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Scherzer v. Scherzer

Court of Appeals of Tennessee, Nashville

May 24, 2018

DALE ROBERT SCHERZER
v.
MELISSA MARIE SCHERZER Expense Amount Total $2, 945.[65] Total per Person $1, 472.83 Expense Amount (Wife) Amount (Child) Total $1847.88 $410.00

          Session November 7, 2017

          Appeal from the Chancery Court for Williamson County No. 40104 Michael W. Binkley, Judge[1]

         In this 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.

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

          Adrian H. Altshuler and Charles G. Blackard, III, Franklin, Tennessee, for the appellant, Melissa Marie Scherzer.

          Mary Arline Evans, Nashville, Tennessee, for the appellee, Dale Robert Scherzer.

          Thomas 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.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         On May 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 pending.

As relevant to this appeal, the MDA includes the following provision:
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 1, 2012.

         When he 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.

         At the 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.

         As of 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.

         On 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.

         Wife 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.

         The 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.[2] 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.[3] As to the award of attorney's fees, the court directed Husband's counsel to submit an affidavit detailing reasonable fees and costs.

         Husband's 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.

         Upon 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.

         On 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.

         II. Issues Presented

         Wife presents five issues on appeal, [4] 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.

         III. Standard of Review

         We 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 (Tenn. 2002).

         In this 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.

         We 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 previously explained:

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. 30, 2006).

         Likewise, 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. 1995).

In re Estate of Tanner, 295 S.W.3d 610, 613-14 (Tenn. 2009).

         Regarding 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 explained:

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).

         We also 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 citations omitted).

         IV. Applicability of Tennessee Code Annotated § 36-5-121(g)(2)(C)

         Wife 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.

         Tennessee 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. § 36-5-121(g)(2).

Mayfield, 395 S.W.3d at 115.

         In this 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 modifiable:

         (2) 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 spouse; or
(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.

         Tenn. Code Ann. § 36-5-121(g)(2) (emphasis added).

         At the 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).

         However, 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.").

         Wife's 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.

         Wife 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 Court explained:

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. ยง 36-5-121(n) (2014) (stating that "[n]othing in this section ...

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