### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 4, 1998 Sess

ion
ROGER EDWARD KENNEDY v. DELORES RAE ROSE KENNEDY

Appeal from the Circuit Court for Davidson County No. 92D-2061 Muriel Robinson, Judge

No. M1997-00219-COA-R3-CV - Filed November 30, 2000

This appeal involves a

man’s efforts to use his voluntary early retirement as a basis for

ending his spousal su pport obligation. Three yea

rs after the divo

rce, the man file

d a petition in the Cir

cuit Courtfor Davidson County

seeking to end hi

s responsibility

to pay child s

upport. His

former wife responded

by filing a petition seeking to hold him in contempt for failure to pa y spousalsupport. Following a bench trial, the trial court dismissed the man’s petition, held him in contempt, and entered a $3,106 judgment against him for back spousal support. On this appeal, the man asserts that the trial court

erred by declining to relieve him of his alimony ob

ligation becaus

e of his inability

to pay and his f

ormer spouse’s la

ck of need. We af

firm the trial cou

rt’s judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

W ILLI AM C. K OCH , J R ., J., delivered the opinion of the court, in which H ENRY F. T ODD , P.J., M.S., and W ILLI

AM B. C AIN , J., joined.

Robert L. Jackson and Robert

Todd Jackson, Nashville, Tennessee, for the appellant, Roger Edward Ken ned y.
Mar y Fran ces L yle, Nas hvi lle , Te nne sse e, fo r th e app ell ee, D elo res Rae Ros e Ken ned y.

OPINION Roger Edward Kennedy

and Delores Rae Rose Kennedy were married on A ugust 12, 1961. They raised two children together duri n g their 33-year marriage. Thr oughout the marriage, Mr. Kennedy was employed by the United States Government as a property disposal specialist earning ap pr oximately

$64,000 per y

ear, and Ms. Ken

nedy was a h

omemaker. The pa

rties’ relations

hip unraveled when Mr. Kennedy had an affair with another woman.

In April 1994, the Circuit Court for Davidson County granted Ms. Kennedy a divorce based
on Mr. Kennedy’s adultery. As pa rt of its division of the

marital estate, th

e trial court awa

rded Ms.-2-

Kennedy fifty percent of Mr. Kenn ed y’s monthly

federal retire

ment benefits. The

trial judge also directed Mr. Kennedy to pay Ms. Kennedy long-term spousal support in graduated amounts. The order directed Mr. Ke

nnedy to pay $367 per month until the closing of the sale of the marital home, then $868 per month until Ms. Kennedy was no longer eligible for COBRA insurance coverage, and then $1,000 per month until Ms. Kennedy’s death or remarriage.

In January 1997, at the age of fifty-four, Mr. Kennedy voluntarily

retired from his j ob with the fede ral gove rnm ent . He imm edi ate ly s topped paying spousal support and, in February 1997, filed
a petition in the trial court reque sting the termina

tion of his spousal su

pport obligation b

ecause his reti rement rendered him unable to continue making his support payments. Ms. Kennedy immediately

responded with a petition to hold Mr. Kenned y i n contempt for fa iling to make his February 1997 support pay

ment. Following a

hearing, the tr

ial court entere

d an order on Aug

ust 5, 1997, dismissing Mr. Kennedy’s petition, holding h

imin contempt, and entering a $3,106 judgment against him for the spousal support arrearage. The trial court concluded that its 1994 disposition of Mr. Ke nnedy ’s federal retirement had been part of the division of marital property and, therefore, that it was not rele

vant to his continue

d obligation to pay

spousal support.

I. M R . K ENNEDY ’ S S POUSAL S UPPORT O BLIGATION
Mr. Kennedy contends

that his retirement renders him unable to pay spousal support and that Ms. Kennedy’s

portion of the ret

irement benefits

will make up for an

y loss in spousal support.

He argues that his retirement

is a substantial, material change in circumstances that justifies terminating his support obligation. We disagree for two reasons. First, Mr. Kennedy’s eventual retirement from his government job w

as foreseeable

when the origina

l divorce decre

e was entered in

1994 and was, in f act , ad dres sed in t he d ivo rce d ecre e it sel f. S econ d, M r. K enn edy’s ret ire men t wa s vo lun tar y.
A cou rt c ann ot m odi fy a spousal support award unless there has been a substantial, material change in circumstances since the entry of the previous support decree. Tenn. Code Ann. § 36-5- 101(a)(1) (Supp. 2000); Brewer v. Brewer , 869 S.W.2d 928, 934 (Tenn. Ct. App. 1993); Cranford
v. Cranford, 772 S.W.2d 48, 50 (Tenn. Ct. App. 1 989). In orde r to be material, a

change in ci r cumstances must have been unforeseeable at the time the decree was entered. McCarty v. McCarty , 863 S.W.2d 716, 719 (T enn. Ct. App. 1992) ; Elliot v. Elliot , 825 S.W.2d 87, 91 (Tenn

. Ct. App. 1991). It must also affect the obligor spouse’s ability to pay or the obligee spouse’s continuing need for support. Bowman v. Bowman , 836 S.W.2d 563, 568 (Tenn. Ct. App. 1991).

The party seeking the modification bears the burden of proving there has been a substantial, material change in circumstances. Elliot v. Elliot , 825 S.W.2d at 90; Seal v. Seal , 802 S.W.2d 617, 620 (Tenn. Ct. App. 1990). Once the pa rty meets its

burden, the trial

court then utilizes t

he same factors in Tenn. Code Ann. § 36-5-101(d) (Supp. 2000) that were considered in making the initial award. Brewer v. Brewer , 869 S.W.2d at 936; Norvell v. Norvell , 805 S.W.2d 772, 774 (Tenn. Ct. App. 1990). While Tenn. Code Ann. § 36-5-1 01(d) allows the c ourt to consider ma

ny factors , the real need of the obligee spouse is the single most impor tant factor, Cranford v. Cranford , 772-3-

S.W.2d at 50; Lancaster v. Lancaster , 671 S.W.2d 501, 503 (T enn. Ct. App. 1984) , with

the obligor spouse’s ability to

pay another critical consideration. Smith v. Smith , 912 S.W.2d 155, 159 (Tenn. Ct. App. 1995).

We give wide latitude to a trial court’s decision regarding spousal support because it is factually driven and involves considering and balancing numerous factors. Accordingly, w e review the decision pursuant to the familiar Tenn. R. App. P. 13(d) standard, and we will uphold the trial court’s decision unless it is based on an improper application of the law or is against the preponderance of the evidence. Cranford v. Cranford , 772 S.W.2d at 50.

We agree with th e trial court’s c onclusion that Mr. K

ennedy’s r

etirement was not

a substantial,material change in circumstances. Retirement is not an unforeseeable event, but rather is one that is planned and anticipated far in advance. Horn v. Horn , No. 02A01-9401-CH-00011, 1995 WL 290475, at *2 (Tenn. Ct. App. May 15, 1995) (No Tenn. R. App. P. 11 application filed). There was also te stimony showin g that Mr. Kenne

dy had plann

ed for some time to t

ake early retirement and that he had discussed it with Ms. Kennedy prior to the divorce.

The fact that the division of Mr. Kennedy’s pension benefits occurred ea rlier than expected has no bearing on his spousalsupport obligatio n. It is only

after the trial c

ourt equitably

divides the marital property that the issue of support or maintenance can properly be considered. Tenn. Code Ann. § 36-4-121(a)(1) (Supp. 2000). When the trial court contemplates whether to award spousal support, t h e division of property is one of the factors it weighs when dividing the marital esta te. Tenn. Code Ann. § 36-5-101(d)(1)(H). It is clear from the terms of the divorce dec ree that the trial court anticipatedMr. Kennedy ’s retirement. The court first awarded fifty percent of the re tirement benefitsto Ms. Kennedy as marital property a nd then ordered graduated spousal support in order to
cover Ms. Kennedy’sexpected expenses such as health

insurance. The distribution of the pension benefits was mer

ely a liquida

tion of each part

y’s share o

f a marital asset

. Mr. Kennedy c

ontinues to

be able to pay

support, and Ms. Kennedy clearly ne eds the support in order to maintain even a

modest lifestyle. Mr. Kennedy voluntarilyretired from his $64,000-peryear government job and then

voluntarily remarried and assumed the financial obligations of his new wife. Although he lives

withhis wife in a new th

ree-bedroom ho

me tha t is tit led in h er na me o nly, he pays $961 of

her $1200 mortgage payment and has continued to do so after his retirement – an amount that is almost

equal to his $1,000 alimony obligation. He also pays for the utilities, cable, trash pick-up, and has mon e y for entertainment, a housekeeper, eating out, a c ellular phone, and churchcontributions. Man y of his expenses are discretionary. Although he has retired, there has been no allegation that his earning capacity has chang ed. At the time of his retirement, he was fif tyfour years old and in good health . He is also working approximately th irty hours a week at the Atlanta Auto Auction.

For her part, Ms. Kennedy now works full time as a law office receptionist earning $6.50 per hour. Her net take home

pay per mon

th is $900. She has few marketa ble skills and is unlik

ely to increase her earning c

apacity, a lthough sh

e testified that she has looked for higher-pa

ying jobs.-4-

Since the divorce, she

has been force

d to deplete her a

ssets for living e

xpenses and now has

a negativenet worth. She live s i n a on e-bedroom apartment and has the added expense of a car payment th at she did n ot have when the parties divorced. Even with the addition of the pension payments,

she will just be able

to meet her monthly

expenses. Accordingly, we have determined that Mr. Kennedy has failed to show there has been a substantial, materialchange in circumstances since the divorce that would justify terminating his obligation to continue pay

ing spousal suppor

t to Ms. Ken ned y.
II.

T HE A WARD FOR M S . K ENNEDY ’ S L EGAL E XPENSES
As a final matter, Ms. Kennedy has asked this court to award her atto

rney’s fe es related to this appeal because of her bleak financial condition. The trial court awarded her attorney’s fees for her defense of Mr. Kennedy’s petition and for the prosec ution of her contempt petition.

An award of attorney’s

fees in a divorce action

is treated as an additional award for spousal support. Smith v. Smith , 912 S.W.2d at 161; Gilliam v. Gilliam , 776 S.W.2d 81, 86 (Tenn. Ct. App. 1988). Although courts havewide discretion to award attorney’s fees, they should do so only when the spouse

seeking them lacks sufficient funds to pay his or her legal expenses, or would be required to deplete other assets in order to do so. Brown v. Brown , 913 S.W.2d 163, 170 (Tenn. Ct. App. 1994); Kincaid v. Kincaid , 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995).

We have determined

t hat the disparate financial circumstances of the parties supports an award of Ms. Kennedy’s attorney’s f ees for this appe a l. When Mr. Kennedy stopped pay

ing his spousal support in February 1997, Ms. Kennedy was forced to subsist on $900 a month, which left her in arrears on her

rent and other monthly bills. She was unable to pay any of the a ttorney’s fees she incurred in the lo

wer court. Bec

ause Ms. Kennedy does not have adequate finan

cial resources , we find that Mr. Kenn

edy should be

required to pay

for her attorne

y’s fees r elated to this appeal. On remand, the trial court shall take proof r egarding the amount of these expe

nses and award Ms

. Kennedy a ju dg ment for the reasonable legal expenses she has incurred as a result of this appeal.

III.

We affirm the trial court’s judgment and remand the cas e to the trial court for further proceedings consistent with this o pinion. We also tax the

costs of this appea

l t o Rog er Edward Kennedy and his surety for whic h execution, if necessary, may issue.

_________________________________ WILLIA M C. KOCH, JR., JUDGE