Session September 30, 2014
Appeal from the Circuit Court for Hamilton County No. 03D1790 L. Marie Williams, Judge
Charles G. Wright, Jr., Chattanooga, Tennessee, for the appellant, Lucy Adelaine Dennington Taeubel.
Bruce C. Bailey, Chattanooga, Tennessee, for the appellee, Greg Willet, as Executor of the Estate of Walter Taeubel.
J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which D. Michael Swiney, J., and Kenny W. Armstrong, J., joined.
J. STEVEN STAFFORD, JUDGE
The parties, Lucy Adelaine Dennington Taeubel ("Wife") and Walter Taeubel ("Husband"),  were divorced on July 27, 2004. Wife was awarded alimony in futuro of $1, 500.00 per month. Both parties were sixty-seven years old at the time of the divorce judgment and approximately seventy-seven years old at time of trial on the instant matter. They had been married nineteen years, and it was the third marriage for both parties. The parties resided in Hamilton County, Tennessee, at the time of the divorce. The marriage produced no children, although both parties have adult children from previous marriages.
On November 3, 2010, Husband filed his Verified Petition to Modify Support seeking to terminate his obligation to pay alimony to Wife. This petition is the issue of this appeal. Husband averred a significant and material change in circumstances due to a severe stroke he suffered on August 26, 2010. After his August 2010 stroke, Husband suffered several post-stroke seizures. In her answer to the petition, Wife denied that Husband suffered any significant and material change in circumstances. Prior to the stroke, Husband worked full time. By the time of trial on the petition to modify support, Husband was no longer employed. It is undisputed that since suffering the stroke, Husband has become completely disabled. However, he continued to meet his alimony obligation, totaling approximately ten years of alimony paid to Wife. At the time of the divorce judgment, Husband's salary was $6, 446.00 monthly. At the time of the petition to modify, Husband's income decreased to $3, 563.50 monthly, which included payments from Social Security, his pension fund, and a mandatory IRA withdrawal. Husband's assets totaled $343, 625.72.
On October 5, 2012, the Hamilton County Chancery Court entered an Order Appointing Conservator for Walter Taeubel. The order appoints Mark Taeubel ("Mark"), Husband's son, as conservator of Husband's property, and appoints Diana Taeubel ("Diana"), Husband's daughter, as conservator over Husband's person.
A hearing on the petition to modify was held on January 21, 2014. Husband did not testify, and it is unclear whether he was physically able to attend trial. Mark and Diana testified at trial. At trial, Mark testified about Husband's financial condition. After his stroke, Husband was moved to a skilled nursing facility in Chattanooga, which cost $7, 954.00 per month. Mark testified that Husband sold his home in 2013, netting $87, 000.00. Mark withdrew $44, 000.00 of that sum to repay himself for approved expenses that he had advanced for Husband's estate, leaving $43, 000.00 in the account. While still in Chattanooga, Husband's Medicare allowance for the skilled nursing facility ended, and Husband's family began paying $7, 594.00 per month for his care. Mark testified that, although Husband had been in a skilled nursing facility in Chattanooga, they decided to move him to Pinole, California, to decrease expenses. Mark sold Husband's Dodge truck and used Husband's Honda Civic to transport his belongings to California. According to Mark, the move to California allowed the family to reduce Husband's expenses considerably. Mark stated that the total for Husband's expenses was $4, 739.17 per month, excluding alimony. In light of his decreased income, Mark testified that Husband's net loss each month was $1, 175.87 before he paid his monthly alimony obligation. According to Mark, Husband relied on his savings to pay Wife alimony until the court terminated his obligation. At the time of trial, Husband was residing in a board-and-care facility in California, and Mark testified that the family was paying Husband's expenses out of pocket.
Diana testified that she had been employed as an emergency room nurse for approximately twenty years and that she also assisted with Husband's care. She explained that the board-and-care facility where Husband stayed in California provided a room, meals, medication, administration, assistance with daily activities, and sitting services. To reduce Husband's costs, Diana testified that she provided skilled nursing care to Husband and transported him to different appointments. According to Diana, Husband could not dress himself, bathe himself, or administer his own medications. Further, she stated he had tremors, incontinence, difficulty communicating, and difficulty feeding himself. Diana testified to Husband's declining health and stated that he would ultimately need a 24-hour-care facility. According to Diana's research, the cost for such care is typically between $10, 000.00 and $12, 000.00 per month.
Wife testified that she now lives in Dawsonville, Georgia. Pursuant to the divorce decree, Husband paid her a lump sum of $91, 000.00 for her portion of the equity in the marital residence. In addition to the $91, 000.00 she was awarded for her half of the marital residence, Wife also received half of Husband's retirement account, equaling $125, 000.00, and a percentage of Husband's pension, affording her monthly payments of $246.00. Wife bought a home in 2004 with a mortgage on which she was paying $914.00 monthly.
Due to cancer, Wife had a liver transplant four years ago and continues making payments to the hospital for ongoing testing. According to Wife, she will require care for the rest of her life, and she has blood work done every three months and a check-up every six months. She also testified that she has been admitted to the hospital several times in the last few years. According to Wife, she suffers from health conditions related to hypertension, a heart condition known as atrial fibrillation,  an underactive thyroid, and diabetes. Wife asserts that she has outstanding hospital bills related to her transplant and that she takes "about 14 pills every morning and at night."
Wife also testified about her marriage to Husband and his alcohol use. According to Wife, Husband drank alcohol every day during the marriage. She testified that:
He liked scotch. And on the weekends, every weekend, he would drink too much. When he came home from work, he would have a scotch or two. And when he wasn't working, we went on several vacations, and he stayed drunk the whole time. And the last vacation we had I told him I wasn't traveling with him ever again, because I just couldn't put up with that anymore. And so we never traveled, in the last ten years that we were married, together.
Wife testified that there was never a point in their marriage when Husband did not abuse alcohol.
No physician testified at trial, but a medical examination report completed by Dr. Robert Drake and deposition testimony offered by Husband's neurologist, Dr. Matthew Kodsi, were admitted into evidence. On October 13, 2011, Dr. Drake examined Husband. He reported that Husband suffered from five disabling factors: "expressive aphasia (inability to express self with oral or written methods); seizure disorder; receptive aphasia (inability to understand written or oral communication); alcohol use; possible dementia." Dr. Drake opined that Husband was not capable of returning to work and should have a conservator appointed.
Dr. Matthew Kodsi, a board-certified neurologist, examined Husband in May 2011 and diagnosed Husband with vascular dementia, "cognitive impairment, memory problems, [and] other thinking problems." Dr. Kodsi stated that: "Given [Husband's] impairment from the stroke, his difficulty with speech, comprehension, cognitive impairment, that would render him unable to really work." Dr. Kodsi testified that Husband's drinking was a significant problem, but never testified that Husband's stroke and resulting inability to work were directly caused by his alcohol abuse. Dr. Kodsi did indicate, however, that Husband's refusal to stop drinking, even after the stroke, could ...