IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs July 25, 2005

CLYDE EDWARDS v. SARAH ANN EDWARDS

 Appeal from the Chancery Court for Unicoi County

No. 6609 G. Richard Johnson, Chancellor

Filed August 25, 2005

No. E2004-02490-COA-R3-CV

D. MICHAEL SWINEY, J., concurring in part and dissenting in part.

I concur completely with the majority’s resolution of Appellant’s first issue. I,

respectfully, dissent from the majority’s decision as to Appellant’s second issue.

I believe the Trial Court erred in not finding a material change in circumstances

sufficient to justify a modification of the alimony award. As shown by Wife’s testimony at the

original hearing, she was crystal clear in testifying that she had no income of any kind whatsoever

at the time of the divorce. It is now undisputed that Wife’s income has increased from zero dollars

per month to $836 per month, surely a material change of circumstances under these facts.

While this issue certainly could have been presented in a better way to the Trial Court,

I respectfully disagree with the majority’s view that the Trial Court did not consider and resolve this

issue. For example, as quoted by the majority on page two of its Opinion, the Trial Court

specifically found in its order entered on August 29, 2003 “that the relative positions of the parties,

their health, financial standing and standard of living has not changed since the entry of the Decree

of Divorce.” I can read this language of the Trial Court to be nothing other than a finding that

somehow the “financial standing” of Wife had not changed despite the fact that Wife’s income had

increased from zero dollars per month to $836 per month. It is clear that the Trial Court must have

considered the issue of any change in Wife’s “financial standing” for the Trial Court to determine

that no such change had occurred. While I agree with the majority’s statement on page five of its

Opinion that Husband at no time prior to the Trial Court’s order of August 29, 2003 moved to amend

his motion, I believe the Trial Court’s order itself makes it clear that the Trial Court both received

proof on the change in Wife’s financial standing and then made a specific finding that there was no
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change in Wife’s financial standing despite her increase in income from zero dollars to $836 per

month. I would hold that the Trial Court’s language in its order clearly shows this issue was tried

by implication, and, in fact, decided by the Trial Court.

Likewise, I think the Trial Court’s order disposing of Husband’s Motion to Alter or

Amend once again shows it considered this issue but simply ruled against Husband. As quoted by

the majority, on page six of the Opinion, the Trial Court in declining to grant Husband’s motion

stated that it found “no change in circumstances meriting any modification or elimination of

alimony.” The Trial Court did not say it was exercising its discretion in denying the Motion to Alter

or Amend by applying the Rule 59.04 standard, Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn.

2003), but instead specifically found that no material change of circumstances sufficient to justify

modification or elimination of the alimony was present. It is this finding by the Trial Court that there

was no material change of circumstances sufficient to merit modification or elimination of the

alimony that was error as the evidence clearly preponderates against that finding. I would hold that

it was error for the Trial Court to find there was no material change in circumstances, and, therefore,

it was error not to modify the amount of the alimony awarded to Wife. 

I do not believe this to be a “phantom” issue as characterized by the majority. I

believe the issue of whether Wife’s “financial standing” had changed because of her increased

income was one that was tried to the Trial Court and specifically decided by the Trial Court. It is

telling that Wife stated in her Motion To Set Aside Order Terminating Alimony filed on October 10,

2002, “[t]hat [Wife’s] only source of income now and since the time of the parties’ divorce has been

the monthly alimony paid by [Husband], that her circumstances have not changed at all since the

entry of Final Decree and that she resides with her daughter out of necessity, not out of

convenience.” In short, by filing this motion to set aside order terminating alimony, Wife

specifically placed at issue any change in her income as a material change of circumstances when

she alleged that her “only source of income now and since the time of the parties’ divorce has been

the monthly alimony paid by [Husband]. . . .”

As to the majority’s noting that there was “some suggestion in the record that

Husband, who had also worked for the railroad, was aware, at the time of the parties’ divorce, that,

once divorced from him, Wife would be eligible for a pension by virtue of her first husband’s service

with the railroad”, I respectfully disagree. Either the Trial Court considered and decided this issue

of Wife’s change of circumstances due to her increased income, or, as the majority holds, it did not.

The majority claims that “[t]he trial court in the instant case seems to have believed that this was

what Husband was trying to do”, holding this issue in “reserve”. I find nothing in the record of the

original hearing to suggest anything as to Wife’s income other than Wife’s very clear and explicit

testimony that she was receiving no income and her daughter’s testimony that she didn’t know if her

mother would be eligible for a pension on the account of her late husband after this divorce. I find

no such “suggestion” as to Husband’s knowledge, but instead choose to rely upon the actual

testimony of Wife that she had no other income. I believe Wife’s testimony to have been clear, and

I believe her testimony was intended to show that she had no income and her alimony should be

based upon her having no income. She was successful. I am puzzled how Husband is to be charged
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with being aware of Wife’s ability to collect this future income but somehow Wife did not know

about it. 

For these reasons, I would affirm the Trial Court’s decision as to Husband’s first

issue, but I would reverse the Trial Court’s decision finding there was no material change in

circumstances sufficient to modify the alimony, and I would modify the alimony by reducing it

accordingly. 

___________________________________ 

D. MICHAEL SWINEY, JUDGE