1 At the time the divor ce acti on was fil ed, the pa rties had been mar ried 18 y ears. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE Decem ber 13, 200 2 Session
CYNTHIA LEE BR

ATTON v. MICHAE L WAYNE BRATT ON
Direct Appeal from the Chancery Court for Ham blen County No. 2000-148 Hon. Thomas R. Frierson, II., Judge

MARCH 14, 2003

No. E2002-00432-COA-R3-CV

In divorce action the Trial Court granted divorce , ref used to enfor

ce a post nuptial Ag

reemen t, divided ma

rital pro perty , award

ed alimon y a nd child su

pport. On

appeal, we affi

rm. Tenn. R. App.P.3 Appe al as of Right ; Judgme nt of the Cha

ncery Court Affirm

ed.

H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the Court, in which H OUSTON M. G ODDARD , P.J., and C HARLES D. S USANO , J R ., J., joined.

Dougla s R. Beie

r, Morris town, Ten

nessee, for Appe

llant. Sarah Y. Sheppeard and Jason H. Long , Knoxville, Tennessee, for Appellee.

OPINION

In this divorce action, the Trial Court dec reed a d ivorce, divided the marita l proper ty and awarded alimony

and child support to the wife. Both parties have appea led.

At trial and on appeal, the wifeseeks to e nforce a “Prope rty Settlemen

t Agre ement” signed by the wife a

nd husband. The parties were married on June 26, 1982, and the Agreement was entered into on August 26, 1983. 1

The ag reemen t recite s in pertinent part :2 Tenn. Code Ann. § 36-3-501.
-2- WHEREAS, the parties are husband and wife and desire to provide for the future division a

nd distribu

ti on of property a

nd support of the Wife in the event of a future divorce; and
WHEREAS, the parties desire that their respec tive rig

hts and int

erests in and to all future property to be a ccumulated be expressly se t forth herein and established in accordance with the terms and provisions hereof

. NOW, THEREFORE, IN CONSI DERATION OF THE

PREMISES, the mutual benefits accruing to the re spective parties a nd other g ood and va

luable consideration, receiv ed or to be receiv ed by

each of the part ies here to, it is agreed as follows:

1. In the event the Husband

is guilty of statutory

grounds for divorce under the statutes of the state the parties are domiciled and the Wife institut es divorce procee dings in t

he state courts of such st

ate, all p roperty jointly owned by the parties, re al, persona l, or mixed, s hall be di vided equ ally betwee n the par ties.

2. In the event the Husband is g uilty of statutory

grounds for divorce under the statutes o f the st ate the p arties are domiciled and the Wife institutes divorce proceedings in the state courts of such state, the H usband shall pay to the Wife, one- half

(1⁄2) of all of the Husband’s net gross income (a fter deduction for state and federal income taxes).

Prior to trial, th e Trial Judge granted partial summary judgment, holding that the contractual provision

relating to the husb and’s ag

reeing to pay one-half to his ne

t income to

the wife was not supported by conside ration.

On appeal, the wife

insists the Agr

eement isvalid and

must be en

forced by t he Court.

Cases dealing with prenuptial agree ments offer little guidance because those agree ments are sanctioned and regulated by statute. 2 Postnuptial agreements are neither sanctioned nor reg ulated by statute bu

t are to b e interp

reted a nd enfor ced as ot her cont racts.
At the time the Agreement

was signed, the husband was enrolled in medical school in Memphis, a

nd his wife

was work

ing. The parti es’ version s urrounding the execution of the Agreement

differ somewhat. The wife testified that they had discussed

such an arrangement prior to marriage, and that she ga ve up the idea

of having a care er, and t

hat they both unde

rstood he would pay her one-half of his future earni ngs in exchang e for he r agreeing to s tay

at home a

nd raise his3 The husband in his brief argue s that if

such is valuable consideration, the wife breache d the alleged contrac t that she remain hom e when she pursued and accepted e mployment outside the home.
-3- children.

The husband te stified th at his wif e came h ome one day a

nd told him that a doctor she workedwith at St. Jude’s told her that her husband would leave her one day , and that she wanted a contract to protect

her. She testified they w ere not having any marital problems at the time, and he told her he was not planning on leaving her.

Both parties testified that wife would do so mething in exchange’s for the husband’s promise regarding his future

income. T

he wife t estified that she w ould fore go her

caree r to stay home and rear the children. 3 The husband testified that the wi fe agreed to st ay in the m arriage in ex change for his signing the Agreement. This would be a benefit flowing to him. Both parties testified that the wife would do something in exchange for the husband’s promise re garding his future income. We disagree with the Trial Judge’s conclusion that there was no consideration for this contract, since consideration may

consist of

either a benefit to the promissor or a detriment to the promissee. See Trailer Conditions, Inc., v. Huddleston , 897 S.W.2d 728 (Tenn. Ct. App. 1995).

If the contrac t

is enforced as written, the wife would rece ive one-half of the husband’s income, and additionally 32% of his inc ome would be pay able as c

hild suppor

t under the guide

lines. This would leave the husband with 18% of his income.

We preter mit any consider ation of th e issu es of duress, fairnes s and unc onsciona bility which may be

gro unds n ot to e

nfor ce a n agreem ent. We hold the Agreement is in conflict with the divorce statutes of this Stat e . The operative provisions of the contract are only triggered upon a finding by a

court that “husband is guilty of statutory g

rounds for divorce under

the statutes of

the State”.

Divorces in this jurisdiction are heavily reg ulated by statute. Tenn. Code Ann. § 36- 4-121(a)(1) provides that marital prope rty is to be “a ssigned

without regard

to fault” and alimony is awarded based upon several statutory factors, one of

which is the relative fault of the parties which may be considered, but is within the trial judge’s discretion. See Tenn. C ode Ann. § 36-5- 101(K)(d)(1). The par ties’ contr act can only be ren dered o perati ve by resor ting t o the courts in a divor ce acti on, and the husband is found to be guilty of grounds for divorce as descr ibed in the divorce statute. Yet, the Agreement preempts the c ourt from equitably assig ning the marital p

roperty without consider

ation of f ault, and preempt s th e cour t from considering the issue of alimony , and essentia lly would award the wife one-half of the husba

nd’s futu re incom e based s olely

upon fau lt. We hold these provisions are void as aga inst public policy in this State within the context of the parties’ Agreement which pre dicates the benefits to the wife solely on husband’s fault.

We affirm t

he Trial Court’s r efusal to enforce the Agree

ment, but on other

grounds as set forth in this Opinion.4 The husband argue s t hat the proper standard of review should be de novo with no

presumption of corr

ectness , because the Trial Court was construing a statute. As the Supreme Court has explained, however, “the Trial Court has wide discretion in awar ding ali mo ny, and appe

llate review of the Trial Court’s finding s of fac t is de novo upon the record accompanied by a presumption of the correctness of the

findings.” Robertson v. Robertson , 76 S.W.3d 337, 342 (Tenn. 2001), citing Goodman v. Goodman , 8 S.W.3d 289, 293 (Tenn. Ct. App. 1999) (“As a gen eral mat ter, we are disinclined to alter a trial court’s spo usa l support d ecision u nless the court ma nifestly abused it s discretion.”).
-4-

T he husband argues that the Trial Court erred in its awa rd of alimony bec ause t h e Courtlooked at

the part ies’ standard of

living during the marriage, a s the primary fa ctor in making the award. The statutory

factors to be considered in awards of a limonyare set forth in Tenn. Code Ann. § 36-5-10 1. At tria

l, the wif e said her monthly expenses aver aged $17,000.00, and at the time of trial she was not earning any income. The husband’s education and training were superior

to the wife’s and the marriage was of long duration. The wife had

always bee

n the primary ca

retaker of the minor children, but the children are now of such age as the wife would not be prohibited from working outside the home. Neither party had significant separ ate assets, and the ma rital pro perty was divided. Both parties contributed to the marriag e and they enj oyed a ve ry high sta

ndard of livi ng, due to the husband’s income as an orthopedic surgeon. The husband was f ound to be at fault in the brea

k up of the

marriag e, admitti ng that h e had been having an affair with a c o-worker for whom he had expended

large sums of money

during their romance. While the husband arg ues the Courtrelied too heavily on the f actor concerning

the parties’ standard of living, a review of the Trial Court’s Opinion demonstrates that the Trial Court considered all of the statutory factors in making its award of alimony

to the wife. The Trial Court discussed the statute and the most significant factors to be cons idered w ere nee d and abil ity t o pay. The Court then

discussed rehabilitation, and the fact that the legislature had expressed a pr eference for same.

The Court con cluded th

e wife w as econo mically

disadvantaged, due to the fact that she had chosen to for ego her own car eer in order to support her husband, so that she could be a homemaker

and caretaker for the childre n. The Court also noted the wife had worked a s a

realtor, butthat her

business a

ttempts “had pro ven fina

ncially unsuccessful”. The Court then noted the wife could not be rehabilitated to the standard of living which the parties had en joyed dur ing th e marri age and conc luded tha

t conside ring “a ll applica ble fac tors,” a

n award of $10,50 0.00 per

month would be appropriate. The evidence does not preponderate against this finding. Te nn. R. App. P. 13(d). 4

The Supreme Court in Robertson v. R obertson , 76 S.W.3d 337 (Tenn. 2002) explained that marital standard of l ivi ng is but one factor to be considered pursuant to the statute, but should not be the sole factor for dete rmining the fea sibility

of reha bilitation . This is precis ely what the Trial Court

did, i.e., considered marital standard of living as one factor, not the only factor. Moreover, the Supreme Court in Robertson made clea r that “[t]rial courts should not refrain, howev er, from awarding lo ng-term support when appropriate under the numerated statutory

factors.” Id. at 342.-5- Fina ll y, the husba

nd arg ues the Tr

ial Court w as requi

red to divide the ma

rit al propert

y equally under the Agree ment, but f

ailed to do so for several reasons. He arg ues that the Trial Court unfairly required him to pay more

of the parties’ debts that

should hav e been d

ivided eq ually as well. The Agreement which we decline to e nforce speaks only

of jointly-owned property , and we do not base our decision on the Agreement. We conclude that the assig nment of debts and marital p roperty by the Trial Court was fair and equitable as the evidence does not prepond erate a gainst h is finding s. Tenn. R. App. P. 13(d).

The husband also argues that the A.G. Edwards accoun

t (worth $ 11,128.78 ) should nothave been classified as marital property . He ar gu es the wife took half of the value of that account when she filed for

divorce. However, the fact that the wife re moved half of the value of the account does n ot cha nge the status of the account from joint property to separate property . Husband conceded in his brief that the division of assets was equal and that the action by the Trial Court as to this asset achieved that effect.

Husband further argues it was err or for the Court to require h im to make up the difference

in an account’s value to the wife because the account decreased in value f rom the tim

e the order went

down until i

t was tra nsferr ed, due to market f luctuatio n. He ig nores, however, wife’s charge that the husband contributed to the decreased value by willfully failing to make

the transfer in a timely

manner. The Court

determined that th

is was the equitable solution, and the evidence does not preponderate against that decision.

For the fore going

reasons , we aff

irm the Judgment of the T rial Court and remand, withthe cost o f the app eal asse ssed one- half toCynthia L ee Bratton, and one-half to Michael Way ne Bratton.

_________________________ H ERSCHEL P ICKENS F RANKS , J.