# FILED

December 5, 1997

Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT NASHVILLE
REIKO McCULLOUGH, ) ) Plaintiff/Appellee, ) Davidson Circuit No. 89D-3789 ) v. ) ) Appeal No. 01A01-9701-CV-00039 WHITFORD B. McCULLOUGH, ) ) Defend ant/Appe

llant. )

)

APPEAL FROM THE CI RCUIT COURT OF DAVI DSON COUNTY AT NASHVIL

LE, TENNESSEE
THE HONORABLE MURI EL ROBI NSON, JUDGE
For the Plaintiff/Appellee : For the Defendant/Appellant : Joseph L. Lac

key, Jr. David H. Hornik Nashville, Tennessee Nashville, Tennessee

AFFI RMED AND

REMANDED

HOL LY KI RBY LI LL ARD , J.

CONCURS: W. FRANK CR

AWFORD, P. J., W.S.
DAV ID R. F ARM ER, J.1 These pay ments are not judicially manda ted and are voluntarily

provided by Tug gle. OPINION This case involves a petition for the modification of alim ony pay ments. The ex-husband appealsthe trial

court’sdenial of

his petitio n to reduce his alimony oblig ations to his ex-wife. We affirm. Pe titioner/Appellant Whitford B. McCul lough (“Husban d”) and Respondent /Appellee Reiko McCul lough (“Wife”) were divorced on April 29, 1991. The divorce decree mandated that Husband pay Wife mont hly al imony pay ments of $608.00 for an unspecified period of time. I n September 1994, Husband filed a petition to terminat e al imony on the grounds of material change of circumstances pursu ant to Tennessee Code Annotated § 36-5-101(a)(1)(Supp. 1997). Husband later amended his petition to allege that termination of alimony was wa rranted on the grounds that Wife
was li ving with a thir

d person w

ho was co ntributing

to her sup

port and maintena

nce, pur suant to Tennessee Code Annotated § 36-5-101(a)(3)
. Husbandalleged

that Wife was living with Joseph Tuggle (“Tugg le”). It is undisputed that Tu ggle is th e fathe r of a ch ild co nceiv ed by Wife after t he div orce. T uggle ha s been paying W if e $100.00 per month, and testified that the pay ments were to support this child. 1 At trial, Husband contended that Tuggle has been living with Wife and that he has supported her in addition to the child. The proof indicated that Tuggle hasspent the night at Wife’s residence
on various occ asions. Tuggle testified that the frequency of his overnig ht visits range from zero nights per week to four or five nights per week. A report based on six day s of surveillance by Husband’s private detective, Jonathan Saad (“Saad”), stated that Tug gle spent the night on one occasion during the six-day period. The proof sho wed that T

uggle owns his own apartment. Husband claimed that Tuggle never lived there. Saad ’s report indicated that no vehicles registered to Tug gle were ever par ked there du rin g his surveillance. Tuggle admitted that he kept multiple vehicles in Wife’s drive way, but testified that these vehicles were all broken and that they are now relocated to his new residence
. The evidence also demo nstratesthat Tug gle inst alled a s atellite

dishin Wife’s yard. As of the date of the hearing, Wife had had the sa tellite dish for a yea

r and a half. Tuggle claimed that he intended to keep it

there on ly te mporaril y. T uggle also testi fied tha

t he boug ht Wife a 31- inch television and a waterbed. According to Tuggle, the television was a “junk t.v.” that he repaired for2

her. In a ddition, Tu ggle

conceded that he has occasionally helped with household chores and picked Wife up from work. Tuggle testified that, since he moved to a new subdivision in April of 1996, he has not spent the night with Wife. The trial cou

rt denie d Husband ’s petitio n to termin atehis alimony pay ments. In a cursory opinion, the trial court

held that Husband had

not carried his burden of proving sufficient g rounds to warrant relief. The trial court re fused to modify Husband’s a limonyobligations and awarded Wife attorne y’ s fees. F

rom this de cision, Hu sband now appeals
. On appeal , Husb and co ntend s that the tr ial co urt er red by rul ing t hat he had not presented sufficient proof to demonstrate that Wife was receiving support fr om a third per s on to warrant termination, reduction, or suspension of his alimony oblig ations. Wife seeks an affirmance of the trial cou rt’s holding, as w ell as an award o f attorne

y’ s fees f or this ap peal. Our review o f the find

ings of f act by the trial court is de novo upon the rec ord of th e trial court, accompanied by

a presumption of

correctness of the factual finding unless the preponderance of the evidence is otherwise. Tenn. R . Civ . P. 13(d). Questions of law are de novo with no presumption of correctness. Carvell v . Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Tennessee Code Annotated § 36-5-101 governs the modification of alimonypayments. Subsection ( a)(3) o f this prov ision state s: (3) In all cases where a person is rece iving alimony in futuro and the alimony recipie nt lives with a third p erson, a rebutta ble pres umption is th

ereby raised th at: ( A) The third person is contributing to the support of the alimony rec ipien t and the alimony recipient ther efore does not

need the amount of

support pr

eviously awarded, and the c ourt ther efore s hould suspe

nd allor part of the alimony oblig ation of the former spouse; or (B) The third person is receiving support from the alimony recipient and the alimony recipient therefore

does not need the amount of alimony previously

awarded and t he court therefore should suspend all or part of the a limony obligation

of th e former spouse. Therefore, once it

is established that the alimony rec ipient is living with a third person, this raises
a rebuttable presumption that the alimony r ecipient does not need the amount of support pr

eviously awarded. In order for this rebuttable p resumpti on to arise, the petitioner must first prove that the “alimony recipient lives with a third per son .” Id.; Binkley v. Binkley , No. 88-1 48-I I, 1988 W

L 97231, *2 (Tenn. App. Sept. 23, 1988). Husband claims that the evidence demonstrates that Wife2 At the time of this case, the statute was cited as Tenn. Code Ann. § 36-820(a )(3). 3 was living with Tuggle. I n support of

this conte

ntion, Hus band cite s Azbill v. Azb ill, 661 S.W.2d 682 (Tenn. App. 1983). In Azb ill, the ex-hus band alle ged tha t the alimo ny r

ecipien t, the ex-w ife, had

the daily company of a third

party , Mr. Bell. Althoug h the par ties did no t appear

to have a

romantic relatio ns hip, the proof showed that Bell was at the ex-wife’s home “da ily, had a key , came in and outas he pleased, had clothes and toilet articles in the house, and at least on four different occasions spent the entir e night in the home.” Id. at 686. Nevertheless, both the ex-wife and Bell maintained that Bell had not spent

the night at her home and did not keep clothing or toiletry articles there. The trial court found that

Bell lived with the ex-wife within the meaning of the statute and reduc ed the alimony payments. This Court determined that the trial court’s finding was based on determinations of credibility. Id. at 68 7. De fe rr in g t o t he tr ia l c ou rt ’s as se ss me nt of th e w it ne ss es ’ c re di bi li ty, this Courtaffirmed the trial court’s holding that the wife a nd Bell were living together pursuant to the statute. 2 Id. In Stanton v. Stanton, Shelby Law No. 82, 1986 WL 2301, *2 (Tenn. App. Feb. 20, 1986), the trial court found that the thirdparty, Mc Kinne y, moved f urnit ure it ems an d pers onal b elongi ngs into the alimony recipient’ s (ex-wife’s) residence. This address was listed for Mc Kinney’s voter registration and for his car license. Id. McKinney paid the e x-wife $15.00 pe

r day as board ; paid for all of the telep hone bills(with

the exception of the ex-wife’s long distance bill), paid the ex-wife $100.00 per

month for receiving phone calls, handling filin g, a nd ha ndlin g ma

il; and ga ve th e exwife a car. Id. This Court affirmed the trial court’s conclusion that the ex-wife and McKinney were living together pursuant to the statute. Id. In Will iams v. W illi ams , No . 85 -15 0-II, 1986 WL 5895, *3 (Tenn. App. May 21, 1986) , this Courtalso affirmed the trial court’s finding that the a limony recipie nt, the ex- wife, wa s living w ith
a third person. In Will

iams , the ex-wife was spending “at least severa l nights a week and the weekends” at the third party’s r esidence. Id. Further

more, she conced ed having

a key to his apartme nt, keeping some of her clothes and other p ersonal items there, and keeping some of her furniture there. Id.4

Binkley also involved a situation in which the ex-wife would occasionally stay at the home of a third party. Binkley

, 1988 W L 97231. I

n this case, the ex-wife testified she would stay overnight at her friend’s home three o r four n ights per week. Id. at *2. Surveillance evidence revealed that during a two week period, the ex-wife’s car was a tthe third party’s home a ll but one da y. According to the court, “[i]n common parlance , ‘liv ing w ith’ implies the occupancy of a
common place of abode.” Id. at *3. The trial court had stated that

it was “not convinced” that the ex-wife wa s l iv in g w it h t he th ir d p ar ty, but also found that the ex-wife had rebutted any presumption th at t he alimony pay

ments were no longer needed. This Court found that the e vidence did not preponderate against the trial cour t’s factual findings. Id. Testimony in Duffin v. Duffin , No. 02A0 1-93 02-CV -000 28, 19 93 WL 484204, *1 (Tenn. App. Nov. 23, 199 3), indicated that the alimony r ecipient, the ex-wife, had an “off and on” relation ship with a third party, Steve Gr imes. The ex-wife stated that Grimes would sometimes spend up to three or four nights in a row at h er home. Id. Furthermore, the trial court found that Grimes operated a business from the ex -wife’ s h ome. Id. at *2. The ex-wife a

nd Grimesboth testified that he did not have a key to her house and he did not keep clothes there (with the exception of a change of clothes when he would stay overnig

ht). Id. at *1. Grimes kept his own apartment and didnot provid

e the ex-wif

e w it h a ny m on ey o r pay her bills. Id. The ex-wife testified that the relationship ceased five months before the hear ing. Id. In Duffin , this Court

found no e

vidence to support

the trial court’sfinding

that Grim

e s operated a business from the ex-wife’s home. After examining the rec ord as a whole, the Court reversed the trial court’s finding that the ex-wife was living with Grimes. Id. at *3. Citi ng Binkley , the court he

ld that “[t]he

record simply does not c ontain evid en ce that Wife and Grimes had ‘occupancy

of a common place of abode.’” Id. (citi ng Binkley, 1988 WL 97231 at *3). In this case, si nc e t he tr ia l c ou rt ’s or de r d en yin g H us ba nd ’s pe ti ti on wa s c ur so ry, it is unclear whether the trial court found that: (a) Tuggle was not living with Wife , and t hat Husband had not carried his b urden of pro ving a material change of circumstanc es sufficient to warrant a reduction in alimony , or (b) e

ven if Tug gle

were living with her, Wife had effectively rebutted any pr

esumption that the alimony pay

ments were no longer needed. The evidenc e prese

nted by both part ies is, for the most part, uncontradictory . The evidence indicates that Tuggle’s overnight stay s at Wife’s home are spor ad ic , a nyw here from zero to five5

nights in any

givenweek. As in Duffin , Tuggle maintained his own residence . The only evidenc e of Tuggle’s personal items that were kept at Wife’s home arehis junk cars and his satellite dish. The evidence does not indicate that any of the junk cars are registered to Wife’s addre ss. There is no evidence that Tuggle kept clothing or toiletries at Wife’s home, that

he had a key

to the home, or that he routinely ate his mea

ls at Wife’s home. Alth ough this is a close case, the facts appear to be a kin to those presented in Duffin and Binkley
. As in those

cases, the evide

nce doe s not prep onderat

e in favor of a finding that Wife and Tuggl e have shared the“occupancy of a common place of abode.” Binkley, 1988 WL 97231 at *3; Duffin, 1993 WL

484204 at

*3. Ther

efore, we find th at the re buttable presumpt

io n set forth

in Tennessee Code Annotated § 35-5-101(a)(3) is inapplicable. Husbandmay, never

theless, be entitled to relief if hecan show thatWife’s receipt of the $100.00 per month pa yments by Tugg le constitutes a “substantial and material change of circ umstances,” so that modification of his alimony obligations is warr anted. Tenn. Code Ann. § 35-5-101(a)(1). It ha s been he ld that an y c ontributio ns made to

an al im on y re ci pi en t b y a

third par ty “may be taken into consideration in deter mining whe ther alimony pay ments should be adjusted.” Richardson v. R ichardson, 598 S.W.2d 79 1, 795 (Te nn. App. 1 980). The

party claiming that a cha nge of circumstances exists carries the burden of proving the existence of the chan ge d circumst ances. Azbill, 661 S.W.2d at 686. The change of circumstances must be “substantial.” Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. A pp. 1989) ; Jones v. Jones, 784 S.W.2d 349, 352 (Tenn. App. 1989 ). Once

the petiti oner show s that a change exists, the c ourt shoul d weigh the same criteri a that were considered

in mak ing the initial alimony awa rd. Cranford, 772 S.W.2d at 50; Threadgill

v. Thread gill, 740 S.W.2d 419, 422-23 (Tenn. App. 1987). These factors are enumerated in Tennessee Code Annotated § 36-5-101(d). In this case, the undisputed testimony was that Wife has a child fathered by

Tuggle, and that Tuggl e pays Wife $100.00 per month to support the child. The other evidence, such as the evidenc e that Tuggle gave Wife a

television he had re

paired a nd installed a satellite dish at her home, is not sufficient to suppor t a fin ding that Wife’s need for alimony payments has lessened. Therefore, considering the record as a whole, the evidence does not preponder ate agains t the trial court’s decision to deny Husband’ s petition for a reduction in alimony pa yments.6

Wife requests attorney ’s fees incurred during this appeal. It has been held that “where the wife has demon strated t

hat she isfinancially unable to procure counsel, and where the husband ha s the ability to pay , the court may pr op erly orde

r the husband to pay the wif e’s attorney ’s fees.” Houghland

v. Houghland, 844 S.W.2d 619, 623 (Tenn. App. 1992). Th e eviden ce in this c ase supports th e a wa rd in g o f a tt or ne y’s fe es to Wi fe . C on se qu en tl y, the matte r is rema nded tothe trial court for a determination of the appropriate a mount. The decision of the trial court is affirmed. Wife’s request for a ttorney’s fees on appeal i s granted, and the matter remanded to the trial court for determination of the amount of attorney ’s fees
on appeal. Costs on appeal are taxed against the Appe llant forwhich exe cution ma y is sue if
ne ce ss ar y.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRAN K CRAWF ORD, P.J., W.S.

DAVID R. FARMER, J.