# FILED
January 27, 1999 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

EDITH CARMER SANNELLA, ) ) Plaintiff/Appellee, ) ) Davidson Circuit VS. ) No. 78390 ) JOSEPH JOHN SANNELLA, ) Appeal No. ) 01A01-9701-CV-00004 Defendant/Appel

lant. )

APPEAL FROM THE CIRCUI T COURT FOR DAVIDSON COUNTY AT NASHVILLE, TENNESSEE
THE HONORABLE MURIEL ROBINSON, JUDGE
For the Plaintiff/Appellee : For the Defendant /Appellant : John J. Hollins, Jr. Stephen W. Pate Hollins Wagster & Y

arbrough Murfreesboro, Tennessee Nashville, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appeal concerns a h usband’ s efforts to terminate his spousal support obligation

following a twenty-year marriage. Shortly after his r etirement, the husband filed a petition in the

Circuit Court for Davidson County seekin g to terminate his spousal support obliga tion becaus e of th e decrease in his in come and th e post-divorce increase in his f ormer wife’s inc

ome. The trial c

ourt denied the husband’s petition after conc luding that his retirement did not a ffect his ability to

pay spousal support and that his former wife continued to need suppor t. The husband has appealed. We agree with the trial cour t that the husband

has not shown a substant ial, material change in circumstances sufficient to justify terminating his spousal support obligation. Therefore, w

e affirm the denia

l of the husband’s moti

on to terminate his spousal support obligation.
I. JosephJohn Sannella and Ed ith Carmer Sanne

lla, now both in their

late 60s, were divorced in 1976 afte r over twenty year

s of marriage. T

he Circui t Court for Davidson County awarded Ms. Sa nnella a divorce based on cruel and inhuman treatment. The parties had f our children, and tr

ial court awarde

d custody of the two youngest children to Ms. Sa

nnella and permitte

d the two oldest childr

en to choose withwhich parent they desired to live. Thes e children chose to li ve with Ms. Sannella.
Dr. Sannella established a succe ssf ul practice as a pa

thologist in Nashville from which he earned in excess of $80,000 per year. Ms. Sannel la did not work outside the home during the marriage even though she had a master of science degree in bacteriology and imm

unology. Rather, s

he stayed at home atte

nding to her tasks as a wife and mother. After considering the factors relevant to an award of spousal support, the trial courtdirected Dr. S annella to pay Ms. Sannella $1,250 per month in long-term spousal support until her death or remarriage.
Ms. Sannella remaine

d in Nashville

following the divorc

e and obtained a

job thatpaid$6 per hour as a

microbiologist with t

he State of Tenne ssee. Thereaf ter, she obtained her present employm ent at the Vanderbi

ltUnivers ity School of Medicin e-3-

where sh e earns approximately $38,0 00 per year. Ms.Sannella has lived f rugally since the divorce. She has u sed most of her discretionary income to build up her retirement

fund. She also car

es for one of the

parties’ adult chil

dren who suffers f

rom psychological problems and who has moved in with her. Her house has fallen into such a sta te of disrepair tha t the house, appraised at $65,000, is wo rth less than the lot which would be wor th $75,000 to $90 ,000 if the house were rem oved.
Dr. Sann ella remarried followin g the divorce and mo ved to Utah. He established a succ ess ful solo practice a nd also co-founded Me

d-Arrow, Inc. , an air ambulance service. His co mbined annual in

come dur ing this time was between $115,000 and $144,000. In July 1 985, Dr. Sannella tried unsuccessfully to convince the court to lower his spousal support. When his second marriage ended in divorce in 1989, he

considered moving to Florida to be near his mother and even purchased acondominium there. However, when he fa iled t o find suitable employm ent in Florida, he decided to remain in Utah.
Dr. Sannella

scaled back his practice and began to work part-time in late 1994 and the early part of 1995. He officially retire d in Augu st 1994 because he was “tired,” because the work had become difficult, and because

he did not believe he was as sharp as he once had been. Dr. S annella married f or the third time and

moved to Apollo Beach, Florida where h is new wife was employed as the nursing director at anearby hospital ear

ning approximately

$65,000 annually. One of h is sons, who is mildly retarded, lives w ith him. Even though Dr. Sannella no longer actively practices as a pathologist, he and his present wife li

ve a comfortable

life in Florida. They own a $185,000 home w ith a pool and a $60,000 sailboat docked nearby, as well as a condominium. Their joint income tax return for 1995 s

tated that their gro ss income was $222,349.
On April 19,1995, Dr. Sannella filed a petition to terminate his spousal support obligation. He alleged that a permanent and mate

rial change in financi al circumstances r ende red him unable to mee t his alimony obligation a nd that Ms. Sannella no longer needed spousa

l support. Following

a bench trial,the judge found Dr. Sannella’s arguments unpersuasive an d d enied the petition. Dr. Sannella has appealed. II.-4- Dr. Sannella argues tha

t the trial court er

red by determining

that his decreased income, coupled with Ms. Sa nnella’s improved f

inancial condi

tio n following the divorce, did not warrant te rminat ing his support obligation. He specifically points to his recent

retirement and Ms. Sannella’s increased net worth and reco

rd of steady employment.
A.
Courts cannot modif

y or terminate a spousal support award unless there has been a substantial, material change in circumstances since the entry of the pre vious support decree. See Tenn. Code Ann.§ 36-5-101 (a)(1 ) (Supp. 1997); Brewer v. Brewer , 869 S.W.2d 928, 935 (Tenn. Ct. App . 1993); Cranford v. Cranfo rd , 77 2 S.W. 2d 48 , 50 (Tenn. Ct.App. 1989). In or der to be material , a change in circumstances must have

been unforeseeable at the t ime of the decree. See McCarty
v. McCarty , 863 S.W.2d 716, 719 (Tenn. Ct. A

pp. 1992); Elliot v. Elliot

, 825 S.W.2d 87, 90 (Tenn. Ct. App. 1991). It mu st also affect the obligor spouse’s ability to pay or the obligee spouse’s need for alimony. See Bowman v. B owman , 863 S.W.2d 563, 568 (Tenn. Ct. App. 1991 ).
The p arty se eking modification of a support obligation bea rs the burden of proving there has be en a s ubstantial, mater ial change in circum

stances and that the modification

is warranted. See Elliot v. El liot , 825 S.W.2d at 90 ; Seal v. Seal , 8 02 S.W.2d 617, 620 (Tenn. Ct. App. 1990 ). If the petitioner meets this burden, the court then utilizes the same factors i n Tenn. Code Ann.§ 36-5-101(d)(1) (Supp. 1998) that were considered in making t he initial award to

determine the appr

opriate modification. See Brewer v. Brewer , 869 S.W.2d at 936; Norvell v. Norvel

l , 805 S.W.2d 772, 774 (Tenn. Ct. Ap p. 1990).
WhileTenn. Code Ann. § 36-5-1 01(d)(1) permits th e consideration of m

any fac tors, the recipient spouse 's demonstrated nee d for spousal support is the single
m ost important factor. See Cranford v. Cranf ord , 772 S.W.2d at 50 ; Lancaster v. Lancaster , 671 S.W.2d 501, 503(Tenn. Ct. App. 1984). The obligor s pouse’s ability to pay is another impo rtant factor. See Smith v. Smith , 912 S.W.2d 155, 159 ( Tenn. Ct. App. 1995). An alimony recipient’s increased income a lone is not sufficient

to-5-

warrant reducing or terminat ing support, see McCarty v. M cCarty , 863 S.W.2d 716, 720 (Tenn. Ct. App

. 1992); Norvell v. Norve ll , 805 S.W.2d 772, 775 (Tenn. Ct. App

. 1990), nor may an obligor spouse avoid paying support by voluntarily assuming new financial obligat ions. See Elliot v. 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 a

nd invo l ve considering and balancingnumerous factors, we give wide

latitude to the trial court’s d iscretion. See Cranford v. Cranford

, 772 S.W.2d at 50. W e revie w a trial court’s decision accordingto the familiar

Tenn. R. App. P. 13(d) standar d, and we will uphold the trial court’s decision unless it

is based on an imprope

r application

of the law or is aga

inst the preponderance of the evidence. See Cranford v. Cranf ord , 772 S.W. 2d at 50; Luna v. Luna , 718 S.W.2d 673, 675 (Tenn. Ct. App. 1986).
B.

T he recor d in this case provides no basis to second-guess the trial court’s denial of Dr. Sannella’s

request to termina

te his spousal support. When the parties d ivorce d, Dr. Sannella’s

eventual retirem

ent and Ms. Sannell

a’s re-entry into t

he workforce were certa

inly fore seeable. After

becoming a single par

ent with four children, Ms. Sannella had little choice other than to enter the wo

rkforce to provide immediate

support for herself

and her children and

long-term support fo

r herself. Ms. Sannella needed to increase her net w orth because she did n

ot receive any porti

on of Dr. Sannella’s retir

ement benefits

in t he divorce proceedi ng. Thus, the par

ties’ current circumstances ar

e not the result of sig

nificant, unantici

pated changes in circumstances.
We have also determined that neither Dr. Sannella’s voluntary retirement nor Ms. Sannella’s frugality affects Dr. Sannella’s ability to pay spousal supportor Ms. Sannella’s need for support. At the time of divorce, Dr. Sannella was ea rn ing approximately

$80,000 per year and

had a net worth of a

pproximately $59,000.

His earnings steadily rose during h is career to a

regular income of between$115,000 and $144,000 in the 1990s. At the time of trial, his net worth had increase

d to $750,000, includi n g $265,000 in a 401 -K account, $100,000 of stock in Med-Arrow, Inc .,-6-

$85,000 of e quity i n his marital reside nce, a $60,000 condom

inium, a $60,000 sailboat, $54,000 in his profession al corporation, and o ther assets. Althoug h Dr. Sannella is now retired, he still earns $2,500

a month from his positionwith Med-Arrow , Inc. and his soci al security benefi

ts. During the first quarter of 1996, he paid himse

lf only $3,500 from his

professional corporation, even though the corporation’s gross income for 1995 was $78,245, and it

s revenues as of March 31, 199 6, were $13,884. His joint checking account with his current wife carrieda $40,000 to $50,000 balance every month. Dr. Sa nnella could not explain several large deposits made during early 1996, including two fo r ap proximately $5,000 and $8,50 0, which could not be attributed to either his or his current wife’s regular sources of in come. Counting the support received from Dr. Sannella, Ms. Sannella r eceives $3,40 0 each month and has expenses of $3 ,543, c reating a $134 monthly shortfall. Dr. San nella ’s support payments constitute 36% of Ms. Sannella’s income. She has managed to accumulate $296,000 in assets, including $50,000 inheri ted f rom her mother, an insurance policy on Dr. Sannella’s life with an $87,000 cash surrender value to provide for one of the parties’ childr en, a $43,000

individual retirement account, an d her Vanderbilt pension valued at $88,000. Ms. Sannella has incurred
a$28,000 debt to level the foundation of her house a nd plans to sell the house to avoidincurring additional repair expenses. Ms. Sannella plans to work as long as she can, but she will only be able to work until her s eventie th birthday because of Vanderbilt’s mandatory retire ment policy. She also pointed out that her long absence from the workfor

ce has significantly

decreased her soc

ial security

benefits and that she w ill be unable to support herself in retire

ment on her social se

curity b enefit s alone. Accordingly, we conclude that Dr. Sannella ha

s failed to prove tha

t the change in circumstances is m

ateria l enough to justify terminating his spousal support obligation. His retirement from a lucrative medicalpractice, his pur chaseof a new home, and his remarriage

were voluntary dec

isions that have not re

ndered him unable to continue to meet his su pport obligation. Und

er thefacts of this case , Dr. Sannella has failed to provide

justification for te

rminating Ms. Sanne

lla’s support.-7- III.
Dr. Sannella also conte

nds that the trial cou

rt erred by

assessing $7,500 of Ms

. Sannella’s $9,670 i

n attorney’s fees against him. Ms. Sannella argues that the trial court’s award was corr

ect and furthermor

e that we should award h er the at torney’s fees she has incurr

ed as a result of this

appeal.

In a divorce action,

an award of attor

ney’s fees is trea ted as alimony. See Smith v. Smith , 912 S.W.2d at 16 1; Gilliam v. Gilliam , 776 S.W.2d 81, 86 (Tenn. Ct. App. 1988). Th e deci sion to award attor ney’s fees lies wi

thin the sound discretio

n of the trial judge, s ee Aaron v. Aaron , 909 S.W.2d 408, 411 (Tenn. 1995); Brown v. Brown , 913 S.W.2d 163, 170 (Tenn. Ct. App . 1994), and this cou rt will not interfere with th e trial judge’s decis ion unless the evi dence preponderates against it. See Batson v. Batson , 769 S.W.2d 849, 862 (T en n. Ct. App. 1988). A party is entitled to attorney’s fees when he or she l acks sufficient funds to pay his or her legal expenses or would find it necessary to deplete othe r assets to do s o. See Brown v. Brown , 913 S.W.2d at 170; Kincaid v. Kincaid , 912 S.W.2d

140, 144 (Tenn. Ct. App. 1995).
Ms. Sannella, who al ready suffers fr

om a $134 month ly shortfall, does no t have sufficient funds to pay her attor

ney’s fees and could

only do so by depleting other as sets. This is the fourth ti me that she has incur

red legal expenses due to Dr

. Sannella’s unwillingness to pay his alimony obligati on. We find no abuse

of discretion on the part of the trial ju

dge inawarding Ms. Sa

nnella her attorney ’s fees. For the same reasons, we also award Ms. Sannella her attorney’s feesassociated with this appeal. On remand, the trial court should hear proof and set a reasonable

fee for Ms. Sannella’s at

torney’s services o

n appeal.
IV.
We affirm the order denying Dr. Sannella’ s petition to terminate his spousal support and remand the

case to the trial c

ourt for further pr

oceedings consistent

with this opinion. We tax the costs of this a ppeal to Joseph

John Sannella and his s

urety for which execution, i f necessary, may issue.-8- _____________________________ WILLIAM C. KOCH, JR., JUDGE
CONCUR:

_________________________________ SAMUEL L. LEWIS, JUDGE

_________________________________ BEN H. CANTRELL, JUDGE