### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 14, 2005 Session RAYMOND T. SCHMIDT, JR. v. BARBARA J. SCHMIDT
An Appeal from the Chancery Court for Montgomery County No. 99-08-0110 Carol A. Catalano, Chancellor

No. M2004-01350-COA-R3-CV - Filed Septem ber 15, 2005

This is a petition to modify alimony . The divorce decree require d that the husban d pay th e wife alimony of $1,500 per month for ten y ears or until she r

emarrie s. The hus

band file d this petition to terminat e his alimony obligation, asserting that there had been

a materi al change in circ

umstance s. The wi fe ma in ta in ed th at th e a li mo ny a wa rd wa s a li mo ny in solido and, ther efore, not su

bjec t to modification. The husband filed a motion for summary judgment on the issue of whether the alimony award was modifiable. The trial court held that the al im on y aw ar d w as al im on y in solido , notsubject to modification. From that order, husband now appeals. We reverse, c oncluding that the
aw ar d w as al im on y in futuro and, therefore, subject to modification.
Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cha ncery Co urt is Reversed and Remanded

H OLLY M. K IRBY , J., delivered the opinion of the Court, in which A LAN E. H IGHERS , J., and D AV ID R. F ARMER , J., joined. Carrie W. Gasaway , Clarksville, Tennessee, for the appellant, Ray mond T. Schmidt, Jr.

Kim A. McM illan, Cla

rksville, Tenness ee, for

the appe llee, Ba

rbara J. Sc

hmidt.

OPINION Petitioner/Appellant

Raymond T. Schmidt, Jr. (“Husband”), and Responde nt/Appellee Barbara J. Schmidt (“Wife”) were married. On September 22, 1999, the part ie s filed a Marital Dissol ution Agreeme nt (“MDA”) in the trial court below. On October 29, 1999, the tria l court entered a final decree of divorce, incor porating verbatim the alimony terms of the MDA. The final decree require d Husband

to pay Wife alimony as follows:

11. Beginning the first day of the mon th i mmediately following the Final Decree, the Husba

nd shall pa

y to the Wife the sum of $1,500.00 per month for alimony support for a period of ten (10) years or until such time she r emarries

.-2-

The parties acknowledge that alimony will not begin until such time the Final Decree is signed. (Emphasi s ad de d. ) T hu s, Hu sb an d w as re qu ir ed to ma ke “a li mo ny s upport” payments to Wife beginning November 1, 1999, for ten y ears unless Mother remarried.

Several ye ars late

r, on Oct ober 10, 2003, Husb and file d a “Petit io n to Terminate Alimony in Futuro and to Alter or Amen d Provisions of Final Decree.” At the outset, Husband’ s petition characterized

his alimony

pa yme nt s a s “ al im on y in futuro for a pe riod of te n ye ars until

[Wife] dies or remarries.” He claimed that, due to a material chang e in circumstances, his alimony obligation should be terminated. In response , Wife noted that the alimony

award was not contingent upon her death as alleged in Husband’s petition. Wifeargued th at th e a wa rd wa s n ot al im on y in futuro , but
ra th er wa s a li mo ny in solido , which is not subject to judicial modification or termination.

OnFebruary

25, 2004, Husband filed amotion for summary judgme nt on the issue of whether the alimony awar

d inthe final decree was subject to modification. I n his motion, he argued that th e a wa rd of

al im on y to Wi fe wa s a li mo ny in futuro , because the final decre e provide d for contingencies – the remarriag e of Wife or the passage of ten y ears – for the termination or continuationof the alimony pay ment. In support of his argume nt, Husband cited Waddey v. Waddey , 6 S.W.3d 230 (Tenn. 1999), in which the Supreme Court of Tennessee stated that an alimony awa

rd is in futuro when the award “may be affected by

contingencies agree d upon by the parties or imposed b y courts.” Waddey , 6 S.W.3d at 232. Wife argued, however, that the award in this case was alimony in solido , because it was for a definite sum of money and was intended

by the parties to be
a marital property distribution. She maintained that the contingency

of Wife’s remarriage does not make the in solido award into an in futuro award.

OnMay 4, 2004, the trial c ourt en tered an order deny ing Husband’s motion for summary judgmen t. The trial court noted that the final decree did not include a “ter mination on death”
co nt in ge nc y. The trial court reasoned, “It could be that since the Decree is silent [on the effect of Wife’s death], it was intended that [the alimony pay ments] be paid to [Wife’s] estate” upon her death, suggesting that it was an in solido award. Thus, looking at the entire divorce decree a nd the langua ge of the alimony award, the trial court concluded that, because the alimony was not designed to cease upon the death of Wife, then “it was part and pa rcel of the distribution of marital property.” The trial court rejected Husband’s contention that the reasoning in Waddey

was controlling, rely

ing instead on “other

cases cited by

[Wife].” On that basis, the trial court concluded that the alimony set outin the final de cr ee wa s a li mo ny in solido and, therefore, not subject to modification. From that orde r, Husba nd now app eals.

On appeal , Husband makes the same argument made in the tria l court, that the award o f alimony in the fina

l decre e is al im on y in futuro , n ot al im on y in solido , and, therefore, it is subject to modifica

tion. We re

view th e deni al of a motion for su mmary judgmen t de novo , with no presumption of correctness in the trial court’s decision. Johnson v. LeBonheur Children’s Med. Ctr. , 74 S.W.3d 338, 342 (Tenn. 2002). In this case, the facts are undisputed, and the only issue is1 Some of th e diff icul ty wi ll be a llev iate d by the promul gati on of Tenn esse e Code Annot ated § 36-5- 121, effective J uly 1, 20 05, w hich d escrib es the ch aracte ristics of ea ch type of alimo ny awa rd in m ore d etail.
-3- whether the awa rd set out inth e d iv or ce de cr ee wa s a li mo ny in futuro , and thereforemodifiable, or alimony in solido , not subject to modification. This is a question of law, which we review de novo , with no presumption of correctness. State v. Levandowski , 955 S.W.2d 603, 604 (Tenn. 1997).

At the time of the final dec ree in this case, Tennessee statutes provided for thr ee types of al im on y: rehabilitative, in futuro , and in solido

. See Reel v. Reel, No. M1999-01151-COA-R3-CV, 2001 WL 434864, at *3 (Tenn. Ct. App. Apr. 30, 2001). Both rehabilitative and in futuro alimony
are awarded to an economically disadvantaged spouse and are intende d to re place the financial support that was incident to the marriage relationship. See Self v. Self , 861 S.W.2d 360, 362 (Tenn. 1993). Rehabilitative alimony is awarde d to a disadvantaged spouse who is capabl e of being rehabilitated, a monetary a war d in an amount and for a time period to enable the disadvantag ed spouseto become economically self-sufficient. Id. at 363. In futuro, or perio dic, alimony i s intended for a spouse not capable of appropriate r ehabilitation, to provide long-term support and maintenance to an economically disadva ntaged spouse. Id. at 361-62. For both in futuro and rehabilitative alimony, the amount and dur ation of the award may

be modifie d where

necessa ry to meet the equities of the case, upon a showing of a substantial and materialchang e in circ umstance s. Tenn. Code Ann. § 36-5-101(d)(2) (Supp. 200 4); see also Waddey , 6 S.W.3d at 233; Self

, 861 S.W.2dat 363. Under the applicable statute, the trial court retains c ontinuing jurisdiction in order to mo di fy t he aw ar d o f r eh ab il it at iv e a li mo ny o r a li mo ny in futuro where necessa ry , untilthe award terminat es. Waddey , 6 S.W.3d at 234. S uch te rmination of the award may take place upon the
occurrenceof a contingency contained in the original decree, such as the death or remarriage of the obligee spouse. Id. Once the award of rehabilitative or in futuroalimony terminates, the trial court’s ability to modify

the award terminates as well. Id.

Inco nt ra st , a li mo ny in solido is not consid ered sup port and maintena

nce for an economically disadvantaged

sp ou se ; i nd ee d, th e t er m m ay b e a mi sn om er , s in ce al im on y in solido is in fact a form
o f divi sion of marital property. See Knowles v. Knowles , No. M2001-01282-COA-R3-CV, 2002 WL 59 85 51 , a t * 6 ( Te nn . C t. Ap p. Ap r. 19 , 2 00 2) . A li mo ny in sol ido ma y be awar ded in a lu

mp sumat the time

of the fin al decr ee, or it may be awar ded in the form of periodic pay

ments for a

given period of time. In e ither for

m, the awa

rd is of a definite amount. Waddey , 6 S.W.3d at 232. Since alimony in solido is a form of property division, it is non-modifiable and the trial court’s jurisdiction
over the award ends once theaward becomes final. Bryan v. Leach , 85 S.W.3d 136, 145-46 (Tenn. Ct. App. 2001).
Therefore, the na ture of the alimony award b ecomes i

mportant w

hen one p arty

seeks to
mo dify or terminate the a

ward. Di scernin

g the na ture of the awar

d can als o be cha

llengin g if th e language of the dec

ree is not sufficiently de scriptive, since al l three ty pes of al imony

are ty pically comprised

of court-order

ed perio dic pay

ments. 1 Againstt his backdrop, we examine the pertinent appellate decisions on the issue.2 Th is order was i ssu ed bef ore promu lgation of Tenne ssee Code Annot ated § 36-5- 101(d), eff ective Apri l 30, 1993, which pr ovided that an award of

rehabil itative su

pport was modif

iable u pon a showing of a su

bstant ial and materi al chan ge in circ umsta nces. See Self , 861 S. W.2d at 363.
-4- Inan earl y de cision, the Tenne sse e Supreme Court sought to determine if an award of alimony could be extended or modified. Self v. Self , 861 S.W.2d 360 (Tenn. 1993). In Self , the trial court awarde d the economic ally disad va nt ag ed wi fe “s up po rt in th e f or m o f a li mo ny in solido by pa ying directly to the wife

the sum of $3,000.00 per month. . . .” Id. at 360. The final decre e explained that this support would be “ sufficient to a llow her to be self supporting and obtain a Bachelor’s Degree in a

field of her choosing.” Id. It stated that the pay ments would “cease on the wife’s death or remarriage or upon the expirationof a term of forty-eight (48) consecutive months fromthe entry of the

final order, whichever occurs first.” Id. After the forty-eig ht month period had expired, the wife petitioned the trial court to extend the alimony pay

ments on the grounds that she
was unable to be rehabilitated. 2 The trial court denied thewife’s petition, determin ing that it had lost jurisdict ionov er th e m at te r b ec au se th e a wa rd wa s f or al im on y in solido , to be paid for a specifi c time period. Id. at 361. The intermediate appellate court reve rsed, holding that the contingencies set out in the decree rendered the dura tion of the award uncertain and prevented the awa rd from being in solido , and finding that the trial court retained jurisdiction to modify the award. Id. The Supreme Court reversed the court of appeals and he ld that the i n solido alim ony awar d was not rendered indefinite simply because of the inclu sion of the

remarr iage or death contingencies. To find otherwise, the Court said, would “give[] credence to form rather than substanc e.” Id. at 362. The Courtemphasized that the purpose of the award was clea rly reha bilitative, altho ug h the term “rehabilitative” was not used, in that the award of an in solido amount was intended to enable the wife to become

economic ally

self-sufficient within a limited time period. The Court stat ed that th is “was more appropriate than a long- te rm aw ar d [ of al im on y in futuro ] which wou ld be subje ct to beingincreased or decreased upon a change of

circumstances.” Therefore, the court held, the award
was al im on y in solido , as sta ted by the tri al court in the final divorce decree, and not sub ject to modification. Id. at 363.

A later d ecision by the Tenne ssee Supr eme Court, relied upon by Husband, a lso addressed whether analimony award was modifiable, employing a substantially differe

nt analysis and without referring to Self . In Waddey v. Waddey , supra , the parties we re div orced by f inal decree that incorporated

the parties’ marital dissolution agreement. In thedecree , the husba nd was re quired to pay th e w if e “ as pe ri od ic al im on y in futuro ” $1,000 each month until “the de at h o f M rs . W ad de y, the remarriage of

Mrs. Waddey, or Mar

ch 1, 1996, whichever event shall first occur.” Waddey , 6 S.W.3 dat 231. The decree stated that each pa rty had “the r

ight to petition the Court for proper modific ationof the provisions remaining within the jurisdiction of the Court upon a cha nge o f circumstance.” Id. On March 29, 1996, after the terminat ion date for the alimony pay ments had passe d, the wife filed a petition with the trial court to extend the alimony a ward bey ond the terminationdate to r

ema i n in force for the remainder of her life or until she remarried. The trial court denied the wife’s petition, finding that the petition was untimely be cause the expiration date for the alimony had passed. Id. at 231-32 . The inte rmediate appella te court affirmed on

different grounds, finding that

the alimony

award was in futuro until the da te of the last sche duled pay

ment,3 W hen the di vorce decree wa s ente red in Sept ember 1982, only two types of ali mony were recognized, alimony

in futuro and a limon y in s oli do

. Reh abilitative alimo ny was n ot includ ed in the ali mony statut es unt il t he fol lowing year in 19 83. See Wadd ey , 6 S. W.3d at 232 n. 1.
-5- butaf te r t he la st sc he du le d p aym en t, it co nv er te d i nt o a li mo ny in solido

. 3 Therefore, for that reason, the intermed

iateappellate court held that the award was not subject to modification at that time. Id. at 232. O n appeal, the S upreme Court granted certiorar i to address whether the occurrence of a contingency

in an award

of al im on y in futuro converts the in futuroaward to an award of alimony in solido . In that context, the Supreme Court explained the difference between a n award of alimony in futuroan d a li mo ny in solido :
Whether alimony is in futuro or in solido is determined by either the definiteness or indefinit enessof the sum

o f alimo ny ordere d to be paid at the time of the award. McKeev. McKee , 655 S.W.2d 164, 165 (Tenn. App. 1983). Alimony in solido is an
aw a rd of a definite sum of alimony. Spalding v. Spalding , 597 S.W.2d 739, 741 (Tenn. Ap p. 19 80 ). Al im on y in solido may be paid in installments provided the pay ments are ordered

over a definite period of time and the sum of the alimony to be paid is ascertainable when awarded. Id. Al im on y in futuro , how e ver, lacks
sum-cer tainty due to contingencies affecting the total amount of alimony to be paid. McKee , 655 S.W.2d at16 5-66 (hol ding ali mony was in futuro where husband was ordered to pay the mortg age note until either the son turned twenty-two or the

house
was sold). It is therefore cle ar that the duration of an award of al im on y in futuro may be affe cted by

conting encies a

greed upon by the part ies or impo sed by

courts.
The continued paymen

t of alim ony in the case now before us was subject to three conting encies: remarriage, death, or the pa ssage o f March

1, 1996. These con t ingencies affected the duration of the alimony . Accordingly , the sum of the alimony payable to Mrs. Waddey was not determinable when the alimony was awarded. The mere happening of a contingency does not convert an award of alimony in futuro to an aw ar d o f a li mo ny in solido . The award of alimony in solido must be ascert ainable when ordered, not years later when a contingenc y terminates

the award. The Court of Appeals, therefore, erred in ho ldin g that the occurrence of a contingency

co nv er te d a n a wa rd of

al im on y in fu tu ro to an aw ar d o f a li mo ny in solido

. Waddey , 6 S.W.3d at 232-33. Thus, the Court in Waddey stated thatthe natur

e of the a ward “is determined

by either the de finiteness or indefiniteness of the sum of alimony ordere d to be paid at the time of the award.” The Court explained

that an a ward is in solido when the total sum awarded is “ascertainable when ordere d.” Id. Wh en th e d ur at io n o f t he aw ar d o f a li mo ny is af fected by conting encies, the Court stated, the sum awarded is not determinable when ordere d and, therefore, is no t a li mo ny in solido . B as ed on th is , t he Co ur t h el d, an aw ar d o f a li mo ny in futurois no t converted to al im on y in solido upon the o ccurre nce of a conting ency

which ter minates the pay

ments. Id. at 232-33. Nevertheless, the Court found that the trial court did not retain jurisdictionto modify4 Th is statute was l ater amended t o provi de th at a wards of alimo ny in futuro or “al imony t he amount of

which is not ca lculab le on the date th e dec ree wa s entere d” sh all termina te auto matica lly upon either the death or t he remarriage of the re cipien t of such alimo ny. See Te nn. Co de A nn. § 3 6-5-1 01( a)(2 )(B ) (Sup p. 20 04)

. -6- the al im on y in futuroon ce th e p aym en ts ha d b ee n t er mi na te d b y th e o cc ur re nc e o f a co nt in ge nc y. Id. at 234.

Wife cites a decision by the Eastern section o f t his Court, decided after Waddey and well after Self , which c ites Self

but does not discuss Waddey . I n Grissom v. Grissom , 15 S.W.3d 474 (Tenn. Ct. App. 1999), the parties entered into an MDA which provided that the husband would pay the wife “$221,000, wh ic h a li mo ny in solido shall be payable $425 per week for

ten (10) ye ars, or 520 consecutive weeks, on Friday s of each week, . . . however, the al im on y in solido pay ments sha ll terminat e upon the Wife’s death.” Grissom , 15 S.W.3d at 475. The award did n ot i nclude a
remarr iage co nt in ge nc y. The wife remarried within one year of the parties’ divorce. Soon thereafter, the husband filed a petition to terminate the alimony payments. Initi ally , the tria l court sim

ply held that the alimony pay

ments terminated upon the wife’s remarriag e. Id. at 474. The Wife appealed, and the intermediate appellate court remanded the c ase, directing the trial court to hold an evidentiary

hearing to determine the intent of

the parties. Id. Upon remand, the trial court found that the contingency

upon death provision was added for tax pur

poses, and that the parties intended that the alimony pay

ments wou l d not be modified unless the wife died. Nevertheless, the trial court found that the amount of the alimony was not c a lcu lable on the date it was awarded, and applied Tennessee Code Annotated § 36-5-101(a)(2)(B) , which provide s for auto matic termination of alimony upon rema

rriag e when the alimony

is in futuro“or alimony the amount of w hich is not calculable. . . .” 4 Id. at

474-75. Thus, based on the statute, the trial court found that the husband’s alimony obligation terminated upon the wife’s remarriage. The

wife appealed once ag ain.

The appellate court first found that the statute relied upon by the trial court, Tennessee Code Annotated

§ 36-5-10 1(a)(2 )(B), was applic able“when the court has or de re d a li mo ny in futuro , not when the parties have contractually bound themselves to a fixed alimony provision.” Id. at 4 76. It went on to note that the statute stated th at it ap pl ie d t o “ al im on y in futuroor alimony the amount of whichis not calculable on the date the decree was entered,”but did not expressly apply to awards of al im on y in solido

. Id. The appe llate cou rt empha sized that t

he parti es’ MDA r

epeate dly charac terized the alimony

as in solido . Cit ing Self

, the appellate court held that the inclusion of a “termination

on death” contingency

in the in solido alimony award did not def eat its purpose as an in solido award in

tended a s an element of the marital property division, stating, “ The fact that pay ments would ter

minate up on the wif

e’s dea thdoes not

render the amount indefinite.” Id. at 476. Onthis basis, the appe llate cou rt reversed

the trial court and held that the husband’s alimony obligation did not terminate upon the wife’s remarriage. Id.

Inall of these decisions, the ultimate decision of the appellate court was consistent with the descriptionof the alimony in the divorce decree as either in futuroor in solido . In Self , the husband
was ordered to pay

“a li mo ny i n solido ,” and the award was deemed not modifiable de spite the inclusionof contingencies upon death or remarriage. Sel f , 861 S.W.2d at 363. In Waddey , the5 We note, ho weve r, that this co ntingen cy is com pletely within W ife’s control, unlike the “termination on death”

con tingenc y. -7- husband ag re ed in th e p ar ti es ’ M DA to pa y “p er io di c a li mo ny in futuro ,” and it was held that the trial
co urtno longer had jurisdiction to modify the awar d because the award had terminated, a nd not because it ha d c on ve rt ed to al im on y in solido

. Waddey , 6 S.W.3d at 232-33. In Grissom , the parties’ MD A p ro vi de d t ha t t he hu sb an d w ou ld pa y th e w if e “ al im on y in solido ,” and the appe llate court held that the payments would not terminate uponthe wife’s remarriage

. Grissom , 15 S.W.3d at 475-76. In all of these cases, the presence or absence of conting encies d

id not change the expr

ess description of the form of alimony awarded.

Inthis case, however, the alimony award is not described as either in futuroor in solido . The parties’ MDA, incorporated into the fi na l d ec re e, sa ys only that “the Husband sha ll pay to the Wife the sum of $1,500.00 per month for alimony su pport for a pe riod of te n (10) y ears or until such

time she remarries.”(Emphasis added.) Under these circumstance s, we look to the language used and,
as noted in W

addey , the absence or presence of c ontingencies to determine if the award is of alimony in futuroor al im on y in solido . The Waddey court indicated that

the question of “[w]hether alimony is in futuroor in solido is determined by either the definiteness or indefiniteness of the sum of alimony ordere d to be paid at the time of the award.” Waddey , 6 S. W. 3d at 23 2. Al im on y in solido is an award of a su m c er ta in , w hi le al im on y in futuro“lacks s um-cer tainty due to contingencies affecting

the total amount of alimony to be paid.” Id.

We note fi rst that th e pay ments are describ ed in the p arties’ MDA as “a limony support” rather than as property

division. The award also includes one contingency , termination upon Wife’s remarriage, although notably it does not provide for the pay

ments to cease upon

Wife’s death. The trial court below determined that the omission of the “termination on death” contingency distinguished

this case from Waddey

and indicated that the aw ar d w as al im on y in solido . The trial court stated, “It could be that since the De cree is silent, it was intended that [the a

limony pay ments] be made to [Wife’s] estate [up o n the death of Wife].” While the question is close, in the absence of an express designation in the decree of the na ture of th e alimo ny as in futuroor in solido , we cannot ignore t he fact that the remarriage conting ency a ffects the definitiveness of the sum of Hu sband’s alimony pay

ments. The remarriage contingency re quires that, if Wife chooses to remarry, thenshe must forfeit any fur ther support

from Husband, under the apparent presumption that her ne w spo use will contr

ibute to he

r support

. 5 If the alimony award were simply

a divisionof marita

l pr op er ty, then Wife’ s remarr iage would not be

releva nt, and Wif

e would c ontinue to

get the full benefit of the sum

certain pay ment, alb eit

over a period of time. Thus, under Waddey , because the alimony awarde d in this case “lacks s um-cer tain ty due to [the contingenc

y] affecting

the total amount of alimony to be paid,” we

must conclude that the aw ar d i s a li mo ny in futuro , rather than in solido

. Waddey , 6 S.W.3d at 232. Therefore, the alimony award is subject to modification, and the trial court’s holding to the contrary must be reversed.-8-

The decision of the trial court is reversed and the cause is rema nded for fur ther p roceed ings consiste nt with this Opinio n. C ost s on

app eal are to b e ta xed t o Ap pel lee Bar bar a J. Schmidt, for which execution may issue, if nec essary.

___________________________________ HOLL Y M. KIRBY, JUDGE