*1 еver, allegation include they did not this argued the complaint and have not
their this Court.
merits of the issue before that the
There is no indication the record argued the trial
issue was ever before therefore, has, It waived.
court.
Furthermore, if plaintiffs protection equal additional
not waived their challenge,
clause unclear whether such a chal- proper parties raise addressing the is-
lenge. the footnote
sue, plaintiffs “the Knox- concede that already Merit Board
ville Civil Service requirement expects
meets the con- requirement
tinue to meet the fu- added.) (Emphasis ture.”
VI. Conclusion reasons, foregoing we conclude
For T.C.A. 6-54-114 constitutional and declaratory entered
affirm trial to this effect. Costs will be plaintiffs-appellants.
taxed to the
REID, DROWOTA, C.J., and O’BRIEN JJ., ANDERSON, concur. (Frazier),
Pamela ISBELL
Plaintiff-Appellant, ISBELL, Defendant-Appellee.
Don L. Tennessee,
Supreme Court
at Nashville.
Sept. Hill, Gallatin, Jr., plaintiff- W.
Randle appellant. Vest, Hendersonville, for de- B.
William fendant-appellee. *2 support
OPINION an alternative through source of remarriagе. DAUGHTREY, Justice. The trial the alimony court terminated in this appeal The issue is whether and (Middle payments Appeals of the Court under what award of re- circumstances an Section) so, doing In affirmed. inter- support habilitative and maintenance a rejected plaintiff’s mediate court argu- or ter- fixed amount later be modified original ment that the award was for a sum sharply conflicting minated. Because of period certain over a therefore opinions released different sections of solido,” “alimony constituted which un- Appeals, of Court and because what der Tennessee case law is we find in this case to be an erroneous later modification or termination. The interpretation boy- “live-in so-called holding court declined follow the of its statute,” 36-5-101(a)(3), friend T.C.A. we § court, sister for the grantеd review in re- this case. We now Section, Eastern ruled which had to the Ap- verse the of the Court of issue, contrary on this same unre- peals. judgment, In that the intermediate ported case affirmed the termination trial court’s Knoxville, Eastern Section ground recipient support on the 6, 1988, October 1988 WL longer enti- had remarried thus was no panel said, dip- intermediate in this case alimony. tled to receive rehabilitative course, lomatically of the Gerlach many cases, As with relations domestic failed to the give provi- court had heed litigation in this has taken on lawsuit a 36-5-101(a)(3). sions of T.C.A. § parties life of its own. were divorced statutory part provision That is a judge at which trial time the 36-5-101, governs liability which mother, custody § awarded child divid- “support of spouse for and children” at the par- property
ed the marital between separation. time of marital dissolution or ties, and awarded the wife “rehabilitative setting spousal support, Guidelines for- month, alimony” May $300 (and merly still referred commonly) to as to September express purpose for the “alimony,” found in T.C.A. permitting her to nursing finish her 101(d). distinguishes The statute two and secure an certificate. studies LPN On (Western temporary kinds of One is appeal, Sec- rehabilitate; tion) alimony designed appro- the other is decided that the rehabilitative long-term when priate was too little and for too short rehabili- rehabilitation, provisions period permit time to is not The exact true tation feasible. 5—101(d) given spent fact had are as follows: § 36— many raising at home years children and general assembly It is intent of the ability support herself and her had little economically spouse that a who is disаd- training. without children vantaged relative to the other payments the monthly court increased rehabilitated whenever lengthened to four payment granting order for years, May beginning with the habilitative, support and temporary main- give court’s ment. The intent was is such tenance. Where there relative plaintiff to secure an RN disadvantage economic and rehabilitation self- degree possibility and thus real of all rele- is not feasible in consideration sufficiency. factors, including those set out in vant subsection, may grant then the court fact, dropped Pamela out of
In Isbell payment an order point during next at some three school long-term maintenance on a basis years, and on she remarried. petitioned the death immediately Her ex-husband alimony pay- except provided as otherwise subdivi- triаl court to terminate his (a)(3). determining ments, whether the ground his ex-wife was sion and, fact, sup- gained granting of an longer in school no person, a appro- with a third ny lives party to a port and maintenance nature, thereby raised presumption is determining the rebuttable priate, and in manner of that: length rele- consider all shall payment, contributing (A) The third factors, including: *3 vant recipient alimony of the support to the earning capacity, obli- (1) therefore The relative and the needs, resources of support financial gations, and the amount of does need including pen- awarded, income from party, each and previously sharing sion, retirement profit suspend part all or therefore should sources; all other former obligation and of the the training spouse; or (2) education and The relative аbility party, and receiving of each (B) person The third party to secure education of each such and support from training, party necessity and the of a and does alimony recipient therefore training secure further education and to alimony previ- not need the amount improve earning capacity to his or to ously and the court therefore level; a reasonable part alimo- suspend all or of the should (3) marriage; The of the duration obligation spouse. ny of the former (4) mental age, physical and (a)(3) way This shall in no subdivision party; of each condition to create common-law be construed
(5) The
extent
to which it would
parties.
marriage obligation as
third
employ-
party
undesirable for a
seek
panel in this case
The Court
ment
the home because he or
outsidе
(a)(3)
“applica-
interpreted
to be
subsection
of a minor child of
will be custodian
a
to all maintenance
ble
marriage;
court with the
by
ordered
a
(6)
party,
assets
each
separate
lump sum cash award
exception of a
in-
personal, tangible and
real and
both
subject to execution
immediately and
able
tangible;
(empha-
finality
judgment”
upon the
(7)
provisions
regard
statute,
reading
added). A
close
as
36-
property
the marital
defined
however,
interpreta-
that this
demonstrates
4-121;
erroneous,
three
clearly
for at least
(8)
par-
living
standard
reasons.
during
marriage;
ties established
(a)(3),
its
by
first
subsection
place,
In the
(9)
party has
The extent to which each
terms,
fu-
only
“alimony
applies
own
intangible contri-
tangible
made such
Thus,
the extent that
turo.”
marriage monetary
as
to the
butions
form,
as
оther
such
granted in some
can be
contributions,
tangible
homemaker
below,
“alimony in solido” discussed
party
intangible
by
contributions
(a)(3)
irrele-
provision in subsection
education, training or increased
to the
Indeed,
court’s
if the intermediate
vant.
power
party;
earning
stand, it
permitted to
interpretation were
(10)
parties
fault
relative
awarding of
prohibit the
effectively
would
discretion,
court, in its
cases whеre the
installments, practice
alimony in
solido
so;
to do
appropriate
deems
Spalding
initially approved
was
factors,
(11)
including the
Such other
(Tenn.App.1980),
Spalding,
S.W.2d
are
consequences
party,
tax
cases,
line
and has been followed
be-
necessary
equities
to consider
unreported, relying on
reported and
both
the parties.
tween
McKee, 655
See,
McKee
e.g.,
Spalding.
аdded).
(emphasis
Id.
Although the
(a)(3)
turn,
Spald-
the fol-
creates
not mention
subsection
does
effect,
legal
lowing
presumption:
opinion in this case has
its
ing,
unintended,
overruling it. Ac-
perhaps
In all cases where
alimony in
cording alimo-
ceiving alimony in futuro and the
sum,
only
be awarded in
solido could
months
as rehabilitative alimo-
thereafter
immediately.
work a
payable
This would
ny
Although
in this
cause.”
hardship
cases where the marital
serious
did not specify
paid,
the total
amount
substantially depleted or
estate has been
full
alimony payable $16,-
amount of
—
dissipated
sufficiently large sum of
and a
definitely
determined
800—
divorce,
is not
at the
cash
available
time
simply multiplying
monthly
sum
ability
the obligor
but
nevertheless has the
($400)
(42
designated
times the
duration
payments
to make
over time.
months).
reasoning
applied
in Spalding
Spalding,
36-5-101(d),
Secondly, by the terms of §
(Tenn.Ct.App.1980).
740-41
appli-
provisions in subsection
We relied on the rationale
of Karrer
only
permanent
long-term,
cable
alimo-
*4
Karrer,
610[,] 612,
190 Neb.
211 N.W.2d
ny,
temporary,
and not to
116,
(1973),
noted
approval
188
and
with
this observation of
Nebraska Court:
Thirdly,
finally,
and
we note that
present
It is true that the decree in the
statutory
subsec-
presumption
by
created
set forth the total award
does not
(a)(3),
spousal suрport
further
is
that
necessary.
as a
this is
sum. But
not
living
needed
with
not
when
sum, $42,350,
It is
that the
self-evident
person,”
expressly
“a third
made rebut-
multiplied
is no
than $350
more certain
by
thus will
table
the terms of
and
by
automatically
right
serve
to cut off
alimony payments.
receive periodic
Spalding,
S.W.2d at 741. The mere
597
Hence,
lump
there is no basis for the Court
sum
fact
amount is
Appeals ruling
prevents
that this statute
in
is neither conclusive
able
installmеnts
by
the award of a fixed amount of
regarding
nor determinative
its status
anything
lump
than a
sum.
Phillips
or
in solido
in
Web-
futuro.
ster,
(Tenn.Ct.App.1980).
611
591
provi
In summary, we hold that the
Additionally, the court’s word choice
36-5-101(a)(3)
not rel
sions
T.C.A. §
by requiring
reflected a
command
presented
in
evant
the circumstances
pay the sum of
the defendant “shall
Moreover,
recognize
case.
while we
this
forty-two
(empha-
months”
consecutive
interme
unpublished
that an
of an
added).
language
decision,
The decree had no
way
we
diate court in no
binds our
upon remar-
providing for termination
opinion in
conclude that
Gerlach
741;
riage.
Spalding, 597 S.W.2d
presents the
treat
See
better-reasoned
McKee,
us,
until the death or REID, C.J., and DROWOTA and added), recipient” (emphasis whereas the ANDERSON, JJ., concur. con-
statutory language provides no such
O’BRIEN, J.,
separate
dissents in
alimony.
tingencies
rehabilitative
opinion.
We therefore hold that
Marion
was
solido
Justice,
O’BRIEN,
dissenting.
remar-
subject to termination on
and not
disagree
majority
I
be-
with
riage.
legis-
clearly
effort to
cause it
overt
guise
pre
by judicial fiat. Under
Appeals has
late
As the Court of
for the award
adopting
a better rule
viously
opinions,
in its
advent
noted
rehabilitativе,
main-
temporary support and
totally dis
support did not
rehabilitative
tenance,
majority ignores
intent
place permanent alimony; the courts
over a
right
make it for a sum certain
wish
to modi-
1. If trial courts
to retain
fy
an award
time.
place
on the
certain conditions
should either
effect,
Legislature,
and in
rewrites
remanded to
trial court for
was
proceedings.
36-5-101.
The trial court enforced the Court of
here, clearly
The issue
involved
stated
Appeals judgment until 22 June 1989.
brief,
appellant’s
is whether rehabilitative
application
When
Mr.
on
Isbell
alimony paid monthly
installments for a
sus-
monthly rehabilitative
was
specified
without
conditions for
pended,
effective
June
based on
upon
contingen-
termination based
future
plaintiff
stipulation
had entered
cies,
alimony in
constitutes
futuro instead
marriage
into а
Wayne
Frazier
alimony in
solido.
May
A final order
entered on 11
was
long
This case has
followed
and tortu- September
terminating
rehabilita-
reaching
agree
course in
I
ous
this Court.
plaintiffs remarriage.
tive
due to
largely with
related
the statement
facts
appealed by
plain-
was
majority opinion
excep-
with a few
Appeals.
tiff
the Court of
pertinent
tions
to the issue.
final de-
the en-
considered
was
cree of divorce in this case
entered on
below,
tire
record in the court
1986. The trial court ordered $300 origin
They
proceeded
the ease.
then
per month to
as temporary
reha-
analyze
the issue
accordance with
September
bilitative
36-5-101(d)
opening paragraph of T.C.A. §
express purpose
permitting
for the
which reads as follows:
nursing
her to finish her
studies and secure
assembly
It
the gеneral
is the intent of
a certificate as a Licensed Practical Nurse.
spouse
economically
who is
disad-
request
permanent alimony
spe-
A
vantaged
relative to
cifically denied. The trial court did decree
*6
by the
rehabilitated whenever
began
that at such time as the husband
granting
of re-
payment
benefits,
his
from
draw
retirement
whatev-
habilitative,
temporary support
source,
forty
er
Whеre there is such rela-
maintenance.
(40%)
amount,
percent
of such
calculated as
disadvantage
rehabili-
tive economic
of the date
the divorce.
is not feasible in consideration of
tation
factors, including
set
all
those
relevant
considering
after
Court
subsection,
out in this
then
in
including
relevant factors
those
forth
set
sup-
grant
payment
an order for
36-5-101(d), decided that the tem-
T.C.A. §
port
long-term bа-
and maintenance on a
alimony
porary
was insuffi-
death
or until the
her-
cient to allow the wife
rehabilitate
except
provid-
as otherwise
They
self.
found it reasonable that she
(a)(3).
sup-
(Emphasis
ed in subdivision
to se-
should be afforded
plied).
leading
education
to-
cure
additional
has
not the
Court
Whether
her
degree
equip
an RN
which would
ward
application
erred in the
for herself and the
provide
a better life
101(a)(3)
pertinent
in this case
potential
In
her
children.
view of
amending
the stat-
majority
error
they agreed with the trial
habilitation
holding
rehabilita-
that “where the
ute and
alimony
decision that rehabilitative
for a fixed
has been made
tive award
However, they concluded
was indicated.
non-
must
considered
the award
be
in the amount and dura-
that modification
in install-
paid
even if it is to
modifiable
be
necessary
of the award was
to enable
In reach-
ments and not
sum.”
They
objective.
modified
her to obtain her
opinion
ing
rely this conclusion
trial court to award
final decree of the
case
unreported
an
Gerlach
per month as rehabilitative
Section,
Appeals, Eastern
of the
Court
1986,
continuing
20
beginning
Knoxville,
6 October 1988.
for a
of four
month thereafter
1918,
early
year
least as
as the
Apрlication
appeal
to this
Since at
years.
a court has
August
unpublished
an
31
was denied on
Court
741
subsection, then
regarded
authority.
general
ing
set out in this
those
discouraged citing unpublished
grant
has
order for
Court
Phoenix
opinions
its members.
Cotton
long-term
on a
and maintenance
Co., 140
Royal Indemnity
Tenn.
Oil Co.
remarriage of
basis or until
death
438,
(1918);
443,
128
205 S.W.
Board
disjunc-
read
...” When
Union City, et al v.
Commissioners
(d)
conforms
plain
tive
subsectiоn
al,
666,
County, et
188 Tenn.
222
Obion
stat-
subsection
precisely with
(1949);
State,
7
Fisher v.
197
S.W.2d
Tenn.
mainte-
a decree for suitable
ute
leave
(1955);
594, 277
Shepherd
S.W.2d
nance
either rehabilitative
Henderson,
1 Tenn.Cr.App.
basis, entirely
long-term
temporary or on
(1969);
State,
Cook v.
control
within the trial court’s
955, 958 (Tenn.Cr.App.1973). This
13(d).
proscription
T.R.A.P.
bright
why
is a
line example
unpub-
case
The amount of
allowed
lished cases
should
confined
their
for the discretiоn of
case is matter
general
facts
not considered as
author-
particular
the trial court
view
ity.
granted
wife was
Newberry,
Newberry v.
circumstances.
alimony.”
divorce and
“rehabilitative
appel-
ments were solido. finding. sustained that There appeal ruling.
was no taken from that present
In the the plaintiff testified dropped she out of school because of poor grades.
stress It is obvious testimony great difficulty *7 grade average necessary maintaining COWDEN, Magness John goal. strong possibility attain A Charles Cowden, Eugenе Frederic never resume her train- exists A. Cowden, Plaintiffs-Appellees, ing. require To defendant continue rehabilitative, pay per month as temporary support and maintenance to an SOUTH, SOVRAN BANK/CENTRAL ex-spouse remarried to a who have Trustee, Adventist Health Southern destitute, husband, plain just lazy as Inc., Systems, Kentucky-Ten- Hospital purely punitive. suggested in Association of Sev- nessee Conference case, rеmarked in that “the As Adventists, Inc., enth-Day Ernest state, are endless” and to possibilities Co-Trustee, Smallman, III, and C.K. presumes do, that where this Court Co-Trustee, McLemore, Defendants- has for a Appellants. term, the award must be considered non-modifiable, if to be it is Tennessee, Supreme Court of unwarranted, installments, prohibitive, ais at Nashville. is beyond statute which alteration authority of this Court. Sept. second sentence of T.C.A. 101(d) distinctly provides that “Where disadvan-
there is such relative economic not feasible
tage and rehabilitation is factors, includ- of all relevant
consideration