JIMMY H. VAUGHN, ) DAVIDSON CIRCUIT
) No. 77466
Plaintiff/Appellant )
) Appeal No.
v. ) 01A01-9707-CV-00347
)
MARY RUNYON VAUGHN,
Defendant/Appellee
)
)
)
FILED
April 29, 1998
Cecil W. Crowson
Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
APPEAL FROM THE DAVIDSON COUNTY CIRCUIT COURT
AT NASHVILLE, TENNESSEE
HONORABLE MURIEL ROBINSON, JUDGE
Larry Roberts
627 Second Avenue South
Nashville, TN 37210
ATTORNEY FOR PLAINTIFF/APPELLANT
Thomas F. Bloom
500 Church Street, 5th Floor
Nashville, TN 37219
ATTORNEY FOR DEFENDANT/APPELLEE
AFFIRMED AND REMANDED
WILLIAM H. INMAN, SENIOR JUDGE
CONCUR:
HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION
BEN H. CANTRELL, JUDGE
JIMMY H. VAUGHN, ) DAVIDSON CIRCUIT
) No. 77466
Plaintiff/Appellant )
) Appeal No.
v. ) 01A01-9707-CV-00347
)
MARY RUNYON VAUGHN, )
)
Defendant/Appellee )
OPINION
The trial court found that there had been a change of circumstances and
increased Jimmy Hunter Vaughn’s [husband’s] alimony obligation to Mary
Runyon Vaughn [wife] from $400.00 per month to $600.00 per month. The
court also found that husband should pay $350.00 as reasonable attorney fees to
wife’s attorney.
We affirm the judgment of the trial court.
Husband was granted a divorce from wife in 1975. The court ordered
husband to pay wife alimony in futuro of $200.00 per month until her death or
remarriage. Neither party has remarried.
In July 1992 the parties entered an agreed order increasing alimony to
$400.00 per month.
In April 1997 wife petitioned for another increase and the trial judge
ordered husband to increase alimony to $600.00 per month. Husband appeals,
insisting there has been no substantial and material change in circumstances to
warrant the increase.
At the time of the hearing,Wife received $368.00 per month in Social
Security benefits and $400.00 alimony, for a total net monthly income of
$768.00. Husband’s statement of income and expenses indicated his net
monthly income was $1,965.00 after paying $400.00 monthly in alimony.
Wife testified that since 1992 she has experienced an increase of $115.00
per month in her mortgage payment, which is now $673.00 per month, and that
her home needs roof and garage repairs. Her car reached such a state of
disrepair that it was towed away. She has been hospitalized and her monthly
medication costs have increased beyond her ability to pay for them. A new
prescription has gone unfilled. Her monthly expenses exceed her income and
she now has unpaid hospital bills and receives food stamp assistance.
Husband’s expenses include a mortage payment of $315.00, monthly
payments totalling $623.00 on $17,800.00 of credit card debt, and entertainment
related expenses of $183.00 per month, including YMCA membership,
American On Line, cable t.v. and general entertainment of $75.00 per month.
He also alleged, among other expenses, a monthly food budget of $400.00 for
himself.
Review of the findings of fact made by the trial court is de novo upon the
record of the trial court, accompanied by a presumption of the correctness of the
finding, unless the preponderance of the evidence is otherwise. T.R.A.P. 13(d).
An award of alimony in futuro remains within the control of the court
issuing the initial decree, and may be modified on application to the court.
T.C.A. § 36-5-101(a)(1) describes the condition that must be met for
modification: “ . . . on application of either party, the court may increase or
decrease the amount of such support only upon a showing of a substantial and
material change of circumstances.” The party seeking relief on the grounds of
changed circumstances has the burden of proving the changed circumstances
justifying an increase or decrease in the amount of the alimony award. Azbill v.
Azbill, 661 S.W.2d 682 (Tenn. App. 1983). The two most important factors are
the need of the obligee spouse and the ability to pay of the obligor spouse, with
the need of the obligee being the single most critical factor in the modification
decision. Lancaster v. Lancaster, 671 S.W.2d 501 (Tenn. Ct. App. 1984).
We find the evidence preponderates in favor of the trial court’s increase
of alimony to the wife. Since the last increase in 1992 she has sustained an
increase in her monthly mortgage payment, declining health resulting in
unexpected and unpaid hospital and prescription bills, and deterioration of her
home due to inability to pay for repairs.
Husband raises the issue of the trial court’s order that he pay wife’s
attorney’s fee of $350.00.
The trial court is vested with wide discretion in the allowance of attorney
fees and this Court will not interfere except upon a showing of abuse of that
discretion. The evidence is overwhelming that wife lacks the ability to pay her
attorney’s fees, and we find the trial court did not abuse its discretion in
ordering the fees to be paid by husband.
The judgment of the trial court is affirmed with costs assessed to the
appellant and the case is remanded.
_______________________________
William H. Inman, Senior Judge
CONCUR:
___________________________
Henry F. Todd, Presiding Judge
_________________________
Ben H. Cantrell, Judge