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Winne v. Winne

Court of Appeals of Tennessee, Knoxville

October 30, 2019

DIANE KIKUE-YASUTAKE WINNE
v.
SCOTT ANDERSON WINNE

          Session January 15, 2019

          Appeal from the Circuit Court for Hamilton County No. 13-D-2293 Jeffrey M. Atherton, Chancellor [1]

         Husband petitioned the court to modify his alimony obligation after Wife moved in with her boyfriend. Wife maintained that her new living arrangement did not affect her need for alimony because she and her partner shared expenses equally and her living expenses after the move were unchanged. The trial court disagreed and suspended a portion of Husband's alimony obligation. Both sides raise issues with the trial court's decision. Contrary to Wife's assertion, we conclude that the alimony provision in the parties' marital dissolution agreement did not preclude modification of the alimony award as authorized by statute. We further conclude that the trial court did not err in basing its modification decision on the evidence of Wife's financial circumstances at the time of trial. We affirm the alimony modification, but we modify the judgment so that the modification applies retroactively to the date of Husband's petition.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as Modified

          Glenna M. Ramer, Chattanooga, Tennessee, for the appellant, Scott Anderson Winne.

          Phillip C. Lawrence, Chattanooga, Tennessee, for the appellee, Diane Kikue-Yasutake Winne.

          W. Neal McBrayer, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Thomas R. Frierson II, J., joined.

          OPINION

          W. NEAL McBRAYER, JUDGE

         I.

         Diane Kikue-Yasutake Winne ("Wife") and Scott Anderson Winne ("Husband") divorced on June 23, 2015. The final decree of divorce entered by the Circuit Court for Hamilton County, Tennessee, incorporated the parties' marital dissolution agreement ("MDA") and permanent parenting plan for their two minor children. Among other things, Husband agreed to pay Wife $2, 200 per month as spousal support and $1, 800 in child support.

         After the divorce, Wife began dating Albert Waterhouse, a local businessman. In August 2017, Wife sold her home and moved into Mr. Waterhouse's home with her two children. Following the move, Husband asked Wife to agree to a voluntary termination of spousal support. When she refused, he turned to the court for relief. His modification petition alleged that Wife's cohabitation created a statutory presumption that she no longer needed alimony. See Tenn. Code Ann. § 36-5-121(f)(2)(B) (2017). For her part, Wife denied grounds existed for modifying her spousal support.

         At the hearing on the petition, Wife did not dispute that she was living with Mr. Waterhouse. They shared, along with Wife's two children, a $490, 000 home on Lookout Mountain, which the couple had purchased in October 2017. Wife and Mr. Waterhouse owned the home as joint tenants with right of survivorship.

         Mr. Waterhouse was willing to support Wife. But she did not accept his offer; instead, she insisted on paying her own expenses. Wife contributed half of the down payment for the Lookout Mountain home and was jointly obligated for the mortgage. And she devised a financial sharing arrangement with Mr. Waterhouse to divide their new living expenses. Mr. Waterhouse paid the mortgage each month, or $3, 329.19, while Wife paid the remaining living expenses, such as utilities, groceries, and home maintenance. Mr. Waterhouse explained that the arrangement "seem[ed] to be about even." He also financed some vacations for Wife and her children because she could not afford it.

         Husband testified that Wife's standard of living improved after the move. She lived in a nicer neighborhood in a more valuable home. She took more expensive trips. And she no longer had any ...


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