### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVI LLE Se pte m be r 23, 200 4 S es sio n

GLO RIA J . BEVI LL v . ELLI S M. BEVI LL, SR.

Appeal f romthe Circ uit Court for Ham ilton Coun ty No. 99D479 L. Mar ie Williams, Judge

No. E2004-00190-COA- R3-CV - F ILED DECEMBE R 30, 2004

This is a post-divorce c ase. The parties were divorce d in 1999. The judgment of divorce a war ded G l o r i a J

. B e v i l l ( “ W i f

e ” ) a l i m o n y in f

utu ro of $1,750, subject to provisions p er t ai ning to the retire ment of her

then-former spouse, Ellis M. Be vill, S r. (“ Husband” ). I n specific terms, the jud g me nt p ro vid e d th a t up on Hu sb a nd ’s re tir e me nt, he wa s e nti tle d to reduce the a mou nt o f h is alimony payment to $1,300, subject, howeve r, to a stipulation in the judgment pr oviding that Husband’s post-retireme nt earnings could aff ect the amount of hi s obligation. Husband retire d and, pu rs ua nt t o th e div or c e jud g me nt, un ilate ra lly re du c e d th e a mou nt o f his mon thl y a lim on y pay me nts

. I n response , Wife filed a petition to interpre t the di vorce judgme nt and/or modi fy the s pousal support

awa rd. The trial court interpr eted the divor ce judg ment as permitt i n g an upwa rd modification of Husband’s a limony obligation. Upon review of the evidence, the trial court subsequently incre ased Wife’s alimony

awa rd to $1,900 per month, in addition to awa rding her attorney ’s fee s. I t is from this order that Husba nd appea ls. W e af firm.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed; Case R em anded

C H A RLES D. S US ANO , J R ., J ., delivere d the opinion of the court, in which D. M I CH A EL S WI NEY and S HAR ON G. LEE , J J ., joined.

J ohn R. Meldorf, I I I , Hix son, Tennesse e, for the appe llant, Ellis M . Be vill, S r.

F los sie Wei ll, Chatta no og a , T e nn e sse e , f or the app e lle e , G loria

J. B e vil l.

OP IN ION

I.

Wife filed her

orig inal compl ai n t fo r d i vorce on Fe bruary 24, 1999, on the g round of irrec oncilable diff

ere nces or , in the alternative, inappropriate marital c onduct. The pa rties had be en marrie d for ove r 36 y ear s. When the complaint was filed, W ife ha d been disa bled for at least 15-2-

y ear s due to sever e osteoa rthritis. She alleg ed that it wa s anticipated her condition w ould continue to preve nt her from obtaining g ainful employ ment. The c omplaint further state s that the parties ha d, among other assets, a retirement plan in Husba nd’s name that was assoc iated with his employ ment

a t E rl a ng e r M e dic a l Ce nte r, a ndva ri ou s in ve stm e nts , in c lud ing I DS/Am e ri c a n E xpre ss s e c urity

acc ounts. Husband responde d by denying all alleg ations of wrong doing set for t h i n W i fe’ s complaint, save f

or Wif e’ s al l egation of irrec oncilable diff ere nces. H e aske d that the parties be decla red divorc ed. The parties ha d no minor children.

When the divorce complaint was c alled for trial, the parties announce d that they had re ache d an ag ree ment as to all matters in controve rsy

. The trial court approve d their ag ree ment in a judg ment enter ed on De cembe r 16, 1999. I n the judg ment, the court gr anted the pa rties a divorc e and a war ded sp ou sa l su pp ort in futuro to Wi fe su bje c t to the fo llo wi ng pr ov isi on s:

(a) [Husband] shall pay

to [W ife] the s um of [$1,750] per month, on or bef ore the 1st of eac h month, beg inning the month of A ug ust 1999, and shall continue to pay t h i s am o unt until t he later of either of the fol lowing two e vents: [Husband] retire s from Erla ng er Me dical Center or until J uly 31, 2001;

(b) Upon the occur

renc e of the later of

either of the two eve nts set forth above , spousal support shall be reduc ed to [$1,300] per month, due and pay able on the 1st day of ea ch month;

(c ) I n t h e e v e n t t h a t [H u s b a n d ] c o n t i n u e s t o h a v e e ar n i n g s a f t e r his retire ment from Erlang er, he ag ree s to notify [W ife] upon rec eipt of his e arn ing s a ndto f

urnis h p ro mpt ly to he r i nf ormatio n a s to his

e a r n i n g s

. If t h e p ar t i e s ar e u n ab l e t o a g r e e a s t o w h a t e f f e c t , i f a n y, such ea rning s would have on incre asing her a limony , then [Husband] ag ree s to pay

for mediation prior to liti g ation;

(Numbering in origina l omitt ed). The judgme nt a lso divided the parties’ marital a ssets. I t awar ded Wife one-ha lf of Husband’s retire ment fund from Erlang er Medical C enter at the time those funds would be available for w ithdrawa l. Husband wa s fu rt h er require d to pay Wife $75,000 upon the entry of the judg ment, and $50,000 on or befor e J uly 20, 2001. Wife was also a war ded $10,000 as

a l i m o n y in solido

As a dd iti on a l sp ou sa l su pp ort in f utu ro , H us ba ndwo uldbe re spon si bl e fo r Wi fe ’s he a lth insurance for the r emainder of her life. The divor ce judg ment provides that

[Husband] shall initi ate a nd pay the cost of [W ife]’s health insuranc e, including COB RA benef

its for so long a s they

are available , for the

re ma ind e r of [Wife ]’s lif

e . [H us ba nd ] sha ll p a y , in de mni fy , a ndho ld ha rm le ss [Wif

e ] fo r pay me nt o f a ll m e dic a l, d e nta l, h os pit a l,-3- psy chological, a nd pharma ceutica l expenses incurre d by [W ife] wh ich are no t paid b y

a ny thi rdpa rty or c arrie r, e xce pti ng that if [Wife ] use s a ny

he alt h care p ro vid e r n ot i nc lud e d inhis private insurance plan, [Husband] shall not be responsible for any char g es for said provider

. Following the divorce , the re cord de monstrates that issues ar ose betwe en t h e parties

c on c e rn ing Hu sb a nd ’s ob lig a tio n to furnis h he a lth ins ur a nc e a nd to c ov e r v ari ou s me dic a l e xpe ns e s. I n D e c e mbe r, 20 02 , Wif e ’s CO BRA be ne fi ts, wh ic h s he re c e ive d th ro ug h H us ba nd ’s he a lth insurance , expired. Consequently , she was forc ed to obta in new insuranc e. Husba nd obtained the paper work for

her to a pply for TennCare cover ag e. Wife contende d, howeve r, t hat s he was informed Te nn Care wa s n o lon ger a ccep tin g app lic a tio ns . Wif e ’s a tto rn e y

su bs e qu e ntl y

a ssi ste d h e r i n obtaining H I PAA cover ag e throug h Blue Cross/Blue Shield, at a pr emium of $ 5 4 5

. 4 6 per month. At the time of the most rec ent hea ring below, Husba nd was c overing these monthly payments. An issue also arose during this period of time as to W ife’s visit s to her psy chiatrist, Dr. Mc Doug al. Her health insuranc e provide d cover ag e for a certain number of such visits; Wife, howeve r, excee ded the number of pe rmitted visits . Husband re mitted approxi mately $900 to cover

the ad d i t i onal cost.

I n Fe bruary , 2001, Husband re tired fr om Erlang er Me dical C en t er

. Subsequently , on November

1, 2001, Wife sought a n injuncti o n fr o m the trial court to dire ct Husband to sig n a Qualified Domestic Relations O rder that would entitle Wife to one -half of the Erlange r M edica l Center r etireme nt fund per the divorce judgme nt. The trial court entere d an appr opriate or der a nd Wife su b s e q u e n tl y

r e c e iv e d ap p r o xim a te ly

$ 1 4 0
, 0 0 0
, o r

o n e

- h a lf o f th e r e ti r e me n t f

u n d
, inJ une, 20 02 . A ft e r h is reti rem ent, Hu sb a ndwe nt t o w or k f or Wal g re e ns Pha

rm a c y on a fu ll- tim e ba sis

. I n April or May , 2003, he re duced h i s h o u rs t o 32 hours per wee k. On J une 1, 2003, Husband unilatera lly

lowere d his monthl y

spousal support payment to $1,300. I n J uly , 2003, Husband

commence d working at B i-L o Pharmac y . Althou g hh ew a s s u b sequently offe red a full-time position, Husband c hose to work f

ewe r hours. Since A ug ust 1, 2003, Husband has wor ked 30 hours pe r we ek at $41.83 per

hour.

On Aug ust 11, 2003, i n response to Husband’s dec ision to reduce his monthly alimony payments, Wi fe f

iled a “Petition for Show Cause and t o I nterpre t and/or Modify Dec ree ,” alleg ing that a substantial and material chang e in circ umstances ha d occur red since the entry

of the divorc e judgme nt. Wi fe contended that Husband’s earning s incre ased after his retireme nt, that her ne eds had also incre ased, and that Husband’s reduction of his support payment to $1,300 per month ca used her financ ial h ar d s hip. She further alleg ed that Husba nd had failed and re fused to comply with the divor c e ju d g me n t an d
, c o n s e q u e n tl y , s h e w a s e n ti tl e d to a tt o r n e y ’ s f e e s

. I n r e s p o n s e , H u s band

aver red that he was e ntitled to reduce the amount of spousal support per the divorce judgme nt and that “ thi s r e du c tio n c on sti tut e s a ny un a nti c ip ate d cha ng e of c ir c ums ta nc e s w hic h w ou ld e nti tle [Wife ] to a ny

re li ef.” Hu sb a nda lso fi le d a c ou nte r- pe tit ionin w hic h h e a lle g e d th a t Wif e wa s in violation of the divorce judgme nt (1) due to her failure to pay medical bill s incurre d by seeing Dr. McDoug al more of

ten than provide d by h er h ea l t h insurance , and (2) for f ailing to a

pply for “re asonably -price d health car e insuranc e,” i.e.
, TennCar e, and choosing her own ins uranc e plan, the-4-

cost of which H usband wa s require d to pay

. Husband a lleg ed that these actions constituted willful

c on te mpt of the div or c e jud g me nt.

At the hea

ring on Wife’s peti t i o n and Husband’s counter -petition, the trial court rec eived testimonyfrom both parties. The court also hear d from an e mploy ee of Creekside , the independe nt living ce nter at which Wife reside d, who testified as to Wife’s livi ng expenses, the size of her apartment, and the scope of ser vices that we re a vailable to her at C ree kside. The trial c ourt enter ed an orde r on De cembe r 9, 2003, in which it found the following : (1) that the provisions of the divorc e jud g me nt that pe rt a ine d to Hu sb a nd ’s po st- re tir e me nt e mpl oyme nt p e rm itt e d th e cou rt to a dd re ss whether a modification of alimony was a ppropriate ; (2) that Wife wa s entitled to increa sed alimony in the amount of $1,900 pe r m o n t h ; (3 ) that with respec t to W ife’s visits to her psy chiatrist, Dr. McDoug al, Husband was require d to c over the cost of those visits, even if they exceede d the number of vis its pe rm itt e d u nd e r h e r i ns ur a nc e ; a nd (4 ) that Wif e wa s e nti tle d to $4 ,0 00 in atto rn e y ’s fe e s. The trial c ourt furthe r found that ne it h er Wife nor Husband wa s in contempt, but that Husband mis int e rp re te d th e div or c e jud g me nt. I t is fr om this or de r that H us ba nda pp e a ls.

II.

On appe al, Husband makes several arg uments challeng ing the trial court’s decision: (1) that the trial court err ed in de clining to pe rmit a reduc tion in Wife’s alimony g iven the fa ct that Husband retire d since the e ntry

of t h e d i v o rc e j udg ment authorizing him to reduc e his spousal support payments to $1,300 per month; (2) that the tria l court er re d by considering Husband’s e arning capa city rathe r than his actual part-time e arning s in calculating his spousal support oblig ation; and (3 ) that th e tr ia l c ou rt

e rr e d b y a wa rd ing a tto rney ’s fe e s to Wif e . H us ba ndse e ks a

re ma ndof

thi s
case to th e tria l c o u r t f

o r th e p u rp o s e o f ( 1 ) s e tt in g a n ap p r o p r iate le v e l o f s p o u s al support somewher e between $1,300 and $1,750 per month; (2) allowing the $900 paid by Husband to cover Wi fe ’s “non-emerg ency

excess visits” to Dr. McDoug al to be cr edited towar d Wife’s spousal support; (3) re quiring Wife to cooperate in Husband’s e fforts to obtain lower- cost hea lth insurance;

a nd(4 ) revers in g t he awa rdof a tto rn e y ’s fe e s. Wif

e c on te nd s th a t th e tr ia l c ou rt didno t e rr

in i ts decision, and f

urther se eks attorne y ’s fe es for the appe al.

III

.
We must first address whe ther it was a ppropriate for the trial court to consider whether a modification of spousal support wa s proper

. The trial court held that the issue was prope rly befor e it based on that provision of the divorc e judg ment which provide s that

[i]n th e e ve nt that [Hu sb a nd ] co nti nu e s to ha ve e a rni ngs aft e r h is retire ment from Erla ng er, he ag ree s to notify [W ife] upon rec eipt of hi s e ar n i n g s a n d t o f

u r n i s h p r o m p t l y t o h e r i n f o r m at i o n a s t o his

e ar n i n g s

. If t h e p ar t i e s ar e u n ab l e t o a g r e e a s t o w h a t e f f e c t , i f a n y, such earnings w ould have on incr easing her a limony , then [Husband] ag ree s to pay

for mediation prior to liti g ation;-5-

(N umb e ri ng in o ri g ina l om itt e d) . T he c ou rt int e rp re te d th is p ro vis ionto m e a n th a t H us ba ndsh ou ld “supply [W ife] with information conce rning his earnings and the rig ht to lit igation after me diation is r eserved on this iss ue.” Conseque ntly , the trial court held that “[Husband] has voluntarily stay ed in the work for ce an d [t he court finds] the [c]ourt has the rig ht and obligation under the fina l [j udg ment] of divorce to addr ess whethe r or not the re should be an alimony modification and, if so, in what amount.” We ag ree with the trial co u rt ’s interpre tation of this provision of the divorce judgme nt.

Husband relies primarily

on the Supreme Court’s de cision in Bogan v. Bogan , 60 S.W .3d 721 (Tenn. 2001) , in support of his arg ument that his retireme nt should have prompted the trial court
to r e du c e his sp ou sa l supp ort obli g a tio n. I n part ic ula r, Hu sb a nd c ite s lang ua g e fr om Bogan which provides that whe re an obligor spouse elec ts an “objec tively rea sonable re t i re m en t, taken in g ood faith and w ithout int ent to defe at the support obligation, [ the re tirement] constitut e[s] a substantial and material ch an ge i n circ umstance so that a modification of support oblig ations may be

con s i d ered.” Id. at 727. The tria l court ac knowledg ed the Bogan decision as “ addre ss[ ing] the interre lationship betwee n alimony and re tirement.” H oweve r, it deeme d Bogan to be immaterial in light of the la ng u age co n t ai n ed in t he divorc e judg ment permitting the court to modify the alimony . We ag ree that the ana ly sis in Bogan has little bearing on the instant c ase. In Bogan , the
court a ddresse d whether the husband’s retire ment – which had not be e n c on te mpl a te d b y

the e xpre ss lang uag e in the judg ment of divorce – constituted a substantial and mate rial chang e in circ umstance that w ou ld e na

ble a tr ia l c ou rt

to e ve n c on sid e r m od if

y ing a lim on y

pu rs ua nt t o th e fa c tor s se t f orth in T e nn . Co de An n. § 3 6- 5- 10 1( d) (S up p. 20 04 ). I n the ins ta nt ca se , th e div or c e jud g me nt e xpre ssl y pr ov ide d th a t sh ou ld H us ba ndc on tin ue to w or k fo llo wi ng his re tir e me nt, he wo uld be re qu ir e d to notify Wife of his continued employ ment and, should the parties be unable to a rrive at an ag ree ment as to the amount of spousal support, they would g o to mediation. I n addition, Bogan didno t a dd re ss the issue bef

ore us, i.e.
, the imp a c t of po st- re tir e me nt e arn ing s on a mod if ic a tio n of a lim on y , a ndthi s is a distinction concede d by Husband in his brief. We a g ree with the trial court that the c ourt had the “rig ht and obligation unde r the [di vorce judgme nt] to a ddress whether or not there should be an alimony modification and, if so, in what amount.” T here fore , based upon our finding that the issue of modification wa s proper ly befor e the tria l court, we now t u rn t o Hu sband’s a lleg ation that the modification order ed is not supported by the evidenc e.

We f irst a ddress, howeve r, another contention made by Husband. In his brief, he arg ues that even if some level of support exceeding $1,300 was justified, it was not a ppropriate for the trial court to awar d spousal support g reater than the $1,750 provided for in the divorce judgme nt. I n particula r, Husband contends that the third provision pertaining to employ ment afte r re tirement, whe n rea d in pari materia with the other provisions pertaining to retire ment, is only meant to addr ess the ef

fec t that hi s p os t- re tir e me nt e arn ing s c a n ha ve on the sp ou sa l su pp ort a mou nt o f $ 1, 30 0. Othe rw ise , s o the ar g ument g oes, the reduc tion in spousal support provided for in para g raph ( b) of the r etireme nt provision i s re n dere d meaning less. We disag ree with Husband’s interpr etation of the subjec t lang uag e. The re is nothing in the “re tirement” provisions that ex pressly or by nece ssary

implication caps Wife’ s alimony

at $1,750.T enn. C o d e A nn. § 3 6

- 5

- 1 0 1 (d)(1)(E ) s et s fo rt h t he fo l l o wi ng as f act o rs fo r t he co urt ’ s co nsi d erat i o n: 1

( i ) T he r el at i ve ear ni ng capaci t y , o bl i gat i ons , needs
, and f i nan ci al res our ces o f

ea ch part y i ncl udi ng i ncome f r om p ens i on, p r of

i t sh ar i ng o r ret i r ement pl ans an d al l ot her

so urc es; ( i i ) T h e r el at i v e e du ca t i on an d t r ai n i n g of ea ch par t y , t h e a bi l i t y an d opport u n i t y of

e a c h p a rty to se c u re su c h e d u c a tio n a n d tra inin g , an d the ne c e ssity o f a p a rty to

s ec u r e f u r t h er e du ca t i on a n d t r ai n i n g t o i mpr ov e s u ch pa r t y ' s e ar n i n g c apa ci t y t o a

re a so n a b le lev e l; ( i i i ) T he dur at i on of

t he marr i age ; (iv ) T h e a g e a n d m e n ta l co n d iti o n o f ea c h p a rty; ( v) T he phy s i cal condi t i on of ea ch part y , i ncl ud i ng , but not l i mi t ed t o, phy s i cal di s abi l i t y or i nca paci t y due t o a ch r oni c debi l i t at i ng di s eas e; (vi ) T he ext ent t o whi ch i t wo ul d be u n d e si rable f o r a part y t o s eek em p l o y m ent

o ut si d e th e h o m e b ecause such p art y wi l l be cust o d i an o f a m i no r chi l d of t he

marr i age ; (vi i ) T he separat e ass et s o f each p art y , bo t h real and pe rs o nal, ta n g ib le and i nt ang i bl e; ( v i i i ) T h e pr ov i s i on s m ade wi t h re g ar d t o t h e mar i t al prope r t y as def i n ed i n § 36- 4- 121; ( i x) T he s t andar d of

l i vi ng of

t he part i es es t abl i s hed dur i ng t he marr i age ; (x ) T h e e x te n t to w h ic h e a c h p a rty h a s m a d e su c h tan g ib le a n d inta n g ib le

co nt ri b ut i o ns t o t he m arri age as mo ne t ary and hom em aker co nt ri b ut i o ns, and
t an g i bl e an d i n t an g i bl e con t r i bu t i on s by a pa r t y t o t h e edu ca t i on , t r ai n i n g or inc re a se d e a rn ing p o w e r o f t h e o the r p a rty; ( x i ) T h e r e l a t i v e f a u l t of t h e pa r t i e s i n c a s e s w h e r e t h e c ou r t , i n i t s di s c r e t i on , de e ms i t ap p rop ri at e t o do s o ; and (xi i ) Such o t her fact o rs , inc lud i ng t he t ax co nsequenc es t o each p art y , as are

ne ce ssary t o co nsid er the e q uit i es b etwe en t he p arti es.

-6- I V.

Modification of spo u s al s upport is “fa ctually driven a nd calls for

a ca ref ul balancing of numerous fact o rs.” Bogan
, 6 0 S

. W

. 3 d at7 2 7 (q u o t i n g Cra nf or d v . Cr anf or d , 772 S.W .2d 48, 50 (Tenn. Ct. App. 1989)) . Consequently , the trial court is acc orded w ide discre tion in modi fy ing

awa rds of spousal support, id. , and, as suc h, “[a]ppellate courts are g ener allydisinclined to secondg uess a trial judge ’s s pousal support decision unl ess i t is not supported by the evidenc e or is contr ary to the public policies ref lected in the a

pplicable statutes.” Id. (q u o t i n g K i n a r d v . Ki nar

d
, 986 S.W .2d 220, 234 (Tenn. Ct. App. 1998)) . Our role , ther ef o re, is to determine whethe r the a war d demonstrates a

proper application of the rele vant leg al principles a nd is not cl ea rly unrea sonable. Id. a t 73 3. Whe n th e tr ia l cou rt ha s a rt ic ulate d it s f

ind ing s o f f

a c t, w e wi ll p re su me the c or re c tne ss of t hose findings unless the evidence preponder ates ag ainst them. Id. at 727; T enn. R. A pp. P. 13(d).

Whe n a sse ssi ng the iss ue of mod if ic a tion of ali mo ny a wa

rd s, the tr ia l c ou rt

is d ir e c te d to consider those fac tors contained in Te nn. Code Ann. § 36-5-101( d)(1) that are rele vant to the matter 1 befor e it. Id. at 730. Althoug h all rele vant fa ctors should be c onsidered, the two most im port ant-7-

fa c tor s ar e the abil ity of the ob lig or to pa y a nd the fi na nc ia l nee d of the pa rty re c e ivi ng the su pp ort. Id. Whil e the ne ed of the spouse re ceiving the alimony is the most im portant fa ctor whe n addre ssing the initial awa

rd of spousal support, the a bilityof the oblig or to pay should be g rante d equal we ight on a dec ision to mo dif

y spousal support. Id.

The trial c ourt incre ased Wife’ s spousal support awa rd t o $1,900 per month. I n support of its de c isi on , it

art ic ulate d th e fo llo wi ng fi nd ing s:

The Court finds the income of [Husband] is betwee n $84,000.00 and $85,000.00 per y ea r; whereas, the inc ome of [Wi fe] is around $22,000.00 to $ 2 3
, 000.00 per y ear . [W ife] is not i n a position to do anything to incr ease her e arning s other than withdra wals f rom or manipulation of the funds she ha s in an investment acc ount. I t is the po si t i o n o f

[H u s b a n d ] th e C o u r ts h o u l d r e q u i r e [W i f e ] t o d i s s i pa te these funds to support he rself. The Court does not find that appr oach

rea listi c as the funds would be totally depleted within a short period of time if she is re quired to dra w upon them extensively for her own support. Rather
, t h at as set is more valua ble to both parties as an inc ome -g e ne ratin g de vic e fo r [Wife ]. She re a lize s appr oximate ly $ 4 0 0

. 0 0 a

m o n t h f r o mi n v e s t m e n t s a n d/ o r

w i th d r a w a l s p r e s e n t l y. Th e Cou rt

fi nd s [Wif

e ] is li vin g mod e stl y and is at te mpt ing to

ma na g e he r e xpe ns e s. She ha s trie d to a c c omm od a te theinc re a se in he r r e nt b y

g ivi ng up a

c arp ort.

The Court finds the a limonyin t h is case should be $1,900.00 per month. [ Husband] clearly has the a bilityto pay and is quite frank that he has discr etionary

income at this point in ti me.

H u s b a n d c h a ll e n g e s th e tria l c o u r t’ s in c r e a s e o n th e g r o u n d th a t W if e d idn o t d e mo n s tr a te an inc re a se d f

inanc ia l ne e d e nti tli ng he r t o mo re a lim on y . H e fu rthe r c on te nd s th a t si nc e his po stretire ment earnings w ere substantially less than hi s earnings at the t ime of the divorc e in 1999, he d o e s n o th a v e t h e ab i l i t y t o p a y.

As to Wi fe ’s fi na nc ia l ne e d, the tr ia l c ou rt fo un d, a ndthe ev ide nc e do e s n ot p re po nd e rate otherwise, that Wi fe c ontinued to demonstrate ne ed for the s upport awa rd. The c ourt found that she still was unable to work, and conseque ntly was una ble to unilatera lly

improve her

financ ial position. Wife testified that her expenses had increase d due to a rent incre ase from $1,060 at t he ti me of the divorce to $1,260 at the time of the hearing. She further stated that due to the incre ase, she had bee n forc ed to re linquish t he car port that she rente d. Although Wife’s expenses may not have incr ease d g reatly since the initial aw ard in 1999, the evidenc e does not pre ponderate ag ainst the trial court’s finding that she still demonstrated financ ial need. Husband attempts to counter any claim t hat her expenses have incre ased by citing nume rous purc hases made by Wife which, by

her te stimony , wer e-8-

g if ts f or he r c hil dr e n an d g rand c hil dr e n. Ye t, we do no t fin d tha t this ev ide nc e pr e po nd e rate s a g a ins t the trial court’s appar ent conc ern that Wi fe is unable to unilaterally alter he r financ ial situation.

Husband a lso faults the trial court for failing to consider that Wife rec eived a substantial sum from Husba nd’s re tirement plan. The ref ore, so the a

rg ument g oes, the trial c ourt should have order ed Wife to deplete some of the a ssets contained in her IDS/America n Ex press a ccount r ather than in c re a se he r a wa

rdof a lim on y . In s up po rt

of his arg ume nt, Hu sb a nd re fe rs us to the Sup re me Court’s l an g uag e in Bogan in which that cour t opined in declining to increa se the wife ’s alimony that “[w]e would note the important, if not overlooke d, fac t that Ms. Bog an has rec eived a substantial sum from Mr. B og an’s r etireme nt plan, an additional amount that she w as not en t i t l ed to rec eive befor e his retire ment.” Bogan
, 60 S.W .3d at 733. Consequently , the Bogan court fa ctore d in the
assets rec eived from the r etireme nt fund to hold that the wife wa s not entitled to an increa se in her alimony awa rd. Id. We f

ind , h ow e ve r, that the fa c ts b e fo reus pr e se nt an e nti re ly dif fe re nt s c e na

ri o from that in Bogan . I n Bogan , the wife ’s expenses had incr ease d by $192 s i n ce t h e d i v o rce, and althoug h she still fell short of her monthly expenses, the trial court found that she could suppleme nt her e arning s by

investing t h e l u m p sum pay ment from her husband’s re tirement plan. Id. at 732, 733. Howeve r, in balanc ing the wife’ s need a g ainst the husband’s a bilityto pay , the court noted that Mr. B og an’s only

income stemmed fr om his retirement investment s , which yielded half of the income he was earning when the orig inal support awa rd was made

. Id. at 732. I n the instant case
, ho we ve r, Hu sb a nd

c on tin ue d to re c e ive e arn ing s a ft e r h is r eti rem ent by virtue of his pa rt -t ime

e mp lo y me n t s u c h th a t h e d id n o t h a v e to d is turb his sa v in g s ino r d e r to c o v e r h is e xp e n s e s

. We there fore find that the evide nce doe s not preponder ate ag ainst the trial court’s decision not to c ompel Wif e to d e ple te he r s a vin g s.

I n his brief, Husband contests the trial court’s conclusion that forc ing Wife t o d ep l et e her assets would be unr ealistic since the funds would be de pleted in a short pe ri o d o f t i m e. Husband retorts by arg uing that since the diff ere nce be tween w hat Husband w as paying prior to the court’ s decision and the court’s or der w as only $600, it would take almost 35 y ear s for W ife to deplete her assets eve n if they

earned no intere st. Husband further a rg ues that since Wife ma intains a minimum balanc e of $2,500 to $4,100 pe r month in her che cking acc ount, which represents four to seven

mon ths of the inc re a se in sup po rt , she is hard ly so me on e wh o is so de sti tut e a s to re qu ir e a n in c re a se in alimony . We find, howeve r, that the e vidence does not preponde rate ag ainst the trial court’s decision, and w e def

er to that judg ment when the e vidence does not dictate othe rwise.

Husband a lso challeng es the trial c ourt’s finding s as to his abilityto pay . I n p ar t icular, he challeng es the trial c ourt’s finding that his income was be tween $84

, 0 0 0 and $85,000 per y ear , arg uing that these fig ures a re unsupported by

the evidenc e, and that it is unclea r how the c ourt

arrived at those numbers. Husband further c ontends that the trial court erre d in rely ing upon Husband’s e arning capa city rathe r than his actua l earnings, a rg uing that (1) he ha d retire d and wa s
no lon g e r u nd e r any

ob lig a tio n to c on tin ue wo rking , an d (2) that he ha d ac tua l earn ing s at th e tim e of the he aring that should have be en u s ed for the pur poses of modifying the awa rd of spousal support.-9-

At t h e h ea ri n g, t h e p ar t i es i n tro d u ce d i n t o ev i d en ce Hu s b an d ’s t ax re t u rn s fr o m1 9 9 9 t h ro u gh 20 02 , w hic h in dic a te d th a t H us ba ndre c e ive d g ro ss inc ome in the fo llo wi ng a mou nts fo r tho se y e ars : $77,418 in 1999; $105,629 in 2000; $102,596 i n 2001; and $86,484 in 2002. Husband arg ues that
t h e tr i al co u rt ’s re l i an ce o n t h es e fi gu re s wa s i m p ro p ers i n ce t h eywe re o n l y re l ev an tt o h i s ea rn i n gs in the y ear s prior to the petition to modify

. Since, according to Husband, he had the rig ht to acc ept retire ment, his “ea

rning ca pacity ” bec ame non- exis tent once he retire d since he was no long er obligated to work. As support fo r t h is arg ument, Husband re lies upon lang uag e in this court’s opinion in Lam berson v. Lam berson
, No. M 2002-02773-COA- R3-CV, 2004 WL 170388 (Tenn. Ct. App. M.S., fil ed January 27, 2004). I n Lam berson , the husband wa s involuntarily terminated due to a c hang e in job duties that would require substantial travel. Id. , at *1. We found the evide nce faile d to su pp ort th e tr ia l c ou rt ’s jud g me nt that su c h a de c isi on wa s a

wi ll ful att empt to s hir

k h is alimony obligations; rather, we held that, under those circ umstances, suc h a dec ision constitut ed a substantial and m at eria l chang e of c ircumstance entitling him to some relief from his alimony obligation. Id.
, at *5. Consequently
, in r emanding the case for a determination of the extent of that relief , we state d that “[i] t is well to note that the relief available to Mr

. L amber son on rema nd may be lim ite d intim e du e to the fa c t t hat at th e tim e of the he ari ng in this c a se on app e a l he wa s f a st approa ching the level of pay that he enjoy ed” in his pre vious employ ment. Id.
, at *6. Husband r elies upon this langua g e to arg ue that we should set alimony based upon w hat he is ac tually earning r ather than his earning capa city

. We find, howeve r, that this arg ument is without m erit. It appea rs from the evidenc e adduc ed at the he aring that reg ardle ss of whe ther the tria l court consider ed Husba nd’s

earnings f rom previous y ear s based upon tax r eturns subm itted into evidence, the re w as evide nce befor e the c ourt of his ea

rning s for 2003. The recor d ref lects t hat Husband e arne d $48,120.86 from Walgr eens throug h J uly

4, 2003, and as of

J uly 17, 2003, there is documentation indicating that Husban d co mmenced w orking thirty hours per

wee k at B i-L o Pharmac y at the rate of $41.83 pe r ho ur . I na dd iti on , e vid e nc e pr of

fe re d at th e he ari ng de mon str a te d th a t hi s e arn ing s f ro m hi s p art -t ime j o b e n ab l e d h i mt o m ak e p u r c h a s e s a n d c o v e r h i s l i v i n g e x p e n s e s w i t h o u t d e p l e t i n g h i s s a v i n g s

. In fac t, testimonyreve aled that some of those expenditures have included a $25,000 boat and a $39,260
truc k, bo th o f w hic h w e re pu rc ha se d inAp ri l, 2 00 3; a g if t of $6 ,0 00 to a f

a mil y frie nd ; $3 ,6 00 to

c ov e r the c os t of

tui tio n f or his g ir lf ri e nd ’s c hil d; a nd va

ri ou s su ms t o c ov e r the c os t of re pa ir ing his g irlfriend’ s car . Consequently , we do not find that the e vid en ce pr eponder ates a g ainst the trial court’s judg ment awa

rding an incre a s ein alimony wher e the Wife c ontinues to demonstrate fina ncial need, and the evidenc e indicate s that Husband has the ability to pay

.

V.

Husband further c halleng es the trial c ourt’s aw ard of attorney ’s fe es to Wife in the amount of $4,000. Awar ds for attorney fee s are considere d alimony

. Gilliam v. Gilliam
, 776 S.W .2d 81, 86 (Tenn Ct. App. 1988). In determining whether or not suc h an aw ard is appr opriate, a trial court is theref ore dire cted to c onsider the same statutory fac tors as those used to orde r alimony , which ar e
s et fo rt h in Tenn. Code Ann. § 36- 5-101(d)

. Hou ghl and v . Ho ughl

and , 844 S.W .2d 619, 623 (Tenn. Ct. App. 1992). The most sig nificant fa ctors to the trial c ourt’s dec ision are the ne ed of the disadvantag ed spouse a nd the ability of the oblig or spouse to pay

. Wilder v. Wilder , 66 S.W .3d 892, 8 9 4 (T en n

. C t

. Ap p

. 2 0 0 1 ) ( ci t i n g Cra nf or d
, 772 S.W .2d at 50). The trial c ourt has wide disc retion-10-

to a wa rdfe e s, a nd c on se qu e ntl y the tr ia l c ou rt ’s jud g me nt w ill on ly be int e rf e re d w ithif

the re is a

“ sh ow ing of

abu se of dis c re tio n, wh e re the e vid e nc e pr e po nd e rate s a g a ins t th e a wa rd , a nda ma nif e st injusti ce will be done if the [ t] rial [ c]ourt’s decision i s allowed to st and.” Id. (citations omitted).

I n the instant case , we do not find that the t rial court abused its discretion in awarding $4,000 of the $4,895 soug ht by

Wife. As stated her ein, the trial c ourt found, and w e ag ree , that Wife does not have the a

bilityto pay , wher eas H usband has discr etionary income.

S h o u l d w e f

i n d t h a t W i f

e i s e n t i t l e d t o a t t o r n e y ’ s f e e s , H u s b a n d u r g e s t h i s c o ur t to a pp ly tow ardthat amo un t the $9 00 e xpe nd e d by Hu sb a nd to co ve r the c os t f or Wif e to s e e Dr . M c Do ug a l, he r p sy c hiatr ist , mo re tim e s th a n w a s a llo tte d b y he r h e alt h in su ranc e plan. With re sp e c t to Hu sb a nd ’s ob lig a tio n to pr ov ide he a lthins ur a nc e to Wi fe , th e div or c e jud g me nt p ro vid e s

[Husband] shall initiate and pay the cost of [ Wife]’s health insurance
, including COB RA benef

its for so long a s they

are available , for the

re ma ind e r o f [Wif

e ]’s lif e . [Hus ba nd ] sha ll p a y , in de mni fy , a ndho ld harm less [Wife ] fo r p a y me nt o f a ll m e dic a l, d e nta l, h os pit a l, psy cholog ical, and pha

rmac eutical e x penses incur red by [W i fe] wh ic h ar e n o tp a i d b y

a n y t h i r d p ar t y

o r c arr i e r , e xc e p t i n g t h a tif [Wife ] use s a ny

he a lthc are pr ov ide r n ot i ncl ud ed in his private insurance plan, [Husband] shall not be responsible for any char g es for said provider

. (Numbering in origin al om itted). The tria l court held that Husba nd was liable f or any expenses
enumer ated in the above provision, “ even if they exceed the benef its provide d for in the insura nce contac t [ sic].” Since we a g ree with the trial court’ s interpre tation of t h e divorce judgme nt, we decline to c redit Husband so a s to dimi nish his obli g ation to compensate Wife for leg al fe es.

V I.

Wif e se e k s a t t o r n e y ’ s f

e e s f o r c o s t s i n c u rr e d o n ap p e a l a n d t h e r e f o r e a s k s t h i s c o ur t to

rema nd this case to the tria l court for a dete rmination of those fe es incurr ed on appe al. Courts have authority to awar d fee s incurre d on appea l. Seaton v. Seaton
, 5 1 6 S. W. 2 d 9 1
, 9 3 ( T e n n

. 1974). Where a ppropriate , an appe llate court w ill remand to the trial court to determine the amount to award for f ees on a ppeal. Fol

k v . Fo lk , 357 S.W .2d 828, 828 (Tenn. 1962) . Fa ctors to be c onsidered on

rema nd are discussed in Fol k

. Id. at 829.

Ba sed upon the re cord be fore us, we find that a n awa rd of f ees is appropriate and we remand thi s c a se to the tr ia l c ou rt fo r a de te rm inatio n o f the a mou nt o f r e a so na ble fe e s to wh ic h Wif

e is entitled.-11- V II.

We a ffirm the judg ment of the trial c ourt in all respe cts. This case is remande d to the trial

c ou rt to s e t Wif

e’s fe e s o n a

pp e a l, f or e nf or c e me nt o f the jud g me nt, a ndfo r c oll e c tio n o f c os ts

a sse sse d b e low , a ll p ur su a nt t o a pp lic able la w. Cos ts o n a pp e a ls a re ta xed to the app e lla nt, El lis M. Be vill, S r.

_______________________________ CHARLES D. SUSANO, J R., J UDGE