                                                                                      11/04/2019
                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                        August 22, 2019 Session

                     CARLA JO CAPPS JONES v. JOSEPH R. JONES

                Appeal from the General Sessions Court for Campbell County
                    No. 2014-DR-102          Amanda Sammons, Judge
                          ___________________________________

                                  No. E2019-00037-COA-R3-CV
                              ___________________________________


In this post-divorce action, the husband sought to modify his alimony obligation to the
wife. The trial court denied the husband’s petition to modify, determining that the
husband had failed to prove that a substantial and material change in circumstance had
occurred since entry of the divorce decree. The husband has appealed. Discerning no
reversible error, we affirm.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
                              Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and JOHN W. MCCLARTY, JJ., joined.

Robert R. Asbury, Jacksboro, Tennessee, for the appellant, Joseph R. Jones.

Terry M. Basista, Jacksboro, Tennessee, for the appellee, Carla Jo Capps Jones.

                                                  OPINION

                                 I. Factual and Procedural Background

       On August 1, 2014, the plaintiff, Carla Capps Jones (“Wife”), filed a complaint
seeking a divorce from the defendant, Joseph R. Jones (“Husband”), in the Campbell
County General Sessions Court (“trial court”). According to Wife, the parties had been
married since March 1989 and had one minor child.1 Wife concomitantly filed the
parties’ signed and notarized marital dissolution agreement (“MDA”), wherein the parties
agreed that Husband would pay to Wife $3,577 monthly, representing both his alimony
and child support obligations. The MDA specifically stated that “after determination of
1
    Subsequent pleadings reveal that the parties also had an adult child.
child support[,] remaining balance shall be alimony.” The MDA provided that Wife
would retain the marital residence and two additional lots of real property and would also
be responsible for the attendant debt related thereto. It further provided that Husband
would retain his retirement account and that each party would keep the personalty in his
or her possession.

       On August 12, 2014, Wife filed an agreed permanent parenting plan (“PPP”),
which provided that Wife would be the primary residential parent of the minor child and
would exercise 280 days per year of co-parenting time, with Husband enjoying 85 days
of co-parenting time annually. The PPP failed to set forth a specific schedule for
Husband’s co-parenting time; rather, it simply stated that Husband “shall exercise
parenting time by agreement.” The PPP specified that Husband would pay child support
to Wife in the amount of $765 per month based upon the parties’ respective incomes and
the calculation contained in the attached child support worksheet.

       Thereafter, the parties filed an amended MDA, which additionally provided that
Husband had quitclaimed his interest in the marital home to Wife. The trial court entered
a final decree of divorce on November 5, 2014, referencing and approving the parties’
amended MDA.

       Three years later, on November 1, 2017, Husband filed a petition in the trial court
seeking to modify his alimony obligation. Husband averred that he had not been
represented by counsel during the divorce proceedings. He argued that the alimony
provision in the parties’ amended MDA was deficient because it did not state whether the
alimony award was in the nature of in futuro, rehabilitative, or transitional alimony.
Husband also contended that the alimony award should be modified because Wife was
awarded a greater share of the marital property and Husband was paying over one-half of
his monthly income to Wife. Wife filed an answer, wherein she pointed out that Husband
had appeared in court and agreed to the MDA’s provisions at the time of the divorce.

       The trial court conducted a hearing concerning Husband’s petition on June 29,
2018, and October 22, 2018. The court subsequently entered an order on December 7,
2018, determining that the petition for modification should be denied. The court noted
that Husband’s monthly child support obligation had been set at $765 per month pursuant
to the agreed PPP and that neither party had disputed this obligation. Furthermore, the
court found that because the alimony award was for an indefinite time period, it was
properly characterized as alimony in futuro. Although acknowledging that an award of
alimony in futuro was modifiable upon a proper showing of a substantial and material
change in circumstance, the court determined that Husband had failed to prove such a
change in this case. The court specifically found in pertinent part:

      Although Husband testified under oath that he is no longer able to pay the
      alimony that he obligated himself to pay back in 2014, the Court finds that
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      Husband has failed to meet his burden of proving that a substantial and
      material change in circumstances has occurred such as would allow a
      modification of alimony at this time. To the contrary, Husband’s finances
      have improved since the parties divorced. His income has risen, though
      slightly. He is now remarried, although he declines to testify about or even
      acknowledge his current household income. Husband’s main assertion is
      that his debt-to-income ratio has been detrimentally affected by several
      factors, including his name remaining on the deed to the former marital
      residence, his current credit card and personal debt, and his requirement to
      continue paying alimony and the fee for Wife’s car tags. Yet none of these
      rises to the level of constituting a substantial and material change of
      circumstances.

             Thus, based on the testimony of the parties, the evidence presented,
      the argument of counsel and the applicable law, the Court does not find that
      any substantial or material change in circumstances has arisen such as
      would allow the court to amend the prior agreement of these parties.
      Husband agreed to pay alimony to the Wife in the amount specified in the
      Amended Marital Dissolution Agreement for an indefinite period of time.
      Wife was married to Husband for twenty-five (25) years, relinquishing
      income-earning potential in exchange for operating a home and rearing the
      parties’ minor children. No substantial or material change in circumstances
      has arisen which would allow the court to modify this agreement.

Husband timely appealed.

                                  II. Issues Presented

        Husband presents the following issues for our review, which we have restated
slightly:

      1.    Whether the trial court erred by determining that no substantial and
            material change in circumstance had occurred that would allow
            modification of the alimony provision in the parties’ MDA.

      2.    Whether the trial court erred by characterizing the alimony award in
            the MDA as alimony in futuro.

      3.    Whether the trial court erred by failing to address the combined
            award of child support and alimony in the parties’ MDA.



                                         -3-
                                  III. Standard of Review

       We review a non-jury case de novo upon the record with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
2000). We review questions of law de novo with no presumption of correctness.
Bowden, 27 S.W.3d at 916 (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn.
1998)). The trial court’s determinations regarding witness credibility are entitled to great
weight on appeal and shall not be disturbed absent clear and convincing evidence to the
contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

       Marital dissolution agreements are contractual and, once approved by the trial
court, “become legally binding obligations on the parties.” Long v. McAllister-Long, 221
S.W.3d 1, 8-9 (Tenn. Ct. App. 2006), perm. app. denied (Tenn. Jan. 29, 2007). However,
obligations concerning the two “notable exceptions” of child support and alimony do
remain modifiable by the courts. Id. at *9 n.7. We review issues of contract
interpretation de novo. See Dick Broad. Co. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d
653, 659 (Tenn. 2013). As this Court has previously explained:

              In resolving a dispute concerning contract interpretation, our task is
       to ascertain the intention of the parties based upon the usual, natural, and
       ordinary meaning of the contract language. Planters Gin Co. v. Fed.
       Compress & Warehouse Co., Inc., 78 S.W.3d 885, 889-90 (Tenn. 2002)
       (citing Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999)). A
       determination of the intention of the parties “is generally treated as a
       question of law because the words of the contract are definite and
       undisputed, and in deciding the legal effect of the words, there is no
       genuine factual issue left for a jury to decide.” Planters Gin Co., 78
       S.W.3d at 890 (citing 5 Joseph M. Perillo, Corbin on Contracts, § 24.30
       (rev. ed. 1998); Doe v. HCA Health Servs. of Tenn., Inc., 46 S.W.3d 191,
       196 (Tenn. 2001)). The central tenet of contract construction is that the
       intent of the contracting parties at the time of executing the agreement
       should govern. Planters Gin Co., 78 S.W.3d at 890. The parties’ intent is
       presumed to be that specifically expressed in the body of the contract. “In
       other words, the object to be attained in construing a contract is to ascertain
       the meaning and intent of the parties as expressed in the language used and
       to give effect to such intent if it does not conflict with any rule of law, good
       morals, or public policy.” Id. (quoting 17 Am. Jur. 2d, Contracts, § 245).

Kafozi v. Windward Cove, LLC, 184 S.W.3d 693, 698 (Tenn. Ct. App. 2005), perm. app.
denied (Tenn. Jan. 30, 2006).


                                            -4-
      With regard to the standard of appellate review applicable when a modification of
alimony is at issue, our Supreme Court has explained:

      Because modification of a spousal support award is “factually driven and
      calls for a careful balancing of numerous factors,” Cranford v. Cranford,
      772 S.W.2d 48, 50 (Tenn. Ct. App. 1989), a trial court’s decision to modify
      support payments is given “wide latitude” within its range of discretion, see
      Sannella v. Sannella, 993 S.W.2d 73, 76 (Tenn. Ct. App. 1999). In
      particular, the question of “[w]hether there has been a sufficient showing of
      a substantial and material change of circumstances is in the sound
      discretion of the trial court.” Watters v. Watters, 22 S.W.3d 817, 821
      (Tenn. Ct. App. 1999) (citations omitted). Accordingly, “[a]ppellate courts
      are generally disinclined to second-guess a trial judge’s spousal support
      decision unless it is not supported by the evidence or is contrary to the
      public policies reflected in the applicable statutes.” Kinard v. Kinard, 986
      S.W.2d 220, 234 (Tenn. Ct. App. 1998); see also Goodman v. Goodman, 8
      S.W.3d 289, 293 (Tenn. Ct. App. 1999) (“As a general matter, we are
      disinclined to alter a trial court’s spousal support decision unless the court
      manifestly abused its discretion.”).

Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001); see also Wiser v. Wiser, No. M2013-
02510-COA-R3-CV, 2015 WL 1955367, at *3 (Tenn. Ct. App. Apr. 30, 2015), perm.
app. denied (Tenn. Sept. 17, 2015).

                 IV. Substantial and Material Change in Circumstance

       Husband argues that the trial court erred by determining that he had failed to
demonstrate a substantial and material change in circumstance sufficient to allow
modification of the alimony provisions contained in the parties’ MDA. Husband avers
that he entered into the MDA without the benefit of counsel. Husband contends that
since the parties’ divorce, he has been paying seventy-one percent of his net income to
Wife each month in alimony and child support. Husband further contends that he has
been unable to obtain a mortgage or automobile financing, which he attributes to his
alimony obligation and the fact that he remains indebted on the mortgage for the former
marital residence.

        Husband states that Wife received the parties’ real property in the divorce with
Husband receiving his retirement account. According to Husband, he cashed out such
retirement account in the year following the divorce and applied the funds toward paying
off a joint debt assigned to him in the divorce as well as to purchase items for Wife and
himself. Husband has also remarried, and he and his current wife reside in a home solely
owned by her. Husband postulates that these facts constitute a substantial and material
change in circumstance warranting a decrease in his monthly alimony obligation.
                                           -5-
       Tennessee Code Annotated § 36-5-121(a) (2017) provides that a decree awarding
alimony “shall remain in the court’s jurisdiction and control, and, upon application of
either party, the court may award an increase or decrease or other modification of the
award based upon a showing of a substantial and material change of circumstances.”
Concerning what constitutes a substantial and material change in circumstance, this Court
has explained:

              The party seeking relief on the grounds of a substantial and material
       change in circumstances has the burden of proving such changed
       circumstances warranting an increase or decrease in the amount of the
       alimony obligation. Seal v. Seal, 802 S.W.2d 617, 620 (Tenn. [Ct.] App.
       1990). The change in circumstances must have occurred since the entry of
       the divorce decree ordering the payment of alimony. Elliot v. Elliot, 825
       S.W.2d 87, 90 (Tenn. [Ct.] App. 1991). Furthermore, the change in
       circumstances must not have been foreseeable at the time the parties
       entered into the divorce decree. Id. If the change in circumstances was
       anticipated or in the contemplation of the parties at the time they entered
       into the property settlement agreement, such changes are not material to
       warrant a modification of the alimony award. Jones v. Jones, 784 S.W.2d
       349, 353 (Tenn. [Ct.] App. 1989).

             The decision to modify the alimony obligation is factually driven
       and requires a careful balancing of several factors. Cranford v. Cranford,
       772 S.W.2d 48, 50 (Tenn. [Ct.] App. 1989). The factors set forth in T.C.A.
       § 36-5-101(d), applicable to the initial grant of spousal support and
       maintenance, where relevant, must be taken into consideration in
       determining whether there has been a change in circumstances to warrant a
       modification of the alimony obligation. Threadgill v. Threadgill, 740
       S.W.2d 419, 422-23 (Tenn. [Ct.] App. 1987).

              While T.C.A. § 36-5-101(d) enumerates several factors for the court
       to consider, the need of the spouse receiving the support is the single most
       important factor. Cranford, 772 S.W.2d at 50. In addition to the need of
       the spouse receiving support, the courts most often take into consideration
       the ability of the obligor spouse to provide support. Id.

Watters v. Watters, 22 S.W.3d 817, 821 (Tenn. Ct. App. 1999).

       The evidence adduced at trial demonstrated that the parties’ financial situations at
the time of trial were substantially the same as at the time of the divorce in 2014.
Husband was employed in the same position that he held in 2014 but testified that he had
received a slight salary increase of approximately $3,000 per year. Similarly, Wife
                                         -6-
remained unemployed outside the home, focusing her energies on homeschooling the
parties’ daughter. Wife thus had no income and depended on Husband’s monthly
alimony payments to pay her bills. Wife presented a list of her monthly expenses,
establishing that she utilized the entire amount of the alimony and child support awards to
pay expenses for herself and the minor child, with little money remaining.

       Husband testified that he had remarried approximately two and one-half years
before the trial and relocated from his mother’s home to a home owned by his current
wife. According to Husband, he agreed to the terms of the MDA because he was living
with his mother at the time and had few expenses. Husband stated that he currently could
not obtain a loan for a car or home because his debt to income ratio was too high due to
his obligation on the mortgage concerning the parties’ former marital residence.

       As the trial court found, the “only significant change which has occurred since the
divorce is that husband has since remarried.” However, this Court has explained that “the
voluntary assumption of new obligations, including a subsequent marriage or children,
does not constitute a change in circumstances.” Turnage v. Turnage, No. 01A01-9409-
CV-00424, 1995 WL 89778, at *2 (Tenn. Ct. App. Mar. 1, 1995) (citing Elliot v. Elliot,
825 S.W.2d 87 (Tenn. Ct. App. 1991); Dillow v. Dillow, 575 S.W.2d 289, 291 (Tenn. Ct.
App. 1978)). See Stone v. Stone, No. M1997-00218-COA-R3-CV, 2000 WL 1679434, at
*5 (Tenn. Ct. App. Nov. 9, 2000) (explaining that the “voluntary assumption of new
financial obligations following a divorce,” including remarriage, having additional
children, purchasing a home, or moving to another state, do not amount to a substantial or
material change in circumstance for alimony modification purposes).

       Aside from his remarriage, the only change that Husband had experienced since
the time of the divorce was a slight increase in his annual salary. Clearly, such a positive
change would not warrant a decrease in his alimony obligation. Husband also asserts that
Wife “has obtained sole title to the former marital home while keeping Husband
obligated on the mortgage, [and] is not only paying all of her expenses from the child
support and alimony award but is also able to put additional monies in savings.” None of
these circumstances, however, demonstrate a substantial and material change from the
circumstances existing at the time of the divorce. See, e.g., Stone, 2000 WL 1679434, at
*5 (explaining that the parties could have foreseen that the obligee spouse would be able
to “be frugal with her resources” and accumulate some savings following the divorce).

       In short, Husband has failed to carry his burden of proving a substantial and
material change in circumstance warranting a decrease in the amount of his alimony
obligation. See Watters, 22 S.W.3d at 821. Although the parties’ circumstances remain
largely the same as they were at the time of the divorce, any small changes that have
occurred were foreseeable at the time the parties entered into the divorce decree. The real
crux of Husband’s position appears to be his dissatisfaction with the alimony obligation
to which he agreed. Such dissatisfaction, however, does not equate to a material change
                                           -7-
in circumstance. Following our thorough review of the evidence presented, we conclude
that the trial court did not abuse its discretion in determining that any changes that have
occurred in the parties’ circumstances post-divorce were not sufficiently substantial so as
to warrant a modification of the alimony award. We therefore affirm the trial court’s
denial of Husband’s petition to modify.

                           V. Classification of Alimony Type

        Husband asserts that the trial court erred by “characterizing the unspecified
alimony award in the original action as alimony in futuro.” The argument contained in
Husband’s appellate brief concerning this issue, however, focuses on whether alimony in
futuro was warranted in the first place or whether rehabilitative or transitional alimony
would have been appropriate. The problem with this argument is two-fold. First, at this
point in the post-divorce proceedings, Husband’s alimony obligation may only be
modified upon a “showing of a substantial and material change of circumstances.” See
Tenn. Code Ann. § 36-5-121(a). As discussed earlier in this Opinion, Husband has failed
to demonstrate such a change. Second, Husband failed to raise as an issue as to whether
the trial court had an appropriate basis upon which to approve an award of alimony in
futuro in the parties’ MDA, and this Court can only address the issues raised in the
statement of issues. See Brunetz v. Brunetz, 573 S.W.3d 173, 186 (Tenn. Ct. App. 2018),
perm. app. denied (Tenn. Jan. 18, 2019); Forbess v. Forbess, 370 S.W.3d 347, 356
(Tenn. Ct. App. 2011) (“We may consider an issue waived where it is argued in the brief
but not designated as an issue.”).

        Concerning the type of alimony obligation assumed by Husband in the MDA, the
trial court noted that “its indefinite character renders it alimony in futuro.” We agree.
See Brewer v. Brewer, 869 S.W.2d 928, 935 (Tenn. Ct. App. 1993) (determining that an
alimony obligation consisting of monthly payments for an indefinite period should
properly be characterized as alimony in futuro). See also Burlew v. Burlew, 40 S.W.3d
465, 472 (Tenn. 2001) (noting the indefinite nature of an alimony in future award); Isbell
v. Isbell, 816 S.W.2d 735, 739 (Tenn. 1991) (holding that an alimony in futuro award
consists of “an indefinite amount over an indefinite period of time”). Moreover, both
parties’ counsel conceded at trial that the alimony obligation was properly characterized
as alimony in futuro, which resulted in the obligation being modifiable upon a proper
showing. We therefore determine Husband’s second issue to be unavailing.

                  VI. Interplay of Alimony and Child Support Awards

       Husband’s final issue concerns whether the trial court erred by failing to address
the “combined” nature of the award of alimony and child support in the MDA, which
Husband characterizes as improper. In so arguing, Husband relies upon this Court’s
opinion in Lubell v. Lubell, No. E2014-01269-COA-R3-CV, 2015 WL 7068559, at *4
(Tenn. Ct. App. Nov. 12, 2015). Lubell involved a final decree of divorce wherein the
                                        -8-
trial court ordered that the amount of transitional alimony awarded to the wife would be
inclusive of child support, such that the wife would receive “$2,750.00 monthly
combined alimony and child support for three years, followed by $2,000.00 monthly
combined alimony and child support for three years, followed by $1,750.00 monthly
alimony for two years, followed by $1,000.00 monthly alimony for two years.” Id. at *3.
Upon this Court’s review of such award, we concluded that the trial court erred in
combining alimony and child support into one “capped” amount. Id. at *19. In so ruling,
this Court explained:

      Because child support must remain modifiable and cannot therefore be
      “capped” at a maximum amount, we conclude that the trial court erred in
      this regard as a matter of law. See Tenn. Code Ann. § 36-5-101(g)(1)
      (Supp. 2015) (“Upon application of either party, the court shall decree an
      increase or decrease of support when there is found to be a significant
      variance, as defined in the child support guidelines established by
      subsection (e), between the guidelines and the amount of support currently
      ordered . . . .”); Tenn. Comp. R. & Regs. 1240-02-04-.05 (providing for
      modification of child support orders upon demonstration that a significant
      variance exists, as calculated under the Income Shares Guidelines, since
      entry of the original order); see also Kaplan v. Bugalla, 188 S.W.3d 632,
      636 (Tenn. 2006).

Id. Inasmuch as the Lubell Court had already determined that the type of alimony
awarded would be modified from transitional to in futuro, the Court set a separate amount
of monthly alimony based on the evidence and the statutory factors and remanded the
child support issue for calculation in accordance with the Child Support Guidelines. Id.
at *21.

       We find the alimony provision contained in the parties’ MDA in this matter to be
distinguishable from the trial court’s award of “capped” alimony and child support in
Lubell. In the case at bar, the parties calculated Husband’s child support obligation to be
$765 per month based on the Child Support Guidelines. The MDA provided that
Husband would pay to Wife a total of $3,577 monthly, representing both his alimony and
child support obligations. The MDA specifically stated that “after determination of child
support[,] remaining balance shall be alimony.” As such, Husband’s alimony obligation
of $2,812 per month is easily calculated as a separate amount. Moreover, neither the
child support award nor the alimony award was “capped,” and either award could be
modified upon a proper showing. We therefore find that Husband’s reliance on Lubell as
a basis for modifying his alimony obligation is misplaced.




                                           -9-
                                    VII. Conclusion

       For the foregoing reasons, we determine that the trial court’s judgment denying
Husband’s petition to modify his alimony obligation should be affirmed. Costs on appeal
are taxed to the appellant, Joseph R. Jones. This case is remanded to the trial court for
collection of costs assessed below.



                                                  _________________________________
                                                  THOMAS R. FRIERSON, II, JUDGE




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