### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE October 15, 2003 Se ssion
FRANKIE PAULINE MAPLES v. FRANK ALLEN MAPLES Appeal from the Circuit Court for Knox County No. 54419 Bill Swann, Circuit Judge FILED NOVEMBER 25, 2003
No. E2003-00722-COA-R3-CV

Husband, for the second time, seek s a reduction in his alimony obligation, claiming tha t his bona fide retirement

coincided with

a substantial decrease in income. The trial court modified the obligation by reducing it to $91 9.50 monthl y. Wi fe rec eives $75 2.00 from s ocial se curity . Her re asonable expenses were found to be $2176.00. Husband appeals, insisting that the redu ction is ins ufficie nt. Wife presents for review the issue of whether a ny reduction wa s justified. We reinstate the initial award, finding that Husband, as in the p rior app eal, con

tinued hispattern of conduct in restructuring his assets to award his obligation. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed
W IL LI AM H. I NMAN , S R
. J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , JJ., joined.
Frank L . Fly

nn, Knoxville , Tennes see, att orney for appe llant, Fr ank Allen Maples.
Mike A. Hi ckman, Ma

ry ville, Te

nnessee , attorne

y f or the ap pellee, Frankie

Pauline Ma

ples.
OPINION
Both parties present issues, which we restate: (1) whe ther Husband’s re tirem ent was obj ecti vely

reasonable and thus constitutes a material chang e in circumstances; (2) whether the reduction in alimony was appropria te; (3) whether

attorney fees should have been awarded to Wife.
This Court’s review i s de novo upon the record, accompanied by a presumption of correctnes s of the findings of fa ct of the trial cou rt unless t

he prepo nderanc e of the e vidence is otherwise. Tenn. R. App. P. 13(d), Bogan v. Bogan , 60 S.W.3d 721, 727 (Tenn. 2001). In addition, this Court has held that

“trial c ourts have bro ad discr etion to de

termine w hether s pousal sup

port is needed and, if so, its nature, amount an d du ration,” Anderton v. Anderton , 988 S.W.2d 675, 682 (Tenn. Ct. App. 1998), and a trial court’s determination of spousal support will generally not be altered by this Court unless the trial court abused its discretion. Trial courts are to apply the factors1 Bogan v. Bogan , 60 S.W.3d 721 (Tenn. 2001) modified t his per specti ve. -2- outlined in Tenn. Code Ann. § 36-5-101(d)(1) when determining spousal support, and the need for support and the ability to pay are the critical factors. Anderton v. Anderton , supra . In the case at Bar, Wife has a considerable need for her inc ome to be supplemented by spousal sup port, and Hu sb an d h as th e a bi li ty t hr ou gh hi s i nc om e a nd ot he r a ss et s t o p ay. These parties were married in 1954 and divorced in 1999. Husband i s seventy y ears old: Wife is si xt y- nine. Each has health problems. At the time of the divorce, Husband wa s earning $8500.00 per month pursuant to a contract resulting from the sale of his business. The contractual pay ments endedin December 1998 and his income fell to $1355.00 per month, derived solely from social security. Wife ha

d no income at the time of divorce , and wasawarde d $2200.00 per month in alimony in futuro , later reduced to $1682.00 monthly when she began

to rece ive her s ocial se curity pay ments. Her

present income is $752.00 monthly, exclusive of alimony ; her monthly expenses are $2176.00. The current complaint to modify was fi led in 2001, again al leging a materia l chang e in circumst ances, in that Husband had retired, and his sole income was social security payments. He alleged that his re

tirement was bona

fide, tha t he has no

other in come, and owing to his age and health , has no prospects for additional income. His obligation to pay alimony was reduc ed t o $919.50 per month. Wife theref ore has $ 1671.50 mo nthly income which she argues is insufficient for her needs; Husband arguesthat the reduction is insufficient because he has only $435.50 for his maintenance.
Husbandhas been remarried for eleve n years. He and his present wife live and work on their farm of ab out thirty acre s. In 1998, shortly before the expiration of his consulting agree ment, he filed a peti tion to mo dify the o rigi na l a li mo ny award, and the decree wa s modified by reducing alimony to $718.00 per month. On appeal, the reduct ion was disallowed because the husband’s decreased income was foreseeable and there fore could not be considered as a materia l change in circumst ances. 1 We also found that Husband deliberately restructured his assets by dissipation and otherwis e in order to relieve the alimony award. See, Maples v. Maples , 2000 WL 281660 (Tenn. Ct. App. 2000).
The trial judge found that the circumstances in this cas e “fallsfoursqua re” unde r the fa cts and holding of Bogan v. Bogan , 60 S.W.3d 671 (Tenn. 2001), wherein the Supreme Court, in ruling on the issue of

whether bona fide retirement, with a concomit ant redu ction in inc ome and th e means t o pay alimony , was a material change in circ umstances, held:
A bona fide retirement need only be objectively

reasonable under the totality of the circumstances to constitute a material change in circumstance s. I n so hol ding, we reject, in the re

tirement context, the traditi onal t est requiring an involuntary and unforeseen change in cir

cumstances to modify a suppor t award.
The trial judge then found that Husband’s retirement in 1998, when his contractual benefits ceased, superimposedupon his age a nd deter iorating health, w as objec tively

reasona ble and thus constituted2 The trial judge foun d tha t Wife reas onablyrequi red $2167. 00 for livi ng expenses. We agree with this f inding. She recei ves $752.00 socia l secu rit y, whi ch shoul d be deducted (together wit h any future inc rease s) from his mo nthly requirem ents. -3- such a material change in circumstanc es as to require a reconsideration of the amount of

his alimony obligation.
We would be in agreement with this finding except for the rather obvious pattern of conduct engaged in by Husband. I

n the first appeal we found, in a polite way , that he was restructuringhis assets in a delib erate a

ttempt to a

void his alimony obligation. Bogan presented a new perspective; hence the present litigation. But Bogan offers Husband no succor; his restructuring and dissipation of assets to avoid his alimony obligation continued. For instance, his brokerag e account at Edward Jones Inc., as of January

29, 1999 was $178,000.00 which consisted of an annuity of $148,000.00 withthe rema

inder in c orporat

e stocks. A fte r the first case was decided on appea l, he began withdrawing $1100.00 monthly. From March to Aug ust 2000 he withdre w $48, 000.00 and purchas ed farm

equipmen

t, thirtee n Holstein

cows, tithed $50 00.00 tohis church, and made other expenditur

es. He purchased a used car for his son for $3500.00; a new truck, 20 01 model, c ost $23,779.00; a new tractor, after trade- in, cost $16,700.00; a camper cost $10,0 00.00; a la

ke lot with a mobile home

cost $15,0 00.00. He

and his pre sent wife own a thirty- acre farm valued at $390,000.00; his cattle

are worth $28,000.00. We need not specify additional expenditur

es, beca use we are not obliged

to take and state an accounting of Husband’s income and assets. We do note that in 1999 he made charitable contributions of $7674.00; in 2000 he made charitable contributions of $9055.00 and in 2001, charitable contribution of $9130.00. W e also note that Husband sold a lot on Tellico la

ke for $1 7,000.00 a

nd profe ssed to having no recollection of how he spent, or invested, the proc eeds.
We hold, as w e must, tha t Husband

cannot be

allowed t o manipula

te assetsso as to cr

eate what prima facie appears to be a mater ial change in circumstances for hi s benefit. The evidence reveal s that he ha s proflig ately “spent do wn his investments” as Wife argues, and that he has made no effort whatever to convert non-income pr oducing assets to t

hosewhich could produce income. The record

also ref lects tha t he has c ommingle d his asse ts withhis new wi fe, ther

eby hinderin g his ready a ccess to cash.
We hold that the evidence prepondera tes against the j ud gm en t r ed uc in g t he mo nt hl y al im on y, and Husband’s obligation to pay periodic alimony is reinstated a t $1415.00 per month. 2
We agree with Wife’s arg ument tha

t sh e should not have to pay the c ost of defending her entitlement

to alimony. See, McCarty v. McCarty , 863 S.W.2d 716 (Tenn. Ct. App. 1998), Sanella v. Sanella , 993 S.W.2d 73 (Tenn. Ct. App. 1999). The judgment denying attorney fees is reversed and the case is remanded to the trial court for

a deter mination of

the amoun

t of attor ney fees, both at trial a nd on appe al.-4-

Costs are assessed to Husband.

____________________________________ WILL IAM H. I NMAN, SENIOR JUDGE