Church v. Church

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 4, 2010 Session

DEANA ELIZABETH CHURCH
v.
THOMAS NEAL CHURCH

Appeal from the Circuit Court for Williamson County
No. 03306 Robbie T. Beal, Judge

No. M2009-02159-COA-R3-CV - Filed December 20, 2010

This appeal involves post-divorce modification of alimony. When the husband and wife were
originally divorced, the husband was ordered to pay alimony in futuro. At the time of the
divorce, the wife was undergoing treatment for a life-threatening illness. After the divorce,
the wife’s treatment resulted in a dramatic improvement in her health. Meanwhile, the
husband lost his job and ultimately found employment at a reduced level of compensation.
Citing his decreased income and the wife’s improved circumstances, the husband sought
modification or termination of his alimony obligation. The trial court found a material change
in circumstances, but nevertheless denied the husband’s petition to modify. The husband
appeals. We affirm, finding no abuse of discretion by the trial court.

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

H OLLY M. K IRBY, J.,, delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.

David W. Garrett, Nashville, Tennessee, for Plaintiff/ Appellee, Deana Elizabeth Church.

Phillip R. Newman, Puryear, Newman, & Morton, PLLC, Franklin, Tennessee, for Defendant/
Appellant, Thomas Neal Church.
 OPINION

F ACTS AND P ROCEEDINGS B ELOW

Defendant/Appellant Thomas Neal Church (“Husband”) and Plaintiff/Appellee Deana
Elizabeth Church (“Wife”) were divorced in September 2004 after twenty-eight years of
marriage. This is the second appeal in this case. See Church v. Church, No. M2004-02390-
COA-R3-CV, 2005 WL 3361990 (Tenn. Ct. App. Dec. 9, 2005).

When the parties married, Wife discontinued her schooling in order to work, so that Husband
could finish college. After he finished his schooling, pursuant to their agreement, Wife was
the family’s homemaker and Husband was the breadwinner. Along the way, Wife acquired
little in the way of vocational skills. Id. at *1.

Husband acquired a bachelor’s degree, as well as a masters in business administration. At the
time of the divorce, Husband was employed as a sales manager with Caterpillar Financial
Services Corporation (“Caterpillar”),1 earning over $150,000 per year, with access to stock
options. At the time of the divorce trial, Wife was undergoing aggressive chemotherapy and
radiation treatments for breast cancer.

After the divorce trial, the trial court declared the parties divorced and divided the marital
property. The marital estate included an ownership interest in two Sonic restaurants; this
ownership interest was awarded to Husband in the divorce.

In the divorce decree, the trial court determined that Wife was financially disadvantaged due
to her medical condition and lack of work experience, and awarded her alimony in futuro in
the amount of $3000 per month until she died, remarried, or Husband reached the age of sixty-
five. During the time in which Husband was required to pay alimony, he was also required
to maintain a $100,0000 life insurance policy with Wife as the named beneficiary, and to pay
Wife’s medical insurance premium and yearly deductible until Wife reached the age of sixty-
five.

Wife appealed, asserting that she was entitled to a greater share of the marital estate. The
appellate court modified the divorce decree such that Husband’s obligation to pay alimony
would not terminate upon his reaching the age of sixty-five. Id. at *4. It also increased

1
In some places in the record, Husband’s former employer is referred to as Caterpillar, Inc. To the extent
appropriate, the term “Caterpillar” is used herein as inclusive of both Caterpillar, Inc. and Caterpillar
Financial Services Corporation.

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Husband’s life insurance obligation to $200,000. Otherwise, the decision of the trial court
was affirmed. Id.

At some point after the parties’ divorce, Husband remarried; his wife is employed by
Caterpillar in Nashville, Tennessee. In August 2006, Husband underwent heart surgery, and
Caterpillar put him on a two-month disability leave. Apparently while Husband was out on
disability leave from Caterpillar, he purchased a condominium in Florida as an investment;
this investment seems to have been made near the top of the real estate boom. After he
returned to work at Caterpillar, Husband invested in a restaurant venture that eventually
failed.

In February 2008, Caterpillar terminated Husband’s employment. Husband asserted a claim
against Caterpillar, for which he ultimately received a monetary settlement.

After his employment with Caterpillar ended, Husband undertook a thirteen-month job search.
During the thirteen-month period, Husband received a payment for a one-time consulting job.
He eventually found employment with LEEVAC Industries, LLC (“LEEVAC”), in Jennings,
Louisiana, earning substantially less than he made at Caterpillar. Because his wife was
employed in Nashville, Husband and his wife continued to live in Franklin, Tennessee, and
Husband flew to Louisiana each week to work at LEEVAC.

Meanwhile, after the parties’ divorce, Wife continued her treatment for breast cancer.
Contrary to the expectations of her physicians at the time of the divorce, Wife’s treatments
were quite successful. She finished the treatments and later had no sign of recurrence of the
cancer. In the wake of her recovery, Wife volunteered as a medical secretary at a missionary
training center in Utah. Later, Wife became employed at a hospital, doing clerical work, for
approximately thirty hours per week. For her work at the hospital, Wife started at a wage of
$9.62 per hour, and later received a raise to $10.35 per hour.

In September 2008, Husband filed a petition with the trial court to modify his alimony
obligation. He asserted that the loss of his employment with Caterpillar and his reduced
income, coupled with the improvement in Wife’s health and her ability to work, amounted to
a substantial and material change in circumstances. Husband asked the trial court to modify
or terminate his monthly alimony obligation, as well as his obligation to pay Wife’s health
insurance premiums.2

2
The petition to modify the final decree of divorce does not mention modification of Husband’s life
insurance obligation. We assume that the issue was tried by implied consent.

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In response to Husband’s petition to modify, Wife denied any substantial and material change
in circumstances. She asserted that, in addition to his salary with LEEVAC, Husband had
other assets and sources of income that enabled him to continue paying the court-ordered
amount of alimony. Wife claimed that the only reason for her employment at the hospital was
to obtain health insurance, which was necessitated by Husband’s failure to continue paying
her health insurance premiums, as mandated in the final decree of divorce. Discovery ensued.

A bench trial was held on July 2, 2009. The trial court heard testimony from Husband and
Wife, and the deposition of Wife’s physician was admitted into evidence.

In his testimony, Husband outlined the pertinent sequence of events following the parties’
divorce, including his heart surgery, his acquisition of the Florida condominium, his
investment in the failed restaurant venture, and the termination of his employment with
Caterpillar in February 2008. At the time of his termination, Husband said, he was earning
a salary of $156,000 to $160,000 per year, plus stock options.

Husband received two one-time payments during his thirteen-month job search. First, he
received a received a $47,500 payment from Caterpillar in settlement of his claim. He also
received a $24,000 payment for a one-time consulting job.

Husband said that, in his employment with LEEVAC, he was earning $98,000 per year. He
explained that he is unable to relocate to Louisiana because his wife is employed in Nashville,
and so he bears the additional expense of commuting to and from Louisiana. Every week,
Husband flies to Louisiana, stays in a rented apartment at a cost of $400 per month, and pays
$110 per month in parking expenses. He said his expenses total approximately $1400-$1500
per month.

Husband testified that he still retains the ownership interest in the Sonic restaurants that he
was awarded in the division of marital property. He acknowledged that he normally receives
$2,750 a month in rental income from the Sonic restaurants, but asserted that, since August
2008, he had not received any income from store sales due to the restaurants’ management
problems. In 2004, Husband said, he received $83,680 in gross income from the Sonic
restaurants, $111,380 in 2005, $103, 650 in 2006, $112,058 in 2007, and $80,250 in 2008.
Husband testified that, from the beginning of 2009 to the July 2009 date of the trial, he had
received only $16,500 in income from the Sonic restaurants.

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Husband said that his expenses also include the mortgage on his home in Franklin 3 and the
mortgage on the condominium in Florida that he purchased prior to losing his job at
Caterpillar. Husband testified that he receives approximately $1,500 per month in rental
income from the Florida condominium, but pays a mortgage and a line of credit totaling
$3,642.88 per month, as well as $1,900 per month in homeowner’s association fees. Husband
explained that he would not have invested in the condominium in Florida had he known that
he would lose his job with Caterpillar, and he claimed that the real estate market at the time
of trial made it infeasible to sell the condominium. He also said that he had incurred nearly
$10,000 in attorney fees and over $2,000 in litigation costs.

Husband acknowledged having a substantial amount of credit card debt. Husband said that
he incurred expenses of some $1800-$2000 per month for dining out, including meals in
Louisiana. He admitted spending $15,000 for tickets to the Nashville Predators, but said he
recouped $11,000 by reselling the tickets to a third party. Husband also conceded that he
spent several thousand dollars at Galaxy Golf during this time, as well as $17,814 for artwork
and $13,867 for jewelry. Husband also reported a loss of $16,000 on two condominiums in
Nashville, purchased for investment. Husband admitted traveling extensively for pleasure
to destinations such as Mobile, Las Vegas, Chicago, New Orleans, San Diego, and Florida,
and to various casinos; apparently a number of these trips occurred during his thirteen-month
job search. Husband explained that he takes far fewer pleasure trips now that he has full-time
employment, although he and his wife still take some weekend trips.4

Husband maintained that his alimony should be reduced or eliminated. He calculated that,
while his alimony obligation once constituted 32% of his income, at the time of the trial, it
constituted 78.5% of his income.

Wife testified as well. She said that, as of the time of trial, she had lived in Utah for
approximately three years and three months. When she moved to Utah, she purchased a

3
The record does not contain the amount of the monthly mortgage payment for Husband’s Franklin,
Tennessee residence.
4
Husband explained how he paid for his frequent pleasure trips, and his reasons for taking them:

. . . I have enough [frequent flyer] miles for free trips. Currently I have about eight free
trips in the bank and have a companion pass for my wife, so she flies for free. The hotels
typically comp us. You know, the trips in retrospect, would I have done it differently, yeah,
I probably would have. But on the other hand, in 2006, I had major heart surgery. It kind
of gave me a different look at things, and subsequent to that I chose to – you know, I choose
to live my life in a way that it’s going to be the glass is going to be full and not empty.

He also explained, “[M]y wife likes to go places. She’s young.”

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condominium for a purchase price of $262,500, with a total mortgage payment of
approximately $1570 per month. She retained stock options and the investment account
awarded to her in the divorce, although the value of these investments had diminished in the
wake of market changes.

Wife claimed expenses totaling approximately $5,020 per month. These expenses included
$258 per month in “miscellaneous travel and grandchildren expenses” for items such as
diapers, snacks, and clothing. She said that, in 2008, she flew to Arizona two or three times
to visit her sister and, in 2009, she flew to San Diego for her niece’s wedding. Wife reported
church contributions of $450 per month plus donations of shares of stock. Wife reported that
she gave the parties’ twenty-eight year old son checks totaling $6000 for college graduation
and other such occasions.

Upon moving to Utah, Wife began volunteering at the Missionary Training Center for
approximately thirty-two hours a week. As a volunteer, she observed potential missionaries,
and sat behind a desk in a clerical capacity assisting the medical secretary. Wife described
her volunteer time as “sedate,” and said that she could take naps when needed. She reported
that her physicians advised her, in determining her activities, “to just go by how [she] feels.”

Wife testified that she found it necessary to obtain employment in order to get health
insurance after her prior insurance lapsed.5 In June 2007, Wife began working at Timpanogos
Regional Hospital in the radiology department, performing clerical work. She started at a
wage of $9.62 per hour, and later received a raise to $10.35 per hour, working three ten-hour
days each week. Ultimately, Wife concluded that working such hours made her exhausted and
ill. She reduced her work hours, although her oncologist did not require her to do so. Wife
testified that she believes that the aggressive chemotherapy and radiation treatments
compromised her immune system, leaving her more vulnerable to illness. Despite reducing
her hours to two ten-hour days per week, she continued to get sick often. Ultimately, she
resigned her position at the hospital. Wife maintained at trial that she still needed the full
amount of alimony awarded to her in the divorce decree.

The deposition of Wife’s oncologist was admitted into evidence. Wife first saw the
oncologist in August 2006, after completing chemotherapy. The oncologist stated that, over
the next ten years, there was a thirty-four percent chance of recurrence of Wife’s breast
cancer. The oncologist noted that Wife “has done incredibly well to this point.” In more
recent visits, the oncologist saw no signs of recurrence.

5
The record indicates that the parties dispute who is at fault for the lapse of Wife’s health insurance.

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The oncologist testified that there were no restrictions on Wife’s physical activities. As to
Wife’s reports of fatigue, the oncologist commented: “I take care of a lot of women with
breast cancer who have been through therapy like she has had ... and many of them say they
just can’t do the things that they could before .... They don’t have the stamina they once had.
It can linger a while.” The oncologist stated that there were no medical reasons preventing
Wife from working 30 hours per week at her local hospital.

At the conclusion of the testimony, the trial judge took a recess and then issued an oral ruling.
Considering the loss of Husband’s long-time employment at Caterpillar and his new
employment at LEEVAC in Louisiana, the trial court found a material change in
circumstances. It found Husband’s earning capacity to be $100,000 per year. It also found
that his partnership interest in the Sonic restaurants generated $24,000 to $25,000 per year in
income, with the “potential” to generate more. It declined to consider one-time payments,
such as his Caterpillar settlement or his consulting fee, as part of his income for alimony
purposes. The trial court also declined to consider Husband’s expenses traveling to Louisiana
and the expenses on his unsuccessful investment properties, noting that these losses resulted
from his choices.

The trial court also found that the improvement in Wife’s ability to earn money amounted to
a substantial and material change in circumstances. It acknowledged Wife’s concerns about
her health, but found that her primary impediment to working full-time was psychological.
The trial court found that Wife had an earning capacity of $20,000 to $25,000 per year.

Despite these changes in the parties’ circumstances, the trial court found that there remained
a significant disparity in the parties’ income and earning potential, and held that Wife had a
continued need for the alimony. In considering Husband’s ability to pay alimony, the trial
court observed that Husband’s difficulty in paying the alimony resulted largely from his poor
investment decisions. It commented: “The husband’s lifestyle certainly didn’t help his cause
here. . . . I think his lifestyle is being financed on the back of credit and to some degree by
his present wife, but the lifestyle hasn’t really changed.” In light of these factors, the trial
court declined to modify Husband’s $3000 per month alimony obligation, and also left intact
his life insurance requirement. However, it capped Husband’s liability for Wife’s health
insurance at $500 per month.

On September 21, 2009, the trial court entered a written order consistent with its oral ruling.
In the order, the trial court acknowledged that Husband had substantial expenses associated
with his poor investment decisions, but stated:

[Husband] must live with the consequences of those [investment] decisions.
[Wife] is not required to suffer due to his bad investment decisions. The Court

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 finds that if [Husband] had not made the bad investment decisions, he would
have the ability to pay alimony and, moreover, [Husband] has the ability to pay
the amount of alimony originally awarded – $3,000.00 per month.

Echoing the earlier oral ruling, the written order states: “The Court specifically finds the proof
presented of [Husband’s] lifestyle is not helpful to his request for a modification or
termination of alimony.” Thus, the trial court denied Husband’s petition to modify, except
insofar as it capped his liability for Wife’s health insurance at $500 per month. The trial court
held that each party was responsible for his or her own attorney fees, and assessed costs
against Husband. Husband appeals.

ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Husband argues that the trial court erred in declining to terminate or modify his
obligation to pay alimony in futuro in the amount of $3000 per month, terminate or modify
his obligation to pay the monthly premiums and the annual deductible for Wife’s medical
insurance, and/or terminate or modify his obligation to maintain a $200,000 life insurance
policy to secure his alimony obligation, despite finding a substantial and material change in
circumstances. On cross-appeal, Wife argues that the trial court erred in finding a substantial
and material change in circumstances. Wife also asserts that the trial court erred in failing to
award her attorney fees at the trial level. She seeks an award for her fees incurred in this
appeal.

We review the trial court’s findings of fact de novo with a presumption of correctness unless
the evidence preponderates to the contrary. T ENN. R. A PP. P. 13(d); Crabtree v. Crabtree, 16
S.W.3d 356, 360 (Tenn. 2000). To the extent that the trial court’s factual findings were based
on its assessment of the witnesses’ credibility, this Court will not reevaluate that assessment
absent clear and convincing evidence to the contrary. Jones v. Barrett, 92 S.W.3d 835, 838
(Tenn. 2002). The trial court’s conclusions of law are reviewed de novo without a
presumption of correctness. Nashville Ford Tractor, Inc. v. Great American Insurance Co.,
194 S.W.3d 415, 425 (Tenn. Ct. App. 2005) (citing Johnson v. Johnson, 37 S.W.3d 892, 894
(Tenn. 2001).

Our review of a trial court’s decision regarding the modification of spousal support is limited.
Modification of spousal support is “factually driven and calls for a careful balancing of
numerous factors.” Bogan v. Bogan, 70 S.W.3d 731, 727 (Tenn. 2001) (citations omitted).
Therefore, a “trial court is accorded wide discretion in modifying awards of spousal support
. . . . ‘Appellate courts are generally disinclined to second-guess a trial judge’s spousal support
decision unless it is not supported by the evidence or is contrary to the public policies
reflected in the applicable statutes.’ ” Hartman v. Hartman, No. E2005-00010-COA-R3-CV,

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2006 WL 2135454, at *4 (Tenn. Ct. App. July 31, 2006) (quoting Kinard v. Kinard, 986
S.W.2d 220, 234 (Tenn. Ct. App. 1998)). Thus, our role is to determine whether the trial
court properly applied the relevant legal principles and made a decision that is not clearly
unreasonable. Id.

The trial court’s decision on whether to award attorney fees is reviewed under an abuse of
discretion standard as well. Richardson v. Spanos, 189 S.W.3d 720, 729 (Tenn. Ct. App.
2005); Evans v. Evans, No. M2002-02947-COA-R3-CV, 2004 WL 1882586 at * 17 (Tenn.
Ct. App. Aug. 23, 2004).

A NALYSIS

Substantial and Material Change in Circumstances

We consider first Wife’s argument that the trial court erred in finding a substantial and
material change in circumstances since the divorce. Wife notes first that Husband is now
employed at LEEVAC, making $98,0000 annually. She contends that the proof shows that,
in addition to his salary, over the five-year period prior to trial, Husband received an average
of $100,206 per year in income from his ownership interest in the Sonic restaurants. Wife
also argues that the trial court should have considered Husband’s $47,500 severance payment
from Caterpillar and his $24,000 payment for a consulting job in 2009. She asserts that, even
if the severance payment and consulting payment are not included, Husband’s average
monthly income in 2009 still exceeds his 2004 net income of $10,657.51 per month, as
determined by this Court in the first appeal.

Wife also argues that, contrary to Husband’s assertion, she still does not have the ability to
work and earn income. She observes that the most she earned while employed was $10.35
per hour, for thirty hours per week, a total of only $16,140 per year. Wife maintains that she
is unable to work due to her frequent bouts with illness, and even if she were able to work,
her vocational skills still leave her financially disadvantaged in comparison to Husband.

To modify an alimony award, there must be a substantial and material change in
circumstances. T.C.A. § 36-5-121(a) (2005); accord. Bogan v. Bogan, 60 S.W.3d 721, 727-
28 (Tenn. 2001) (citing T.C.A. § 36-5-101(a)(1) (Supp. 2000)); Wiser v. Wiser, No. M2009-
00620-COA-R3-CV, 2010 WL 2553652, at *7 (Tenn. Ct. App. June 25, 2010). “This change
in circumstances must have occurred since the original award.” Brewer v. Brewer, 869
S.W.2d 928, 935 (Tenn. Ct. App. 1993) (citing Jones v. Jones, 659 S.W.2d 23, 24 (Tenn. Ct.
App. 1983)). A “substantial” change is one that “significantly affects either the obligor’s
ability to pay or the obligee’s need for support.” Bogan, 60 S.W.3d at 728 (citing Bowman
v. Bowman, 836 S.W.2d 563, 568 (Tenn. Ct. App. 1991)). A change is material if it was not

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anticipated or contemplated at the time of the original divorce. Wiser, 2010 WL 2553652, at
*7 (citing Bogan, 60 S.W.3d at 728). The party seeking modification bears the burden of
proving that a substantial and material change in circumstances has occurred. Freeman v.
Freeman, 147 S.W.3d 234, 239 (Tenn. Ct. App. 2003) (citing Seal v. Seal, 802 S.W.2d 617,
620 (Tenn. Ct. App. 1990)).

The undisputed proof in the record shows that Husband lost his long-time employment with
Caterpillar, earning over $150,000 per year, and that his new job pays approximately $100,000
per year. This is a significant decrease in the compensation Husband receives from his
employment. It occurred after the divorce, and can be considered both substantial and
material. Wiser, 2010 WL 2553652, at *7.

The undisputed proof also shows that, at the time of the divorce trial, Wife was unable to
work and was not expected to regain any ability to work. However, as of the date of the trial
below, Wife was healthy and had lived “beyond the expectations of her medical providers.”
Wife disputes the trial court’s finding that she now has the ability to earn a modest income,
but it appears that the finding was based in part on the trial court’s implicit evaluation of the
credibility of Wife’s testimony that her ability to work was limited, juxtaposed against the
deposition testimony of Wife’s oncologist that Wife no longer had cancer and, that there were
no restrictions on her activities. “We afford ‘considerable deference’ to the trial court’s
determination of credibility and the weight given to oral testimony ‘because the trial court has
the opportunity to observe the witnesses’ demeanors and hear the in-court testimony.’ ”
Andrews v. Andrews, No. W2009-00161-COA-R3-CV, 2010 WL 3398826, at *15 (Tenn. Ct.
App. Aug. 31, 2010) (quoting Interstate Mech. Contractors, Inc. v. McIntosh, 229 S.W.3d
674, 678 (Tenn. 2007)). Giving appropriate deference to the trial court’s assessment of the
witnesses’ credibility, we find that the evidence does not preponderate against the trial court’s
finding that Wife now has the ability to earn some income. This fact, coupled with the
undisputed reduction in Husband’s income from his employment, amounts to a substantial and
material change in circumstances. Therefore, we affirm the trial court’s holding on this issue.

Modification of Alimony Obligation

Husband asserts on appeal that the trial court erred in holding that, despite a substantial and
material change in circumstances, he is not entitled to a termination or modification of his
obligation to pay alimony in futuro of $3000 per month, the requirement that he maintain a
life insurance policy of $200,000 to secure his alimony obligation, or the requirement that he
pay a premium of up to $500 per month and the annual deductible for Wife’s medical

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insurance.6 He cites Bratton v. Bratton, 136 S.W.3d 595, 604 (Tenn. 2004) and Mimms v.
Mimms, 234 S.W.3d 634, 638 (Tenn. 2001), for the proposition that the most important
factors to consider in modifying an alimony obligation are the need of the disadvantaged
spouse and the obligor spouse’s ability to pay.

As to his ability to pay, Husband asserts that the trial court’s finding that his earning capacity
with LEEVAC is approximately $100,000 per year means that his earning capacity is now
62.5% of what it was when he was working at Caterpillar, earning approximately $160,000
per year. Husband argues that, while the reduction in his income is through no fault of his
own, in contrast, Wife has the ability to work but chooses not to.

Additionally, Husband disputes the trial court’s finding that he receives between $24,000 and
$25,000 per year from his interest in the Sonic restaurants. He argues that the ownership
interest in the Sonic restaurants was awarded to him as an income producing asset at the time
of the parties’ divorce, and that any income from the Sonic restaurants was not included in the
determination of his income for the purpose of setting his alimony obligation in the divorce
trial. Husband contends as well that the trial court should have used net income rather than
gross income figures in determining his alimony obligation, because gross income figures do
not account for tax consequences.

As to Wife’s need, Husband notes that Wife’s health has improved and that her physician has
not placed any restrictions on her work. He highlights the trial court’s finding that Wife has
an earning capacity of approximately $20,000 to $25,000 per year. He argues that Wife’s
necessary expenses are less than the $5020 per month she claimed at trial, and asserts that her
expenses are in fact approximately $3067 per month. Husband points out that the parties are
the same age, that both have recovered from major health problems, and now neither suffers
from a physical disability or incapacity due to a chronic disease. Based on these factors,
Husband argues, his alimony obligation should be terminated, or at least modified.

Even if a substantial and material change in circumstances is established, the trial court is
under no duty to modify the alimony award; the party seeking the modification must
demonstrate that a modification is warranted. Bogan, 60 S.W.3d at 730; Wiser, 2010 WL
2553652, at *8. In “assessing the appropriate amount of modification, if any, in the obligor’s
support payments, the trial court should consider the factors contained in” Tennessee Code
Annotated § 36-5-121(i) “to the extent that they may be relevant to the inquiry.” Bogan, 60
S.W.3d at 730 (citing Watters, 22 S.W.3d at 821; Seal, 802 S.W. 2d at 620; Threadgill v.

6
In our discussion, we consider all three obligations – the monthly alimony payment, the medical insurance,
and the life insurance – to be part of Husband’s overall alimony obligation. Under the facts of this case, the
same arguments apply to all three parts of his obligation, and so we consider them together.

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Threadgill, 740 S.W.2d 419, 422-23 (Tenn. Ct. App. 1987); Wiser, 2010 WL 2553652, at *8.
The need of the obligee spouse and the obligor’s ability to pay remain relevant factors in a
modification proceeding. Wiser, 2010 WL 2553652, at *8. However, “while the obligee
spouse’s need is the central inquiry for an initial alimony award, other considerations become
more prominent in a modification proceeding.” Id. at *8.

In a modification proceeding, “the party seeking modification must demonstrate that it is
warranted, considering the factors set out in Tennessee Code Annotated section 36-5-121(i),
to the extent that they are relevant in the modification proceeding.” Id. at *10 (citing Bogan
v. Bogan, 60 S.W.3d 721, 730 (Tenn. 2001)). In the case at bar, there remains considerable
disparity in the parties’ “relative earning capacity,” under Section 36-5-121(i)(1). Likewise,
there is a similar disparity in the parties’ “relative education and training.” Section 36-5-
121(i)(2). Without question, the duration of the marriage was long, some twenty-eight years.
Section 36-5-121(i)(3). Both parties are the same age and have suffered physical adversities.
However, while Husband reacted to his heart surgery by purchasing risky investments and
taking numerous trips with his new spouse, the trial court found that Wife’s encounter with
cancer left her with psychological impediments to functioning fully. Section 36-5-121(i)(4)
and (5).

Moreover, as noted in Wiser, our Legislature has underscored the need to accord appropriate
respect to the role of a spouse who has functioned in the marriage as a homemaker or stay-at-
home parent, thereby leaving himself or herself in an economically disadvantaged position.
Wiser, 2010 WL 2553652 at *11-12 (citing T.C.A. section 36-5-121(c)(1) & (2)). As a result,
the spousal support statutes refer repeatedly to determining support in light of either “the
standard of living enjoyed during the marriage” or “the post-divorce standard of living
expected to be available to the other spouse.” Id. at *12 (quoting T.C.A. sections 36-5-
121(d)(2), (e)(1), & (f)(1)).

Here, it is undisputed that Wife quit her schooling to enable Husband to further his education,
to her economic detriment, and that she thereafter functioned as the family’s homemaker, also
to her economic detriment. Further, while the record does not indicate the parties’ standard
of living while married, the proof shows that, despite the loss of his job with Caterpillar and
the losses resulting from his poor investment choices, Husband’s post-divorce standard of
living clearly eclipses that of Wife.

As to Wife’s need, Husband rightly notes that the proof supports the trial court’s finding that
Wife is capable of earning a modest income. Husband argues that Wife’s claimed expenses
were excessive. However, from our review of the record, and giving appropriate deference
to the trial court’s implicit evaluation of the credibility of Wife’s testimony on her expenses,
there is ample support for the trial court’s conclusion that Wife’s expenses are in fact what

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she claims. Based on this, we find that the evidence supports the trial court’s finding that
Wife still has need for the amount of alimony ordered in the original divorce.

Husband vigorously disputes the trial court’s finding that he still has the ability to pay the
amount of alimony ordered in the divorce decree. He points to the undisputed evidence that
his income from his employment is reduced. He insists that this reduction in his employment
income leaves him unable to pay the amount of alimony originally awarded.

Husband also insists that the trial court erred in finding that he had income from the Sonic
restaurants. Husband characterizes as “speculative” the trial court’s finding that he received
income from the Sonic restaurants, emphasizing the trial court’s use of the word “potential”
in its ruling, and citing Mimms v. Mimms, 234 S.W.3d 634 (Tenn. Ct. App. 2007).

First, we clarify the trial court’s ruling. The trial court did not rule that the Sonic restaurants
had the “potential” to generate $24,000 to $25,000 per year in income. Rather, it made a
factual finding that, as of the time of trial, Husband was in fact receiving some $24,000 to
$25,000 per year in Sonic income, and the restaurants had the potential to generate more than
that. The trial court considered the income figures that Husband submitted into evidence, his
testimony about the dearth of Sonic income in the eleven-month period preceding the trial,
and Husband’s testimony that anticipated expenditures to upgrade the restaurants would
adversely impact the income generated from them in the future. However, the trial court also
considered the evidence that, even after Husband lost his job at Caterpillar, his income from
all sources permitted continued expenditures for gambling trips, luxury purchases, real estate
and business investments, and the like. Weighing all of this evidence, and evaluating the
credibility of the testimony of Husband, the trial court found that the Sonic restaurants
continued to generate at least $24,000 per year in income. From our review of the record, and
affording appropriate deference to the trial court’s assessment of the credibility of the
witnesses, we find that the evidence fully supports the trial court’s factual finding.

Husband also argues that, even assuming the correctness of the trial court’s finding that the
Sonic restaurants continue to generate income, the trial court erred in considering the Sonic
income in assessing his ability to pay the court-ordered alimony. He contends that, because
the ownership interest in the Sonic restaurants was awarded to him in the property division
in the original divorce, income produced from the restaurants should not be considered in
determining whether his alimony obligation should be modified. In support, he cites Norvell
v. Norvell, 805 S.W.2d 772 (Tenn. Ct. App. 1990). In Norvell, in the parties’ divorce, the
wife was awarded the marital home. After the divorce, she sold the marital home, moved to
a smaller residence near her children, and invested the remaining proceeds from the sale. The
husband asserted that the wife’s income from those proceeds should be deemed a “change in
circumstances” that warranted modification of his alimony obligation. This was rejected. The

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Novell court stated: “Any income produced from the proceeds of the sale of the parties’
marital home awarded to a spouse in the division of marital property should not be a factor
in determining whether or not a change of circumstances existed to warrant a modification of
periodic alimony payments.” Id. at 775. Thus, the issue in Norvell was whether the wife’s
sale of the marital home and use of the proceeds was a change in circumstances, not whether
income from an investment property interest should be considered in determining the obligor
spouse’s ability to pay support. Therefore, Husband’s reliance on Norvell is misplaced.

Husband also asserts repeatedly that the trial court in the original divorce decree did not
include the income from the Sonic restaurants in determining his alimony obligation.
However, in the September 2004 final decree of divorce, there is no discussion of Husband’s
income from Caterpillar or any other source, including the Sonic restaurants. There are no
documents in the record before us indicating clearly whether the trial court in fact considered
Husband’s income from the Sonic restaurants in setting the original alimony obligation. Of
course, Husband, as the appellant in this matter, has the “...burden to supply a complete and
accurate record on appeal.” T ENN. R. P. 24(b); Nichols v. State, No. W2009-00590-CCA-R3-
PC, 2010 WL 669225 at *5 (Tenn. Crim. App. Feb. 25, 2010). He has not furnished this
Court with a record that supports his assertion.

However, regardless of whether the trial court in the original divorce proceedings considered
the Sonic restaurants income in setting Husband’s alimony obligation, the trial court in this
modification proceeding is not precluded from doing so. T.C.A. § 36-5-121(i)(1) lists “[t]he
relative earning capacity, obligations, needs, and financial resources of each party, including
income from pension profit sharing or retirement plans and all other sources,” as a relevant
factor to be considered in determining an award of alimony. T.C.A. § 36-5-121(i)(1) (2005)
(emphasis added). Of course, this applies with equal force in the trial court’s consideration
of a request to modify alimony. Von Togen v. Von Togen, No. M2009-00850-COA-R3-CV,
2010 WL 891893, at *9 (Tenn. Ct. App. Mar. 12, 2010) (quoting Bogan, 60 S.W.3d at 730).

As we have previously noted, “this Court is not so much concerned with a reduction in income
from one source as it is concerned with whether Petitioner has sustained a significant change
in his income from all sources.” Killian v. Killian, No. M2010-00238-COA-R3-CV, 2010
WL 3895515 at *4 (Tenn. Ct. App. Aug. 27, 2010) (emphasis in original). We find no error
in the trial court considering Husband’s income from all sources, including the Sonic
restaurant income, in its assessment of whether Husband still had the ability to pay the amount
of alimony originally awarded.

Husband argues that the trial court did not use his net income figures, and thus must not have
considered his tax consequences. The trial court had these figures available, and there is
nothing in the record indicating that it was unaware of Husband’s tax circumstances.

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Husband contends overall that the proof shows that he no longer has the ability to pay the
amount of alimony ordered in the divorce decree. Certainly the proof shows changes in
Husband’s employment and his expenses, including expenses from his unfortunate investment
choices. However, in weighing the evidence, the trial court stressed the fact that, despite these
changes, Husband’s lifestyle had changed very little. This is an appropriate consideration.
The evidence showed that, even after Husband lost his Caterpillar job, and after his real estate
and other investments proved ill-fated, his pleasure trips, gambling trips, and purchase of
luxury items continued virtually unabated. Even if Husband’s lifestyle is being financed by
his liberal use of credit cards, his decision not to curtail these expenditures clearly undercuts
his protestations that he is unable to pay the court-ordered amount of spousal support.

As noted above, we review the trial court’s decision on Husband’s petition to modify his
alimony obligation under an abuse of discretion standard. Wiser, 2010 WL 2553652, at *7;
Goodman v. Goodman, 8 S.W.3d 289, 293 (Tenn. Ct. App. 1999) (citing Ingram v. Ingram,
721 S.W.2d 262, 264 (Tenn. Ct. App. 1986)). Under the abuse of discretion standard, the trial
court’s decision is affirmed “so long as reasonable minds can disagree as to the propriety of
the decision made.” Andrews, 2010 WL 3398826, at *16 (quoting Eldridge v. Eldridge, 42
S.W.3d 82, 85 (Tenn. 2001)). This Court is not permitted to substitute its judgment for that
of the trial court. Andrews, 2010 WL 3398826, at *16. From our review of the record, we
find no abuse of the trial court’s decision to decline to modify Husband’s $3000 per month
alimony obligation, his obligation to pay for Wife’s medical insurance, or his life insurance
requirement.

Attorney Fees

Wife asserts on appeal that the trial court erred by not awarding her attorney fees at the trial
level. She argues that she was forced to incur attorney fee expenses in order to respond to
Husband’s attempt to terminate or modify his alimony obligation. Wife’s point is well-taken.
However, on appeal, the trial court’s decision on whether to award attorney fees is also
reviewed under an abuse of discretion standard. Aaron v. Aaron, 909 S.W.2d 408, 411
(Tenn. 1995). Reversal of the trial court’s decision to deny Wife attorney fees at the trial level
should occur “only when the trial court applies an incorrect legal standard, reaches a decision
that is illogical, bases its decision on a clearly erroneous assessment of the evidence, or
employs reasoning that causes an injustice to the complaining party.” Richardson, 183
S.W.3d at 729 ( citing Perry v. Perry, 114 S.W.3d 465, 467 (Tenn. 2003); Clinard v.
Blackwood, 46 S.W.3d 177,182 (Tenn. 2001)). Reviewing the record as a whole, we find no
such abuse of discretion. Therefore, we affirm the trial court’s denial of Wife’s request for
attorney fees at the trial level.

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On appeal, Wife also requests that she be awarded her attorney fees in defending this appeal.
An award of appellate attorney fees is a matter that is within this Court’s sound discretion.
Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995). In considering a request for
attorney fees on appeal, we consider the ability of the party seeking the fee award to pay such
fees, his or her success on appeal, whether the appeal was taken in good faith, and any other
equitable factors relevant in a given case. Darvarmanesh v. Gharacholu, No. M2004-00262-
COA-R3-CV, 2005 WL 1684050 at *16 (Tenn. Ct. App. July 19, 2005). Considering all of
the relevant factors in this case, Wife is awarded her reasonable attorney fees incurred in this
appeal. The cause must be remanded to the trial court to determine the appropriate amount
of attorney fees for this appeal.

C ONCLUSION

The decision of the trial court is affirmed, and the cause is remanded for further proceedings
consistent with this Opinion. Costs on appeal are taxed to the Appellant Thomas Neal Church
and his surety, for which execution may issue, if necessary.

____________________________________________
HOLLY M. KIRBY, JUDGE

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