                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                               Assigned on Briefs May 3, 2005

      CATHY LEE BARNES WILLIAMS v. RODNEY LEE WILLIAMS

                      Appeal from the Circuit Court for Davidson County
                          No. 93D-961     Marietta Shipley, Judge



                    No. M2004-00070-COA-R3-CV - Filed August 25, 2005


Former wife, Cathy Williams, appeals the action of the trial court in reducing the alimony in futuro
obligation of former husband, Rodney Williams, from $4,000 per month to $2,000 per month based
on a finding that a substantial and material change in circumstances sufficient to justify the decrease
had occurred. The judgment of the trial court is affirmed.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J., M.S.
and PATRICIA COTTRELL, J., joined.

Tyree B. Harris, Alfred H. Knight, Nashville, Tennessee, for the appellant, Cathy Lee Williams.

Phillip Robinson, Philip E. Smith, Nashville, Tennessee, for the appellee, Rodney Lee Williams.

                                             OPINION

       For the second time, post-divorce proceedings are before this Court on petitions by Rodney
Williams to reduce his alimony obligation to Cathy Williams upon allegations that a substantial and
material change in circumstances had occurred justifying such a reduction. The relevant facts and
the appellate disposition of the first of these petitions is reflected in Cathy Lee Barnes Williams v.
Rodney Lee Williams, 2000 WL 852121 (Tenn.Ct.App. June 27, 2000) (perm. app. denied Dec. 18,
2000). Therein it is said:

       Appellee Rodney Lee Williams (“Husband”) and Appellant Cathy Lee Barnes
       Williams (“Wife”) were divorced on January 9, 1995, after twenty-one years of
       marriage. The parties had two children, Rodney Lee Williams, Jr. (“Rodney”) and
       Alesha Lee Williams (“Alesha”), twins, who were twenty years old at the time of the
       divorce. Rodney was in college at The University of Tennessee at Knoxville.
       Alesha, who had a baby, lived at home with Wife. Wife earned approximately
$20,000 a year from a part-time job as a pharmaceutical salesperson. Husband
earned approximately $143,419.13 per year as a sales manager at a car dealership.

Prior to the divorce, the parties entered into a marital dissolution settlement
agreement (“agreement”). This agreement, with the exception of one provision
relating to life insurance, was ultimately incorporated into the parties’ final decree
of divorce. The agreement provided for spousal support as follows:
        The parties acknowledge and agree that the husband has the ability to
        pay and the wife has the present and future need for spousal support
        until her death or remarriage, based, in part, on the relevant criteria
        set forth at T.C.A. 36-5-101(d)(1)(A-L), including, but not limited to,
        the duration of the marriage and the relative future health and earning
        capacities of the parties.
        Therefore, the parties agree that, in the event of the separation and/or
        divorce, the husband shall pay the wife the total cash sum of not less
        than Four Thousand Dollars ($4,000) per month as alimony in futuro,
        until the death or remarriage of the wife.
The agreement provided that the parties’ liquid assets be divided 60% to Wife and
40% to Husband. The agreement contained no provision on the payment of tuition
and school expenses for either child. After the divorce, Wife assumed the
responsibility of paying Rodney’s college tuition and expenses, of supporting Alesha
and the parties’ grandchild, and of assisting Alesha in completing her training as a
licensed practical nurse.

On January 20, 1998, Husband filed a petition to modify the award of alimony,
arguing that there had been a substantial and material change in circumstances
sufficient to justify a decrease in his alimony obligation. A hearing was held on the
petition on January 20, 1999. Husband argued that Wife had increased her income
by working full-time instead of part-time, had saved from her earnings and had
earned interest on her savings. He also argued that Wife’s expenses had decreased
after Rodney’s graduation from college, and noted that Alesha was expected shortly
to complete her nursing education.

At trial, Wife acknowledged that in 1998 she had grossed $61,778 from her full-time
position as a pharmaceutical salesperson, and that in 1997 she had earned
approximately $7500 in interest on her savings account. She did not dispute that she
no longer had the expense of Rodney’s college tuition.

Husband also argued that his ability to pay the agreed-upon level of alimony had
decreased, due to the additional expenses he had incurred with the birth of a new
child, and his recent decline in income. Husband testified that his income had been
$165,149 in 1995, $142,221 in 1996, $122,722 in 1997, and $90,472 in 1998.
Husband testified that he was unemployed at the time of the hearing. He


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       acknowledged, however, that his new wife earned between $50,000 and $60,000 per
       year, that he and his wife had reported a combined income of $174,088 in 1997, and
       that he had been able to meet his alimony obligations to date without having to alter
       his lifestyle. He admitted that he had no immediate plans to sell his $290,000 home,
       either of his two vehicles, or his boats.

       On February 3, 1999, the trial court issued an order reducing Husband’s alimony
       obligation to $2500 per month. The trial court found that Wife’s increase in income,
       combined with the decrease in her expenses due to the son’s graduation from college
       and the daughter’s maturation, was a material change in circumstances justifying the
       decrease in alimony. The trial court did not base its finding of a substantial and
       material change in circumstances on Husband’s current unemployment, stating that
       it assumed that Husband would quickly find another job, and that his income would
       remain at essentially the level it was at the time of the divorce. The trial court’s order
       states:

              It appears to the Court from an examination of the records, evidence
              presented to the Court, and the testimony of the parties that there has
              been a material and substantial change in the circumstances of Cathy
              Williams that would warrant a reduction in alimony payable to her.
              The Court find [sic] such material and substantial changes in
              circumstances to be a substantial increase in the income of Cathy
              Williams and a substantial decrease in the expenses of Cathy
              Williams, particularly the graduation of the parties’ son from college
              and the maturation of the parties’ daughter who is nearing completion
              of her education.
       From this order, Wife now appeals.

Williams v. Williams, 2000 WL 852121 *1-2. (emphasis added) (footnote omitted).

        This Court reversed the trial court’s reduction in alimony and re-instated the $4,000 per
month obligation, holding that an increase in the income of an alimony recipient was not enough
without more to warrant a reduction in alimony. We held that neither one child’s graduation from
college nor the maturity of the other child was an unanticipated change of circumstances, and that
Mr. Williams’s increased financial responsibilities of a second marriage were voluntarily assumed.
This Court held that, “The trial court stated that it assumed, from Husband’s employment history,
that Husband’s unemployment was temporary, and that he would soon be earning substantially the
same amount as he earned at the time of the divorce. The evidence does not preponderate against
this finding.” Williams, 2000 WL 2582121 at *5.

        On February 2, 2001, Mr. Williams filed a second Petition for the Reduction of Alimony.
In this Petition which is the subject of the present appeal he alleged:



                                                  -3-
                The Petitioner would state that since entry of the Order by this Honorable
       Court on February 3, 1999, and as modified by the Court of Appeals, that there has
       been a substantial and material change in circumstances warranting a reduction in the
       amount of alimony that he is to pay per month. As was set forth earlier herein, the
       Court of Appeals, at least in part, based its decision on the finding of this Honorable
       Court that the Petitioner’s unemployment was temporary and that he would be in a
       similar job making similar money in the near future. The Petitioner would submit
       that although he is employed at the present time, he is not making “substantially the
       same amount” of money that he was making at time the Final Decree of Divorce was
       entered. Nearly two years after entry of the Order, the Petitioner is unable to generate
       substantially the same amount of income that he was able to generate at the time of
       the entry of the Final Decree of Divorce. The Petitioner would submit that time has
       proven that the finding of this Honorable Court that Petitioner would find a job
       making “substantially the same amount” of money was misplaced. In fact, your
       Petitioner would submit that he has worked in the car business for almost twenty-five
       years and that car sale business is now in decline and that it is impossible for him to
       generate income which is substantially the same as what he was making at the time
       of entry of the final decree. The Petitioner would submit this substantial and material
       change in circumstances warrants a decrease and/or termination of the four-thousand-
       dollars per month ($4,000.00) alimony in futuro award.

        On March 22, 2001, Cathy Williams answered the Petition denying the essential allegations
and asserting affirmative defenses which included res judicata and a deteriorating medical condition.
While the February Petition and March Answer were still pending, Cathy Williams filed a motion
for the trial court to enter a final judgment in compliance with the orders issued by the Court of
Appeals following the mandate from this Court. The trial court granted Cathy Williams’s Motion
and entered a Final Order, which provided in pertinent part:

               This Honorable Court having reviewed the record, heard statements of
       respective counsel and received testimony of the Defendant, affirmatively finds that:

               – In compliance with orders issued by the Honorable Court of
               Appeals of Tennessee, at Nashville, entered June 27, 2000,
               (Application for Permission to Appeal having been denied by the
               Honorable Supreme Court of Tennessee, at Nashville, on December
               18, 2000) the original alimony award should be reinstated, in the
               amount of $4,000.00 per month, due and payable by Mr. Williams to
               Ms. Williams, by the 5th day of each month, retroactively to February
               1999; Ms. Williams should be awarded a reasonable amount toward
               her costs and attorney fees incurred in the appeal of this cause; and all
               court costs should be taxed against Mr. Williams.




                                                 -4-
       – In accordance with the agreement reached by the parties, Ms.
       Williams should have a judgment as against Mr. Williams in the total
       sum of $44,000.00, said judgment representing $36,000.00 owed to
       Ms. Williams in alimony arrearage from February 1999 through
       January 2001, and $8,000.00 owed to her for costs and attorney fees
       incurred by Ms. Williams in the appeal of this case. The unpaid
       balance of this total sum should bear interest at the statutory rate of
       10% per annum until the total judgment has been fully satisfied.

       – Beginning April 1, 2001, this total judgment should be satisfied at
       the rate of $375.00 per month, with a balloon payment every January
       15th in an amount sufficient to total an annual payment of $10,000.00,
       until such time as the total judgement and accrued interest have been
       paid in full.

       – Mr. Williams should prepare a list of all of his assets, whether they
       be solely or jointly owned, and his best estimate as to their respective
       values, and this list should be attached to this Order as Exhibit 1.

       – Until such time as the fore referenced judgment, and all interest
       related thereto, has been paid in full, Ms. Williams should have a
       judgment lien on all of Mr. Williams’ assets.

       – In the event that Mr. Williams defaults on his payments by January
       15th of any year, then, on January 16th Ms. Williams should be
       allowed to execute on the judgment against any or all of Mr.
       Williams’ assets. Ms. Williams should not be allowed to execute on
       the judgment before January 16, 2002.

       – All costs related to this cause should be taxes [sic] against Mr.
       Williams.

       Having so found:

                 IT IS THEREFORE ORDERED, ADJUDGED AND DECREED
that the orders issued by the Honorable Court of Appeals of Tennessee, at Nashville,
on June 27, 2000 are hereby adopted, ratified and made a final order of this
Honorable Court, in pertinent part, as follows:
        The original alimony award to Ms. Williams is hereby reinstated,
retroactively to February 1999, in the monthly sum of FOUR THOUSAND
DOLLARS ($4,000.00), due and payable by Mr. Williams to Ms. Williams by no
later than the 5th day of each month. Ms. Williams is hereby awarded a reasonable



                                         -5-
       sum, as set out below, for her costs and attorney fees incurred in the appeal of this
       cause. All court costs are hereby taxed against Mr. Williams.

                       IT IS FURTHER ORDERED, ADJUDGED AND DECREED that,
       per the agreement of the parties, the Plaintiff/Respondent, CATHY LEE BARNES
       WILLIAMS, is hereby awarded a judgment against the Defendant/Petitioner,
       RODNEY LEE WILLIAMS, in the total sum of FORTY-FOUR THOUSAND
       DOLLARS ($44,000.00) said sum representing $36,000.00 in alimony arrearage
       owed by Mr. Williams to Ms. Williams for the time period extending from February
       1999 through January 2001, and $8,000.00 toward the costs and attorney fees
       incurred by Ms. Williams in the appeal of this case. This judgment shall bear interest
       at the statutory rate of TEN PERCENT (10%) per annum until paid in full.

               Notwithstanding the new Petition to Modify Alimony, filed by Mr. Williams
       on February 2, 2001, Mr. Williams’ obligation to resume his original alimony
       payments in the amount of $4,000.00 per month shall commence retroactively to
       February 2001, based upon the understanding of the parties that the amount of the
       arrearage judgment agreed upon herein does not relieve Mr. Williams of any
       arrearages accumulated after January 31, 2001.

              IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Mr.
       Williams shall prepare a complete list of all of his assets, together with his good faith
       estimate as to the value of each asset, whether those assets are presently held or
       owned solely or jointly, and this list shall be attached to this Final Order as Exhibit
       1.

               IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the
       fore referenced $44,000.00 judgment shall be satisfied at the monthly rate of THREE
       HUNDRED SEVENTY-FIVE DOLLARS ($375.00) with an annual balloon payment
       made by January 15th of each year such that Mr. Williams has paid Ms. Williams
       $10,000.00 per year by the 15th day of January each year, the first payment due and
       owing on April 1, 2001, and all subsequent payments due and owing by the first day
       of each month thereafter. In the event that Mr. Williams defaults on his payments,
       as set out herein, then Ms. Williams shall have the right to execute on the judgment
       as against any and all assets held solely or jointly by Mr. Williams. Such execution
       proceedings may not be initiated prior to January 16, 2002.

        On June 20, 2002, Rodney Williams amended his Petition to Modify Alimony to add an
assertion that Cathy Williams no longer had a need for $4,000 per month in permanent alimony. The
trial court conducted a hearing on July 31, 2002, and entered its judgment on September 4, 2002:

              The Court finds there has been a substantial and material change in
       circumstances of the parties since entry of the Final Decree of Divorce. The Court


                                                 -6-
finds that the Petitioner’s earning capacity has decreased through no fault of his own
from approximately one-hundred fifty-thousand ($150,000.00) dollars per year to
ninety-thousand ($90,000.00) dollars per year. The Court further finds that the
Petitioner has been forced to change his lifestyle. The Petitioner has no assets other
than his home, which is jointly owned with his current wife. The Petitioner has sold
his boat and his sea-doo in order to pay alimony. The Petitioner is unable to
contribute to a college fund for his minor child. The Petitioner and his family have
been forced to stop taking vacations. The contribution of the Petitioner’s current
wife to her retirement through her employment is minimal. The Petitioner and his
family do not dine out as often as they used to. Further, the Petitioner is unable to
contribute any funds towards his retirement. The Court further finds that the
Petitioner has increased the value of his assets awarded in the divorce from one-
hundred seventeen-thousand ($117,000.00) dollars to one-hundred sixty-seven-
thousand ($167,000.00) dollars, with a good portion of said value contained in a joint
asset that he owns with his current wife, Cindy Williams.

        The Court further finds that there has been a substantial and material change
in circumstances on the part of the Respondent in that the Respondent’s income has
increased from thirty-three thousand ($33,000.00) dollars per year to ninety-thousand
($90,000.00) dollars per year. Additionally, the Court finds that the parties adult
daughter and her minor child have resided with the Respondent at almost all times
since entry of the Final Decree of Divorce. Further, the Respondent has contributed
monies on a regular basis to the parties adult daughter as well as providing her a
place to live rent-free. The Respondent has increased the value of her asset from
one-hundred seventy-thousand ($170,000.00) dollars at the time of the divorce to
four hundred ninety-thousand ($490,000.00) dollars at present. The Respondent has
been able to contribute large monthly amounts of money to her retirement.

        The Court further finds that the Petitioner would be unable to have paid the
alimony in the amount of four-thousand ($4,000.00) dollars per month without the
aid of his current wife, Cindy Williams.

        The Court further finds that the alimony award of four-thousand ($4,000.00)
dollars per month shall be reduced to two-thousand ($2,000.00) dollars per month.
The Court further finds that the reduction shall be retroactive to July of 2001. The
Court further finds that the Petitioner’s income along with his current wife’s income
establish the ability to pay alimony in the amount of two-thousand ($2,000.00)
dollars per month.

         The Court further finds that the Respondent is not precluded from seeking an
increase in the amount of alimony if her health changes. The Court further finds that
it shall make no finding in regard to the petition for civil contempt filed by the
Respondent.


                                         -7-
               IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the
       Petitioner having proven a substantial and material change in circumstances is
       entitled to a reduction of child support from the amount of four-thousand ($4,000.00)
       dollars per month to two-thousand ($2,000.00) dollars per month.

               IT IS FURTHER ORDERED that the reduction shall be retroactive to July,
       2001.

               IT IS FURTHER ORDERED that the Respondent is granted a revised
       arrearage judgment in the amount of five-thousand seven-hundred-fifty ($5,750,00)
       dollars which remains as an arrearage in alimony after the Petitioner is given credit
       for past arrearage payments and over payment of two-thousand ($2,000.00) dollars
       per month since July 2001 based on the above ruling.

             IT IS FURTHER ORDERED that the Petitioner shall pay the sum of five-
       hundred ($500.00) dollars per month towards to arrearage until the arrearage
       judgment is paid in full.

              IT IS FURTHER ORDERED that the Respondent is not precluded from
       seeking an increase in alimony upon a change in her health status.

        On April 16, 2003, Cathy Williams filed a Petition to Increase Alimony based upon
allegations that she suffered from multiple sclerosis and that her physical condition had worsened
to the extent that she was required to take disability leave from her work on February 27, 2003. She
asserted that the economic results of her disability status reduced her income from approximately
$90,000 per year to $36,000 per year and that the cost for treating her medical condition had
dramatically increased. On May 16, 2003, Rodney Williams answered this Petition with general
denials and reasserted a lack of need of Cathy Williams and his own inability to pay increased
alimony. On November 7, 2003, Cathy Williams filed a Motion to Continue Trial of the Case from
December 10, 2003, because of her need for additional discovery and the procurement of expert
testimony. She further moved for the trial court to recuse itself and reassign this case to the Eighth
Circuit.

        An order was entered on December 2, 2003, which provided that “upon request of the
plaintiff by motion on November 21, 2003 this case shall be transferred along with the majority of
Second Circuit cases to the Eighth Circuit Court. The December 10, 2003, hearing is continued by
agreement to be reset in the Eighth Circuit Court.” On December 10, 2003, the trial court filed a
Memorandum Opinion and Final Order concerning all matters heard on July 31, 2002. This Order
reasserted the reduction in alimony from $4,000 monthly to $2,000 monthly and disposed of a
contempt petition along with other minor adjustments to the previous order. On December 15, 2003,
the record shows a motion in the Eighth Circuit Court for Davidson County by Cathy Williams to
“set this cause for final hearing at a certain period.” On January 5, 2004, Cathy Williams filed her



                                                 -8-
Notice of Appeal from the Final Judgment of the Second Circuit Court for Davidson County of
December 10, 2003.

       So it is that the history discloses:

        1. The first Petition for Reduction of Alimony filed by Rodney Williams was heard in the
           trial court on January 20, 1999, and resulted in a February 3, 1999, Order of the trial
           court reducing Rodney Williams’s alimony obligation from $4,000 per month to $2,500
           per month.
        2. Appeal from this Order by Cathy Williams resulted in the judgment of this Court issued
           June 27, 2000, reversing the reduction of alimony and restoring it to $4,000 per month
           retroactive to February 1999.
        3. Rodney Williams’s second Petition Seeking a Reduction of Alimony was heard in the
           trial court on July 31, 2002, and resulted in the trial court’s ultimate Memorandum and
           Order of December 10, 2003, reducing the alimony award payable by Rodney Williams
           from $4,000 per month to $2,000 per month retroactive to July 2001.

        The April 16, 2003, petition of Cathy Williams to increase alimony based upon her disability
from multiple sclerosis was transferred to the Eighth Circuit where it remained pending as of the
time of the Notice of Appeal and is not before this Court for adjudication.

        In this second appeal of this case which we will call Williams II, Cathy Williams as Appellant
asserts the only issue to be:

       Whether the trial court erred in finding that a substantial and material change of
       circumstances had occurred which justified reducing Husband’s alimony obligation
       from $4,000.00 per month to $2,000.00 per month.

         As of the time of the hearing on the present Petition for the Reduction of Alimony on July
31, 2002, the only significant, substantial and material change of circumstances that had occurred
was the substantial reduction in income of Rodney Williams. When the parties were divorced on
January 9, 1995, Mr. Williams’s actual income for that ensuing year was $165,149, though this Court
in its opinion of June 27, 2000, following the appeal in Williams I used the figure of “approximately
$143,419.13.”

        The trial court in Williams I made it clear that its first reduction in the husband’s alimony
obligation was not based on any reduced income of the husband as of the date of the February 3,
1999 Order of the trial court. As to this factor, the trial court “assumed that Husband would quickly
find another job, and that his income would remain at essentially the level it was at the time of the
divorce.” Holding this assumption by the trial court to be a finding of fact, this Court in Williams
I held that “the evidence does not preponderate against this finding.”




                                                 -9-
        Nothing has changed as to the Williams I holding of this Court that an increase in income by
an alimony recipient is not enough without more to warrant a reduction in alimony. Indeed, as of
July 31, 2002, nothing had changed since Williams I except the substantial reduction in income of
Rodney Williams. The determinative question before the Court in the instant appeal is the effect of
this substantial reduction in income upon the ability of Rodney Williams to pay $4,000 per month
in alimony.

         In determining that Mr. Williams’ earning capacity had been reduced to $90,000 per year,
the trial court relied on the testimony of the expert witness Thomas Harold Lucas called as a witness
by Ms. Williams. This witness testified in pertinent part:

                      Q.    All right. Are you familiar with other car dealerships in the
       Middle Tennessee area, both GM products and other products, in terms of what three
       pay their employees?

                       A.      Very well.

                      Q.        And are you aware of whether or not there are other jobs
       available in Middle Tennessee, in the car dealer field, in the range of $125,000 to
       $150,000, per year, for a manager, sales managers, general managers?

                       A.      Depends on who you want to work for.

                       Q.      Is the answer yes, there are some jobs available?

                       A.      There are jobs that pay that and more.

                     Q.     All right. Do you consider Mr. Williams a talented or skillful
       sales manager or general manager?

                       A.      I would say his manager skills are above average.

                       Q.      Is he a good salesman?

                      A.     That’s not a fair question. I would say at one time he was a
       very good salesman. I think all of our skills deteriorate when we don’t use them as
       much.

                     Q.     For a general manager – – general sales manager – – is that
       person’s income dependent on the profits of the dealership?

                       A.      Most every dealer bases it on either the variable profit or the
       profit of the dealership.


                                                -10-
               Q.        And does Mr. Williams, as your former employee, do you
know if he has the ability to earn different amounts, based on where he would work?

               ...

               Q.      Mr. Lucas, you have testified about that you are aware of and
familiar with other sales manager or general manager positions available in Middle
Tennessee; correct?

               A.      Yes.

               Q.      That were paying $125,000 to $150,000 range.

               A.      Yes.

             Q.         And I don’t mean pay in terms of salary, but where the
employee could expect to earn that amount.

               A.      Expect to earn that much, yes.

                Q.      From your experience with Mr. Williams, does he have the
skills and talent and abilities to fill a position at that income level?

               ...

                THE COURT: . . . I guess maybe what would be fair to ask is what
kind of skills does one have to have to earn more money? I mean, what kind of skills
does one need to earn $120,000 or more than that?

                 THE WITNESS: Your Honor, sometimes it is not – – doesn’t depend
on the skills, so much as the opportunity and the willingness to do whatever it takes
to do the job.

               THE COURT: Um-hum (affirmative response.)

               THE WITNESS: There are many opportunities in Middle Tennessee,
some better than others. Some I would consider less than honest opportunities.

               THE COURT: Less than honest opportunities?

               THE WITNESS: Less than honest. There are opportunities with
organizations like the Reed organization, that would – –



                                        -11-
                       THE COURT: The what?

                       THE WITNESS: The Reed organization, that would require, probably,
       a track history over the last six or eight years, usually at one location, where they
       have proven themselves in a particular field.

                       THE COURT: Um-hum (affirmative response.)

                     THE WITNESS: But as far as the opportunity to go out and apply for
       a sales manager or general sales manager job in Nashville, I think most of them
       would make less than $125,000 a year.

                       THE COURT: Would make less?

                       THE WITNESS: Yes.

                       THE COURT: Uh-huh (affirmative response).

                       THE WITNESS: As a matter of fact, I would say the average would
       be closer to ninety.

                       THE COURT: Ninety?

                       THE WITNESS:           For a sales manager in Nashville.

       The trial court found following the July 31, 2002, hearing that:

           Mr. Williams’ earning capacity was around the $120,000.00 mark, but it had
           fluctuated. By the time of the 2002 hearing, it had settled at the $90,000.00
           mark. There was testimony by car dealers and employees that one could no
           longer make the $165,000.00; thus, the court found that in 2002, Mr.
           Williams could not earn that amount through no fault of his own.

The evidence does not preponderate against this finding of fact by the trial court.

        This Court has discussed at length the factors to be considered in determining whether or not
a substantial material change in circumstances has occurred to warrant a modification in alimony.
See Sannella v. Sannella, 993 S.W.2d 73 (Tenn.Ct.App.1999); Watters v. Watters, 22 S.W.3d 817
(Tenn.Ct.App.1999). Subsequent to Sannella, the Supreme Court further elaborated on these factors
in the context of the voluntary retirement of the obligor spouse. Bogan v. Bogan, 60 S.W.3d 721
(Tenn.2001). While disagreement may still exist as to which factor is of primary significance,
Sannella, 993 S.W.2d at 76, especially in light of Bogan, when modifying an award of spousal



                                                -12-
support, the factors of obligee need and obligor ability to pay are still the prime considerations.
Bogan at 730.

       In general summary, this Court has said:

           Tennessee Code Annotated section 36-5-101(d)(1)(A), as construed in Storey v.
       Storey, 835 S.W.2d 593 (Tenn.Ct.App.1992) and in Watters v. Watters, 22 S.W.3d
       817 (Tenn.Ct.App.1999), relies heavily upon earning capacity as the yardstick for
       measuring without regard to the circumstances surrounding actual employment. The
       strict application of Storey and Watters must be tempered by the decision of the
       Supreme Court in Bogan v. Bogan, 60 S.W.3d 721 (Tenn.2001).

            It is well settled that a court may not modify a spousal support award unless it
       first finds that a substantial and material change in circumstances has occurred since
       the entry of the original support decree. Bogan at 727-8; See Tenn. Code Ann. §
       36-5-101(a)(1) (Supp. 2000). Generally, a change in circumstances is considered to
       be “material” when the change (1) “occurred since the entry of the divorce decree
       ordering the payment of alimony,” Watters v. Watters, 22 S.W.3d 817, 821 (Tenn.
       Ct. App. 1999) and (2) was not “anticipated or [within] the contemplation of the
       parties at the time they entered into the property settlement agreement,” Id.; see also
       McCarty v. McCarty, 863 S.W.2d 716, 719 (Tenn. Ct. App. 1992); Elliot v. Elliot,
       825 S.W.2d 87, 90 (Tenn. Ct. App. 1991). Moreover, a change in circumstances is
       considered to be “substantial” when it significantly affects either the obligor's ability
       to pay or the obligee's need for support. See Bowman v. Bowman, 836 S.W.2d 563,
       568 (Tenn.Ct.App.1991).

Lamberson v. Lamberson, No. M2002-02773-COA-R3-CV, 2004 WL 170388 (Tenn.Ct.App.2004).

        Based upon the annual income of Rodney Lee Williams in Williams I ($143,419.13), the sum
of $4,000 per month as alimony in futuro was approximately 33 percent (33%) of his gross income.
His gross income at the time of the July 31, 2002, hearing was $90,000 per year. An alimony
obligation of $4,000 per month would constitute approximately 53 percent (53%) of the gross
income of the obligor.

       While Ms. Williams asserts that as of the July 31, 2002, hearing, she had been diagnosed
with multiple sclerosis, she was still at that time fully employed and earning $90,000 per year. In
Williams I, it was correctly held that an increase in income by Mrs. Williams, in and of itself, does
not warrant a reduction in the alimony obligation of Mr. Williams. See McCarty v. McCarty, 863
S.W.2d 716 (Tenn.Ct.App.1992). When, however, this stability of increased income of Mrs.
Williams continuing unabated since the time of Williams I is considered in conjunction with the
dramatic reduction in the income of Mr. Williams, it is evident that a substantial change in
circumstances has occurred which is primarily the result of the reduced income of Mr. Williams.



                                                 -13-
        Events alleged in Ms. Williams’ April 16, 2003 Petition to Increase Alimony are not before
this Court at this time. As of the date the Notice of Appeal was filed, that Petition remains to be
adjudicated in the Eighth Circuit Court of Davidson County. It remains for the trial court to
determine the effect of the alleged disability and deteriorating physical condition of Mrs. Williams
drawn in issue by the April 16, 2003, Petition. Based on the record before this Court on the appeal
in Williams II, the judgment of the trial court of December 10, 2003, is in all respects affirmed with
costs of appeal assessed to the appellant, Cathy Lee Williams. The case is remanded to the trial court
for such further proceedings as may be necessary and proper.




                                                       ___________________________________
                                                       WILLIAM B. CAIN, JUDGE




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