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Wiser v. Wiser

Court of Appeals of Tennessee, Nashville

April 30, 2015

REGINA D. WISER
v.
CYRUS W. WISER, JR.

Session Date March 24, 2015

Appeal from the Circuit Court for Rutherford County No. 50085 Larry B. Stanley, Jr., Judge

Brad William Hornsby, Heather Graves Parker, and Thomas L. Reed, Jr., Murfreesboro, Tennessee, for the appellant, Cyrus W. Wiser, Jr.

Michael K. Parsley, David Scott Parsley, and Joshua G. Strickland, Nashville, Tennessee, for the appellee, Regina D. Gencsi (Wiser).

Andy D. Bennett, J., delivered the opinion of the court, in which Richard H. Dinkins, and W. Neal McBrayer, JJ., joined.

OPINION

ANDY D. BENNETT, JUDGE

I. Procedural History

Cyrus W. Wiser, Jr. ("Husband") and Regina D. Wiser ("Wife") were divorced in August 2005, following a marriage lasting twenty-three years. They have two children who were nine and thirteen at the time of the divorce. Husband was ordered to pay Wife alimony in varying amounts until 2017, when Wife would become the owner of two office buildings that would produce income for her ongoing support. Husband was also ordered to pay child support.

In June 2007, Wife filed a petition to increase Husband's alimony and child support payments. The trial court granted Wife's request for an increase in child support but denied her request for an increase in alimony. Wife appealed the trial court's order to the Court of Appeals, which reversed the trial court's judgment on the issue of alimony. The Court of Appeals wrote:

[W]e must conclude that the trial court's decision not to modify Husband's alimony obligation in light of the very substantial increase in his income amounts to an abuse of discretion. The award of alimony in futuro is modified to $10, 000 per month, retroactive to the date on which Wife filed her petition to modify the alimony award. We note that the original alimony award was set to decrease by $1000 per month every four years, until its termination twelve years from the date of the decree. In light of the evidence that Wife has struggled to establish a career after her long absence from the workforce, as well as the fact that her child support will decrease and terminate as the two children reach majority in 2010 and 2014, the alimony amount shall remain constant until the termination date. The termination date for Husband's alimony obligation remains unchanged from the termination date set in the original decree of divorce.

Wiser v. Wiser, 339 S.W.3d 1, 18 (Tenn. Ct. App. 2010). The Court of Appeals granted Wife's request for an award of attorney's fees incurred at trial and on appeal and remanded that issue with directions to the trial court to determine the reasonable amount of fees to award. Id. at 22.

In a petition filed in April 2011, Husband sought a reduction or termination of his alimony payments and a reduction of his child support based on a decrease in his income.[1] Husband amended his petition on September 21, 2011, to include allegations regarding Wife's cohabitation with her boyfriend. Husband asserted that Wife's cohabitation and the decrease in his income each constituted a substantial and material change of circumstances that warranted a reduction or termination of Husband's alimony obligation.

This case was tried over the course of four days. The parties introduced what the trial court referred to as a "mountain of evidence" in support of their respective positions. Despite Husband's "painfully expensive attempts to prove [Wife] was co-habiting with her boyfriend, " the trial court found that Wife was not cohabitating with anyone and that

Husband would not be relieved of his alimony obligation. In its order entered on January 4, 2013, the court wrote:

This Court estimates that [Husband] has spent over $50, 000 in man hours and expenses on this matter. In addition, [Husband's] employees do not seem credible as to their testimony with regard to [Wife's] activities with Mr. Smith. . . . Although [Wife] makes monthly trips to her boyfriend's second home in Florida, this court does not believe that such activity can be classified as cohabitating. These trips generally last between 4 and 6 days. [Wife] does not pay Mr. Smith's bills.

The trial court found that Wife's need for alimony "has not changed significantly, " but that Husband's income had decreased during the period from April 14, 2011, until January 31, 2012. The court reduced Husband's alimony obligation for this period from $10, 000 per month to $5000 per month. The court did not alter in any other respect Husband's obligation to pay Wife alimony at the rate of $10, 000 per month for the remainder of the twelve-year term set forth in the original decree of divorce.

Wife requested an award of her attorney's fees, and the trial court addressed this issue in an order filed on January 23, 2013, and in the Final Order entered on October 4, 2013. In addition to determining the amount of fees Wife was entitled to receive from the instant case, the trial court determined the fees Wife was entitled to receive from the earlier proceeding as well as for the appeal of the earlier case as a result of the remand from the Court of Appeals in 2010. The court awarded Wife a total of $178, 778.22 in fees and costs, which included pre-judgment and post-judgment interest up to the date of the order. The court awarded Wife $115, 230.14 for the fees she incurred defending Husband's petition to reduce alimony and child support, and it awarded Wife discretionary costs in the amount of $5002.90. The discretionary cost award covered costs Wife incurred in pursuing her earlier petition to increase her alimony payments as well as in defending Husband's petition to reduce alimony and child support.

Husband appeals from the Final Order and argues the trial court erred in three ways. First, Husband contends the evidence preponderates against the trial court's finding that Wife did not cohabitate with Mr. Smith. Second, Husband asserts the trial court erred in finding he was only entitled to a partial modification of his alimony payments. Third, Husband claims the trial court erred in its award of attorney's fees and costs to Wife. Wife seeks an award of fees she incurred on appeal.

II. Analysis

As part of the final decree of divorce in 2005, Husband was ordered to pay Wife alimony in futuro for twelve years, when Husband would transfer title to two office buildings over to Wife. Husband was under an order to pay Wife alimony in the amount of $10, 000 per month when he filed his petition to modify in April 2011. An award of alimony in futuro may be modified or terminated upon proof that a "substantial and material change in circumstances has occurred since the entry of the original support decree." Bogan v. Bogan, 60 S.W.3d 721, 727-28 (Tenn. 2001); see Tenn. Code Ann. § 36-5-121(f)(2)(A). To be material, a change in circumstances must have been unforeseeable, unanticipated, or not within the parties' contemplation when the decree for alimony was awarded. Bogan, 60 S.W.3d at 728. To be substantial, the change must significantly affect either the obligor spouse's ability to pay or the obligee spouse's need for the support. Id. Even if Husband is able to show a material and substantial change in circumstances, "[m]odification must also be justified under the factors relevant to an initial award of alimony, particularly the receiving spouse's need and the paying spouse's ability to pay." Woodall v. Woodall, M2003-02046-COA-R3-CV, 2004 WL 2345814, at *2 (Tenn. Ct. App. Oct. 15, 2004); see Bogan, 60 S.W.3d at 730.

The Tennessee Supreme Court has set forth the standard of review appellate courts are to apply in cases involving the modification of alimony:

Because modification of a spousal support award is "factually driven and calls for a careful balancing of numerous factors, " Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. Ct. App. 1989), a trial court's decision to modify support payments is given "wide latitude" within its range of discretion, see Sannella v. Sannella, 993 S.W.2d 73, 76 (Tenn. Ct. App. 1999). In particular, the question of "[w]hether there has been a sufficient showing of a substantial and material change of circumstances is in the sound discretion of the trial court." Watters v. Watters, 22 S.W.3d 817, 821 (Tenn. Ct. App. 1999) (citations omitted). Accordingly, "[a]ppellate courts are generally disinclined to second-guess a trial judge's spousal support decision unless it is not supported by the evidence or is contrary to the public policies reflected in the applicable statutes." Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998); see also Goodman v. Goodman, 8 S.W.3d 289, 293 (Tenn. Ct. App. 1999) ("As a general matter, we are disinclined to alter a trial court's spousal support decision unless the court manifestly abused its discretion."). When the trial court has set forth its factual findings in the record, we will presume the correctness of these findings so long as the evidence does not preponderate against them. See, e.g., Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000); see also Tenn. R. App. P. 13(d).

Bogan, 60 S.W.3d at 727.

A. Cohabitation

Husband alleges two circumstances justify his petition to modify: Wife's cohabitation with her boyfriend, Terry Smith, and a decrease in his income. We will first address Husband's allegation that Wife was cohabitating with Mr. Smith. Tennessee Code Annotated section 36-5-121(f)(2)(B) addresses cohabitation and provides:

In all cases where a person is receiving alimony in futuro and the alimony recipient lives with a third person, a rebuttable presumption is raised that:
(i) The third person is contributing to the support of the alimony recipient and the alimony recipient does not need the amount of support previously awarded, and the court should suspend all or part of the alimony obligation of the former spouse; or
(ii) The third person is receiving support from the alimony recipient and the alimony recipient does not need the amount of alimony previously awarded and the court should suspend all or part of the alimony obligation of the former spouse.

As the statute makes clear, if Husband can show Wife was cohabitating with Mr. Smith, a rebuttable presumption arises that Wife is contributing to Mr. Smith's support, or he is contributing to her support, and that Wife no longer needs the spousal support provided by Husband. Husband contends that Wife lived with and supported Mr. Smith, or that Mr. Smith supported Wife, and that Wife failed to rebut the statutory presumption that she does not need the alimony previously awarded.

During the trial, Wife testified that she and Mr. Smith began a romantic relationship sometime in 2006. Wife and Mr. Smith each maintain separate houses in Murfreesboro, and Wife testified that she and Mr. Smith do not provide financial support for one another. Wife testified as follows:

Q: Do you live with Terry Smith?
A: No, I do not.
Q: Have you ever lived with Terry Smith?
A: No, I have not.
Q: Do you have a residence in Rutherford County, Tennessee?
A: Yes, I do.
Q: How long have you resided there?
A: Since 2006.
Q: Does your - - does Mr. Smith have a residence in ...

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