### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON August 28, 2000 Sessio

n

MICKEY BRENT BILLINGSLEY v. DIAN E BROWN BILLINGSLEY

Direct Appeal from the Chancery Court for Obion County No. 16,466 William Michael Maloan, Chancellor

No. W1999-00338-COA-R3-CV - Filed October 9, 2000

This case concerns

a husb and’s efforts

to terminate his obligation to pay his ex-wife $216.67 per month in a lim ony in futuro because of the post-divorce increase in his former wife’s income. The trial court denied the husband’s petition, finding that there had not been a change in circumstances sufficient to war

rant the terminat

ion of the spousal su

pport obligation.

We affirm.

Tenn. R. App. P. 3 Appeal As of Right; Judgme

nt of the Chancery

Court Affirmed;

and Remanded

D AVID R. F ARMER , J., delivered the opinionof the court, in which W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined.

Richard L. Dunlap, III, Paris, Tennessee, for the appellant, Mickey Brent Billingsley.

Steve Conley, Union City, Tennessee, for the appellee, Diane Brown Billingsley.

OPINION

On June 12, 1992, Mickey Brent Billingsley (Mr . Billingsley) and Di ane Billing sley (Ms. Bil lin gsle y) were divorced. The parties had two children, and the trial cour t awarded custod

y to Ms. Billingsley. As part of the final judgment of divorce, the court ordere

d Mr. Billingsley

to pay Ms. Billingsley

$50.00 per week ($216.67 per m ont h) as ali mon y in futuro based upon the disp arity in th e earning capacities of the parties, Ms. Billingsley’ s need, and Mr. Billingsley’s ability to pa y

. Addi tio nal ly, the court award ed the parties’ h

ome, with $22,000.0

0 of equity th

erein, to Ms. Bil lin gsle y as al imo ny in solido

.

At the time of the div

orce in 1992, Ms. Billingsley was employed at Miche lson’s Jewelers andearned $9,618.00 per year. Her house pay

ments were $546.0

3 per month. After

the divorce, Ms. Billingsley

was laid off from her

job. She refinanced her home for the first time on May 28, 1993, incurring debt of $55,385.20. On February 2, 1998, Ms. Billingsley refinanced her home for a secondtime, increasing the debt to $68,000.00. Ms. Billingsley filed for bankruptcy, and

in June of 1999, she lost her home to foreclosure. Ms. Billingsley is currently

employed by

the Doctor’s Clinic-2-

in Union City, Tennessee, and earns $7. 75 p er ho ur. Incl udi ng ch ild sup por t pa ymen ts a nd a lim ony, Ms. Billingsley earns a total of $2,184.00 per month. Her monthly expenses total $2,848.00.

Since the divorce, Mr. Billingsle y has remarri ed, and he and his wife have a combined monthly income of $5,028.57, with Mr. Billing sley contri

buting approximate

ly $2,51 0.70 to that total. Their monthly

expenses are $4,8

70.32. After the d

ivorce, Mr. Billi

ngsley pur

chased real est

ate valuedat $70,700.00, a 1997 Ford Expedition, a jet ski, a pontoon boat, and had a swimming pool built behind his home. Additionally, Mr. Billingsley’s wife’s niece currently resides with him and his wife. Mr. Billingsley receives no support pay ments for his wife’s niece.

On January 15, 1 999, Mr. Billings ley filed a

petition requestin

g the termination

of his alimony obligation, asserting in support of his motionthat Ms. Billingsley’s income had risen to a level such that Mr. Billi

ngsley sho

uld no longer be r

equired to pay ali mon y in futuro . A hearing on Mr. Billingsl ey’s petition to termina te alimony, al ong w ith other i ssues raised by the parties, was held on September 1, 199

9. The court denie

d Mr. Billingsley

’s petiti on t o te rmi nat e al imo ny, finding that the f

inancial situation

of the parties re

ally had not changed since the divorce, that Ms. Billingsley

was still in needof support, and tha t Mr. Billingsley

was still limited in

his ability to pay ali mon y. Specifically, the court found that there had been changes in circumstances, but none were significant

enough to warrant a modification of the alimon y awa rd. The sole issue raised by Mr. Billingsley

on appeal is whether the tria l court erred in d

enying Mr

. Billingsley ’s petition to
ter min ate ali mon y.
Because spousal support decisions are factual in natur e and involve a ba

lancing of fac

tors, including those in section 36-5-101(d) of theTennessee Code, this court must review the trial court’s decision de novo with a presumption of co rrectness unless the evidence preponderates otherwise. See Tenn. R. App. P. 13(d ) (1999); Cranford v. Cranford , 772 S.W.2d 48, 50 (Tenn. Ct. App. 198 9); Luna v. Luna , 718 S.W.2d 673, 675 (T enn. Ct. App. 1986) . Appellate cour ts giv e wid e latitude to a trial court’s decision regarding alimony awar ds. See Cranford

, 772 S.W.2d at 50.

According to secti on 36-5-101(a)(1) of the Tennessee Code, a court can modify a support award only if there

have been substantial and material changes in circumstances. A “substantial and material change” has been defined to mean that the change in circumstance was unforeseeable at the timeof the divorce decree and that the change affected the r ecipient spouse’s need or the p ayor spouse’s ability to pay. See Sannel la v. Sa nnella , 993 S.W.2d 73, 76 (Tenn. Ct. App. 1999); McCarty v. McC

arty , 863 S.W.2d 716, 719 (Tenn. Ct. App. 1992); Bowman v. Bowman , 836 S.W.2d 563, 568 (Tenn. Ct. App. 1991); Elliot v. Elliot , 825 S.W.2d 87, 90 (Tenn. Ct. App. 1991). The burden of proving a substantial and material change in circumstance lies with the party seeking the modification, but a showing of an increase in income of the recipient spouse alone is not

enough
to warrant m

odifica tion or termination of the support award. See Sannella , 993 S.W.2d at 76; Brewer v. Brewer , 869 S.W.2d 928, 935 (T enn. Ct. App. 1993) ; McCarty , 836 S.W.2d at 720; Norvell v. Norvell

, 805 S.W.2d 772, 774, 775 (Tenn. Ct. App.1990). Furthe rmore, the payor spouse’s requirement to pay alimony cannot be te rminated mer ely beca

use the pay

or spouse-3-

voluntarily

assumed other fin

ancial obligati

ons. See Elliot , 825 S.W.2d at 91; Jones v. Jones , 784 S.W.2d 349, 353 (Tenn. Ct. App. 1989).

Mr. Billingsley asserted as the bas is f or h is p eti tio n to ter min ate ali mon y in futuro that Ms. Billingsley

is gainfully employed and ea rns an income at such a level that he should not be required
to pay alimony. I

t can thus be inferred from Mr. Billingsley’s pe ti tion that he is alleg

ing that Ms. Billingsley’s

increase in income is a substantial and material change in circ

umstance which wa

rrants the modification of his

alimony oblig

ation. The recor

d supports Mr. Billi

ngsley’s a ssertion that Ms. Billingsley

is currently

gainfully employed an

d is earning more

in salary no

w than she did at the

time of divorce. It is, however, not unforeseeable that Ms. Billingsley would have to find a job paying her more than $9,618.00 per year in order to supportherself and her two teenaged children after the divorce. Case law is clear that the dependent spouse’s increase in post-divorce income alone is not enough to qualify as a substantial and material change in circumstance. See Sannella , 993 S.W.2d
at 76; McCarty , 863 S.W.2d at720; Norvell , 805 S.W.2d at 775. Furthermore, the trial court found that the parties’ financial situation had not changed a great deal si nce the divo rce and that , although there were changes in circumstances, none were significant enough to war rant a modificationof the award of al imo ny in futuro . We agree with the tri al court that Mr. Billingsley has not shown a substantia l and material change in circumstances sufficient to justify terminating his alimony obligation. T herefo re, for the foregoing reasons, we affirm the trial court’s denial of Mr. Bil lin gsle y’s p eti tio n to ter min ate ali mon y in futuro

. Ms. Billingsley

requests this court to

award her attor

ney’s fee s necessitated by

this appeal. In support of her request, Ms. Billingsley cites section 36-5-103(c) of the T enness ee Code as authority for this court to award her the attorney’s fees she incurred on this

appeal. Section 36-5- 103(c) states in relevant part that “[t]he plaintiff spouse may

recover from the defendant spouse .

. . reasonable att

orney fee s incurred in enforcing

any decree for alimony

. . . both upon the original divorce hearing and at

any subsequent hearing

. . . .” Tenn. Code Ann. § 36-5-103(c) (Supp. 1999) (emphasis

added). Ms. Billingsley is neither the plaintiff spouse nor is she enforcing a decree for ali mon y. Rather, Ms. Billingsley is defending the alimony award grante

d her in the trial court. See generally Glanton v. Glanton , No. 01-A-01-9601-PB00013, 1996 WL 502136, at **3 (“No tab ly, the statute does not sta

te that a defendant

spouse may r

ecover from a plaintiff spouse .”) (emphasis in original). Additionally, attorney’s fe es per section 36-5-10 3(c) of the Tennessee Code are primarily awarded to facilitate a

child’s access t

o the courts. See Sherrod v. Wix , 849 S.W.2d 780 (Tenn. Ct. App. 1992). Because Ms. Bi llingsley d

oes not fit the req

uirements of the Code, we find that section 36-5-103(c) does not provide a statutory basis fo r awarding Ms. Billingsley her attorney’s fees on appeal.

Ord ina ril y, a party cannot collect his attorney ’s fees from his adversary absent either (1) a statute or ruleof court or (2) a contractual provision between the parties. Because Ms. Billingsley does not meet the requirements of the statute providing for attorneys’ fee s and be c ause no contractual provision regarding payment of attorney’s

fees exi sts bet ween Mr. Bil lin gsle y and Ms. Bil lin gsle y, we find that Ms. Bi

llingsley is

not entitled to an a

ward of attorne

y’s fees on

appeal.-4-

Based on the foregoin

g, we affirm the

trial court’s den

ial of Mr. Billing

sley’s petit

ion to terminate ali mon y in futuro . Ad dit ion all y, we deny Ms. Billingsley’s re quest for her

attorney’s fees

on appeal. The cost

s of this appeal ar

e taxed to the appel

l ant, M ickey Bre

nt Billingsley

, and his

sur ety, for whi ch ex ecut ion may i ssu e ifnece ssa ry.

___________________________________ DAVID R. FARMER, JUDGE