Seal v. Seal, 33

• Decision Date: 17 December 1986
• Docket Number: No. 33,33
• Citation: 726 S.W.2d 934
• Parties: Clive Allen SEAL, Plaintiff/Appellee, v. Jill Annette SEAL, Defendant/Appellant. 726 S.W.2d 934
• Court: Tennessee Court of Appeals

Page 934

726 S.W.2d 934

Clive Allen SEAL, Plaintiff/Appellee, v. Jill Annette SEAL, Defendant/Appellant.

No. 33

726 S.W.2d 934

Court of Appeals of Tennessee Western Section, at Jackson.

Dec. 17, 1986.

Application for Permission to Appeal

Denied by Supreme

Court

March 9, 1987.

Robert M. Fargarson of Neely & Green Fargarson & Brooke, Memphis, for defendant/appellant.

David E. Caywood of Picard & Caywood, Memphis, for plaintiff/appellee.

TOMLIN, Presiding Judge (W.S.).

Husband filed a petition for modification of a final divorce decree in the Chancery Court of Shelby County seeking judicial relief from periodic alimony payments, alleging changed circumstances--i.e., the alleged refusal of Wife to seek gainful employment. The chancellor granted Husband's petition to modify, reducing the monthly alimony award of $2,300 by $500 per month beginning April 1, 1986 and by an additional $500 per month beginning October 1, 1986. The sole issue presented by Wife's appeal is whether there was a substantial change in circumstances to justify the chancellor's action. We hold that there was not and reverse and dismiss the decree of the chancellor as to Husband's petition.

Husband was granted a divorce on the ground of irreconcilable differences. Both parties were represented by counsel in the divorce proceedings. A property settlement and child custody agreement was entered into by Husband and Wife. The agreement was ultimately approved by the chancellor and incorporated into the final decree. This decree provided among other things that Husband was to pay Wife the sum of $2,300 per month as periodic alimony.

Husband filed his petition ten months following entry of the final decree of divorce alleging that Wife refused to seek employment. He maintained this action (or inaction) on her part constituted a material change of circumstances entitling him to relief. Husband later amended his petition to allege a change in his financial condition that warranted a modification of the alimony award. This ground was abandoned by him at the hearing before the chancellor.

Wife responded, contending that Husband was in contempt of court for failing to comply with certain other provisions of the divorce decree. At the same time she filed a counter-petition seeking an increase in child support. The divorce referee denied both petitions. Husband appealed, the result of which was an evidentiary hearing before the chancellor. At the conclusion of the hearing, the chancellor ordered Husband to carry out those provisions of the divorce decree which he had not previously done and at the same time, without stating the grounds therefor, modified the periodic alimony provisions, as earlier noted.

I. "CHANGED CIRCUMSTANCES."

At the time Husband's petition to modify was filed, T.C.A. Sec. 36-820(a)(1) provided that "on application of either party, the court may decree an increase or decrease of such allowance [of support] on cause being shown." Jones v. Jones, 659 S.W.2d 23, 24 (Tenn.App.1983) set forth the judicial application of this statute, stating:

Basically, the rule adopted by the courts is that such change in circumstances must be shown to have occurred since the original award as would justify a decrease or increase in the amount of the award. Osborne v. Osborne, (1946) 29 Tenn.App. 463, 197 S.W.2d 234. "The equities of the present situation must be developed and shown to justify an alteration of the terms of the previous decree." Perry...