Evans v. Evans, No. M2002-02947-COA-R3-CV (TN 8/23/2004)
| Decision Date | 23 August 2004 |
| Docket Number | No. M2002-02947-COA-R3-CV.,M2002-02947-COA-R3-CV. |
| Parties | JOHN WHITNEY EVANS III v. DINAH PETREE EVANS. |
| Court | Tennessee Supreme Court |
Appeal from the Chancery Court for Lawrence County; No. 7352-95; Jim T. Hamilton, Judge.
Judgment of the Chancery Court Affirmed in Part and Reversed in Part.
Helen Sfikas Rogers and Lana L. Lennington, Nashville, Tennessee, for the appellant, John Whitney Evans, III.
Irene R. Haude, Nashville, Tennessee, for the appellee, Dinah Petree Evans.
William C. Koch, Jr., P.J., M.S., filed a concurring opinion.
OPINION
In this appeal, Husband seeks to be relieved from his obligation to pay alimony in futuro to his former wife. In support of his request, Husband asserts that his former wife's cohabitation with another man terminated his obligation since Wife was being supported by that third person and was in no need of alimony. The trial court denied Husband's petition finding Wife was not living with a third person, had rebutted presumption that she does not need the alimony, and that no material change in circumstances had occurred to warrant modification of the initial award of alimony. We affirm those holdings. However, we reverse the trial court's award of attorney's fees to Wife.
The parties, John Evans ("Husband") and Dinah Evans ("Wife") were divorced in 1996 and entered into a Marital Dissolution Agreement which was incorporated into the decree by the trial court. At the time of the divorce, Husband was receiving $10,600 per month in tax free disability insurance payments. Although Wife had been trained as a nurse, she had not worked for twenty-five years by agreement of the parties. She worked briefly pending the divorce, but lost her job due to medical problems.
The MDA and divorce decree provided that Husband was to pay wife alimony in futuro of $800 per week1 until Wife's death or remarriage. In the MDA, the parties acknowledged Husband's source of income was the disability insurance and that if those payments stopped Husband could seek a decrease in alimony. The MDA also specifically stated that the parties understood Wife intended to seek employment as a nurse and that her "success or failure in obtaining such employment should not be grounds for an increase or decrease in alimony."
On March 13, 2002, Husband filed a petition to terminate or decrease his alimony payments on the basis Wife had been cohabiting with a third party, Mr. Dale Quillen, that she was being supported by Mr. Quillen, and that she was no longer in need of alimony. Husband was prompted to file the petition by this court's decision in Wright v. Quillen, 83 S.W.3d 768 (Tenn. Ct. App. 2002). In his petition and this appeal, Husband makes frequent reference to and relies upon that decision.
The Wright case, in pertinent part, involved efforts by Mr. Quillen's former wife to obtain a reduction in or termination of alimony she paid Mr. Quillen. The jury found that as of the 2000 trial Mr. Quillen was living with Ms. Evans, Wife in the case before us, and that Mr. Quillen was providing support to Ms. Evans. Id. at 776. In addition, the jury found that Mr. Quillen did not need alimony to maintain his lifestyle, that his standard of living had not declined since the divorce, that his expenses had not increased since the divorce, and that his net worth had increased since the divorce. Mr. Quillen's income from practicing law had increased 50% since his divorce, and he had saved, not spent, the alimony he had received since the divorce.
Based upon these facts, this court held that Mr. Quillen's cohabitation with Ms. Evans triggered the presumption in Tenn. Code Ann. § 36-5-101(a)(3), and the jury's findings that he did not need continued alimony justified suspension of his former wife's alimony obligation. In his original petition in the case before us Mr. Evans maintained that Tenn. Code Ann. § 36-5-101(a)(3) justified termination, suspension or reduction of the in futuro alimony paid his former wife. In an amended petition filed August 19, 2002, Husband alleged, in addition to the cohabitation presumption, that there had been a substantial and material change of circumstances since the parties' divorce, i.e., Wife's relationship with Mr. Quillen and its financial gain to her. The amendment also alleged, as another change in circumstances, that Wife had been supporting their daughter and grandchild to a great extent. Consequently, Husband asserted, Ms. Evans did not need the alimony he pays her.
Following a hearing, the trial court dismissed Husband's petition to modify his alimony payment and ordered Husband to pay Wife's attorney's fees in the amount of $14,164.17. The trial court made extensive findings of fact. The court found that prior to their divorce, Husband and Wife had "lived an extravagant and expensive lifestyle," citing examples. The court also found that Husband was 59 years old, lived rent free on his father's farm where he cared for livestock, continued to receive the disability insurance payments, and stipulated that his ability to pay the alimony was not an issue. As to Wife, the trial court found she was 58 years old; had been employed for almost two months at the time of the trial as a registered nurse making $15.00 per hour with average wages of $285.65 per week; had difficulty going back to work because of her twenty-five year absence from the profession; had difficulty physically due to the twelve-hour shifts she worked; and that she had health problems. The court also made the following findings:
[F]ollowing the divorce in 1996, Dinah Petree Evans began dating Dale Quillen. Dinah Petree Evans stayed with Dale Quillen on weekends, she took nice trips with him, Dale Quillen bought her expensive jewelry and clothing, and paid the difference of the trade-in on a vehicle. Dinah Petree Evans had lived with Dale Quillen for periods of time since June of 1999 to May of 2002, when she moved out.2 The Court finds that while Dinah Petree Evans lived with Dale Quillen, almost all of the money not being used for her day-to-day expenses was expended for the benefit of the daughter, Jeannie Whitney, and her minor child, Evan. The Court finds that Dale Quillen is seventy-seven (77) years old; and that Dinah Petree Evans and Dale Quillen did not intend to marry. Dinah Petree Evans had moved out into her condominium in May 2002 and has stated that she was going on with her life.
The facts are undisputed that Dinah Petree Evans bought a condominium in April, 2002 at Nashboro Village. She made a down payment with the remaining monies which she had from the sale of the property she obtained in the divorce and she has a mortgage with monthly payments of Six Hundred Eighty-Six Dollars and Thirty-Five Cents ($686.35). Dinah Petree Evans has no retirement. Dinah Petree Evans's voter registration card, driver's license, and utilities show the condominium address of 2024 Nashboro Boulevard, Nashville, TN 37217. Dinah Petree Evans moved into her condominium on May 14, 2002; and she has only spent one night with Dale Quillen since then and that was on a trip. She does see Dale Quillen. There is no proof that Dale Quillen is paying money toward Dinah Petree Evans's day-to-day expenses or that he intends to. Based on Dinah Petree Evans's income and expenses, which the Court finds to be reasonable, she is in need of alimony as well as the earnings from her nursing in order to maintain a home for herself and meet her day-to-day expenses.
T.C.A. § 36-5-101(a)(3) states that "In all cases where a person is receiving alimony in futuro and the alimony recipient lives with a third person, a rebuttable presumption is thereby raised that (A) The third party is contributing to the support of the alimony recipient and the alimony recipient therefore does not need the amount of support previously awarded, and the Court therefore should suspend all or part of the alimony obligation of the former spouse."
The Court finds that when reading T.C.A. § 36-5-101(a), it does not contemplate terminating the alimony; but only contemplates suspending or reducing all or part of the alimony under certain conditions. The Court finds that while Dinah Petree Evans has lived with Dale Quillen, she no longer lives with Dale Quillen. The Court further finds that Dinah Petree Evans has rebutted the presumption that she does not need the alimony; that in fact Dinah Petree Evans is in need of alimony as previously ordered by the Court; and that John Whitney Evans, III should continue to pay same.
The Court finds that there are no material changes in circumstances as it was obviously contemplated by the parties from their actions that they would continue to help their children and Dinah Petree Evans would seek employment in the nursing field.
The Court further finds that Dinah Petree Evans should be awarded attorney's fees pursuant to T.C.A. § 36-5-103(c), since she has been required to expend funds for attorney's fees to enforce the divorce decree. The Court finds that the fee submitted by Dinah Petree Evans's attorney were necessary and reasonable to enforce the decree especially in comparison to those expended by John Whitney Evans, III's attorney to terminate or reduce the alimony previously ordered.
Modifications of alimony may be granted only upon a showing of substantial and material change in circumstances since entry of the original support order. Tenn. Code Ann. §36-5-101(a)(1); Bogan v. Bogan, 60 S.W.3d 721, 727-28 (Tenn. 2001). In order to be material, a change in circumstances must have been unforeseeable, unanticipated, or not within the contemplation of the parties at the time of the decree. Id. at 728; Elliot v. Elliot, 825 S.W.2d 87, 90 (Tenn. Ct. App. 1991). To be considered substantial,...
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