THOMAS MILO LOGAN,                    )    Coffee Chancery
                                      )    No. 2687
      Plaintiff/Appellant,            )

VS.
                                      )
                                      )
                                      )
                                                        FILED
MARY JANE LOGAN,                      )    Appeal No.   October 14, 1998
                                      )    01A01-9711-CH-00660
      Defendant/Appellee.             )                Cecil W. Crowson
                                                      Appellate Court Clerk

                  IN THE COURT OF APPEALS OF TENNESSEE
                       MIDDLE SECTION AT NASHVILLE

       APPEAL FROM THE CHANCERY COURT OF COFFEE COUNTY
                   AT WINCHESTER, TENNESSEE

                    HONORABLE JOHN W. ROLLINS, JUDGE




John Mark Stewart, BPR #011148
300 South College Street
Winchester, Tennessee 37398
ATTORNEY FOR PLAINTIFF/APPELLANT

Michael E. Giffin
ROBERTSON, WORSHAM, GREGORY & GIFFIN
Tennessee Bar No. 01420
105 W. Lincoln
P.O. Box 790
Tullahoma, Tennessee 37388
ATTORNEY FOR DEFENDANT/APPELLEE,


                             AFFIRMED AND REMANDED.



                                      HENRY F. TODD, JUDGE




CONCURS:
WILLIAM B. CAIN, JUDGE


CONCURS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
THOMAS MILO LOGAN,                            )       Coffee Chancery
                                              )       No. 2687
       Plaintiff/Appellant,                   )
                                              )
VS.                                           )
                                              )
MARY JANE LOGAN,                              )       Appeal No.
                                              )       01A01-9711-CH-00660
       Defendant/Appellee.                    )



                                     OPINION



       The captioned plaintiff husband has appealed from the post divorce order of the Trial

Court denying his petition to terminate periodic alimony. He presents the following issue:



                       Whether the trial court erred in refusing to order
               cessation of appellant’s alimony obligation where the
               preponderance of the evidence showed a substantial and
               material change of circumstances between the parties so as to
               justify modification of the final decree.


       The appellee wife presents the same issue in the following form:



                       Whether the trial court correctly denied the appellant’s
               petition seeking relief from payment of alimony, when the
               preponderance of the evidence clearly showed that there was
               no substantial and material change of circumstances between
               the parties which would justify a modification of the prior
               order.


       The parties were married on April 12, 1952, when the husband was 24 and the wife

was 27. They separated in 1976, at which time their only child had reached majority. On

December 9, 1977, a decree was entered granting a divorce to the wife upon her counterclaim

on the ground of cruel and inhuman treatment, and requiring the husband to pay to the wife

$350.00 per month alimony until January 1, 1979, when the alimony was to increase to

$400.00 per month.




                                             -2-
       On February 13, 1997, the husband filed the present petition for reduction of alimony

and termination of insurance.


       The parties entered into a marital dissolution agreement specifying details of property

division and alimony, all of which was approved and adopted by the Trial Court.



       The Trial Judge entered an order containing the following:



                       Mr. Logan is a seventy year old gentleman who has
               obviously worked hard all his life and was recently
               involuntarily retired. Mr. Logan has since the divorce
               remarried. Mrs. Logan, on the other hand, has chosen not to
               remarry, which would have stopped the alimony and is now
               residing in the state of North Carolina where she is living on
               social security and some interest income. Since the entry of
               the final decree, Mr. Logan has paid almost one hundred
               eighty-three thousand dollars in alimony.

                        In this day and age when marital vows “for better or
               worse, for richer or poorer, in sickness and in health and until
               death do us part” confront the legal system too often they are
               broken, which is unfortunate. In this case attached to the final
               decree of divorce is a negotiated alimony and property
               settlement agreement negotiated by competent attorneys and
               bearing the signatures of the parties. Contracts are made in
               this state to be not only enforced but a party is entitled to rely
               upon the terms of the agreement. From a review of all the
               facts presented to the hearing, it is the opinion of the
               undersigned that the alimony payments should remain
               unchanged, however, there appears to be a serious issue of
               Mr. Logan’s insurability and no real practical need to
               continue his obligation to maintain a thirty thousand dollar
               policy of life insurance and he is relieved from that
               obligation.

                      In all other respects the terms of the final decree shall
               remain in full force and effect.


       At the time of the divorce, the husband was earning $33,430 per year. The wife’s

earnings were inconsequential. Since the divorce, the husband has been involuntarily retired and

his income is now $4,022.00 per month, consisting of $235 pension, $1,287 social security, and

$2,500 IRA distribution. He has remarried. His real estate is held jointly with his new wife who

earns $25,708 per year. He claims monthly expenses of $4,613 including mortgage payments



                                                -3-
of $341.29, credit union $633.34, $150 gifts and flowers, and various expenses of son, grandson

and daughter in-law. In short, no evidence is cited or found which demonstrates that appellant

has legitimate expenses of $4,613 per month.



        Appellant claims he has health problems, but does not claim disability to perform the

functions he is trained to perform. This record does not demonstrate that appellant could not

obtain and pursue employment for which he is fitted.



        Appellant complains that he has already paid appellee $184,000 in alimony. This fact

is not an unanticipated change of circumstances justifying relief from alimony specified in the

marital dissolution agreement and ordered in the decree.



        Appellant argues that appellee should be required to pay her living expenses out of the

funds assigned to her in the marital dissolution and property settlement agreement. No such

intent or expectation appears in the agreement.



        Appellant argues that appellee should be required to go to work and earn her own living

expenses. No such intent or expectation appears in the marital dissolution agreement which

specifies the amount of alimony without condition.



        Appellee asserts modest living expenses of $1,231 per month. She receives $540 per

month social security, and $800 per month alimony, a total of $1,340. She has serious health

problems which discourage any effort at rehabilitation. She deserves to preserve her savings to

provide security for her old age.



        Appellant cites Loria v. Loria, Tenn. App. 1997, 952 S.W.2d 836, in which this Court

held:

                       [2, 3] Alimony in futuro may be made subject to
               limitations or conditions, but it nevertheless remains subject

                                            -4-
              to the control of the court. In this respect, rehabilitative
              alimony may be considered a species of alimony in futuro. It
              is paid periodically and remains subject to the control of the
              court. It distinguishing characteristic is the purpose for which
              it is awarded, which is to provide a temporary income during
              a period of adjustment and effort of the dependent spouse to
              become partially or totally self sufficient. During this period,
              the Court retains the authority to make appropriate
              adjustments in keeping with changing circumstances and
              developments.

                       [4, 5] If a dependent spouse does not satisfactorily
               strive for self sufficiency, the Court may withdraw part or all
               of the support allocated to finance rehabilitation. If the
               dependent spouse demonstrates complete inability to achieve
               even partial self sufficiency, the Court may grant alimony in
               futuro to provide the needs of the dependent spouse.

                       [6]     If the defendant spouse achieves partial self
               sufficiency but demonstrates inability to achieve total self
               sufficiency, the Court may grant sufficient alimony in futuro
               to supplement the earning capacity of the dependent spouse.

                       Of course, all of the foregoing must be administered
               within the capability of the supporting spouse to provide the
               needed support.


       In Loria, this Court was reviewing an original divorce decree which was not based upon

a marital dissolution agreement specifying the amount and duration of alimony. The wife’s age

was 56 and no disability is mentioned in the opinion.



       This present appeal involves a decree which was based upon agreed alimony and property

division in a prior divorce decree which appellant seeks to revise by subsequent petition.

Appellant has the burden of showing an unanticipated change in circumstances which justifies

the revision he seeks. He has not carried that burden. Bowman v. Bowman, Tenn. App. 1991,

836 S.W.2d 563 and authorities cited therein.



       The appellant will derive some relief from termination of the duty to maintain life

insurance, as to which appellee makes no complaint.




                                              -5-
       The judgment of the Trial Court is affirmed. Costs of this appeal are assessed to the

appellant. The cause is remanded to the Trial Court for further appropriate proceedings.



                        AFFIRMED AND REMANDED.



                                             __________________________________
                                             HENRY F. TODD, JUDGE




CONCURS:



____________________________
WILLIAM B. CAIN, JUDGE



CONCURS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE




                                             -6-
