IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 8, 2001 Session
LOIS LYNN MILLER v. JAMES EARL MILLER
Appeal from the Circuit Court for Davidson County
No. 98D-1144 Muriel Robinson, Judge
No. M2001-00501-COA-R3-CV - Filed December 28, 2001
This is the second appeal to this Court of this divorce case and the appellant disputes attorney’s fees
awarded for wife’s attorney and the division of two marital assets. On remand from this Court, the
trial court held that certain assets, including an IRA and pension benefits, were marital property and
divided them. The husband appeals. We affirm the trial court’s classification of the husband’s IRA
and Textron retirement account as marital property and its division of the marital property . We also
affirm the award of attorney’s fees.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S., and
JOHN A. TURNBU LL, J., joined.
Jack Green, Brentwood, Tennessee, for the appellant, James Earl Miller.
Robert L. Jackson and Larry Hayes, Jr., Nashville, Tennessee, for the appellee, Lois Lynn Miller.
OPINION
This appeal is the second time this dispute has been before this Court. In the original trial,
the trial court set alimony in futuro in the amount of $850.00 per month until the wife’s death or
remarriage, awarded the wife alimony in solido of $65,000.00, and divided the parties’ marital
property. The husband appealed.
In the first appeal, this Court determined that two assets which had been awarded to the
husband were marital property and should be equitably divided between the parties (the Lincoln Life
IRA and the Textron Retirement). Miller v. Miller, No. M1999-00724-COA-R3-CV, 2000 WL
1231378 (Tenn. Ct. App. Aug. 31, 2000) (“Miller v. Miller I”). This Court remanded the case back
to the trial court on August 31, 2000 to determine the value of and to make an equitable division of
the assets. The original in futuro alimony amount was reduced to $500.00 per month by this Court,
and the in solido award of $65,000.00 was reversed. .
In this appeal, the husband asserts that the trial judge erred by (1) awarding the wife more
than the in solido alimony awarded in the original trial, (2) awarding additional alimony in futuro,
and (3) in awarding the wife attorney’s fees. The wife submits that no alimony was awarded by the
trial court on remand. Rather, the trial court made an equitable division of the marital property, the
husband’s retirement plan with Textron and the Lincoln Life IRA, as directed by this Court in the
first appeal of the case. The issues on appeal are whether the trial court abused its discretion in
awarding the wife one-half of the Lincoln Life IRA and the Textron Retirement, in awarding
attorney’s fees, and in failing to reduce the alimony in futuro. We affirm the trial court.
Our previous opinion in this case was filed August 31, 2000. Much of the history of this case
can be gleaned from the previous opinion of this Court. An excerpt of the opinion appears as
follows:
Lois Lynn Miller (hereinafter “Wife”) filed a complaint for divorce against James
Earl Miller (hereinafter “Husband”) on April 8, 1998. After a non-jury trial, the trial
court awarded the divorce to Wife on the grounds of inappropriate marital conduct.
The final decree awarded alimony in futuro, alimony in solido, and attorney fees to
Wife and classified and divided the parties’ marital property. Husband has appealed,
and Wife also presents issues for review.
The parties were married in January of 1988. At the time of the marriage,
Husband was 48 years old, and Wife was 58 years old. The marriage lasted 11 years.
There were no children of the marriage. After about three years, the marriage began
to deteriorate, but the parties continued to live together. The parties did not acquire
title or interest to real property but lived in an apartment that had been occupied by
Husband before the marriage. Husband’s total income during the marriage was
$363,086.00. Wife’s total income during the marriage was $214,867.00. Throughout
the marriage, Husband paid the rent and utilities. Wife purchased all of their
groceries and cleaning supplies, as well her own clothes, car, and gasoline.
Wife filed for divorce alleging inappropriate marital conduct on the part of
Husband and irreconcilable differences. A trial was held on September 20, 1999.
At the time of trial, Husband was 60 years old, and Wife was 70 years old. Wife
testified that she worked throughout the marriage until 1998, when she applied for
and was granted social security benefits in the amount of $963.00 per month and
medicare coverage. Wife testified to monthly expenses of $1,432.00.
Husband testified that during the marriage, he worked for Avco, which was
subsequently known as Textron, and then Aerostructures. Prior to the marriage,
Husband had retirement funds and stocks in mutual funds. Husband testified that
Wife signed a waiver making Husband’s children the beneficiaries of a Lincoln Life
account. Husband further stated that all accounts were established prior to the
marriage and that neither party contributed to accounts during the marriage. The
accounts included a Heritage Federal Credit Union Account, a CD with J.C.
Bradford, a CD with Heritage Federal, two Lincoln Life IRAs, and a Textron pension
fund.
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At the close of proof, the court stated from the bench that the demise of the
marriage after 2 ½ years was the fault of both parties, but that they chose to continue
to live together and “be basically miserable for 8 years.” The court found that during
the marriage the parties chose to keep their finances separate, maintaining separate
checking accounts, paying separate bills, and keeping separate retirements and
401(K) accounts. The court noted, however, that Wife paid for their shared groceries
in addition to her own expenses, allowing the Husband to “compile a sizeable estate.”
The court found that although Wife made no monetary contributions, she maintained
the marital home for 11 years. The trial court noted that Wife is 10 years older than
the Husband, is retired, is on a fixed income, and has health problems.
A final decree granting Wife a divorce was entered on September 29, 1999.
....
Wife was awarded alimony in futuro of $850.00 per month until death or
remarriage and alimony in solido of $65,000.00. She was also awarded $4,500.00
in attorney fees.
....
In summary, the trial court’s final decree is modified to award alimony in futuro of $500.00
per month. The trial court’s award of $65,000.00 as alimony in solido is reversed, and the case is
remanded to the trial court for a determination of the value of Husband’s retirement plan with
Textron and the value of the Lincoln Life IRA rolled over from a 401(K) plan. The court should
then make an equitable division thereof. The decree of the trial court in all other respects is affirmed.
Each party will pay their own attorney fees on appeal, and costs of the appeal are assessed equally
to the parties, Lois Lynn Miller and James Earl Miller.
On remand, the trial court held:
Upon the remand from the Court of Appeals, testimony of the parties, statements of counsel,
and from the entire record herein, the Court finds that the current value of Mr. Miller’s Lincoln Life
IRA, account no. XX-XXXXXXX is $163,161.00 and that said account is marital property of which Ms.
Miller is entitled to an equitable division. The Court further finds that Mr. Miller has a total pension
benefit from his former employer in the amount of $1,226.34 per month, of which $475.68 per
month was accumulated during the marriage and constitutes marital property of which Ms. Miller
is entitled to a equitable division.
The Court further finds that with regard to the division of the other marital
assets set forth in this Court’s Final Decree (which does not include the
above-described Lincoln Life IRA or pension benefit), the parties have agreed that
in lieu of dividing each marital asset equally as set forth in said Decree, each party
would keep the marital assets in their own name and one party would pay the other
a sum certain to equalize the division. The Court accepts the parties’ agreement and
finds that Ms. Miller should pay Mr. Miller the sum of $13,998.25 to equalize the
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division of the marital assets other than the Lincoln Life IRA and the pension benefit
described above.
The Court further finds that the parties have agreed that Mr. Miller overpaid
his alimony obligations in the month of September, 2000 and that he is entitled to a
credit in the amount of $350.00 for said overpayment.
With regard to Mr. Miller’s Petition to Reduce Alimony, the Court finds that
there has not been a substantial and material change of circumstances which should
justify modification of Mr. Miller’s alimony obligations and his Petition in this
regard is therefore denied.
....
Ms. Miller is awarded a judgment against Mr. Miller in the amount of
$2,572.25 for her attorneys’ fees incurred in this matter.
The husband appeals the judgment of the trial court. Our review is de novo and the record
before us is accompanied by a presumption of correctness unless we find that the evidence
preponderates against the trial court’s findings of fact. Tenn. R. App. P. 13(d); see also Watters v.
Watters, 959 S.W.2d 585, 588 (Tenn. Ct. App. 1997). The question of whether there has been a
sufficient showing of a substantial and material change in circumstances is in the sound discretion
of the trial court. Watters, 22 S.W.3d 817, 821 (Tenn. Ct. App. 1999).
The husband first challenges the award of what he refers to as alimony in solido and argues
that the trial court erred in awarding more than the in solido alimony awarded in the original trial of
the case failing to take into consideration the duration of the marriage, need of the wife, and
non-marital assets of the husband.
On the first appeal, this Court reversed the in solido award and determined that the Lincoln
Life IRA and the Textron retirement plan constitute marital property. We address first the trial
court’s division of the Lincoln Life IRA. When dividing property in a divorce, the trial court must
first classify property as marital or separate then divide the marital property equitably. See Batson
v. Batson, 769 S.W.2d 849, 856 (Tenn. Ct. App. 1988). In the first appeal, this Court determined
the two assets were marital property.
The prior opinion of this Court in this case issued August 31, 2000 held the Lincoln Life IRA
and a portion of the Textron retirement plan to be marital property. Such holdings are the law of the
case and not open to further question. Memphis Publishing Co. v. Tennessee Petroleum, 975 S.W.2d
303 (Tenn. 1998).
The funds in the IRA included contributions made by the husband from his salary during the
period of the marriage from 1988 through 1996. Information from the husband’s financial advisor
established that the value of the IRA was $163,161.00. The trial court awarded the wife one-half
of the value. Upon our review of the record, we do not think that the evidence preponderates against
the trial judge’s division of the marital property. We affirm the trial court but remand once again
to the trial court to determine the present value of this marital asset and make a division thereof.
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Next, we address the trial court’s award of one-half of the $475.68 Textron pension benefits
accumulated during the marriage. The husband receives a premarital pension payment in the amount
of $750.66 and a pension payment which was accumulated during the marriage in the amount of
$475.68. The trial court determined the value of the portion of the pension benefit constituting a
marital asset and made a proper division thereof.
Next, Husband alleged a substantial and material change of circumstances on remand based
upon his retirement. The trial court specifically found that there was not a substantial and material
change of circumstances which would justify modification of the husband’s alimony obligations.
Recently, the Supreme Court addressed the issue of whether an obligor’s retirement constitutes a
substantial and material change in circumstances so as to permit modification of a spousal support
obligation in Bogan v. Bogan, 2001 WL 1386102 (Tenn. Nov. 8, 2001). In Bogan, the court found
that “an objectively reasonable retirement, taken in good faith and without intent to defeat the
support obligation, does constitute a substantial and material change in circumstances so that a
modification of support obligations may be considered.” Id. at *2.
It is well settled that spousal support awards may not be modified unless the court finds a
substantial and material change in circumstances has occurred since the entry of the support decree.
Tenn. Code Ann. §36-5-101 (a)(1) (Supp. 2000). The court stated in Bogan that “an obligor cannot
merely utter the word ‘retirement’ and expect an automatic finding of a substantial and material
change in circumstances.” Bogan, 2001 WL 1386102 at *4. The two most important considerations
in modifying a support award are the financial ability of the obligor and the financial need of the
party receiving support, both given equal consideration. Id. at *5. We affirm the trial court.
Finally, the husband asserts that the trial court erred in awarding the wife attorney’s fees.
In the context of a divorce proceeding, attorney fee awards are considered as alimony
in solido. See Herrera v. Herrera, 944 S.W.2d 379, 390 (Tenn. Ct. App.1996). In
making an alimony award, a court must consider a number of factors, including the
relative earning capacity, obligations, needs and financial resources of the parties.
See Tenn. Code Ann. § 36-5-101(d)(1)(A)- (L) (Supp. 1999) (listing the factors a
court must consider). “The need of the spouse receiving the support is the single
most important factor.” Watters v. Watters, 22 S.W.3d 817, 821 (Tenn. Ct.
App.1999). The obligor spouse’s ability to pay is also an important consideration.
See Hazard v. Hazard, 833 S.W.2d 911, 917 (Tenn. Ct. App.1991). Because support
decisions are factually driven and involve considering and balancing numerous
factors, appellate courts give wide latitude to the trial court’s discretion. See
Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. Ct. App.1989).
Lassiter v. Lassiter, No. M1999-00374-COA-R3-CV, 2000 WL 1425235, *2 (Tenn .Ct. App. Sept.
28, 2000)
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The trial court awarded attorney’s fees to the wife to be paid by the husband. Although “[t]he
decision to award attorney’s fees to a party in a divorce proceeding is within the sound discretion of
the trial court and will not be disturbed upon appeal unless the evidence preponderates against such
a decision.” Storey v. Storey, 835 S.W.2d 593 (Tenn. Ct. App.1992). We affirm the trial court’s
award of attorney’s fees to the wife.
The judgment of the trial court is affirmed. Remand this cause to the trial court for further
proceedings consistent with this opinion. Tax costs on appeal to appellant.
___________________________________
WILLIAM B. CAIN, JUDGE
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