The opinion
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
FILED
Jan. 17, 1996
TERESA K. ROSS, )
) Cecil Crowson, Jr.
Appellate Court Clerk
Plaintiff/Respondent/ )
Counter-Petitioner/Appellant, )
)
vs. ) No. 01A01-9410-PB-00470
) Davidson County Probate
WILLIAM P. ROSS, ) No. 90D-3573
)
Defendant/Petitioner/ )
Counter-Respondent/Appellee. )
APPEAL FROM THE PROBATE COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE JAMES EVERETT
T. TURNER SNODGRASS
2300 21st Avenue South
Nashville, Tennessee 37212
Attorney for Plaintiff/Respondent/
Counter-Petitioner/Appellant
GRAYSON SMITH CANNON
One NorthChase
1000 NorthChase Drive, Suite 109
P.O. Box 749
Goodlettsville, Tennessee 37070-0749
Attorney for Defendant/Petitioner
Counter-Respondent/Appellee
REVERSED AND REMANDED
ROBERT E. CORLEW, III
SPECIAL JUDGE
CONCUR:
HENRY F. TODD, JUDGE
SAM L. LEWIS, JUDGE
OPINION
From the decision of the Trial Court modifying the final decree of divorce between the
parties, terminating payments of spousal support previously ordered to be paid by the husband to the
wife, the wife appeals.
The facts present a particularly troublesome situation for the Court. The parties were married
for twenty-four years before their divorce, and the evidence shows that from time to time during their
marriage the parties enjoyed favorable financial circumstances, and at other times unfavorable
financial circumstances. The parties separated, and the husband, who it is acknowledged was
engaged in an extra-marital affair with his secretary, sought a divorce. The husband had moved to
New York state, but found that he was unable to file for divorce there and feared that he had no
ground for divorce in Tennessee. The wife initially chose not to agree to the entry of a decree of
divorce, but subsequently, unbeknownst to the husband, began to engage in an extra-marital affair
with an attorney who had represented both of the parties at least at one point during their marriage.
The wife initially resisted the divorce, but after her relationship developed with the attorney, she
contacted the husband, telling him she would agree to the entry of the divorce if it could be done
quickly. The Husband, who had been eager to divorce for a lengthy period of time, quickly
proceeded to negotiate. The wife hired an attorney who had just completed law school and either
had just been licensed or was provisionally licensed, and who worked in the law office of the
attorney with whom she was engaged in the affair. This attorney met with the wife on only one
occasion, found employment elsewhere, and the divorce was ultimately presented to the Court by
the attorney with whom the wife was socially engaged.
In an effort to expedite the granting of the divorce, the wife suggested to the husband that he
should hire a Tennessee lawyer who would file an answer for him, thus preventing a wait of thirty
days after the filing of the divorce before the final decree could be entered. To this end, the attorney
with whom the wife was engaged in the affair contacted another attorney who agreed to serve as
counsel for the husband. The record reflects that the husband, then, transmitted a large amount of
funds to the escrow account of the wife's attorney for the payment of outstanding bills, and also for
payment of the retainer fee for the husband's lawyer. The evidence reflects that the husband's
attorney did give him advice, although primarily after the decree of divorce was entered. The
2
husband and wife agreed upon a marital dissolution agreement which the husband's attorney did not
review but which was entered as a part of the decree of divorce.
At issue in this appeal is a provision of the marital dissolution agreement, which provided
in part:
1. The parties acknowledge that wife has advanced husband certain monies
during their marriage and that husband desires to repay these monies as well as pay
to wife monies for their years of marriage. Husband agrees to pay wife $5,000.00
for each of the twenty-four years of their marriage; $80,000.00 for the money wife
placed into the home at Abbottsford that was foreclosed upon; $35,000.00 for the
money wife placed into the home on Park Avenue, Milan, Tennessee; and
$22,000.00 wife loaned husband's brother and sister in law, for a total of
$257,000.00. Husband agrees to repay the $257,000.00 as alimony in monthly
installments of $2,000.00 per month commencing October 15, 1990 with subsequent
installments due and payable on or before the 15th of each successive month. The
parties agree that these payments shall continue until the $257,000.00 has been paid
in full; that is husband agrees to pay the $2,000.00 for 128 months with the final
$1,000.00 due in the 129th month.
Some two weeks after the entry of the final decree of divorce, the wife married her attorney.
The husband asserts that the wife concealed her remarriage from him, and on occasions represented
to him that she was contemplating marriage to other persons. It was not until the husband had made
thirty-one monthly payments that he was contacted by a representative of the Federal Bureau of
Investigation, who was investigating the wife, and from when the husband learned that the wife had
in fact married her attorney.
The husband then moved the Trial Court to set aside the decree of divorce, asserting that it
was granted upon a fraudulent basis, in that the wife was then engaged in an extra-marital affair and
failed to disclose that fact to the husband. It was the contention of the husband that the wife knew
of the affair in which he was engaged, and thus that she had grounds for divorce, but that he knew
of no ground that he had for divorce, forcing him to agree to a marital dissolution agreement to
which he would not have otherwise agreed had he known that he also had grounds for divorce. The
file contains no evidence of any questions falsely answered by the wife, either in depositions,
interrogatories, or in open court. Further, the husband acknowledges that the wife's attorney never
provided any advice to him, and never made representations to him.
The husband filed suit seeking the order of the Court setting aside the decree of divorce, or
alternatively, modifying the award of spousal support. The Trial Court, apparently incensed by the
conduct of trial counsel, none of whom are involved in this appellate action, granted the petition to
3
modify support, terminating the award of alimony immediately. We find that the decree was
improvidently modified, and we therefore reverse the Trial Court.
We concur, however, with the Trial Court that the conduct of trial counsel in this matter was
extremely unfortunate. The unethical behavior of counsel, however, is a collateral issue, and does
not affect the merits of this case. Nonetheless, being faced with the unethical actions, it is the duty
of this Court to recognize more appropriate behavior which counsel should have followed. The
Tennessee Code of Professional Responsibility sets forth guidelines which attorneys should follow
in the practice of law. Canon 1 of that code provides "a lawyer should assist in maintaining the
integrity and confidence of the legal profession." Further, lawyers are encouraged to "maintain high
standards of profession conduct." Tennessee Code of Professional Responsibility, Ethical
Consideration 1-5.
Lawyers should be ... dignified, and should refrain from all illegal and morally
reprehensible conduct. Because of the lawyer's position in society, even minor
violations of law by a lawyer may tend to lessen the public confidence in the legal
profession.
Id. A lawyer should decline to represent an individual where he is emotionally involved with that
individual and the intensity of his personal feeling may tend to impair his effective professional
representation of that individual. Tennessee Code of Professional Responsibility, Ethical
Consideration 2-30. Ethical Consideration 5-3 further suggests that a lawyer's judgment may be
clouded when he gains an interest in property in which the client also has an interest. Id. It is
further suggested that
the possibility of an adverse effect upon the exercise of free judgment by a lawyer on
behalf of a client during litigation generally makes it undesirable for the lawyer to
acquire a proprietary interest in the cause of a client or otherwise to become
financially interested in the outcome of the litigation.
Tennessee Code of Professional Responsibility, Ethical Consideration 5-7. One of the Canons of
the Code provides that an attorney should avoid even the appearance of professional impropriety.
Tennessee Code of Professional Responsibility, Canon 9. "Public confidence in law and lawyers
may be eroded by irresponsible or improper conduct of a lawyer." Tennessee Code of Professional
Responsibility, Ethical Consideration 9-2.
The evidence contained herein reflects that the actions of the wife's attorney certainly were
questionable, and the independence of the attorney for the husband certainly may be called into
4
question because of the manner in which he was hired. Unfortunate though these circumstances are,
they merely divert our attention from the issues presented in this cause.
Succinctly stated, the issues presented for our review are (1) whether the failure of a
divorcing litigant to voluntarily disclose to her spouse the existence of an extra-marital affair,
without responding falsely to interrogatories, questions in a deposition, or other discovery matters,
combined with the failure of the other party otherwise to learn of the existence of that extra-marital
affair, sets forth a ground for modification of a divorce decree subsequently entered, incorporating
a marital dissolution agreement entered by the parties; and (2) whether the secret remarriage of a
recipient of spousal support, after the entry of the decree of divorce, presents a ground for
modification of a decree of divorce, terminating an order for spousal support.
We must recognize initially that in many, many divorces the full spectrum of misconduct of
each of the parties is not known to the other. Were we to recognize this as a ground for
modification of a final decree of divorce, there would be no end to orders of modification. A former
spouse is not entitled to relief from a decree of divorce upon the ground that the former spouse failed
to disclose matters of significance, which were not provided through discovery. Brown v. Brown,
863 S.W.2d 432, 434 (Tenn. Ct. App. 1993) perm. app. denied.
A party moving for post-judgment relief must describe with specificity the basis upon which
relief should be granted, and show by clear and convincing evidence that relief from the judgment
is warranted. Duncan v. Duncan, 789 S.W.2d 557, 563 (Tenn. Ct. App. 1990) perm. app. denied.
There is no provision of law which requires a party voluntarily to disclose all indiscretions or
circumstances of marital infidelity, absent such issues being addressed to the party formally, through
permissible discovery procedures. Certainly a different decision is reached where perjured testimony
is presented, or withholding of evidence which has been sought occurs. Id. There is no evidence,
however, in the record before us which reflects that any requests for discovery were ever made, nor
was any evidence which was formally requested ever withheld, nor was perjured testimony ever
provided.
Similarly, there is no obligation to disclose the fact of remarriage. Butcher v. Webb, 869
S.W.2d 336, 338 (Tenn. 1994). Where the actions on the part of a party concealing the fact of
remarriage are not made at a time when there is an affirmative duty to notify the former spouse of
remarriage, it has been held that these actions do not constitute fraud. Id.
5
We must also consider whether the subsequent remarriage of the wife, separate and apart
from any allegation of fraud, should justify the termination of her right to continue to receive spousal
support. Tennessee Code Annotated §36-5-101 (a) (3) (1991) provides as follows:
In all cases where a person is receiving alimony in futuro and the alimony recipient
lives with a third person, a rebuttal presumption is thereby raised that:
(A) The third person is contributing to the support of the alimony
recipient and the alimony recipient therefore does not need the
amount of support previously awarded, and the court therefore should
suspend all or part of the alimony obligation of the former spouse; or
(B) The third person is receiving support from the alimony recipient
and the alimony recipient therefore does not need the amount of
alimony previously awarded and the court therefore should suspend
all or part of the alimony obligation of the former spouse.
Id. The proof is uncontradicted that the wife remarried immediately after the entry of the decree of
divorce. Therefore, if in fact the alimony which she was ordered to receive is alimony in futuro, the
rebuttable presumption arises. Alimony in futuro has been defined to continue the support incident
to the marital relationship, for an indefinite period of time. Self v. Self, 861 S.W.2d 360, 361 (Tenn.
1993); Isbell v. Isbell, 816 S.W.2d 735, 738 (Tenn. 1991); Brewer v. Brewer, 869 S.W.2d 928, 935
(Tenn. Ct. App. 1993) perm. app. denied. This presumption may be overcome, however, when there
is a showing that the recipient of the spousal support award is still in need of support, despite her
new relationship. Azbill v. Azbill, 661 S.W.2d 682, 686 (Tenn. Ct. App. 1993) perm. app. denied.
We first find that the alimony awarded herein is not alimony in futuro, and thus not subject to the
statutory presumption. The payments discussed in the marital dissolution agreement between these
parties do not meet the definition of alimony in futuro. Further, were the statutory presumption to
arise, as asserted by the Appellee, then we find that the factual circumstances presented in this cause
show that the wife, despite her remarriage, continues to be in need of spousal support. Testimony
concerning this issue, presented by the wife's current husband, shows that she is separated from her
husband, and receives no income from him. Further, it was introduced that she has been convicted
under provisions of federal law, and was sentenced to serve a brief period of time in federal prison,
and was placed on probation for a lengthy period of time. Given these factual circumstances, we
cannot find that the wife's need for support has ceased.
If, rather than alimony in futuro, the spousal support ordered is considered to be rehabilitative
alimony, then under current law, this support remains subject to the continued orders of the Court.
6
Tennessee Code Annotated §36-5-101 (d) (2) (1991). Due to the failure of the wife to be
rehabilitated, however, as demonstrated by the facts cited above, we find it to have been an abuse
of discretion for the Honorable Trial Court to modify the support award.
Finally, upon close examination of the marital dissolution agreement incorporated into the
decree of divorce, we must consider that the language contained therein appears to recognize that
a substantial sum of the total payments ordered to be paid by the husband to the wife, although
denominated alimony within the marital dissolution agreement, actually was not alimony at all, but
in the nature of property division. Certainly the payments to the wife in contemplation of funds
which she had expended in purchases of residences and loans to the husband's family members,
where properly repaid to the wife, constitute divisions of property, and not payments of support.
Where sums of money are paid by one spouse to another in consideration of the division of property,
a court should not subsequently modify those payments as they remain contractual in nature.
Towner v. Towner, 858 S.W.2d 888, 890 (Tenn. 1993). Although the husband testified that he did
not concern himself with the precise language of the marital dissolution agreement, leaving such
wording to his wife, it is difficult to find that payment to the wife of "$22,000.00 for the money wife
loaned husband's brother and sister in law" and "$35,000.00 for the money wife placed into the home
on Park Avenue" is not a division of property. In fact, only $120,000, representing "$5,000 for each
of the 24 years of their marriage" appears to be in the nature of alimony.
We therefore find that it is not proper to modify the decree of divorce, and we reverse the
decision of the Trial Court. Payments of spousal support from the husband to the wife shall be
resumed immediately, and shall continue at the monthly rate provided by the marital dissolution
agreement until paid in full.
This cause is remanded to the Trial Court for further proceedings consistent with the terms
of this Opinion. Costs of appeal must be borne by the Appellee.
ROBERT E. CORLEW, III, SPECIAL JUDGE
7
CONCUR:
HENRY F. TODD, JUDGE
SAM L. LEWIS, JUDGE
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
TERESA K. ROSS, )
)
Plaintiff/Respondent/ )
8
Counter-Petitioner/Appellant, )
)
vs. ) No. 01A01-9410-PB-00470
) Davidson County Probate
WILLIAM P. ROSS, )
)
Defendant/Petitioner/ )
Counter-Respondent/Appellee. )
JUDGMENT
This cause came on further to be considered by the Court upon the notice of appeal filed by
the Plaintiff, and upon the briefs of both parties, the arguments of counsel, and upon the entire record
in this cause, from all of which the Court finds that the judgment of the Trial Court should be
reversed, and that the decree of divorce originally entered by the Trial Court should not be modified,
but should remain in force as originally issued.
IT IS THEREFORE ORDERED that the judgment of the Trial Court is reversed, and the
cause is remanded for further proceedings consistent with the Opinion of this Court. Costs of appeal
are taxed against the Appellee.
ROBERT E. CORLEW, III, SPECIAL JUDGE
HENRY F. TODD, JUDGE
SAM L. LEWIS, JUDGE