Church v. Church

• Decision Date: 20 December 2010
• Docket Number: No. M2009–02159–COA–R3–CV.,M2009–02159–COA–R3–CV.
• Parties: Deana Elizabeth CHURCHv.Thomas Neal CHURCH.
• Court: Tennessee Court of Appeals

346 S.W.3d 474

Deana Elizabeth CHURCH

v.Thomas Neal CHURCH.

No. M2009–02159–COA–R3–CV.

Court of Appeals of Tennessee.

Aug. 4, 2010 Session.Dec. 20, 2010.Permission to Appeal Denied by

Supreme Court April 12, 2011.

David W. Garrett, Nashville, Tennessee, for Plaintiff/Appellee, Deana Elizabeth Church.Phillip R. Newman, Puryear, Newman, & Morton, PLLC, Franklin, Tennessee, for Defendant/Appellant, Thomas Neal Church.

OPINION

HOLLY M. KIRBY, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and J. STEVEN STAFFORD, J., joined.HOLLY M. KIRBY, J.

This appeal involves post-divorce modification of alimony. When the husband and wife were originally divorced, the husband was ordered to pay alimony in futuro. At the time of the divorce, the wife was undergoing treatment for a life-threatening illness. After the divorce, the wife's treatment resulted in a dramatic improvement in her health. Meanwhile, the husband lost his job and ultimately found employment at a reduced level of compensation. Citing his decreased income and the wife's improved circumstances, the husband sought modification or termination of his alimony obligation. The trial court found a material change in circumstances, but nevertheless denied the husband's petition to modify. The husband appeals. We affirm, finding no abuse of discretion by the trial court.

Facts and Proceedings Below

Defendant/Appellant Thomas Neal Church (“Husband”) and Plaintiff/Appellee Deana Elizabeth Church (“Wife”) were divorced in September 2004 after twenty-eight years of marriage. This is the second appeal in this case. See Church v. Church, No. M2004–02390–COA–R3–CV, 2005 WL 3369190 (Tenn.Ct.App. Dec. 9, 2005).

When the parties married, Wife discontinued her schooling in order to work, so that Husband could finish college. After he finished his schooling, pursuant to their agreement, Wife was the family's homemaker and Husband was the breadwinner. Along the way, Wife acquired little in the way of vocational skills. Id. at *1.

Husband acquired a bachelor's degree, as well as a masters in business administration. At the time of the divorce, Husband was employed as a sales manager with Caterpillar Financial Services Corporation (“Caterpillar”), ¹ earning over $150,000 per year, with access to stock options. At the time of the divorce trial, Wife was undergoing aggressive chemotherapy and radiation treatments for breast cancer.

After the divorce trial, the trial court declared the parties divorced and divided the marital property. The marital estate included an ownership interest in two Sonic restaurants; this ownership interest was awarded to Husband in the divorce.

In the divorce decree, the trial court determined that Wife was financially disadvantaged due to her medical condition and lack of work experience, and awarded her alimony in futuro in the amount of $3000 per month until she died, remarried, or Husband reached the age of sixty-five. During the time in which Husband was required to pay alimony, he was also required to maintain a $100,0000 life insurance policy with Wife as the named beneficiary, and to pay Wife's medical insurance premium and yearly deductible until Wife reached the age of sixty-five.

Wife appealed, asserting that she was entitled to a greater share of the marital estate. The appellate court modified the divorce decree such that Husband's obligation to pay alimony would not terminate upon his reaching the age of sixty-five. Id. at *4. It also increased Husband's life insurance obligation to $200,000. Otherwise, the decision of the trial court was affirmed. Id.

At some point after the parties' divorce, Husband remarried; his wife is employed by Caterpillar in Nashville, Tennessee. In August 2006, Husband underwent heart surgery, and Caterpillar put him on a two-month disability leave. Apparently while Husband was out on disability leave from Caterpillar, he purchased a condominium in Florida as an investment; this investment seems to have been made near the top of the real estate boom. After he returned to work at Caterpillar, Husband invested in a restaurant venture that eventually failed.

In February 2008, Caterpillar terminated Husband's employment. Husband asserted a claim against Caterpillar, for which he ultimately received a monetary settlement.

After his employment with Caterpillar ended, Husband undertook a thirteen-month job search. During the thirteen-month period, Husband received a payment for a one-time consulting job. He eventually found employment with LEEVAC Industries, LLC (“LEEVAC”), in Jennings, Louisiana, earning substantially less than he made at Caterpillar. Because his wife was employed in Nashville, Husband and his wife continued to live in Franklin, Tennessee, and Husband flew to Louisiana each week to work at LEEVAC.

Meanwhile, after the parties' divorce, Wife continued her treatment for breast cancer. Contrary to the expectations of her physicians at the time of the divorce, Wife's treatments were quite successful. She finished the treatments and later had no sign of recurrence of the cancer. In the wake of her recovery, Wife volunteered as a medical secretary at a missionary training center in Utah. Later, Wife became employed at a hospital, doing clerical work, for approximately thirty hours per week. For her work at the hospital, Wife started at a wage of $9.62 per hour, and later received a raise to $10.35 per hour.

In September 2008, Husband filed a petition with the trial court to modify his alimony obligation. He asserted that the loss of his employment with Caterpillar and his reduced income, coupled with the improvement in Wife's health and her ability to work, amounted to a substantial and material change in circumstances. Husband asked the trial court to modify or terminate his monthly alimony obligation, as well as his obligation to pay Wife's health insurance premiums.²

In response to Husband's petition to modify, Wife denied any substantial and material change in circumstances. She asserted that, in addition to his salary with LEEVAC, Husband had other assets and sources of income that enabled him to continue paying the court-ordered amount of alimony. Wife claimed that the only reason for her employment at the hospital was to obtain health insurance, which was necessitated by Husband's failure to continue paying her health insurance premiums, as mandated in the final decree of divorce. Discovery ensued.

A bench trial was held on July 2, 2009. The trial court heard testimony from Husband and Wife, and the deposition of Wife's physician was admitted into evidence.

In his testimony, Husband outlined the pertinent sequence of events following the parties' divorce, including his heart surgery, his acquisition of the Florida condominium, his investment in the failed restaurant venture, and the termination of his employment with Caterpillar in February 2008. At the time of his termination, Husband said, he was earning a salary of $156,000 to $160,000 per year, plus stock options.

Husband received two one-time payments during his thirteen-month job search. First, he received a received a $47,500 payment from Caterpillar in settlement of his claim. He also received a $24,000 payment for a one-time consulting job.

Husband said that, in his employment with LEEVAC, he was earning $98,000 per year. He explained that he is unable to relocate to Louisiana because his wife is employed in Nashville, and so he bears the additional expense of commuting to and from Louisiana. Every week, Husband flies to Louisiana, stays in a rented apartment at a cost of $400 per month, and pays $110 per month in parking expenses. He said his expenses total approximately $1400–$1500 per month.

Husband testified that he still retains the ownership interest in the Sonic restaurants that he was awarded in the division of marital property. He acknowledged that he normally receives $2,750 a month in rental income from the Sonic restaurants, but asserted that, since August 2008, he had not received any income from store sales due to the restaurants' management problems. In 2004, Husband said, he received $83,680 in gross income from the Sonic restaurants, $111,380 in 2005, $103, 650 in 2006, $112,058 in 2007, and $80,250 in 2008. Husband testified that, from the beginning of 2009 to the July 2009 date of the trial, he had received only $16,500 in income from the Sonic restaurants.

Husband said that his expenses also include the mortgage on his home in Franklin ³ and the mortgage on the condominium in Florida that he purchased prior to losing his job at Caterpillar. Husband testified that he receives approximately $1,500 per month in rental income from the Florida condominium, but pays a mortgage and a line of credit totaling $3,642.88 per month, as well as $1,900 per month in homeowner's association fees. Husband explained that he would not have invested in the condominium in Florida had he known that he would lose his job with Caterpillar, and he claimed that the real estate market at the time of trial made it infeasible to sell the condominium. He also said that he had incurred nearly $10,000 in attorney fees and over $2,000 in litigation costs.

Husband acknowledged having a substantial amount of credit card debt. Husband said that he incurred expenses of some $1800–$2000 per month for dining out, including meals in Louisiana. He admitted spending $15,000 for tickets to the Nashville Predators, but said he recouped $11,000 by reselling the tickets to a third party. Husband also conceded that he spent several thousand dollars at Galaxy Golf during this time, as well as $17,814 for artwork and $13,867 for jewelry. Husband also reported a loss of $16,000 on two condominiums in Nashville, purchased for investment. Husband admitted traveling extensively for pleasure to destinations such as Mobile, Las Vegas, Chicago, New Orleans, San Diego, and Florida, and to various casinos; apparently a number of...