### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON FEBRUARY 21,

2001 Session
JANET CAROL SCARBROUGH v. EDD SHERROD SCARBROUGH

Direct Appeal from the Chancery Court for Weakley County No. 14884; The Honorable William Michael Maloan, Chancellor

No. W2000-01807-COA-R3-CV - Filed June 8, 2001

This appeal involves issues stemming from the parties’ divor ce. The trial court terminated Husband’s obligation to pay rehabilitative alimony. I n addition, the trial court valued Husband’s life estate in certain real property at $200,000.00, and the court awarded Wife $10

0,000.00. Both

parties appeal the decis

ion of the trial cou

rt. For the follow

ing reasons, we

affirm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

A LAN E. H IGHERS , J., deliver ed the opi nion of the

court, in w

hich W. F RANK C RAWFORD , P.J., W.S., and H OLLY K IRBY L ILLARD , J., joined. James H. Bradberry, Dresden, for Appellant L. L. Harrell, Jr., Trenton, for Appellee
OPINION Facts and Procedural History

JanetCarol Scarbrough (Wife) and Edd Sherrod Scarbr ou gh (Husband) were married on August 15, 1977. Wife filedfor divorce on December 3, 1996, and Husband counter-claimed. A divorce decree was entered by the trial court on July 16, 1998. The trial court granted both parties
a divorce pursuant to section 36-4-129 of the Tennessee Code. The trial court also awarded Husband the real estate and other property totaling $294,450.00, and Wife was aw arded pro perty totaling $52,247.00. In order to equitably divide the marital property , the trial court further awarded Wife $120,000.00 to be paid b y Husband. The court also deducted the $76,000.00 debt on farm equipment

from the marital estate and ordered Husband to pa y Wife $100,000.00 instead of $120,000.00 as previously ordered. Husband and Wife bo th appealed the d

ecision of the tria

l court.-2-

This c ourt held, i n relevant part, that Wife was an appropriate candidate for rehabilitative ali mon y. Accordingly, we ordered that Husband was to pay Wife rehabilitative alimony of $700.00 per month for three years. Furthermore, we held that Husband’slife estate in ce rtain real prope

rty was marital property, and we remanded the case to the trial court with instructions to determine the value of the life estates and to make an equitable division thereof.

In February 2000, Wife filed a petition for contempt, alleging that Husband had failed to pay alimony for January and February. On February 10, 2000, Husband filed a Petition to Reduce and/or Terminate

Alimony. Wife filed her answer to this petition on April 27, 2000 . H usband filed a Chapter 12 Bankruptcy Petition in the Federal Bankruptcy Court at Jackson on May 8, 2000. On June 6, 2000, Wife filed another petition for contempt, alleging that Husband failed to make his May andJune alimony payments. On June 28, 2000, a hearing was held and the trial co urt relieved Husbandof hi s alimo ny obligation. The trial court also valued the Husband’s life estates at $200,000.00 and awarded Wife the sum of $100,000.00 as an equitable division of m ari tal pro pert y.
Both parties appeal the judgment of the court below and present the following issues, as we perceive them, for our review: Wife’s issues

: 1. Whether the trial c ourt erred in ter

minating Husband’s oblig ation to pay Wife rehabilitative a

limony in the a

mount of $700.00 per

month for three y

ears. 2. Whether the trial c

ourt erred in fa

iling to designa

te the award of $ 100,000.00 to Wife as alimony in solido.

Husband’s issues: 1. Whether the trial court erred in failing to reduce the value of Husband’s life estate by the
amo unt of m ort gage owi ng up on t he p rop ert y. 2. Whether the trial court erred in awarding the Wife a judgment based u

pon the life estate ins tea d of awar din g her one -hal f ofany i nco me r ecei ved fro m th e pro pert y.
Standard of Review

When a ci vil act ion is h eard by a trial judge sittin g without a

jury, our review of the matter is de novo on the record, accompanied by a presumption of correctness of the findings below. See Foster v. Bue , 749 S.W.2d 73 6, 741 (Tenn . 1988); T. R.A.P. 13 (d). We may not reverse the f indings of fact made by the trial judge unless they are contrary to the preponderance of the evidence. See Jahn v. Jahn , 932 S.W.2d 939, 941 (Tenn. Ct. App. 19 96). This pre sumption of corre ctness, however, does not attach to the trial judge’s legal determinations or the trial court’s conclusions that
are based on undisputed facts. See NCNB Nat’l B ank v. Thrailkill, 856 S.W.2d 150, 153 (Tenn. Ct. App. 1993).-3- Law and Analysis

Wife asserts that the trial court erred in terminating Husband’s obl igat ion to pay her rehabilitative a l imony in the amount of $700.00 per month for three yea rs. Courts cannot modify
or terminate a spo usal support award unless the re has been a substantial, materia l change in circumstances since the entry of the previous support decree. See T ENN

. C ODE A NN . § 36-5-101(a)(1); Elliott v. Elliott , 825 S.W.2d 87, 90 (Tenn. Ct. App. 1991); Brewer v. Brewer , 869 S.W.2d 928, 935 (Tenn. Ct. App . 1993). In ord er to be material , a change in ci

rcumstances must have been unforeseeable at the time of the decree. S ee Sannel la v. Sannella , 993 S.W.2d 73, 76 (Tenn. Ct. App.19 99). It must a lso affect t he obligor s pouse's ability to pay or the obligee spouse's needfor alimony. See Bowman v. Bowman , 836 S.W.2d 563, 568 (Tenn. Ct. App. 1991). The party seeking modification of a

support obligation bears the burden of proving there has been a substantia

l, material change in circumstances and that the modification is warranted. See Watters v. Watters , 22 S.W.3d 817, 821 (Tenn. Ct. App. 1999). If the petitioner meets this burden, the court then utilizes the same factors in section 36-5-101(d)(1) of the Tennessee Code that were considered in making the initial award to determinethe appropriate modification. See Brewer , 869 S.W.2d at 936; Norvell v. Norvell , 805 S.W.2d 772, 774 (Tenn. Ct. App. 1990).

Whilesection 36-5-101 (d)(1) of the Te nnessee Code per

mits the co nsideration of many factors, the recipient spouse's demonstrated need for spousal support is the single most important factor. See Sannella

, 993 S.W.2d at 76; Cranford v. Cranford , 772 S.W.2d 48, 50 (Te nn. Ct. App. 1989). The obligor spouse's ability to pay is a nother important factor. See Smith v. Sm ith , 912 S.W.2d 155, 159 (Tenn. Ct. App. 19 95). An alimony recipient's increased income alone is not sufficient to warrant reducing or terminating support, McCarty v. M cCarty , 863 S.W.2d 716, 720 (Tenn. Ct. App. 1992); Norvell , 805 S.W.2d at 775, nor may an oblig

or spouse avoid

paying support by voluntarily assuming new financial obligations. See Elliot , 825 S.W.2d at 91; Jones v. Jones , 784 S.W.2d 349, 353 (Tenn. Ct. App. 1989).

Because support decisions are factually driven and involve consider ing and balancing
numerous factors, we give wide latitude to the trial court's di scr etion. See Watters , 22 S.W.3d at 821; Sannella , 993 S.W.2d at 76. We rev iew a trial court's decision according to the familiar standardper Rule 13(d) of the Tennessee Rules of Appellate Procedure, 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. See Cranford , 772 S.W.2d at 50; Luna v. L un a , 718 S.W.2d 673, 675 (Tenn. Ct. App. 1986). Upon review of the recor d in this case, we find no error in the trial court’ s decision to terminate Husband’s obliga

tion to pay re

habilitative alimon

y. We note tha

t Husb and is having serious financial difficulties, and, as a result, he has filed for bankruptcy sinc e we determined that he should pay rehabilitative alimony. On the other hand, Wife has remarried, and her new husband cont ributes over $50,000.00 pe r year to th

e family inc

ome. It has be

en held that rema

rriage is a substantial andmaterial change of circumstances. Struck v. Struck , 958 S.W.2d 352, 353 (Tenn. Ct. App. 1997). We also note that Wife testif

ied that he r needs have changed substantially since her-4-

remarriage, as she has a

new husband to help pay living expenses. We conclude that Husband has met his burden of prov

ing that there ha

s been a substantia

l, materia l change in circ

umstances to warrant the termination of his alimony obligation. Therefore, this issue is without merit.

Alt erna tiv ely, Wife argues tha t if th e trial c ourt was justified in terminating the alimony
awa rd prospec tively, our g

rant of rehabilit

ative alimony

should be given r

etroactive eff

ect to July 1998, which was the date

of the original d

ivorce hearing . Wife cites Gotten v. Gotten , 748 S.W.2d 430 (Tenn. Ct. App. 1987), as support for this proposition. While Wife is correct in one respect, she overlooks that portion of the opinion where we stated “we hold that a judgment of theappellate court reversing or modifying the trial court judgment pr

oviding for per

iodic payme

nts of alimony

or child support is effective as o

f the date of the trial court

judgment, unless the appellate c ourt judgment specifies otherwise .” Id. at 431 (emphasis added). When the instant case was first before us, we clearly held that “[t]he alimony payments will commence on the first day of the month following the filing of this Opinion.” Scarbrough v . Scarbrough , No. W1998-00167-COA-R3-C V, 1999 WL 1567097, at *5 (Tenn. Ct. App. Dec. 14, 1999). Thus, it is clear tha t we designated the alimony payment s to begin on January 1, 2000. Accordingly , Wife’s argument that the grant of al imon y should be given r

etroactive eff

ect is without merit

. Next, Wife asserts that the trial court erred in failing to designate the $100,000.00 award to her as alimony in solido . The cou rt below valued Husband’s life estates at $200,000.00, and awarded Wife $100,000.00 as a division of marital pro pert y. Wife takes no e xception to the value that the court placed on Husband’s life estate. Instead, Wife argues tha

t th e tri al court should hav e designated he

r award as alimon

y in solido so the award will not be discharged in bankruptcy.

Tri a l courts have broad discretion to determine whether alimony is appropriate and, if so, the nature, amount, and duration of the alimony awarded. See Anderton v. Anderton , 988 S.W.2d 675, 682 (Tenn. Ct. App. 1998) (cit ing Garfinkel v. Garfinkel , 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996); Jones v. Jones , 784 S.W.2d 349, 352 (Tenn. Ct. App. 1989)). There are no hard and fast rules to be applied in cases involving a request for alimony. See id. (citing Crain v. Crain , 925 S.W.2d 232, 233 (Tenn. Ct. A

pp. 1996); Stone v. Stone , 409 S.W.2d 388, 392-93 (Tenn. Ct. App. 1966)). Rather, decisions regarding alimony hinge on the unique fa ct s of t he case and involve the careful consideration and balancing of many factors, including those set for th in section 36-5-101(d)(1) of the Tennessee Code. See id. at 683 (cit ing Hawkins v. Hawkins , 883 S.W.2d 622, 625 (T enn. Ct. App. 1994); Loyd , 860 S.W.2d at 412)). These factors a

re as follows:
(A) T he re lat ive earn ing c apac ity, obl igat ion s, n eeds , an d fi nan cia l re sou rces of ea ch p art y, including income

from pension, prof

it sharing or re

tirement plans and

all other source

s; (B) The relative education and training of each party , the ability and opportunity of each party to
secur e such education and training, and the necessity of a party to secure further education an d training to improv

e such party

's earning ca

pacity to a r

easonable leve

l; (C) The duration o

f the marriage ; (D) The age a

nd mental condition

of each party; (E) The phy

sical condition of

each party

, including, but no

t limited to, phy

sical d isabi lity or incapacity

due to a chronic d

ebilitating disea

se;-5-

(F) The extent to which i t would be undesirable f

or a party t

o seek employ

ment outside the hom

e because such pa

rty will be c

ustodian of a minor

child of the marri

age; (G) The separate assets of each party, both re al and personal, tangible and intangible; (H) The provision

s made with rega

rd to the marital pr

operty as de

fined in § 36-4-12 1; (I) The stan

dard of living of

the parties estab

lished during the

marriage; (J) T he extent to which each party has made such tangible and intangible c ontributions to the marriage as monetary and homemaker contributions, an d t angible and intangible contributions by a party to th

e education, tra

ining or increa

sed earning pow

er of the other pa

rty; (K) The relative

fault of the parti

es in cases wher

e the court, in its d

iscretion, deems

it appropriate to do so; and (L) Such other factors, including the taxconsequences to each party, as are nec essary to consider the equities betwe

en the parties. T ENN

. C ODE A NN . § 36-5-101(d)(1) (Sup p. 2000) . The most important factors that a c

ourt must consider when determining whether to award alimony are (1) the need of the spouse seeking support and (2) the ability of the

other spouse

to pay support. See Young v. Young , 971 S.W.2d 386, 391 (Tenn. Ct. App. 1997); Watters , 959 S.W.2d at 593; Smith v. Smith , 912 S.W.2d 155, 159 (Tenn. Ct. App. 1995).

We notethat the trial judge was well aware that Husband had filed for bankruptcy when he valuedHusband’s life estate and divided the property. Upon review of the record, we find that

the trial judge did not abuse his discretion in failing to designate the award as alimony in solido.

Husband’s Issues Husbandasserts that the trial court erred in failing to reduce the value of his life estate by the amount of mortgage owing upon

the property. The trial court valued the life estate at $200,000.00, and the cou rt awarded the wife $100,000.00. Trial courts have the authority to apportion mari ta l debts in the same way

that they div

ide marital asset

s. See Mahaffey , 775 S.W.2d 618, 623-24 (Tenn. Ct. App. 1989). Tria

l courts are entit

led to broad discretion in adjudicating the rights of partie

s in
a divorce case. See Fisher v. Fisher , 648 S.W.2d 244, 246 (Tenn. 1983); Harrington v. Harrington , 798 S.W.2d 244, 245 (Tenn. Ct. App . 1990). D ecisions based up on this discretion a

re entitled to great weight. See Kelly v. Kelly , 679 S.W.2d 458, 460 (T enn. Ct. App. 1984) ; Edwards v. Edwards , 501 S.W.2d 283, 288 (Tenn. Ct. App. 1973). Upon review of therecord, there i s no indication that the trial court abused its discretion. The court considered the testimony at trial from the various rea l estate apprais ers, and the court also considered the annuity and valuation tables in the Tennessee Code. The court’s value of $200,000.00 placed on the life estate is within the court’s discretion, and we find no error in this valuation and division of property.

Fin all y, Husband asserts that the trial court erred in awarding Wife a judgment based upon the lif e est ate ins tea d of awar din g her one -hal f ofany i nco me r ecei ved fro m th e pro pert y. When we remanded this case, we instructed the trial court that the life estate should be tre ated as marital pro pert y. We f urt her i nst ruct ed t he t ria l co urt to v alu e and equ ita bly div ide the life estate. Upon remand, the court did exact ly as instruc

ted, valuing the

life estate at $200,000.00 and awardingWife-6-

$100,000.00. Husband testified at trial that he re

ceived no income

whatsoever fro

m his son for his interest in the life estate . Whilethis may be true, it was Husband’s choice to enter into an agreement so that his son would never have to pay him anything f or his life estate. Nevertheless, Hus band retains a life estate in said property, and the life estate does in fact have value. Husband cannot circumvent

this fact by choosing not to receive income from his son for the life estate. As a result, we find no error in the trial court’s valuation and division of the life estate.
Conclusion

Accordi n gly, for the aforementioned reasons, we affirm the judgment of the court below. Costs on appeal are ta

xed one-half to

Wife, and one-ha

lf to Husband, for which execution may issue if n eces sar y.

___________________________________ ALAN E. HIGHERS, JUDGE