### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

CATHY LEE BARNES WILLIAMS v. RODNEY LEE WILLIAMS.

Direct Appeal from the Circuit Court for Davidson County No. 93D-961 Marietta Shipley, Circuit Court Judge

No. M1999-00221-COA-R3-CV- Decided June 27, 2000

This is a post-divorce petition for reduction in alimony. The wife’s income had increased because she began working full-time instead of part-time, and her expenses decreased because the parties’ son graduated from college and the parties’ dau

ghter, living with th

e wife, was close

to obtaining her professional license. The husband was unemployed at the time of the hearing. The trial court granted

the husband’s pet

ition, finding that hu

sband’s decrea

se in income was temporary, butholding that the wife’s increase in income, combined with t he decrease

in her expenses, constituted a substan tial a nd material chan ge in circumstanc

es sufficient to ju

stify a reduction

in alimony. We reverse, finding that the changes in the wife’s circumstances were fore seeable w h en the parties entere

d into the marital di

ssolution agreeme

nt, and therefor

e do not support the

tr ia l court’s finding of

a substantial and m

aterial change

in circumstance

s.
Tenn. R. App. P. 3; Judgment of the trial court is reversed and remanded.

H OLL Y K IRBY L ILLARD , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W

. S ., and A LAN E. H IGHERS , J. joined.

Mary Anne Kevil,

LaGrange, Ken

tucky, for the ap

pellant, Cathy Lee

Barnes Williams.

F. Dulin Kelly and Andy L. Allman, Henderson, Tennessee, for the appellee, Rod

ney Lee Williams.

OPINION

Appellee Rodney Lee Willia ms (“Hu sband”) and Appe llant Cathy Lee Bar

nes Williams (“Wife”) were divorced on January 9, 1995, after twenty-one yea rs of marriage. The

parties had
two children, Rodney Lee Wi lliams, Jr. (“Rodney ”) and Alesha Lee Williams (“Alesha”), twins, who

were twenty years old at the time of the d iv orce. Rodney was in college at The University of Ten nessee at Knoxville. Alesha, who had a baby, lived at home with Wife. Wi fe earne d approximately

$20,000 a year from a part-time job as a pharmaceutical salesperson. Husband earned approximately $143,419.13 per year as a sales manager at a car dealership. Prior to the divorce, the parties entered into a marital dissolut ion settlement agreement (“agreement”). This agreement, with the exception of one provision relating to life insurance, was ultimately

incorporated

into the parties’ final decree of divorce. The agreement provided for spousal

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support as follows:

The parties acknowledge and agree that the husband has the ability to pay and the wife has the present and future need for spous al support until her death or remarriage, based, in part, on the relevant cr

iteria set forth

at T.C.A. 36-5-101(d) (1) (A-L), including, but no t limited to, the duration of the marriage and the relative future health and earning capacities of the parties. Therefore, the parties agree that, in the event of the separation and/or divorce, the husband shall pay t

he wife the total c

ash sum o f n ot less than Four Thousand Dollars ($4,000) per

month as alimony in futuro , until the death or remarriage of the wife.

The agreement

provided that the p

arties’ liquid ass

ets be divided 60% t

o Wife and 40% to Husband. The agreement contained no provision on the payment of tuition and school expenses for either child. After the divor ce, Wife assu med the responsibility of paying Rodney’s college tuition and expenses, of

supporting Alesha and the parties’ grandchild, and of assisting Alesha in completing her training as a licensed practical nurse. On January 20, 1998, Husband filed a petition to modify the award of alimony, arguing that there had been a substa

ntial and materia

l change in circu

mstances suffici

ent to justify a decrea

se in his alimony obligation. A hearing was held on the petition on January 20, 1999. Husband argued that Wife had inc

reased her inco

me by working full-tim

e instead of part-time, had saved from her earnings and had earned interest on her savings. He also argued that Wife’s expenseshad decreased after Rodney’s graduation from college, and noted that

Alesha was expected shortly to complete her nursing education. At trial, Wife ackn

owledged that in 19

98 she had grossed

$61,778 from h er full-time position as a pharmaceutical salesperson, and that in 1997 she had ear

ned approximatel

y $7500 in interest on her savings account. She did not dispute that she no longer had the expense of Rodney’s college tuition. Husband also argued that his ability to pay the agreed-upon level of alimony had

decreased, due to the additional e

xpenses he had inc

urred with

the birth of a new child, and his recent decline in income. Husband testified that his income had been $165,149 in 1995, $142,221 in 1996, $122,722 in 1997, and $90,472 in 1998. Husband testified that he was unemployed at the time of the hearing. He acknowledged, however, that his new wife earned between $50,000 and $60,000 per year, that he and his wife had reported a combined income of $174,088 in 1997, and that he had been able to meet

his alimony obligations to date without having to alter his lifestyle. He admitted that he had no immed

iate plans to sell hi

s $290,000 home, either of his two vehicles, or his boats. On February 3, 1999, the trial court issued anorder reducing Husband’s alimony obligation
to $2500 per

month. The trial court found that Wife’s increase in income, combined with the decrease in her expenses due to the son’s graduation from college and the daughter’s maturation, was

a material changein circumstances justifying the decrease in alimony. The trial court did not base its finding of a substantial and material change in circumstances on Husband’s current unemployment
, stating that it assume d that Husband woul

d quickly find anoth

er job, and that his1 On February 11, 1999 Wife’s attorney filed a motion to admit post-judgment evidence
, seeking to introduce evidence, inter alia , that immed iately after the trial Husband took his new family for a vacation in Florida, and that as soon as he retur ned to Nashville, Husband began working at Beaman Automotive Group, on February 1, 1999. Husba n d’s counsel protested the

a dmission of this post-judgment evidence, arguing that it was irrelevant since the trial court ha d stated that its finding of a substantial and ma

terial change in

circums ta nces was not based on Husband’s unemployment. The trial judge commen

ted that th

e po st-judgment evide

nce simply confirmed

her assumption tha

t Husband would not r

emain unemployed for long, and denied Wife’s motion.



### -3- income would remain

at essentially the level it was at the time of the divorce. 1 The trial court’s order
states:

It

appears to the Court from an examination of the records, evidence presented to the Court, and the testimony of the parties that there has been a material and substantial chan ge in the circumstances of Cathy Williams that would warrant a reduction in alimony payable to her. The Courtfind [sic] suchmaterial and substantial changes in circumstances
to be a substantial increase in the income of Cathy Williams and a substantial decre asein the expenses of Cathy Williams, particularly the graduation of th e parties’ son from college and thematuration of the p arties’ daughter who is nearing completion of her education.

From this order, Wi

fe now appeals. Wife argues on appeal that the preponderance of the evidence d oes not support the trial court’s finding of a material and su bstantial change in circumstance

s sufficient to just

ify the decreas

e in alimony. Wife con

tends that, under T

ennessee case

law, Husband is re

quired to show that

th e change in circumstances is permanent, and that it was not within the contemplation of the parties at the time of the divorce. She asserts that the changes cited by Husband, the son’s graduation from col lege and Wife ’s increased income due to full-time work, were within the contemplation of the parties at the time

of the divorce, and that Husband’s unemployment was temporary. Wife asks that this Court reverse the

trial court’s dec

ision and reinstate

the $4000 per month

alimony award. She also asks that she b

e awarded her a

ttorney’s fees a

nd costs for the ap

peal. Husband argues that neither party anticipated Wife’s substantial increase in income, or Husband’s loss of employment, at the time of the divorce decree. Husband asserts, therefore, that the trial court appro

priately reduce

d his alimony obligati

on since Wife had

a greater incom

e a nd fewer needs, whil

e Husban d had a reduced ability to pay. Husband argues, however, that the trial
court did not sufficiently reduceWife’s alimony award. Husband contends that an award of $2500 per month exceeds Wife’s current needs and leaves her with a wi ndfall. Husband a sks that this Courtfurther reduce Wife’s alimony to $1500 or less per month, and deny her request for attorney’s fees. Our

review of this case is governed by Rule 13(d) of the Tennessee Rules of A ppe llate Procedure, which states that appellate reviewof the findings of fact by the trial court shall be de novo

### -4-

on the record, ac

comp ani ed by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). Tennessee Code Annotated § 36-5-101 (a)(1) provides that a court may increase or

decrease the amount of

alimony awarded

in a divorce “only

upon a showing of substantial and material change in circumstances. ” Tenn. Code Ann. § 36-5-101(a)(1 ) (Supp.1999). The burden to

show substantial and material change of circumstances falls on the partyseeking modification of the award. Sanella

v. Sanella , 993 S.W.2d 73, 76 (Tenn. Ct. App. 1999); Elliot v. Elliot , 825 S.W.2d 87, 90 (Tenn. Ct. App. 1991); Seal v. Seal , 802 S.W.2d 617, 620 (Tenn. Ct. App. 1990). To be considered substantial and material, the change

in circumstances must have occurred after the entry of the divorce decree, and must not have been anticipated bythe parties at the time of the divorce. McCarty v. McCarty
, 863 S.W.2d 716, 719 (

Tenn. Ct. App. 1992) ; Eliot , 825 S.W.2d at 90; Seal , 802 S.W.2d at 621. An increase in inco

me by an alimony recipien t is not enough, witho

ut more, to warra

nt a reduction in alimony. See McCarty
, 863 S.W.2d at 720 (citing Norvell v. Norve ll , 805 S.W.2d 772, 774-75 (Tenn. Ct. App. 199 0); Seal v. Seal
, 802 S.W.2d 617, 620 ( Tenn. Ct. App. 1990) ; Jones v. Jones
, 784 S.W.2d 349, 353-54 (Tenn. Ct. App. 1989); Threadgill v. Threadgill

, 740 S.W.2d 419, 423-24 (Tenn. Ct. App. 1987); Dodd v. Dodd , 737 S.W.2d 286, 288-89 (Tenn. Ct. App. 1987)). See also Sanella
, 993 S.W.2d at 76; Elliot , 825 S.W.2d at 91. In McCarty , the wife’s income increased substantiall

y after t he divorce, fro

m $3000 to $43,000 pe

r year, due to he

r move from part-

time to ful l- time employment and the interest she received from the investment of assets received in the divorce. McCarty , 863 S.W.2d at 720. The husband c

ited the wife’s in

crease in income as one of the factors to support his petition to terminate his alimony obligations. Id. at 719. The trial court found that there had been

a substantial and m

aterial change

in circumstances and reduced the wife’s alimony paymentsfrom $2,200 to $1,700 per month. This Court reversed, finding that there had not been a substantial and material cha nge in circumstan

ces, wit hi n the meaning of Tenn. Code Ann. § 36-5- 101(a)(1), sufficient to warrant the reduction in alimony. Id. at 720. The McCarty court discussed the wife’s increased income:

An alimony rec ipi ent’s income alone does not warrant a reduction in the husband’s alimony obligations. Although the need of the spouse is one of the primary factors in determining the proper amount of alimony, modification of alimony based solelyon a wife’s incre

ased earnings is n

ot proper u nless the husband introduces

ev idence indicating that the amount of alimony initially awarded was based upon a presumpt i on that the wife would not continue to increase her income through the pursuit of her career.

Id. (citations omitted). Despite the husband’s contention that he had not known that

the wife would
return to work full-time after the divorce, this Court found that it was “suffic

ientlyforeseeable” that she would do so, and that the wife’s increase in income did not support a reduction in alimony. Id. The Court also foun d that the w ife’s interest income from property she received in the division of marital property “is not a sufficient basis on which to reduce alimony payments because the appellee has not produced any evidence

to indicate that this interest income was unanticipated or unforeseen.” Id. In this case, as in McCarty , Husband has introduced no evidence to show that Wife’s move
to full-time employme

nt, with its corresponding increase in salary, was unanticipated by the parties

### -5-

at the time of the div

o rce decree. The property agreement between the parties conta ins nothing indicating that Husband’s ag reement to pay Wi

fe $4000 per month

in alimony was predicated on the assumption that Wife would continue to work only part-time. Likewise, there is no evidence that the parties did not anticipate that Wife would receive interest from her savings. Husband argues that the fact that Wife has been able to increase her savings and retirement
accounts since the time of th

e parties’ divor

ce demonstrates

that she no longer n

eeds $4000 per mon

th in alimony, and is a sufficient basis fo r affirming the trial court’s reduction in the alimony award. At trial, Wife testified that she had rece ived $176,000 as he r 60% share of the

parties’ proper

ty division in the divorce. She used $42,000 to buy a lot upon which to build a modest house, and placed the rest in savings. She stated that she cu rrently had $168,

000 in her savings account. Wife acknowledged

that she had been able to s ave a portion of h

er income to add to

her savings acc

ount, and that her job provi de d her with a retirement plan. However, had the parties remained married, Wife would have been able to save money and plan for retirement. The record contains no evidence that Wife “is now able to enjoy a higher standard of living now than before the divorce.” McCarty
, 863 S.W.2d at 720. We find that Wife’s savings do not support a finding of a substantial and material change in circu

mstances. The trial court also cited the decrease in Wife’s expenses, due to Rodney’s graduation from college and Ales ha’s maturation and completion of her education, in support of the finding of a sub stantial and material change in circumstances. However, the record contains no evidence that either of these events w

ere unanticipat

ed at the time

the parties entered into the marital dissolution agreement. Husband argues that he i s en titled to a reducti on in his alimony oblig

ation because of

his decreased income and increased

responsibilities, both of

which have reduced his ability to pay. The trial court stated that i

t a ssumed, from Husban d’s employment history, that Husband’s unemployment

was temporary, and

that he would soon be earning substantially the same amount as he earned at the time of the divorce. The evidence does not preponderate against this finding. Moreover, th e increased financial responsibilities cited by Husband were all voluntarily assumed, a nd an obligor spouse may not “avoid paying support by volun tarily as suming new financial obligations.” See Sanella v. Sanella
, 993 S.W.2d 73, 76 (Tenn. Ct. App. 1999); See also Givler v. Givler , 964 S.W.2d 902, 908 (Tenn. Ct. App.

1997); Elliot v. Elliot , 825 S.W.2d 87, 91 (T enn. Ct. App. 1991) ; Jones v. Jones
, 784 S.W.2d 349, 352 (Tenn. Ct. App. 1989). Therefore , neither Husband’s temporary unemployment nor his increased financial responsibilities support a reduction in alimony. Consequently, we f

ind that the prepon

derance of the

evidence does no

t su pport the tri al court’s finding of a substantial and material change in circumstances, justifying a d ecrease in alimony. The decision of the trial court is rev ersed. Wife’s $

4000 per month alimo

ny is reinstated, retroactiveto February 1999, and the cause is rema nded for further

proceedings con

sistent with this Opinion. Wife seeks her attorney’s fees and costsfor this appeal. We find Wife’s motion well-taken. See Seal v. Seal , 802 S.W.2d 617, 624 (Tenn. Ct. App. 1990)(ho lding that wi fe was entitled to attorney’s fees incurred in defending her entitlement to alimony). Consequently, we grant Wife’s request for attorney’s fees and costs on appeal, and remand the cause to the trial court to hear proof and set a reason

able attorney’s

fee for this appe

al. The decision of the trial cour t is re versed. The cau

se is remanded to t

he trial court to determine a schedule for p ayment of the bac

k alimony, as well a

s a determinati

on o f Wife’s

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reasonable

attorney’s fees and costs on appeal. Costs are assessed against the Appellee, Rodney Lee Williams, for which execution may issue, if necessary.

HOLLY KIRBY LILLARD, J.
W. FRANK CRAW

FORD, P. J., W.

S. ALAN E. HIGHERS, J.