VIRGINIA GRAF WADDEY, )
) Davidson Circuit
Plaintiff/Appellant, ) No. 81D-2266
)
VS. )
) Appeal No.
IRA CLINTON WADDEY, JR., ) 01A01-9708-CV-00374
)
Defendant/Appellee, )
IN THE COURT OF APPEALS OF TENNESSEE
FILED
MIDDLE SECTION AT NASHVILLE
June 12, 1998
APPEAL FROM THE DAVIDSON COUNTY CIRCUIT COURT
AT NASHVILLE, TENNESSEE Cecil W. Crowson
Appellate Court Clerk
HONORABLE ROBERT E. CORLEW, III, Designated Judge
F. Dulin Kelly, #4085
Clinton L. Kelly, #16171
Andy L. Allman, #17857
KELLY & KELLY
629 East Main Street
Hendersonville, Tennessee 37075
ATTORNEYS FOR PLAINTIFF/APPELLANT
Albert F. Moore, #6709
NEAL & HARWELL, PLC
2000 First Union Tower
150 Fourth Avenue North
Nashville, Tennessee 37219
ATTORNEY FOR DEFENDANT/APPELLEE
AFFIRMED AND REMANDED
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM B. CAIN, JUDGE
VIRGINIA GRAF WADDEY, )
) Davidson Circuit
Plaintiff/Appellant, ) No. 81D-2266
)
VS. )
) Appeal No.
IRA CLINTON WADDEY, JR., ) 01A01-9708-CV-00374
)
Defendant/Appellee, )
OPINION
The plaintiff Virginia Graf Waddey, has appealed from the Trial Court’s dismissal of her
post-divorce decree petition to extend her periodic alimony because of a change in
circumstances.
On September 1, 1982, the Trial Court entered a divorce decree adopting a “Child
Custody and Property Settlement Agreement” executed by the parties and providing:
This cause came on to be heard on the 2nd day of
September, 1982, before the Honorable Thomas A. Greer, Jr.,
Special Judge designated by appointment, upon the Divorce
Bill heretobefore filed in this cause, upon the Agreed Order
permitting a withdrawal of the Amendments to said Divorce
Decree and allowing this matter to be presented on the
statutory grounds of irreconcilable differences as alleged in
the Divorce Bill, upon the written Child Custody and Property
Settlement Agreement executed by the parties, upon the
testimony of witnesses presented in open Court, upon
statement of counsel, and upon the entire record in this cause,
from all of which the Court finds that the Complainant,
Virginia Graf Waddey, and the Defendant, Ira Clinton
Waddey, Jr., have experienced such irreconcilable differences
in their marriage as would render further cohabitation
improper.
It is, therefore, ORDERED, ADJUDGED and
DECREED that the bonds of matrimony subsisting between
the Complainant, Virginia Graf Waddey, and the Defendant,
Ira Clinton Waddey, Jr., be absolutely and forever dissolved
and that the Complainant, Virginia Graf Waddey, be granted
an absolute divorce and be vested with all the rights and
privileges of an unmarried person.
It is, therefore, ORDERED, ADJUDGED and
DECREED that the Child Custody and Property Settlement
Agreement as executed by the parties is in all respects
approved and ratified in full and is incorporated as a part of
this Divorce Decree, the same as if copied herein verbatim,
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and said Agreement shall be given full force and effect in all
respects between the parties hereto as an Order of this Court.
The Child Custody and Property Settlement Agreement contained the following
provision:
2. Mr. Waddey agrees to pay to Mrs. Waddey as
periodic alimony in futuro the sum of One Thousand ($1,000)
Dollars per month with the first of said payments being made
on or before September 10, 1982, and subsequent payments
at monthly intervals thereafter until the death of Mrs.
Waddey, the remarriage of Mrs. Waddey, or March 1, 1996,
whichever event shall first occur.
----
Further, each of the parties reserve the right to petition
the Court for proper modification of provisions remaining
within the jurisdiction of the Court upon a change of
circumstance.
On March 29, 1996, plaintiff filed a “Petition for Contempt and for Modification of
Award of Support” alleging:
13. Further, the Petitioner, in or about July 10,
1995, was diagnosed with a malignant tumor which resulted
in bilateral mastectomies revealing additional malignant sites.
14. As a result of this diagnosis, Petitioner has
undergone two breast reconstruction surgeries and six
chemotherapy treatments causing premature menopause and
hot flashes resulting in fatigue due to sleep disturbances.
15. Due to the resection of her abdominal muscles
during this reconstruction, Petitioner now suffers abdominal
weakness which limits her physical activities.
16. Thus far Petitioner has incurred approximately
Fifty-Six Thousand Dollars ($56,000.00) in medical expenses,
some of which was covered by her medical insurance under
an 80/20 PPO plan with a One Thousand Dollar ($1,000.00)
deductible.
17. Petitioner’s medical condition will require her
to take certain medications for the remainder of her life as
well as additional physician visits and has already forced her
to spend substantial amounts of time away from work.
18. Petitioner’s medical condition has severely
diminished her ability to earn a living and created a material
and substantial change in circumstances which were not in the
contemplation of the parties, or before this Court, at the time
this Final Decree was entered.
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The petition requested:
4. That the Court modify its original Final
Decree and order the Respondent to continue his alimony
obligation in the amount of One Thousand Dollars
($1,000.00) per month for the remainder the Petitioner’s life
or until she remarries.
The defendant moved to dismiss for lack of jurisdiction.
The Trial Court entered an order stating:
The portion of Ms. Waddey’s Petition for Contempt
and for Modification of Award of Support seeking to extend
or revive the alimony obligation of Mr. Waddey which
terminated absolutely by its terms on March 1, 1996, was
untimely filed on March 29, 1996, and that Mr. Waddey’s
Motion to Dismiss Claims for Modification of Alimony
should be GRANTED.
Plaintiff appealed and presented a single issue as follows:
I. Does the divorce court have jurisdiction to entertain
a petition for modification of alimony in futuro if the wife
files her petition after the payment termination date?
Yes, the Divorce Court retains jurisdiction because it has a
continuing statutory power to modify the settlement
agreement as to alimony in futuro, and the parties specifically
reserved within the settlement agreement the right to petition
the Court for modification in the event of a change in
circumstances.
T.C.A. § 36-4-101(11) makes irreconcilable differences a valid cause of absolute divorce.
T.C.A. § 36-5-101(a)(1) provides that a divorce decree may provide for the suitable
support and maintenance of either spouse by the other spouse, the order to remain in the court’s
control.
T.C.A. § 36-5-101(d)(1) provides
It is the intent of the general assembly that a spouse
who is economically disadvantaged, relative to the other
spouse, be rehabilitated whenever possible by the granting of
an order for payment of rehabilitative, temporary support and
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maintenance. Where there is such relative economic
disadvantage and rehabilitation is not feasible in consideration
of all relevant factors, including those set out in this
subsection, then the court may grant an order for payment of
support and maintenance on a long-term basis or until the
death or remarriage of the recipient except as otherwise
provided in subdivision (a)(3). Rehabilitative support and
maintenance is a separate class of spousal support as
distinguished from alimony in solido and periodic alimony.
Termination or modification of an alimony award after a divorce decree becomes
final depends upon whether the original award was in solido, or lump sum or in futuro, or
periodic. Alimony in solido is not subject to change after the decree becomes final. The
mere fact that lump sum alimony is payable in installments is neither conclusive nor
determinative regarding its statue as in solido or in futuro alimony. Phillips v. Webster,
Tenn. App. 1980, 611 S.W.2d 591.
The awarding of alimony in solido in installments is an acceptable practice. The
determinative factor in distinguishing between alimony in futuro and alimony in solido is the
definiteness or indefiniteness of the amount ordered to be paid. Isbell v. Isbell, Tenn. 1991,
816 S.W.2d 735.
In Phillips, supra, the 1975 divorce decree provided lump sum alimony of $100,000
payable in specified installments. In 1977, the parties executed an agreement modifying the
security pledged to secure the support. The agreement refers to “periodic alimony
payments.” This Court held that the quoted words were ineffective to transform court-
ordered unchangeable lump sum alimony into periodic changeable alimony.
In the present case, by the unique wording of the property settlement agreement and
divorce decree, a unique status of lump sum alimony was created. That is, it was agreed and
decreed that, during the time frame of the installment payments, the alimony would be
considered periodic and changeable. The special and unusual reservation of power to
change what would otherwise be unchangeable ended on the date of the last scheduled
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payment. After the expiration of the time fixed for installment payments, the alimony
became lump sum and unchangeable.
This resolution of the problem is not entirely satisfying, for it is subject to the
characterization of “make-shifting.” However, the reverse of this resolution would produce
an even more unsatisfactory result, for it would authorize a trial court to perpetuate its power
to change lump sum alimony until the death or remarriage of the recipient.
The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against
the appellant. The cause is remanded to the Trial Court for necessary further proceedings.
AFFIRMED AND REMANDED
___________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
______________________________
BEN H. CANTRELL, JUDGE
______________________________
WILLIAM B. CAIN, JUDGE
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