                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               September 19, 2013 Session

             RENE ANNETTE FIELDS v. JIMMY GLENN FIELDS

                  Appeal from the Circuit Court for Hawkins County
                     No. 09CV0022      Thomas J. Wright, Judge


               No. E2012-02406-COA-R3-CV - Filed December 27, 2013


D. M ICHAEL S WINEY, J., concurring and dissenting.


              I do not take issue with any of the law as set forth in the majority’s opinion.
I concur in the majority’s decision to affirm the Trial Court’s denial of the Appellant’s
request to reduce the amount of the alimony. I do, however, respectfully dissent from the
majority’s opinion affirming the Trial Court’s decision to increase the amount of the alimony.


               It is undisputed that the Appellant had the burden to show a material change
of circumstances in order to decrease his alimony payment. It, however, is equally
undisputed that the Appellee had the burden to show a material change of circumstances in
order to increase the alimony. I agree with the majority and the Trial Court that the
Appellant failed to meet his burden to show a change of circumstances sufficient to decrease
the alimony. Where I differ from the majority and the Trial Court is that I believe, as shown
in the record before us, that the Appellee also failed to meet her burden to show a material
change of circumstances sufficient to order an increase in the alimony.

               I agree with the finding of the Trial Court as quoted by the majority that “[i]n
other words, nothing has changed . . ..” As noted by the majority, the Appellant did go back
to work for a short time after the divorce but had to leave that job “to have his knee
replaced.” The Appellee presented no proof that the Appellant has or even ever will recover
sufficiently from his knee replacement to be able to go back to his work. Perhaps Appellant
has made such a recovery, but if so this record contains no proof that he has, and any such
“finding” that he has is based on nothing more than an assumption or speculation that his
knee replacement surgery resulted in his being able to return to his work in the construction
industry.
               As I believe neither Appellant nor Appellee satisfied his or her burden of
showing a material change of circumstances sufficient to modify the alimony awarded in the
divorce, I would affirm the Trial Court’s decision denying Appellant’s request that his
alimony be lowered. I, however, would reverse the Trial Court’s decision finding that the
Appellee had shown a material change of circumstances and that the alimony should be
increased. In short, as neither party proved a material change of circumstances, I believe the
Trial Court was required to leave the alimony as set in the original divorce decree and that
it was error to increase the amount of alimony.


                                                         ______________________________
                                                         D. MICHAEL SWINEY, JUDGE




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