                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     April 3, 2002 Session

                    ANGELA D. SIEFKER v. GARY C. SIEFKER

                      Appeal from the Circuit Court for Davidson County
                         No. 98D-3861      Muriel Robinson, Judge



                   No. M2001-01458-COA-R3-CV - Filed November 1, 2002


This is a post-divorce case regarding alimony and child support. The husband was ordered to pay
alimony in futuro, and child support for the parties’ minor child. Later, the husband was terminated
from his job, and his income dropped substantially. The husband fell behind in his support
payments. Consequently, he sought a reduction in alimony and child support. Noting that the
husband retained substantial assets, the trial court found that the husband was able to fulfill his
obligations, denied his request for reduction in alimony, ordered him to pay his arrearage in alimony
and child support, and awarded the wife reasonable attorney’s fees. Child support was terminated
because the minor child had graduated from high school by the time of the trial. The husband now
appeals. We affirm, finding no abuse of the trial court’s discretion, in view of the termination of the
husband’s child support obligation, the wife’s continued need for alimony, and the husband’s
retention of significant assets.

                 Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

HOLLY K. LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., and ALAN E. HIGHERS, J., joined.

D. Scott Parsley, Nashville, Tennessee, for the appellant Gary C. Siefker.

Phillip Robinson, Nashville, Tennessee, for the appellee Angela D. Siefker.

                                             OPINION

        On July 9, 1999, Plaintiff/Appellee Angela D. Siefker (“Wife”) was granted a divorce from
Defendant/Appellant Gary C. Siefker (“Husband”), ending a twenty-three year marriage. The
parties had two children, the older of which had reached majority at the time of the divorce. Among
other obligations relating to the divorce decree, Husband was ordered to pay Wife $2,000 per month
alimony in futuro, as well as $1,782 per month in child support for the parties’ minor child.
         At the time of the divorce, Husband was employed as a sales manager at a car dealership.
In this capacity, he earned $168,580 in 1999, and $138,474 in 2000. On February 2, 2001, Husband
was terminated from his job for “mismanagement of inventory.” After a time, Husband found
employment as a new truck salesman at a Chevrolet dealership. Husband testified that he hoped to
earn $50,000 in his first year at the dealership. Husband made his monthly support payments in a
timely manner until December 2000. From January through May, 2001, Husband paid $8960 of the
$18,910 in support that he owed for that period. Husband did not designate the money sent to Wife
during this period as alimony or child support payments.

        On October 30, 2000, Husband filed a petition to reduce his alimony on the basis of a
substantial and material change in circumstances. On April 3, 2001, Husband amended his petition
to seek a reduction in both alimony and child support, again, based on a substantial and material
change in circumstances.

         On June 14, 2001, the trial court held a hearing on Husband’s petition to reduce his child
support and alimony payments. At the hearing, the evidence showed that Husband owned a race car
worth $23,000, a motorcycle valued at $14,000, and over $47,000 in his 401(k) Plan. The testimony
also showed that Husband received a $14,000 tax refund on April 3, 2001, a time when he was in
support arrears. Wife’s income remained approximately the same as it was at the time the parties
divorced. Additionally, Wife moved from the family home into an apartment, reducing her monthly
housing obligation by $200. Although she realized a $37,000 gain on the sale of the home, Wife
testified that she used the money to move and to pay monthly expenses.

        At the conclusion of the hearing, Husband’s child support payments were terminated because
the parties’ minor child had graduated from high school.1 Regarding the alimony, the trial court
found that Wife had a continued need for the alimony2 and that Husband was able to fulfill his
financial obligations, considering his substantial assets and the fact that his earning capacity
remained significantly greater than Wife’s earning capacity. The trial court denied Husband’s
petition to reduce his monthly alimony payments. In view of Husband’s available assets, the trial
court declined Wife’s request for a finding that he was voluntarily underemployed, concluding that
such a finding was not necessary. To determine the amount of Husband’s arrearage, the trial court
allocated the $8,960 Husband paid from January through May, 2001, to child support. The child
support due during that period of time was $8,910. The $50 overage was then applied to the alimony
arrearage. The alimony due during January through May, 2001, totaled $10,000, leaving a total
arrearage in alimony of $9,950. The trial court ordered Husband to pay the $9950 in alimony
arrearage, as well as $2500 in attorney’s fees. The trial judge noted that Husband’s assets could be


         1
          The record does not indicate the birth date of the couples’ daughter or the date she reached majority. The trial
judge, however, granted the petition to reduce child support “due to the fact that the child has emancipated as of the
graduation date.”

         2
           The trial court held that W ife “has reduced her lifestyle and does not have stand ard living [sic] previously
enjoyed during the marriage a nd sho uld no t be in a worse po sition after the divo rce . . . .” Deposition testimony indicated
that W ife’s incom e had remained at approxim ately $28,000 per year, the amount she earned at the time of the divorce.

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sold to pay the arrearage, and ordered that the race car be sold and the proceeds applied to the
arrearage. Any remaining arrearage was ordered to be paid off at a rate of $200 per month in
addition to the regular monthly alimony obligation. In light of Husband’s testimony that he paid all
of his other bills before making his alimony and child support payments, and that he was current on
all his other obligations and had not liquidated any major assets, the trial court held Husband to be
in civil contempt of the trial court’s orders, and ordered him incarcerated until he purged himself.3
Husband now appeals.

        On appeal, Husband argues that the trial court erred in refusing to reduce his monthly
alimony support obligation and in holding him in contempt of court. Husband contends that the
dramatic reduction in his income resulted in a decreased ability to pay his obligations, and that
Wife’s need for the alimony had decreased. Regarding child support, Husband asserts that the
findings of the trial court require additional clarification to determine the date on which the
termination of child support took effect, and that the modification should reduce any arrearage.
Husband argues that a modification in both alimony and child support should have been granted
retroactive to the date of his October 2000 petition to modify.

        Wife asserts that Husband’s decrease in income is his own fault and that he “set upon a
course of conduct to renege on his support agreement . . . .” Wife notes that Husband has assets he
can liquidate to fulfill his obligations, and that the termination of his child support obligation makes
him further able to meet his alimony payments. Wife maintains that she has a continued need for
support, citing her reduced standard of living as well as her salary, which has remained essentially
unchanged since the time of the divorce. With regard to the child support determination, Wife
argues that the trial court’s instructions were clear, and that the trial court properly awarded full child
support payments up to the time the remaining minor child graduated from high school.

        Because this case was tried without a jury, the standard of review is de novo, with a
presumption of correctness of the findings of the trial court, unless a preponderance of the evidence
shows otherwise. Tenn. R. App. P. 13(d); See Wright v. City of Knoxville, 898 S.W.2d 177, 181
(Tenn. 1995). Questions of law are reviewed de novo, with no presumption of correctness. Burlew
v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001). Modification of an alimony award is factually driven,


         3
         The trial court noted that Husband testified that he hurriedly entered into the divorce agreem ent “so he cou ld
move on,” and observed:

         . . . [F]rom that time forth he ha s pretty much been o n a missio n to red uce this alimony. That’s very
         evide nt. By his o wn testimony he’s paid other b ills instead o f paying the alimo ny. He readily
         admitted that. And he also stated for the record that he is current with everything but his child support
         and alimony paym ent. And he stated , evidently in the discovery and I’ve got it written down here and
         unde rlined, that he will no t pay the child suppo rt and a limony.
                     ....
         He’s had the wherewithal to pay the alimony. Based on the statem ents, he has refused. The Court
         feels this is willful. He’ll be taken into custody until he complies with this order.




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calling for a careful balance of many factors. Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001)
(citations omitted). The trial court is given wide latitude, and its decision will not be disturbed
unless it is “not supported by the evidence or is contrary to the public policies reflected in the
applicable statutes.” Id. Therefore, the decision of the trial court will not be disturbed unless it
evidences an abuse of discretion. A trial court abuses its discretion when it reaches a decision
against logic that causes a harm to the complaining party or when the trial court applies an incorrect
legal standard. Eldridge v. Eldridge, 72 S.W.3d 82, 85 (Tenn. 2001) (citing State v. Shirley, 6
S.W.3d 243, 247 (Tenn. 1999)).

        Husband first argues that his current financial situation warrants a decrease in his alimony
obligation. In order to modify an alimony obligation, a substantial and material change in
circumstances, unforeseen at the time of the divorce decree, must occur. Watters v. Watters, 22
S.W.3d 817, 821 (Tenn. Ct. App. 1999). A substantial and material change in circumstances is one
that significantly affects either the obligor’s ability to make the payments or the obligee’s need for
support. See Bowman v. Bowman, 836 S.W.2d 563, 568 (Tenn. Ct. App. 1991). The party seeking
the reduction in payments has the burden of proving the changed circumstances. Seal v. Seal, 802
S.W.2d 617, 620 (Tenn. Ct. App. 1990). A significant decrease in income may not constitute a
substantial and material change in circumstances if the obligor owns assets that can be liquidated and
the obligee’s need for the payments has not diminished. See Bowman, 836 S.W.2d at 569. Once
a substantial and material change in circumstances has occurred, the trial court must consider the
factors enumerated in section 36-5-101(d) of the Tennessee Code Annotated to determine the
modification to be made. See Bogan v. Bogan, 60 S.W.3d 721, 732 (Tenn. 2001). While the trial
court has wide discretion in modifying alimony obligations, the two primary considerations are the
payor spouse’s ability to pay and the payee spouse’s continued need for the money. Cranford v.
Cranford, 772 S.W.2d 48, 50 (Tenn. Ct. App. 1989).

        On appeal, Husband argues that the change in his financial circumstances is substantial and
material, and warrants a downward modification of his alimony obligation. Wife claims that
Husband is unable to support his contention that his income has decreased to an estimated $50,000
per year, and asserts that he is voluntarily underemployed. The trial court specifically declined to
find that Husband was voluntarily underemployed, but found that Husband had the financial
“wherewithal” to make the alimony payments because he was employed in his business field and had
assets that could be liquidated in order to fulfill his obligations.

         Husband estimated his income at the time of the hearing to be approximately $50,000 per
year, a significant decrease from his prior income level, which ranged from approximately $138,000
to $168,000. The record contains no evidence to contradict Husband’s assertion. This proof,
however, must be weighed against the fact that Wife, without question, has a continued need for the
alimony, still making significantly less than Husband’s reduced income. Moreover, Husband’s child
support obligation has terminated because the parties’ minor child graduated from high school. Most
importantly, at the time of the hearing, Husband retained substantial assets that were untouched,
including a race car worth approximately $23,000, a motorcycle worth approximately $14,000, a
401(k) Plan of approximately $47,000, and a bank account of approximately $6,600. The trial court
considered Husband’s testimony that while he fell behind in his support payments, he kept all his

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other obligations current. Viewing the evidence presented to the trial court, we cannot conclude that
the trial court abused its discretion in declining to modify Husband’s monthly alimony obligation.
We also affirm the trial court’s finding that Husband was in contempt of the order to pay alimony,
considering Husband’s testimony that he kept all of his other obligations current and did not
liquidate assets such as his race car and motorcycle, while he fell behind in his support payments.
         Husband next argues that the trial court’s ruling with regard to the child support modification
was confusing. Husband also indicates in his brief that the trial court should have decreased his
child support payment either for the period from October 30, 2000, when he filed his complaint for
reduction in alimony, or in the alternative, from April 3, 2001, when he amended his complaint to
include a reduction in child support obligations.

        Under Tennessee law, a petitioner is only entitled to a retroactive modification in child
support after the date of filing for the modification. See Tenn. Code Ann. 36-5-101(a)(5) (2001)4;
see also Rutledge v. Barrett, 802 S.W.2d 604, 606 (Tenn. 1991).

        Husband’s petition for modification in child support was filed on April 3, 2001. At that time,
there were two monthly child support payments due before the minor child graduated from high
school and his obligation to make those payments ended. In view of the factors discussed above in
connection with Husband’s petition to decrease his alimony payments, we decline to reduce or
terminate the child support payments prior to the trial court’s hearing on Husband’s petition, which
took place shortly after the child graduated from high school. The trial court’s decision to terminate
the child support payments as of the date of the child’s graduation from high school is therefore
affirmed.

        The decision of the trial court is affirmed. Costs are taxed to the Appellant, Gary C. Siefker,
and his surety, for which execution may issue if necessary.


                                                                  ___________________________________
                                                                  HOLLY K. LILLARD, JUDGE




        4
            Section 36-5-101 (a)(5) of the T ennessee C ode A nnotated states:

        Any Order for child support shall be a judgment entitled to be enforced as any other judgment of a
        Court of this state . . . . Such Judgment shall not be sub ject to m odifica tion as to any time period or
        any am ount d ue prior to the date that an action for m odifica tion is filed . . . .

Tenn. Cod e Ann. § 36-5-101(a)(5) (20 01).

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