       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                                               FILED
                                                               February 27, 1998
WILMA JEAN LAMPLEY,                     )
                                        )                     Cecil W. Crowson
      Plaintiff/Appellee,               )                    Appellate Court Clerk
                                        )      Williamson Chancery
VS.                                     )      No. 23651
                                        )
GORDON RAY LAMPLEY,                     )      Appeal No.
                                        )      01A01-9708-CH-00423
      Defendant/Appellant.              )


                        CONCURRING OPINION


      I have taken the unusual step of preparing this separate opinion because the
assertions in Mr. Lampley’s petition for rehearing require some response. The
petition states that this court’s February 6, 1998 opinion “totally overlooked or
refused to acknowledge” Ms. Lampley’s August 1996 mortgage application in which
Ms. Lampley states that her gross monthly income was $6,652. The petition also
asserts that we must treat this statement as a binding admission by Ms. Lampley
because of our decision in Patterson v. Patterson, App. No. 88-268-II, 1989 WL 5451
(Tenn. Ct. App. Jan. 27, 1989), perm. app. denied (Tenn. May 1, 1989). Neither
assertion is correct.


      Our original opinion recounts Mr. Lampley’s assertion that Ms. Lampley’s
gross monthly income had increased dramatically after 1994 from $833 per month
to $6,652 per month. We also pointed out that her net monthly income was $1,828
after deducting the expenses of her house cleaning business. Because Ms. Lampley’s
testimony about her net monthly income was essentially unchallenged, we considered
her net monthly income when we determined whether Mr. Lampley had made out a
case for reducing or eliminating his spousal support obligation. While the increase
in Ms. Lampley’s income may very well be a material change in circumstances, it
does not necessarily follow that decreasing or eliminating her spousal support is
warranted.


      The circumstances of this case differ markedly from those in Patterson v.
Patterson. Mr. Patterson testified at trial that his interest in his law partnership did
not have “any tangible value,” even though he had earlier submitted a financial
statement to a bank stating that the value of this interest was $100,000. This court
determined that Mr. Patterson’s financial statement was an admission against interest
that tended to establish that the value of his interest in his law partnership was
$100,000. See Patterson v. Patterson, 1989 WL 5451, at *2. Ms. Lampley did not
provide similar inconsistent testimony in this case. She never attempted to repudiate
the statement on her mortgage loan that her gross monthly income was $6,652, but
rather she simply testified about her net monthly income after the expenses of her
business were deducted from her gross income. The plain difference between gross
and net income is sufficient to render Patterson v. Patterson inapposite.



                                       _______________________________
                                       WILLIAM C. KOCH, JR., JUDGE




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