IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 25, 2015 Session

AMELIA JANE LANGLO V. ROGER ELDAR LANGLO

Appeal from the Circuit Court for Bradley County

No. V09323 Hon. Lawrence H. Puckett, Judge

No. E2014-00548-COA-R3-CV-FILED-APRIL 20, 2015

This appeal arises from the parties’ post-divorce issues. The mother filed a petition for

contempt for failure to remit alimony. The father responded with a petition to reduce his

alimony obligation. He later orally requested to modify his child support obligation.

Following a hearing, the trial court denied the mother’s petition for contempt, the father’s

petition to reduce his alimony obligation, and the father’s request to reduce his child support

obligation. The father appeals. We affirm the decision of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D. SUSANO,

JR., C.J., and D. MICHAEL SWINEY, J., joined.

Joshua H. Jenne, Cleveland, Tennessee, for the appellant, Roger Eldar Langlo.

Jerry Hoffer, Cleveland, Tennessee, for the appellee, Amelia Jane Langlo.

OPINION

I. BACKGROUND

The parties, Amelia Jane Langlo (“Mother”) and Roger Eldar Langlo (“Father”) were

divorced by agreement in November 2009. Pursuant to the agreement, Father was tasked

with remitting approximately $1,000 per month in child support for their minor child. In

setting his support obligation, the parties completed a child support worksheet that indicated

that Mother did not have an income, while Father had an income of approximately $8,316

per month. Following several hearings, Father was also tasked with remitting rehabilitative
alimony once the marital residence was sold. Specifically, Father was required to remit

$1,500 per month for 12 months and then $1,000 per month for an additional 36 months.

The court conditioned the amount of the spousal support obligation on Mother’s living

arrangement, namely Father’s obligation for the first 12 months would be reduced to $1,000

per month if Mother lived with her parents.

On April 10, 2013, Mother filed a petition for contempt, alleging that Father had only

remitted $500 in spousalsupport even though she was entitled to $1,500 per month following

the sale of the marital residence in September 2012. She acknowledged that the child support

payments were current through a wage assignment but asserted that she only received

payment from one of his paychecks each month. She requested a wage assignment from each

paycheck for future alimony and child support payments through either Father’s employer

or the State of Tennessee Child Support Services Division. She also sought permission to

claim the minor child as an exemption for tax purposes each year.

Father responded by denying wrongdoing and asserting that his spousal support

obligation was limited to $1,000 per month because Mother lived with her parents. He also

filed a counter-petition to modify his spousal support obligation, arguing that Mother had

failed to make a “measurable effort to rehabilitate herself” or strive for self-sufficiency;

therefore, she was not entitled to further payment from him. Thereafter, he orally requested

modification of his child support obligation.

On January 24, 2014, a hearing was held on the petition for contempt and the

corresponding counter-petitions for modification of the alimony and child support

obligations. Mother, who was 46 years old at the time of the hearing, claimed that she did

not receive any payments from Father until February 2013. She claimed that he only paid

$1,000 per month following the initial payment.

Mother testified that she moved to Texas in December 2011. She lived with her

parents in their residence when she first moved. Since May 2012, she lived in a home owned

by her parents that was approximately 30 minutes from their residence. She claimed that she

was tasked with remitting $1,500 in rent each month. She stated that her parents allowed her

to remain in the residence even though she was unable to regularly provide rental payments.

She said that she attempted to pay for expenses related to the house when possible. She

supported herself with a credit card and money she borrowed from her father.

Mother acknowledged that her 2012 tax return reflected an adjusted gross income of

$71,500. She asserted that she did not work in 2012 and that the income reflected on her tax

return reflected dividends and capital gains on her inheritance account. She stated that she

withdrew everything from her account to pay her medical bills and that she was required to

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file a tax return to reflect the withdrawal. She claimed that she did not receive a regular

income because she was unemployed and unable to work due to her medical condition.

Mother explained that she had bilateral knee replacement surgery in 2008. Since that

time, she had ongoing health issues and complications. She underwent surgery on her foot

in November 2012, and she recently met with a knee specialist, who advised her that both

of her knees would need “revisions.” He also recommended bariatric surgery to lower her

weight before she could receive the knee procedures.

Mother testified she had been unable to maintain regular, full-time employment since

2008. She stated that in December 2011, she worked for her father for a short period of time

until her health declined again. She stated that she also acquired a position at an arts and

crafts store in 2013 but that she quit shortly thereafter when they asked her to work in the

early morning hours, which would require her to leave her minor child without supervision.

The record reflects that she received approximately $81 in 2013 for her short-term

employment at the store. Mother claimed that she did not qualify for disability benefits.

Mother still sought employment despite her declining health. She interviewed with

Re/Max and was offered the position, pending her completion of the licensing requirements.

However, she was unable to pursue the position because of her knee issues. She was

scheduled to interview at a company when she returned to Texas following the hearing. She

had applied for several other employment positions but had not received any other

interviews. She opined that she was not a competitive applicant because she did not have a

college degree or work experience. She needed approximately 15 credit hours to receive her

bachelor’s degree.

Father testified that he simply did not have enough money to regularly remit his

alimony payments until February 2013. He explained that he paid for the majority of the

expenses during the separation and that he was reliant upon credit cards and lived in an

airport hangar during that time. He stated that he eventually secured a rental apartment and

lived with a roommate until August 2013. He asserted that he paid for some of Mother’s

medical expenses and for half of the down payment for the minor child’s braces. He also

regularly paid for travel expenses to facilitate his visitation with the minor child. He stated

that his child support obligation was automatically deducted from his paycheck and that he

begin remitting alimony as soon as he had enough money. He testified that he currently lived

with his fiancé and that he was responsible for paying approximately half of her $1,400

mortgage payment. He conceded that he took two vacations with his fiancé but explained

that he used “leftover money from a garage sale” to fund his portion of the trips.

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Father testified that he did not know Mother had access to the funds that were

reflected on her 2012 tax return. He related that his 2012 tax return reflected an adjusted

gross income of $89,629. He stated that since 2012, he may have received a nominal raise

in the amount of $1,200 per year but that his income remained relatively the same. He

admitted that he continued contributing to his 401(k) even when he was unable to afford his

alimony payments.

Following the hearing, the trial court did not hold Father in contempt. However, the

court denied Father’s petition for modification of his spousal support obligation, finding that

he had failed to establish a substantial and material change in circumstances. The court also

found that Father was responsible for remitting $1,500 per month for the first 12 months.

The court specifically held that Mother did not live with her parents during that time period.

Relative to child support, the court held that Mother was permitted to claim the minor child

on her tax return each year as an exemption. The court reserved ruling on Father’s oral

request for modification of his child support obligation, finding that he had failed to present

any evidence concerning Mother’s current income. This timely appeal followed.

II. ISSUES

We restate the issues raised on appeal as follows:

A. Whether the court erred in denying the petition to modify the spousal

support obligation.

B. Whether the court erred in calculating the spousal support arrearage.

C. Whether the court erred in refusing to modify the child support obligation.

D. Whether either party is entitled to attorney fees on appeal.

III. STANDARD OF REVIEW

On appeal, the factual findings of the trial court are accorded a presumption of

correctness and will not be overturned unless the evidence preponderates against them. See

Tenn. R. App. P. 13(d). The trial court’s conclusions of law are subject to a de novo review

with no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn.

2008);Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Mixed

questions of law and fact are reviewed de novo with no presumption of correctness; however,

appellate courts have “great latitude to determine whether findings as to mixed questions of

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fact and law made by the trial court are sustained by probative evidence on appeal.” Aaron

v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995).

“[M]odification of a spousal support award is ‘factually driven and calls for a careful

balancing of numerous factors.”’ Wiser v. Wiser, 339 S.W.3d 1, 11 (Tenn. Ct. App. 2010)

(quoting Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001)). “Generally, the trial court’s

decision on whether to modify spousal support is not altered on appeal unless the trial court

abused its discretion.” Id. (citing Goodman v. Goodman, 8 S.W.3d 289, 293 (Tenn. Ct. App.

1999)). “A trial court abuses its discretion only when it ‘applie[s] an incorrect legal standard

or reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the

party complaining.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v.

Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). If a discretionary decision is within a range of

acceptable alternatives, we will not substitute our judgment for that of the trial court simply

because we may have chosen a different alternative. White v. Vanderbilt Univ., 21 S.W.3d

215, 223 (Tenn. Ct. App. 1999). “Consequently, when reviewing . . . an alimony

determination, the appellate court should presume that the decision is correct and should

review the evidence in the light most favorable to the decision.” Gonsewski v. Gonsewski,

350 S.W.3d 99, 105-06 (Tenn. 2011) (citations omitted).

Modification of child support in this state is governed by Tennessee Code Annotated

section 36-5-101(g). Kaplan v. Bugalla, 188 S.W.3d 632, 636 (Tenn. 2006). “In making the

court’s determination concerning the amount of support of any minor child or children of the

parties, the court shall apply, as a rebuttable presumption, the child support guidelines” that

are promulgated by the Tennessee Department of Human Services Child Support Service

Division. Tenn. Code Ann. § 36-5-101(e)(1)(A); see generally Tenn. Comp. R. & Regs.

1240-2-4. Trial courts have discretion to set the amount of child support within the strictures

of the Guidelines promulgated by the Tennessee Department of Human Services.

Accordingly, we review a trial court’s decision involving child support for an abuse of

discretion. State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000).

In reviewing the trial court’s decision we consider (1) whether the decision has a sufficient

evidentiary foundation, (2) whether the trial court correctly identified and properly applied

the appropriate legal principles, and (3) whether the decision is within the range of

acceptable alternatives. Id.

IV. DISCUSSION

A.

Father argues that the trial court erred in refusing to modify his spousal support

obligation. He asserts that Mother was not entitled to further support because she failed to

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strive toward self-sufficiency. He notes that she voluntarily quit at least two jobs and that

she refused to provide evidence of her attempts to obtain other employment. He claims that

the court also failed to make the requisite findings of fact in denying his petition. Mother

responds that the trial court made the requisite findings before properly denying the petition.

“Alimony” is defined, in pertinent part, by Black’s Law Dictionary, 9th edition, as

[a] court-ordered allowance that one spouse pays to the other spouse for

maintenance and support . . . after they are divorced. Alimony is distinct from

a property settlement.

Tennessee recognizes four different types of alimony: rehabilitative alimony, transitional

alimony, alimony in futuro, and alimony in solido. The trial court in this case awarded

rehabilitative alimony, which is temporary support intended to assist the economically

disadvantaged spouse in obtaining the education or training necessary to allow him or her to

achieve a reasonable standard of living in comparison to the standard of living maintained

by the parties during the marriage or to the post-divorce standard of living available to the

other spouse. Tenn. Code Ann. § 36-5-121(e)(l).

Awards of rehabilitative alimony remain in the court’s control for the

duration of such award, and may be increased, decreased, terminated,

extended, or otherwise modified, upon a showing of a substantial and

material change in circumstances. For rehabilitative alimony to be

extended beyond the term initially established by the court, or to be

increased in amount, or both, the recipient of the rehabilitative alimony

shall have the burden of proving that all reasonable efforts at

rehabilitation have been made and have been unsuccessful.

Tenn. Code Ann. § 36-5-121(e)(2). In requesting a modification of alimony, “[i]t is not

sufficient to simply show a change of circumstances.” Bowman v. Bowman, 836 S.W.2d

563, 568 (Tenn. Ct. App. 1991). Instead, “[t]he change must be substantial and material.”

Id. “[A] change in circumstances is considered to be ‘substantial’ when it significantly

affects either the obligor’s ability to pay or the obligee’s need for support.” Bogan, 60

S.W.3d at 728 (citing Bowman, 836 S.W.2d at 568). A change is not material if the change

was “contemplated by the parties at the time of the divorce.” Wright v. Quillen, 83 S.W.3d

768, 772 (Tenn. Ct. App. 2002). “A substantial and material change in circumstances does

not automatically entitle the petitioner to a modification.” Id. at 773. Rather, “the petitioning

party must [also] demonstrate that a modification of the award is justified.” Id.

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Here, Fathersought to reduce or eliminate his support obligation. Thus, he wastasked

with establishing that a substantial and material change in circumstances occurred that

necessitated the modification. The trial court, in its bench opinion that was specifically

incorporated into the written order, found that Father failed to establish a sufficient change

as evidenced by Mother’s continued medical issues and inability to work because of her

health. The court also found that Father had the ability to pay.

Indeed, Father testified that he had trouble remitting spousal support following the

divorce but that he began paying when he was able. The record reflects that he had stable

employment and did not present any evidence to establish that he could not afford the support

payments. In contrast, Mother’s ability to work declined since the time of the divorce. She

underwent additional medical procedures and would likely require further surgery to address

her underlying health issues. As a result, she was unable to maintain regular employment.

While she had access to money she had inherited as reflected in her 2012 tax return, she

testified that she spent the majority of the funds on her medical bills. With these

considerations in mind, we conclude that the trial court did not abuse its discretion in finding

that Father failed to prove a substantial and material change in circumstances that would

necessitate a modification in his support obligation.

B.

Father argues that the trial court erred in calculating the amount of spousal support

owed from September 2012 through August 2013. He claims that Mother was only entitled

to $1000 per month because she lived with her parents. Mother responds that the trial court

did not err in calculating the arrearage.

We give great weight to the factual findings of the trial court which rest on

determinations of witness credibility. Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn.

1996). Accordingly, we will not reevaluate a trial judge’s assessment of witness credibility

absent clear and convincing evidence to the contrary. Wells v. Tenn. Bd. of Regents, 9

S.W.3d 779, 783 (Tenn. 1999). The record reflects that Mother lived with her parents when

she first moved to Texas but that she moved to a rental home owned by her parents in May

2012. The trial court found that Mother was not living with her parents for purposes of

setting the amount of support owed. We will not disturb that finding.

C.

Father assertsthat the trial court failed to consider Mother’sinvestment income before

denying his oral request to modify his child support obligation. Mother responds that the

issue of child support was not properly before the court because Father never filed a written

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request for modification of his obligation. She alternatively argues that the issue of child

support was reserved by the court for a time when current evidence of the parties’ income

could be submitted for review.

In this state, child support is governed by Tennessee Code Annotated section 36-5-

101. “In making the court’s determination concerning the amount of support of any minor

child or children of the parties, the court shall apply, as a rebuttable presumption, the child

support guidelines” that are promulgated by the Tennessee Department of Human Services

Child Support Service Division. Tenn. Code Ann. § 36-5-101(e)(1)(A); see generally Tenn.

Comp. R. & Regs. 1240-02-04. The guidelines “are a minimum base for determining child

support obligations. The presumptive child support order may be increased according to the

best interest of the child for whom support is being considered, the circumstances of the

parties, and the rules of [the] chapter.” Tenn. Comp. R. & Regs. 1240-02-04-.01(4).

Child support judgments are not “subject to modification as to any time period or any

amounts due prior to the date that an action for modification is filed and notice of the action

has been mailed to the last known address of the opposing parties.” Tenn. Code Ann. § 36-5-

101(f)(1). A modification of the support owed may be requested pursuant to the guidelines

under certain circumstances. Tenn. Comp. R. & Regs. 1240-02-04-.05(6). “To determine

if a modification is possible, a child support order shall first be calculated on the Child

Support Worksheet using current evidence of the parties’ circumstances.” Tenn. Comp. R.

& Regs. 1240-02-04-.05(3) (emphasis added). If a significant variance exists between the

current order and the proposed amount, “such a variance would [generally] justify the

modification of a child support order.” Tenn. Comp. R. & Regs. 1240-02-04-.05(3).

Here, Father made an oral request to modify his child support obligation. Assuming

that his oral request was sufficient pursuant to Tennessee Code Annotated section 36-5-

101(f)(1), his obligation was not subject to modification prior to October 2013, when the

amended petition was filed and the oral request was made. Father asserts that Mother’s 2012

tax return should have been considered by the trial court to establish her income in October

2013. We disagree. Mother testified at trial that she used the funds reflected in the 2012

return to pay medical bills and that she was currently unemployed and without any form of

income. Father did not present any evidence to rebut Mother’s testimony that she only

received nominal income in the amount of $81 in 2013. Accordingly, we conclude that the

trial court did not err in refusing to modify Father’s child support obligation when he failed

to present current evidence of the parties’ circumstances to establish a significant variance.

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D.

The parties request attorney fees on appeal. Tennessee Code Annotated section 27-1-

122 provides for an award of sanctions in the form of attorney fees when an appeal is

determined to be frivolous. To find an appeal frivolous, the appeal must be wholly without

merit and lacking in justiciable issues. See Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586

(Tenn. 1977); Indus. Dev. Bd. of Tullahoma v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct.

App. 1995). An appellate court’s decision on this issue is discretionary, and this court is

generally reluctant to award such damages because we do not want to discourage legitimate

appeals. Whalum v. Marshall, 224 S.W.3d 169, 180-81 (Tenn. Ct. App. 2006). Following

our review, we respectfully deny the request for attorney fees on appeal.

V. CONCLUSION

The judgment of the trial court is affirmed, and the case is remanded for such further

proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Roger Eldar

Langlo.

______________________________________

JOHN W. McCLARTY, JUDGE

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