Jones v. Jones

• Decision Date: 11 October 1989
• Citation: 784 S.W.2d 349
• Parties: Nell K. Hayden JONES, Plaintiff-Appellee, v. William Walter JONES, Defendant-Appellant. 784 S.W.2d 349
• Court: Tennessee Court of Appeals

Page 349

784 S.W.2d 349

Nell K. Hayden JONES, Plaintiff-Appellee, v. William Walter JONES, Defendant-Appellant.

784 S.W.2d 349

Court of Appeals of Tennessee,

Middle Section, at Nashville.

Oct. 11, 1989.

Application for Permission to Appeal

Denied by Supreme Court

Feb. 5, 1990.

Mike Binkley, Nashville, for plaintiff-appellee.

Edward L. Hiland, Janice S. Walden, Nashville, for defendant-appellant.

OPINION

LEWIS, Judge.

This appeal by the defendant William Walter Jones (Husband) presents two issues: (1) Whether the trial court's judgment entered on 8 October 1987 is res judicata regarding the Husband's obligation to maintain life insurance, and (2) whether the trial court erred in failing to grant the Husband greater relief from his alimony obligation. Plaintiff Nell K. Hayden Jones (Wife), pursuant to Tenn.R.App.P. 13(a), presents one issue: Whether a sufficient change in circumstances has been shown to warrant any reduction in alimony.

We first review the history of this litigation.

In November 1981, the Wife was awarded an absolute divorce on the grounds of cruel and inhuman treatment. The Wife was awarded, inter alia, alimony in the amount of $1500 per month and the Husband was ordered "to continue the life insurance he now has in full force and effect, and there shall be no change therein insofar as the Court is concerned."

The Husband appealed and this Court reduced the alimony from $1500 per month to $1000 per month on the basis that the Husband's net earnings were only $2470 per month. In all other respects, the trial court's judgment was affirmed.

Subsequently, the parties have made liberal use of the trial court in attempts to adjust portions of the original judgment.

In July 1983, the Husband filed a petition in which he sought, among other things, to have his alimony obligation reduced because of an alleged change in circumstances. By order entered on 14 February 1984, the trial court denied the Husband's request for a reduction.

On 30 April 1986, the Husband filed a petition seeking a reduction of his alimony based on the fact that he was unemployed and unable to find employment. In May 1986, he filed an amendment to his petition requesting that he be relieved from maintaining a $90,000 life insurance policy which had been procured and maintained in connection with his employment with Service Merchandise. His employment with Service Merchandise had been terminated. In August 1986, the trial court denied the petition for reduction of alimony and held that "the life insurance benefits awarded to [Wife] in the final decree of divorce was a division of marital property and thus not subject to modification." The trial court reserved the question concerning the amount of the insurance policy, and in January 1987 held a hearing where it determined that the face amount of the policy was $90,000 as of the date of divorce. The trial court ordered the Husband to procure a policy in this amount with the Wife named as irrevocable beneficiary. No appeal was taken from that order.

In November 1987, the Husband filed yet another petition seeking a termination of his alimony obligation. This request for termination of alimony was also based on the fact that he had lost his job and had depleted his share of the marital estate. In July 1988, he amended the petition to add the allegation that the alimony should be reduced based upon the fact of the Wife's ability to work and her needs.

The Wife answered denying all material allegations and filed a counter-petition for contempt. This contempt was based upon the Husband's failure to maintain the Wife as beneficiary on two of the three insurance policies which were in effect at the time of the divorce, and failure to procure the $90,000 policy as had been ordered by the court. She also sought contempt for the Husband's failure to pay alimony.

The Husband answered the counter-petition and contended that the court's orders relative to the $90,000 life insurance policy terminated his obligations relative to the other policies on the grounds of res judicata.

The trial court found the Husband's argument to be without merit and ordered him to maintain in full force and effect three life insurance policies which were awarded to the Wife in the 1981 decree and which the trial court had held were a part of the marital estate in the August 1986 order. Those three policies were a $90,000 policy, a $52,000 policy, and a $1,000 policy.

We first discuss the Husband's issue of "whether the trial court's ruling relative to the Husband's obligation for life insurance was res judicata in light of the court's ruling relative to these matters on October 8, 1987, from which there was no appeal."

There is no dispute that at the time of the divorce the Wife was the beneficiary of three separate life insurance policies. The decree entered at the time of the divorce in 1981 stated:

It is further ORDERED, ADJUDGED and DECREED by the Court that the [Husband] shall continue the life insurance he now has in full force and effect and there shall be no change therein insofar as the Court is concerned.

In the Husband's petition filed in May 1986, he acknowledged the life insurance provisions of the final decree but requested relief relative to the $90,000 policy which "was purchased in connection with his employment." Because he had been terminated from that employment, Husband alleged that "it is not economically feasible to keep this life insurance policy in full force and effect and he would ask the court to be relieved of this obligation." The Husband did not request any relief relative to the $52,000 policy and the $1,000 policy.

The trial court, in its order of August 1986 from which there was no appeal, found that "the life insurance benefits awarded to [the Wife] in the final decree was a division of marital property and thus not subject to modification."

For two reasons we are of the opinion that the Husband's first issue is without merit. First, the order of 6 August 1986 held that the life insurance benefits which had been awarded to the wife in the final decree of 1981 was a division of marital property and not subject to modification. That order was not appealed from. The 1981 decree awarded the wife three policies: a $90,000 policy, a $52,000 policy, and a $1,000 policy.

It is not necessary for this Court to determine whether the language in the original divorce decree was sufficient to establish that the life insurance was a division of marital property and therefore not modifiable by the court in 1986. Even if the Husband could convince this Court that the language in the decree was ambiguous in that regard, the trial court's August 1986 order clarified that point. Because the 1986 order was not appealed from within the time allowed by Tenn.R.App.P. 4(a), the holding of the trial court that the insurance benefits were not modifiable is "the law of the case." ¹ Tenn. Eastern Co. v. Hannah, 157 Tenn. 582, 586, 12 S.W.2d 372, 373 (1928); Hicks v. Rhea Co., 189 Tenn. 383, 388, 225 S.W.2d 544, 546 (1949).

Secondly, there is no validity to the Husband's contention that an order entered on 8 October 1987 requires him to maintain only a $90,000 policy and that "the [October] order became res judicata as to [the] issue" of the amounts of insurance awarded under the divorce decree. The October order did not speak to the $52,000 and the $1,000 policies. The court only had before it the Husband's petition that he be relieved from maintaining the $90,000 policy "which was purchased in connection with his employment." Because the court did not have before it the award of the $52,000 and $1,000 policies, the October order did not alter the Husband's original obligation to maintain them as set out in the 1981 divorce decree.

For these reasons the Husband's first issue is without merit.

We discuss together the Husband's second issue of "whether the trial court erred in failing to grant him greater relief from his alimony obligation" and the Wife's issue of "whether the trial court erred in reducing the amount of alimony."

It is well established that appellate courts should give deference to the decisions of the trial court in regard to alimony awards. See Luna v. Luna, 718 S.W.2d 673, 675 (Tenn.App.1986); Lancaster v. Lancaster, 671 S.W.2d 501, 502 (Tenn.App.1984). However, our review is de novo with a presumption of correctness of the findings of the trial court. Tenn.R.App.P. 13(d).

When a decree has been modified in regard to alimony, "the order entered in that proceeding is res judicata, so that one cannot maintain a second petition for modification unless it can be shown that since the entry of the order on the first petition for modification there has been a substantial change of circumstances." 24 Am.Jur.2d Divorce and Separation Sec. 711 (1983) (footnotes omitted). In Seal v. Seal, 726 S.W.2d 934 (Tenn.App.1986), this Court stated that "[w]e are of the opinion that the cases and the Code as presently written mandate that the changes sought to be relied upon to effectuate a modification of alimony payments must be shown to have occurred since the entry of the decree ordering the payment of alimony." Id. at 935 (emphasis in original). Therefore, we must look only to the evidence of events which have occurred between the 16 July 1986 hearing for a determination of alimony and the most recent hearing on 24 August 1988. In fact, the record shows that the trial court was insistent in limiting the proof to "substantial change[s] of circumstances from [the date of the last court order regarding alimony] forward."

While the testimony of the parties did reveal some changed circumstances, the record does not support the trial court's finding that the change in circumstances was substantial enough to warrant a reduction in alimony. Pursuant to Tenn.Code Ann. Sec. 36-5-101(a), an award of alimony may be modified upon the showing of "a material, unanticipated change of...