Session December 7, 2017
from the Chancery Court for Williamson County No. 45845 James
G. Martin, III, Chancellor No. M2017-01052-COA-R3-CV
case involves the grant of a Tenn. R. Civ. P. 12.02(6) motion
to dismiss a complaint for declaratory judgment. Two years
after the parties' final divorce was entered, Mr.
Karsonovich lost his job and filed a complaint for
declaratory judgment to determine his alimony obligations.
Mr. Karsonovich sought a declaration that the alimony
provision was void and unenforceable because the provision
was ambiguous and against public policy. Ms. Kempe filed a
Tenn. R. Civ. P. 12.02(6) motion to dismiss the complaint,
arguing that the provision was unambiguous and not void
against public policy. The trial court agreed with Ms. Kempe
and granted the motion to dismiss. The court also awarded Ms.
Kempe her attorney's fees incurred from defending the
suit. We reverse the trial court's decision to dismiss
the complaint because there was an actual controversy for the
court to decide. However, the trial court also decided the
controversy at issue when it determined that the provision
was neither ambiguous nor void against public policy, with
which we agree. Thus, we affirm the court's decision on
the merits of the complaint. We reverse the trial court's
decision to award Ms. Kempe her attorney's fees and
remand for the trial court to determine whether
attorney's fees are still appropriate based upon our
reversal of the dismissal.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed in Part; Reversed in
Godwin Cole, II, and Shea Thomas Hasenauer, Brentwood,
Tennessee, for the appellant, Mark Karsonovich.
Gregory Dye Smith, Brenton Hall Lankford, and Ann Ralls
Niewold, Nashville, Tennessee, for the appellee, Linda Lee
D. Bennett, J., delivered the opinion of the Court, in which
Richard H. Dinkins and W. Neal McBrayer, JJ., joined.
D. BENNETT, JUDGE.
Karsonovich and Ms. Kempe were divorced by order of the court
on April 1, 2014. The final decree incorporated their Marital
Dissolution Agreement ("MDA") and Permanent
Parenting Plan. The MDA contained an alimony provision which
Alimony: Husband shall pay to wife monthly non-modifiable
transitional alimony as follows in the amount(s) and time
period(s) listed hereinbelow:
$1, 500.00 per month from February 1, 2014 until August 31,
2016; $2, 000.00 per month from September 1, 2016 until
January 31, 2019; $1, 000.00 per month from February 1, 2019
until November 1, 2027.
Wife's alimony shall be secured by life insurance on
Husband's life in the amount of $200, 000.00, and Wife
shall be named primary irrevocable beneficiary of the entire
$200, 000. Husband must show proof of the entire policy to
Wife 30 days after entry of Final Decree and every year
thereafter, on the anniversary of the Final Decree.
Said alimony award shall be paid directly to Wife as
Karsonovich's employment was terminated in early June of
2016, and his income decreased to weekly payments of $275.00,
which he received from the Florida Department of Economic
Opportunity Unemployment Benefits. Four months later, on
October 16, 2016, Mr. Karsonovich filed a verified petition
to modify the final divorce decree, citing a material and
substantial change in circumstances as to why the MDA's
alimony provision should be modified. Mr. Karsonovich later
voluntarily nonsuited the petition.
on January 12, 2017, Mr. Karsonovich filed a complaint for
declaratory judgment which sought a declaration as to whether
the MDA's alimony provision was (1) ambiguous and
unenforceable; (2) ambiguous but enforceable as to length,
modifiability, and terms for suspension of Mr.
Karsonovich's alimony obligation; or (3) void ab
initio as a matter of public policy. Mr.
Karsonovich argued that the term "non-modifiable
transitional alimony" was ambiguous due to the alimony
payments' duration and the increase from the first set of
payments to the second.
March 3, 2017, Ms. Kempe filed a motion to dismiss
Plaintiff's complaint, arguing the MDA provision was
unambiguous and not void as against public policy. The trial
court agreed with Ms. Kempe and, on April 13, 2017, granted
the motion, finding that the "parties voluntarily
contracted to provisions beyond the scope of the statute that
the subject transitional alimony would be non-modifiable. The
Court further found that the alimony language in the
parties' [MDA] is unambiguous and does not violate public
policy." The court then gave the parties time to file
briefs on the issue of attorney's fees and, on May 10,
2017, the court entered an order awarding Ms. Kempe her
Karsonovich then appealed.
Mr. Karsonovich raises five issues on appeal:
1. Under Tenn. R. Civ. P. 12.02(6), did a claim exist upon
which relief could be granted when the Appellant, Mr.
Karsonovich, filed a Complaint for Declaratory Judgment for a
declaration of rights regarding the alimony provision of his
Marital Dissolution Agreement with the Appellee, Ms. Kempe?
2. Under Tennessee's law governing attorney fees, should
the Chancery Court's grant of the Appellee's request
for attorney fees be overturned because the Tenn. R. Civ. P.
12.02(6) Motion to Dismiss was improperly granted?
3. Under Tennessee case law, including principles of
efficiency and judicial economy, should this Court of Appeals
rule on the legal questions of whether the Marital
Dissolution Agreement's alimony provision ...