### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVI LLE A ssi gne d on Br ie fs Jul y 25, 200 5

CLYDE EDWARDS v . SARAH ANN EDWARDS

Appeal f romthe Chancer y Court for Unicoi County No. 6609 G . Richard Johns on, Chan cellor

F iled Augu st 25, 2005

No. E2004-02490-COA- R3-CV

D. M I CH A EL S WI NEY , J., c on c ur ri ng in p art

a nddis se nti ng in p art

.

I c o n c u r c o m p l e t e l y

w i t h t h e m a

j o r i t y ’ s r e s o l u t i o n o f

A p p e l l a n t ’ s f

i r s ti s s u e

. I, respe ctfully , dissent from the majority ’s dec ision as to Appellant’s sec ond issue.

I believe the Trial Court er red in not finding a material chang e in circumstanc es sufficie nt to just ify

a modifica tion of the alimony awa rd. As shown by

Wife’s testimony

at the orig inal hearing, she was cry stal clea r in testify ing that she had no income of any kind whatsoeve r at the time of the divorc e. It is now undisputed that Wife’s income ha s increa sed fr om zero dollars
pe r m on th t o $ 83 6 p e r m on th, su re ly a ma te ri a l c ha ng e of

c ir c ums ta nc e s u nd e r the se fa c ts.

Whil e thi s is su e c e rt a inl y

c ou ld h a ve be e n p re se nte d in a be tte r w a y

to the Tria l Co urt, I re sp e c tf ull y dis a g re e wi th the ma

jority ’s vie w tha t th e Tria l Co urt di d n ot c on sid e r a nd re so lve thi s issue. For

example, as quoted by

the majority

on pag e two of its Opinion, the Tri al C ourt sp e c if ic a lly fo un d in its or de r e nte re d o n A ug us t 29 , 2 00 3 “ that the re la tiv e po sit ion s of the pa rt ie s, their health, financ ial standing and standard of living has not c hang ed since the entry of the De cre e of Divorc e.” I

can r ead this l an gu age o f t he Tria l Court to be nothing other than a f inding that somehow the “ financ ial standing ” of Wife ha d not chang ed despite the fact that Wife’s income ha d incre ased from zero dollars per month to $836 per month. I t is clea r that the Trial Court must have considere d the issue of a ny chang e in Wife’s “f

inancial standing” for the Trial Court to determine that no su c h c ha ng e ha d o c c ur re d. Whil e I

a g re e wi th the ma

jority ’s state me nt o n p a g e fi ve of its Opinion that Husband at no time prior to the Trial Court’s order of Aug ust 29, 2003 moved to amend his moti on, I

believe the Trial Court’s order itself makes it c lear that the Trial Court both re ceive d proof on the c hang e in Wife’ s financ ial standing and then made a spec ific finding that there was no-2-

chang e in Wife’s financ ial standing despite her i n cr ea s e in income from zero dollar s to $836 per month. I would hold that the Trial Court’s langua g e in i ts order c lear ly shows this iss ue wa s tried by imp lic a tio n, a nd , in fa c t, d e c ide d b y the Tria l Co urt.

L ikewise, I

think the Trial C ourt’s order di sposing of Husband’s Motion to Alter or Amend once ag ain shows it considere d this issue but simply ruled ag ainst Husband. As quoted by the majority , on pag e six of the Opinion, the Trial Court in declining to g rant Husb an d’s motion stated that it found “no cha ng e in circ umstances meriting any modification or elimination of alimony .” The Trial Court did not sa y it wa s exercising its discretion in deny ing the Motion to Alt er or Amend by

apply ing the Rule 59.04 standard, Stovall v. Clarke , 113 S.W .3d 715, 7 2 1 (Tenn. 2003), but instead spec ifically found t hat no m aterial chang e of c ircumstance s sufficient to justify modification or elimination of the alimony

was pre sent. I t is thi s finding by the Trial Court that ther e was no mate rial cha ng e of c ircumstance s sufficient to merit modification or elimination of the alimony that was e rror

as the e vidence clea

rly preponde rate s ag ainst that finding. I would hold that it was err or for

the Trial Court to find there was no materia l c hang e in circumstanc es, and, the ref ore, it was err or not to modify the amount of the a limonyawa rded to Wife.

I do not believe this to be a “ phantom” issue as c hara cterized by the majority . I believe the issue of whe ther Wife’s “ financ ial standing ” had c hang ed beca u s e o f her incre ased inc ome wa s o ne that w a s trie d to the Tria l Co urt a ndsp e c if ic a lly de c ide d b y

the Tria l Co urt. It is telling that Wife stated in he r Motion T o Set A side Orde r Terminating Alimony filed on Oc tober 10, 2002, “[t] hat [W ife’s] only source of i ncome now and si nce the time of t he parties’ di vorce has bee n the monthl y a li mo n y p a id b y [H u s b a n d ], th a t h e r c ir c u ms ta n c e s h a v e n o t c h a n g e d a t a ll s in c e the entry of F inal Dec ree and that she r esides with her daug hter out of ne cessity , not out of convenie nce.” I n short, by fili n g t h i s m o t i on to set aside orde r terminating alimony , Wife specific ally

place d at i ssue any

chang e in her

income as a

materia l chang e of c ircumstance s when she allege d that her “only source of income now and since the time of the pa rties’ divorc e has be en the monthly

alimony paid by [Husband] . . . .”

As to the majority ’s noting that there was “some sug g estion in the rec ord that Hu sb a nd , w ho ha d als o wor ke d for the ra ilr oa d, wa s a wa re , a t th e tim e of

the pa rt ie s’ div or c e , th a t, once divor ced f

rom him, W ife would be elig ible for a pension by

virtue of he r first husband’ s service with the railroa d”, I respe ctfully disag ree

. Either the Trial Court c onsidered and decide d this iss ue of Wif e ’s c ha ng e of c ir c ums ta nc e s du e to he r inc re a se d inc ome , or , a s the ma jority ho lds
, it didno t. The majo ri ty

claims that “[t] he trial c ourt in the instant case seems to have believed that this was what Husba nd was try ing to do” , holding this issue in “re serve ”. I find nothing in the rec ord of the

or ig ina l he ari ng to s ug g e st a nythi ng a s to Wif e ’s inc ome oth e r tha n Wife ’s ve ry c le ar an d e xplic it testimonythat she wa s rec eiving no income and he r daug hter’s testimony that she didn’t know if he r mother would be elig ible for a pension on the acc ount of her late husband afte r this divorc e. I find no such “sug g estion” as to Husba nd’s knowledg e, but i nstead c hoose to rely upon the ac tual testimonyof Wife that she had no other income. I

believe Wife’ s testimonyto have be en cle ar, a nd I believe he r testimony

was intende d to show that she had no income and her alimony shou l d be based upon he r having no income. She wa s succe ssful. I am puz zled how Husband is to be cha rg ed-3-

with being awa

re of Wife’s ability

to collect this future inc ome but some h o w W i fe d i d not know about it.

F or

the se re a so ns , I

wo ulda ff

ir m th e Tria l Co ur

t’ s d e c isi on a s to Hu sb a nd ’s fi rs t issue , b ut I

wo uldre ve rs e the Tria l Co urt’ s d e c isi on fi nd ing the re wa s n o mate ri a l c ha ng e in

c ir c ums ta nc e s su ff

ic ie nt to m od if

y the a lim on y , a ndI

wo uldmod if

y the a lim on y

by re du c ing it

acc ording ly

.

___________________________________ D. MI CHAEL

SW I NEY, JUDGE