                                                                                       10/31/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                July 10, 2018 Session

         NANCY MAUREEN JARMAN v. FRANKLIN N. JARMAN

                Appeal from the Circuit Court for Davidson County
                        No. 74538 Philip E. Smith, Judge

                      ___________________________________

                          No. M2017-01730-COA-R3-CV
                      ___________________________________

       This appeal arises from competing post-divorce petitions to increase, modify
and/or terminate alimony in futuro and an award of attorney’s fees arising therefrom. In
the parties’ 1975 divorce decree, the husband was ordered to pay alimony in futuro to the
wife, which was subsequently modified in 1980, and most recently in 2003. In 2016, the
former wife petitioned the court to increase alimony, which the former husband answered
by filing a counter-petition to reduce or terminate alimony. The trial court denied both
petitions and awarded the former wife attorney’s fees. Both parties appeal. We affirm.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT, J. joined. W. NEAL MCBRAYER, J., filed a separate concurring and dissenting
opinion.

David Scott Parsley and Michael K. Parsley, Nashville, Tennessee, for the appellant,
Nancy Maureen Jarman.

Gregory D. Smith, Brenton H. Lankford, and Ann Ralls Niewold, Nashville, Tennessee,
for the appellee, Franklin M. Jarman.

                                       OPINION

      Nancy Maureen Jarman (“Wife”) and Franklin N. Jarman (“Husband”) were
married in 1970 and divorced on January 3, 1975. In the Final Decree of Divorce,
Husband was ordered to pay alimony in futuro to Wife in the amount of $3,100 per
month for the first eleven months, and $2,400 per month thereafter until Wife’s death or
remarriage. The divorce decree did not include a contractual provision regarding an
entitlement to recover attorney’s fees in the event either party sought or opposed a post-
divorce petition to modify or terminate alimony.

       On March 5, 1980, the trial court modified Husband’s alimony obligation,
reducing the amount to $600 per month. Thereafter, by an order entered December 12,
2003, the trial court increased Husband’s alimony obligation to $1,000 per month.

       On March 24, 2016, Wife filed a petition to increase alimony, alleging that “since
the entry of the last Order affecting alimony in this matter, there has been a material and
substantial change of circumstances justifying an increase in the amount of alimony.”
Husband filed an answer and counter-petition to terminate or reduce his alimony
obligation.

       Trial took place over three non-consecutive days in February, April and May
2017, where Husband and Wife were the only witnesses. At the time of trial, Wife was 76
years old, and Husband was 85.

        Wife testified that the last time she had a fulltime job was in 2000, which was
prior to the 2003 modification order, although she did do some consulting work brokering
and selling art pieces in 2003. More recently, Wife worked as an in-home caretaker
performing household tasks for her client, such as cooking, cleaning and caring for her
client’s pet, in exchange for room and board. Wife has been working and living with her
current client since December 2016, when she returned to Nashville. Prior to that, she
lived in Austin, Texas and had the same working and living arrangement with another
client.

        Before becoming an in-home caretaker, Wife lived in an extended stay motel in
Texas. Wife testified that the motel was riddled with drug dealing and prostitution. Wife
stated that she moved into the motel to escape a condominium that had become hazardous
to her health. Wife claimed that she had to go to the emergency room three or four times
in the year she lived in the condominium from being exposed to drug fumes in her
housing complex. Wife testified that she was evicted from the condominium because she
refused to pay rent due to “the circumstances [she] was living under.”

        Wife testified that she could not afford to live on her own, explaining that if she
could afford to live independently, she would do so. Wife said she looked at apartment
complexes on “Harding Road or West End, [and] Broadway” and a couple on “Hillsboro
Road,” but went on to say “they were just absolutely awful and overpriced.” Wife
elaborated that “because of the real estate market and the cost of renting these days in a
safe place, in a good location … [she] really only … found one place to rent near where
[she] live[s] right now, and the rent is $2,800.” On cross-examination, Wife was asked if
she found any potential apartments for less than $2,800, and she responded that she found
apartments between $2,000 and $2,200, but they “were dumps, if you know what a dump

                                           -2-
is.” Wife further testified that she found a one-bedroom apartment for $1,629 per month,
but said it was “subpar.” Wife admitted that she confined her search for apartments to her
current area of Nashville, which is Belle Meade and West End. Wife also acknowledged
that she had only owned one home since the parties’ divorce in 1975, which she sold
shortly after the 1980 alimony modification order.

       Wife explained she has not had a car since her vehicle was stolen in 2010 and that
she could not afford to replace it. She also stated that in 2000, while living in Texas, she
“lost a lot of things in a flood,” and “had a number of robberies and that sort of thing.”
Wife admitted that she has been unable to make ends meet on numerous occasions, has
been forced to sell possessions such as jewelry and paintings, and has borrowed money
from friends that she intends to pay back. Wife testified that she owes $2,000 to one
friend, $600 to another, and has not been able to pay her attorney to represent her in this
case. Wife claimed that the only possessions of value she had to her name were some
photographs, a few pieces of art, a fur coat, and some furniture. When questioned further,
Wife admitted she owned a few pieces of jewelry worth a few thousand dollars that she
forgot to disclose during the discovery process.

       Regarding her employment, Wife admitted that she has not looked for any other
jobs since moving back to Nashville in late 2016. Her monthly gross income is $1,729,
which consists of $729 per month in social security income and $1,000 per month Wife
receives in current alimony from Husband.

       As for Husband, he married his current wife in 1976, and they live in a home he
owns that is valued at more than $1.2 million. He also owns property on Center Hill Lake
and multiple vehicles. Husband has not been gainfully employed since his last employer,
Wellness Environments, closed in December 2016. Although he was 85 years old and not
working at the time of trial, Husband insisted that he was not retired. Husband has an
annual income of approximately $81,000, which consists of a monthly pension from
Genesco, his former employer, as well as monthly social security and veterans’ disability
income. His wife’s annual income as an interior designer is approximately $38,000, and
she receives an additional $15,000 to $20,000 annually in obligatory distributions as the
beneficiary of a trust. Husband testified that he paid their taxes, but stated that he could
not comment on the value of his wife’s separate assets, and claimed he did not know how
much she contributed to their monthly living expenses.

       The meager evidence Husband provided in discovery indicated that his monthly
discretionary spending far exceeded his monthly income of $6,760.40. Husband’s
monthly expenditures included, inter alia, approximately $800 per month for his country
club membership, approximately $4,100 per month for a million-dollar life insurance
policy benefitting his current wife, approximately $1,200 per month spent on repaying
school loans for their adult children, $520 per month for a hired
groundskeeper/housekeeper, and approximately $200 per month on alcohol. Husband

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testified that he provided the majority of financial support for his current wife and paid
most of their bills.

       When asked how he could continue to pay expenses that significantly exceeded his
income, Husband testified he would “work it out” and that certain cuts to his
discretionary spending were “on the planning table.” Husband claimed he did not know
the current value of his stocks nor did he know what happened to the stock he previously
had in Genesco that was worth approximately one million dollars at the time of the
parties’ divorce in 1975. The trial court found Husband was evasive in many of his
answers and said that many of Husband’s answers were not believable. The trial court
surmised that Husband was attempting to hide his income from the court. Accordingly,
the trial court gave greater weight to Wife’s testimony which he found to be more
credible.

       On August 29, 2017, the trial court issued a memorandum opinion and order. It
found that although Wife’s financial needs had increased, Wife failed to show that her
increased needs were unforeseeable or unanticipated at the time of the last order in 2003.
Hence, the court denied her petition on the ground that she failed to prove a material
change in circumstances.

       As for Husband’s counter-petition, the trial court found that Husband proved a
substantial and material change in circumstances; however, he failed to prove that the
requested modification was appropriate under the circumstances, given the vast disparity
in assets and income between the parties. Therefore, the trial court denied Husband’s
counter-petition to terminate his alimony obligation and awarded Wife attorney’s fees in
the amount of $14,000. This appeal followed.

                                          ISSUES

       Each party presents one issue. Wife contends the trial court erred in failing to find
that she proved a material and substantial change of circumstances justifying an increase
in alimony in futuro. For his part, Husband contends the trial court erred in awarding
attorney’s fees in any amount to Wife; however, he does not challenge the amount of the
award.

                                 STANDARD OF REVIEW

       On appeal, we review the trial court’s findings of fact de novo upon the record,
with a presumption of correctness unless the preponderance of the evidence is otherwise.
Tenn. R. App. P. 13(d). “Because modification of a spousal support award is factually
driven and calls for a careful balancing of numerous factors, a trial court’s decision to
modify support payments is given wide latitude within its range of discretion.” Bogan v.
Bogan, 60 S.W.3d 721, 727 (Tenn. 2001) (citations omitted). In particular, the issue of

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“whether there has been a sufficient showing of a substantial and material change of
circumstances” is in the trial court’s sound discretion. Id. at 727 (quoting Watters v.
Watters, 22 S.W.3d 817, 821 (Tenn. Ct. App. 1999)). Accordingly, on appeal we are
“generally disinclined to second-guess a trial judge’s spousal support decision.”
Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011) (quoting Kinard v. Kinard,
986 S.W.2d 220, 234 (Tenn. Ct. App. 1998)).

       As for attorney’s fees, in the absence of a contractual provision, we review the
issue of whether a party in a proceeding to modify alimony is entitled to an award of
attorney’s fees pursuant to the abuse of discretion standard.1 See (Cooley) v. Cooley, 543
S.W.3d 674, 682 (Tenn. Ct. App. 2016); Malkin v. Malkin, 475 S.W.3d 252, 263 (Tenn.
Ct. App. 2015); Tenn. Code Ann. § 36-5-103(c); see also Eberbach v. Eberbach, 535
S.W.3d 467, 479 n. 7 (Tenn. 2017) (“[W]ith regard to a trial court’s award of attorney’s
fees under [Tenn. Code Ann. §] 36-5-103(c), the Court of Appeals’ standard of review is
abuse of discretion for both the issue of whether the party is entitled to an award and the
issue of the amount of the fees awarded.”).

                                                ANALYSIS

                            I.    MODIFICATION OF ALIMONY IN FUTURO

       Alimony in futuro provides long-term support until the death or remarriage of the
recipient and “may be increased, decreased, terminated, extended, or otherwise modified,
upon a showing of substantial and material change in circumstances.” Cooley, 543
S.W.3d at 682 (quoting Tenn. Code Ann. § 36-5-121(f)(2)(A)); Gonsewski, 350 S.W.3d
at 107. A change in circumstances is “‘substantial’ when it significantly affects either the
obligor’s ability to pay or the obligee’s need for support.” Bogan, 60 S.W.3d at 728. A
change in circumstances is “material” when the change occurred since the original
alimony award, and the change was not anticipated or contemplated by the parties at the
time of the award. Id. (citing Watters, 22 S.W.3d at 821). Additionally, the change in
circumstances “must have occurred since the original award.” Brewer v. Brewer, 869
S.W.2d 928, 935 (Tenn. Ct. App. 1993).2

        1
           If the issue is whether a former spouse is entitled to attorney’s fees pursuant to a provision in a
marital dissolution agreement, “the proper standard of review is de novo because the issue is a question of
law.” Eberbach, 535 S.W.3d at 479 n. 7. “Our courts long have observed at the trial court level that
parties are contractually entitled to recover their reasonable attorney’s fees when they have an agreement
that provides the prevailing party in a litigation is entitled to such fees.” Id. at 478 (citations omitted).
        2
           If the petitioner establishes the existence of both a substantial and a material change in
circumstances, then the petitioner must overcome an additional hurdle, which is proving that he or she is
entitled to a modification. Covarrubias v. Baker, No. E2016-02316-COA-R3-CV, 2017 WL 6276230, at
*4 (Tenn. Ct. App. Dec. 11, 2017). For the petitioner to be entitled to a modification of his or her alimony
                                                                                              (continued…)
                                                    -5-
       Here, Wife relies on the fact that her “need has increased” to prove a material
change of circumstances. The trial court denied Wife’s petition, finding that she failed to
prove a material change in circumstances because she could not show that the changes
she relied on were not anticipated or contemplated by the parties at the time of the 2003
modification. In its Memorandum Opinion and Order, the trial court noted,

        There is no other change of circumstances alleged in [Wife’s] petition other
        than her increased need. There is no allegation as to why her need has
        increased since the previous order of 2003. . . . nor has she shown that the
        need was unforeseeable at the time of the previous order in 2003.

        [Wife]’s increased need may well constitute a substantial change of
        circumstances. However, [Wife] has failed to show a material change in
        circumstances. Therefore, the Court has no choice but to dismiss her
        Petition to Increase Alimony.

       As the petitioning party, Wife has the burden of proving that there has been both a
substantial and material change in circumstances since the parties’ modified alimony
support order was entered in 2003. Bogan, 60 S.W.3d at 727–28; Tenn. Code Ann. § 36-
5-121(a). A change in circumstances is considered to be “material” when the change was
not anticipated or contemplated by the parties at the time of the award and the change
occurred since that time. Id. at 728 (citing Watters, 22 S.W.3d at 821).

       At oral argument, counsel for Wife argued that having no job, no vehicle, and no
housing was materially different than her circumstances at the time the current alimony
order was ratified in 2003. We note, however, that Wife did not have a fulltime job in
2003; therefore, her lack of fulltime employment now cannot serve as a material change.
We also note that Wife’s monthly income, which is limited to her alimony and social
security benefit, is substantially the same as it was in 2003.

       As for her housing situation, Wife states that she cannot afford to buy a house or
rent an apartment in Nashville. The record reflects that Wife has only owned one home
since the 1975 divorce, which she sold after the 1980 modification and before the 2003
modification order was entered. As for the cost of renting an apartment, it was not
unforeseeable that the cost of rental housing would have increased. Thus, this
circumstance, although unfortunate, cannot serve as a factual basis for a material change
of circumstance.

obligation, the petitioner must establish that the modification is justified based upon the same factors that
are relevant to the initial award of alimony. Bogan, 60 S.W.3d at 730. “Those factors are found in Tenn.
Code Ann. § 36-5-121(i) and include, inter alia, the relative earning capacity, financial resources,
education, and separate assets of each of the parties.” Covarrubias, 2017 WL 6276230, at *4.


                                                   -6-
       As for the theft of her car, that specific circumstance was not reasonably
foreseeable. Nevertheless, one must anticipate, or foresee, a few bumps in the road as the
years go by. This modest loss, standing alone, is insufficient to constitute a material
change of circumstances.

       Wife also testified that she experienced unanticipated medical expenses due to
drug fumes she was exposed to in her housing complex in Texas. Although she states that
she went to the emergency room on several occasions, Wife presented no evidence of the
medical expenses she incurred. Thus, the mere fact that she found it necessary to seek
treatment at an emergency room on multiple occasions while in Texas is insufficient to
constitute a material change of circumstances. Moreover, as the trial court surmised after
noting that Husband was 85 and Wife was 76 years old at the time of trial:

       It is certainly reasonable for one or both parties to hope and expect to get
       older. It is certainly reasonable for one or both parties to anticipate a higher
       cost of living in future years. It is also certainly reasonable for one or both
       parties to anticipate that their expenses may increase establishing an
       increased need for more money.

       In the final order, the trial court found that “[Wife] has not had an unforeseen or
unanticipated loss of employment since the last order nor has she shown any additional
circumstances that were unforeseen and unanticipated.” We have determined that the
evidence does not preponderate against the trial court’s finding that Wife failed to prove a
change of circumstances that was not anticipated or contemplated by the parties at the
time of the award. Therefore, we affirm the trial court’s decision to deny Wife’s petition
to increase alimony on the ground that she failed to prove a material change in
circumstances.

                                  II.   ATTORNEY’S FEES

       Husband asserts that the trial court erred in awarding Wife any amount of
attorney’s fees incurred in defending Husband’s counter-petition to terminate his alimony
obligation.

       In post-divorce modification proceedings, a marital dissolution agreement may
create a right to recover attorney’s fees. See Eberbach, 535 S.W.3d at 474-75. In the
absence of an attorney fee provision in a marital dissolution agreement, there are both
statutory and common law grounds for awarding attorney’s fees in alimony modification
cases. See Evans v. Evans, No. M2002-02947-COA-R3-CV, 2004 WL 1882586, at *14
(Tenn. Ct. App. Aug. 23, 2004) (“[S]everal bases have been used as authority for an
award of attorney’s fees.”). One statutory ground is found at Tenn. Code Ann. § 36-5-
103(c), also known as “Tennessee’s Enforcement of Orders statute.” Eberbach, 535

                                            -7-
S.W.3d at 475. The version of the statute in effect at the time this matter was decided
provided that “[t]he plaintiff spouse may recover from the defendant spouse . . .
reasonable attorney fees incurred in enforcing any decree for alimony, . . . both upon the
original divorce hearing and at any subsequent hearing . . . in the discretion of such
court.” Tenn. Code Ann. § 36-5-103(c) (2017). “In a number of other modification cases,
the court has simply relied on the general principles applicable to attorney’s fees in
divorce cases and on opinions involving initial awards.” Evans, 2004 WL 1882586, at
*15.3

       More significantly, the reported decision of Malkin v. Malkin, 475 S.W.3d 252
(Tenn. Ct. App. 2015) explains that Tenn. Code Ann. § 36-5-103(c) authorizes the courts,
in their discretion, to “award attorney’s fees to an alimony recipient who is forced to
defend an action to reduce or terminate that alimony.” Id. at 263. (citing Henderson v.
Henderson, No. M2013–01879–COA–R3–CV, 2014 WL 4725155, at *12 (Tenn. Ct.
App. Sept. 23, 2014); Evans, 2004 WL 1882586, at *13–14; Owens v. Owens, No.
M2012–01186–COA–R3–CV, 2013 WL 3964793, at *6 (Tenn. Ct. App. July 30, 2013)
(“Reasonable fees may be awarded pursuant to § 36–5–103(c) in actions to enforce a
decree for alimony, which has been interpreted as including the situation where an
alimony recipient is forced to defend an action to reduce or terminate that alimony.”)).
Additionally, the Malkin court recognized that

       Alimony is only awarded in the first instance to an economically
       disadvantaged spouse who has a demonstrated need for the support. Absent
       a showing in a modification proceeding that the need no longer exists,
       requiring the recipient to expend that support for legal fees incurred in
       defending it would defeat the purpose and public policy underlying the

       3
           The Evans decision goes on to explain a broad basis for awarding fees:

       We conclude that ample authority exists to authorize a court to award fees in a
       modification proceeding on the same basis, and according to the same principles, as a fee
       award is made in the divorce proceeding and initial award under in Tenn. Code Ann. §
       36-5-101. Therefore, there exists a legal ground for the award of fees herein that is
       alternative, or additional, to the ground relied upon by the trial court.

       It has become well settled that an award of attorney’s fees in divorce cases is considered
       alimony or spousal support, generally characterized as alimony in solido. Yount v. Yount,
       91 S.W.3d 777, 783 (Tenn. Ct. App. 2002); Wilder v. Wilder, 66 S.W.3d 892, 894 (Tenn.
       Ct. App. 2001); Herrera v. Herrera, 944 S.W.2d 379, 390 (Tenn. Ct. App. 1996);
       Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn. Ct. App. 1992); Storey v. Storey,
       835 S.W.2d 593, 597 (Tenn. Ct. App. 1992). Like other spousal support, an award of
       attorney’s fees is available to either spouse.

Evans, 2004 WL 1882586, at *15 (footnotes omitted).


                                                   -8-
       statute on spousal support. Additionally, the possibility of being burdened
       with a former spouse’s attorney’s fees helps deter unwarranted or
       unjustified attempts by an obligor to evade or reduce an existing support
       obligation.

Id. at 264. (quoting Henderson, 2014 WL 4725155, at *12); see also Evans, 2004 WL
1882586, at *13.

        Because Malkin is a reported case, “it constitutes binding precedent for Tennessee
trial courts on the issue involved in this appeal unless our Supreme Court overrules it or
our General Assembly changes the law.” In re Estate of Tucker, No. E2014-02112-COA-
R3-CV, 2015 WL 7068134, at *3 (Tenn. Ct. App. Nov. 12, 2015). Thus, it is significant
that our Supreme Court has not disturbed the Malkin decision in any respect.

       As for the Tennessee General Assembly, it has taken no action to reverse or limit
the scope of the Malkin decision. To the contrary, in order to resolve any uncertainty on
the issue, the General Assembly amended the statute, effective July 1, 2018, to be wholly
consistent with the ruling in Malkin. Although the amendment has no direct bearing on
the rights of the parties to this action, it is relevant to note that the statute as amended
pursuant to H.R. 2526, § 1, 110th Gen. Assemb., Reg. Sess. (Tenn. 2018), which is
presently in effect, reads:

       A prevailing party may recover reasonable attorney’s fees, which may
       be fixed and allowed in the court’s discretion, from the non-prevailing
       party in any criminal or civil contempt action or other proceeding to
       enforce, alter, change, or modify any decree of alimony, child support,
       or provision of a permanent parenting plan order, or in any suit or action
       concerning the adjudication of the custody or change of custody of any
       children, both upon the original divorce hearing and at any subsequent
       hearing.

Tenn. Code Ann. § 36-5-103(c) (2018) (emphasis added).

       Here, Wife was both a plaintiff and a defendant in the competing petitions to
increase and decrease or terminate alimony. When Husband filed his counter-petition to
terminate his alimony obligation, Wife defended the existing alimony decree, and by
doing so Wife was seeking “to enforce” the existing award of alimony then in effect. See
Malkin, 475 S.W.3d at 263; See also Evans, 2004 WL 1882586, at *13 (citing Duke v.
Duke, Nos. M2001-00080-COA-R3-CV, M2002-00026-COA-R3-CV, 2003 WL 113401
(Tenn. Ct. App. Jan. 14, 2003)). In another Court of Appeals case, Duke v. Duke, the
husband argued that Tenn. Code Ann. § 36-5-103(c) did not allow the court to award fees
to a defendant spouse in a post-divorce proceeding. Id. at *5. The court rejected this
argument stating:

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        We do not agree with Mr. Duke’s interpretation of the statute. The key is in
        the words “enforcing any decree for alimony or child support. . . .” A
        spouse who defends a petition to change an alimony or child support
        order is acting to enforce it. The statute does not distinguish between
        winners and losers, and while the courts have sometimes made that a factor,
        see Placencia v. Placencia, 3 S.W.3d 497 (Tenn. Ct. App. 1999), we do not
        think it is the determining factor. In each case the court should do what is
        equitable. See Sherrod v. Wix, 849 S.W.2d 780 (Tenn. Ct. App. 1992).

Duke, 2003 WL 113401, at *5 (emphasis added).

       In an exercise of its discretion, the trial court took into consideration Wife’s
significantly limited financial means along with Husband’s considerable assets, and
awarded Wife attorney’s fees of $14,000. Having reviewed the record and considered the
relevant factors, we find no abuse of discretion in awarding Wife attorney’s fees pursuant
to Tenn. Code Ann. § 36-5-103(c) for successfully enforcing the 2003 alimony decree
Husband sought to reduce or terminate. Thus, we affirm Wife’s award of attorney’s fees.4

                                          IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellee, Franklin M. Jarman.


                                                          ________________________________
                                                          FRANK G. CLEMENT JR., P.J., M.S.




        4
          In this appeal, Husband only challenges the award of any fees; he does not challenge the amount
of attorney’s fees awarded. Thus, we need not review the amount of the award.


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