                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                                December 12, 2001 Session

           SUSAN BRANNON COOPER v. KENT CLARK COOPER

                     Appeal from the Chancery Court for Hamilton County
                          No. 63110, W. Frank Brown, Chancellor

                                   FILED MARCH 22, 2002

                                No. E2001-00716-COA-R3-CV


This appeal from the Chancery Court of Hamilton County questions whether the Trial Court erred
in increasing Ms. Cooper’s alimony award. Additionally, it questions whether the Trial Court erred
in awarding attorney’s fees to Ms. Cooper and in refusing to dismiss her Answer and Counter-
Complaint. We affirm the decision of the Trial Court in part and reverse in part and remand.

Tenn. Ct. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part;
                           Reversed in Part; Cause Remanded

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

Christine Mahn Sell, Chattanooga, Tennessee, for the Appellant, Kent Clark Cooper.

Rosemarie L. Bryan, Chattanooga, Tennessee, for the Appellee, Susan Brannon Cooper.

                                           OPINION

        This appeal arises from a “Petition to Terminate Alimony Provisions of Divorce Decree”
filed by Mr. Cooper in the Hamilton County Chancery Court on April 14, 2000. Ms. Cooper filed
an Answer and Counter-Complaint on September 14, 2000. A hearing took place on February 12
and 13, 2001 and Ms. Cooper was awarded an increase in alimony. Mr. Cooper appeals the decision
of the Trial Court and presents for our review three issues which we restate:

               I.      Whether the Trial Court erred in refusing to dismiss Ms.
                       Cooper’s Answer and Counter-Complaint in view of the fact
                       that she had previously been found in contempt of court.

               II.     Whether the Trial Court erred in increasing Mr. Cooper’s
                       alimony obligation.
                 III.     Whether the Trial Court erred in awarding Ms. Cooper’s
                          attorney’s fees in the amount of $7,500.00.

        Any other issues raised in this appeal are pretermitted by our opinion below.

        Mr. and Ms. Cooper were divorced by final decree on January 13, 1986 (“Final Decree”).
During the marriage, Mr. and Ms. Cooper had three children, all of whom have reached the age of
majority and are not at issue on the appeal. According to the Final Decree, Mr. Cooper was ordered
to pay Ms. Cooper alimony in the amount of $1,000.00 per month as well as any federal income tax
Ms. Cooper owed as a consequence. Additionally, Ms. Cooper was awarded custody of one minor
child and was awarded $500.00 per month in child support. Mr. Cooper had custody of the parties’
two other minor children. By subsequent Order entered June 2, 1987, Mr. Cooper’s alimony
obligation was increased to $1,090.00 per month and he was relieved of the responsibility to pay Ms.
Cooper’s federal income tax.

       On February 10, 1992, the Trial Court ordered that Ms. Cooper’s alimony be reduced to
$840.00 per month effective March 1, 1992. On April 14, 2000, Mr. Cooper filed his “Petition to
Terminate Alimony Provisions of Divorce Decree.” On September 14, 2000, Ms. Cooper filed an
Answer and Counter-Petition asking that her alimony be increased.1 In a Memorandum Opinion and
Order entered on March 1, 2001, the Trial Court ordered:

        1.       That the Petition to Terminate Alimony Provisions of Divorce Decree filed by Kent
                 Clark Cooper is denied;
        2.       That the Counter-Complaint filed by Susan Brannon Cooper is sustained;
        3.       That Kent Clark Cooper shall increase the alimony payable to Susan Brannon Cooper
                 to One Thousand Ninety Dollars ($1,090.00) per month, effective March 1, 2001;
        4.       That Kent Clark Cooper shall pay to Witt, Gaither and Whitaker the sum of
                 $7,500.00 toward the payment of Ms. Cooper’s attorney’s fees and expenses;
        5.       That the alimony payable by Mr. Cooper shall terminate upon the remarriage of Ms.
                 Cooper, the death of either party, and/or further order of the court; and
        6.       That the Clerk’s cost of this cause are taxed against Kent Clark Cooper and his
                 surety.

        We review the Trial Court’s findings of fact de novo upon the record of the proceedings
below, with a presumption of correctness “unless the preponderance of the evidence is otherwise.”
Tenn. R. App. P. 13(d); see also Hass v. Knighton, 676 S.W.2d 554 (Tenn. 1984). There is no
presumption of correctness with regard to the trial court’s conclusions of law, and those conclusions
are reviewed de novo. Jahn v. Jahn, 932 S.W.2d 939 (Tenn. Ct. App. 1996).



        1
            In addition to the aforementioned litigation, numerous other proceedings have taken place involving
alimony , child su ppo rt and custody. H ow ever, it is not necessary to address such proceedings in th is appeal.

                                                       -2-
                                                   I.

        Mr. Cooper appeals the Trial Court’s decision not to dismiss Ms. Cooper’s Answer and
Counter-Petition to increase alimony. This issue was not specifically addressed by the Trial Court
in its Memorandum Opinion and Order entered on March 1, 2001. According to the record before
this Court, this issue was first raised by Mr. Cooper following the filing of his “Petition to Terminate
Alimony Provisions of Divorce Decree” when he responded to a motion filed by Ms. Cooper.

        Mr. Cooper’s argument for dismissal of Ms. Cooper’s Answer and Counter-Petition to
increase alimony derives from the fact she was found to be in wilful contempt pursuant to an order
of the Trial Court entered on July 26, 1988. This order was entered based upon inappropriate
statements made by Ms. Cooper in two statements submitted to the Court in July, 1988. In a
statement titled, “Plaintiff’s Response to Order Part I,” Ms. Cooper stated, “Plaintiff can no longer
deal with this lop-sided Tennessee ‘justice’ and intends never to set foot in the state of Tennessee
for the purpose of court-ordered visitation.” Further, Ms. Cooper wrote, “the Court can take the
biased CASA report, Mr. Stanley’s proposed order based clearly on ex parte communications, and
any future ‘parts’ of the instant order and shove them all ‘up yours.’” In an Order from the Trial
Court entered July 26, 1988, Ms. Cooper was found in wilful contempt of court; however, the
punishment was reserved for a future date.

         Over the subsequent fourteen years punishment for Ms. Cooper’s contempt was never
imposed by the Trial Court. Furthermore, no other action was ever taken by either party regarding
this contempt until the current litigation ensued. Following Mr. Cooper’s instigation of the case sub
judice by filing his “Petition to Terminate Alimony Provisions of Divorce Decree,” Ms. Cooper
filed a “Motion to Have Deposition Taken By Telephone and to Limit Testimony to Deposition” on
November 29, 2000. An Order was entered on December 13, 2000 ordering that the deposition of
Ms. Cooper would be taken by telephone and reserved its ruling as to whether or not Ms. Cooper’s
testimony would be limited to that telephonic deposition. Ms. Cooper further filed a Supplement
to her previous Motion requesting that her testimony be limited to her telephone deposition. Mr.
Cooper filed a Motion2 in response wherein he asserted inter alia that Ms. Cooper’s requests should
be denied until she “purges” herself of the contempt.

         According to the record, the Trial Court found Ms. Cooper in contempt of court in an order
entered July 26, 1988, and reserved punishment for a future date. Following the order of July 26,
1988, Mr. Cooper filed a Petition to Modify Alimony and Ms. Cooper filed an Answer and Counter-
Complaint, for which there was a hearing on February 10, 1992 and an Order was entered on
February 21, 1992, nunc pro tunc, February 10, 1992. On April 14, 2000, Mr. Cooper again initiated
litigation with Ms. Cooper when he filed his “Petition to Terminate Alimony Provisions of Divorce

       2
         DEFENDANT/PETITIONER’S RESPONSE TO PLAINTIFF/RESPONDENT’S SUPPLEMENT TO
MOTION TO HAVE DEPOSITION TAKEN BY TELEPHONE AND TO LIMIT TESTIMONY TO DEPOSITION
and DEFENDANT/PETITIONER’S COUNTER-MOTION TO STRIKE THE MOTION AND THE AFFIDAVIT OF
CANDACE T. SMITH

                                                  -3-
Decree” and Ms. Cooper filed her Answer and Counter-Complaint. As already noted, throughout
the fourteen years since Chancellor Owens found Ms. Cooper in contempt, nothing has been done
by the Trial Court to punish Ms. Cooper.

        The Trial Court, in its discretion, chose not to pursue its findings of contempt. The Trial
Court entertained subsequent litigation between Mr. and Ms. Cooper. The record is silent as to any
further action whatsoever by the Trial Court with respect to the finding of contempt. In the
Memorandum Opinion and Order filed by the Trial Court on March 1, 2001 the contempt was not
addressed. Mr. Cooper has brought this argument to the attention of the Trial Court and the Trial
Court has chosen to ignore it. We find that the Trial Court did not abuse its discretion in this regard.

                                                       II.

        The next issue on appeal is whether the Trial Court erred in increasing Mr. Cooper’s alimony
obligation. Mr. Cooper argues that initially, the Trial Court awarded alimony to Ms. Cooper based
upon a finding that her medical impairment would prevent her from ever having employment beyond
that of minimum wage. Mr. Cooper further argues that in 1992, the Trial Court lowered alimony
based upon the fact that Ms. Cooper had retained employment above minimum wage, and that the
Trial Court anticipated further downward modification. Mr. Cooper asserts that because the Trial
Court did not expect Ms. Cooper to ever acquire employment beyond minimum wage, the fact that
she did was unforeseeable at the time of the original award. Mr. Cooper also argues that Ms.
Cooper has not only maintained employment beyond minimum wage, but that she has also acquired
substantial assets since the last modification and reduced her debt. He additionally asserts that her
income has increased and her net worth is now greater than his own. Ms. Cooper has paid off the
mortgage on her condominium, has paid off the debt on her car, has a savings account and is
building a retirement account with American Express. According to Mr. Cooper, Ms. Cooper is no
longer financially strapped as she was at the time of the divorce, and he, therefore, should not have
to continue to contribute to her financially. Mr. Cooper contends that theses factors demonstrate a
substantial and material change in circumstances.

        Mr. Cooper also submits that while Ms. Cooper’s net worth has increased, his net worth has
decreased as he lost approximately $70,000.00 in day trading for several months in 1999 and 2000.
He now has two mortgages on his house,3 two car notes, and substantial credit card debt. Mr.
Cooper maintains that he no longer has the ability to pay alimony as his financial situation has
worsened since 1992. Moreover, Mr. Cooper testified that his current spouse, Ms. Polly Cooper, has
recently been diagnosed with lung cancer and they are experiencing an increase in medical expenses.
Finally, Mr. Cooper argues that the preponderance of the evidence does not support an increase in
alimony, but does support termination or reduction.




       3
           The second mortgage is $50,000.00 used to cover the day trading loss of $70,000.00.

                                                       -4-
         Ms. Cooper contends that Mr. Cooper failed throughout the proceedings to show that he was
unable to pay Ms. Cooper alimony. Further, Ms. Cooper argues that the Trial Court is restricted to
only considering facts since the 1992 alimony modification, and that facts relevant to preceding
hearings are res judicata as to the current modification. Ms. Cooper maintains that Mr. Cooper
failed to demonstrate a substantial change of circumstance and therefore, the Trial Court correctly
dismissed Mr. Cooper’s petition and granted Ms. Cooper’s petition. Additionally, Ms. Cooper
asserts that Mr. Cooper’s reason for filing the petition, i.e. his unemployment, ceased to exist within
several weeks of his filing the petition. Ms. Cooper asserts that her net income has actually
decreased since the 1992 hearing and that she has become financially dependent upon her parents,
as it was her parents who paid the mortgage on her condominium, bought her a car and loaned her
money to help her pay bills. Ms. Cooper argues that she is unable to meet her monthly expenses as
her monthly income is $1,686.52 and her monthly expenses are $2,392.12, leaving her a deficit of
$705.60.

         Appellate Courts give wide latitude to trial court decisions on alimony and maintenance both
in its original award and on a petition for modification. Cranford v. Cranford, 772 S.W.2d 48 (Tenn.
Ct. App. 1989). An award for spousal support may be modified upon a showing of a substantial and
material change in circumstances. T.C.A. 36-5-101(a)(1).

        The party seeking relief on the grounds of substantial and material change in circumstances
has the burden of proving such changed circumstances warranting an increase or decrease in the
amount of the alimony obligation. Seal v. Seal, 802 S.W.2d 617 (Tenn.Ct. App.1990). The change
in circumstances must have occurred since the entry of the divorce decree ordering the payment of
alimony. Elliot v. Elliot, 825 S.W.2d 87 (Tenn. Ct. App.1991). The change must affect the obligor
spouse’s ability to pay or the obligee spouse’s need for the alimony awarded. Threadgill v.
Threadgill, 740 S.W.2d 419 (Tenn. Ct. App. 1987). Furthermore, the change in circumstances must
not have been foreseeable at the time the parties entered into the divorce decree. Elliot v. Elliot, 825
S.W.2d 87 (Tenn. Ct. App.1991). Whether there has been a sufficient showing of a substantial and
material change of circumstances is in the sound discretion of the trial court. Watters v. Watters, 22
S.W.3d 817 (Tenn. Ct. App. 1999). If the change in circumstances was anticipated or in the
contemplation of the parties at the time they entered into the property settlement agreement, such
changes are not material to warrant a modification of the alimony award. Jones v. Jones, 784
S.W.2d 349, 353 (Tenn. Ct. App.1989). Once that change has been shown to exist, a court should
weigh the same statutory factors that were considered in making the original support award.
Threadgill v. Threadgill, 740 S.W.2d 419 (Tenn. Ct. App. 1987).

       An alimony recipient's increased income alone is not sufficient to warrant reducing or
terminating support. Sanella v. Sanella, 993 S.W.2d 73 (Tenn. Ct. App. 1999); McCarty v. McCarty,
863 S.W.2d 716 (Tenn. Ct. App.1992); Norvell v. Norvell, 805 S.W.2d 772 (Tenn. Ct. App.1990).

       The decision to modify the alimony obligation is factually driven and requires a careful
balancing of several factors. Cranford v. Cranford, 772 S.W.2d 48 (Tenn. Ct. App.1989). While
T.C.A. § 36-5-101(d) enumerates several factors for the court to consider, the need of the spouse

                                                  -5-
receiving the support is the single most important factor. Cranford v. Cranford, 772 S.W.2d 48
(Tenn.Ct. App.1989). In addition to the need of the spouse receiving support, Cranford notes that
the courts most often take into consideration the ability of the obligor spouse to provide support.

         In the original divorce decree, entered on January 13, 1986, the Trial Court stated, inter alia,
“[i]t further appears that the plaintiff suffers from a medical impairment and that she is unable to
obtain and retain gainful employment which would generate any income significantly beyond
minimum wage.” The Trial Court ordered that Mr. Cooper pay $1,000.00 per month in alimony as
well as all income tax incurred as a result of the alimony. In 1992, Mr. Cooper petitioned the Trial
Court for modification of his alimony obligation, which was heard on February 10, 1992. Following
the hearing, the Trial Court found that there had been a substantial and material change of
circumstances which justified a decrease in alimony from $1,090.00 to $840.00 per month. Mr.
Cooper testified in that hearing that his income had decreased from approximately $125,000.00 at
the time of the divorce in 1986 to $96,000.00 in 1991. Ms. Cooper, on the other hand, was
unemployed at the time of the divorce and was making approximately $15,000.00 per year in 1991.4
Mr. Cooper testified in 1992 that his monthly expenses were $1,200.00 per month more than his
monthly income. He also testified that his expenses would continue to increase as one of their
children would begin college in the fall of that year. Moreover, he testified that there were home
repairs that needed attention and he needed to start saving for retirement. The Trial Court mentioned
several factors before reducing alimony. Specifically the Trial Court noted that Ms. Cooper had
never paid any child support to Mr. Cooper and that Mr. Cooper had had some reduction in income.

      In the “Petition to Terminate Alimony Provisions of Divorce Decree” in the case sub judice,
Mr. Cooper pleads the following as his basis for the petition:

                  the Respondent has now established unequivocally that she is able to
                  obtain and retain gainful employment with American Express for
                  twelve years, she earns a good income, and she has consistently
                  received salary increases. Second, the Petitioner is now unemployed
                  and has been unable to secure new employment. Unemployment
                  constitutes substantial and material change of circumstances pursuant
                  to 36-5-101.

Within two weeks of filing his petition, Mr. Cooper became employed as the general manager of the
Sports Barn with a salary of $120,000.00 per year and an additional income from a previous
employer of $21,384.00 per year until 2009. Therefore, at the time of the hearing on this matter on
February 12 and 13, 2001, Mr. Cooper had a yearly income of $141,384.00. Mr. Cooper further
testified that he is currently living in a home he purchased in 1997 for $335,000.00 with



         4
          This figure does not include the alimony M s. Cooper receives from Mr. Cooper, but reflects her salary from
her em ploym ent with A merican Ex press.

                                                        -6-
approximately $74,000.00 in equity. Additionally, he and his wife Polly5 purchased a condominium
in Destin, Florida with a value of $125,000.00 which has an equity of approximately $50,000.00.
He has two relatively new vehicles, a 1997 Infiniti J30 and a 1999 Plymouth Voyager. Mr. Cooper
testified that his retirement account was worth approximately $10,000.00 to $15,000.00, and that his
credit card debt was $7,500.00. Although we do not recite all of Mr. Cooper’s monthly expenses,
we note that he testified to a monthly deficit of $1,730.05.

        In Jones v. Jones, 784 S.W.2d 349 (Tenn. Ct. App. 1989), the issue of res judicata with
respect to a modification of alimony was addressed. This Court stated in Jones:

                   When a decree has been modified in regard to alimony, "the order
                   entered in that proceeding is res judicata, so that one cannot maintain
                   a second petition for modification unless it can be shown that since
                   the entry of the order on the first petition for modification there has
                   been a substantial change of circumstances." 24 Am.Jur.2d Divorce
                   and Separation § 711 (1983) (footnotes omitted). In Seal v. Seal, 726
                   S.W.2d 934 (Tenn.App.1986), this Court stated that "[w]e are of the
                   opinion that the cases and the Code as presently written mandate that
                   the changes sought to be relied upon to effectuate a modification of
                   alimony payments must be shown to have occurred since the entry of
                   the decree ordering the payment of alimony." Id. at 935 (emphasis in
                   original).

         When Mr. Cooper filed this petition he was unemployed. Mr. Cooper’s current salary is
significantly higher than it was in 1992. He no longer has any minor children living at home. He
has purchased a more expensive home and two new automobiles since the 1992 hearing. He
incurred a significant loss in day trading which required a second mortgage on his home. An obligor
spouse may not avoid paying support by voluntarily assuming new financial obligations. Elliot v.
Elliot, 825 S.W.2d 87 (Tenn. Ct. App.1991); Jones v. Jones, 784 S.W.2d 349 (Tenn.Ct.App.1989).
Mr. Cooper’s day trading losses were a voluntary financial obligation, as are many of the monthly
expenses submitted by Mr. Cooper. Other examples listed on Mr. Cooper’s income and expense
statement include his golf club membership of $265.00 per month, food for two people listed as
$1200.00 per month6, the condominium in Destin is listed as a $563.12 expense per month, and
credit card payments of 10% of the balance equal to $750.00 per month. While this Court
acknowledges Polly Cooper’s health concerns and are sympathetic, we cannot ignore the fact that
Mr. Cooper failed to offer any proof at trial as to actual out of pocket medical expenses not covered


         5
             Our use of Ms. Cooper’s first name should not be construed as any disrespect, but rather is for ease of
reference.

         6
           Mr. Cooper testified that Polly Coope r has b een unable to cook recently so they eat m ost of their m eals in
restaurants. He further testified that he often treats his children an d their fam ilies to dinner as a form of their fam ily
entertainm ent.

                                                            -7-
by health insurance. Mr. Cooper’s assertion that Ms. Cooper is in a better financial position than
he and his present wife is without merit.

       Ms. Cooper has argued that while Mr. Cooper failed to demonstrate a substantial change in
circumstance to justify a decrease or termination of alimony, she has been able to demonstrate a
change in circumstance to justify an increase in alimony. We disagree. Ms. Cooper’s condominium
as well as her automobile have been paid for by her father. While her “net take-home pay” has
decreased slightly since 1992, her expenses have also decreased due to the fact that she no longer
has a mortgage or car payment. The income and expense statement filed by Ms. Cooper shows a net
income of $1,686.52 and expenses of $2,392.12 leaving a deficit of $705.60 each month. However,
both parties presented income and expense statements setting forth expenses that exceed monthly
income.

        In addition to having no indebtedness as to her automobile and condominium, Ms. Cooper
also began a savings account through an Incentive Savings Plan (ISP) program available through her
employer, American Express. Through the end of September, 2000, she had an adjusted vested
value of $26,922.13 in her savings account. She has been building a retirement account through her
employer as well. The value of Ms. Cooper’s retirement at the end of September, 2000, was
$12,000.75. Therefore, Ms. Cooper’s argument that her financial situation has worsened since the
1992 hearing is without merit. In 1992, the Trial Court was made aware of the fact that Ms. Cooper
had been employed by American Express. The fact that one would begin reaping the benefits of
working for a corporation such as taking advantage of an ISP and investing in a retirement plan are
certainly foreseeable.

        The Trial Court, in making its decision, denied Mr. Cooper’s “Petition to Terminate Alimony
Provisions of Divorce Decree,” and granted Ms. Cooper’s Counter-Petition. While each party argues
that the other party failed to show a substantial change in circumstance, this Court finds that both
parties failed to show a substantial change of circumstance since the 1992 hearing to justify an
increase, decrease or termination of alimony. We therefore hold that the Trial Court erred in
granting Ms. Cooper’s counter-petition and dismiss both petitions.

                                                 III.

         The last issue on appeal is whether the Trial Court erred in awarding Ms. Cooper’s attorney’s
fees in the amount of $7,500.00. The award of attorney's fees is a matter of wide discretion for the
trial court and absent an abuse of discretion we will not overturn that decision. Marmino v.
Marmino, 238 S.W.2d 105 (Tenn. Ct. App. 1950). We conclude the Trial Court acted within its
discretion in awarding Ms.Cooper $7,500.00 in attorney’s fees. The award of attorney’s fees is
affirmed.

        The judgment of the Trial Court is accordingly affirmed in part and reversed in part. Both
Mr. and Ms. Cooper’s petitions addressing alimony are dismissed and the cause remanded for
collection of the judgment of attorney’s fees and costs below. Costs of appeal as well as costs below

                                                 -8-
are adjudged equally against the Appellant, Kent Clark Cooper, and his surety, and the Appellee,
Susan Brannon Cooper.


                                            _________________________________________
                                            HOUSTON M. GODDARD, PRESIDING JUDGE




                                              -9-
