                                                                                       02/16/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                         Assigned on Briefs January 3, 2018

        DEBORAH EVANS WILHOIT v. GARY DENNIS WILHOIT

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

                          No. M2017-00740-COA-R3-CV
                      ___________________________________


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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and W. NEAL MCBRAYER, J., joined.

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.


                                       OPINION

                                  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

        1
          As discussed in Wilhoit I, the trial court amended the final decree to specify that the “health
insurance obligation” was $550.00, that the obligation was modifiable, and that it would be reduced when
Wife became eligible for medicare/medicaid. The order further provided that the $4,500.00 per month
alimony in futuro would be reduced by the net amount of Wife’s social security benefits when she began
receiving them.

        2
            At the time of trial, Husband’s monthly expenses totaled $9,123.00. However, these expenses
included $4,500.00 in alimony payments and insurance for both parties in the amount of $951.00. Since
the trial, both parties have reached the age of 65 and are eligible for Medicare.
                                                  -2-
“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 by a sum of $550.00 per month to $2,990.00
       per month, effective May 2012.”

Husband appeals.

                                       II.    Issues

       Appellant raises only one issue for review as stated in his brief:

       Whether the trial court erred by not terminating the ex-husband’s alimony
       in futuro and life insurance obligations?

      In the posture of Appellee, Ms. Wilhoit asks this court to award her attorney’s fees
and costs on appeal.

                                 III. Standard of Review

        We review the trial court’s specific findings of fact de novo in accordance with
Tenn. R. App. P. 13(d); thus, when the trial court has set forth its factual findings in the
record, we will presume the correctness of those findings unless the evidence
preponderates against them. Mayfield v. Mayfield, 395 S.W.3d 108, 115 (Tenn. 2012)
“Because modification of a spousal support award is factually driven and calls for a
careful balancing of numerous factors, a trial court’s decision to modify support
payments is given wide latitude within its range of discretion.” Bogan v. Bogan, 60
S.W.3d 721, 727 (Tenn. 2001) (citations omitted). We decline to second-guess a trial
court’s decision to modify support absent an abuse of discretion. Robertson v.
Robertson, 76 S.W.3d 337, 343 (Tenn. 2002)). An abuse of discretion occurs when the
trial court causes an injustice by applying an incorrect legal standard, reaches an illogical
result, resolves the case on a clearly erroneous assessment of the evidence, or relies on
reasoning that causes an injustice. Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn.
2011) (citing Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011);
Henderson v. SAIA, Inc., 318 S .W.3d 328, 335 (Tenn. 2010)).

                                       IV. Analysis

      An award of alimony in futuro remains in the court’s control for the duration of
the award and “may be increased, decreased, terminated, extended, or otherwise
                                       -3-
modified, upon a showing of substantial and material change in circumstances.” Tenn.
Code Ann. § 36-5-121(f)(2)(A). The party seeking modification of the alimony award
“bears the burden of proving that a substantial and material change in circumstances has
occurred.” Wiser v. Wiser, 339 S.W.3d 1, 12 (Tenn. Ct. App. 2010) (citing Freeman v.
Freeman, 147 S.W.3d 234, 239 (Tenn. Ct. App. 2003)). As noted above, the trial court
previously determined that Husband’s “retirement was objectively reasonable and
constituted a material and substantial change of circumstance.” This finding was also
affirmed by the trial court on remand. There is sufficient evidence in the record to
support Husband’s contention that he has a chronic debilitating disease. Thus, we agree
that Husband’s retirement was objectively reasonable and constitutes a material and
substantial change of circumstance.

       Having met the threshold requirement of material and substantial change in
circumstance, Husband has the burden to establish that the modification is justified based
on the same factors that are relevant to an initial award of alimony. Proctor v. Proctor,
No. M2006-01396-COA-R3-CV, 2007 WL 2471504, at *2 (Tenn. Ct. App. Aug. 31,
2007) (citing Bogan, 60 S.W.3d at 730; Wright v. Quillen, 83 S.W.3d 768, 773 (Tenn.
Ct. App. 2002)). Although the trial court must consider all of the factors outlined in
Tennessee Code Annotated Section 36-5-121(i) in determining what, if any, modification
may be appropriate, the two most important considerations in modifying spousal support
are the financial ability of the obligor to provide the support and the financial need of the
party receiving the support. Bogan, 60 S.W.3d at 730. Unlike an initial award of
support, when deciding whether to modify an award, the need of the receiving spouse and
the ability of the obligor to provide support must be given at least equal consideration.
Id.

       In Wilhoit I, we determined that Wife had a need of $1,627.00 per month, which
is supported by Trial Exhibit 14, Wife’s affidavit of income and expenses. The exhibit
shows that Wife has monthly expenses of $2,583 and social security income of $956.
Thus, deducting income from expenses, we arrived at $1,627. However, on remand from
Wilhoit I, the trial court increased Wife’s monthly expenses by adding $1,300 per month
for rent on a storage facility and $162.70 for Wife’s cell phone. Accordingly, the trial
court concluded that Wife’s monthly expenses are $4,045.70. In the first instance, Wife’s
affidavit of income and expenses lists her food expense, for one person, as $1,100 per
month; she avers that her gasoline expense is $300 per month. It is undisputed that Wife
does not work, and there is no evidence that she is required to travel to such an extent as
to amass a $300 monthly gas bill. Additionally, Wife’s bank statements show that she
writes thousands of dollars of checks each month to “cash.” There is no indication as to
what, if any, needs this cash covers.

       Wife’s affidavit of income and expenses also states that Wife “lives with her
mother to help provide daily assistance to her in her ‘senior years’ and contributes funds
to the routine expenses of the household.” Tennessee Code Annotated Section 36-5-
                                           -4-
121(f)(2)(B)(ii) states that, in all cases where a person is receiving alimony in futuro and
the alimony recipient lives with a third person, a rebuttable presumption is raised that
“[t]he third person is receiving support from the alimony recipient and the alimony
recipient does not need the amount of alimony previously awarded and the court should
suspend all or part of the alimony obligation of the former spouse.” Tenn. Code Ann. §
36-5-121. In Wilhoit I, Husband argued that Wife no longer needed support because she
was living with her mother. Although on remand, the trial court found that Appellee
“rebutted the presumption that she does not need continuing alimony,” it does not explain
the basis for this determination. Due to Wife’s monthly cash withdrawals, it is difficult,
if not impossible, to determine what she pays to meet her needs, what she pays to support
her mother, and what her exact need may be. In any event, the trial court is required by
Tennessee Rule of Civil Procedure 52.01 to explain its decision.

        From our review of the record, Wife had $88,000 in her bank account at the time
of trial, and she retained some of the approximately $62,000 in gold awarded to her in the
divorce. Although Wife did not testify regarding the value of the remaining gold, she did
testify that she sold some of the gold for approximately $48,000, indicating that the
remaining gold held far less value than what was awarded to her in the divorce.
Husband’s assets at the time of trial totaled $181,238. His assets consisted of $96,117 in
bank accounts, which included funds remaining from the sale of his dental practice, an
IRA valued at $29,000, and approximately $56,121 in gold that he inherited from his
mother. 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 by a sum of $550.00 per month to $2,990.00
       per month, effective May 2012.

        Using the figures determined by the trial court, Husband’s monthly expenses,
including his alimony obligation, total $6,662 per month. Husband has a monthly social
security income of $2,060, resulting in a monthly deficit of $4,602. Although he retains
assets, if Husband paid the alimony as ordered by the trial court, he would have depleted
his assets before the end of 2015. In Bowman v. Bowman, 836 S.W.2d 563 (Tenn. Ct.
App. 1991), this Court concluded that, where the husband-obligor was unable to work
and was forced to liquidate all of his assets in order to pay spousal support, (such that he
would soon have nothing from which to support himself,) the support obligation should
terminate within one year. Id. at 568-69. However, in Bowman, the recipient-spouse
was to receive a large tract of land, which could be sold in order to provide for her
support. Id. at 569. Here, the parties’ cumulative incomes and assets are not sufficient to
cover their respective expenses long-term. In cases such as this, the parties must
recognize that “[j]ust as a married couple may expect a reduction in income due to
                                            -5-
retirement, a divorced spouse cannot expect to receive the same high level of support
after the supporting spouse retires.” Bogan v. Bogan, 60 S.W.3d 721, 729 (Tenn. 2001)
(quoting In re Marriage of Reynolds, 63 Cal. App. 4th 1373, 74 Cal. Rptr. 2d 636, 640
(Ct. App. 1998)). Like Mr. Bogan, Dr. Wilhoit, while able to provide some level of
support, cannot continue to pay support at pre-retirement levels without accruing a
substantial monthly deficit. From the totality of the circumstances, we conclude that the
trial court’s order awarding Wife alimony in futuro in the amount of $2,990 per month
was not supported by the evidence. If left to stand, the trial court’s decision will result in
Husband liquidating all assets and accruing insurmountable debt. Accordingly, the ruling
constitutes a clear abuse of discretion. See Gonsewski v. Gonsewski, 350 S.W.3d 99, 105
(Tenn. 2011). While we concede that Wife has need of alimony, the question remains
what, if any, amount of support Husband has the ability to pay. We now turn to that
question.

       As set out above, Husband has income of $2,060 per month and expenses of
$3,672 per month, not including alimony. Wife has income of $956 and alleged expenses
of $4,045.70, which exceeds Wife’s expenses as found by this Court in Wilhoit I. We,
therefore, modify the trial court’s award of alimony in futuro from $2,990 per month to
$500 per month, effective May 30, 2012. This revised award of alimony in futuro
provides an equitable distribution of income between the parties such that both parties
can retain enough assets to continue to support themselves for years to come.

        Having modified Husband’s alimony obligation, we now address the question of
overpayment. As discussed above, Husband sold his dental practice in April 2012 and
filed the petition to terminate his alimony obligation in May 2012. While the petition
was pending, Husband continued to pay alimony in the amount of $4,500 per month from
June 2012 through March 2013. Then, from April 2013 through March 2014, Husband
paid monthly alimony in the amount of $3,544 per month. Wilhoit I instructed the trial
court to address the issue of Husband’s overpayment of alimony. Tennessee case law
allows an obligor who has overpaid alimony to recoup those funds. See Jekot v. Jekot,
362 S.W. 3d 76, 85 (Tenn. Ct. App. 2011); Anderson v. Anderson, No. M2005-02029-
COA-R3CV, 2007 WL 957186, at *7 (Tenn. Ct. App. Mar. 29, 2007); Barlew v. Barlew,
No. 2004-01654-COA-R3-CV, 2005 WL 954797, at *5 (Tenn. Ct. App. April 26, 2005).
While the need of the receiving spouse remains an important consideration in
modification cases, the ability of the obligor to provide support must be given at least
equal consideration. Bogan, 60 S.W.3d at 730. The trial court’s order addressed the
amount overpaid by Husband with regard to Wife’s receipt of her social security income.
The trial court’s order stated in pertinent part:

       Wife began drawing social security benefits in the amount of $956.00 per
       month in July 2012. Accordingly, Husband is entitled to an offset for the
       period in which he overpaid, from July, 2012 through March, 2013, in the
       total amount of $8,604.00. This offset shall be awarded to Husband by
                                         -6-
       reducing his alimony payments in the amount of $500 per month until the
       reimbursement has been fully satisfied.


We affirm the trial court’s order with regard to the recoupment of the overage paid while
Wife was receiving her social security benefits. However, we remand this case to the
trial court to determine what, if any, additional overages shall be reimbursed, and
establish a schedule for payment. Our holding does not preclude the parties from
presenting further evidence on the amount of the overage, and how, or whether it should
be paid. Due to the modification of the trial court’s order, we conclude that Husband’s
life insurance requirement is no longer necessary.

                                        Attorneys’ Fees

       As her sole issue, Ms. Wilhoit requests that she be awarded attorney’s fees and
costs on appeal. Tennessee Code Annotated section 27-1-122 states that:

       When it appears to any reviewing court that the appeal from any court of
       record was frivolous or taken solely for delay, the court may, either upon
       motion of a party or of its own motion, award just damages against the
       appellant, which may include but need not be limited to, costs, interest on
       the judgment, and expenses incurred by the appellee as a result of the
       appeal.

Tenn. Code Ann. § 27-1-122. “In considering a request for attorney’s fees on appeal, we
consider the requesting party’s ability to pay such fees, the requesting party’s success on
appeal, whether the appeal was taken in good faith, and any other equitable factors
relevant in a given case.” Moran v. Wilensky, 339 S.W.3d 651, 666 (Tenn. Ct. App.
2010)(citing Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995)). However,
the statute must be interpreted and applied strictly so as not to discourage legitimate
appeals. Henderson v. SAIA, Inc., 318 S.W.3d 328, 342 (Tenn. 2010). Dr. Wilhoit was
successful in his appeal, and we cannot conclude that this appeal was frivolous or taken
solely for delay. Accordingly, we deny Appellee’s request for attorneys’ fees.

                                     V. Conclusion

       For the foregoing reasons, the judgment of the trial court is therefore modified as
stated above, and this matter is remanded to the trial court with instructions to enter a
judgment consistent herewith and for such further proceedings as may be necessary and
are consistent with this opinion. Costs of the appeal are assessed against the parties
equally, with one-half of the costs assessed against Appellant, Gary Dennis Wilhoit, and

his surety; and one-half of the costs assessed against Appellee, Deborah Evans Wilhoit,
                                           -7-
for all of which execution may issue if necessary.



                                                 _________________________________
                                                 KENNY ARMSTRONG, JUDGE




                                           -8-
