### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 8, 2003 Session BRENDA C. KING v. DANNY F. KING Appeal from the Circuit Court for Davidson County No. 97D-2861 Marietta M. Shipley, Judge

No. M2002-01897-COA-R3-CV - Filed Septem ber 16, 2003

Former Husband s ought to a

cceler ate for mer Wife’ s repay

ment of a

li mo ny o verpayme

nts that accrued between the divorce and

this court’s modification of the original award of alimony. Forme

r Husbandargue s the tria

l court a bused its d

iscretio n when it

did not establish areasonable repay ment plan. Because we find the trial court did not abuse its discretion in fashioning a repay ment plan, we affirm t he trial c ourt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded P AT RICIA J. C OTT RELL , J., delivered the opinion of the court, in which W IL LI AM C. K OCH , J R ., J., and W IL LI AM B. C AIN , J., joined. Rober t L. Jac kson, Stan ley A. Kwel ler, N ashvi lle, T ennes see, fo r the ap pella nt, Da nny F. Kin g. Paul T. Hou sch, N ashvi lle, T ennes see, fo r the ap pelle e, Bren da C. K ing.1 Ten n. R. Ct. App . 10 states:
Th is Court , wi th t

he conc urre nce of

all judges parti cipating in the cas e, may a ffirm, reve rse or mod ify the act ions of t

he tria l cou rt bymemorandu m opini on when a formal opi nion wou ld have no prec ede ntia l value. When a case is deci ded by memorandum opinion i t shal l be desi gnated “MEMORANDU M OP INI ON ,” shall n ot be pu bl ished, and shall not be cited or relied on for any reason i n any un relat ed case.

2 The parties had b een m arried for 31 years. H usba nd is a veterinari an who owns a clinic. Wife worked off and on at t he cl ini c for

no sal ary . Wife is curr entl y un employ ed. Wif e and Hus band wer e 51 and 53 years old at time of t he divorce. 2 MEMORAN

DUM OP

INION 1 The trial court g

ranted M s. King a divorce based on Dr. King ’s inappropriate marital conduct andad ul te ry. 2 Dr. King was ordered to pay his former

wi fe $6 ,0 00 pe r m on th in al im on y in futuro for the first two years a

nd then $4,500 per month thereafter. The trial court fur ther ordered Dr. King to pay $10,000 of the wif

e’s attorney ’s fees. Dr. King appealed the award, and anoth

er pane l of this court in King v. King , No.M1999-02335-COA-R3-CB, 2001 WL 950194 (Tenn. Ct. App. Aug . 22, 2001) (no Tenn. R. App. P 11 application fi le d) re du ce d t he aw ar d o f a li mo ny in futuro to $4,500 per month for

the first two years, a

nd $3,000 p er month

t hereafter, terminating upon the wife ’s remarr iage or upon the d

eath of e ither, wh ichever occurs f irst. On November 15, 2001, Dr. King filed a “Motion for R elief Pursuant to the Court of Appeals ” seeking either a refund, re bate, or credit for his overpay ment of alimony of $1,500 per month for 28 months or

$42,000, for the period in which he paid hi s former

wife alimony

in excess of that a ffirmed on appea l. Ms. King opposed the motion and argued that re du ct io n o f h er fo rm er hu sb an d’ s a li mo ny in futuro obligation should not be made retroactive to the date of the final divorce decreeon June 10, 1999, but r ather be effective on the date of the Court of Appeal’s decision of August 22, 2001. Moreover, Ms. King argued that any overpayme

nt of alimony should be offset by the sumDr. King ow ed to Ms . K in g’ s a tt or ne y. On February

7, 2002, following a hearing on the motion, the tr ial co urt aw arded D r. Kin g a $42,000.00 judgmen

t a gainst his former wife for the overpa yments made to her a

nd outlined the schedule for credits and r

epay ments as f

ollows: 2.) That a cr

edit ag ainst

said over pay ment shall

be made a s follows: $10,000.00 r epres enting attorney ’s fee required to be paid by Dr. King shall be deducted from said overpay ment, plus statutory

interest of 10% per annum from the date of the or iginal Order until January 11, 2002 for a total of $12,5 91.89. After deducting said sum, the amount of overpay

ment as of January 1, 2002, is $29,408.11.3 We assume the $15 00 p ayme nt wou ld be effecti ve only upon Ms. King’s remarriage since Mr. King would have

a claim against

her estate f

or the entire bal ance of the judgment in t he event of her death.

4 We have r evie wed th e CD-ROM of the Motion t o Alt er orAmend, and commend the t rial court’s ef

forts t oward c reating a com pro mise tha t would repa y Dr. K ing within a reaso nab le time p eriod , while at the same time no t undul y burd en M s. King

. 3

3.) Dr. King

shall be e ntitled to deduct f rom his 3,0 00.00 per

month alimony payment the sum

of $250.00 per month to be applied towards the said o verpay

ment of $2 9,408.11 a

nd shall a lso be entitled to the statutory intere st rate of 10% per annum on the balance of the judgment until the total amount of the same is paid.

***** 5.) The $250. 00 per mon th credit refer

enced a bove sha ll end upon

Mr s . King’s death or remarriage, a t which time she or her Estate shall berequired to pay $1,500.00 per month to Dr. K ing for any

balance that may

exist at that time, incl uding int erest. 3
Not satisfie d with the m

odified o rder, Dr. King

filed a timely

Tenn. R. Civ. P. 59.04 Motion to Alt er or Amend t he Fe br ua ry 7 th order “as it relates to the amount of money that the Plaintiff, Brenda King, is required to pay

Defendant for the judgment awar ded against her. . . .” The Rule 59 hearing was held on June 21, 2002. 4 Dr. King urged a “modest” increase of

$150 per month which would increase his monthly re payment credit to $400.00. Ms. King argued

that even a $150 increase was a lot of money to her given the fact that her only income was the alimony pa yment of $2,750

per month

which was substantially smaller than the original award. Counsel for Ms. King explained that she was in the proce ss of rebuilding her home which had bee

n destroy ed by a fire a nd that de aling w ith that wa s a full-t ime job. Once

rebuilt, M s. King planned to refinance the home and free up more disposable income to accelerate pay ment of the judgment. Ms. King also planned to seek employ ment then. The trial court advised Ms. King that she should try to repay

the judgment as soon as possible due to the high interest rate (10% ) she was paying

on the balance. Weighing all these factors, the trial court found the requested increase of an additional $150 to be too much for

Ms. King to handle at the present time. Nonetheless, the trial court e ntered an order modify ing its Fe br ua ry7 th order

to reflect its concern that Dr. King be r e-payed in a rea sonable manner: (1). That the parties have agreed that the judgment previously entered by the Court

on February 7, 2002, should be modified a nd that the total amount of the judgment owe d by Ms. King to Da nny King should be reduced f rom $42,000.00 to $39,000.00. After5 Th is request for a 5 year payoff was not made before the trial court at the Rule 59 hearing. At the hearing, Dr. King asked the tri al court for only an increase which would have set the rate of r epayment at $400.00 p er month. At the close of the he aring, it do es no t app ear tha t any am ortiza tion tab les he ha d pr epa red w ere intro duc ed into evide nce..

6 At trial, the c ourt fo und th at M s. King had th e po tential ear ning ca pac ity of $2 5,00 0.00

. 4 subtrac ti ng the $10,000 attorney f ee awarded to Ms. King’s former attorney along with interest thereto, Wife, Ms. King, owes Husband, Danny King , the total sum of $26,408.11. (2). T he Court is further of the opinion that the sum sho ul d be repaid by Wife, Ms. King, to Husband, D anny King , at the rate of $250.00 per month, and th at such payment should incre ase in the event of Ms. K ing ’s death or remarriage to a total of $1500.00 per month. (3). The Court further modifies the previous l y entered judgm ent to require that Ms. King pay off the entire balance of

th e debt created as a result of the previous Orde r and this Order within ten ye ars f

rom the dat e of the this Order, including all amounts of principal and interest then owing. Ms. King is free to pay of f the balance of this debt at any time befor e the end of

that ten year

period. We review the trial court 's decision on the Rule 59 motion to alter or amend the judgment under an abuse of discretion standar d. Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621, 624 (Tenn.2000); Underwood v. Zurich Ins. Co., 854 S .W.2d 94, 97 (Tenn.1 993); Bradley v. McCleod, 984 S.W.2d 929, 933 (Tenn. Ct. App.1998), overruled on other grounds in part by Harris v. Chern, 33 S.W.3d 741, 7 44 (Tenn .2000); Randa lls v. Hopp , No. M2002 -007 71-CO A-R3 CV, 20 03 WL 1923821 (Tenn. Ct. App. April 24, 2003) (no Tenn. R. App. P. 11 application filed). Under the abuse of discretion standard, a trial c ourt's ruling "will be upheld so long as reasona ble minds can disagree as to the pro priety of the decision mad

e." A tr ial cour t abuses its discretion only

when it "applies an incorrect lega l standard, or reaches a decision which is a

gainst logicor reasoning or that causes an injustice to the par ty complaining." The abuse of discretion standard does not permit the appellate court to substitute its judgment for that of the trial court. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.2001). Here, Dr. King

argue s th at th e trial court abused its discretion by not requiring faster repayme ntof the judgment. On appeal, Dr. King sugg ests that repayme nt of the debt within a five y ear period would be reasonable. This could be accomplished by allowing Dr. King to deduct $561. 09 per month fro m his alimon y pa yme nt. 5 At that rate, Ms. King would still be receiving $2400 per month in alimony in addition to whatever e arnings she is able to genera te. 67 At oral ar gument bef ore thi s court , Dr. King conceded that his concerns abou t compl ete repay ment would be somewhat allayed by a judgment li en on Ms. King’ s home. A reque st forsuch lien should be ad dress ed to the trial co urt. 5 At the hear ing to ad dress Dr. King’s Rule 59 Motion, the trial court considered any increa se in the repa

yme nt credit as a det

riment to M s. King gettingback on her feet following the house fir e she suffered. Nonetheless, the trial cou rt imposed

a reaso nable time

limit of ten

ye ars in whi ch to pay the judgment. The trial court opined that she hoped Ms. King would repay

the debt sooner due to the 10 % interest rate being charged. The trial court noted that Dr. King was ge tting a better

return on his money at 10% from Ms. King than he could from market at the present time. In addition, the trial court notedthat Ms. King was making a substantial payment towar d Dr. King’s ju dg me nt by v irtue of the trial court’s offsetting Dr. King ’s obligation to pay Ms. King ’s attorney’sfee of $12,591.89 . We agree that this was a substantial down payment on the judg ment and one more drain on Ms. King’s rece ntly diminished resources. Our Supreme Court held i n Harrin gton v. Harrington , 759 S.W.2d 664 (Tenn. 1988) that altho ugh there is no statutor y min imum amount to be fixed by the trial court when a llowing pay ments to be paid by installments, the trial court should nonetheless require the repay ment of the debt be reasonable and not “patently low.” Id. at 668; see Tenn. Code Ann. § 26-2-216. Here, the trial court ca

refully consider ed the pa rties re specti ve abilities to pay and crafted a reasonable repayment plan to satisfy the judgme nt. Based upon the record before us, we can findno abuse of discreti on by

the trial court. 7 CONCLUSION The trial court did not

abuse its discretion in structuring the repay ment plan and, therefore, the judgment

of the trial court is affirmed and this matter is rem anded for any fur ther p roceed ings which may be nece ssary. Th e cost s of th e appea l are t axed to th e appel lant, Danny F. Ki ng.

___________________________________ PATRICIA J. COTTREL L, JUDGE