Session November 7, 2017
from the Chancery Court for Williamson County No. 40104
Michael W. Binkley, Judge
post-divorce action, the husband filed a petition to
terminate or modify $2, 000.00 in monthly transitional
alimony that had been previously awarded to the wife as part
of the marital dissolution agreement incorporated into the
divorce decree. Following a bench trial, the trial court
found that the wife was cohabiting with her fiancé and
had failed to rebut the statutory presumption, pursuant to
Tennessee Code Annotated § 36-5-121(g)(2)(C), that she
was either providing support to or receiving support from a
third person and no longer needed the amount of alimony
previously awarded. The trial court suspended the
husband's transitional alimony obligation retroactive to
October 2015, the month when he had begun to deposit payments
into an escrow account at the court's direction. The
court also awarded to the husband attorney's fees and
expenses in the amount of $19, 331.50. The wife has appealed.
Having determined that the wife failed to rebut the statutory
presumption, we affirm the suspension of the husband's
transitional alimony obligation. However, having also
determined that the evidence does not support a finding that
the wife had the ability to pay the husband's
attorney's fees, we reverse the trial court's award
of attorney's fees to the husband. We decline to award
attorney's fees incurred on appeal to either party.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed in Part, Reversed in Part; Case
H. Altshuler and Charles G. Blackard, III, Franklin,
Tennessee, for the appellant, Melissa Marie Scherzer.
Arline Evans, Nashville, Tennessee, for the appellee, Dale
R. Frierson, II, J., delivered the opinion of the court, in
which Richard H. Dinkins, J., joined. W. Neal McBrayer, J.,
filed a separate concurring opinion.
R. FRIERSON, II, JUDGE
Factual and Procedural Background
29, 2012, the petitioner, Dale Robert Scherzer
("Husband"), and the respondent, Melissa Marie
Scherzer ("Wife"), were divorced by entry of a
final decree in the Williamson County Chancery Court
("trial court"), with Judge Derek K. Smith
presiding. The trial court concomitantly approved and entered
a marital dissolution agreement ("MDA") and a
permanent parenting plan order providing for the parties'
daughter ("the Child"), who was a minor at the time
of the divorce judgment. The parties had been married for
twenty-two years and had two children together, the oldest of
whom, a son, had reached the age of majority by the time of
the divorce. The Child was born in September 1997 and
graduated from high school while the instant proceedings were
As relevant to this appeal, the MDA includes the following
Insurance and Alimony: Husband shall pay to Wife the
sum of $2, 000.00 per month transitional alimony on the 1st
of each month beginning June 1, 2012 and continuing for a
period of 96 consecutive months for a total of 96 payments of
$2, 000 per month. Said alimony is taxable to Wife and
deductible to Husband for federal income tax purposes.
Husband will name Wife as a beneficiary of a life insurance
policy in the amount of $200, 000.00 to secure the alimony
and child support obligation contained in the Permanent
Parenting Plan, through the child's graduation from high
school (May of 2016) at such time Husband's insurance
obligation will be reduced to $100, 000.00 to secure
Husband's alimony obligation to Wife. Said alimony shall
terminate upon either party's death or the remarriage of
Wife. Proof of the policy in force shall be provided to Wife
each year. Other than stated above, each party shall receive
their own life insurance policy. Any value in any of the
current insurance contracts: CUNA, American General,
Prudential Life and Central Union shall split equally between
the parties. Each party shall assume responsibility for the
payment of their own life insurance policies effective June
filed the instant petition, Husband had regularly paid the
$2, 000.00 in monthly transitional alimony and maintained the
life insurance policy as agreed in the MDA. If left
unmodified, Husband's eight-year transitional alimony
obligation to Wife would have terminated by operation of the
MDA with a last payment due on May 1, 2020. Pursuant to the
parties' agreed permanent parenting plan order, Husband
also paid to Wife $1, 000.00 per month in child support. Wife
does not dispute that at the time of trial in this matter,
Husband had paid his child support obligation as ordered.
During the pendency of this action and upon Husband's
unopposed motion, the trial court entered an order on June
21, 2016, terminating Husband's child support obligation
because the Child, then eighteen years of age, had graduated
from high school.
time of the divorce judgment, Wife and the Child had
relocated from Tennessee to Pennsylvania to reside with
Wife's sister. Wife had worked part-time at a Hallmark
shop in the past, and upon relocating to Pennsylvania, she
initially obtained similar employment at a Hallmark shop
there. Wife subsequently rented a separate residence for
herself and the Child in June or July of 2012. Also in July
2012, Wife met David L. McKinnis and began dating him. As
evinced by Facebook posts presented at trial, Wife and Mr.
McKinnis announced their engagement on December 25, 2013. On
January 17, 2014, Wife and Mr. McKinnis purchased, as joint
tenants with right of survivorship, a parcel of real property
improved with a house in the process of being constructed.
trial in the instant action, Wife and Mr. McKinnis had not
married, but they were residing together with the Child in
the residence they had purchased. Documents presented at
trial also demonstrated that Wife and Mr. McKinnis had
jointly purchased and financed a new vehicle, a 2015 Ford
Escape ("the Escape") in May 2015. Testimony
indicated that to purchase the Escape, Wife traded in a
vehicle she had owned individually, and Mr. McKinnis traded
in one of two vehicles he had owned individually. According
to Wife, she regularly drove the Escape and made the
financing payments related to it. At the time of trial, Wife
was employed as a leasing consultant for a condominium
community and earned a net income of approximately $2, 444.26
per month, although this income varied somewhat depending on
commissions earned. Mr. McKinnis testified that at the time
of trial, he was employed full-time as a landscape and
maintenance technician, earning $13.00 per hour.
February 5, 2015, Husband commenced the instant action by
filing a petition to terminate or modify alimony pursuant to
the cohabitation provision of Tennessee Code Annotated §
36-5-121(g)(2)(C). He also requested an award of
attorney's fees and costs. Wife filed a response on March
18, 2015, asserting as affirmative defenses that under the
MDA, the statutory cohabitation provision did not apply and
that she continued to need transitional alimony. Wife
requested an award of attorney's fees and costs as well.
subsequently filed a motion for summary judgment on June 10,
2015, asserting in her "Statement of Undisputed
Facts" that Tennessee Code Annotated §
36-5-121(g)(2)(C) was inapplicable because the parties had
been aware of the cohabitation statute and had specified in
their MDA the conditions upon which transitional alimony
could be terminated with no mention of cohabitation. Husband
filed a response in opposition to Wife's motion on July
31, 2015. Following a hearing conducted on August 28, 2015,
with Circuit Court Judge Michael W. Binkley now sitting by
interchange, the trial court entered an order denying
Wife's motion for summary judgment on September 22, 2015.
Pursuant to a subsequent order entered by the trial court on
October 15, 2015, Husband paid his monthly alimony payments
into an escrow account from that date forward, pending the
outcome of this action.
trial court conducted a bench trial on November 9, 2015,
during which the parties and Mr. McKinnis testified. In a
Memorandum and Order entered April 8, 2016, the court granted
Husband's petition, suspending the transitional alimony
and awarding to Husband reasonable attorney's fees. The
court determined that (1) "the provision in the
parties' MDA for termination of alimony upon death or
remarriage does not modify, limit or supersede the statutory
right to modification of alimony upon cohabitation with a
third person, pursuant to § 36-5-121(g)(2)(C)"; (2)
Wife was undisputedly cohabiting with Mr. McKinnis, raising
the statutory presumption that because she was either
contributing to Mr. McKinnis's support or he was
contributing to hers, she no longer needed the amount of
transitional alimony previously awarded; (3) Wife had
"failed to rebut the presumption that she [was] either
receiving support from or giving support to Mr.
McKinnis"; and (4) Wife had failed to rebut "the
presumption that she no longer has a continuing need for the
award of alimony." The trial court further found that
the alimony should be suspended retroactively to the date
that Husband had begun making the payments into an escrow
account pursuant to the court's October 15, 2015 order,
with the effect that Wife was not required to reimburse any
payments that she had actually received. Upon finding that a
possibility still existed that Wife could seek a modification
in the future based on changed circumstances, the court did
not alter Husband's life insurance obligation pursuant to
the MDA. As
to the award of attorney's fees, the court directed
Husband's counsel to submit an affidavit detailing
reasonable fees and costs.
counsel filed an affidavit setting forth attorney's fees
and costs in the total amount of $19, 331.50 on April 18,
2016. Wife subsequently filed a motion to alter or amend the
judgment, pursuant to Tennessee Rule of Civil Procedure 59,
on April 22, 2016, asserting that (1) the trial court had
erred in suspending the transitional alimony because the MDA
was a contract not subject to modification and (2) no
contractual or statutory basis existed for the award of
attorney's fees. Husband filed a response objecting to
the motion. In a Memorandum and Order entered August 3, 2016,
the trial court denied Wife's motion as to the first
issue, determining that Wife was attempting to re-litigate an
adjudicated matter. The trial court reserved the
attorney's fee issue, requesting that the parties submit
additional evidence relevant to the factors underlying an
initial award of support.
Husband's subsequent motion for attorney's fees and
costs, Wife filed a response in opposition, arguing in part
that the statutory factors for an initial award of alimony
should not apply because Husband had never been a
disadvantaged spouse and Wife believed she had established
her need for transitional alimony. The trial court conducted
a hearing on September 19, 2016, during which Wife was
represented by counsel but did not appear personally, and
Husband appeared with counsel. The trial court subsequently
entered an order on October 21, 2016, stating that Wife had
not contested the reasonableness of the amount of
attorney's fees requested by Husband and reserving the
issue of whether the alimony suspension would be retroactive
to the filing of the petition.
February 21, 2017, the trial court entered an "Order for
Award of Attorney's Fees and Expenses and Retroactive
Application for the Modification of Alimony, "
confirming that the suspension of transitional alimony would
be retroactive to October 15, 2015, the date when Husband
began placing the alimony in escrow, and awarding to Husband
attorney's fees and costs in the amount of $19, 331.50.
Wife timely appealed.
presents five issues on appeal,  which we have restated as follows:
1. Whether the trial court erred by suspending Wife's
award of transitional alimony pursuant to Tennessee Code
Annotated § 36-5-121(g)(2)(C) in light of the
transitional alimony provision in the parties' MDA.
2. Whether the trial court erred by finding that Wife had
failed to rebut the presumption that she no longer needed the
amount of transitional alimony previously awarded based on
support she was receiving from or providing to a third party.
3. Whether the trial court erred by awarding to Husband
attorney's fees and expenses.
4. Whether the trial court erred by declining to award to
Wife attorney's fees and expenses.
5. Whether Wife is entitled to attorney's fees and
expenses on appeal. Husband presents the following additional
issue, which we have similarly restated as follows:
6. Whether Husband is entitled to attorney's fees and
expenses on appeal.
Standard of Review
review a non-jury case de novo upon the record, with
a presumption of correctness as to the findings of fact
unless the preponderance of the evidence is otherwise.
See Tenn. R. App. P. 13(d); Bowden v. Ward,
27 S.W.3d 913, 916 (Tenn. 2000). We review questions of law
de novo with no presumption of correctness.
Bowden, 27 S.W.3d at 916 (citing Myint v.
Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)).
The trial court's determinations regarding witness
credibility are entitled to great weight on appeal and shall
not be disturbed absent clear and convincing evidence to the
contrary. See Jones v. Garrett, 92 S.W.3d 835, 838
case, the trial court found that the statutory presumption
concerning cohabitation applied despite the absence of
cohabitation as a condition terminating transitional alimony
in the parties' MDA. In reviewing the trial court's
suspension of transitional alimony, we must therefore
consider the parties' MDA provision as well as the
cohabitation statute applied by the trial court. Marital
dissolution agreements are contractual and, once approved by
the trial court, "become legally binding obligations on
the parties." Long v. McAllister-Long, 221
S.W.3d 1, 8-9 (Tenn. Ct. App. 2006), perm. app.
denied (Tenn. Jan. 29, 2007). However, obligations
concerning the two "notable exceptions" of child
support and alimony do remain modifiable by the courts.
Id. at *9 n.7.
review issues of contract interpretation de novo.
See Dick Broad. Co. of Tenn. v. Oak Ridge FM, Inc.,
395 S.W.3d 653, 659 (Tenn. 2013). As this Court has
In resolving a dispute concerning contract interpretation,
our task is to ascertain the intention of the parties based
upon the usual, natural, and ordinary meaning of the contract
language. Planters Gin Co. v. Fed. Compress &
Warehouse Co., Inc., 78 S.W.3d 885, 889-90 (Tenn. 2002)
(citing Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95
(Tenn. 1999)). A determination of the intention of the
parties "is generally treated as a question of law
because the words of the contract are definite and
undisputed, and in deciding the legal effect of the words,
there is no genuine factual issue left for a jury to
decide." Planters Gin Co., 78 S.W.3d at 890
(citing 5 Joseph M. Perillo, Corbin on Contracts,
§ 24.30 (rev. ed. 1998); Doe v. HCA Health Servs. of
Tenn., Inc., 46 S.W.3d 191, 196 (Tenn. 2001)). The
central tenet of contract construction is that the intent of
the contracting parties at the time of executing the
agreement should govern. Planters Gin Co., 78 S.W.3d
at 890. The parties' intent is presumed to be that
specifically expressed in the body of the contract. "In
other words, the object to be attained in construing a
contract is to ascertain the meaning and intent of the
parties as expressed in the language used and to give effect
to such intent if it does not conflict with any rule of law,
good morals, or public policy." Id. (quoting 17
Am. Jur. 2d, Contracts, § 245).
Kafozi v. Windward Cove, LLC, 184 S.W.3d 693, 698
(Tenn. Ct. App. 2005), perm. app. denied (Tenn. Jan.
we review issues of statutory interpretation de
novo, adhering to the following longstanding principles:
When dealing with statutory interpretation, well-defined
precepts apply. Our primary objective is to carry out
legislative intent without broadening or restricting the
statute beyond its intended scope. Houghton v. Aramark
Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In
construing legislative enactments, we presume that every word
in a statute has meaning and purpose and should be given full
effect if the obvious intention of the General Assembly is
not violated by so doing. In re C.K.G., 173 S.W.3d
714, 722 (Tenn. 2005). When a statute is clear, we apply the
plain meaning without complicating the task. Eastman
Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004).
Our obligation is simply to enforce the written language.
Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d
99, 102 (Tenn. 2006). It is only when a statute is ambiguous
that we may reference the broader statutory scheme, the
history of the legislation, or other sources. Parks v.
Tenn. Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679
(Tenn. 1998). Further, the language of a statute cannot be
considered in a vacuum, but "should be construed, if
practicable, so that its component parts are consistent and
reasonable." Marsh v. Henderson, 221 Tenn. 42,
424 S.W.2d 193, 196 (1968). Any interpretation of the statute
that "would render one section of the act repugnant to
another" should be avoided. Tenn. Elec. Power Co. v.
City of Chattanooga, 172 Tenn. 505, 114 S.W.2d 441, 444
(1937). We also must presume that the General Assembly was
aware of any prior enactments at the time the legislation
passed. Owens v. State, 908 S.W.2d 923, 926 (Tenn.
In re Estate of Tanner, 295 S.W.3d 610, 613-14
alimony, our Supreme Court has "repeatedly and recently
observ[ed] that trial courts have broad discretion to
determine whether spousal support is needed and, if so, the
nature, amount, and duration of the award."
Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn.
2011). As to the standard of appellate review applicable when
a modification of alimony is at issue, our Supreme Court has
Because modification of a spousal support award is
"factually driven and calls for a careful balancing of
numerous factors, " Cranford v. Cranford, 772
S.W.2d 48, 50 (Tenn. Ct. App. 1989), a trial court's
decision to modify support payments is given "wide
latitude" within its range of discretion, see
Sannella v. Sannella, 993 S.W.2d 73, 76 (Tenn. Ct. App.
1999). In particular, the question of "[w]hether there
has been a sufficient showing of a substantial and material
change of circumstances is in the sound discretion of the
trial court." Watters v. Watters, 22 S.W.3d
817, 821 (Tenn. Ct. App. 1999) (citations omitted).
Accordingly, "[a]ppellate courts are generally
disinclined to second-guess a trial judge's spousal
support decision unless it is not supported by the evidence
or is contrary to the public policies reflected in the
applicable statutes." Kinard v. Kinard, 986
S.W.2d 220, 234 (Tenn. Ct. App. 1998); see also Goodman
v. Goodman, 8 S.W.3d 289, 293 (Tenn. Ct. App. 1999)
("As a general matter, we are disinclined to alter a
trial court's spousal support decision unless the court
manifestly abused its discretion.").
Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001);
see also Wiser v. Wiser, No. M2013-02510-COA-R3-CV,
2015 WL 1955367, at *3 (Tenn. Ct. App. Apr. 30, 2015),
perm. app. denied (Tenn. Sept. 17, 2015).
review a trial court's award of attorney's fees
according to an abuse of discretion standard. See Wright
ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn.
2011); In re Estate of Greenamyre, 219 S.W.3d 877,
886 (Tenn. Ct. App. 2005), perm. app. denied (Tenn.
Mar. 12, 2007) ("[A] trial court will be found to have
'abused its discretion' only when it applies an
incorrect legal standard, reaches a decision that is
illogical, bases its decision on a clearly erroneous
assessment of the evidence, or employs reasoning that causes
an injustice to the complaining party.") (internal
Applicability of Tennessee Code Annotated §
contends that the trial court erred by applying Tennessee
Code Annotated § 36-5-121(g)(2)(C) (2017) to suspend the
transitional alimony because the parties' MDA did not
contain a cohabitation clause. She relies upon the maxim of
expressio unius est exclusio alterius to argue that
because the parties did not include a cohabitation clause,
one should not be implied in interpreting the MDA as a
contract. See S.M.R. Enters., Inc. v. S. Haircutters,
Inc., 662 S.W.2d 944, 949 (Tenn. Ct. App. 1983)
(explaining in the context of interpreting a contract that
expressio unius est exclusio alterius means that
"the expression of one implies the exclusion of the
others" or "[s]tated differently, where a contract
by its express terms includes one or more things of a class
it simultaneously implies the exclusion of the balance of
that class."). Husband asserts that the language of the
transitional alimony provision in the MDA mirrors the
language of the statute and that the trial court properly
exercised its authority to apply the statute. Upon careful
review, we conclude that the trial court properly applied the
cohabitation statute to this action.
law recognizes four types of spousal support: (1) alimony
in futuro, also known as periodic alimony; (2)
alimony in solido, also known as lump-sum alimony;
(3) rehabilitative alimony; and (4) transitional alimony.
Tenn. Code Ann. § 36-5-121(d) (2017); Mayfield v.
Mayfield, 395 S.W.3d 108, 115 (Tenn. 2012). Transitional
alimony, at issue in the case at bar, "is appropriate
when a court finds that rehabilitation is not required but
that the economically disadvantaged spouse needs financial
assistance in adjusting to the economic consequences of the
divorce." See Gonsewski, 350 S.W.3d at 109
(citing Tenn. Code Ann. § 36-5-121(d)(4), (g)(1);
Riggs v. Riggs, 250 S.W.3d 453, 456 n.5 (Tenn. Ct.
App. 2007)). As our Supreme Court has explained:
Transitional alimony assists the disadvantaged spouse with
the "transition to the status of a single person."
[Gonsewski, 350 S.W.3d] at 109 (internal quotation
marks omitted). Rehabilitative alimony "is designed to
increase an economically disadvantaged spouse's
capacity for self-sufficiency, " whereas
"transitional alimony is designed to aid a spouse who
already possesses the capacity for self-sufficiency but needs
financial assistance in adjusting to the economic
consequences of establishing and maintaining a household
without the benefit of the other spouse's income."
Id. Consequently, transitional alimony has been
described as a form of short- term "bridge-the-gap"
support designed to "smooth the transition of a spouse
from married to single life." Engesser v.
Engesser, 42 So.3d 249, 251 (Fla. Dist. Ct. App. 2010).
Transitional alimony is payable for a definite period of time
and may be modified only if: (1) the parties agree that it
may be modified; (2) the court provides for modification in
the divorce decree, decree of legal separation, or order of
protection; or (3) the recipient spouse resides with a third
person following the divorce. Tenn. Code Ann. §
Mayfield, 395 S.W.3d at 115.
case, the relevant sentence in the MDA alimony provision
states: "Said alimony shall terminate upon either
party's death or the remarriage of Wife." The
statute likewise provides for termination of transitional
alimony upon the death of either the payor or the payee and
also provides that a trial court, when entering the initial
order granting transitional alimony, may add other conditions
that would cause the alimony to terminate, such as
remarriage. See Tenn. Code Ann. §
36-5-121(g)(3)-(4) (2017). As noted in Mayfield, 395
S.W.3d at 115, the statute further provides the following
contingencies that may operate to render transitional alimony
Transitional alimony shall be nonmodifiable unless:
(A) The parties otherwise agree in an agreement incorporated
into the initial decree of divorce or legal separation, or
order of protection;
(B) The court otherwise orders in the initial decree of
divorce, legal separation or order of protection; or
(C) The alimony recipient lives with a third person, in which
case a rebuttable presumption is raised that:
(i) The third person is contributing to the support of the
alimony recipient and the alimony recipient does not need the
amount of support previously awarded, and the court should
suspend all or part of the alimony obligation of the former
(ii) The third person is receiving support from the alimony
recipient and the alimony recipient does not need the amount
of alimony previously awarded and the court should suspend
all or part of the alimony obligation of the former spouse.
Code Ann. § 36-5-121(g)(2) (emphasis added).
outset, we find that in support of her argument, Wife has
relied in part on appellate decisions addressing requests for
modification of alimony in futuro. Transitional
alimony was added as a type of alimony to Tennessee's
statutory scheme through an amendment, effective August 8,
2003, to what was then Tennessee Code Annotated §
36-5-101(d)(1). See 2003 Tenn. Pub. Acts, Ch. 305
§ 1 (S.B. 622); Cox v. Cox, No.
M2003-01622-COA-R3-CV, 2004 WL 1562516, at *4 n.5 (Tenn. Ct.
App. May 5, 2004). Effective July 1, 2005, the General
Assembly amended the spousal support statutory scheme in part
to recodify what had been the spousal support subsections of
Tennessee Code Annotated § 36-5-101 as Tennessee Code
Annotated § 36-5-121. See 2005 Tenn. Pub. Acts,
Ch. 287 §§ 1-2 (S.B. 2091). At that time, the
Tennessee law regarding transitional alimony was recodified
to Tennessee Code Annotated § 36-5-121(g). Id.;
Gillespie v. Gillespie, No. E2006-00734-COA-R3-CV,
2006 WL 3732195, at *4 (Tenn. Ct. App. Dec. 19, 2006). The
2005 amendment recodifying spousal support also added, for
the first time, the cohabitation provision for transitional
alimony at issue in this action. See 2005 Pub. Acts,
Ch. 287 § 2 (S.B. 2091).
the cohabitation provision for transitional alimony does
utilize virtually the same language as the prior and current
versions of the cohabitation statutory provision applying to
alimony in futuro. See Tenn. Code Ann.
§ 36-5-121(f)(2) (2017) (alimony in futuro),
-121(g)(2) (transitional alimony); Honeycutt v.
Honeycutt, 152 S.W.3d 556, 566 (Tenn. Ct. App. 2003),
perm. app. denied (Tenn. June 1, 2004) (applying the
cohabitation provision for alimony in futuro then
codified at Tenn. Code Ann. § 36-5-101(a)(3)). We
therefore note that appellate decisions applying the law as
it existed prior to 2005 and to the statutory cohabitation
provision for alimony in futuro may be considered
highly informative in analyzing the statutory cohabitation
provision for transitional alimony. See Hickman v.
Hickman, No. E2013-00940-COA-R3-CV, 2014 WL 786506, at
*5 (Tenn. Ct. App. Feb. 26, 2014) ("Because the language
at issue in this case [concerning the statutory cohabitation
provision for transitional alimony] is identical, prior case
law interpreting § 36-5-121(f)(2)(B) [cohabitation
provision for alimony in futuro] is highly
informative and applicable here.").
argument is that the absence of an agreement in the
parties' MDA that the transitional alimony is modifiable
based on cohabitation means that the statutory cohabitation
contingency does not apply. In support of her position on
this issue, Wife particularly relies on this Court's
decision in Honeycutt, in which this Court
determined that the trial court erred by finding that the
wife had successfully rebutted the presumption raised by what
was then Tennessee Code Annotated § 36-5-101(a)(3)
because the parties' MDA expressly provided that the
wife's award of alimony in futuro would
terminate upon her cohabitation with an unrelated male.
See Honeycutt, 152 S.W.3d at 566 ("Having
determined that Wife cohabited with . . . an unrelated male,
we find that, under the plain language of the parties'
MDA, Husband's alimony obligations are
terminated."). Wife similarly relies on this Court's
decision in Myrick v. Myrick, No.
M2013-01513-COA-R3-CV, 2014 WL 2841080, at *5 (Tenn. Ct. App.
June 19, 2014), in which this Court determined that an
express condition in the parties' MDA that the alimony
in futuro awarded to Wife would terminate upon
cohabitation with any adult third party must be enforced.
See id. ("We conclude that Honeycutt
is controlling in this case insofar as it requires the
application of contract principles to MDAs, when the dispute
concerns an express condition regarding the termination of
alimony contained in the MDA."). In contrast to the MDA
provisions in Honeycutt and Myrick, Wife is
relying in this case on the absence of language regarding
cohabitation in the parties' MDA.
has correctly posited that divorcing parties may expressly
contract within an MDA to make transitional alimony
nonmodifiable despite the cohabitation contingency provided
in the statute. For this point, Wife relies on this
Court's decision concerning transitional alimony in
Vick v. Hicks, No. W2013-02672-COA-R3-CV, 2014 WL
6333965, at *4 (Tenn. Ct. App. Nov. 17, 2014), in which this
Undoubtedly, transitional alimony is generally subject to
modification post-divorce if one of the contingencies in
Tennessee Code Annotated § 36-5-121(g)(2) is
established. Trial courts do possess such authority, as
Husband has argued, as a matter of statute. See
Tenn. Code Ann. § 36-5-121(g)(2) (2014). When, however,
parties expressly agree in a marital dissolution agreement
that a transitional alimony obligation shall not be
modifiable, such an agreement should be deemed to have force.
The alimony statutes are not applicable where the parties
agree in a marital dissolution agreement to terms different
from those set out in the statutes. See Honeycutt v.
Honeycutt,152 S.W.3d 556, 563 n.5 (Tenn. Ct. App.
2003); Myrick v. Myrick, No. M2013-01513-COA-R3-CV,
2014 WL 2841080, at *4-6 (Tenn. Ct. App. June 19, 2014).
Thus, notwithstanding whatever potential relief might
otherwise be available generally as a matter of statute, the
parties' agreement should take precedence. "Parties
should be free to obligate themselves by agreement beyond
what the courts could order them to do as a matter of
law." Holt v. Holt,751 S.W.2d 426, 428 (Tenn.
Ct. App. 1988) (citation omitted). Moreover, the alimony
statute specifically contemplates that divorcing parties,
will at times, reach their own agreements as to support
payments. See Tenn. Code Ann. § 36-5-121(n)
(2014) (stating that "[n]othing in this section ...