                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                          May 13, 2011 Session

           ANTHONY BRUCE COLSTON v. MELINDA KAY COLSTON

                      Appeal from the Circuit Court for Sumner County
                             No. 28454C     C. L. Rogers, Judge


                    No. M2010-02094-COA-R3-CV - Filed June 30, 2011


In this post-divorce proceeding, Husband appeals the trial court’s order requiring him to pay
an alimony arrearage of $86,000.00. We affirm the judgment for the arrearage and remand
the case for reconsideration of the requirement that Husband pay the arrearage at $1,500.00
per month.

Tenn. Rule App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
                    Part and Reversed in Part; Case Remanded

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R. and A NDY D. B ENNETT, JJ., joined.

Gary Michael Williams, Hendersonville, Tennessee, for the appellant, Anthony Bruce
Colston.

Mark Thomas Smith, Gallatin, Tennessee, for the appellee, Melinda Kay Colston.

                                   MEMORANDUM OPINION 1

I. Facts and Procedural History

       In this case, we are called upon to review the trial court’s order requiring Husband to
pay an alimony arrearage of $86,000.00 which accrued from the entry of the Final Decree


       1
           Tenn. R. Ct. App. 10 states:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
of Divorce until Husband filed a Petition to Terminate Alimony. Anthony Bruce Colston
(“Husband”) and Melinda Kay Colston (“Wife”) were divorced on September 21, 2007. The
Final Decree of Divorce ordered Husband to pay Wife alimony in futuro in the amount of
$3,000 per month. Husband appealed the award of alimony in futuro, and this Court upheld
the award in Colston v. Colston, No. M2007-02757-COA-R3-CV, 2009 WL 2589040 (Tenn.
Ct. App. Aug. 21, 2009).

       On December 10, 2009, Husband filed a Petition to Terminate Alimony averring that
he was physically unable to work due to “severe medical conditions.” Husband alleged that
his physical condition constituted a substantial and material change of circumstances
warranting the termination of his alimony obligation. Wife filed an answer in which she
denied that Husband was entitled to relief, and stated that Husband had not paid alimony in
accordance with the prior order of the court, which resulted in a significant alimony
arrearage.

        The court held a hearing on Husband’s petition on August 24, 2010 at which Husband
testified that he had nine surgeries, including four amputations, since the entry of the Final
Decree of Divorce. Husband testified that as a result of these surgeries, he experienced
severe depression and blood clots and was unable to work. Husband stated that his only
income was a monthly social security disability payment of $1,640.00. Wife advised the
court that she had no objection to the termination of Husband’s alimony obligation as of the
date Husband filed his Petition to Terminate Alimony; however, she objected to Husband
being excused from paying alimony from September 2007 until December 2009.

       The court entered an order on September 8, 2010 and noted that Wife, “advised the
Court [she] had no objection to the termination of alimony from the time [Husband] filed his
petition but [she] did object to excusing any of his court ordered alimony payments from
September 15, 2007 until December 10, 2009.” The trial court held that Husband, “had
violated the orders of this Court by not paying alimony as ordered” and required Husband to
pay $1,500.00 per month toward an alimony arrearage of $86,000.00 plus ten percent per
annum in interest, to be deducted from Husband’s disability check. The court terminated
Husband’s alimony obligation as of December 10, 2009, the date Husband filed the Petition
to Terminate Alimony.

       Husband appeals raising the following issues for our review:

       I. Whether the trial court erred in ordering Husband to pay an alimony
       arrearage from September 2007 to December 2009 in the amount of $86,000.

       II. Alternatively, whether this Court should reduce Husband’s monthly
       arrearage payment to $500 per month.


                                             -2-
II. Discussion

        The Final Decree of Divorce awarded Mother alimony in futuro in the amount of
$3,000.00 per month, an amount which the trial court set based upon Wife’s need and
Husband’s ability to pay. Husband appealed the trial court’s award of alimony and this Court
affirmed the trial court, finding that “the nature and amount of the alimony awarded by the
trial court was supported by the evidence.” Colston v. Colston, No. M2007-02757-COA-R3-
CV, 2009 WL 2589040, at *3 (Tenn. Ct. App. Aug. 21, 2009). In this proceeding, Husband
contends that his medical problems constitute a substantial and material change in
circumstances and that he should be excused from paying the arrearage which accrued since
the entry of the Final Decree; he requests that the termination of his alimony be retroactive
to September 2007.

        Pursuant to Tenn. Code Ann. §36-5-121(f)(2)(A), “An award of alimony in futuro
shall remain in the court’s control for the duration of such award, and may be increased,
decreased, terminated, extended, or otherwise modified, upon a showing of substantial and
material change in circumstance.” Until the necessary change in circumstance is shown and
the award modified, the order “shall be entitled to be enforced as any other judgment of a
court of this state . . . .” Tenn. Code Ann. § 36-5-121(o). Tenn. Code Ann. §36-5-
121(f)(2)(A) does not expressly authorize the court to make a modification of an award of
alimony effective prior to the date of filing of the petition to modify. To the extent that the
statute allows retroactive modification in the exercise of the court’s discretion, the record
does not support a finding that the court abused its discretion in not making the cessation of
alimony payments retroactive.2 We affirm the court’s entry of judgment for the arrearage in
the amount of $86,000.00.

      Next, we must determine whether the trial court erred in requiring Husband to pay
$1,500.00 per month toward the arrearage. Husband requests that this Court reduce the
monthly payment to $500.00.

      In the Final Decree, the trial court determined that Husband had the ability to pay
$3,000.00 per month in alimony; this determination was supported by evidence of Husband’s




        2
           Trial courts have broad discretion to determine whether spousal support is needed and, if so, its
nature, amount, and duration. Broadbent v. Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006); Bratton v.
Bratton, 136 S.W.3d 595, 605 (Tenn. 2004). Accordingly, appellate courts are disinclined to second-guess
the trial court’s alimony determination. Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001); Nelson v.
Nelson, 106 S.W.3d 20, 23 (Tenn. Ct. App. 2002). Under an abuse of discretion standard, a trial court's
ruling “will be upheld so long as reasonable minds can disagree as to propriety of the decision made..”
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).

                                                    -3-
ability to earn income from a cable sales business despite his disabilities.3 In considering the
petition to modify, the trial court made no findings as to Husband’s physical condition or
whether he had the ability to earn income to supplement the $1,640.00 in social security
disability he receives monthly.

       While we acknowledge and appreciate the trial court’s willingness to allow the
judgment to be paid in monthly installments, we are unable to discern the basis upon which
the court determined Husband could pay $1,500.00 per month. Husband testified that he paid
the cost of medications from the money he received from disability payments, which left him
with “little or no money at the end of the month.”4 In light of this testimony, the evidence
does not support the requirement that Husband pay $1,500.00 per month toward the
judgment. Consequently, we reverse the order requiring Husband to pay $1,500.00 per
month and remand the case for reconsideration of the amount to be paid monthly to satisfy
the arrearage.




                                                        ___________________________________
                                                        RICHARD H. DINKINS, JUDGE




        3
          In 2007, Husband was found by an administrative law judge of the social security administration
to be disabled “because of insulin dependent diabetes mellitus with peripheral neuropathy, chronic pain
syndrome, torsion dystonia, pontine stroke and depression.” Colston v. Colston, 2009 WL 2589040, at *1.
        4
          Husband introduced a list of fourteen medications he takes; however he did not include the
monthly cost of the medication.

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