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Wilhoit v. Wilhoit

Court of Appeals of Tennessee, Nashville

February 16, 2018


          Assigned on Briefs January 3, 2018

         Appeal from the Chancery Court for Sumner County No. 2009D-446 Joe Thompson, Judge

         This is 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.

         Tenn. 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.

          Patti B. Garner, Hendersonville, Tennessee, for the appellee, Deborah Evans Wilhoit.

          Kenny Armstrong, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and W. Neal McBrayer, J., joined.



         I. Background

         This is 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."[1]

         After 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.

         Following 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, [2] 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 ...

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