Assigned on Briefs January 3, 2018
from the Chancery Court for Sumner County No. 2009D-446 Joe
a post-divorce modification of alimony case.
Appellant/Husband contends that the trial court erred by not
terminating his alimony in futuro and life insurance
obligations. We conclude that Husband's alimony
obligation should be modified to $500 per month so that the
parties can retain enough assets to continue to support
themselves for a longer duration. Affirmed as modified.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court is Affirmed as Modified and Remanded
Russell E. Edwards, and Michael W. Edwards, Hendersonville,
Tennessee, for the appellant, Gary Dennis Wilhoit.
B. Garner, Hendersonville, Tennessee, for the appellee,
Deborah Evans Wilhoit.
Armstrong, J., delivered the opinion of the court, in which
D. Michael Swiney, C.J., and W. Neal McBrayer, J., joined.
the second appeal of this case. See Wilhoit v.
Wilhoit, No. M2013-01499-COA-R3CV, 2014 WL 2601566, at
*1 (Tenn. Ct. App. June 9, 2014) (Wilhoit I). As is
relevant to the present appeal, Appellant Gary Wilhoit
("Husband") and Appellee Deborah Wilhoit
("Wife") were divorced on April 29, 2011 after
forty-two years of marriage. The final divorce decree
provided, inter alia, that Husband would pay $4,
500.00 per month in alimony in futuro and
transitional alimony "in the nature of [Wife's]
current or comparable health insurance for the Wife until she
reaches the age of sixty-five (65), when at such time she
will be eligible for Medicare."
suffering a heart attack and undergoing quintuple bypass
surgery, Husband sold his dental practice in April of 2012.
On May 30, 2012, he filed a petition to terminate his alimony
obligation, asserting that a substantial and material change
in circumstances had occurred as a result of his retirement
and that he was no longer able to pay the court ordered
support. Wife answered the petition, requesting that the
court dismiss the petition and award her attorney fees. The
trial court heard Husband's petition on April 9, 2013; on
June 4, 2013, the court entered an order denying
Husband's request to terminate or modify his alimony
obligation. The court found that Husband suffered from
chronic heart disease, which precipitated his decision to
sell his dental practice and retire in 2012. The court held
that Husband's retirement was reasonable and constituted
a material and substantial change of circumstances. However,
the court also determined that Wife had need for support, and
Husband had the ability to pay. In Wilhoit I,
Husband appealed the ruling of the trial court, asserting
that the court erred in refusing to terminate or modify the
alimony in futuro obligation. In Wilhoit I,
this Court determined that the trial court did not make any
factual findings relative to Husband's assets when it
held that Husband had the ability to pay alimony. Wilhoit
I, 2014 WL 2601566, at *3. The trial court also failed
to determine a specific amount that Husband could pay.
Id. Accordingly, we reversed the dismissal of
Husband's petition and remanded the case for
reconsideration. On remand, we instructed the trial court to
consider each party's assets and the effect of Tennessee
Code Annotated Section 36-5-121(f)(2)(B)(ii) in determining
Wife's need for alimony, the amount of alimony, and
Husband's ability to pay. Id.
remand, the case remained dormant for almost two years until
July 2016, when Appellant filed a motion for a scheduling
order. By this time, the original trial judge had retired,
and the motion was heard by the Honorable Joe H. Thompson.
After reviewing the record, the trial court entered an order
on March 9, 2017. The trial court specifically found that
Husband's monthly expenses are $3, 672.00,  and that his only
income is his social security benefit in the amount of $2,
060.00 per month. As such, Husband's expenses exceed his
income by $1, 612.00 per month. As to Appellee, the trial
court determined that her monthly expenses are $4, 045.70,
and her only income is social security in the amount of
$956.00 per month. The trial court determined that Appellee
"is left with an established need of $3, 089.70 per
month." The trial court found that
given all of the circumstances, . . . [Appellant] has a
continuing ability to pay alimony. Although both parties have
assets at their disposal, [Appellant's] assets are nearly
double those held by Wife. . . . Under the circumstances, the
[c]ourt finds that the current alimony award of $3, 540 per
month should be reduced ...