FILED

January 27, 1999

Cecil W. Crowson

Appellate Court 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/Appellant. )

APPEAL FROM THE CIRCUIT 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 & Yarbrough Murfreesboro, Tennessee

Nashville, Tennessee

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
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O P I N I O N

This appeal concerns a husband’s efforts to terminate his spousal support

obligation following a twenty-year marriage. Shortly after his retirement, the

husband filed a petition in the Circuit Court for Davidson County seeking to

terminate his spousal support obligation because of the decrease in his income and

the post-divorce increase in his former wife’s income. The trial court denied the

husband’s petition after concluding that his retirement did not affect his ability to pay

spousal support and that his former wife continued to need support. The husband has

appealed. We agree with the trial court that the husband has not shown a substantial,

material change in circumstances sufficient to justify terminating his spousal support

obligation. Therefore, we affirm the denial of the husband’s motion to terminate his

spousal support obligation. 

I.

Joseph John Sannella and Edith Carmer Sannella, now both in their late 60s,

were divorced in 1976 after over twenty years of marriage. The Circuit Court for

Davidson County awarded Ms. Sannella a divorce based on cruel and inhuman

treatment. The parties had four children, and trial court awarded custody of the two

youngest children to Ms. Sannella and permitted the two oldest children to choose

with which parent they desired to live. These children chose to live with Ms.

Sannella.

Dr. Sannella established a successful practice as a pathologist in Nashville

from which he earned in excess of $80,000 per year. Ms. Sannella did not work

outside the home during the marriage even though she had a master of science degree

in bacteriology and immunology. Rather, she stayed at home attending to her tasks

as a wife and mother. After considering the factors relevant to an award of spousal

support, the trial court directed Dr. Sannella to pay Ms. Sannella $1,250 per month

in long-term spousal support until her death or remarriage.

Ms. Sannella remained in Nashville following the divorce and obtained a job

that paid $6 per hour as a microbiologist with the State of Tennessee. Thereafter, she

obtained her present employment at the Vanderbilt University School of Medicine
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where she earns approximately $38,000 per year. Ms. Sannella has lived frugally

since the divorce. She has used most of her discretionary income to build up her

retirement fund. She also cares for one of the parties’ adult children who suffers from

psychological problems and who has moved in with her. Her house has fallen into

such a state of disrepair that the house, appraised at $65,000, is worth less than the

lot which would be worth $75,000 to $90,000 if the house were removed. 

Dr. Sannella remarried following the divorce and moved to Utah. He

established a successful solo practice and also co-founded Med-Arrow, Inc., an air

ambulance service. His combined annual income during this time was between

$115,000 and $144,000. In July 1985, 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

a condominium there. However, when he failed to find suitable employment 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 retired in August 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. Sannella married for the third time and moved to

Apollo Beach, Florida where his new wife was employed as the nursing director at

a nearby hospital earning approximately $65,000 annually. One of his sons, who is

mildly retarded, lives with him. Even though Dr. Sannella no longer actively

practices as a pathologist, he and his present wife live a comfortable life in Florida.

They own a $185,000 home with a pool and a $60,000 sailboat docked nearby, as

well as a condominium. Their joint income tax return for 1995 stated that their gross

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 material change in financial

circumstances rendered him unable to meet his alimony obligation and that Ms.

Sannella no longer needed spousal support. Following a bench trial, the judge found

Dr. Sannella’s arguments unpersuasive and denied the petition. Dr. Sannella has

appealed.

II.
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Dr. Sannella argues that the trial court erred by determining that his decreased

income, coupled with Ms. Sannella’s improved financial condition following the

divorce, did not warrant terminating his support obligation. He specifically points

to his recent retirement and Ms. Sannella’s increased net worth and record of steady

employment.

A.

Courts cannot modify or terminate a spousal support award unless there has

been a substantial, material change in circumstances since the entry of the previous

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. Cranford, 772

S.W.2d 48, 50 (Tenn. Ct. App. 1989). In order to be material, a change in

circumstances must have been unforeseeable at the time of the decree. See McCarty

v. McCarty, 863 S.W.2d 716, 719 (Tenn. Ct. App. 1992); Elliot v. Elliot, 825 S.W.2d

87, 90 (Tenn. Ct. App. 1991). It must also affect the obligor spouse’s ability to pay

or the obligee spouse’s need for alimony. See Bowman v. Bowman, 863 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 substantial, material change in circumstances and that the

modification is warranted. See Elliot v. Elliot, 825 S.W.2d at 90; Seal v. Seal, 802

S.W.2d 617, 620 (Tenn. Ct. App. 1990). If the petitioner meets this burden, the court

then utilizes the same factors in Tenn. Code Ann. § 36-5-101(d)(1) (Supp. 1998) that

were considered in making the initial award to determine the appropriate

modification. See Brewer v. Brewer, 869 S.W.2d at 936; Norvell v. Norvell, 805

S.W.2d 772, 774 (Tenn. Ct. App. 1990). 

While Tenn. Code Ann. § 36-5-101(d)(1) permits the consideration of many

factors, the recipient spouse's demonstrated need for spousal support is the single

most important factor. See Cranford v. Cranford, 772 S.W.2d at 50; Lancaster v.

Lancaster, 671 S.W.2d 501, 503 (Tenn. Ct. App. 1984). The obligor spouse’s ability

to pay is another important factor. See Smith v. Smith, 912 S.W.2d 155, 159 (Tenn.

Ct. App. 1995). An alimony recipient’s increased income alone is not sufficient to
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warrant reducing or terminating support, see McCarty v. McCarty, 863 S.W.2d 716,

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

1990), nor may an obligor spouse avoid paying support by voluntarily assuming new

financial obligations. 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 and involve considering and

balancing numerous factors, we give wide latitude to the trial court’s discretion. See

Cranford v. Cranford, 772 S.W.2d at 50. We review a trial court’s decision

according to the familiar Tenn. R. App. P. 13(d) standard, 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 v. Cranford, 772 S.W.2d at 50;

Luna v. Luna, 718 S.W.2d 673, 675 (Tenn. Ct. App. 1986).

B.

The record in this case provides no basis to second-guess the trial court’s

denial of Dr. Sannella’s request to terminate his spousal support. When the parties

divorced, Dr. Sannella’s eventual retirement and Ms. Sannella’s re-entry into the

workforce were certainly foreseeable. After becoming a single parent with four

children, Ms. Sannella had little choice other than to enter the workforce to provide

immediate support for herself and her children and long-term support for herself. Ms.

Sannella needed to increase her net worth because she did not receive any portion of

Dr. Sannella’s retirement benefits in the divorce proceeding. Thus, the parties’

current circumstances are not the result of significant, unanticipated 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 support or Ms.

Sannella’s need for support. At the time of divorce, Dr. Sannella was earning

approximately $80,000 per year and had a net worth of approximately $59,000. His

earnings steadily rose during his career to a regular income of between $115,000 and

$144,000 in the 1990s. At the time of trial, his net worth had increased to $750,000,

including $265,000 in a 401-K account, $100,000 of stock in Med-Arrow, Inc.,
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$85,000 of equity in his marital residence, a $60,000 condominium, a $60,000

sailboat, $54,000 in his professional corporation, and other assets. 

Although Dr. Sannella is now retired, he still earns $2,500 a month from his

position with Med-Arrow, Inc. and his social security benefits. During the first

quarter of 1996, he paid himself only $3,500 from his professional corporation, even

though the corporation’s gross income for 1995 was $78,245, and its revenues as of

March 31, 1996, were $13,884. His joint checking account with his current wife

carried a $40,000 to $50,000 balance every month. Dr. Sannella could not explain

several large deposits made during early 1996, including two for approximately

$5,000 and $8,500, which could not be attributed to either his or his current wife’s

regular sources of income. 

Counting the support received from Dr. Sannella, Ms. Sannella receives $3,400

each month and has expenses of $3,543, creating a $134 monthly shortfall. Dr.

Sannella’s support payments constitute 36% of Ms. Sannella’s income. She has

managed to accumulate $296,000 in assets, including $50,000 inherited from her

mother, an insurance policy on Dr. Sannella’s life with an $87,000 cash surrender

value to provide for one of the parties’ children, a $43,000 individual retirement

account, and her Vanderbilt pension valued at $88,000. Ms. Sannella has incurred

a $28,000 debt to level the foundation of her house and plans to sell the house to

avoid incurring additional repair expenses. Ms. Sannella plans to work as long as

she can, but she will only be able to work until her seventieth birthday because of

Vanderbilt’s mandatory retirement policy. She also pointed out that her long absence

from the workforce has significantly decreased her social security benefits and that

she will be unable to support herself in retirement on her social security benefits

alone. 

Accordingly, we conclude that Dr. Sannella has failed to prove that the change

in circumstances is material enough to justify terminating his spousal support

obligation. His retirement from a lucrative medical practice, his purchase of a new

home, and his remarriage were voluntary decisions that have not rendered him unable

to continue to meet his support obligation. Under the facts of this case, Dr. Sannella

has failed to provide justification for terminating Ms. Sannella’s support.
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III.

Dr. Sannella also contends that the trial court erred by assessing $7,500 of Ms.

Sannella’s $9,670 in attorney’s fees against him. Ms. Sannella argues that the trial

court’s award was correct and furthermore that we should award her the attorney’s

fees she has incurred as a result of this appeal.

In a divorce action, an award of attorney’s fees is treated as alimony. See

Smith v. Smith, 912 S.W.2d at 161; Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn. Ct.

App. 1988). The decision to award attorney’s fees lies within the sound discretion

of the trial judge, see 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 court will not interfere

with the trial judge’s decision unless the evidence preponderates against it. See

Batson v. Batson, 769 S.W.2d 849, 862 (Tenn. Ct. App. 1988). A party is entitled

to attorney’s fees when he or she lacks sufficient funds to pay his or her legal

expenses or would find it necessary to deplete other assets to do so. 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 already suffers from a $134 monthly shortfall, does not have

sufficient funds to pay her attorney’s fees and could only do so by depleting other

assets. This is the fourth time that she has incurred legal expenses due to Dr.

Sannella’s unwillingness to pay his alimony obligation. We find no abuse of

discretion on the part of the trial judge in awarding Ms. Sannella her attorney’s fees.

For the same reasons, we also award Ms. Sannella her attorney’s fees associated with

this appeal. On remand, the trial court should hear proof and set a reasonable fee for

Ms. Sannella’s attorney’s services on appeal.

IV.

We affirm the order denying Dr. Sannella’s petition to terminate his spousal

support and remand the case to the trial court for further proceedings consistent with

this opinion. We tax the costs of this appeal to Joseph John Sannella and his surety

for which execution, if necessary, may issue. 
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_____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________________________

SAMUEL L. LEWIS, JUDGE

_________________________________

BEN H. CANTRELL, JUDGE