Susan Hembree (Schumacher) Deluca v. Kerry James Schumacher

03/06/2020

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 5, 2020 Session

SUSAN HEMBREE (SCHUMACHER) DELUCA

V. KERRY JAMES SCHUMACHER

Appeal from the Circuit Court for Davidson County

No. 00D-2918 Philip E. Smith, Judge

No. M2019-00601-COA-R3-CV

A husband and wife executed a marital dissolution agreement (“MDA”) providing that

the husband would pay the wife alimony in futuro even if she remarried. Following the

wife’s remarriage, the husband sought to have his alimony obligation terminated pursuant

to Tenn. Code Ann. § 36-5-121(f)(3), which provides that an alimony in futuro award

“shall terminate automatically and unconditionally upon the death or remarriage of the

recipient.” The trial court terminated the husband’s alimony obligation, and the wife

appealed. We reverse the trial court’s judgment because the parties voluntarily agreed to

terms outside of the statute, and their contract is enforceable as written.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and

Remanded

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.

Karla C. Miller, Nashville, Tennessee, for the appellant, Susan Hembree (Schumacher)

DeLuca.

Helen Sfikas Rogers, Lawrence James Kamm, and Laura S. Blum, Nashville, Tennessee,

for the appellee, Kerry James Schumacher.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

Susan Hembree (Schumacher) DeLuca (“Wife”) and Kerry James Schumacher

(“Husband”) were divorced in September 2008 following a marriage of over thirty years.

The parties executed an MDA in August 2008 that specified, among other things, the

amount and terms of the alimony Husband would pay to Wife. The trial court found that

the MDA provided for “a fair and equitable settlement of the property rights between the

parties” and entered an order approving all provisions of the MDA and making it the

judgment of the court.

The MDA included a section titled “Spousal Support” that provided, in relevant

part, as follows:

Husband agrees to pay alimony as long as the wife shall live in an

amount equal to 30% of his gross income capped at an annual income of

$500,000. This $500,000 cap shall be indexed to the Consumer Price Index

for the South-All Items, which as [of] the date of this agreement is 335.257

(1997=100). Gross income shall be defined as all income on which

Medicare taxes shall be paid plus any pension payments made on the behalf

of the Husband as a fringe benefit that are not currently taxed by Medicare.

Additionally, gross income shall include any payments to which the

Husband is entitled and has otherwise been deferred under IRC Section

457.

....

In addition to the alimony stipulated in the above, Husband agrees to

pay Wife rehabilitative alimony of $3100.00 per month for five years,

commencing 30 days after this agreement is signed.

Husband’s obligation to pay alimony shall cease upon the death of

Wife. Should Husband predecease wife, his estate shall pay the support

obligation as long as Wife is alive. Given that the life expectancy of

Husband is approximately 3.75 years less than that of the Wife, Husband

agrees to maintain an un-encumbered, $1,000,000 life insurance policy,

with Husband as the insured, making Wife the owner and beneficiary, and

to fund the obligation payable at the time of his death. Additionally, the

parties agree, that should the Wife remarry or cohabit more than 90 days

with a romantic partner, and should the Wife’s new Husband or romantic

partner have any gross income, determined in the same manner as that of

the Husband’s, the Husband’s obligation to pay alimony shall be reduced

dollar-for-dollar, based on the amount of the gross income of Wife’s new

Husband or romantic partner, EXCEPT, in no case shall alimony be

reduced any lower than the amount of funds needed to pay the first and

second mortgages on Wife’s residence based on the total amount of the

mortgages ($525,730.70) in existence as of the date of the signing of this

agreement.

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(Emphasis added.)

Wife remarried on October 17, 2015, and Husband learned of the remarriage

shortly thereafter. Husband initially stopped paying alimony to Wife once he found out

that she had remarried, but he resumed sending Wife alimony payments after a couple of

months. Husband eventually sought legal counsel to determine whether he was required

to continue paying alimony to Wife in light of her married status, and on August 1, 2016,

Husband filed a petition seeking to terminate his alimony obligation. By the time of the

hearing, the parties agreed Husband had paid a total of $85,200 to Wife since her

remarriage. Husband sought a judgment in that amount, which he termed an

overpayment of alimony. He also asked the court to reduce or eliminate his obligation to

continue paying premiums on life insurance policies that were transferred to Wife when

the parties were divorced. Husband asserted that the policies were transferred to Wife to

insure his alimony obligation and were not marital assets that the parties divided as part

of the property settlement.

Husband filed a motion for summary judgment, and the trial court held a hearing

to consider the motion on October 28, 2016. The court issued a memorandum and order

on November 23, 2016, in which it ruled that Husband’s obligation to pay Wife alimony

terminated as a matter of law upon her remarriage, regardless of the terms set forth in the

MDA. The court relied for its ruling on Tenn. Code Ann. § 36-5-121(f)(3), which states

in pertinent part: “An award for alimony in futuro shall terminate automatically and

unconditionally upon the death or remarriage of the recipient.” The trial court concluded

that the alimony Husband was paying to Wife was properly classified as alimony in

futuro and summarized its ruling thusly:

[T]he Court finds that the MDA in the present case merged into the final

decree of divorce, and as a result, this Court retained its continuing

jurisdiction to modify the alimony in futuro obligation pursuant to Tenn.

Code Ann. § 36-5-121(f)(2)(A). Furthermore, because Tenn. Code Ann.

§ 36-5-121(f)(3) provides for the automatic and unconditional termination

of an alimony in futuro award upon the remarriage of the recipient, the

Court finds that it must follow the statute as written by the General

Assembly and terminate the Petitioner’s alimony obligation.

In a separate ruling, following an evidentiary hearing, the trial court awarded

Husband a portion of the alimony he paid Wife following her remarriage but denied

Husband’s request that he be permitted to stop paying the premiums on the life insurance

policies that were transferred to Wife when the parties were divorced. Both parties

requested an award of their attorney’s fees. The trial court awarded Wife the fees

attributable to her defense of Husband’s request to be relieved from paying the life

insurance premiums and denied Husband’s request for fees.

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Wife appeals the trial court’s decision granting Husband’s motion for summary

judgment and terminating Husband’s alimony obligation. She contends that the alimony

provisions of the MDA did not merge into the final decree but retained their contractual

nature, with the result that they should be enforced as written. She requests an award of

her attorney’s fees incurred at trial and on appeal. Husband appeals the trial court’s

decision that the life insurance premium payments were partially in the nature of a

property settlement as well as its award to Wife of a portion of her attorney’s fees.

II. STANDARD OF REVIEW

The trial court granted Husband summary judgment on the issue whether he was

required to continue paying Wife alimony once she was remarried. This case involves

the interpretation of the statute addressing alimony, Tenn. Code Ann. § 36-5-121. “The

tasks of statutory construction and applying a statute to a particular set of facts involve

questions of law rather than questions of fact,” and “appellate courts must review a trial

court’s construction of a statute or application of a statute to a particular set of facts de

novo without a presumption of correctness.” Midwestern Gas Transmission Co. v.

Lassiter, No. M2005-00829-COA-R3-CV, 2006 WL 464119, at *5 (Tenn. Ct. App. Feb.

24, 2006); see also Sneed v. City of Red Bank, 459 S.W.3d 17, 22 (Tenn. 2014) (stating

statutory interpretation is an issue of law that appellate courts review de novo). Summary

judgment is appropriate when “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. We review a trial court’s ruling on a motion for summary

judgment de novo, affording the trial court’s decision no presumption of correctness. Rye

v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015).

III. ANALYSIS

A. Alimony Payments

An MDA is a contract that “is subject to the rules governing construction of

contracts.” Eberbach v. Eberbach, 535 S.W.3d 467, 474 (Tenn. 2017). If a trial court

approves an MDA, it becomes incorporated into the decree of divorce. Eberbach, 535

S.W.3d at 474. The trial court in this case filed the parties’ final decree of divorce on

September 17, 2008, and the court wrote that “all provisions of said Marital Dissolution

Agreement are hereby approved and made the judgment of this Court as attached.”

Wife does not dispute the trial court’s determination that the type of spousal

support Husband agreed to pay her was properly classified as alimony in futuro.

Pursuant to Tenn. Code Ann. § 36-5-121(f)(1), “[a]limony in futuro, also known as

periodic alimony, is a payment of support and maintenance on a long term basis or until

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death or remarriage of the recipient.” The section of the statute focusing on alimony in

futuro provides, in pertinent part, that:

(2)(A) An award of alimony in futuro shall remain in the court’s control for

the duration of such award, and may be increased, decreased, terminated,

extended, or otherwise modified, upon a showing of substantial and

material change in circumstances.

(B) In all cases where a person is receiving alimony in futuro and the

alimony recipient lives with a third person, 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.

(3) An award for alimony in futuro shall terminate automatically and

unconditionally upon the death or remarriage of the recipient. The

recipient shall notify the obligor immediately upon the recipient’s

remarriage. Failure of the recipient to timely give notice of the remarriage

shall allow the obligor to recover all amounts paid as alimony in futuro to

the recipient after the recipient’s marriage. Alimony in futuro shall also

terminate upon the death of the payor, unless otherwise specifically stated.

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

Husband relies on section (f)(3) of the statute to support his argument that Wife’s

alimony “was subject to automatic and unconditional termination upon her remarriage”

regardless of the terms of the MDA. Husband cites the merger doctrine, which dates

back to 1946 in Tennessee, to support his position. See Osborne v. Osborne, 197 S.W.2d

234, 236 (Tenn. Ct. App. 1946). In the Osborne case, the Court of Appeals wrote that

when divorcing parties agree to the terms for alimony and child support, the agreements

“are not absolute and binding when the court retains jurisdiction for their modification or

the statute law of the state provides that such decrees remain open and subject to

modification.” Id. (citing 27 C.J.S., Divorce, § 234, p. 961). The Osborne court

continued:

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It is the theory of the majority of the courts that an agreement of the parties

becomes “merged into the decree and thereby loses its contractual nature at

least to the extent that the court has the power to modify the decree when

changed circumstances so justify.”

Id. (quoting Worthington v. Worthington, 139 So. 334, 335 (Ala. 1932)). Since that time,

the courts of Tennessee have found that when divorcing parties agree about their legal

duty of child support or alimony, the parties’ agreement becomes merged into the court’s

decree once it is approved, and it “loses its contractual nature.” Penland v. Penland, 521

S.W.2d 222, 224 (Tenn. 1975); see also Karsonovich v. Kempe, No. M2017-01052-COA-

R3-CV, 2018 WL 1091735, at *3 (Tenn. Ct. App. Feb. 27, 2018) (“Once the MDA is

incorporated, issues governed by statute, like alimony and child support, ‘lose their

contractual nature and become a judgment of the court.’”) (quoting Eberbach, 535

S.W.3d at 474). The Penland Court explained the reason for the rule:

[I]t is clear that the reason for stripping the agreement of the parties of its

contractual nature is the continuing statutory power of the Court to modify

its terms when changed circumstances justify. It follows, and we so hold,

that only that portion of a property settlement agreement between husband

and wife dealing with the legal duty of child support, or alimony over

which the court has continuing statutory power to modify, loses its

contractual nature when merged into a decree for divorce.

Penland, 521 S.W.2d at 224; see also Beck v. Beck, No. W2011-01806-COA-R3-CV,

2012 WL 1656228, at *4-5 (Tenn. Ct. App. May 11, 2012). The issue in Penland was

the enforceability of a provision of the parties’ agreement in which the husband agreed to

“assume liability for all future educational expenses of the children beyond high school

level.” Penland, 521 S.W.2d at 223. The Court concluded that this provision was

enforceable and retained its contractual nature despite the fact that it was incorporated

into the final decree of divorce because it fell “outside the scope of the legal duty of

support during minority.” Id. at 224-25.

Wife argues that the terms of the MDA should be enforced despite the language of

Tenn. Code Ann. § 36-5-121(f)(3) because the parties expressly agreed that Husband

would continue to pay Wife alimony even if she remarried. Wife relies on two different

provisions of § 36-5-121 to support her position. The first provision Wife relies on is

subsection (a), which states:

In any action for divorce, legal separation or separate maintenance, the

court may award alimony to be paid by one spouse to or for the benefit of

the other, or out of either spouse’s property, according to the nature of the

case and the circumstances of the parties. The court may fix some definite

amount or amounts to be paid in monthly, semimonthly or weekly

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installments, or otherwise, as the circumstances may warrant. Such award,

if not paid, may be enforced by any appropriate process of the court having

jurisdiction including levy of execution. Further, the order or decree shall

remain in the court’s jurisdiction and control, and, upon application of

either party, the court may award an increase or decrease or other

modification of the award based upon a showing of a substantial and

material change of circumstances; provided, that the award is subject to

modification by the court based on the type of alimony awarded, the terms

of the court’s decree or the terms of the parties’ agreement.

Tenn. Code Ann. § 36-5-121(a) (emphasis added). The other provision Wife relies on is

what is currently subsection (n), but at the time of the parties’ divorce was subsection

(m):

Nothing in this section shall be construed to prevent the affirmation,

ratification and incorporation in a decree of an agreement between the

parties as to support and maintenance of a party.

Tenn. Code Ann. § 36-5-121(m) (2008).

Recognizing the “tension between the enforceability of a valid contract and the

court’s continuing authority to modify alimony awards,” Winne v. Winne, No. E2018-

01050-COA-R3-CV, 2019 WL 5606928, at *2 (Tenn. Ct. App. Oct. 30, 2019), we have

held that trial courts do not retain jurisdiction to modify alimony in cases where the

divorcing parties have specified in their MDAs that an alimony award is not modifiable.

See, e.g., Karsonovich, 2018 WL 1091735, at *5 (“If a divorcing party wishes to be able

to modify alimony, that party should avoid including language in the MDA stating the

alimony is non-modifiable.”); Vick v. Hicks, No. W2013-02672-COA-R3-CV, 2014 WL

6333965, at *2-4 (Tenn. Ct. App. Nov. 17, 2014) (denying husband’s petition to

terminate transitional alimony upon wife’s remarriage due to non-modification language

of MDA); cf. Winne, 2019 WL 5606928, at *3 (holding alimony award was modifiable

where parties did not expressly state in MDA that alimony award was not modifiable).

The reason for the courts’ willingness to enforce these agreements is that “[p]arties

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).1

1

In Holt, the Court of Appeals affirmed the trial court’s denial of the payor’s request to be relieved from

his promise to pay the recipient $80,000 as alimony in solido over a period of ten years in addition to ten

percent of the payor’s gross income for five years after the final payment of alimony in solido was made.

Holt, 751 S.W.2d at 427-28. The payor argued that the alimony provisions were void because they

violated public policy, and the court did not address the modification or termination provisions of Tenn.

Code Ann. § 36-5-121. Id.

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In Vick v. Hicks, the husband agreed in the parties’ MDA to pay the wife

transitional alimony for a period of sixty months. Vick, 2014 WL 6333965, at *2. Their

MDA stated that “[t]he alimony shall be not modifiable by either party.” Id. The wife

remarried before the end of the sixty-month period, and the husband filed a petition to

terminate his alimony obligation. Id. at *1. The trial court granted the wife’s motion to

dismiss the petition, and the husband appealed. Id. Similar to Husband’s contention in

the case at bar, the husband in Vick argued that the alimony statute gives the court

“continuing statutory authority to modify his alimony obligation” irrespective of the

terms of the MDA, and the wife’s remarriage gave him the right to seek relief under the

statute. Id. at *3. The Court of Appeals disagreed:

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. § 36-5-121(n)

(2014) (stating that “[n]othing in this section shall be construed to prevent

the affirmation, ratification and incorporation in a decree of an agreement

between the parties as to support and maintenance of a party”). In cases

such as this one where the parties plainly state that the agreed-upon

transitional alimony is nonmodifiable, courts should hold the parties to their

agreement.

Id. at *4 (footnotes omitted). The Vick court clarified in a footnote that the MDA’s “plain

language is controlling and makes the circumstances listed in Tenn. Code Ann. § 36-5-

121(g)(2)(A-C) inapplicable.” Id. at *4 n.2; see also Karsonovich, 2018 WL 1091735, at

*4 (denying husband’s petition to modify alimony payments where MDA stated alimony

was “non-modifiable”).

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The MDA at issue here does not include the “non-modifiable” language discussed

above. However, the parties’ MDA addresses the possibility of Wife’s remarriage and

unambiguously states that Husband’s alimony payments will continue notwithstanding

her remarriage:

[T]he parties agree, that should the Wife remarry or cohabit more than 90

days with a romantic partner, and should the Wife’s new Husband or

romantic partner have any gross income, determined in the same manner as

that of the Husband’s, the Husband’s obligation to pay alimony shall be

reduced dollar-for-dollar, based on the amount of the gross income of

Wife’s new Husband or romantic partner, EXCEPT, in no case shall

alimony be reduced any lower than the amount of funds needed to pay the

first and second mortgages on Wife’s residence based on the total amount

of the mortgages ($525,730.70) in existence as of the date of the signing of

this agreement.

We have held that the alimony statute is not applicable to reduce or terminate an

alimony obligation where the parties have agreed in an MDA to terms different from

those contained in the statute even when the MDA does not state that it is not modifiable.

For example, in Honeycutt v. Honeycutt, 152 S.W.3d 556, 558 (Tenn. Ct. App. 2003), the

parties to an MDA agreed that the husband’s alimony in futuro payments would cease if

the wife cohabited with “a man not related to her.” When the wife began living with an

unrelated man, the husband sought to terminate his alimony payments. Id. at 558-59.

The wife argued that she was still entitled to the alimony based on evidence she presented

that she was not receiving financial support from the unrelated man. Id. at 563 n.5. She

argued that her evidence rebutted the presumption currently contained in Tenn. Code

Ann. § 36-5-121(f)(2)(B) that her alimony in futuro payments should be reduced or

terminated if she lived with a third person who contributed to her support or who

received support from her. Id.2 The trial court agreed with the wife and denied the

husband’s request, and the husband appealed. Id. at 560-61. We reversed the trial

court’s judgment on appeal, holding that the statute did not apply to the facts of that case

and that the terms of the MDA determined whether the husband should be relieved of his

alimony obligation. Id. at 564. We wrote:

[W]e find that the parties explicitly contracted for the termination of

Husband’s alimony obligations in the event Wife cohabits with an unrelated

male, regardless of whether said male was providing Wife with financial

assistance or support. We therefore find that the trial court erred in denying

Husband’s petition on the basis that he failed to introduce proof that Wife

was receiving financial assistance from Barclay.

2

The presumptions currently codified at Tenn. Code Ann. § 36-5-121(f)(2)(B) were codified at Tenn.

Code Ann. § 36-5-101(a)(3)(A) and (B) for all relevant purposes in Honeycutt.

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Id.

This court reached a similar result in Myrick v. Myrick, No. M2013-01513-COA-

R3-CV, 2014 WL 2841080 (Tenn. Ct. App. June 19, 2014). In that case, the parties’

MDA provided that the husband would pay the wife $2,000 in alimony “until the Wife

dies or remarries, until the Husband dies, or until a third person not the Wife’s child,

moves into the Wife’s residence.” Myrick, 2014 WL 2841080, at *1. When the wife’s

mother moved into the wife’s residence two years later, the husband filed a petition

seeking to modify or terminate his alimony. Id. The trial court terminated the husband’s

alimony obligation based on the terms of the MDA, and the wife appealed. Id. at *2-3.

The wife argued that the trial court erred by failing to apply the rebuttable presumption

set forth in Tenn. Code Ann. § 36-5-121(f)(2)(B) before terminating her alimony. Id. at

*4. This court affirmed the trial court’s termination, stating, “The language used [in the

MDA], i.e., ‘until a third person not the Wife’s child, moves into the Wife’s residence,’ is

not ambiguous, and the parties’ choice to use this language in their agreement binds them

to it.” Id. at *6.

In Cherqui v. Laor, No. W2016-02502-COA-R3-CV, 2017 WL 4843185, at *4

(Tenn. Ct. App. Oct. 25, 2017), the Court of Appeals terminated a wife’s alimony

obligation when the husband failed to cooperate with the wife in obtaining a passport for

the parties’ child within the time period specified in the MDA and the permanent

parenting plan referenced in the MDA. In their MDA, the wife agreed to pay the husband

alimony in the amount of $5,000 per month for forty months. Id. at *1. The MDA

provided: “The total monthly payments shall not be modifiable with the following

exception: should Husband fail to comply with the provisions enumerated [in the MDA

or 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.”

Id. (emphasis omitted). Acknowledging that “‘our courts are without power to make

another and different contract from the one executed by the parties themselves,’” the

Cherqui court held that the MDA relieved the wife of her alimony obligation due to the

husband’s failure to comply with the terms of the passport provision of the MDA and

parenting plan. Id. at *4 (quoting Eberbach, 535 S.W.3d at 478).

When divorcing parties do not address the statutory conditions warranting a

modification or termination of alimony in their MDA, we have held that the alimony

obligation is subject to modification or termination according to the statute. For example,

in Winne v. Winne, the husband agreed in the parties’ MDA to pay the wife $2,200 each

month as periodic alimony until either party’s death, the wife’s remarriage, or the passage

of seven years. Winne, 2019 WL 5606928, at *3. The husband sought to modify or

terminate his alimony obligation when the wife began living with a paramour in a house

that the wife and her paramour owned. Id. at *1. The trial court modified the alimony

obligation pursuant to Tenn. Code Ann. § 36-5-121(f)(2)(B), finding that the wife failed

to rebut the statutory presumption that she no longer needed the full amount of alimony

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because she was receiving support from a third party. Id. at *2. The wife appealed,

arguing that the alimony provision of the MDA precluded the court from modifying the

husband’s alimony obligation for any reason not included in the MDA. Id. This court

disagreed, noting that the MDA addressed only termination, not modification, and that

“[s]ilence does not preclude modification.” Id. at *3. We explained that “[t]he failure to

include cohabitation in the list of events that terminate alimony does not evidence an

intent to preclude modification of the award as authorized in the alimony statute.” Id.;

see also Scherzer v. Scherzer, No. M2017-00635-COA-R3-CV, 2018 WL 2371749, at *9

(Tenn. Ct. App. May 24, 2018) (“[A]lthough divorcing parties may contract to forego the

statutory cohabitation exception to the nonmodifiability of transitional alimony provided

in Tennessee Code Annotated § 36-5-121(g)(2), they need not include the exception in

their MDA for the statute to apply.”).

In Bryan v. Leach, 85 S.W.3d 136, 140 (Tenn. Ct. App. 2001), the divorcing

parties entered into an MDA in which the father agreed to pay weekly child support

“until each child is 22 years of age provided they are enrolled annually in and attending

college full-time.” In addition, the father agreed to pay for the children’s private school

tuition as well as “college expenses, including room, boarding, tuition, books and

supplies, and other expenses related to college until each such child graduates from

college.” Bryan, 85 S.W.3d at 140. Both parties subsequently remarried, the father

incurred additional expenses, and the mother’s estate increased in value with the rise in

the stock market. Id. at 142. The father requested that a portion of his child support

payments be placed into a trust and sequestered from the mother’s access because he

believed the mother and her husband were using the payments for themselves rather than

for the children’s benefit. Id. at 142, 151. The trial court denied the father’s request, and

the father appealed. Id. at 142-43. This court affirmed the trial court’s ruling as it related

to the child support payments payable after the children reached eighteen years old. Id. at

151-52. We wrote:

Any amounts of support that are not legally mandated but are imposed

solely by the MDA, are not subject to revision by the court. That includes

Father’s agreement to pay support and college expenses beyond the date

each child reaches the age of majority and graduates from high school.

....

While it is generally true that a parent cannot be ordered by the

courts to pay child support for an adult child, Blackburn v. Blackburn, 526

S.W.2d 463, 465 (Tenn. 1975); Garey v. Garey, 482 S.W.2d 133, 135

(Tenn. 1972), a party to a divorce may by agreement obligate himself or

herself beyond the support duties imposed by law. Such a provision in an

agreement constitutes “a contractual obligation outside the scope of the

legal duty of support during minority and retains its contractual nature,

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although incorporated in a final decree of divorce.” Penland v. Penland,

521 S.W.2d 222, 224-25 (Tenn. 1975); Blackburn, 526 S.W.2d at 465. Any

voluntarily assumed obligation exceeding the minimum child support

required by statute is based on the parties’ contract, enforceable as a

contractual obligation, and controlled exclusively by the agreement. Haas

v. Haas, No. 02A01-9604-CV-00073, 1997 WL 194852, at *3 (Tenn. Ct.

App. Apr. 22, 1997) (no Tenn. R. App. R. 11 application filed). A parent’s

agreements to pay college expenses as well as to provide support beyond

majority are contractual obligations for which the parent has no legal duty

and which are not subject to modification by the courts. Penland, 521

S.W.2d at 224-25; Dorris v. Dorris, No. 01A01-9304-CV-00170, 1993 WL

380778, at *2 (Tenn. Ct. App. Sept. 29, 1993) (no Tenn. R. App. P. 11

application filed) (the trial court has no statutory power to award child

support beyond the age of majority and no continuing power to modify

such support).

Id. at 151. The Bryan court continued, stating “‘The courts may not make a new contract

for the parties who have spoken for themselves and may not relieve parties of the

contractual obligations simply because these obligations later prove to be burdensome or

unwise.’” Id. at 152 (quoting Marshall v. Jackson & Jones Oils, Inc., 20 S.W.3d 678,

682 (Tenn. Ct. App. 1999) (citations omitted)).

Turning now to the facts of this case, we find that Husband’s promise to pay Wife

alimony even if she were to remarry is similar to the father’s promise in Bryan to pay his

children’s expenses following their eighteenth birthdays. Just as a parent may agree to

pay more child support than he or she may be statutorily required to pay, one spouse may

agree to pay more alimony to the other spouse than he or she may be statutorily required

to pay. By specifying in the MDA that Husband would pay Wife alimony even if she

were to remarry, the parties essentially agreed that Tenn. Code Ann. § 36-5-121(f)(3) is

not applicable to their MDA. An MDA is a contract, and parties are free to contract for

provisions outside a statute’s realm. Karsonovich, 2018 WL 1091735, at *5; Vick, 2014

WL 6333965, at *4; see Scherzer, 2018 WL 2371749, at *8 (stating that Tenn. Code Ann.

§ 36-5-121(n) “specifically contemplates that divorcing parties, will at times, reach their

own agreements as to support payments”). As the Court of Appeals has noted, “our

statutes permit and encourage divorcing parties to resolve by agreement their disputes

regarding child custody and visitation, child support, spousal support, and the distribution

of marital property.” Gibbs v. Gibbs, No. E2015-01362-COA-R3-CV, 2016 WL

4697433, at *4 (Sept. 7, 2016) (citing Tenn. Code Ann. § 36-5-121(n), which was

codified as subsection (m) at the time of Husband and Wife’s divorce) (footnotes

omitted).

As the Tennessee Supreme Court reminds us, “courts must interpret contracts so

as to ascertain and give effect to the intent of the contracting parties consistent with legal

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principles.” Individual Healthcare Specialists, Inc. v. BlueCross BlueShield of Tenn.,

Inc., 566 S.W.3d 671, 688 (Tenn. 2019). “[S]ubsequent modification of an agreement

that retains its contractual nature would violate the Tennessee Constitution’s prohibition

against the impairment of contractual obligations.” Gibbs, 2016 WL 4697433, at *4

(citing Blackburn, 526 S.W.2d at 465). We hold that Husband must comply with the

terms of the MDA that he signed on August 8, 2014, and that he is not relieved of his

obligation to pay Wife alimony because of her remarriage. The parties acknowledged in

paragraph 21 of the MDA that “they believe this agreement to be fair, just, and

reasonable [and] acknowledge that this agreement is the free and voluntary act of each

other.” In paragraph 22 each party represented that “he or she understands the meaning

of the various provisions of this agreement, and that the text does set forth the agreement

in the manner they had intended, and that they both had ample opportunity to have it

reviewed by separate and independent counsel.” In paragraph 26 the parties stated:

It is further understood and agreed by and between the parties that this

Marital Dissolution Agreement is entered into without any undue influence,

fraud, coercion, or misrepresentation or for any reason not herein stated.

Each party has had the opportunity to seek legal advice regarding the

provisions in this Agreement and their legal effects, each party

acknowledges that the agreement is fair and equitable and that it is being

entered into voluntarily. The parties further acknowledge that they have

had an opportunity to receive tax advice from a tax professional and did not

receive or rely upon any tax advice from their respective attorneys.

On the day of the final divorce hearing, the trial judge asked Wife for Husband’s

telephone number. The judge then telephoned Husband and asked him to initial each

page of the MDA and then fax the initialed pages back to the court. After Husband

complied with this request, the trial judge wrote “Treat as original” and added her initials

to the bottom of pages 3 and 4 of the MDA, which are the pages containing the section

titled “SPOUSAL SUPPORT.” This extra step by the trial judge reflects her effort to be

sure Husband was aware of the terms of the MDA before incorporating it into the parties’

decree of divorce.

B. Public Policy

Husband contends that the MDA violates public policy, and is therefore

unenforceable, because it contradicts Tenn. Code Ann. § 36-5-121(f)(3). The question

whether a contract violates public policy is an issue of law which we review de novo,

with no presumption of correctness. Baugh v. Novak, 340 S.W.3d 372, 381 (Tenn. 2011).

The Baugh Court wrote that a court must act “with great delicacy” when invalidating a

contract on the grounds of public policy because “‘exercising the authority to declare

contracts as void as against public policy is in tension with freedom of contract and the

need to bind parties to their voluntary agreements,’” id. at 382 (quoting 21 Steven W.

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Feldman, TENNESSEE PRACTICE: CONTRACT LAW AND PRACTICE § 7:3, at 732 (2006)),

and “Tennessee law recognizes that ‘[t]he individual right of freedom of contract is a

vital aspect of personal liberty,’” id. (quoting 21 Feldman, TENNESSEE PRACTICE:

CONTRACT LAW AND PRACTICE § 7:3, at 728).

In Karsonovich v. Kempe, this court held that a husband’s promise to pay “non-

modifiable transitional alimony” for over thirteen years did not violate public policy

despite the fact that the parties agreed to terms that exceeded the scope of the statute.

2018 WL 1091735, at *4-5. Citing Tenn. Code Ann. § 36-5-121(n), we wrote: “‘[T]he

alimony statute specifically contemplates that divorcing parties, will at times, reach their

own agreements as to support payments.’” Id. at *5 (quoting Vick, 2014 WL 6333965, at

*4). We further stated: “The parties contracted for elements outside the statute, and

these deviations from the statute do not conflict with the policy set forth in Tenn. Code

Ann. § 36-5-121 because the statute explicitly contemplates separate agreements.” Id.

In Holt v. Holt we wrote that “‘[p]ublic policy is practically synonymous with

public good,’” Holt, 751 S.W.2d at 428 (quoting Lazenby v. Universal Underwriters Ins.

Co., 383 S.W.2d 1, 5 (Tenn. 1964)), and that “[a] contract may not be held invalid as

against public policy unless some public detriment will probably result” or “the object of

the contract has a tendency to injure the public,” id. (citing Twin City Pipeline Co. v.

Harding Glass Co., 283 U.S. 353, 358 (1931), and Nashville Ry. & Light Co. v. Lawson,

229 S.W. 741, 743 (Tenn. 1921)). The Holt court held that the husband’s agreement to

pay the wife $80,000 as alimony in solido for ten years and then a percentage of his gross

income as alimony in futuro for an additional five years did not violate the public policy

of Tennessee. Holt, 751 S.W.2d at 428. As the court explained,

The court did not order the appellant to pay alimony in solido; the court

simply incorporated into its final decree the appellant’s agreement to do so.

Enforcement of the appellant’s agreement would not establish any

precedent contrary to our holding in Aleshire [v. Aleshire, 642 S.W.2d 729

(Tenn. Ct. App. 1981)]. Parties should be free to obligate themselves by

agreement beyond what the courts could order them to do as a matter of

law. See generally Blackburn v. Blackburn, 526 S.W.2d 463, 465 (Tenn.

1975). In such cases the courts are not sympathetic to a party who promises

more than he can reasonably expect to pay in order to induce the other

spouse to obtain a divorce and then seeks the termination of the agreed

payments. Richardson v. Richardson, 598 S.W.2d 791, 794 (Tenn. App.

1980).

Id.

For the reasons set forth in Baugh, Karsonovich, and Holt, we hold that Husband’s

promise to pay Wife alimony in futuro after her remarriage does not violate the public

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policy of Tennessee. No court is ordering Husband to pay Wife alimony in futuro

following her remarriage; we are simply enforcing an agreement the parties voluntarily

executed when they were divorced.

C. Insurance Policy Premiums

In light of our holding that Husband is obligated to comply with the express terms

of the MDA and continue paying Wife alimony as set forth in the agreement, Husband’s

argument regarding the trial court’s holding that he is not relieved from paying the

premiums on the life insurance policies is pretermitted.

D. Attorney’s Fees

Wife contends that she is entitled to an award of the attorney’s fees she incurred at

trial as well as on appeal. The MDA specifies that if either party is required to retain

counsel to enforce or defend any provision of the agreement, “the prevailing party shall

be entitled to recover all reasonable attorney’s fees and costs of court incurred during

such procedure.” The trial court awarded Wife only a portion of the fees she incurred at

trial based on its holding that Husband’s alimony obligation terminated as a matter of law

upon Wife’s remarriage. Because we reverse the trial court’s decision on this issue, Wife

is entitled to recover all of the reasonable attorney’s fees she incurred at trial and on

appeal. On remand, the trial court shall determine the amount of Wife’s reasonable

attorney’s fees incurred at trial and on appeal and shall enter an order awarding such

amount to Wife.

IV. CONCLUSION

The judgment of the trial court terminating Husband’s alimony obligation is

reversed, and this matter is remanded for the determination of Wife’s reasonable

attorney’s fees incurred at trial and on appeal. Costs of appeal shall be assessed against

the appellee, Kerry James Schumacher, for which execution may issue if necessary.

________________________________

ANDY D. BENNETT, JUDGE

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