Azbill v. Azbill

• Decision Date: 09 September 1983
• Citation: 661 S.W.2d 682
• Parties: Mildred Elizabeth Pearcy AZBILL, Plaintiff-Appellant, v. Waldon Luther AZBILL, Defendant-Appellee.
• Court: Tennessee Court of Appeals

Page 682

661 S.W.2d 682

Mildred Elizabeth Pearcy AZBILL, Plaintiff-Appellant, v. Waldon Luther AZBILL, Defendant-Appellee.

Court of Appeals of Tennessee Western Section, at Jackson.

Sept. 9, 1983.

Application for Permission to Appeal

Denied Nov. 21, 1983.

Henry M. Beaty, Jr., Memphis, for plaintiff-appellant.

Daniel Taylor, Memphis, for defendant-appellee.

CRAWFORD, Judge.

Mildred Elizabeth Pearcy Azbill (hereinafter wife) appeals from an order of the Circuit Court suspending alimony in futuro payments awarded to her by final decree of divorce.

The final decree of divorce, entered April 6, 1978, provided among other things that Waldon Luther Azbill (hereinafter husband) must pay $500 per month as alimony in futuro. On July 28, 1982, husband filed a petition to suspend and terminate alimony which alleges wife is living with another man at her residence, husband should not be required to pay alimony while she is living with another man, and wife is now employed and earning a good income constituting a change in circumstances. Wife filed a response to the petition in which she alleges she is not living with another man, there had been no change of circumstances to warrant a suspension or termination of alimony, and the final divorce decree should not be changed.

The trial court found that wife and Gene Bell are living together as contemplated by Tenn.Code Ann. Sec. 36-820(a)(3), and that they are giving and receiving mutual benefits for services and funds of each other. The court reduced the alimony to $200 per month on future alimony payments.

Wife has presented the following issues for review:

1. What is the proper construction of Tenn.Code Ann. Sec. 36-820(a)(3)?

2. Did the Legislature intend Tenn.Code Ann. Sec. 36-820(a)(3) to require a relationship similar to marriage when the words "lives with" are used?

3. Did the Legislature intend that Tenn.Code Ann. Sec. 36-820(a)(3) should be limited to men and women living together or does "a third person" apply to relatives and members of the same sex?

Wife asserts the intent of Tenn.Code Ann. Sec. 36-820(a)(3) requires a relationship similar to marriage by and between the alimony recipient and the third person. We perceive the real issues to be the interpretation and application of Tenn.Code Ann. Sec. 36-820(a)(3) and (4), and whether the evidence preponderates against the finding of the trial court that the alimony should be suspended pursuant thereto.

The witnesses testifying at the hearing were the wife, Mr. Gene Bell, Mr. Martin Klindworth and the husband. The wife testified as follows:

Until a week before the hearing she had resided in the home awarded to her at the time of the divorce at 3199 Dothan, Memphis, Tennessee, which house she has now sold. She has known Mr. Gene Bell since 1978 or 1979, but did not meet Mr. Bell until after the divorce. Mr. Bell did not live with her at the Dothan address, and did not ever spend the night there. He did, however, have a key to the property and watched a lot of television at the house, since he was unable to procure cable television at his trailer home. He came to her house almost every day and stayed there during the day a great deal of the time while she was at work. He has eaten there on occasions and he had free run of the house to come and go as he pleased. On occasions he would remain in the house until late in the evening, possibly after midnight, and watch cable television, although she on many occasions would have gone to bed prior to his departure. Mr. Bell owns a business known as Millie's Hair Fashions and the wife works there as the manager and also as a hairdresser. As manager she keeps the payroll, writes the checks and orders the supplies. She is 54 years of age and suffers from a degenerative arthritic condition. Mr. Bell did assist her in working on her car and doing yard work, but he did not contribute any money for household expenses, nor did she contribute money to him. Mr. Bell did not keep clothes or toilet articles at her home. She liked to play bingo and checks written in April, May and June for $325, $215 and $380 respectively were checks cashed at the bingo place, but all the money was not spent on bingo. Mr. Bell paid the monthly charge for the cable television since he was unable to obtain cable at his home. For that reason he was able to enter and leave her home as he pleased in order to watch it. Mr. Bell had girlfriends and sometimes a girlfriend would pick him up at her house when he wanted to go home. Mr. Bell was retired and did not take an active part in managing the beauty shop. The address listed on his driver's license was her home address on Dothan. Mr. Bell also used the Dothan address as his mailing address. She did not expressly permit such uses of her home address.

Mr. Bell testified that he resides in a trailer park at 1760 Zanola and has never spent the night with Ms. Azbill at 3199 Dothan. He does possess a key, comes and goes as he pleases and spends time at the house every day. Many evenings he stays until 3 or 4 o'clock in the morning watching television. Upon leaving he either drives his truck or drives her car home. Sometimes a girlfriend picks him up. He has become familiar with some of the neighbors. Not only does he use the Dothan address on his driver's license, but he also listed the address on his 1979, 1980 and 1981 tax returns as his home address. He does not have a telephone at the Zanola address, and his past utility bills were very small. He does not contribute to the support of Ms. Azbill, nor does she contribute to his support. He does accomplish odd jobs around her house. Such jobs include yard work, house work such as cleaning and maintenance work on her automobile. He owns Millie's Hair Fashions, and employs Ms. Azbill as a hairdresser paid on commission and also as the manager of the shop. She has access to the cash register and may pay herself in cash for the commissions earned. All of the other hairdressers are paid by check only. He does not keep any clothes or toilet articles at the Dothan address. He dates other women and does not sleep with Ms. Azbill.

Martin Klindworth testified as follows: He is a private investigator employed by Mr. Azbill to investigate the possibility of someone living with Ms. Azbill at her home. He placed the house under surveillance during the months of May, June and July, 1982, and observed that Mr. Bell spent the night there on the days that he had the house under surveillance. When the house was put up for sale, he posed as a prospective buyer and made an appointment to inspect the house. He was shown around the house by Mr. Bell and Ms. Azbill. At such time he noticed men's clothing and toilet articles in the house. On that same evening he watched the house all night and neither Ms. Azbill nor Mr. Bell left the house until the next morning.

Husband testified that he did not leave any clothes in the residence when he left except two pair of coveralls. He had paid $500 per month alimony as required by the order, and he was further allowed to give his opinion as to what constituted living together. No question is raised on appeal regarding this testimony.

The pertinent part of Tenn.Code Ann. Sec. 36-820 (1982 Cum.Supp.) is as follows:

(a)(1) Whether the marriage be dissolved absolutely, or a perpetual or temporary separation be decreed, the court may make an order and decree for the suitable support and maintenance of the complainant by the respondent, or out of his or her property, and of the children, or any of them, by either spouse or out of such spouse's property, according to the nature of the case and the circumstances of the parties, the order or decree to remain in the court's control; and, on application of either party, the court may decree an increase or decrease of such allowance on cause being shown.

(2) Courts having jurisdiction of the subject-matter and of the parties are hereby expressly authorized to provide...