WILMA JEAN LAMPLEY, )
) Williamson Chancery
Plaintiff/Petitioner/Respondent, ) No. 23651
)
VS. )
) Appeal No.
GORDON RAY LAMPLEY, ) 01A01-9708-CH-00423
)
Defendant/Respondent/Petitioner. )
FILED
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE February 6, 1998
Cecil W. Crowson
APPEAL FROM CHANCERY COURT OF WILLIAMSON COUNTY
AT FRANKLIN, TENNESSEE Appellate Court Clerk
HONORABLE H. DENMARK BELL, JUDGE
Honorable Virginia Lee Story
136 Fourth Avenue, South
P.O. Box 1608
Franklin, TN 37065-1608
ATTORNEY FOR PLAINTIFF/PETITIONER/RESPONDENT
Honorable Ernest W. Williams
Honorable J. Russell Heldman
320 Main Street, Suite 101
Franklin, TN 37064
ATTORNEYS FOR DEFENDANT/RESPONDENT/PETITIONER
AFFIRMED AND REMANDED
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
WILMA JEAN LAMPLEY, )
) Williamson Chancery
Plaintiff/Petitioner/Respondent, ) No. 23651
)
VS. )
) Appeal No.
GORDON RAY LAMPLEY, ) 01A01-9708-CH-00423
)
Defendant/Respondent/Petitioner. )
OPINION
This is a post-divorce decree proceeding in which the defendant husband has appealed
from an unsatisfactory disposition of his counter petition to terminate alimony.
On January 21, 1997, the wife filed a second “Petition for Enforcement of final Decree
and for Contempt” containing the following:
Defendant is in wilful contempt of the lawful Orders
of this Court by his failure to pay Wife’s health insurance and
Petitioner would respectfully request that Defendant should
be punished by powers of civil contempt by incarceration and
that he be required to pay all medical bills which have been
incurred by Petitioner as a result of his failure to abide by the
lawful orders of this Court.
That a Show Cause issue requiring the defendant to
appear and show cause, if any he has, why he should not be
punished by civil/or criminal contempt and incarcerated until
he purges himself of contempt by reinstating Wife’s medical
insurance why he should not be made to immediately pay all
outstanding medical bills which have been incurred as a result
of his canceling her insurance or be incarcerated.
On March 19, 1997, the Trial Court ordered as follows:
That Ms. Lampley’s Petition for Contempt is granted
however, the Court does not impose any sentence upon Mr.
Lampley for contempt but will require Mr. Lampley to pay
Ms. Lampley’s attorney’s fees in the amount of One
Thousand Eight Hundred Twenty Five ($1,825.00) Dollars
which shall in the nature of additional alimony and not
subject to bankruptcy.
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That Mr. Lampley’s Counter-Petition is denied as to
the termination of alimony and Mr. Lampley shall continue to
pay the alimony obligation as awarded in the Final Decree of
Divorce. Further, Mr. Lampley shall immediately resume Ms.
Lampley’s health insurance coverage and pay all medical bills
which she has incurred as a result of his not having insurance
coverage as was available to him through COBRA.
The marital dissolution agreement contained the following provisions:
2. REAL PROPERTY. The parties own real
property located at 7324 Snow Mangrum, Fairview,
Williamson County, Tennessee which shall be sold and Wife
will receive the sum of Thirty Thousand and 00/100
($30,000.00) Dollars of the equity as a division of marital
property, with the remaining balance, after payment of real
estate commission, closing costs and all indebtedness existing
against said property, shall be paid to Husband.
The Wife shall continue to reside in the marital
residence free from interference from Husband and shall pay
the utilities associated therewith in a timely manner. Husband
shall pay the mortgage existing on said property and upkeep
and maintenance pending the sale in a timely manner.
----
The parties have will (sic) divide all remaining
personal property and all property now in the possession of
each party shall become the party’s sole and separate property
free of all claims of the other party.
----
4. ALIMONY. Husband shall pay Wife
rehabilitative alimony for a period of 60 months at the rate of
$600.00 per month. Said alimony payments shall begin the
first day of the first month following the sale of the marital
residence. Additionally, as rehabilitative alimony. Husband
shall pay Wife’s health insurance premium through COBRA
for a period of 36 months or until Wife can qualify the
TENNCARE.
5. INDEBTEDNESS. Husband will pay all
existing medical bills and each party will pay ½ of the
Dillard’s account and the furniture bill. All other
indebtedness will be paid by the party in whose name the
indebtedness exists, holding the other party harmless for the
same.
6. FEES AND COSTS. Husband shall pay the
attorney’s fees in the amount of $500.00 and the costs of this
cause.
7. If it becomes necessary for either party to
institute legal proceedings to enforce the terms of this instant
agreement, then the other party shall be responsible for all
attorney’s fees and costs associated with said enforcement.
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----
17. In the event that it becomes necessary for
either party to seek to enforce the terms of this instant
agreement, then the other party shall be responsible for a
reasonable attorney’s fees and the costs of this cause.
On November 6, 1996, the wife filed a “Petition for Enforcement of Final Decree and for
Contempt.”
On November 25, 1996, the Trial Court entered the following order:
IT IS THEREFORE ORDERED ADJUDGED, AND
DECREED that the Respondents alimony payments shall be
paid on the 1st of each month in the amount of $600.00
pursuant to the Final Decree of Divorce. That said payments
shall hereafter be paid through the Clerk’s office together
with a 5% clerk’s fee beginning December 1, 1996 and the 1st
of each month thereafter pursuant to the Final Decree. That
balance owing for the alimony payment for the month of
November, 1996 shall paid immediately to Petitioner.
On December 5, 1996, the husband filed an “Answer to Petition for Enforcement of Final
Decree and for Contempt and Petition for Termination or Reduction of Alimony Payments Set
Forth in the Final Decree,” containing the following.
COUNTER-PETITION
Comes now the respondent, Gordon Ray Lampley, and
assumes the role of Counter-Petitioner and therefore states as
follows:
1. That on December 28, 1995, a Final Decree was
entered in this cause which provided for rehabilitative
alimony at the rate of $600 per month for sixty (60) months
to begin on the first month following the sale of the marital
residence. The marital residence was sold in September,
1996.
2. The respondent/counter-petitioner’s personal financial
situation has drastically changed since the original marital
dissolution agreement was entered into, even including the
financial loss that was incurred because of the sale of the
home.
3. It is further alleged that the petitioner, Wilma Jean
Lampley, is not in need of the rehabilitative alimony
payments that are being paid on a monthly basis.
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4. T.C.A. § 36-5-101(5)(d)(2) states an award of
rehabilitative, temporary support and maintenance shall
remain in the Court’s control for the duration of such award
and may be increased, decreased, terminated, extended or
otherwise modified, upon showing substantial material
change of circumstances.
5. The respondent/counter petitioner, had a substantial
material change of circumstances and would show that
rehabilitative alimony should not only be terminated because
of this fact but also because lack of need by the petitioner.
WHEREFORE, premises considered,
respondent/counter-petitioner prays
3. that all rehabilitative alimony payments be terminated
by the Court upon immediate hearing of this matter.
On April 18, 1997, the husband filed the following notice of appeal:
Please take notice that the Respondent/Counter-
Petitioner, Gordon Ray Lampley, hereby appeals to the Court
of Appeals, Middle Section of Nashville, from the Order
entered by the Chancery Court for Williamson County,
Tennessee entered the 19th day of March, 1997 wherein the
Court found Gordon Ray Lampley in contempt of Court and
awarded attorney fees as additional alimony, not subject to
bankruptcy, and the Court denied Mr. Lampley’s counter
petition for the termination of alimony. In addition, the Court
determined Mr. Lampley liable for all medical bills incurred
as a result of not having insurance coverage available to him
through COBRA.
On December 28, 1995, the Trial Court Entered a “Final Decree of Divorce
containing the following:
THIS cause came on to be heard upon Complaint for
Absolute divorce, Waiver of Service of Process, and Marital
Dissolution Agreement entered into by and between the
parties, from all of which it appears that the parties should be
granted an absolute divorce on the grounds of irreconcilable
differences, and that the Marital Dissolution Agreement is fair
and equitable and should be approved by the Court;
IT IS THEREFORE, ORDERED, ADJUDGED and
DECREED, that the parties are granted an absolute divorce
on the grounds of irreconcilable differences, and the parties
are restored to all of the rights and privileges of unmarried
persons.
IT IS FURTHER ORDERED, ADJUDGED and
DECREED, that the Marital Dissolution Agreement is fair
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and equitable and proper and is hereby approved by the Court
and made a part of this Final Decree as if set out herein
verbatim.
On appeal, the husband presents the following issue:
Whether the trial court erred in refusing to terminate
Mr. Lampley’s obligation to pay Ms. Lampley rehabilitative
alimony of $600 per month for 60 months and to pay Ms.
Lampley’s health insurance premium through COBRA for a
period of 36 months or until she can qualify for Tenn-Care.
The wife requests attorney’s fees in this appeal.
Appellant first argues that their marital dissolution agreement was made in the
anticipation that his share of the proceeds of the sale of the marital home would provide the
funds to enable him to pay the agreed periodic alimony, and that the sale price of the home
proved to be inadequate for this purpose.
Appellant also argues that his varying employment and business ventures since the
divorce have rendered him unable to pay the alimony. His testimony in this regard is
summarized as follows:
The August 1996, auction sale of home did not
produce agreed $30,000 for wife and husband forced to
contribute $5,795 cash to provide the $30,000.
At the time of the divorce, appellant was employed
as sales manager of General American Insurance and had a
“real good” year selling real estate with Caldwell Banker of
Dickson with net take-home pay of $4,020.97 per month.
He was “doing real well” with 40 to 45 listings and
expecting listing of 81 lots.
In February or March 1996, appellant created a business called “Advance Cash”
which was essentially a short-term, high interest small loan business. He created other
associated businesses called Tele-Check, Tele-Trak and Mid State Credit Bureau.
In 1996, appellant began to work for Caldwell Banker, a real estate sales agency and
had brief success until an associate created another real estate company called ERA and
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obtained the transfer of appellant’s listings to the new company. At the trial, appellant had
only two listings. In January 1997, appellant jointed ERA.
In February 1997, appellant filed a Chapter 7 Bankruptcy.
At some point in the development of his separate activities, appellant left his
supervisory employment with American General. Subsequently, he was permitted to resume
work with American General as a sales agent.
In September 1996, appellant purchased a home for himself and a lady with children.
The payment on the home is $947.00 per month of which appellant pays one-half.
He pays $257.71 per month on an automobile bought for his daughter.
He pays $300.00 per month college tuition for his daughter and $223.00 per month
for his son of a previous marriage.
He is paying $300.00 per month COBRA Health Insurance for himself and son.
He has an independent license to sell health insurance but is not affiliated with any
insurance company.
Appellant admits net income of $199.87 per week (about $800.00 per month) which
he “draws” from three of his “stores.” He admits that his commissions on real estate sales
“could be” $800 per month, which would add up to $1,600.00 per month.
In contrast, appellant insists that appellee now earns $6,652.00 per month, a dramatic
increase from her 1994 gross income of $833.00 per month.
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Appellant also alleges that, appellee by various means has acquired three real estate
properties. Appellee’s mother gave her two acres containing a residence. Her son-in-law
gave her 2 acres with a trailer home on it which rents for $300.00 per month. She has used
her part of the distribution of the marital estate and a $60,000.00 loan to construct a new
home.
In short, appellant insists that he made a bad bargain in the property settlement
agreement and that he should therefore be relieved of it; that he is no longer able to pay the
agreed alimony; and that appellee does not need it.
Appellee responds that the joint earnings of the parties in 1994 were $84,914; in
1995, appellants reported earnings were $63,123.00; and, in 1996, his gross earnings were
$75,472.00.
The wife points out that her net income from her home cleaning business is only
$1,828.00 per month, and the husband’s admitted net take-home pay was $4,020.97 per
month in 1996.
It also appears from the evidence that, in 1996, the husband purchased a home jointly
with his paramour and children and that he pays ½ of the $947.00 per month mortgage
payment on the home.
It also appears that the husband was relieved of $60,000.00 of unsecured debts by a
1996 bankruptcy, and that he owns property at Crossville, Tennessee which the bankruptcy
trustee may claim.
As stated above, the sole issue presented by appellant is the reduction or termination
of alimony.
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Alimony is not a required provision in the marital dissolution agreement provided by
T.C.A. § 36-4-104. Nevertheless, the parties saw fit to include alimony in their agreement. It
must be presumed that the alimony provision was part of the inducement or consideration for
the other provisions regarding division of the marital estate. The Courts are justified in being
reluctant to disturb an alimony obligation assumed under such conditions.
The evidence does not preponderate against the refusal of the Trial Judge to alter the
liability of the husband for alimony.
The appellee/wife requests the award of attorney’s fees on appeal. As noted above,
the marital dissolution agreement specifically provides that a party who succeeds in a move
to enforce the agreement is entitled to attorney fees. It does not appear from this record that
either party has heretofore invoked this attorney fee provision. No reason occurs to this
Court why the provision should not be enforced.
Accordingly, the wife is hereby awarded reasonable attorney fees incurred in this
appeal, the amount of same to be ascertained and judgment rendered therefor by the Trial
Court upon remand.
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The judgment of the Trial Court is affirmed. Costs of this appeal are accessed against
the appellant. The cause is remanded to the Trial Court for further proceedings in conformity
with this opinion.
AFFIRMED AND REMANDED
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
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