THOMAS MILO LOGAN, ) Coffee Chancery
) No. 2687
Plaintiff/Appellant, )
VS.
)
)
)
FILED
MARY JANE LOGAN, ) Appeal No. October 14, 1998
) 01A01-9711-CH-00660
Defendant/Appellee. ) Cecil W. Crowson
Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE CHANCERY COURT OF COFFEE COUNTY
AT WINCHESTER, TENNESSEE
HONORABLE JOHN W. ROLLINS, JUDGE
John Mark Stewart, BPR #011148
300 South College Street
Winchester, Tennessee 37398
ATTORNEY FOR PLAINTIFF/APPELLANT
Michael E. Giffin
ROBERTSON, WORSHAM, GREGORY & GIFFIN
Tennessee Bar No. 01420
105 W. Lincoln
P.O. Box 790
Tullahoma, Tennessee 37388
ATTORNEY FOR DEFENDANT/APPELLEE,
AFFIRMED AND REMANDED.
HENRY F. TODD, JUDGE
CONCURS:
WILLIAM B. CAIN, JUDGE
CONCURS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
THOMAS MILO LOGAN, ) Coffee Chancery
) No. 2687
Plaintiff/Appellant, )
)
VS. )
)
MARY JANE LOGAN, ) Appeal No.
) 01A01-9711-CH-00660
Defendant/Appellee. )
OPINION
The captioned plaintiff husband has appealed from the post divorce order of the Trial
Court denying his petition to terminate periodic alimony. He presents the following issue:
Whether the trial court erred in refusing to order
cessation of appellant’s alimony obligation where the
preponderance of the evidence showed a substantial and
material change of circumstances between the parties so as to
justify modification of the final decree.
The appellee wife presents the same issue in the following form:
Whether the trial court correctly denied the appellant’s
petition seeking relief from payment of alimony, when the
preponderance of the evidence clearly showed that there was
no substantial and material change of circumstances between
the parties which would justify a modification of the prior
order.
The parties were married on April 12, 1952, when the husband was 24 and the wife
was 27. They separated in 1976, at which time their only child had reached majority. On
December 9, 1977, a decree was entered granting a divorce to the wife upon her counterclaim
on the ground of cruel and inhuman treatment, and requiring the husband to pay to the wife
$350.00 per month alimony until January 1, 1979, when the alimony was to increase to
$400.00 per month.
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On February 13, 1997, the husband filed the present petition for reduction of alimony
and termination of insurance.
The parties entered into a marital dissolution agreement specifying details of property
division and alimony, all of which was approved and adopted by the Trial Court.
The Trial Judge entered an order containing the following:
Mr. Logan is a seventy year old gentleman who has
obviously worked hard all his life and was recently
involuntarily retired. Mr. Logan has since the divorce
remarried. Mrs. Logan, on the other hand, has chosen not to
remarry, which would have stopped the alimony and is now
residing in the state of North Carolina where she is living on
social security and some interest income. Since the entry of
the final decree, Mr. Logan has paid almost one hundred
eighty-three thousand dollars in alimony.
In this day and age when marital vows “for better or
worse, for richer or poorer, in sickness and in health and until
death do us part” confront the legal system too often they are
broken, which is unfortunate. In this case attached to the final
decree of divorce is a negotiated alimony and property
settlement agreement negotiated by competent attorneys and
bearing the signatures of the parties. Contracts are made in
this state to be not only enforced but a party is entitled to rely
upon the terms of the agreement. From a review of all the
facts presented to the hearing, it is the opinion of the
undersigned that the alimony payments should remain
unchanged, however, there appears to be a serious issue of
Mr. Logan’s insurability and no real practical need to
continue his obligation to maintain a thirty thousand dollar
policy of life insurance and he is relieved from that
obligation.
In all other respects the terms of the final decree shall
remain in full force and effect.
At the time of the divorce, the husband was earning $33,430 per year. The wife’s
earnings were inconsequential. Since the divorce, the husband has been involuntarily retired and
his income is now $4,022.00 per month, consisting of $235 pension, $1,287 social security, and
$2,500 IRA distribution. He has remarried. His real estate is held jointly with his new wife who
earns $25,708 per year. He claims monthly expenses of $4,613 including mortgage payments
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of $341.29, credit union $633.34, $150 gifts and flowers, and various expenses of son, grandson
and daughter in-law. In short, no evidence is cited or found which demonstrates that appellant
has legitimate expenses of $4,613 per month.
Appellant claims he has health problems, but does not claim disability to perform the
functions he is trained to perform. This record does not demonstrate that appellant could not
obtain and pursue employment for which he is fitted.
Appellant complains that he has already paid appellee $184,000 in alimony. This fact
is not an unanticipated change of circumstances justifying relief from alimony specified in the
marital dissolution agreement and ordered in the decree.
Appellant argues that appellee should be required to pay her living expenses out of the
funds assigned to her in the marital dissolution and property settlement agreement. No such
intent or expectation appears in the agreement.
Appellant argues that appellee should be required to go to work and earn her own living
expenses. No such intent or expectation appears in the marital dissolution agreement which
specifies the amount of alimony without condition.
Appellee asserts modest living expenses of $1,231 per month. She receives $540 per
month social security, and $800 per month alimony, a total of $1,340. She has serious health
problems which discourage any effort at rehabilitation. She deserves to preserve her savings to
provide security for her old age.
Appellant cites Loria v. Loria, Tenn. App. 1997, 952 S.W.2d 836, in which this Court
held:
[2, 3] Alimony in futuro may be made subject to
limitations or conditions, but it nevertheless remains subject
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to the control of the court. In this respect, rehabilitative
alimony may be considered a species of alimony in futuro. It
is paid periodically and remains subject to the control of the
court. It distinguishing characteristic is the purpose for which
it is awarded, which is to provide a temporary income during
a period of adjustment and effort of the dependent spouse to
become partially or totally self sufficient. During this period,
the Court retains the authority to make appropriate
adjustments in keeping with changing circumstances and
developments.
[4, 5] If a dependent spouse does not satisfactorily
strive for self sufficiency, the Court may withdraw part or all
of the support allocated to finance rehabilitation. If the
dependent spouse demonstrates complete inability to achieve
even partial self sufficiency, the Court may grant alimony in
futuro to provide the needs of the dependent spouse.
[6] If the defendant spouse achieves partial self
sufficiency but demonstrates inability to achieve total self
sufficiency, the Court may grant sufficient alimony in futuro
to supplement the earning capacity of the dependent spouse.
Of course, all of the foregoing must be administered
within the capability of the supporting spouse to provide the
needed support.
In Loria, this Court was reviewing an original divorce decree which was not based upon
a marital dissolution agreement specifying the amount and duration of alimony. The wife’s age
was 56 and no disability is mentioned in the opinion.
This present appeal involves a decree which was based upon agreed alimony and property
division in a prior divorce decree which appellant seeks to revise by subsequent petition.
Appellant has the burden of showing an unanticipated change in circumstances which justifies
the revision he seeks. He has not carried that burden. Bowman v. Bowman, Tenn. App. 1991,
836 S.W.2d 563 and authorities cited therein.
The appellant will derive some relief from termination of the duty to maintain life
insurance, as to which appellee makes no complaint.
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The judgment of the Trial Court is affirmed. Costs of this appeal are assessed to the
appellant. The cause is remanded to the Trial Court for further appropriate proceedings.
AFFIRMED AND REMANDED.
__________________________________
HENRY F. TODD, JUDGE
CONCURS:
____________________________
WILLIAM B. CAIN, JUDGE
CONCURS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
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