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Covarrubias v. Baker

Court of Appeals of Tennessee, Knoxville

December 11, 2017

KIM COVARRUBIAS
v.
GERALD EDWARD BAKER

          Assigned on Briefs October 2, 2017

         Appeal from the Circuit Court for Knox County No. 107966 Gregory S. McMillan, Judge

         This appeal arises out Husband's petition to reduce his alimony in futuro obligation and Wife's motion for criminal contempt for Husband's failure to pay his alimony obligation in full. Wife opposed the modification of alimony on two grounds: (1) the 2007 Marital Settlement Agreement was not modifiable and (2) there had been no material change in circumstances. The trial court held that the alimony in futuro provision was modifiable and, based on a finding that Husband had proven a material change in circumstances, reduced Husband's alimony obligation. The court then calculated Husband's alimony arrearage for 2015 based on his income in 2007, not on his income as stated on his W-2 for 2015, which was greater. The court also dismissed the contempt petition upon a finding that Wife failed to prove the essential elements. Wife appeals, contending the trial court erred (1) by dismissing her motion for criminal contempt; (2) by finding that the trial court had the authority to modify alimony; (3) by finding that a substantial and material change in circumstances warranted a modification; and (4) by failing to properly calculate Husband's alimony arrearage for 2015. We have determined that the double jeopardy clause of the Fifth Amendment to the United States Constitution precludes us from reviewing the trial court's decision to dismiss the contempt petition; therefore, we affirm the dismissal of the criminal contempt petition. As for Husband's petition to modify alimony in futuro, we affirm the trial court's determination that the alimony in futuro provision was modifiable; however, we have determined that there is no factual basis to support a finding that Husband proved a substantial and material change in circumstances. Accordingly, we reverse the trial court's decision to decrease Husband's alimony obligation and remand with instructions to reinstate the alimony award as stated in the final divorce decree. Because the alimony arrearage judgment was based on the reduced alimony obligation, we also reverse that award and remand with instructions for the trial court to award an arrearage judgment based on Husband's gross earnings in 2015, not his salary in 2007. Therefore, we affirm in part, reverse in part, and remand for recalculation of the alimony arrearage judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part, Reversed in Part, and Remanded

          Stephanie L. Prager and Shelley S. Breeding, Knoxville, Tennessee, for the appellant, Kim Covarrubias.

          J. Patrick Henry, Kingston, Tennessee, for the appellee, Gerald Edward Baker.

          Frank G. Clement Jr., P.J., M.S. delivered the opinion of the Court, in which Thomas R. Frierson II and Brandon O. Gibson, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         On October 22, 2007, the Knox County Circuit Court granted a divorce to Kim Covarrubias ("Wife") and Gerald Edward Baker ("Husband") after twenty-two years of marriage. The parties' Marital Settlement Agreement, which was incorporated into the divorce decree, provided that Husband would pay Wife fifty percent of his gross income as alimony "until either party is deceased."

         On the same day the divorce decree was entered, a separate and agreed upon Order for Alimony in Futuro was entered, which stated that Husband would pay Wife "on the 15th and 30th of each month, the sum of ½ of all his gross earnings…and continuing thereafter the sum of ½ all bonuses as they are accumulated." The order provided that the remarriage of either party would not terminate Husband's obligation to pay alimony, and it stated that Wife could modify the alimony award due to "unforeseen circumstances."

         In May 2015, Husband filed a petition to terminate or modify his alimony obligation, claiming that his income of $120, 000 per year had not increased since the time of the divorce. He also claimed that since his income had not "kept up with the cost of inflation, " he had difficulty maintaining his standard of living. Husband additionally claimed that he could not afford to buy a home or to pay his bills, and he owed approximately $19, 000 in taxes while Wife was now making twenty dollars per hour, had a good credit rating, and was able to purchase a home. Wife filed an answer opposing any modification of alimony and asserted a counterclaim for an arrearage judgment for alimony that Husband failed to pay in 2015. She also filed a motion for criminal contempt. In her motion for contempt, Wife alleged that Husband failed to disclose income to Wife and paid Wife less than he owed under the divorce decree.

         The court held a hearing on July 12, 2016, on Husband's petition to modify alimony and Wife's motion for criminal contempt where both Husband and Wife testified. At the hearing, Wife argued that Husband could not seek a modification of alimony from the court because the Order for Alimony in Futuro did not merge into the final divorce decree.

         The trial court ruled that the Order for Alimony in Futuro merged into the final divorce decree and thus became modifiable by the court. After considering the testimony and the other evidence presented at the hearing, the court found that a substantial and material change in circumstances warranted a modification of Husband's alimony obligation:

[T]he Court finds that there has been a substantial and material change in circumstances unanticipated by the parties. The Court finds that one of those is [Husband's] loss of the Marital residence and his injury in 2008. It was anticipated in 2007 that [Husband] would continue to gain equity in the house. The Court also finds that it's significant that the Wife is helping to provide for an adult son and daughter and her grandchildren. The daughter receives $300 per month in child support and the son pays his groceries and works as a plumber. That was not anticipated by the Parties. The daughter has OCD and Picking [Disorder], and that makes work difficult for her. It is the testimony of the Wife that if the daughter were to work, her income wouldn't cover the cost of daycare.

         The court considered the relevant factors in Tenn. Code Ann. § 36-5-121, finding that the parties' relative earning capacity and resources remained the same since the divorce and that neither party had accumulated substantial separate assets. The court found that Husband's income had increased from $120, 000 per year at the time of the divorce to $158, 000 per year in 2015, while Wife's remained the same. The court then determined that alimony should be reduced to $3, 500 per month effective January 1, 2016, stating, "The reason this modification is later than the day of filing is that [Husband's] dealings with [Wife] in 2015 were less than forthright in trying to negotiate a decrease in alimony when he knew that he had received an increase in salary…."

         The court found that Husband owed Wife $3, 440 in unpaid alimony after giving Husband credit for overpayments since the modification's effective date. While the court found that Husband was "less than forthright" with Wife about his income and failed to completely fulfill his alimony obligation under the divorce decree, it ruled that the evidence was insufficient to prove that Husband was guilty of criminal contempt. Wife filed this appeal.

         Issues

         In this appeal, Wife asks us to consider whether the trial court erred (1) in dismissing Wife's motion for criminal contempt; (2) in finding that it had the authority to modify the parties' agreement for alimony; (3) in finding that a substantial and material change in circumstances existed which warranted a reduction in Husband's alimony ...


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