                        IN THE COURT OF APPEALS OF TENNESSEE
                            WESTERN SECTION AT NASHVILLE



REIKO McCULLOUGH,                       )
                                        )
       Plaintiff/Appellee,              )      Davidson Circuit No. 89D-3789
                                        )
v.                                      )
                                        )      Appeal No. 01A01-9701-CV-00039
WHITFORD B. McCULLOUGH,                 )

       Defendant/Appellant.
                                        )
                                        )
                                        )
                                                                  FILED

             APPEAL FROM THE CIRCUIT COURT OF DAVIDSONDecember 5, 1997
                                                       COUNTY
                          AT NASHVILLE, TENNESSEE


                        THE HONORABLE MURIEL ROBINSON, JUDGE
                                                          Cecil W. Crowson

                                                                Appellate Court Clerk

For the Plaintiff/Appellee:             For the Defendant/Appellant:

Joseph L. Lackey, Jr.                   David H. Hornik
Nashville, Tennessee                    Nashville, Tennessee




                                        AFFIRMED AND REMANDED



                                        HOLLY KIRBY LILLARD, J.



CONCURS:

W. FRANK CRAWFORD, P.J., W.S.


DAVID R. FARMER, J.
                                                OPINION

          This case involves a petition for the modification of alimony payments. The ex-husband

appeals the trial court’s denial of his petition to reduce his alimony obligations to his ex-wife. We

affirm.

          Petitioner/Appellant Whitford B. McCullough (“Husband”) and Respondent /Appellee Reiko

McCullough (“Wife”) were divorced on April 29, 1991. The divorce decree mandated that Husband

pay Wife monthly alimony payments of $608.00 for an unspecified period of time. In September

1994, Husband filed a petition to terminate alimony on the grounds of material change of

circumstances pursuant to Tennessee Code Annotated § 36-5-101(a)(1) (Supp. 1997). Husband later

amended his petition to allege that termination of alimony was warranted on the grounds that Wife

was living with a third person who was contributing to her support and maintenance, pursuant to

Tennessee Code Annotated § 36-5-101(a)(3).

          Husband alleged that Wife was living with Joseph Tuggle (“Tuggle”). It is undisputed that

Tuggle is the father of a child conceived by Wife after the divorce. Tuggle has been paying Wife

$100.00 per month, and testified that the payments were to support this child.1

          At trial, Husband contended that Tuggle has been living with Wife and that he has supported

her in addition to the child. The proof indicated that Tuggle has spent the night at Wife’s residence

on various occasions. Tuggle testified that the frequency of his overnight visits range from zero

nights per week to four or five nights per week. A report based on six days of surveillance by

Husband’s private detective, Jonathan Saad (“Saad”), stated that Tuggle spent the night on one

occasion during the six-day period.

          The proof showed that Tuggle owns his own apartment. Husband claimed that Tuggle never

lived there. Saad’s report indicated that no vehicles registered to Tuggle were ever parked there

during his surveillance. Tuggle admitted that he kept multiple vehicles in Wife’s driveway, but

testified that these vehicles were all broken and that they are now relocated to his new residence.

          The evidence also demonstrates that Tuggle installed a satellite dish in Wife’s yard. As of

the date of the hearing, Wife had had the satellite dish for a year and a half. Tuggle claimed that he

intended to keep it there only temporarily. Tuggle also testified that he bought Wife a 31-inch

television and a waterbed. According to Tuggle, the television was a “junk t.v.” that he repaired for



          1
              These payments are not judicially mandated and are voluntarily provided by Tuggle.
her. In addition, Tuggle conceded that he has occasionally helped with household chores and picked

Wife up from work. Tuggle testified that, since he moved to a new subdivision in April of 1996, he

has not spent the night with Wife.

       The trial court denied Husband’s petition to terminate his alimony payments. In a cursory

opinion, the trial court held that Husband had not carried his burden of proving sufficient grounds

to warrant relief. The trial court refused to modify Husband’s alimony obligations and awarded Wife

attorney’s fees. From this decision, Husband now appeals.

       On appeal, Husband contends that the trial court erred by ruling that he had not presented

sufficient proof to demonstrate that Wife was receiving support from a third person to warrant

termination, reduction, or suspension of his alimony obligations. Wife seeks an affirmance of the

trial court’s holding, as well as an award of attorney’s fees for this appeal.

        Our review of the findings of fact by the trial court is de novo upon the record of the trial

court, accompanied by a presumption of correctness of the factual finding unless the preponderance

of the evidence is otherwise. Tenn. R. Civ. P. 13(d). Questions of law are de novo with no

presumption of correctness. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

        Tennessee Code Annotated § 36-5-101 governs the modification of alimony payments. Sub-

section (a)(3) of this provision states:

                (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.

Therefore, once it is established that the alimony recipient is living with a third person, this raises

a rebuttable presumption that the alimony recipient does not need the amount of support previously

awarded.

        In order for this rebuttable presumption to arise, the petitioner must first prove that the

“alimony recipient lives with a third person.” Id.; Binkley v. Binkley, No. 88-148-II, 1988 WL

97231, *2 (Tenn. App. Sept. 23, 1988). Husband claims that the evidence demonstrates that Wife




                                                  2
was living with Tuggle. In support of this contention, Husband cites Azbill v. Azbill, 661 S.W.2d

682 (Tenn. App. 1983).

        In Azbill, the ex-husband alleged that the alimony recipient, the ex-wife, had the daily

company of a third party, Mr. Bell. Although the parties did not appear to have a romantic

relationship, the proof showed that Bell was at the ex-wife’s home “daily, had a key, came in and

out as he pleased, had clothes and toilet articles in the house, and at least on four different occasions

spent the entire night in the home.” Id. at 686. Nevertheless, both the ex-wife and Bell maintained

that Bell had not spent the night at her home and did not keep clothing or toiletry articles there. The

trial court found that Bell lived with the ex-wife within the meaning of the statute and reduced the

alimony payments. This Court determined that the trial court’s finding was based on determinations

of credibility. Id. at 687. Deferring to the trial court’s assessment of the witnesses’ credibility, this

Court affirmed the trial court’s holding that the wife and Bell were living together pursuant to the

statute.2 Id.

        In Stanton v. Stanton, Shelby Law No. 82, 1986 WL 2301, *2 (Tenn. App. Feb. 20, 1986),

the trial court found that the third party, McKinney, moved furniture items and personal belongings

into the alimony recipient’s (ex-wife’s) residence. This address was listed for McKinney’s voter

registration and for his car license. Id. McKinney paid the ex-wife $15.00 per day as board; paid

for all of the telephone bills (with the exception of the ex-wife’s long distance bill), paid the ex-wife

$100.00 per month for receiving phone calls, handling filing, and handling mail; and gave the ex-

wife a car. Id. This Court affirmed the trial court’s conclusion that the ex-wife and McKinney were

living together pursuant to the statute. Id.

        In Williams v. Williams, No. 85-150-II, 1986 WL 5895, *3 (Tenn. App. May 21, 1986), this

Court also affirmed the trial court’s finding that the alimony recipient, the ex-wife, was living with

a third person. In Williams, the ex-wife was spending “at least several nights a week and the

weekends” at the third party’s residence. Id. Furthermore, she conceded having a key to his

apartment, keeping some of her clothes and other personal items there, and keeping some of her

furniture there. Id.




        2
                At the time of this case, the statute was cited as Tenn. Code Ann. § 36-820(a)(3).

                                                   3
        Binkley also involved a situation in which the ex-wife would occasionally stay at the home

of a third party. Binkley, 1988 WL 97231. In this case, the ex-wife testified she would stay

overnight at her friend’s home three or four nights per week. Id. at *2. Surveillance evidence

revealed that during a two week period, the ex-wife’s car was at the third party’s home all but one

day.   According to the court, “[i]n common parlance, ‘living with’ implies the occupancy of a

common place of abode.” Id. at *3. The trial court had stated that it was “not convinced” that the

ex-wife was living with the third party, but also found that the ex-wife had rebutted any presumption

that the alimony payments were no longer needed. This Court found that the evidence did not

preponderate against the trial court’s factual findings. Id.

       Testimony in Duffin v. Duffin, No. 02A01-9302-CV-00028, 1993 WL 484204, *1 (Tenn.

App. Nov. 23, 1993), indicated that the alimony recipient, the ex-wife, had an “off and on”

relationship with a third party, Steve Grimes. The ex-wife stated that Grimes would sometimes

spend up to three or four nights in a row at her home. Id. Furthermore, the trial court found that

Grimes operated a business from the ex-wife’s home. Id. at *2. The ex-wife and Grimes both

testified that he did not have a key to her house and he did not keep clothes there (with the exception

of a change of clothes when he would stay overnight). Id. at *1. Grimes kept his own apartment and

did not provide the ex-wife with any money or pay her bills. Id. The ex-wife testified that the

relationship ceased five months before the hearing. Id.

       In Duffin, this Court found no evidence to support the trial court’s finding that Grimes

operated a business from the ex-wife’s home. After examining the record as a whole, the Court

reversed the trial court’s finding that the ex-wife was living with Grimes. Id. at *3. Citing Binkley,

the court held that “[t]he record simply does not contain evidence that Wife and Grimes had

‘occupancy of a common place of abode.’” Id. (citing Binkley, 1988 WL 97231 at *3).

       In this case, since the trial court’s order denying Husband’s petition was cursory, it is unclear

whether the trial court found that: (a) Tuggle was not living with Wife, and that Husband had not

carried his burden of proving a material change of circumstances sufficient to warrant a reduction

in alimony, or (b) even if Tuggle were living with her, Wife had effectively rebutted any presumption

that the alimony payments were no longer needed.

       The evidence presented by both parties is, for the most part, uncontradictory. The evidence

indicates that Tuggle’s overnight stays at Wife’s home are sporadic, anywhere from zero to five

                                                  4
nights in any given week. As in Duffin, Tuggle maintained his own residence. The only evidence

of Tuggle’s personal items that were kept at Wife’s home are his junk cars and his satellite dish. The

evidence does not indicate that any of the junk cars are registered to Wife’s address. There is no

evidence that Tuggle kept clothing or toiletries at Wife’s home, that he had a key to the home, or that

he routinely ate his meals at Wife’s home.

       Although this is a close case, the facts appear to be akin to those presented in Duffin and

Binkley. As in those cases, the evidence does not preponderate in favor of a finding that Wife and

Tuggle have shared the “occupancy of a common place of abode.” Binkley, 1988 WL 97231 at *3;

Duffin, 1993 WL 484204 at *3. Therefore, we find that the rebuttable presumption set forth in

Tennessee Code Annotated § 35-5-101(a)(3) is inapplicable.

       Husband may, nevertheless, be entitled to relief if he can show that Wife’s receipt of the

$100.00 per month payments by Tuggle constitutes a “substantial and material change of

circumstances,” so that modification of his alimony obligations is warranted. Tenn. Code Ann. §

35-5-101(a)(1). It has been held that any contributions made to an alimony recipient by a third party

“may be taken into consideration in determining whether alimony payments should be adjusted.”

Richardson v. Richardson, 598 S.W.2d 791, 795 (Tenn. App. 1980). The party claiming that a

change of circumstances exists carries the burden of proving the existence of the changed

circumstances. Azbill, 661 S.W.2d at 686. The change of circumstances must be “substantial.”

Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. App. 1989); Jones v. Jones, 784 S.W.2d 349, 352

(Tenn. App. 1989). Once the petitioner shows that a change exists, the court should weigh the same

criteria that were considered in making the initial alimony award. Cranford, 772 S.W.2d at 50;

Threadgill v. Threadgill, 740 S.W.2d 419, 422-23 (Tenn. App. 1987). These factors are enumerated

in Tennessee Code Annotated § 36-5-101(d).

       In this case, the undisputed testimony was that Wife has a child fathered by Tuggle, and that

Tuggle pays Wife $100.00 per month to support the child. The other evidence, such as the evidence

that Tuggle gave Wife a television he had repaired and installed a satellite dish at her home, is not

sufficient to support a finding that Wife’s need for alimony payments has lessened. Therefore,

considering the record as a whole, the evidence does not preponderate against the trial court’s

decision to deny Husband’s petition for a reduction in alimony payments.



                                                  5
       Wife requests attorney’s fees incurred during this appeal. It has been held that “where the

wife has demonstrated that she is financially unable to procure counsel, and where the husband has

the ability to pay, the court may properly order the husband to pay the wife’s attorney’s fees.”

Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn. App. 1992). The evidence in this case

supports the awarding of attorney’s fees to Wife. Consequently, the matter is remanded to the trial

court for a determination of the appropriate amount.

       The decision of the trial court is affirmed. Wife’s request for attorney’s fees on appeal is

granted, and the matter remanded to the trial court for determination of the amount of attorney’s fees

on appeal. Costs on appeal are taxed against the Appellant for which execution may issue if

necessary.




                                       HOLLY KIRBY LILLARD, J.

CONCUR:




W. FRANK CRAWFORD, P. J., W.S.




DAVID R. FARMER, J.




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