JAMES S. SCHRADE
CASSANDRA JEAN AMENT SCHRADE
Session December 14, 2016
from the Probate and Family Court for Cumberland County No.
17129 Larry Michael Warner, Judge
appeal concerns an effort to reduce an alimony obligation.
James S. Schrade ("Husband") filed a petition for
reduction of alimony in the Probate and Family Court for
Cumberland County ("the Trial Court") against
ex-wife Cassandra Jean Ament Schrade
("Wife"). Husband cited changed economic conditions
that rendered him unable to meet his alimony obligation
without tapping into his separate property. At trial, Husband
also presented proof that a rebuttable presumption arose that
Wife did not need the alimony as her adult children lived
with her. The Trial Court found no material change in
circumstances and also declined to find that the rebuttable
presumption applied. Husband appeals. Finding the language of
the marital dissolution agreement ("the MDA")
unequivocal and as market fluctuations are foreseeable, we
affirm the Trial Court in its finding of no material change
in circumstances. However, Husband presented sufficient proof
to trigger the statutory rebuttable presumption for
cohabitation with third parties, and we remand to the Trial
Court for a determination on that issue. We affirm, in part,
and, vacate, in part, the judgment of the Trial Court, and
remand for further proceedings consistent with this Opinion.
R. App. P. 3 Appeal as of Right; Judgment of the Probate and
Family Court Affirmed, in Part, and, Vacated, in Part; Case
Clayton M. Whittaker, Chattanooga, Tennessee, for the
appellant, James S. Schrade.
Cassandra Jean Ament Schrade, Crossville, Tennessee, pro se
Michael Swiney, C.J., delivered the opinion of the court, in
which Charles D. Susano, Jr. and John W. McClarty, JJ.,
MICHAEL SWINEY, CHIEF JUDGE
and Wife divorced in 2008. Under the MDA, Husband was
required to do the following, in relevant part:
Investment Accounts and Retirement Accounts:
The parties acknowledge that they have been living on the
income from an Orange County Trust and a stock portfolio, and
that these funds from this Trust and this stock portfolio are
owned by the Husband, or attributable to him. The Husband
agrees that he will pay the Wife from these funds 35% of the
regular monthly distributed amounts, each month, from both
accounts. Further, from the stock portfolio, the Husband
agrees that regardless of the distribution from the stock
portfolio, the Wife shall never receive less than $1, 200.00
per month, even if $1, 200.00 is greater than the previously
agreed 35%. This 35% of the Orange County Trust and stock
portfolio, as indicated above, shall be received by the Wife
as periodic alimony, and said payments shall be begin on the
first day of the month following the entry of the Final
Judgment of Divorce.
September 2013 Husband filed a petition to modify his alimony
support. Husband's petition stated the following, in
6. With respect to alimony, Petitioner would show that when
the parties divorced, the annual dividends from the Orange
County Trust were approximately $80, 000.00. Since then, the
amount of dividends has dropped dramatically. For example,
last year, the trust produced only $55, 147.00 annually. This
year, the trust had produced only $22, 460.00 through July.
Petitioner cannot invade the corpus of that trust. A graph
and chart showing the decline in income from the Orange
County Trust is attached hereto as collective Exhibit
7. At the time of the divorce, based on the current economic
conditions, Petitioner reasonably believed that the Orange
County Trust would produce annual income of $100, 000.00 to
$120, 000.00. However, the opposite has proven true, and the
income from said trust continues to significantly and
8. From the Knoxville account, Petitioner takes a
distribution of $3, 776.00 each month. From that amount,
Petitioner pays Respondent $1, 200.00. That account, which
held $1, 876, 311.00 in 1997, was down to $294, 708 on August
9.Petitioner has lost the rental income that he was receiving
when he divorced, and he is no longer able to produce income
from farming due to his health, current market conditions,
and because Respondent has significantly interfered with
Petitioner's access to the farming acreage. Petitioner is
now totally dependent on income from the Orange County Trust
and the Knoxville account.
10.Petitioner is at risk of losing his health insurance and
is in danger of not being able to afford basic needs,
including medical treatment. A list of Petitioner's
average monthly expenses is attached as Exhibit E.
11.The changes in Petitioner's investment income since
the divorce constitute a substantial and material change in
circumstances, and those circumstances were not anticipated
by Petitioner at the time that the First or Amendment to MDA
March 2016, a hearing was held on Husband's petition to
modify alimony. Husband and Wife testified. Husband
testified, in part, as follows:
Q. In regards to the way that this has played out after the
divorce, can you tell the Court what is the current status of
the funding for the Orange County Trust? Is it sufficient is
what I'm asking.
A. I have no control over it. The history of that account is
that my father and my uncle and several others that sat on
the Board of Directors of the bank, he set that trust up with
the bank that he was a director of.
Q. Let me ask you. So in regards to the Orange County Trust,
because you can't touch the corpus, has it been depleted?
Q. The ordinary affects of the market downturn that occurred
in 2008, were there any affects on the Orange County Trust?
A. Oh, yes, yes.
Q. Did you believe at the time when you negotiated that
divorce the economy would not improve?
A. I thought it was at its bottom and would go back to where
I was earning 100, 000 ...