Session January 14, 2015
Appeal from the Circuit Court for Hamilton County No. 05D1369 Jacqueline S. Bolton, Judge
This appeal arises from a petition to terminate alimony. A.C. Odom ("Husband") filed a petition to terminate his alimony obligation to his ex-wife J.B. Odom ("Wife") in the Circuit Court for Hamilton County ("the Trial Court"). Husband's petition was based on his retirement from his career as an orthopedic surgeon. The Trial Court found that there had not been a substantial or material change in circumstances and denied Husband's petition to terminate alimony. Husband appealed to this Court. We find and hold that Husband's retirement was objectively reasonable, that it constitutes a substantial and material change in circumstances, that Wife is no longer economically disadvantaged relative to Husband, and Husband's alimony obligation to Wife is terminated henceforth. We reverse the judgment of the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Case Remanded
Lauren G. Strange-Boston, Knoxville, Tennessee, for the appellant, A.C. Odom.
John P. Konvalinka and Jillyn M. O'Shaughnessy, Chattanooga, Tennessee, for the appellee, J.B. Odom.
D. Michael Swiney, J., delivered the opinion of the court, in which Charles D. Susano, Jr., C.J., and John W. McClarty, J., joined.
D. MICHAEL SWINEY, JUDGE
Husband and Wife married in 1970 and were divorced by the Trial Court in June 2007. The Trial Court divided the parties' significant marital estate roughly equally and required Husband to pay Wife alimony in futuro in the amount of $10, 000 per month. In August 2012, Husband filed a petition to terminate alimony. Husband's pending retirement from the practice of orthopedic surgery was his basis for his request for relief from alimony payments. This case was tried in May 2014.
Husband testified first. Husband was 65 at the time of trial, and had remarried since the divorce. Husband stopped performing surgery in August 2012. Husband retired officially as of December 2012 at age 64 after 35 years of surgical practice. Husband was an orthopedic surgeon for the Center for Sports Medicine. Husband described his decision to retire as taking place gradually over a period of time. Husband stated that he began having physical problems with his left arm at the end of 2011. Husband had difficulty gripping and feeling things. Husband also testified that he had suffered from Raynaud's disease, a disease that prevents blood from flowing into the far digits causing numbness. Husband, however, attributed his more recent problems to a disc in his neck associated with the time he had broken his neck. Husband testified:
The symptoms that I was having, like I said, gradually increased over a period of time. They were increasing from the middle to the end of 2011 into the beginning of 2012, significantly such that I was - - I was looking at my abilities, which were decreasing, and at that point I was not putting anyone at risk. I was able to retire - - I mean, I was able to operate. But if I continued, I was afraid that I was going to jeopardize the safety of my patients if I was unable to do what I needed to do to operate.
Husband went on to describe the intricate nature of orthopedic surgery, a procedure requiring fine dexterity. Regarding his health problems, Husband testified to increasing back problems in 2013. By April 2013, Husband simply was unable to move. Husband saw Dr. Scott Hodges, who performed surgery on Husband in May 2013 and removed a large extruded disc. According to Husband, this cured his pain but he was no longer able to completely straighten his fingers or have a firm grip in his left hand. Before the surgery, Husband also had seen Dr. Robert Mastey. Husband described some of his present limitations as of trial:
Okay. Pinch grip is important when tying shoes. I have great difficulty tying my shoes. I have great difficulty buttoning my buttons. The small buttons, for instance, on my collar, my wife had to button those this morning. I can't - - I don't have the fine dexterous motion or the pinch grip in order to get a small button. I can do fairly well on big buttons, but it's difficult to do the big buttons as well.
Husband testified as to when surgeons typically retire. Husband testified that his mentor had practiced surgery until around age 90. This, however, was not typical of Husband's experience. Husband stated that he did not know of many orthopedic surgeons practicing beyond the age of 64. Continuing his testimony, Husband testified that his retirement was in no way motivated by a desire to cut off Wife's alimony. In retirement, Husband enjoyed woodworking as a hobby, although his health problems sometimes interfered.
Husband had enjoyed a high income from his surgical practice, sometimes earning upwards of $500, 000 or more. The parties stipulated that, as of trial, the parties had a substantially similar net worth of about $3, 700, 000 each. Husband then proceeded to describe some of the rental property he is involved in. Husband testified that his net investment income at First Tennessee Bank in 2013 was $19, 439.23. Husband stated that he was going to draw Social Security at age 66 from November 2014 in the amount of $2, 641 per month. Husband also owned two rental houses. Historically, they had rented for $750 and $700 per month, respectively. Neither house was rented as of trial. Husband testified to a monthly mortgage bill on his house of $3, 137.01 that he would pay off in eight to ten years. Husband asserted his current total monthly expenses were $22, 348.41, including the $10, 000 alimony obligation. Husband also paid $101 per month on life insurance to insure the alimony. Husband's current wife, Gloria, received a pension from Food Handlers of about $150 per month. Husband stated that his current wife cleans house, cooks meals, and manages the gardens.
On cross-examination, Husband testified that his home was about 6, 400 square feet in area. Regarding the timing of his decision to retire and seek relief from alimony payments, Husband testified:
I am a physician, and I'm aware of things that happen to my body and things that happen to me. I'm an ...