# FILED
November 4, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ THOMAS HENRY CAMPBELL, Plaintiff-Appella

nt, Shelby Chancery No. D12056-2 Vs. C.A. No. 02a01-9803-CH-00073 RUTH CAROLINE CAMPBELL, Defendant-Appellee.

______________________________________________________________ ______________ FROM THE SHELB Y COUNTY CHANCERY C OURT THE HONORABLE FLOYD PEETE, JR., CHANCELL OR

David E. Caywood, Marc E. Reisman Causey, Cay

wood, Taylo

r, McManus & Ba

iley of Memp

his For Appellee Dennis J. Sossaman of

Memphis For Appellant

AFFIRMED AND REMANDED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDG

E, W.S.

CONCUR: DAVID R. FARMER, JUDGE HEWITT P. TOMLIN, J R., SENIOR JUDGE
This appeal involves a motion to modify an alimony award. Appellant, Thomas Henry Campbell (Husband), appeals fro m the Chanc ellor’s ord er denying his motio n to modify alimony and awarding A

ppellee, Ruth Caro

line Campbell (Wife

), attorney ’s fees and costs
.1 At the t ime of the divorce, there were no longer any minor children in the couple’s

home.
2 In his bri ef before this Court, Husband’s concludes by requesting that his alimony obligation be reduced to $300.00 per month. 2 The parties weremarried on March 1, 1953 in Reno, Nevada. In December of 1982, the couple separated and on August 21, 1984, Husband filed a complaint for divorce on the grounds of irreconcilable

differences. T

he partie s entered into a Property Settlement Agreement (Agreement)

on April 22, 1985. Subsequently, a final decree of divorce was entere d on May 6, 1985 1 which approved a

nd incorporated

the Agreement

. The Agreemen

t provides in pertin

ent part: Husbandag rees to pay to Wife the sum of $1,500.00

per month as perio dic alimo ny until Wife’ s death or remar riage. It is ant icipa ted Wife may seek gainful employment a nd the fact she is receiving wages in an

amount not to exceed

$800.00 per month net pay after FICA and

Federal tax es will not be a material change of circumstances so as to warrant a decrease in the amoun t of periodic alimony paid to her by Husband. In addition, the

Agreement required Husband to convey all of his right, title and interest in the marital residence to

Wife with Wife to assume payments on the first mortgage. The Agr eement also requires Husband to maintain a life insurance policy with Wife as beneficiary until she dies
or remarries. Furthe

rmore, the Agreement requires Husband to provide a hospitalization and major medical insurance policy for the benefit of Wife until she dies or remarries or becomes eligible for such throug

h employment

which is comparable to tha t available

through Husband’s employment at the time of the divorce. On March 20, 1995, Wife filed a Petition for Scire Facias beca use H usband had unilaterally

reduced and eventually terminated his alimony payments. On March 31, 1995, Husbandfiled a Motion to Modify the Decree

specifically requesting the Chancellor “to reduce his support payments to $200.00 per month, with medical payments to $300.00 per month.” 2 In support of his request, Husband alleges that there have been material and substantial changes in circumstances since the entry of the divorce decree warra nting a reduction in his alimony obligation. Husbandasserts that Wife’s financial upswing, which included an inheritance from her mother’s estate,

coupled with

his financial downturn, which resulted in filing for bankruptcy
on his part, constitute

s a substantial and material change of circumstances to justify the requested3 The Chancellor de termined that Wif

e had in curred $10, 196.00 in attorney ’s fees in defending the appeal. However, in light of the fact that Wi fe had already been awarded attorney’s fees incurred in the ori ginal hearing on this matter, the Chancellor reduced this amount to $5,000.00. 3 reduction in alimony. I

n resp onse to Husban d’s motion, Wife asse rts that Husband is a

ble to afford the suppo

rt obligation and

that she at all times

has been in need o

f the support. In late July of 1995, a Divorce Referee denied Husband’s motion to modify the divorce decreeand awarded attorney’s fees to Wife in the amount of $20,000.00 plus cos

ts in the amount of $68 5.1 0. S ubs equ ent ly, Husband filed a motion in Chancery Court requesting the Chancellor to vacate the Referee’s ruling with regard to the motion to modify and the award of attorney’s fees. On June 6, 1996, the Chancellor entered an order denying the motion to modify, aff irming the ruling of the Divorce Referee, and awarding Wife an additional $5,000.00 for attorney’s fees incurred in defe

nding the appea

l. 3 Husbandappeals and pre sents the follo

w ing issues for review: (1) whether Wife’s inheritance coupled with Husband’s bankruptcy constitute

substantial and material changes of circumstances to warrant a reduction in alimony, a

nd (2) whether th

e Chancellor er

red in failing to overturn the ini

tial award of att

orney’s fe es and in awardin

g additional atto

rney’s fe es. Our review of this case is governed by T.R .A.P. 13(d ), which provides that review of findings of fact

by the trial c

ourt shall be de novo upon the record of the trial court, accompanied by a presumption of

correctnes s of the findings, unless the evidence preponderates otherwise. T.R.A.P. 13(d); Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 1993). Alimony Modification of an alimony obligation is authorized only if such is periodic alimony , as oppose d to a lim ony i n solido
. Brewer v. Brewer , 869 S.W.2d 928, 934 (Tenn. App. 1993). T.C.A. § 36-5- 101, which provides for spousal support, states, in pertinent part, that “on application of either party for spousal support, the court may decreean increase or decrease of such allowance only upon a showing of a substantial and material change of circumstances .” T.C.A. § 36-5-101(a)(1) (1996 & Supp. 1998) (emphasis added). W hether there has been a sufficient showing of a subs

tantial and ma

te rial change of circumstances is in the sound discretion of the trial court. Wilkinson v. Wilkinson , 1990 WL 95571, a t *4 (Tenn. App. W.S. July 12, 1990 ) (citing Jones v. Jones , 784 S.W.2d 349, 352 (Tenn. App. 1989)).4 Wife receives the V.A. fund for being a widow of a Korean War vete ran. 4 The party seek

i ng relief on the

grounds of a subs

tantial and mater

ial change in circumstances has the burden of proving such changed circ

umstances warra

nting an increa

se or decrease in the amount of the alimony obligation. Seal v. Seal , 802 S.W.2d 617, 620 (Tenn. App. 1990). The change in circumstances must have o cc urred since the entry of the divorce decreeordering thepayment of alimony. Elliot v. Elliot , 825 S.W.2d 87, 90 (Tenn. App. 1991). Furthermore, the change in circumstances must not have been foreseeable at the time the parties entered into the divorce decree. Id. If the chang e in circumsta

nce s was anticipated or in the contemplation of the parties at t he time they

entered into

the property settlement

agreement, such change is not material t

o warrant a modification of the alimony award. Jones v. Jones , 784 S.W.2d 349, 353 (Tenn. App. 1989). The decision to

modify the a

limony oblig

ation is factually

driven and requires a careful balancing of several factors. Cranford v. Cranford , 772 S.W.2d 48, 50 (Tenn. App. 1989). The factors set

forth in T.C.A. § 36-5-101(d), applicable to the initial grant of spousal support and maintenance, where relevan t, must be taken into

consideration in determining whether there has been a change in circumstances to warrant a modification of the alimony obligation. Threadgill v. Threadgill

, 740 S.W.2d 419, 422-23 (Tenn. App. 1987). While T.C.A. § 36-5-101(d) enumerates several factors for the court to consider, the need of the spouse receiving the support is the single most important factor. Cranford , 772 S.W.2d at 50. In addit

ion to the need of th

e spouse receiving support, the ability of the obligor spouse to provide support is taken into consideration. Id. As part of Husband’s conten

tion that his

support obligation should be reduced, Husband
asserts that Wife’s inheritanc e of approximately

$125,000.00 from h

er mother’s esta

te subsequent

to the divo rce constitutes a substa ntial and materia

l change in circ

umstances. Husbandalso contends that a reduction is justified because, in addition to the inheritance, Wife now owns the forme

r marital house mor

tgage-fre e, purchased a n

ew 1994 Honda veh

icle with cash, and is now receiving Social Security benefits along with proceeds from a V.A. Depe ndent and Indemnity Fund. 4 Furthermore, Husband avers that his financial downturn, which includes his company’s and his joint bankruptcy in 1990 and the l oss of numerous pro perty rig hts to5

for ecl osu re, w arra nts a red uct ion in a lim ony. On the other hand, Wife asserts that Husband is a man of substantial wealth and earning potential. Wife contends in her brief that sincethe divorce Husband has substantially increased his assets: by

acquiring an in

terest in a valuable Cadi

llac lease which is paid in full, an interest i

n a $30,000.00 Chev

rolet Suburban whi

ch is titled in his live-in lady

friend’s name, a

n interest in real property in Shelby County

, Tennessee, an

interest in at least 4 parcels of real property in the State of Colorado, an interest in 107 condominiums

in Memphis, Tennessee, an interest in two pieces of property in

Mississippi, an inter

est in a limited liabi

lity corporation which, at least for the next 8 months, will pa y him $4,000.00 per month as a return in capital and cash value in a life ins uran ce po lic y. Furthermore, Wife asserts that, along with t he accumulation of n

umerous assets, Husband’s income has increased since the time of the divorce, and that one o f Husband’s business entities substantia lly contributes to his living expenses which is not charged to him as income. According t o Wif e, despite the fact that Husband has gone through a bankruptcy proceeding, his fin anci al s itu ati on a nd l ife styl e hav e im pro ved sin ce t he en try of the divorce decree. Wife argues that ev en though her inc

ome has increase

d due to the inheritance she received and various other

investments,Husband failed to prove that these m

atters were not i

n the contemplation of the parties at the time of the divorce decree. In addition, Wife asserts that while her income may have increased, t he cost of l iving has substan tially incre

ased, and, as a result, she is barely

able to afford her reasonable expenses even with the ful l am oun t of ali mon y. It is true, as Husband argues, that inheritance may constitute a

substantial and material change warranting a reduction in the award of alimony. See Brewer v. Brewer , 869 S.W.2d 928 (Tenn. App. 1993). However, as previously stated, the determination of whether there ha s been
a chan ge in cir cum sta nces to j ust ify a modification in the support obligation is a factually driven inquiry determined on a c

ase-by-c ase basis. So

while inheritanc

e by one spou

se may constitu

te
a change in circumstances in one case, inheritance under a differe

nt set of circumsta

nces may fa

il to constitute such. See Claiborne v. Claiborne , 1988 WL 5684 (Tenn. App. E.S. Jan. 29, 1988). While it is true thatWife has improved her financial status since the time of the divorce due in part to the receipt of theinheritance from her mother’s estate, Husband has failed to carry5 The record reveals that Wife receives through interest income and dividends from the investment of the inheritance approximately $610.00 per month. 6 the burden thrust upon

him in proving that such has constitut ed a substan tial and ma terial chan ge of circumstances. It must have been foreseeable to

the parties in a marriage of thirty-two y ears that Wife would receive an inheritance from her mother’s estate. Regardless, Husband failed to carry his burden of proving that such wa s unforeseeabl e or that such was not within the contemplation of th

e parties at the ti

me of the Agree

ment. In addition, the Agreement suggests that the parties did not contemplate that $1,500.00 would b e all the support that Wife would need. As noted above, the Agreement provides that if Wife received

futu re income from e

mployment, su

ch would not constit

ute a change in circumstances.

This suggests that the alimony agreed to was not contemplated to c

onstitute all that Wife truly needed. Furthermore, this Court does not believe that alimony of $18,000.00 per year was all that Wife truly neede

d to support hersel

f nor is it sufficient for Wife to maintain the standard of living to which she was accustomed prior to the divorce. The record indicates that the parties enjoy ed
a comfortable standard of living during their marriage and the re is no evidence pr

esented to indicate that Wife is now able to enjoy a higher standard of living b ased on her alimony comb ined with the proceeds from the inheritance. 5 Wife’s Affidavit of Income and Expenses establishes that she is just able to afford her reasonable expenses even when in receipt of the full amount of spousal support. With regard to the ma

rital resid en ce, ownership of

such mortgage

-free was obvio

usly foreseeable

and within the contemplation of the parties at the time of the divorce decree. T h e Agreement

provides for Wife to receive the marital residence and to assume the first mortgage. Sure ly it was foreseeable that the mortgage would be paid-off and Wife would therea fter o w n the home mortgage-free. Furthermore, the increase i n equity in

the marital home a

warded to Wife cannot be conside

red to constitute

a substantial andmaterial change in circumstances. See Norvell v. Norvell

, 805 S.W.2d 772, 775 (Tenn. App. 1990) (“[T]he increased value of marital assets receive

d in a divorce dec

ree is not to be considered as a factor constituting a substantial change in circumstances to support an alimony award reduction.”). In addition, Wife’s receipt of monthly Social Security benefits and procee ds from a V.A. Dependent and Indemnity

Fund6 Even though Husban d’s live-in girlfr

iend did not contrib

ute financially, her name was listed on each of t

hese transactio

ns. 7 were foreseeable a

nd, thus, presumab

ly within the contemplation of the parties at the time of the Agreement. Wi th re gard to Husband’s financial status, Husband’s protestations of poverty are not supported by the reco

rd. At the time of th

e divorce, Husba

nd had an income of

approximately $75,000.00. Following the divorce, Husband’s financial situation improved substantially according to the record. At the beginning of 1990, the year in which Husband filed the Chapter 11 bankruptcy, Husband’s corporation, Professional Development Corporation, had a value of approximately

$3,100,000.00. In addition, a ccording to

a financial statement prepared in 1994, Husband, approximately four years aft er the bankruptc

y filing, ha

d a net worth

of approximately $2, 700,000.00, and according to a 1994 W-2 form fr

om Campbell Manag

ement Company , another business entity

of Husband’s,

his wages were $84,700.00 which did not account for the
numerous indiv idual bil ls and debts paid for by the company. At the proc eedings below, Husbandcontended that his salary was $2,467.00 per month

which is approximately $30,000.00
a year. However, this amount does not include the substantial co

ntributions his busine

ss entity providedfor his living ex pens es which Wife asse rts equals, at a min

imum, approximately $88,000.00 a year when added to his salary
. Furthermore, in January 199 5, during the time

when Husband beg

an to unilaterally reduce his supportobligation, Husband’s live-in girlfriend became an employee a t his company witha $30,000.00 salary, an d Husband tender

ed a check to her

in the amount of $5,50

0.00. Also during this time, Husband leased a 1995 Cadillac and purchased a 1994 Chevrolet Suburban for $30,000.00. 6 Finally, the re are numerous

assets, such as, to

name a few, a hou

se in Memphis valuedat $285 ,000.0 0 and two houses in Colorado valued at $385,000.00 and $415,000.00 respectively, that Husband has acquired since the Agr eement. The record indicates that while Husband may have suffered some financial setbacks due particularly

to his profession a

s a real estate d

eveloper, Husba

nd’s financial sit

uat ion has improved, notdeteriorated, since the execution of the Agreement. After extensive discovery on the part of Wife, thwarted by evasive actions on the part of Husband, it was rev ealed t hat Husband’s financial situation is not as disastrous as he claims. As previously stated, Husband8

has acquired numerous rights in property and assets and has had significant increases in income since the divorce decree. The record simply does not support Husband’s contention that there has b een a substantial and material change of circumstances when consideration is give n t o Hu sband’s entire financial situation. The record taken as a whole does not reveal a man who does not have the ability to provide $18,000.00 per yea r in alimony for which he is liable. Hu sband’s bankruptcy does not automatically co nstitute a substantial and material chang e of circumstan ces. See Lampley v. Lampley , No. 01A01-9708-CH-00423, 1998 WL 44938 (Tenn. App. M.S. Feb. 6, 1998). In Lampley , the husband had, since the entry of the divorce decree, filed a Chapter 7 bankruptcy, suffered several fina ncial downturns, an d had a cquired
numerous finan cial c ommi tment s. In contrast, the wife had acquired, as gifts from her mother and son-in-law, threereal estate properties which were used as rental property, had built a new house for herself, an

d had numerous othe

r financia l ups wings since the date of the divorce decree. In an attempt to reduce his alimony obligation, the husband contended that he could no long er pay the agreed alimony

and that the wife was no longer in need of such. The wi f e responded

by noting that the husban d’s earnings had increased since the divorce decree, that he had purchased a new home with his paramour and her children, and that he hadnumerous other
as sets un affected by the bankruptcy. The Court, refusing to alter the husband’s alimony obligation, said:

Alimony is not a required provision in the marital dissolution agreement.

. . . Nevertheless, the parties saw fi t to inc lude alimony in their agreement. It must be presumed that the alimony provision was part of the inducem ent or consideration for the other provisions regarding division of the mari tal es tate. The Courts are justif

ied in being reluctant to disturb an alimony obligation assume

d under such cond

itions. Id. at *5. We agree with the trial court that the changes in circum stances sinc e the entry of the divorce decree are not substantial or material insofar as Husband’s ability to pay a nd the Wife’s needs. Accord in gly, we affirm the Chancellor’s denial of Husband’s motion to modify the divorce decree. Attorney Fees Husbandcontends that the Chancellor erred in affirming the Divorce Referee’s awarding Wife $20,000.00 for attorney’s fees. More over, Husband contends that the Chancellor9

committed further error in awarding Wife an additional $5,000.00 for attorney ’s fees incurred on appeal of the Referee’ s ruling. T. C.A. § 36- 5-103(c) authorizes recovery of reasonable a ttorney’s fees incurred in the enforcement

of a decree for alimony. Brewer , 869 S. W. 2d at 936. The trial court has wide discretion in matters involving the awarding of attorney’s fees. Thus, this Cour t w ill not interfereabsent a showing of an abuse of that discretion. Threadgill , 74 0 S.W.2d at 426. Husbandhas failed

t o establish that the evidence preponderates against the Chancellor’s affirmance

and additional aw

ard of attorney

’s fees. It was Husban

d who unilaterally

reduced and subsequently

terminated his

alimony obligation, causing Wife to take action to enforc

e payment. Husband’s response included the motion for reduction, requiring Wife’ s counsel t o enter a defense. Furthermore, th e record indic

ate s that Husband’s evasive actions and attitude contributedsignificantly

to the attorney ’s fees incurred by Wife. Thus, we find that the Chancellor

did not abuse h is discr etion in the award of attorney’s fees in the amount of $25,000.00 to Wife. The judgment of

the trial court is affirmed, and the case is remanded to the trial court for such further pro ceedings as may be necessary

. Appellee’s motio

n for attorney

fees on appeal is denied. Costs of ap

peal are assess

ed against Appe

llant.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDG

E, W.S.
CONCUR:

____________________________________ DAVID R. FARMER, JUDGE

____________________________________ HEWITT P. TOMLIN, JR. SENIOR JUDGE