] made a purge payment of $2,000.00, leaving a balance of

$3,271.45. [Husband] shall pay [Wife] $300 per month to satisfy the balance.

The payments shall be sent to [Wife’s] attorney . . . until paid in full.

4. The Court ruled that under the circumstances, it was not necessary for the

Court to make a ruling on whether or not [Husband] was in willful contempt

of the Court’s previous Order.

5. The Court determined that based upon Paragraph 21 of the [MDA], the

$314.00 monthly payment that [Husband] was paying to [Wife] was lump sum

alimony rather than periodic alimony, and these payments could not be

modified by the Court.

...

7. The Court ruled that since the alimony payments were to be paid for a

specified period of time and for a sum certain, these payments were deemed

lump sum alimony pursuant to T.C.A. § 36-5-121. Since the payments were

to continue for fifteen years or until the mortgage is paid in full, the Court

ruled that the alimony payments terminated in January, 2012, the month the

parties’ home . . . was sold at a foreclosure sale.

8. The Court determined that the mortgage was deemed “paid in full” once it

was sold in foreclosure. Neither [Wife nor Husband] have any further liability

on the mortgage. The alimony payments were terminated upon the payment

of the mortgage in full as a result of the foreclosure sale. Therefore, it was not

necessary for the Court to rule on the Petition To Modify Final Decree of

Divorce.

9. The Court ruled that [Husband] was not required to make any alimony

payments after January, 2012.

Thus, the trial court deemed Husband’s alimony obligation to be lump-sum alimony and

nonmodifiable. It also found that Husband had failed to make the required alimony payments

through January 2012. The trial court held, however, that the question of whether Husband

was in willful contempt of the final decree was moot because Husband’s alimony obligation

terminated when the house was sold in foreclosure in January 2012. The trial court reasoned

that, once the foreclosure occurred, neither party had any further obligation to pay the

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mortgage and it was “paid off in full” under the terms of the MDA. In its written order, the

trial court did not address Wife’s argument that Husband’s contemptuous failure to pay

alimony caused the foreclosure and caused Wife to lose the entire equity in the house.

Wife filed a motion for reconsideration. In her motion, Wife pointed out that no testimony

4

or other evidence was presented at the June 22, 2012 hearing; the trial court based its ruling

solely upon the pleadings and statements of counsel. She reiterated her assertion that

Husband’s contemptuous conduct caused her to lose her home, and she attached to the

motion her own affidavit supporting her position. In her affidavit, Wife averred that, other

than Husband’s required alimony payments, her only income at the time was $872.59 per

month in social security benefits. She explained that the $636 monthly mortgage payment

consumed most of her monthly income, so she could not make the mortgage payments

without the additional $314 from Husband. Wife also attached to her motion the Deed of

Trust on the marital home; it indicated that, had the mortgage payments been made as

scheduled, the mortgage would have been paid off in February 2023. Thus, she contended,

the trial court’s interpretation of the MDA, allowing Husband to benefit from his willful

failure to pay, was unjust: “The Court’s ruling is entirely unjust, and is most unfair to [Wife],

in that [Husband] is rewarded, and [Wife] has sustained the loss of her home, due to

[Husband’s] failure and refusal to pay to [Wife] the monthly alimony payments of $314.00.”

On July 13, 2012, the trial court conducted a hearing on Wife’s motion to reconsider. The

appellate record includes a transcript of that hearing. At the hearing, Wife was prepared to

testify that Husband’s failure to pay the required alimony caused her to default on the

mortgage. The trial court declined to permit Wife to testify, finding her testimony

unnecessary because all of the arguments made in Wife’s motion to reconsider had been

made in the previous hearing. At the conclusion of the hearing, the trial court adhered to its

earlier ruling and denied the motion. On July 23, 2012, the trial court entered a written order

consistent with its oral ruling, again holding that the mortgage on the property was “paid off

in full” within the meaning of the MDA when the house was sold in foreclosure, so

Husband’s alimony obligation terminated at that time. From this order, Wife filed a notice

of appeal.

On December 19, 2012, in response to a show cause order issued by this Court, the trial court

issued an “Addendum to Order Entered July 2, 2012,” to resolve all remaining issues. In that

Addendum, the trial court held that Husband was, in fact, in willful contempt of the Final

Decree by his failure to make alimony payments. Nevertheless, the trial court ordered that

“no punishment be levied upon [Husband] for contempt.” The trial court also specifically

Wife’s motion for reconsideration was filed on June 26, 2012, which was after the trial court issued its oral

4

ruling but before the written order was entered.

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denied Husband’s petition to modify the Final Decree. Now that a final order has been

entered, we address the issues raised in this appeal. See Tenn. R. App. P. 3.

ISSUE ON APPEAL AND STANDARD OF REVIEW

On appeal, Wife argues that the trial court erred in concluding that the foreclosure sale of her

house satisfied the contingency in the MDA that her mortgage be “paid off in full” so as to

terminate Husband’s alimony obligation.

5

The resolution of this issue involves the interpretation of the parties’ MDA. An MDA is

contractual in nature and is binding between the parties; therefore, the interpretation of the

MDA is “subject to the rules governing construction of contracts.” Barnes v. Barnes, 193

S.W.3d 495, 498 (Tenn. 2006) (citing Johnson v. Johnson, 37 S.W.3d 892, 896 (Tenn.

2001); Honeycutt v. Honeycutt, 152 S.W.3d 556, 561 (Tenn. Ct. App. 2003)). This Court

has recognized that an MDA is a binding contract on the parties and that the parties’

contractual rights vest upon the execution of the MDA:

An MDA’s provisions pertaining to the division of the parties’ marital estate

are essentially contractual, even after they have been judicially approved and

incorporated into a divorce decree. Johnson v. Johnson, 37 S.W.3d at 896;

Wade v. Wade, 115 S.W.3d 917, 924 (Tenn. Ct. App. 2002); Gray v. Estate

of Gray, 993 S.W.2d 59, 63 (Tenn. Ct. App. 1998). The parties may not

unilaterally modify an MDA once it has been approved by the trial court.

Johnson v. Johnson, 37 S.W.3d at 895. In fact, both parties obtain a vested

interest in the property allocated to them in the MDA, and neither party may

frustrate the other’s receipt of his or her vested interest. Johnson v. Johnson,

37 S.W.3d at 897.

Elliott v. Elliott, 149 S.W.3d 77, 84 (Tenn. Ct. App. 2004). Because “the interpretation of

a contract is a matter of law, our review is de novo on the record with no presumption of

correctness in the trial court’s conclusions of law.” Honeycutt, 152 S.W.3d at 561 (citations

omitted).

The “cardinal rule” of contract construction is to ascertain the intent of the parties and

effectuate that intent consistent with applicable legal principles. Frizzell Constr. Co. v.

Gatlinburg, LLC, 9 S.W.3d 79, 85 (Tenn. 1999). This principle is also applied when

interpreting an MDA:

Wife did not appeal the trial court’s damage award based on Husband’s arrearage except to the extent that

5

the court terminated Husband’s obligation after January 2012. 

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[O]ur goal is to ascertain and give effect to the parties’ intentions. Ahern v.

Ahern, 15 S.W.3d 73, 81 (Tenn. 2000). Our search for the parties’ intentions

must focus on the MDA itself. Each provision of an MDA should be

construed in light of the entire MDA, and the language in these provisions

should be given its natural and ordinary meaning. We should construe MDAs

fairly and reasonably, and we should avoid rewriting these agreements under

the guise of “construing” them. Duvier v. Duvier, No. 01A01-9311-CH00506, 1995 WL 422465, at *3 (Tenn. Ct. App. July 19, 1995) (No Tenn. R.

App. P. 11 application filed).

Elliott, 149 S.W.3d at 84. When the language of the MDA is plain and unambiguous, courts

determine the intent of the parties from the four corners of the contract and enforce its plain

terms as written. See Int’l Flight Ctr. v. City of Murfreesboro, 45 S.W.3d 565, 570 (Tenn.

Ct. App. 2000). If, however, the contractual terms are ambiguous and the parties’ intent

cannot be ascertained from simply reading the language, courts then apply established rules

of construction. Planters Gin Co. v. Federal Compress & Warehouse Co., 78 S.W.3d 885,

890 (Tenn. 2002). “A contract [or MDA] is ambiguous only when it is of uncertain meaning

and may fairly be understood in more ways than one.” Johnson, 37 S.W.3d at 896 (quoting

Farmers-Peoples Bank v. Clemmer, 519 S.W.2d 801, 805 (Tenn. 1975)). An MDA is not

ambiguous merely “because the parties may differ as to interpretations of certain of its

provisions.” Id. at 896 (quoting Cookeville Gynecology & Obstetrics, P.C. v. Southeastern

Data Sys., Inc., 884 S.W.2d 458, 462 (Tenn. Ct. App. 1994)).

ANALYSIS

To address the issue Wife raises on appeal, we examine the trial court’s interpretation of the

parties’ MDA. As set forth above, the relevant provisions of the MDA are paragraphs 20 and

21, which grant Wife a vested interest in the marital home and impose an alimony obligation

upon Husband. We must give particular scrutiny to Paragraph 21:

21. ALIMONY. Husband shall pay the sum of $314.00 per month to Wife

as periodic alimony, with said amount being paid to Wife beginning on the

fifth day of the first month after the [MDA] is signed, and continuing on the

fifth day of each month thereafter for fifteen years, or until the mortgage on the

parties’ home, as it exists as of the time the [MDA] is signed, is paid off in

full. These payments will terminate automatically upon the first to occur of

Wife’s death or remarriage or Husband’s death. . . . This provision is not

modifiable by the court. After the amount set out herein has been paid in full,

Husband will have no further obligation to Wife for any spousal support,

except as set out herein. . . .

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(Emphasis added).

On appeal, Wife argues that the trial court’s interpretation of the MDA is erroneous because

parties could not have intended for this provision to be applied in a way that would allow

Husband to willfully fail to make alimony payments, cause Wife to lose her house and home

equity in foreclosure proceedings, and then be rewarded for his misconduct. Wife argues that

such an unfair and unjust result could not have been in the parties’ contemplation when they

signed the document. Wife maintains that the trial court erred not only in reaching this

conclusion in its July 2, 2012 order, but also in denying her motion to reconsider, in view of

the fact that Wife submitted proof that the foreclosure was caused by Husband’s failure to

make timely alimony payments. Husband did not file a brief on appeal.

6

The trial court below held, without explanation, that selling the house in foreclosure resulted

in the mortgage being “paid off in full” within the meaning of the MDA. We surmise from

the trial court’s failure to apply the rules of construction to the relevant provisions of the

MDA that the trial court felt that the MDA was clear and unambiguous on this point and that

its interpretation was consistent with the parties’ intent. We must respectfully disagree. In

our view, whether the parties intended for the mortgage to be “paid off in full” by virtue of

a foreclosure sale — rather than “paid off in full” under the terms of the mortgage — is

ambiguous under the circumstances of this case. Wife was granted the marital home in the

divorce, and both parties acknowledged in the trial court proceedings that the alimony was

intended to provide Wife with the means to pay the mortgage. Had Husband abided by the

MDA (and neither party died prematurely and Wife did not remarry), his alimony obligation

would have ended in either February 2024, after fifteen years of timely payments to Wife,

or in February 2023 after Wife’s last scheduled mortgage payment “paid off in full” the

mortgage. The MDA does not specifically address the parties’ rights and obligations upon

7

a premature sale of the house. Under these circumstances, we find that the alimony provision

in the MDA is ambiguous with respect to how a premature sale of the home affects

Husband’s alimony obligation.

Husband was given an opportunity to submit an appellate brief by this Court, but he chose not to do so. 6

Therefore, the case was submitted for decision on the appellate record, Wife’s brief, and the oral argument

of counsel for Wife.

We are puzzled by the trial court’s holding that the alimony in this case is lump sum alimony or alimony 7

in solido, in view of the fact that the total amount of alimony owed by Husband can vary depending on which

of these contingencies effectuates the termination of his alimony obligation. We have held under similar

circumstances that, when the total amount of alimony ultimately due depends on a future contingency that

could alter the total amount to be paid, the award lacks the specificity required to constitute alimony in

solido. See McKee v. McKee, 655 S.W.2d 164, 166 (Tenn. Ct. App. 1983). See also Gonsewski v.

Gonsewski, 350 S.W.3d 99, 108 (Tenn. 2011). However, the trial court’s decision to characterize the

alimony as in solido instead of in futuro was not raised as an issue on appeal, so we will not address it. 

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Furthermore, the MDA grants Wife the marital home in the divorce, and it appears that she

intended to continue to live there. It is undisputed that the alimony was intended to provide

Wife the means to pay the mortgage so that she would have a place to live. Allowing

Husband to deprive Wife of her home by failing to abide by his obligation under the MDA

is contrary to the intent to give Wife a place to live. Thus, an interpretation of the MDA that

terminates Husband’s alimony obligation upon a foreclosure of the house that was caused by

his failure to comply with the MDA is not consonant with the intent of the MDA as a whole.

Most importantly, we agree with Wife that any interpretation of the MDA that would permit

Husband to reap a windfall from his willful failure to pay the required alimony would be both

unwise policy and contrary to well-settled principles of contract construction. “The words

of a contract will be given a reasonable construction, where that is possible, rather than an

unreasonable one, and the court will likewise endeavor to give a construction most equitable

to the parties, and which will not give one of them an unfair or unreasonable advantage over

the other.” Securities Inv. Co. v. White, 91 S.W.2d 581, 583 (Tenn. Ct. App. 1935) (quoting

unreported opinion in the first appeal of the case, which quoted 13 Corpus Juris, 540-541).

Accordingly, the “interpretation which evolves the more reasonable and probable contract

should be adopted and a construction leading to an absurd result should be avoided.” Id. at

584; see also E. O. Bailey & Co. v. Union Planters Title Guar. Co., 232 S.W.2d 309, 314

(Tenn. Ct. App. 1949) (“If the language [of a contract] is susceptible of two interpretations,

one of which is reasonable and the other unreasonable when tested by the conduct of

ordinarily prudent men similarly situated, that will be adopted which is in accord with the

justice of the case.”). An interpretation of the MDA that would terminate Husband’s alimony

obligation upon a foreclosure of the house that was caused by his failure to pay the required

alimony would be unreasonable, and it would be inequitable to permit Husband to terminate

his alimony by virtue of his own misconduct.

The facts in this case as alleged by Wife may be analogized to the familiar situation in which

a parent seeks to avoid his or her support obligation by becoming willfully underemployed

or unemployed. See Anderson v. Anderson, No. 01A01-9603-CV-0018, 1996 WL 465242

at *1 (Tenn. Ct. App. Aug. 16, 1996) (“[T]he judicial system should look with the gravest

disfavor upon parents who through their fault or design become underemployed in an effort

to evade their legal, natural obligation to support their children.”). In both situations, the

court should not permit a party to avoid his lawful support obligation by wrongfully causing

the circumstance that might otherwise justify termination of the obligation. See Elliott, 149

S.W.3d at 84 (“neither party may frustrate the other’s receipt of his or her vested interest”).

Therefore, for all of these reasons, we must respectfully reject an interpretation of this MDA

that would permit Husband to benefit from his own contemptuous conduct.

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The trial court below did not permit Wife to put on evidence that the foreclosure sale resulted

from Husband’s failure to pay alimony. Consequently, we cannot determine at this juncture

whether the “paid off in full” contingency in the MDA was actually satisfied in this case. We

must remand the case to the trial court for a factual finding on the cause of the foreclosure

on the marital home, i.e., whether the foreclosure resulted from Husband’s failure to pay

alimony or for some other reason, such as Wife’s neglect or financial mismanagement. Once

that determination is made, the trial court will then be in a position to determine whether the

“paid off in full” contingency in the MDA was met in a manner that was reasonable and was

consistent with the intent of the parties so as to terminate Husband’s alimony obligation.

We observe that, in the proceedings below, the trial court appeared to place the burden on

Wife to show that Husband’s failure to pay alimony caused the house to go into foreclosure

proceedings. The trial court stated at the July 13, 2013 hearing: “I didn’t hear any evidence

8

[at the initial June 22, 2012 hearing] to prove to me by a preponderance of the evidence . .

. that [Husband’s] failure to pay his [alimony] caused the house to go into foreclosure.” As

the party seeking to terminate his alimony obligation, however, Husband bears the burden

of proving the existence of circumstances that would terminate that obligation. See Watters

v. Watters, 22 S.W.3d 817, 821 (Tenn. Ct. App. 1999). Therefore, on remand, Husband

bears the burden of showing that the “paid off in full” contingency was met, and that his

wrongdoing — that is, his willful failure to pay alimony — was not the cause of the

circumstances that would otherwise result in the termination of his alimony obligation.

With these instructions, we vacate in part the decision of the trial court and remand for

further proceedings consistent with this opinion.

9

Wife requests that this Court award her attorney fees incurred in this appeal. We must

consider several factors in exercising our discretion on this issue:

[I]t is in the sole discretion of this court whether to award attorneys’ fees on

appeal. As such, when this Court considers whether to award attorney’s fees

on appeal, we must be mindful of “the ability of the requesting party to pay the

accrued fees, the requesting party’s success in the appeal, whether the

requesting party sought the appeal in good faith, and any other equitable factor

that need be considered.”

We do not have a transcript of the initial June 22, 2012 hearing, so we take this from the trial court’s 8

remarks at the subsequent hearing. 

We note that, in light of our ruling herein, the trial court is not precluded from addressing Wife’s claim for 9

contempt damages if it is established that Husband’s failure to pay alimony was willful and that it caused

the foreclosure on Wife’s house. 

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Parris v. Parris, No. M2006-02068-COA-R3-CV, 2007 WL 2713723, at *13 (Tenn. Ct. App.

Sept. 18, 2007) (quoting Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 WL

22071454 (Tenn. Ct. App. Sept. 3, 2003)) (other internal citations omitted); see also Archer

v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995). Given the result of this appeal, the

parties’ respective financial resources, and the overall equities of the case, we grant Wife’s

request for attorney fees on appeal. See In re Jaiden C.W., No. M2012-01188-COA-R3-JV,

2013 WL 1501876, at *9 (Tenn. Ct. App. Apr. 11, 2013). On remand, the trial court shall

determine the reasonable costs and fees to which Mother is entitled.

CONCLUSION

The decision of the trial court is vacated in part and remanded for further proceedings

consistent with this Opinion. Costs on appeal are to be taxed to Defendant/Appellee Melvin

Richard Nichols and his surety, for which execution may issue, if necessary.

_________________________________

HOLLY M. KIRBY, JUDGE

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