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Karsonovich v. Kempe

Court of Appeals of Tennessee, Nashville

February 27, 2018

MARK KARSONOVICH
v.
LINDA LEE KEMPE

          Session December 7, 2017

         Appeal from the Chancery Court for Williamson County No. 45845 James G. Martin, III, Chancellor No. M2017-01052-COA-R3-CV

         This 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part; Reversed in Part

          Todd 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 Kempe.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE.

         Mr. 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 stated:

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 illustrated hereinabove.

         Mr. 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.

         Then, 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.

         On 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 attorney's fees.

         Mr. Karsonovich then appealed.

         Issues

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 ...

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