Alice Marie Cherqui v. Moshe Laor

10/25/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

September 18, 2017 Session

ALICE MARIE CHERQUI v. MOSHE LAOR

Appeal from the Chancery Court for Madison County

No. 69732 James F. Butler, Chancellor

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No. W2016-02502-COA-R3-CV

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This case involves the interpretation and enforcement of an alimony termination

provision in the parties’ marital dissolution agreement. Wife filed a Notice of

Termination of Alimony Payments in the Chancery Court of Madison County, alleging

that Husband’s non-compliance with the parties’ permanent parenting plan relieved her

of any further obligation to pay alimony pursuant to the alimony provision of their

marital dissolution agreement. Husband then filed a motion to enforce the marital

dissolution agreement and for a temporary injunction. Wife subsequently moved for

summary judgment to enforce the alimony provision of the marital dissolution agreement.

Husband did not dispute that he failed to comply with the “Passport Provision” of the

parties’ permanent parenting plan but argued that his violation of the agreement did not

relieve Wife’s obligation to continue to pay alimony in solido. The trial court concluded

that the marital dissolution agreement unambiguously provided that Wife would be

immediately relieved of her total obligation to pay alimony if Husband failed to comply

with his obligations under the parties’ permanent parenting plan and granted Wife’s

motion for summary judgment. Husband appeals the trial court’s granting of summary

judgment, while Wife seeks an award of her attorney’s fees on appeal. Finding no error,

we affirm the trial court’s granting of summary judgment and award the Wife her

attorneys’ fees incurred on appeal which the trial court shall calculate upon remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which BRANDON O.

GIBSON and KENNY ARMSTRONG, JJ., joined.

Stuart Breakstone, Memphis, Tennessee, for the appellant, Moshe Laor.

Larry Rice, Jennifer Bellott Goodin and Erin O’Dea, Memphis, Tennessee, for the

appellee, Alice Marie Cherqui.

OPINION

BACKGROUND AND PROCEDURAL HISTORY

Alice Marie Cherqui (“Wife”) and Moshe Laor (“Husband”) were divorced in

September 2014. The parties have one minor child (“the child”), born September 2012.

A marital dissolution agreement (“MDA”) and permanent parenting plan (“PPP”) were

incorporated into the parties’ final decree of divorce. The current litigation involves the

interpretation of the “Alimony” provision of the parties’ MDA, which provides:

Alimony

Beginning October 1, 2014, Wife will pay to Husband five thousand dollars

($5000) per month for a period of forty (40) months. Wife reserves the right

to accelerate the alimony payments under this provision, at her discretion,

at any time, and in any amount of her choice.

Half of each monthly payment shall be in the form of alimony in solido[.]

The other half of each monthly payment shall be in the form of transitional

alimony[.]

The total monthly payments shall not be modifiable with the following

exception: should Husband fail to comply with the provisions enumerated

below, which can be found within either this Agreement or the parties’

Permanent Parenting Plan, Wife shall be immediately relieved of any

further obligation to comply with this Alimony provision, beginning on

Husband’s date of non-compliance. Husband shall immediately reimburse

Wife for any alimony payments received past the date of non-compliance,

but no later than thirty (30) days after the date of non-compliance. The

termination of Wife’s obligation under the circumstances of this

paragraph shall be irrevocable, regardless of subsequent compliance with

the provisions of this Agreement. The provisions are as follows . . .[f]rom

the Permanent Parenting Plan: [a]ll provisions regarding the child’s

passport and international travel.

(emphasis added)

Pursuant to the “Alimony” provision, on June 10, 2015, Wife filed a “Notice of

Termination of Alimony Payments” with the Chancery Court of Madison County,

Tennessee. Wife alleged that Husband had refused to comply with the “Passport

Provision” of the parties’ PPP, which provides:

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[t]he parties shall cooperate to obtain a passport for the child within thirty

(30) days of the execution of this [PPP]. Specifically, Father shall execute

and have notarized Form DS-3053: Statement of Consent, provide a copy

of the front and back of his photo identification that was presented to the

notary, and deliver all to Mother within thirty (30) days.

(emphasis added)

Wife alleged that Husband did not: (1) provide her with a notarized Form DS-

3053: Statement of Consent; (2) provide her with a photo copy of the identification

presented to the notary; (3) deliver the aforementioned documents to Mother; and (4)

complete all three of the requirements within thirty days from the entry of the parties’

Final Decree of Divorce.1 In response to Wife’s notice, on June 25, 2015, Husband filed a

“Motion to Enforce Marital Dissolution Agreement and for Temporary Injunction.”

Husband averred that he did not violate the “Passport Provision” in a “material and

substantial way,” and, regardless, only half of Wife’s alimony payments under the MDA

were terminable upon his non-compliance with the PPP. On August 4, 2015, Wife filed a

response opposing Husband’s motion. By order of September 2, 2015, the trial court

denied Husband’s request for injunctive relief.

On September 22, 2015, Wife filed a motion for summary judgment.2 In support

of her motion for summary judgement, on November 10, 2015, Wife filed a Statement of

Undisputed Facts and an affidavit. On December 10, 2015, Husband filed his response to

Wife’s Statement of Undisputed Facts, wherein he admitted it was undisputed that he did

not comply with the “Passport Provision” of the PPP.

Following a hearing, the trial court granted Wife’s motion for summary judgment

but reserved Wife’s claim for attorneys’ fees for later hearing. Concerning attorneys’

fees, the parties’ MDA provides:

Noncompliance

Should either party incur any expense or legal fees in a successful effort to

enforce or defend this Marital Dissolution Agreement, in whole or in part,

the Court SHALL award reasonable attorney fees and suit expenses to the

party seeking to enforce this Agreement. No breach, waiver, failure to seek

strict compliance, or default of any of the terms of this Agreement shall

1

Husband was required to comply with the “Passport Provision” before the deadline of October

8, 2014.

2

Wife filed a “Motion for Judgment on the Pleadings” on September 22, 2015, which motion the

court converted into a motion for summary judgment.

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constitute a waiver of any subsequent breach or default of any of the terms

of this Agreement.

Pursuant to this provision, the trial court entered an order on October 31, 2016, awarding

Wife twenty thousand dollars ($20,000) in reasonable attorneys’ fees. Husband appeals.

ISSUES PRESENTED

Husband presents the following issue on appeal, restated verbatim as follows:

I. Whether the trial court erred in granting summary judgment and

terminating Appellee’s alimony in solido obligation where the plain

language of the Marital Dissolution Agreement only addressed the

termination of the transitional alimony in the event Appellant did not

comply with all the provisions of the Marital Dissolution Agreement and

Permanent Parenting Plan and where alimony in solido is not modifiable.

In the posture of Appellee, Wife raises the following issue on appeal:3

II. Whether Wife should be entitled to receive attorneys’ fees and expenses

on appeal.

STANDARD OF REVIEW

Husband appeals the trial court’s order granting summary judgment in favor of

Wife. Our inquiry in an appeal from a grant of summary judgment “involves purely a

question of law.” Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000).

Accordingly, our review is de novo, and we apply no presumption of correctness to the

trial court’s conclusions. See Kirk v. Kirk, 447 S.W.3d 861, 874 (Tenn. Ct. App. 2013).

Our review requires us to “freshly determine whether the requirements of [Tennessee

Rule of Civil Procedure] 56 have been met” in order to evaluate whether the trial court

correctly granted summary judgment. Id. (citation omitted). Summary judgment is

appropriate only if “the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.”

Tenn. R. Civ. P. 56.04.

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In his brief, Husband also asks that we overturn the trial court’s award of attorneys’ fees to Wife

and that we award him his attorneys’ fees and costs incurred during this appeal. However, at oral

argument Husband’s attorney waived Husband’s claims regarding attorneys’ fees. Accordingly, we will

not address Husband’s claim for attorneys’ fees.

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“The moving party has the ultimate burden of persuading the court that . . . there

are no genuine issues of material fact and that it is entitled to judgment as a matter of

law.” Town of Crossville Hous. Auth. v. Murphy, 465 S.W.3d 574, 578 (Tenn. Ct. App.

2014) (citation omitted). The moving party may meet its “burden of production either (1)

by affirmatively negating an essential element of the nonmoving party’s claim or (2) by

demonstrating that the nonmoving party’s evidence at the summary judgment stage is

insufficient to establish the nonmoving party’s claim or defense.” Rye v. Women’s Care

Ctr. of Memphis, MPLCC, 477 S.W.3d 235, 264 (Tenn. 2015). If the moving party meets

its initial burden of production, the burden shifts to the nonmoving party to “demonstrate

the existence of specifics facts in the record which could lead a rational trier of fact to

find in favor of the nonmoving party.” Id. at 265. “When the facts and the inferences

reasonably drawn from the facts are not disputed, the courts themselves can bring to bear

the applicable legal principles to determine whether the moving party is entitled to

judgment as a matter of law.” Cherry v. Williams, 36 S.W.3d 78, 83 (Tenn. Ct. App.

2000).

DISCUSSION

I. Alimony Provision of the Marital Dissolution Agreement

Both parties rely on the “Alimony” provision of the MDA that provides, “the total

monthly payments shall not be modifiable with the following exception: should Husband

fail to comply . . . [with, inter alia, the “Passport Provision,”] Wife shall be immediately

relieved of any further obligation to comply with this “Alimony” provision.” Husband

contends that this provision should be interpreted by the trial court to read that Wife is

only relieved of her obligation to pay alimony in futuro, but she is not relieved of the

obligation to pay alimony in solido, which Husband contends is not modifiable. Wife

contends that this provision of the MDA relieves her of all alimony obligations upon

Husband’s violation of the “Passport Provision” of the PPP. Again, Husband admits that

he did not comply with the “Passport Provision” of the PPP.

“An [MDA] is a contract and thus is generally subject to the rules governing

construction of contracts.” See Barnes v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006). “A

cardinal rule of contract interpretation is to ascertain and give effect to the intent of the

parties.” Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 611 (Tenn. 2006) (citation

omitted). In interpreting the language of an MDA, courts look to the plain meaning of the

words to ascertain the parties’ intent. See id. (citation omitted). “This 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. v. Federal

Compress & Warehouse Co., Inc., 78 S.W.3d 885, 890 (Tenn. 2002). “Questions of

contract interpretation are generally considered to be questions of law, and thus are

especially well-suited for resolution by summary judgment.” See Adler v. Double Eagle

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Props. Holdings, LLC, No. W2014-01080-COA-R3-CV, 2015 WL 1543260, at *4 (Tenn.

Ct. App. Apr. 2, 2015).

This Court’s initial task in construing the parties’ MDA is to determine whether

the language is ambiguous. See id. “If the language is clear and unambiguous, the literal

meaning controls the outcome of the dispute.” Id.; see also Bourland, Heflin, Alvarez,

Minor & Matthews, PLC v. Heaton, 393 S.W.3d 671, 676 (Tenn. Ct. App. Apr. 9, 2012)

(“When there exists no ambiguity, the parties’ intention must be gathered from the four

corners of the instrument at issue, and extrinsic evidence may not be admitted to vary the

instrument’s terms.”). “Contractual language ‘is ambiguous only when it is of uncertain

meaning and may be fairly understood in more ways than one.’” Watson, 195 S.W.3d at

612 (quoting Farmers-Peoples Bank v. Clemmer, 519 S.W.2d 801, 805 (Tenn. 1975)).

However, “[c]ontract language will not be considered ambiguous . . . merely because the

parties differ as to their interpretation of the language.” Johnson v. Johnson, 37 S.W.3d

892, 896 (Tenn. 2001).

In this case, neither party contends that the contractual language is ambiguous.

Indeed, both parties argue that the language unequivocally mandates that we enter

judgment in their favor. Because the MDA is unambiguous, this Court may not look

beyond the four corners of the MDA to discern the parties’ intent. See Int’l Flight Ctr. v.

City of Murfreesboro, 45 S.W.3d 565, 570 (Tenn. Ct. App. 2000) (“When the language of

the MDA is plain and unambiguous, courts determine the intent from the four corners of

the document and enforce its plain terms as written.”)

Husband urges this Court to construe the “Alimony” provision in the MDA

narrowly. “Tennessee recognizes four distinct types of spousal support: (1) alimony in

futuro, (2) alimony in solido, (3) rehabilitative alimony, (4) transitional alimony.”

Mayfield v. Mayfield, 395 S.W.3d 108, 115 (Tenn. 2012). Husband relies on Tennessee

Code Annotated Section 36-5-121(h)(2) which provides that, “[a] final award of alimony

in solido is not modifiable, except by agreement of the parties only.” Here, however, the

parties have contracted to relieve Wife of the “total monthly payments” owed under the

“Alimony” provision of the MDA. The parties have not included qualifying language to

specify whether, by “Alimony,” they mean specific types of alimony. Likewise, the

parties have not included language indicating that “total monthly payment” was to be

understood as only half of Wife’s total monthly alimony payment obligation. The use of

the term “Alimony” in the provision of the MDA, without restriction, should be

interpreted to include all of the alimony types contemplated in that section of the MDA.

Those types include both alimony in futuro and alimony in solido.

Despite Husband’s assertion to the contrary, the aforementioned provision simply

cannot be understood to apply only to half of Wife’s total alimony obligation. The plain

language of the provision clearly contemplates that Wife’s entire monthly alimony

obligation, i.e. her “total monthly payments,” shall be relieved if Husband failed to

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comply with certain specified provisions of the MDA and the PPP. “One of the bedrocks

of Tennessee law is that our courts are without power to make another and different

contract from the one executed by the parties themselves.” Eberbach v. Eberbach, No.

M2014-018110SC-R11-CV, 2017 WL 2255582, at *7 (Tenn. Oct. 5, 2016); see also

Marcum v. Ayers, 398 S.W.3d 624, 629 (Tenn. Ct. App. 2012) (“It is not the role of the

courts to rewrite contracts for dissatisfied parties”); Towe Iron Works, Inc. v. Towe, 243

S.W.3d 562, 569 (Tenn. Ct. App. 2007) (“It is an often-cited principle in this jurisdiction

that in the absence of mistake or fraud, the courts will not create or rewrite a contract

simply because its terms are harsh or because one of the parties was unwise in agreeing to

them.”) (citation omitted). As such, we agree with the trial court that the disputed clause

of the MDA relieves Wife of her total alimony obligation upon Husband’s

noncompliance with the “Passport Provision” of the PPP. Accordingly, the trial court did

not err in granting Wife’s motion for summary judgment.

II. Attorneys’ Fees

Wife seeks an award of reasonable attorneys’ fees on appeal. Litigants must

typically pay their own attorneys’ fees absent a statute or agreement providing otherwise

See State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000).

However, parties to an MDA are free to agree that, should litigation over the contract

arise, the losing party will be responsible for the prevailing party’s fees. See Eberbach,

2017 WL 2255582, at *7. In this case, the parties’ MDA states that “[s]hould either party

incur expenses or legal fees in a successful effort to defend this [MDA], in whole or in

part, the court SHALL award reasonable attorney fees and suit expenses to the party

seeking to enforce this Agreement.” (emphasis in original). “If the MDA is determined to

be a valid and enforceable agreement, the terms of the parties’ agreement govern the

award of fees and the court must enforce the parties’ terms to the extent the agreement

demands.” Id. at *7.

The parties’ agreement is clear that Wife, as the prevailing party, is entitled to

reasonable attorneys’ fees incurred on appeal. Therefore, we remand the case to the trial

court for a determination of the appropriate amount of those fees.

CONCLUSION

For the foregoing reasons, we hold that the trial court did not err in granting

Wife’s motion for summary judgment. Additionally, we award Wife her attorneys’ fees

incurred on this appeal and remand the case to the trial court to determine the appropriate

amount of Wife’s reasonable attorneys’ fees. Costs of this appeal are assessed against

Appellant, Moshe Laor, and his surety, for all of which execution may issue, if necessary.

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ARNOLD B. GOLDIN, JUDGE

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