# FILED May 7, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT KNOXV ILLE

_____________________________________________ JACQUELINE S. WHITESIDE , ) ) Hamilton Circuit No. 93-DR-2557 Petitioner/Appell

ant, ) ) Appeal No. 03A01-9707-CV-00272 v. ) ) JERRY WHITESIDE , ) ) Respondent/Appellee. )

APPEAL FROM THE CIRCUIT COURT OF HAMILTON COUNTY

AT CHATTANOOGA, TENNESSEE THE HONORABLE SAMUEL H. PAYNE, JUDGE

John P. Konvalinka, Esq. Grant, Konvalinka & Harrison Chattanooga, Tennessee Attorney for Appellant Edward A. Love, Esq. Chattanooga, Tennessee Attorney for Appellee

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

WILLIAM H. WILLIAMS, Senior Judge

CONCUR: W. FRANK CRAWFORD , P.J., W.S. DAVID R. FARMER, J.1 He did subsequently appear at the default judgment proceeding and consented to the Decree. 2 O P I N I O N
This appeal is from the action by the trial court on a c ontempt ci tation by the Appel lant, hereinafter

“Wife,” and a Pe

tition to Modify the original Divorce Decree and a mo tion under Rule 60, Tenn. R. Civ. P., brought by the Appellee, hereinafter “Husband.” The trial court found that the Wife was living with a third person pursuant to T.C.A. § 36-5- 10 1(a)(3 ) and reduced alimony from $1,000.00 to $250.00 per month; relieved Husband of the obligation to pay life insurance premiums past and future; declared no alimony arrearage due Wife; and required Husband to reimburse Wife for marital debts in the amount of $10,006.85 payable at $500.00 per month w

ithout interest. Th

e appeal is prope

rly before this Cou

rt. The Final Decree of Divorce entered December 1, 1993 recited that the Husband did not contest the divorce by Ans

wer or otherwise

respond to

the Complaint and did not appear at the divorce hearing. 1 At the time of the divorce hearing, the Court heard testimony of the Wife an d her

c orroborating witnesses and ent ered a Decree

, the portions pert

inent to the issues r

aised on this appeal are: (1) the divorce was granted to the Wife on grounds of inappropriate marital conduct; (2) the marital residence was awarded to Wife with Wife being solely responsible for payment of th e mortgage on the property beginning January 1, 1994; (3) Husband was ordered to pay the premium

on a life insurance

policy on his life in

the principal amount of

$100,000.00 with the Wife named

as sole beneficiary and the ownership of the policy was transferred to the Wife; (4) Husband wa s ordered to pay as alimony certain debts incurred through the use of certain credit cards by the parties during the marriage; (5 ) Wife was awar ded alimony payab

le for life at $1,000.00 per month on the first and fifteenth of each month. On January 16, 1997, the Wife filed a Petition for Contempt of Court seeking a judgment for past due alimony, reimbursement for lifeinsurance premiums paid by the Wife, and reimbursement to the Wife of payments made by her of certain credit card debts that had been ordered by the Court in the original Decree to be paid by the Husband in the amount of $10,006.85. On January 22, 1997, the Husband filed a Rule 60, Tenn. R. Civ. P., Petition to Modify and a motion seeking the immediate elimination of alimony payment s to the Wife. The H

usband also3

askedfor credit for all alimony payments made to the Wife after the date t hat a male

companion allegedly began living with her. The Husband, by the Rule 60, Tenn. R. Civ. P., motion moved the Courtto alter or amend the Final Divorce Decree to conform to the parties’ post-divorce decree agreements,

relieving the Husband from re im bursing Wife for her voluntary payments of the life insurance premiums and for her voluntary payment of the credit card debts previously ordered by the Court that Husband pay in the amount of $10,006.85. The evidence presented at the hearing on May 5, 1997 produced an unusual, if not bizarre, scenario. Apparently from the outset, the parties proceeded to i gno re the Divorce Decree by the Court. They continued to

reside together

at the marital re

sidence until the W

ife moved out in

March, 1994. The Husband stayed in the house and paid the Wife rent until the house was sold by the Wife on November 4, 1994. During this time, the Husband paid the e ntire amount of his

paycheck into the Wife’s chec king account and after she paid all bills and obligations of the two, they split the remainder. The Wife testified that she netted $39,342.56 from the sale of the residence. While not disclosing this amount to

her Husband, she

gave him $5,000.00

and paid the debts

of the Husband that the Court had ordered him to pay in the amount of $10,006.85. In addition, the Wife paid the monthlylife insurance premiums the Husband h ad been ordere d to pay. The Wife stated at the hearing that heractions were done in order to protect her interests on the mortgage securing the marital home and to protec t her credit rati

ng so that she could

purchase the house where she is now residing at 7938 Hamilton Mill Drive in Chattanooga. After the house was sold, the Husband paid the mont hly alimony of $1,00 0.00 under an arr

angement where

by he paid $750.00 d

irectly to th e Wife and their daughte

r paid $250.00 to he

r mother on behalf

of the Husband. Th

is was d one because there was an automatic $250.00 deduction from Husband’s paycheck

to pay the daughter’s note on her car. On December 1, 1996, Husband stopped the $750.00 payment of alimony because he discovered

that the Wife was allegedly living with a man named Norwood. The daughter continued to pay the $250.00 alimony to the W ife on behalf of t he Husband. The W

ife testified her

gross income for 1996 was $27 ,2 99.48. The Husban d testified that his

income was appro

ximately $ 7 2,000.00 annually. The Wif e stated that she p

urchased the hou

se on Hamilton Mill Dr

ive in October of 1995. The mortgage on th e second purcha

se is $109,000.00. She denied that Thomas Norwoodwas living with her at the address of 7938 Hamilton Mill Drive. She conceded, however,4

that Norwood receiv

ed his monthly bank st

atement at her a

ddress, they have

had a very close relationship

for the last one and one-half years, Norwood did spend the night occasionally, he eats dinner there virtually

all the time, he does not pay rent or utilities, and he ke

eps clothes at her

house sometimes. The Husbandveri fied by his testimony the post-divorce arrangements between Wife and himself. This arrangement lasted appar ently until the marital home was sold by the Wife. The record is not clear as to

when precisely t

he practice of d

epositing Husband’ s paycheck into Wife’s bank account stopped. Husband t estified that the insuranc e premium for the l

ife insurance on

his life was voluntarily paid by the Wife by agreement between the two. The purpose of the policy was to s ecure the mortgage on the marital residence. The monthly premiums of $100.00 were automatically

deducted from Wi

fe’s bank acco

unt and she agree

d to continue making that

payment. Husbandsaid that he already had $300,000.00 of permanent life insurance onhis life in addition t o the subject policy. He

insisted that they a

greed that he wou

ld pay only the alimony and certa in credit card debts other than the debts amounting to $10,006.85 that the Wife admits she voluntarily paid. Neither party maintained that the other was coerced into any of the agreements. When asked why he stopped the alimony payments after the November 15, 1996

payment, the Husband replied, “I

just felt that it was not fair for me to pay money to her when someone else

was living in the house.” He testified that he had called Wife’s house on several occasions and a
man answere d each time, that he had driven by Wife’s house on Hamilton Mill Drive at various times in the mornings and afternoons on15 or 20 occasions and he had seen Norwood’s car parked there. Norwood drove a red or burgundy Lincoln Continental. He had seen Norwood leave her house three or four times at around mid-morning. Kimberly Whiteside Brooks,

daughter of the p

arties, testified

that s he sa w nothing in her mother’s house

to indicate that anyone was living there other than her mother. Ne ttie Houston , mother of the Wife, testified that nobody was living with her daughter. Gwendolyn Norwood, mother of Tom Norwood, testified that her son lived w

ith her and his sisters at 3111 Curtis Street in Chattanooga. Thomas C. Norwood testifie d that he did

not live with Ms. Whiteside although he had spent the night the re. He is reti red from the United States Navy and receives a pension for 21 years of service as a Naval officer. He is pres ently employ ed as a furniture salesman in Chattanooga. He5

receives a pension check o f $1,850.00 a month

and earns about $2,700.00 a month from his priv ate employment. He lives with his mother at 3111 Curtis Street. Mr. N orwood testified on crosse xamination that he owns a burgundy Lincoln Continental and a car loan document dat ed 199 6 shows his address at Ms. W hiteside’s home on

Hamilton Mill

Drive. His

car insurance papers give the same address. His application for employment at Linda’s Furniture Store gave Ms. Whiteside’s addressas his present address and her phone number as his number. An Employment Eligibility Verificationform for tax purposes gave the address of Ms. Whiteside at 7938 Hamilton Mill Drive. Norwood’s W-4 withholding allowance form gave the same address. The original car registration in 1995 on the Lincoln Contine ntal showed Norwo

od’s address at 31 11 Curtis Street, but on October 31, 1996, the address was changed by Norwood to show 7938 Hamilton Mill Drive. A deposition from Mr. Tim Butler, assistant manager o f Firs t Enterprise Acceptance Corporation, verified the address furnished them by Norwood on his insurance verification form datedSeptember 17, 1996 to be the address of Ms. Whiteside on Hamilton Mill Drive. At the co nclusion of the hearing, the trial court rendered an oral findings of fact later incorporated by reference into the written opinion entered June 2, 1997. The trial court’s oral findings included the following:

. . . The Court finds that the insurance obl igation en ded when the house was sold. By her agreement and his too, that was to cover the house. Whenit was sold, it was over. Now, if she wants to keep it, I think she has a right to do that, but she has to pay for it. The Court does find that she has be en living with another man, Mr. Norwood. He makes approximately $4,50 0 .00 a month. I don’t believe the fac t , for the record, that he doesn’t contribute anything. If you take her total salary and divide it monthly, it’s $2,274.00. If you take 20 percent for taxes, if you paid her house payment of $1,022.00, that leaves her $797.00, and her total utilities run $604.00. She couldn’t possibly

live. There is no way she could make it. She had to get the money some where, the Court f

eels like that, and I think it’s, for the rec ord, it’s a rouse [sic] (ruse) so that he has to keep paying alimony. If she loves him, she ought to marry him,as he says he wants to. The Court feels like alimony should be reduced to $250.00 a month. I feel like he does owe the $10,006.85 she paid off on her accord for her own purposes, not yours. The Court feels like he should pay $500.00 a month to her back for paying that off at

no interest. When that is paid off, he is through with that, and h e should pay the other bills. The Court costs should be div ided and each side pay their own attorney.6 * * * * Yes, sir, I don’t feel -- I feel like it’s been a charade on the man, for the record. I think he’s been taken advantage of. He obviously went down and changed it. H e makes $4,500.00 a month. She couldn’t live on wh at she got. It’s just the evidence is overwhelming that somebody is helping her, and the only one before this Court would be Mr. Norwood, and that

’s what I find, and I’ll mak

e it pretty clear for the Court of Appea

ls. The pertinent por

tions of the written

opinion filed June 2

, 1997 are as follo

ws:
This cause came on to be heard on the 5th d ay of May, 1997, upon Petitioner’s Jacqueline Whiteside Petition for Con tempt , the Respondent’s Jerry Whiteside Petition for Modifi cation, as well as the Rule 60 Motion to Alter or Amend the Jud gment, and after hearing all the proof i n the cause, along with the examination of

all the exhibits, the Court m

ade certain

findings of fact

and conclusions of law with a copy of the Court’s memorandum opinion given from the bench attached to this Order and incorporated herein, IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED: 1. That Jerry Whiteside ’s obligation to p ay the life insurance premiumexpired w hen the parties’ mar ital home was sold in November, 1994. Jerry Whiteside owes no moneyon that issue and the Petition is denied as to that issue. 2. The Court finds that Jacqueline Whiteside is livi ng with a third person, Thomas Norwood, and that the Petition to Modify isgranted and the permanent alimony payments are reduced from $1,000.00 to $250.00 per month. 3. The Court finds there is no alimony arrearage due Jacque line Whiteside and that Jerry Whiteside is not guilty of contem

pt of court.
4. Th e Cou rt finds that Jacqueline Whiteside paid $10,006.85 towarddebts that Jerry Whiteside was ordered to p ay in th e Final Divorce Decree a

nd tha t Jerry Whiteside ’s Petition to have th ose debts declared Jacq

ueline Whiteside ’s obligatio n is hereby denied. Jerry Whiteside is

hereby ordered to reimburse Jacqueline Whiteside the sum of $10,006.85 paya ble at the rate of

$500.00 per month

until paid off with the debt beari ng no interest, for which execution may issue if necessary. 5. All of the remainder of the contempt petition is denied. 6. All of the remainder of Jerry Whiteside’s Petition to Modify and Rule 60 motion is denied. 7. Each party is to pa

y their own attorne

y fees. 8. That each party will pay one-half of the cou rt costs of this case, for which execution may issue if necessary. Entered this 2nd day of June, 1997.7 /s/ Samuel H. Payne, Judge

THE ISSUES The Appellant/Wi

fe presented the

following issues: I. Whether

the Court abused its discretion in modi fyin g the Final Decree to reduce the award of permanent alimony. II. Whether

the Court erred in v

acating the alim

on y and life insurance premium arrearages of Mr. Whiteside. III. Whether

the Court erred in te

rminating Mr. Whiteside’s liability for future life insuranc

e premium payme

nts. IV. Whether

the Court erred in failing to grant Ms. Whiteside post-judgment interest. The Appellee/Hu

sband presented

the following issue

s: I. The Court erred in not permanently terminating all permanent alimony. II. The Court erred in ordering Hus band to reimburse Wife $10 ,006.85 in debts Wife voluntarily paid.

THE DECISION Since this case was tried by the Court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by t he trial cour t. Unless the evidence preponderates against the findings, we must affirm absent error of law. T.R.A.P. 13(d). The pertinent portions of T.C.A. § 36-5-101-- Decree for Support of Spous

e and Children -- Modification -- D

elinquencies ar

e as follows: (a)(1) Whether the mar

riage is dissolved

absolu te ly, or a perpetual or temporary separation is decreed, the court may make an order and decree for the suitable support and maintenance of either spouse by the other spouse, or out of either spouse’s property, and of the children, or any of them, by either

spouse or out

of such spouse’s property, according to the nature of the case and the circumstances of the parties, the order or decree to remain in the court’s control; and, on application of either party f o r spousal support, the court may decree an increase or dec reas e of such allowance only upon a showing of a substant ial and material change of circumstances. . . . (2)(A) Courts having jurisdiction of the subject matter

and of the parties are hereby expressly authorized to provide for the future support of a spouse and of the children, in proper cases, by fixing some defi nite amount or amounts to be paid in monthly, semimont hly, or weekly installment s , or otherwise, as circumstances may warrant, and such awards, if not p aid, may be enforced by any appropriate process of the8 court having jurisdiction thereof, including levy of execution. * * * * (3) In all cases where

the person is rec

eiving alimony in

futuro and the alimony recipient lives with a third pers on , a rebuttable pr esumption is thereby raised t

hat: ( A) The third person is

contributing to the

support of th e a limony recipient and the alimony recipient theref ore does no t needthe amount of suppo

rt previously

awarded, and the court thereforeshould

suspend all or part

of the alimony obligation of the former spouse; or (B) The third person is receiving support from the alimony recipient and the alimony rec ip ient therefore does not need the a m ount of alimony previously awarded and the court thereforeshould

suspend all or part

of the alimony obligation of the former spouse. This subdivision (a)(3) shall in no way b e co nstrued to create any common-law marr

iage obligation as

to third parties.
The intent of statute (a)(3), Id ., is clear and unambiguous when read in the natural and ordinary meaning of the lan guage and in

the context of the entire statute without any forced or su

btle construction to limit

the import of the language. Worrall v. Kroger Co. , 545 S.W.2d 736, 738 (Tenn. 1977); City of Lenoir v. State, ex rel. City of Loudon , 571 S.W.2d 297, 299 (Tenn. 1978); see Azbill v. Azbill , 661 S.W.2d 682, 686 (Tenn. Ct. App. 1983). In Azbi ll , this Court elucidated the intent of the 1980 enactment pertaining to an alimon y recipient living w

ith a third person a

s follows:
It is clear that the Legislature merely provided a different method of proof for the sit uation where

the changed circumstance consisted of the alimony recipient living with a third person. In those instances the presumption arises that the alimony previously decreed is not needed and therefore the burden shifts to the alimony rec ipient to demonstra

te that although he or she is residing with athird person, this in no way alleviates the need for the alimony previously awarded. Th e synonym f or live is reside a

nd it is clear that

the use made of

the word “lives” in the statute could just as easily have been “resides.” Nowhere does it indicate that the

re must be any type of liaison, sexual or otherwise. Azbill , 661 S.W.2d at 686.
As noted, this amendment simply furnished a differen t subs tantial and material change of circumstancethat would warra nt the Court in

its discretion to modify the final judgment authorized by T.C.A. § 36-5-101(a)(1).9 A Motion for Relief o

f Judgment u nder Rule 60.02, Tenn. R. Civ. P., addresses the sound discretion of the trial judge; the scope of rev

iew on appeal is w

hether the tr

ial judge abused h

is discretion. Tony v. Muller Co. , 810 S.W.2d 145 (Tenn. 1 991); Underwood v. Zurich Ins. Co. , 854 S.W.2d 94 (Tenn. 19

93); Ellison v. Alley , 902 S.W.2d 415 (Tenn. Ct. App. 1995). After a thorough andcareful review of the record, we cannot say that the trial court abused its discretion in finding that the Wife, Jacqueline Whiteside, was living with a third person, Thomas Norwood, within the intendme nt of T.C.A. § 36-5- 101(a)(3). We agree that t

he evidence preponderates overwhelmingly in favor of the Court’s factual find ing in this regard. Jacqueline Whiteside, Thomas Norwood, and their three supporting witnesses stoutly denied that Norwood was residing at the Wife’s residence, but the evidence in the rec or d thoroughly impeac hed their testimony.
The trial court observed the manner and demeanor of the witnesses and is in a better position to determine the credibility of those who appeared personally

before th

e court. Any conflict in testimony requiring a determination of the credibility of witnesses is for the trialcourt and is binding on the appellate court, unless othe r real evidence compe ls a contrary conclusion (citing authorities). Azbill v. Azbill

, 661 S.W.2d at 687.
There is no evidence in the record that compels a contrary conclusion. We affirm the trial court. This f

inding raises the rebuttable presumption that Norwood is contributing to the support of Ms. Whiteside and she therefore does not need the amount of support previously awarded in the final judgment of divorce. The ruling by the trial court established two substantive facts material to the Court’s decision to reduce the alimony in futurofrom $1,000.00 to $2 50.00 per month

under T.C.A. § 36-5-101(a)(3). First, a third person (Norwood) was living w ith the alimo ny recipient (Wife). Second, the third person is contributing to the support of the alimony recipient. The latter finding resolved the issue of “need” by the Wife who, in response to the presumption ra ised by the Court’s finding that Norwoodwas living with her, presented evidence denying that he contributed to her support and that her living expenses far exceeded her financial ability to pay. The trial court stated unequivocally that it did not believe Norwood was not contributing to the Wife’s support and, as such, suspended the alimony payment from $1,00 0.00 to $250.00. The

statute vests the trial cou

rt with the authority to10

take such action and it did so in its discr et ion. If the alimony recipient fails to overcome the presumption, as here, T.C.A. § 36-5-101(a)(3)(A)states: “. . . and the court therefore should suspend all or part of the alimony obligation of the former spouse .” (emphasis added). The word “should” is the past tense of “shall.” Webster’s New Universal Unabridged Dictionary , 2nd ed. We find that the evidence does not preponderate against the Court’s findings. There was no abuse of discretion by the Court, and the

Court correctly f

ollowed the law. W

e affirm. Wife next contends that

the Court erred in vacating the alimony and life insurance premium arrearages of the Husband. In the tr i al court’s oral findings of fact at the conclusion of the hearing on May 5, 1997, incorporated by reference into the written final order of June 7, 1997, the Court granted full cre

dit t o the Husband for any alimony payments due to Wife from the time that the proof in the recor d showed t he Wife and Norwood to be living together until the date of the filing of the Petition t o Modify by the Husband. Wife contends that Husband owes her $1,125.00 based upon the arrearage for the month of Dece

mber, 1996 and unti

l January 16, 1997,

the date she file

d t he Petition for Contempt. The Husband filed the Petition to

Modify on January 22, 1997. Therefore, the arrearage would run for the month of December, 1996 until January 22, 1997. We find the total arrearage for that period of time to be

$1,275.00. Husban

d, inhis brief, agrees with Wife’s contention that the law holds that alimony ordered to be paid is due and collectable until the Petition to Modify is filed. See Azbill v. Azbill , 661 S.W.2d 682, 687 (Tenn. Ct. App. 1983). We reverse the trial court and order that the Husband pay the sum of $1,275.00 to the Wife as alimony arrearage. We do not find that the Court abused its discretion in setting the alimony in futuroat $250.00 per month, beginning January 22, 1997,

and affirm the tr

ial court. The Final Decree of Divorce of December 1, 1993 ordered the Husban d to continue payme nts
on the policy of insuranceon his life with the Wife as beneficiary and to transfer the policy to Wife’s possession. The Court awarded to the Wife the marital residence subject to a $100,000.00 mortgage and, beginning January 1, 1994, the Wife was solely responsible for payment of the mortgage. The payment of the $100.00 monthly insurance premium was not designated as alimony, but was ordered

as a part of the equi

table distribution o

f the marital prop

erty and assets by

the Court betw

ee n the parties at the time of divorce. Bothpartie s testi fied at the hearing in the instant case that the $100,000.00 life insurance11

policy was for

the purpose of mortgage protection. The Husband testified that he already had $300,000. 00 in life insurance and that he obtained the $100,000.00 life policy for mortgage insurance. The Wife agreed that the parties had discussed one of the uses of the policy would be to
secure mortgage protection, but it actually was a life insurance p olicy purchased for the general benefit of the Wi fe. Wife demanded $3,500.00 in back payments from the Husband. The Wife further testified that

the $100.00 premium

monthly payment was automatically deducted from her banking account and that

she had agreed w

ith the Husband in Ja

nuary of 1994 that

he would deposit his entire paycheck in her banking account and that she would make the payments of all obligations betweenthe two parties and the balance would be split on a monthly basis between the two. She stated that after the house was sold, she continued to make the payments becaus

e it was in her best interest to do so and that she never demanded of the Husband to make the payments until she filed the Petition for Contempt. There is no showing in the record that the Husband ever refused to make the payments, but rath

er the Wife cont

inued to maintain

the status quo by co

ntinuing the automa

tic deduction from her bank account. The Court decided the

credibility

issu e in favor of the Husband and ruled that the $100,000.00 insurance policy was indeed for purposes of mortgage insurance, and when the Wife sold the house the obligation of the Husband to pay the premium terminated. The Court ruled that the Husband owed no money and that the Wife’s Petition was denied as to that issue. By this ruling, the trial court made a factual finding that the parties mutually agreed that the Wife would pay the insurance premiums. Unlike the requirements of T.C.A. § 36-5-101(a)(1) regarding the Court’s author ity to increase or decrease spousal support only upon a substantial and material change in the circumstances of the parties, such a showing is not requiredin this instance b ecause the Order to pay t

he premium was not d

esignated as alimo

ny by the Court in the

origin a l Divorce Decree as was the payment of the credit card indebtedness. As the final arbiter of the facts, the Court in its discretion decided the issue. These matters arose out of a divorce proceeding. Quoting from Kelly v. Kelly , 679 S.W.2d 458, 460 (Tenn. Ct. App. 1984):

The Supreme Court of Te nnessee, cit

ing Evans v. Evans , 558 S.W.2d 851, 854 (Tenn. App. 1977), has ruled that in such cases, trial courts are vestedwith broad discre tion in adjudicating

the rights of the p arties. Fisher v . Fisher , 648 S.W.2d 244, 246 (Tenn. 1983). Decisions bas e d12 upon this discretion are entitled to great weight. Edwards v
. Edwards , 501 S.W.2d 283, 288 (Tenn. App. 1973).
In light of the Court’s

finding that th

e Wife voluntarily agreed with Husband to pay the insurance premiums in direct violation of the Divorce Decree of which she was fully aware; that the Wife paid the premiums every month from January, 1994 until the time of the hearingwithout ever demanding of the Husband to pay or reimburse her until she filed the Petition for Contempt; the absence of proof in the record that Husband ever refused to make the payments; all of w h ich evidence fully supports the Court’s finding of a consent agreement between the parties. We do not find abuse of

discretion and, th

erefore, aff

irm the Court’s den

ial of the Wife’s

claim of $3,500.00 as arrearage for life insurance premiums. Tenn. R. App. P. 13(d). For the same reason,

as previously

noted, we affirm

the trial court’s action in terminating the Husband’s obligation to pay the insurance premiums in the future. We have carefully studied the two unpublished opinions cited by the Wife in support of her contentions regarding Issue I at tacking the Court’s discretion in reducing the permanent alimony award. We do not find eithe r case to be persuasive authority. In Binkley v. Binkley , 13 TAM 42-15, 3 TFLL 1- 7 (Tenn. Ct. App. 1998), the trial court stated that it was not really convinced that the alim ony recipient (wife) was living with a third party and furthermore, that the wife’s proof had rebuttedthe presumption that alimony was not needed. This Court, Middle Section, pointed out that the presumpt ion does n ot rise until the evidence shows by a preponderance that wife was in fact living with a third person and the evidence failed to pr ove this. The lower court was affirmed because the evidence did not preponderate against the factual findings of the trial court. In Duffi n
v. Duffin , 18 TAM 51-10, 8 TFLL 3-19 (Tenn. Ct. App. 1993), this case likewise involved a Petition to Modify filed by husband pursuant to T.C.A. § 36-5-101(a)(3)(A) and (B). The trial court found for the husband and re

duced the alimony p

ayments. This Court

, Western Section

, disagreed with the lower court that the evidence supported the factual findings by a

preponderance. To the contrary, this Court found from the record as a whole that the record did notcontain evidence that wife and Grimes had “occ

upancy of a commo

nplace of abode

” and reversed

the trial court. In the instant case, we agree with the trial court that the record contains overw helmin g evidence that supports the Court’s finding that (1) Norwood was living with the Wife and (2) he was contributing to Wife’s support within the meaning of T.C.A. § 36-5-101(a)(3)(A) and (B).13

Thereupon, the presumptive bubble burst and was replaced by the trial

court’s finding as an actual fact that based upon the proof in the record Norwood was contributing to the Wife’s support. The Court’s action was not “me re speculation”

as contended by th

e Wife, but was ba

sed upon facts in the record. If

the Wife was receiving financial help from ano ther source and not Norwood , common sense dictates th at she would have s

hown such in the pro

of in order to refute

the existing proof in the r ecord that clearly showed Norwood was living with her in her residence and was contributing to her support. Thi s, she did not do. Thus, the record established a reasonable inference that Norwood was contribut ing to the support of the Wife as found by the Court. Although we review de novo, unless the evidence preponderat es against

the Court’s findings of fact, we must affirm. As stated in Azbill , 661 S.W.2d at 686, “the whole question involves the method of proof.” T he proof supported the Court’s findings of fact by a preponderance and the trial court correct l y followed the law,

as previously note

d, we affirm. We now turn to the final issue of the Wife questioning whether the Court erred in failing t

o grant her post-judgment

interest on the or

dered monthly pay

ments of $500.00 without inte

rest until the amount

of $10,006.85 is pa

id pursuant to the ho

ld harmless clause

of the original Divorce Decree which, as previously noted, had declared the hold harmless obligation of the Husband to be in the nature of alimony. As such, the trial court clearly pos sessed the authority under T.C.A. § 36-5- 101(a)(1) and (2) to increa se or decrease the payments. Wife does not complain of the trial court’s variancein changing the pa yment of the awar

d from lump sum to

monthly installments, but rather contends that since the “Court granted Ms. Whiteside exe

cution powers on th

e judgment in

the event Mr. Whiteside failed

to make the requi red payments it wou ld be the height of i

njustice for Ms. Whiteside not to be awarded the post-judgment interest to which she is statutorily entitled.” The Wife cites the case of Inman v. Inman , 840 S.W.2d 927 (Tenn. 1992), in support of her claim: “Th e right t o interest on a judg ment is statutory, a

nd the failure of

any court to expr

essly provide such interest in its judgments does not abdicate the statute.” Inman , 840 S.W.2d at 932. Generally, we a

gree with the quot

e from Inman
. T.C.A. § 47-14-122

provides: Interest on judgments -- Com

putation. -- Interest

shall be computed on every judgmen t from the day on which the jury or the court, sitting withouta jury, returned the ver dict withou t regard to a motion for new14 trial. T.C.A. § 47-14-121 provides: Interest on judgments -- Rate. -- Interest on judgmen ts, inc luding decrees,shall be computed at the effective rate of tenpercent (10%) per annum, ex cept a s may be otherwise provided or permitted by statute; pr ovided, that where a judgment is based on a note, contract, or other writing fixing a rate of interest within the limits provided in § 47-14-103 for that particular category of transaction, the judgment shall b ear interest at the rate so fixed. T.C.A. § 47-14-102

(7) provides: “Interest” is compensation for the use or det ention of, or forb

earance to collect, money over a

periodof time, and does not include compensation for other purposes, including, but not limited to, time-price dif ferentials, loan charges, broke

rage commissions,

or commitment fees. For

example, when y ou borrow money, you pay the l ender simple inter

est (which is li ke rent) for the use

of the money. The a

mount of interest

you pa y depends on: (A) The principal, which is the amount you borrow; (B) The rate, which is a percent based on a per iod of time, usually one (1) year; and (C) The numb er of pe riods of time that you have the use of the money . . . .
With these statutes in mi

nd, we examin

e the Inman facts which are that pending wife’s

appe al, the husband withheld a $100,000.00 cash award payment to the wife which had been awarded to her by a judgment of divorce. Subsequently, upon the appeal becoming final, the wife moved the trial court by motion for post-judgment interest from the date of the entry of the Divorce Decree until the $100,000.00 was paid. The husband contended that wife was not enti tled to the post-judgmentinterest, assigning several rea sons whi ch are not pertinent here. The husband conceded that he hadnot paid the $100,00 0.00 cash award until the mandate from the Supreme Court

on a previous appeal had been handed down. However,the payment by the husband did not include interest on the cash award from the date of the judgment. The Inman court cited the Code § 47-14- 121 and stated: “Clearly, the pla intiff is entitled to interest at 10% on the $100,000 cash from the date of the decree until paid.” Inman v. Inman , 840 S.W.2d 927, 931 (Tenn. Ct. App. 1992). By contrast, the facts of the instant case are not in point with Inman . Here, the trial cour t awarded a judgment to the Wi

fe in the amou nt of $10,006.85 and decreed that the debt would be paid by the Husband in installments of $500.00 and at no interest. In Inman , the wife received a ca sh15

award payable immediately upon entry of the judgment while i

n the instant case the Wife received

a monetary award but to be paid in installments. She is not entitled to the immedi at e use of the money as was the case in Inman
. We think the case of Price v. Price , 472 S.W.2d 732 (Tenn. 1971) is dispositive of this case. See also West Ame

rican Ins. Co. v. Mo

ntgomery , 861 S.W.2d 230 (Tenn. 1993). The facts of Price are that the appe llant/wife was de

nied statuto

ry post-judgment inter

est because the Divorce Decree aw arded a money judgment as alimony in solido payable in future installments, and she was not entitled to the use of any of the money represented by the judgment until each installment was due. All installments were paid when due. The Supreme Court noted in Price , 472 S.W.2d at 734:

In 33 A.L.R.2d 1455, under the h e ading “Right to Inte rest on Unpaid Alimony,” the e ditorial staff gives a summary of the cases in the following language: In the greater

number of cases dealing with the question, interest has been allowedon unpaid

alimony. Thus, whe

re the problem ar

ose in respect of judgmentsfor

alimony in gross, interest has been allowed from the date payment was due unto the judgment until payment was made, and, as to unpaid installments,interest has been allowed from the date the particular installmentmatured
. Likewi se, interest has b een allowed on un

paid installments

of alimony against the estate of a deceased divorced spouse. The theory upon which interest is allowed in these cases is that a judgment awarding alimony is in the nature of a money judgment. The s ame result has been reached even where the judgment or installment became due andpayable pending an appeal of the judgment awarding the alimony, on the theory that the pa rty awarded alimony should not be deprived of it by the prosecution of an appeal. (emphasis ours).
Under Price , it

is plain that the Wife in the instant case is entitled to be paid post-judgment interest by the Husband fro

m the date each pa

rticular installme

nt matures at the r

ateof ten percent (10%) per annum. The judgment of June 2, 1997 calls for the award of $ 10,006.85 to be pai

d in monthlyinstallments of $500 .00 until paid in full. The first installmentmatured immediately upon entry of the judgment on Ju ne 2, 1997. Each su

bse quent install

ment matured every thirty days thereafter consecutively until the gross amount is paid in full. We hold that the Husband must pay post-judgment interest at ten pe

rcent (10%) per

annum, said interest accruing pro rata beginning with the matur ization of each installment and until the installmentis paid. We reverse and modify the trial court’s ruling denying post-judgment interest and remand the cause for the purpose of carrying out this Court’s instruction.16 The Appellee/Hu

sband raises two is sues: I. The Court erred in not permanently terminating all permanent alimony. II. The Court erred

in ordering Appellee to reimburse Appellant $10,006.85 in debts Appellant voluntarily paid. The trial court apparently was of the opinion that since the record showed the daughter was paying $250.00 of the original alimony of $1,000.00 andthat Wife testified at the June, 1997 hearing that she had continued to receive $250.00 from the daughter that it was proper to leave the parties in status quo. T.C.A. § 36-5-101(a)(3) provides that the trial court “should suspend all or part of the alimony obligation of

the former spouse .” Under the stat e of facts shown in the record, we find no abuse of discretion by the trial court in its decision to suspend a part of the alimony obligation of the Husband. We affirm. We hold thatthe court did not err in ordering the Husband to hold harmless the Wife in the amount of $10,006.85 for reasons we have previously stated in affirming the action of the trial court

on this issue. The trial court held th at the payment by th

e Wife of $10,006 .85 for credit card debt owedby the Husbandpursuant to the Div orce Decree w

as not a gift because she made the payment f or her own specific purposes, not his, and that as such, the payment was not made volun tarily; i t
was done by the parties in direct contravention of the Court’s Decree, and therefore lacked the legal authority to do so. There is no proof in the record by a preponderance that the Wife intended t o div est her right, title, a

nd interest in the $ 10,006.85, but to the contrary, she te

stifie d she fel t compelledto do so in order to protect her e mployment as a vice president of a local bank. It was critical that she maintain a good cr edit rating. We agree with the trial court’s findings that this was not a gift and that th

e Wife was entitl

ed to reimburseme

nt. This cause is remande

d to the trial court fo

r enforcement o

f its Divorce Decree as modified by this Court. The costs of the appeal are taxed one-half against the Appellant/Wife and one-half ag ainst the Appellee/Hus

band. Each party

shall pay their att

orney’s fees.

____________

__________________________ ______ _ WILLIAM H. WILLIAMS, SENIOR JUDGE
CONCUR:17

_________________________________________ W. FRANK CRAWFORD, P. J., W.S.

_________________________________________ DAVID R. FARMER, J.IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT KNOXV ILLE

_____________________________________________ JACQUELINE S. WHITESIDE , ) ) Hamilton Circuit No. 93-DR-2557 Petitioner/Appell

ant, )

) Appeal No. 03A01-9707-CV-00272 v. ) ) JERRY WHITESIDE , ) ) Respondent/Appellee. )

JUDGMENT

This cause came on to

be regularly

considered by theCourt on the record and for the reasons stated in the Court’ s opinion of even da te, it is ordered th

at: 1. The Appellee, Jerry Whiteside, shall pay to the Appellant, Jacqueline S. Whiteside, the

sum of $1,275.00 as alimony arrearage, together with post-judgment interest at the rate of 10% per
annumfrom the date of entry of the trial court ’s order in this ca

use, to wit, June 2, 1 997, until paid in full. 2. The Appellee, Jerr y Whiteside, shall

pay post-judgment in terest at the rate of 10% per

annumto the Appellant, Jacqueline S. Whiteside, for the reimbursem ent of the principal sum of $10,006.85 payable in conse cutive monthly insta

llments of $500.00, t

he first payment to

begin on the date of entry of the order of the trial court in this cause, to wit, June 2, 1997, until paid, and thereafter on t

he date of maturi

ty of each installm

ent until paid in full
. 3. The costs of this cause are taxed one-half to the A

ppellant and one-

half tothe Appellee, for which let exe

cution issue, if ne

cessary. Each p

arty shall pay the

ir respective a

ttorney’s fees. 4. The cause is rev

ersed in part, af

firmed in part, an

d remanded to the t

rial courtfor enforceme nt of the judgment a

s modified by this Cour

t.

__________________________________________ WILLIAM H. WILLIAMS, SENIOR JUDGE

__________________________________________ W. FRANK CRAWFORD, P. J., W.S.

__________________________________________ DAVID R. FARMER, J.