                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                         Submitted on Briefs February 12, 2003

       BRENDA GAIL McNEELEY JONES v. DAVID WAYNE JONES

                  Appeal from the Chancery Court for Washington County
                      No. 22370    G. Richard Johnson, Chancellor

                                    FILED APRIL 14, 2003

                                No. E2002-01684-COA-R3-CV


        In this post-divorce case, David Wayne Jones (Husband) filed a motion requesting the Trial
Court to discontinue alimony payments. The sole basis for the motion was that Brenda Gail
McNeeley Jones (Wife) was “currently residing with a male individual.” Wife denied that a
reduction in alimony was appropriate, due to her alleged continuing need and Husband’s continuing
ability to pay. Wife moved for an increase in alimony payments due to her “increased medical
expenses, and vocational disability that [she] suffers by reason of the need for eye surgery.” The
Trial Court awarded Husband a reduction in the amount of alimony from $1,500 per month to $1,000
per month. On appeal, Husband argues that the Trial Court erred by refusing to eliminate the
alimony payments, and Wife argues that the Court erred by reducing them. We affirm the judgment
of the Trial Court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Cause
                                        Remanded

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
CHARLES D. SUSANO, JR., JJ., joined.

Thomas C. Jessee, Johnson City, for Appellant David Wayne Jones

Lois B. Shults-Davis, Erwin, for Appellee Brenda Gail McNeeley Jones

                                           OPINION

       The parties were divorced in 1984. In 1991, both parties returned to Court seeking
modification of Husband’s alimony payments. At that time, the payments were set at $1,500 per
month. Husband filed a motion seeking discontinuation of alimony payments on July 2, 2001. As
noted above, the ground for his motion was that Wife was cohabitating with a man in Ontario,
Canada. Wife admitted that she is involved in a romantic relationship and living with a male
individual, but argued that she still has substantial need of alimony payments, and Husband
continues to have the ability to pay.
       The Trial Court found that there were appropriate statutory grounds to modify the alimony
payments from $1,500 per month to $1,000 per month. The Court further ruled that “in order to
accommodate [Wife’s] need for eye surgery which the Court does believe to be a medically
necessary procedure, . . .the reduction in alimony should be postponed[.]”1

       As the Trial Court recognized, the governing statute in this case is T.C.A. 36-5-101(a)(3),
which provides in relevant part as follows:

                         (3) In all cases where a person is receiving alimony in futuro
                  and the alimony recipient lives with a third person, a rebuttable
                  presumption is thereby raised that:
                          (A) The third person is contributing to the support of the
                  alimony recipient and the alimony recipient therefore does not need
                  the amount of support previously awarded, and the court therefore
                  should suspend all or part of the alimony obligation of the former
                  spouse; or
                          (B) The third person is receiving support from the alimony
                  recipient and the alimony recipient therefore does not need the
                  amount of alimony previously awarded and the court therefore should
                  suspend all or part of the alimony obligation of the former spouse.

After hearing the testimony of the parties, the Court ruled as follows:

                  After careful review of the testimony and the Exhibits filed, and
                  careful consideration of all statutory factors with regard to the award,
                  termination, and/or reduction of alimony, that [Husband] has failed
                  to prove any sufficient change of circumstances making appropriate
                  a termination of alimony;
                          The [Wife] has failed to prove a sufficient change of
                  circumstances to make an increase in spousal support appropriate;
                          That, by reason of the living circumstances of the [Wife], that
                  a presumption of support by a third party arose in this cause and that
                  [Wife] has failed to completely overcome or rebut that Statutory
                  presumption[.]

       This is a non-jury case and, accordingly, our review is de novo upon the record of the Trial
Court. A trial court's findings of fact are entitled to a presumption of correctness and, absent
evidence preponderating to the contrary, we must affirm those findings pursuant to T.R.A.P. 13(d).


         1
          The Co urt’s order regarding when the reduction would take effect is inco nsistent. One paragraph states that
“The current alimony amount of $1,500.00 per month shall be paid through October 2002.” Another paragraph states:
“That as of September 2002, the amount of alimony payable in this cause, pursuant to the Court’s prior Order, shall be
reduced to $1 ,000 .00.” Neither party points out or com ments on this inconsisten cy on appe al.

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Kincaid v. Kincaid, 912 S.W.2d 140 (Tenn.Ct.App.1995). There is no presumption of correctness
regarding a trial court's conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26
(Tenn.1996).

        The Supreme Court has recently stated the following in regard to our standard of review in
cases involving a modification of spousal support payments:

                  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).

        At the time of the hearing, Wife had lived in Ontario, Canada, for approximately two years.
She testified that she had lived in a house with her paramour, who owns the house, for the entire time
she had been in Canada. Wife stated that she pays for groceries and cleaning supplies for both of
them, but does not pay for any of the other expenses related to the house. Wife works approximately
30 hours per month as a nurse. She testified that she has applied for full-time work, but has been
rejected due to the Canadian seniority system. Wife earned $35,070 in wages for the year 2001. At
the time of the hearing she did not have any health care benefits through her employment.

        Wife filed a sworn statement of income and expenses, which, even including $1,500 per
month income from alimony payments, showed a monthly deficit in the amount of $222.25.2 The
accuracy and reasonableness of her statement of expenses was not seriously attacked at the hearing,
and it does not appear unreasonable or inflated to this Court. Wife testified that she has been able


         2
           W ife’s income and expense statement lists itemized expenses and a sum total. The sum total recorded on the
statement is $6,972.00; however, the corre ct total of the listed item ized expenses is $6,222.25. No one at trial nor on
app eal has com mented on this discrepancy.

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to accumulate between $3,000 and $4,000 in a savings account, and roughly $7,000 in retirement
savings.

       Wife testified that her paramour is not a man of great means, and that he works in the
construction industry. There is no indication in the record that he provides financial support with
regard to any of Wife’s other expenses. Husband, who is a medical doctor, had an income of
$214,000 in 2001, and does not dispute that he has the ability to continue making spousal support
payments.

         Wife suffers from an eye condition which requires surgical correction and treatment. She
testified that the cost of the surgery is $11,000 and she will have to be off work for four to six weeks
in order to recover. The cost of the surgery and the resultant lost income is the primary basis for
Wife’s motion for an increase in the amount of Husband’s alimony payments.

        Based upon our review of the record and the pertinent statutory authorities in this case, we
do not find that the Trial Court abused its discretion in ordering spousal support payments reduced
from $1500 to $1000 per month. We reach this conclusion because we find the wife failed to
completely overcome or rebut the presumption set forth in T.C.A. 36-5-101(a)(3), more particularly
subsection (B), which addresses third persons receiving support from an alimony recipient.

        For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded
for collection of costs below. Costs of appeal are adjudged against Appellant David Wayne Jones
and his surety.



                                                _________________________________________
                                                HOUSTON M. GODDARD, PRESIDING JUDGE




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