# FILED February 6, 1998 Cecil W. Crowson Appellate Cou rt Clerk WILMA JEAN LAMPLEY, ) ) Williamson Chancery Plaintiff/Petitioner/Respondent, ) No. 23651 ) VS. ) ) Appeal No. GORDON RAY LAMPLEY, ) 01A01-9708-CH-00423 ) Defendant/Respondent/Petitioner. )

IN THE COURT OF AP PEALS OF TENNESSEE MIDDLE SECTION AT NASH VILLE APPEAL FROM

CHANCERY COURT OF WILLIAMSON COUNTY AT FRANKLIN, TEN

NESSEE HONORABLE H. DENMA RK BELL, JUDGE

Honorable Virginia Lee Story 136 Fourth Avenue

, South P.O. Box 1608 Franklin, TN 37065-1608 ATTORNEY FOR PLAINTIF F/PETITIONER/RESPONDENT Honorable Erne

st W. Williams Honorable J. Russell Heldman 320 Main Street, Suite 101 Franklin, TN 37064 ATTORNEYS FOR DEFENDANT/RESPONDENT/PETITIONER



### AFFIRMED AND REMAND ED

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE WILLIA M C. KOCH, JR., JUDGE-2-

WILMA JEAN LAMPLEY, ) ) Williamson Chancery Plaintiff/Petitioner/Respondent, ) No. 23651 ) VS. ) ) Appeal No. GORDON RAY LAMPLEY, ) 01A01-9708-CH-00423 ) Defendant/Respondent/Petitioner. )



## O P I N I O N

This is a post-divorce decree proceeding in which the defendant husband has appealed fro m an uns ati sfa cto ry di spo sit ion of h is c oun ter pet iti on t o te rmi nat e al imo ny.

On January 21, 1997, the wife filed a second “Petition for Enforcement of final Decree and for Cont empt” cont aining the f ollowing:

Defendant is in wilful contempt of thelawful Orders of this Court by his failure to pay Wife’s health insurance and Petitioner wou ld re spectfully

request that Def

endant should be punished by

powers of civil contempt by incarceration and that he be required to

pay all medi cal bills which have been incurred by Petitioner

as a result of his failure to abide by the lawful orders of

this Court. That a Show Cause issu

e r equiring the de

fendant to appear and s how cause, if any he has, why he should not be punished by civil/or criminal contempt andincarcerated

until he purges himself of contempt by reinstating Wife’s medical insurance why he should not be made to immediat

ely pay all outstanding medical bills which have been incur

red as a result of his canceling her insurance or be incarcerated. On March 19, 1997,

the Trial Court ord

ered as follows: That Ms. Lampley’s Petition for Contempt is granted however, the Court does not im pose any sentence upon Mr. Lampley for contempt but wi

ll requir e Mr. Lampley to pay Ms. Lampley’s attorney ’s fees in the amount of One ThousandEight Hundred Twe nty Five ($1,825.00) Dollars which shall in the nature of additional alimon y and not sub jec t to ban kru ptc y.-3- T hat Mr. Lampley’s Counter-Petition is denied as t o the termination of

alimony and M

r. Lampley

shallcontinue to pay the alimony

obligation as awarded in the Final Decree of Divorce. Furthe r, Mr. Lam pley shall imm

ediately r esume Ms. Lampley’s

health insurance

coverage and

pay all medi

cal bills which she has incurred as a result of his not having insurance coverage as was available to him through COBRA.

The marital dissolu

tion agreement

contained the fol

lowing provisions : 2. REAL PROPERTY. T he partie s own rea l property located at 7324 Snow Mangrum, Fairview, Williamson County, Tennessee which shall be sold and Wife will receive t

he sum of Thirty Thousand and 00/100 ($30,000.00) Dol lars of

the equity as a division of marital pro pert y, with t he r emaining balance, after payment of rea l estate commission, closing cos ts and a ll indebtedness existing against said property, shall be paid to Husband. The Wife shall continue to r eside in the marital residencefree from

interference from Husband and shall pay the utilities associated therewith in a timely manner. Husband shallpay the mortgage

existing on said pro

perty and upkeep and maintenance pending the sale in a timely manner.

- - - - The parties have will (sic) divide all remaining personal property an d all property now in the possession of eachparty shall become

the party’ s sole and separa te property free of al l cl aim s of the oth er pa rty.

- - - - 4. AL IMONY. Husband s hall pay Wi f e rehabilitative alimony for a period of 60 months at the rate of $600.00 per month. Said alimony payments shall begin the first day of the first month following the sale of t he m arital residence. Additionally, as rehabilitative alimony. Husband shallpay Wife’s health insurance premium through C

OBRA for a period of 36 months or until Wife can qual ify t he TENNCARE. 5. INDEBTEDN

ESS. Hu sb and will pay all existing medical bills an d each party will pay 1⁄2 of the Dillard’s account and the fu rniture bill. All other indebtedness

will be paid by the party in whose name the indebtedness exists, holding the other party harmless for

the same. 6. FEES AND COSTS. Hu sband sh all pay th e attorney’sfees in the amount of $500.00 and the

costs of this cause. 7. If

it becomes necessary for ei th er party to institute legal proceedings to enforce the terms of this instant agreement,

then the other par

ty shall be r

esponsible for al

l attorney’ s fees and costs a ssociated with sai

d enforcement.-4- - - - - 17. In the e vent that it becomes necessary for either party to see

k to enforce the t

erms of this i

n stant agreem en t, then the other party shall be responsible for a rea sonable

attorney’s fees and the costs of this ca use .

On November 6, 1996, the wife filed a “Petitionfor Enforcement of Final Decree and for Contempt.”
On November 25, 1996, the Trial Court entered the following order:

IT IS THEREFORE

ORDERED ADJUDGED, AND DECREED that the Respondents alimony payments shall be paid on the 1st of each mont h in the amount of $600.00 pursuant to the Final Decree of Divorce. That said payments shallhereafter be p aid through the Clerk’s office together witha 5% clerk’s fee beginning December 1, 1996 and the 1st of each month thereafter pursuant to the Final Decree. That balance owing for the al imo ny payment for the month of November, 1996 shall paid immediately to Petitioner.
On December 5, 1996, the husband filed an “Answer to Petition for Enforcement of Final Decree and for Contempt and Petition for Terminationor Reduction of Ali mony Pay ments Set Forth in th e Final Decree ,” containi ng the follo wing. COUNTER-PETITION Comes now the respondent, Gordon Ray Lampley , and assumes the role of

Counter-Petitioner and therefore states as follows: 1. That

on December 28, 1995, a Fi nal D ecree was entered i n this cause which provided for rehabilitative alimony at the r ate of $60 0 per month for sixty (60) months to begin on the first month following the sale of the marital residenc e. T he marital residence was sold in September, 1996. 2. The respondent/coun ter-peti tioner’s pe rsonal financia

l situat ion has drastically changed since the original mar ital dissolution agreement wa s entered into , even including the financial loss t

hat was incurred because of the sale of the home. 3. It is further alleged that the petitioner, Wilma Jean Lam ple y, is not in need of the rehabilitative alimony payments tha

t are being paid

on a monthly ba

sis.-5- 4. T.C.A. § 36-5-101(5 )(d)( 2) states an award of rehabilitative, tem por ary s uppo rt and maintenanc e shall remain in the Court’s control for the duration of such award andmay be

increase d, decre ased, ter minated, e

xt ended or ot herwise modified, upon showing substantial materi a l change of cir

cumstances. 5. The respondent/counter petitioner, had a sub s tantial materi al c hange of circumstances and would show that rehabilitative alimony should not only be terminated beca

use of this fact but also because lack of need by the petitioner. WHEREFORE, premises considere d , res pon den t/c oun ter -pet iti one r pr ays 3. that

all rehabilitative alimony payments be terminated by the Court upon immediate hearing of this matter. On April 18, 1997, th

e husband filed the

following notice

of appeal: Please take no tic e that the Respondent/CounterPetitioner, Gordon Ray Lampley , hereby appeals to the

Court of Appeals, Middle Se

ction of Nashville

, from t he Order entered by the C

hancery Court for

Wi ll iam son Cou nty, Tennessee entered the 19th day of March , 1997 wherein the Court found Gordon Ray L ampley in contempt of Court and awarded attorney fees as additiona l alimony, not

subject to ban kru ptc y, and the Court denied Mr. Lampley’s counter petition for the termination of alimony. In addition, the Court determinedMr. Lampley

liable for all

medical bills incurred as a result of not having insurance cove rage availab

le to him through COBRA. On December 28, 1995, the Trial Court Entered a “Final Decree of Divorce containin g the follow ing:

THIS cause came on to

be heard upon Complaint for Absolute divorce, Waiver of Service of Process, and Marital Dissolution Agreement entered in to by and between the parties, from all

of which it appears that the parties should be granted an absolute divorce on the grounds of irreconcila

ble d ifferences,

and that the Marita

l Dissolution Agre

ement is fai r and equitable an

d should be approve

d by the Court

; IT IS THEREFORE, ORDERED, ADJUDGED and DECREED, th at the parties are granted an absolute divorce on the grounds of irreconcilable diff ere nces, and the parties are restored to all of

the rights

and pri vileges of unmarried persons. IT IS FURTHER ORDERED, ADJUDGED and DECREED, that the M a rital Dissolution Ag reement is fair-6- andequitable and proper and is hereby approved by the Court andmade a part of thi

s Final Decree

as if set out herein verbatim. On appeal, the husband presents the following issue:

Whether the trial c

ourt erred in re

fusing to termina

te Mr. Lampley’s obligation to pay Ms. Lampley rehabilitative alimony of $6

00 per month for 60

months and to pay

Ms. Lampley’s health insurance premium throug h COBRA for a period of 36 months or until she can qualify for Tenn-Care. The wife reques

ts attorney ’s fees in this app eal.
Appellant first argues that their marital dissolution agreement was made in the anticipation that his share of the proceeds of the sale of the marital home would provide the funds to enable him

to pay the ag

reed periodic a

limony, and th

at the sale price

of the home proved to be inadequate for this purpose.
Appellant also argues that his varying employ ment and business ventures since the divorce have re

ndered him unable

to pay the al

imony. His tes

timony in this r

egard is summarized as follo

ws: The August 1996, auction sale of home did not produce agre

ed $30,000 for wif

e and husband for

ced to contribute $5,795 cash to provide the $30,000. At the time of the divorce, appellant was employed as sales manager of General American I nsurance and had a “real good” year selling rea l estate with Caldwell Banker of Dickson with net take-home pay of $4,020.97 per month. He was “doing real well” with 40 to 45 listings and expecting listing

of 81 lots. In February or Marc

h 1996, appellant created a business called “Advance Cash” which was essentially a short-term, high interest small loan business. He create d other associated businesses called Tele-Check, Tele-Trak and Mid State Credit Bureau.
In 1996, appellant began to work for Caldwell Banker, a re al estate sales agency and had brief success until an associate created another real estate company called ERA and-7-

obtained the transfer of appellant’s listings to the new company. At the trial, appe llant had only two listings. In January 1997, a ppellant jointed ERA.

In Fe bru ary 19 97, app ell ant fil ed a C hap ter 7 Ban kru ptc y.
At some point in the de

velopment of his se

parate activitie

s, appellant left h

is supervisory

employment w

ith American Gen

eral. Subsequent

ly, he was pe

rmitted to resume work with American General as a sales agent.
In September 1996, appellant purchased a home for himself and a lady with children. The payment on the home is $947.00 per month of which appellant pay s one-half.
He pays $257.71 per month on an automobile bought for his daughter.
He pays $30

0.00 per month colle

ge tuition for his

daughter and $2

23.00 per month for his son of a previous marriage.
He is paying $300.00 per month COBRA Health Insur ance for himself and son.
He has an independent license to sell health insurance but is not affiliated with any ins uran ce co mpa ny.
Appellant admits net income of $199.87 per week (about $800.00 per month) which he “draws” from three of his “stores.” He admits that his commissions on real estate sales “could be” $800 per month, which would add up to $1,600.00 per month.

In contrast,

appellant insists th

at appellee now e

arns $6,652.00 pe

r month, a dramatic increase from her 1994 gross income of $833.00 per month.-8- Appellant also all

eges that, appe

llee by var

ious means has acq

uired three rea

l estate properties. Appellee’s mother gave her two acres containing a re sidence. Her son-in-law gave her 2 acres with a trailer home on it which rents for $300.00 per month. She has used her part of the distribution of the marital estate and a $60,000.00 loan to construct a new home.
In short, appellant insists that he made a bad bargain in the property settlement agreement and that he should therefore be relieved of it; that he is no longer able to pa y the agreed alimony

; and that appelle

e does not need it.
Appellee respon

ds that the joint ear

nings of the par

ties in 1994 were $ 84,914; in 1995, appellants reported earnings were $63,123.00; and, in 1996, his gross earnings were $75,472.00. The wife points out

that her net incom

e from her home c

leaning busines s is only $1,828.00 per month, and the husband’s admitted net take-home pay was $4,020.97 per month in 1996.
It also appea

rs from the evide

nce that, in 1996, t

he husband purch

ased a home jointly with his p aramour and children an d that he pays 1⁄2 o f the $947. 00 per mont h mortgage payment on the home.

It al so a ppe ars tha t th e hu sba nd w as r eli eved of $ 60, 000 .00 of u nse cure d de bts by a 1996 bankruptcy, and that he owns property at Crossville, Tennessee which the bankruptcy trustee may

claim.
As stated above, the sole issue presented by appellant is the reduction or termination of al imo ny.-9- Alimony is not a required provision in the marital dissolution agreement provided by T.C.A . § 36- 4-104 . Neve rthel ess, t he par ties s aw fit to in clude alimo ny in th eir agr eemen t. It must be presumed that the alimony provision was part of the inducement or consideration for the other provisions regarding division of the marital estate. The Courts are justified in being reluctant to distur

b an alimony o

bligation assume

d under such cond

itions.
The evidence does not preponderate against the refusal of the Trial Judge to alter the liability of the husband for alimony.
The appellee/wife requests the award of attorney ’s fees on appeal. As noted above, the marital dissolution agreement specifically provides that a party who succeeds in a move to enforce the agreement is entitled to attorney fee s. It does not appear from this record that either party

has heretofore

invoked this attorn

ey fee pro vision. No reason o

ccurs to this Court why the provision should not be enforced.
Accordingly

, the wife is here

by awarde

d reasonable att

orney fee s incurred in this appeal, the amount of same to be ascertained and judgment rendered therefor by the Trial Court upon remand.-10- The judgment of t

he Trial Court is af

firmed. Costs of this

appeal are ac

cessed agains

t the appellant. Th

e cause is reman

ded to the Trial Cou

rt for further pr

oceedings in co

nformity with this opinion.

AFFIRMED AND REMANDED

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR:
BEN H. CANTRELL, JUDGE

WILLIA M C. KOCH, JR., JUDGE