# FILED

Au gust 27, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

______________________________________________ W. MICHAEL BYRD, Plaintiff-Appellee, Vs. C.A. No. 01A01-9703-CV-00139 Davidson Circuit No. 89D-1655 MARY ETTA BYRD, Defend ant-App ellant.

__________________________________________________ __________________________ FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY THE HONORABLE MURIEL ROBINSON, JUDGE

Louise R. Fontecchio; Bruce, Weathers, Corley, D ughman & Ly le of Nas hville

For Appellee Martha C. Wherry

of Nashville For Appellant

AFFIRMED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: ALAN E. HIGH

ERS, JUDGE DAVID R.FARMER,

JUDGE This appeal i nvolves di vorce- related procee dings. Plaintif

f, W. Michael Byrd (“Husband”), appeals the trial court’s dismissal of his petition to modify alimony, and defenda nt, Mary Etta Byrd (“Wife”), appeals the trial cour t’s dismissal of her petition to hold Husband i n contempt.2 After approximately nineteenyears of marriage, Husband filed a c omplaint for divorce

on May 2, 1989. Wife filed an answer and counter-complaint for divorce, and Husband filed

an answer to the counter-complaint. Wife filed a motion for pendente lite support for her

and the parties’ minor

children, and on August 23, 1989, the trial court entered an order re quiring Husband to pay the following as pendente

lite support: $1,250.00 per month for the support of the parties’ minor children, $750.00 per month in alimony, the $750.00 monthly note for the automobile

that Wife was driving at that time, and Wife’s attorney’s fees. On September 19, 1989, Wife filed a “Petition for Conte mpt and/or Additional or Supplemental Relief and/or Request for a Hearing to Show Cause” to hold Husband in contempt for his failure to pay her pendente lite monthlycar payments, which resulted in the automobile being repossessed, and his failure to pay her penden te lite attorn ey’s fees. Also in this petition, Wife avers that Husband repres ented to t

he court in an August 16, 1989 hearing that he was paying $500 per month on a mortgage for the parties’ real property locate d in Texas. Wife avers that Husband

was not making these payments as he represented to the court. She re quests that the court order Husband to be gin making payments on this real estate, to pay any and all arrear ages on the prop erty, and to take the necessary steps to prevent foreclosure or sale of the pro perty. O n September

20, 1989, t

he trial c ourt ente

red an or der req uiring Hus band to sho w cause why he should not be held in contempt for violating the court’s August 23, 1989 order byfailing to pay the monthly note on Wife’s automobile. On October 17, 1989, Wife filed a motion re

questing t he court to amend its August 23, 1989 order to

increa se the amount

of pendente lite alimony or to require Husband to hold Wife harmlessfor the ma

rital deb ts. In this motion, Wife informed the court that Husband filed for bankruptcy in the Unit

ed States Bankrupt

cy Court f

or th e Middle

District of Tennessee on September

21, 198 9. On Oc tober 25, 1989, Wife filed a petition in the bankruptcy court seeking relief from the automatic stay to the extent that the stay affec ted her a limony and

child support rights, and on October 27, 1989, the bankruptcy court entere d an o rder gr anti ng her relief from the stay. On February 26, 1990, the trial court entered an order on Husband’ s “Motion for Partial Relief from Previous Order” and on Wife’s petition for contempt. The trial court reserve d the issue of contempt pending a final hearing and did not modify its August 23, 1989 order. The3

court ordered Husband

to delive r possess ion of his c ar to Wif e, to pay the note on this car, and to pay the $5 00 per mon

th mortgage on the Texas property to protect the parties’ property from foreclosure. On July 18, 1990, Wife filed for bankruptcy in the United States Bankruptcy Court for the Western District of Oklahoma. A trial took place on July 23 and 24, 1990. On August 13, 1990, the trial court entered a decree granting Wife a divorce on the gro unds of cruel and inhuman treatment, dismissing Husband’s complaint for divorce, and ordering Husband to pay alimony in fu turo in th e amount of $1,000.00 per month, as well as child support. The trial court awarded Wife the automobile then in her possession and made Husband responsible for the monthly car payments. The court took the issue of the di vision of t he marita l proper ty under advisement pending completion of the bankruptcy proceedings. The c ourt also held the award of attorn ey’s fe es to Wife in abeyance pending the submission of affidavits to the court.

Wife filed a second

contempt petition on November 16, 1990. The petition avers that Husband failed to make alimony and child support payments for September and October 1990 and that he als o failed

to make he

r car pa yment for the month o f Septemb er. Wif e reque sts, inter alia , that the trial court hold Husband in contempt for his failure to pay child support and alimony and that he be incarcerated until he purgeshimself of contempt . Wife a

lso reque sts that he be held in conte

mpt for hisfailu re to pay the court-ordered car payments. The tr ial court entered an order on November 19, 1990 for Husband to show cause why he should not be found in contem

pt. On February 14, 1991, the trial court entered an order stating that there we re multiple claims for relief and that, pursuant to Tenn. R. Civ. P. 54.02, the c ourt de clared the parties absolutely divorced. The court reserved the right to divide the real and personal property upon the resolution of Wife’s bankruptcy. The court al so v ested title to the automobile in Wife’s possession in her name. On November 12, 1991, Husband filed a petition to reduce his alimony payments. A h earing was held on December 12, 1991 concerning Wife ’s November 16, 1990 petition for contempt and Husband’s petition to reduce alimon y and child support. On January 7, 1992, the trial court

entered an order stating that Husband had paid Wife $4,600.00 in back alimony4

and child support and that he represented to the cou

rt that he had made paymentson the Wife’s automobile

through O ctober 1 991 and wo uldpay the Nove

mber and Decemb er 1991 p ayments upon leaving court. In light of this, the court

stated that Husband purged himself of contempt and dismissed W

ife’s co ntempt pe

tition. The

court al so modif

ied the alimony a

nd child support awards to $500.00 each per month until September 1, 1992. Husband apparently filed a motion for further review of his November 1991 petition, and on April 5, 1993, Wife filed a response in which she advised the court that both parties had received discharges in their respective bankruptcy proc eedings. Wife further advised the court that foreclosure proceedings had bee n institute d on the pa

rties’ r eal esta te inTexas. The trial court addressed Husband’s motion in an order dated Ap ril 22, 199 3 in which the court found that Husba

nd’s appl ication w as not mad

e in good f

aith. The order pr ovides in p art: Upon testimony of the parties, argument of co unsel, and the entire record herein, the court finds that Dr. Byr d, sin ce the divorce was filed, has taken every effort in his power to defy the orders of the court and has deliberately become unde remployed in order to avoid paying child support and alimony as heretofore ordered. The court finds that Dr. Byrd has a Medical degree and a Master of

Public He alth degr

ee from Harvar d Univer sity and the wher ewith al to practice his profession. The court further finds that Dr. Byrd insists on doing things that do not genera te inco me even though the court gave him the opportunity t o rehabilitate

himself by

tempora rily redu cing alimony and ch ild suppor t while he pursued his Master’s Degree at Har vard University. The court finds that thi s was not a good faith application to reduce alimony and ch i ld support and that he vo l untarily

continues to place himself in a position where he asserts that he c an not com ply with t he court order. The court finds that the child support order will remain at $500.00 for

the month of May af

ter which time the c

hild suppor

t wi ll be terminatedby operation of law, since the younger child will be 18 years ol d on May 15 , 1993, an d will graduat e form High School during May 1993. The court further finds that Dr. Byrd has the ability to pay, that he ha s desi gned his own problem s, and that Ms. Byr

d conti nues to have the need for alimony that she exhibited at the Final Hearing. The court or

dered th at the alimony awa rd incre ased bac

k to $1,000 .00 per mo nth beginn ing in June 1993 and orde red Husband t o pay Wife’s attorney’s fees. The or der was made final pursuant to Tenn. R. Civ. P. 54.02. On May 3, 1996, Husband filed a motion to finalize thedivorce by resolving the division of personal property, and Wife filed a response on May 9, 1996. In her response, Wife stated that the p arties’ real estate in Texas had been lost through bankruptcy a nd requested

that5

the court a

ward he r a ju dgment for the equity that would have been available had Husba nd made the mortgage payments. On July 8, 199 6, Husband filed a petition to

modify alimony alle ging th at he w as no longer able to make alimony payments because he suffer ed from severe health problems, was unable t o work, an d had incu

rred ex tensive medical bill s becaus e he did not have he alth insurance in thathe had ta ken fami ly medica

l leave f rom his med

ical pra ctice to take care of his seriously ill father. On August 8, 1996, Wif e filed her resp onse to Hu sband’s p etition to modify alimony, and on August 27, 1996, she filed an amended response. The trial cou

rt held a final he aring on A

ugust 26 and 27 , 1996 on Husband’s motion t o divide the marit

al prope rty, his mot

ion to term

inate or reducealimony, and Wife’s petition for contempt . Husband was not present at this hearing and his teleph o nic deposition and the deposition of Dr. Clin

ton Battle , who was once his t reating physicia n, were admitted a s
e xhibits. At the hearing, Wife argued that she had a contempt petition pending befor e th e court, but the tri al court

stated fr om the bench that there wa s no pending contemp t petiti on. T he tr ial court stated that the January 1992 order, based on the December 1991 hearing, dismissed her November 16, 1990 c ont empt petition and that there was no other contempt petition before the court. On September 1 1, 19 96, the court entered an order on the issues ra ised in the final hearing held on August 26 and 27, 1996 on Husband’s motion to finalize the divorce by dividing the marital property and on his motion to terminate or reduce alimony. In the order, the trial court stated that it had reviewed the deposition of Husband’s doctor, Dr . Clint o n Battle, and foun d that Dr. Byrd was u nable to travel to the State of

Tennessee to appear in the procee dings. Consequently, the court allowed Husband’s telephonic deposition into evidence for purposesof the pr

oceedin gs. The c ourt found that the only marital a ss ets owned by the parties that had not been previously divided, repossessed, or lost in the bankruptcy proceedings consisted of personal property in storage in Texas. The court found that the remaining marital assets were lost through the fault of both parties and that the parties had lived well beyond their

means. The court

awarded the parties’ personal prope rty in Texas to Wife and

awarded to each partythe rema

ining per sonal pro

pertyin his or her possession. The trial court also dismissed Wife’s petition for an increase in alimony because it was untimely filed and dismissed6

Husba nd’s petition for termination or reduction in alimony because he failed to ca rry hi s burden o f proof. The orde r furthe r provide s that it is a final order disposing of all remaining issues in the ca se and sta tes that a ny claims f

or re lief filed by either party not heretofore or specifically addressed were denie d. Husband f iled a motion to alter or amend th e judgment. On October 9, 1996, Wife filed a motion to alter or amend the Septembe r 11, 1996 judgmentas to the award to each party of the per sonal property in his or her possession. She also contends that the trial court never ruled on her contempt petition filed on September 19, 1989 as to Husband’s failure to make the payments on the real prope rty in Texas, wh ich th e court ordered him to make on Februa ry 26, 1990. On O ctober 1 4, Husband filed a response to Wife’s motion to alter or amend the judgment. The trial court entered an order on October 28, 1996 denying Husband’s motion to alter

or amend. On November 18, 1996, the trial court entered an order denying W

ife’s mot ion to alter or amend the judgment. Wife appeals the judgment of the trial court and presents two issues for review: 1) whether the trial court

erred by failing to rule on Wife’s petition for contempt filed September 18, 1989, and 2) whether the trial co urt erred by failing to make findings on her prayer f or a judgmentfor losses arising from Husband’s contempt of the court’s order to keep certai n mortgage payments current. Husband also appe als the ju d gment of the trial court and presents an additional issue for review: whether there has been a material and substan ti al chang e of cir cumstanc es to warrant a modification of alimony. In Wife’s first issue, she contends that the trial court reserved the issue of contempt that she raised in her first contempt petition. She insists that the trial court later confused her two contempt petitions a

nd furthe r insists that the December 12, 1991 hearing addressed only her secondpetition. She also contends that Husband was in contempt of the trial court’s February 26, 1990 order to pay the mortgage payments on the property in Texas a nd that the propert y
was eventually lost through a bankruptcy proceeding. In addition, Wife contends that the trial court sh ould have ruled on her claim for the equity in the property that would ha ve bee n availab le for division at the final hearing had Husband o beyed the court order to make the mortgage payments on the property.1 This orde r did not a

ddress a ttorney’ s fees, but this omiss ion is not ra ised on ap

peal. 7 Although Wife contends that the trial court nev er ad dressed her firs t petition t

o hold Husband in contempt for his failure to make the mortgage payments, our revie w of the record indicates that this pe

tition is not

a petition to hold him in

contempt on this particular issue. In her first petition, which she filed in September 1989, Wife sought to hold Husband in contempt for his failure to comply with the cour t’s A ugust 23, 1989 order on pendente lite support requi ring him t o pay the car payments on the car in her possession and to pa y her attorney’s fees. Also in that petition, she requested that the court order Husband to make the mortgage payments on the par

ties’ re al prope

rty in Texas. The trial court subsequently entered an order requiring him to make the mortgage payments, bu t r eserving the issue of contempt as to the issues raised in that petition. Wife later filed a second contempt petition regarding Husband’s failure to pay alimony and child support, and the issues as to contempt for the f ailure to p ay alimony, child support, and car payments were all dealt with at the December 12, 1991 hearing and in the trial court’s January 7, 1992 order. 1 Wife’s argumen

t that her first con tempt peti

tion is a pe

tition to hol d Husband

in contempt for his failure to make the mortgage payments on the Texas propert

y is without

merit. At the time sh

e filed th is petition, in September 1989, Husband was not under a court o rder to make these pa yments. The order requiring him to do so was not entered until February 26 , 1990, severa

l months af

ter she f iled her first con tempt petitio n. In add ition, the trial court dismissed her second contempt petition in an order entered Janua ry 7, 1992. Thus, the trial court was correct when it held that there was no contempt

petition pending at the time of the August 1996 hearing. In her second issue, Wife contends tha t the Texas real property was lost through Husband’s bankruptcy proceedings and that she is entitled to a judgment for the losses arising from his failure to keep the mortgage payments on this property curre nt. On the other hand, Husband contends that the property was repossessed and not lost through b ank ruptcy. Conseque ntly, he ma

intains tha

t the prop erty wasnot part o f the ass ets available for division at the final hearing. Regardle ss of whether the property was lost through the bankruptcy proc eedings or8

reposse sse d, the property was not part of the martial estate at the time the cour t divided th e martial property. In addition, the trial court specifically stated in its September 11, 1996 order that the loss of the remaining marital assets was due to the fault of both parties. More over , Wife admits in he

r brief t hat ther e is no evi dence in

the tran script co ncernin g the fat e of this real es tate. The

refore , this issue

also without merit. In Husband’ s issue, he

contendsthat the tr

ia l court er

red in de nying his pe

tition to terminat e or reduce alimony because his inability to wo rk as a res ult of his he alth prob lems constitutes a substantial and material change in circumstances. On applica tion of eithe r pa rty, the court may decree an increa se or decrease of alimony only upon a showing of a substantial and material change of circumstances. T.C.A. § 36-5- 101(a)(1) (1996). T he party seeking relief

on the grounds of changed circumstances has the bur den of proving the changed circumst ances, which must be shown to have occurred after the entry of the divorce decree and

mus tnot have b een for

eseeab le when th

e decree was en

tered in to or in the

contempl a tion o f the parties when they entered into the support and alimony agree ment. See Elliot v. Elliot , 825 S.W.2d 87 (Tenn. Ap

p. 1991); McCarty v

. McCarty , 863 S.W.2d 716 (Tenn. App. 1992). Our review i s de novo , however, accompanied by a presumption of corr ectness of the trial court’s findings o f fact, which we must h onor unle ss we find that the evidence preponderates against those findi ngs. T.R.A.P. 13(d); Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn . 1993). W e are a lso mindful thata trial c ourt has w ide discr etion in the award of alimony. Marmino v. M armino , 34 T enn. App. 352 , 238 S.W.2d 105, 107 (1950); Harrington v. Harrington , 798 S.W.2d 244, 245 (Tenn. App. 1990). We give a trial court’s decision on these matters great weight and will only interfere with such a decision when

we find an abuse of discretion. Kelly v. K elly , 679 S.W.2d 458, 460 (Tenn. App. 1984). The trial court is obliged to consider each of thefactors set forth in T.C.A. § 36-5-101(d)(1) when evaluating a petition to modify alimony, but the primary factors are the obligor’s ability to pay and the obligee’s financial need. Elliott , 825 S.W.2d at 90. Husband argues that he has suffered severe health proble ms since the original alimony award and that he is unable to obtain gainful employment as a res ult of thes e health problems

. He also argues that his extensive medical bills render him unable to mak e h is alimony payments . The recordindicates Husband left his employment to take care of his father w ho9

was seriously

ill and tha

t, as a result, Husband lost his health insurance and incurred extensive medical bills. This obligation and its attend ing conse quence s were v oluntaril y assumed

with full knowledg e of his o b ligations of support to his former wife. Voluntarily assumed obligations do not con stitu te a change in circumstances. Dillow v. Dillow , 575 S.W.2d 289, 291 (Tenn. App.1978). As to Husband’s alleged inability to work, Hu sband submitted the deposition testimony of the doctor who treated him when he was admitted to the hospital for his health probl ems . This doctor was not treating Husband a t t he time he filed his petition to modify alimony, however, and Husband failed to offer the testimony of the physicia ns who we

re trea ting him at the time r

elevant to this petition. T

he only oth

er evide nce off ered in support of Husband’s position was his own deposition. In addition, there was evidence in the record that Husband could still perform some tasks that would lead to gainful employment consistent with his M.D. and his Master ’s Degr ee in Public Health from Harvard University, such as re search and writing. The trial co urt specifically stated that Husband failed to carry his burde n of proof t o show a substantial and material change in circumstances. The trial court in this case found that Husband had the ability to pay the award and that Wife showed a need for the continuation of alimony. From our revi ew of the record , the tria

l court did

not abuse its discretion. This issue is also without merit. Wife also contends that Husband should pay the attorney’s fees that she has incurred in this appeal to protect her alimony. In Baggett v. Baggett , 512 S.W.2d 292, 294 (Tenn. App. 1973), this Court held that an award of attorney’s fees was inappr opr iate w here both parties

were partially successful on appeal. We decline, in this case , to award Wife attorney’s fees incurre d on appe al. Accordingly, the trial

court is a

ffirmed in all res pects. Co sts are a sse s sed one- half against Wife and one-half against Husband.

___________________ ____ _________

_ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGH

ERS, JUDGE10

____________________________________ DAVID R.FARMER,

JUDGE