                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  August 07, 2001 Session

        JACQUELINE M. TELFORD v. MICHAEL ALLEN TELFORD

                   Appeal from the Chancery Court for Cheatham County
                        No. 8973, Leonard M. Martin, Chancellor



                   No. M2000-02938-COA-R3-CV - Filed January 4, 2002


This appeal from the Chancery Court of Cheatham County questions whether the Trial Court erred
in awarding Ms. Telford alimony in the amount of $1,000.00 per month, and in granting Ms. Telford
a judgment of $21,040.00 as the amount owing on the property division. Additionally, this appeal
questions whether the Trial Court erred in limiting alimony to eight years and whether the Trial
Court erred in failing to grant retroactive child support. We vacate the decision of the Trial Court
in part and affirm as modified in part and remand for further proceedings consistent with this
opinion. We divide costs of the appeal equally between the Appellant, Michael Allen Telford, and
the Appellee, Jacqueline M. Telford.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated in Part
                  and Affirmed As Modified 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.

Richard E. Norman, Jr., Nashville, Tennessee, for the Appellant, Michael Allen Telford.

Irene R. Haude, Nashville, Tennessee, for the Appellee, Jacqueline M. Telford.

                                            OPINION

       This appeal arises from a divorce between Michael Allen Telford, the Appellant, and
Jacqueline M. Telford, the Appellee. Mr. Telford appeals the decision of the Cheatham County
Chancery Court and presents for our review two issues which we restate:

       I. Whether the Trial Court erred in increasing alimony from $1.00 per month to
       $1,000.00 per month.

       II. Whether the Trial Court erred in granting Ms. Telford a judgment for $21,040.00
       as the amount owing on the property division.
        In addition to the issues raised by Mr. Telford, Ms. Telford, the Appellee, raises for our
review two issues which we restate:

         III. Whether the Trial Court erred in limiting alimony to eight years.

         IV. Whether the Trial Court erred in failing to grant retroactive child support.

        We vacate the judgment of the Trial Court in part and affirm as modified in part and remand
for further proceedings, if necessary, consistent with this opinion.

        Mr. and Ms. Telford were divorced on March 25, 1998 by an Agreed Order. There was one
minor child born of the marriage.1 Ms. Telford has physical custody of the minor child. Instead of
setting an amount of child support or alimony, the Agreed Order reserved child support pending debt
reduction by the parties, and alimony was awarded in the amount of $1.00 per month. At the time
of the divorce, the Telfords had, at a minimum, $80,000.00 in credit card debt divided between two
Visa credit cards. Their combined income at the time of the divorce was approximately $70,000.00.

        Ms. Telford filed a Petition to Enforce and Set Child Support and for Contempt on November
18, 1999. A hearing was held on this matter on July 31, 2000. An Order was entered on September
27, 2000, which, inter alia, set child support at $500.00 per month consisting of $425.00 per month
guideline support, $53.00 per month reimbursement to Ms. Telford for the minor child’s health
insurance premium, and $22.00 per month upward deviation from the child support guidelines as
father visits with the child less than the amount contemplated in the child support guidelines. The
amount of child support ordered by the Court is not at issue on this appeal.

        The Trial Court further ordered Mr. Telford to pay Ms. Telford alimony in an amount of
$1,000.00 per month for eight years, and that no retroactive child support was owed by Mr. Telford.
Finally, Ms. Telford was awarded a judgment of $21,040.00 for past due payments on the
debt/property settlement.2

       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

         1
             Justin M. Telford, d/o/b 01/08/90
         2
            Ac cord ing to the record, the Trial Court made it abundantly clear at Trial that the $21,040.00 judgment
against Mr. Telford was not designated as child support or alimony. However, in paragraph six of the order entered by
the Court on September 27, 2000, addressing retroactive child support, the following statement was handwritten and
initialed by co unsel for the parties: “The mother is awarded a judgment against father in the amount of 21,040.00 for
arrearage on p ast due pay me nts.” T his appears to be an attempt by one of the parties to try to label this judg me nt child
support even though the Trial Court went to great pains to state otherwise. Furthermore, in an order entered on
Novem ber 13, 2 000 , the Trial Co urt ordered, inter alia, that “the judgme nt arreara ge in the am oun t of $2 1,04 0.00 is
property and/or debt division as stated in the order and is not to be classified as alimony.” We will therefo re refer to
this judgment as debt/property division.

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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).

                                                  I.

        Mr. Telford appeals the Trial Court’s increase in alimony from $1.00 per month to $1,000.00
per month. The Agreed Order entered on March 25, 1998, stated the following with respect to the
issue of alimony:

               IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
               husband shall pay Wife $1.00 per month alimony until such time as
               Wife dies or remarries. The parties acknowledge that the Court may
               change this amount as circumstances change. The parties also note
               that a filing for bankruptcy by Husband would be a change in
               circumstances on the basis of which Wife could ask the Court for
               increased alimony. The parties acknowledge, and the Court finds,
               that throughout the marriage, the Husband has had a much greater
               income and earning potential than Wife. This alimony shall be
               taxable to Wife and tax deductible to Husband.

         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). 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).

        The transcript of the ruling from the bench is included in the record, however, the Trial Court
made no findings of fact. Pursuant to the Tennessee Rules of Appellate Procedure, we are limited
to “those facts established by the evidence in the trial court and set forth in the record and any
additional facts that may be judicially noticed or are considered pursuant to rule 14.” Tenn. R. App.
P. 13(c). There was nothing found as a fact to which we may attach the presumption of correctness.
Therefore, we will review the record de novo to determine where the preponderance of the evidence
lies. Brooks v. Brooks, 992 S.W.2d 403 (Tenn.1999); Devorak v. Patterson, 907 S.W.2d 815,
(Tenn.Ct.App.1995); Goodman v. Memphis Park Comm'n, 851 S.W.2d 165 (Tenn.Ct.App .1992);
and Kelly v. Kelly, 679 S.W.2d 458 (Tenn.Ct.App.1984).

        Mr. Telford argues on appeal that Ms. Telford failed to show a substantial change in
circumstance as to justify a modification in the alimony award. Additionally, he argues that the
purpose of alimony is to assist one’s former spouse in maintaining a standard of living to which she
has become accustomed. Mr. Telford asserts that Mr. and Ms. Telford’s standard of living prior to
the divorce was unrealistic as it was based on $80,000.00 of credit card debt plus other unspecified
debt with at least one bankruptcy in the near future. Finally, Mr. Telford argues that because the
$80,000.00 credit card debt was reduced to $4,000.00 and paid in full, Ms. Telford is actually in a

                                                 -3-
better position financially than she was immediately following the divorce and therefore no change
in circumstance exists as to justify a modification of the alimony award.

        Ms. Telford argues that at the time of the divorce the parties contemplated Mr. Telford’s
bankruptcy and included language in the Agreed Order stating that a petition for bankruptcy would
be considered a change in circumstance with respect to modifying the alimony award. Ms. Telford
also argues that alimony is based on one spouse’s need and the other spouse’s ability to pay. She
further asserts that she has demonstrated her need as she was forced to settle an $80,000.00 credit
card debt, incur additional tax liability in the settlement of that debt, borrow $20,000.00 from family
members, and incur attorney fees. Additionally, Ms. Telford argues that in order for her to make her
mortgage payment of $1,120.00 per month and keep the minor child in a private school at $400.00
per month she needs the alimony awarded to her by the Trial Court, and that it was always the
intention of the parties that the minor child remain in the marital home and in private school. These
factors, according to Ms. Telford, justify the increase in alimony. Furthermore, Ms. Telford argues
that Mr. Telford obviously has the ability to pay as he has a 401K with over $4,000.00 available and
a monthly gross income of $2,500.00.

       This Court must first determine whether there has been a substantial and material change in
circumstance to warrant a modification of the original alimony award.T.C.A. 36-5-101(a)(1). We
review the language of the original Agreed Order which states in pertinent part that the parties “also
note that a filing for bankruptcy by Husband would be a change in circumstances on the basis of
which Wife could ask the Court for increased alimony.” We therefore find that Mr. Telford’s filing
for bankruptcy was a substantial and material change in circumstances thereby establishing a basis
upon which Ms. Telford could petition the court for a modification of the original alimony award.

        The purpose of spousal support is to assist the disadvantaged spouse in becoming
self-sufficient and when economic rehabilitation is not feasible, to mitigate the harsh economic
reality of divorce. Anderton v. Anderton, 988 S.W.2d 675 (Tenn.Ct.App.1998); Shackelford v.
Shackelford, 611 S.W.2d 598 (Tenn. Ct. App. 1980). Divorced couples often lack sufficient income
or assets to enable both parties to maintain their pre-divorce standard of living; however, the obligor
spouse may be able to provide some financial assistance to enable the disadvantaged spouse to
approach his or her former financial condition. Anderton v. Anderton, 988 S.W.2d 675 (Tenn. Ct.
App.1998). Need and ability to pay are the critical factors in setting the amount of alimony award.
Smith v. Smith, 912 S.W.2d 155 (Tenn. Ct. App. 1995); Lancaster v. Lancaster, 671 S.W.2d 501
(Tenn. Ct. App. 1984).

        We must first determine whether Ms. Telford is economically disadvantaged as compared
to Mr. Telford, and if so, whether she can be rehabilitated successfully. T.C.A. 36-5-101(d)(1). At
the time of the hearing Ms. Telford was making $30,992.003 per year as an administrative assistant




       3
           The record does not reflect if this is Ms. Telford’s gross annual income or her net annual income.

                                                         -4-
to a regional vice-president for SYSCO Corporation and Mr. Telford was making approximately
$30,480.004 per year as a long-distance truck driver for R. E. West Transportation.

        There is no evidence in the record as to Mr. or Ms. Telford’s level of education or
professional training. According to testimony from Ms. Telford at trial, Mr. Telford previously was
employed at Harpeth Toyota and in 1998 he made $40,095.28, but was terminated from that
employment at some time in 1999. Further, while there is evidence in the record that Mr. Telford
has earned more money in the past than he is currently earning, there was no finding by the Trial
Court that Mr. Telford is intentionally underemployed nor was there any proof at trial to support
such a finding. There is no evidence in the record as to the ages of the parties, physical or mental
health of the parties or any other evidence to demonstrate that Ms. Telford is economically
disadvantaged as compared to Mr. Telford except for the salaries of the parties and Ms. Telford’s
list of monthly expenses. As of the date of this hearing Ms. Telford was making slightly more
money per year than Mr. Telford and without any other evidence to the contrary we find that Ms.
Telford is not economically disadvantaged with respect to Mr. Telford. Therefore there is no basis
for an award of alimony and it is not necessary to review this matter further. We therefore vacate
the alimony award of the Trial Court effective on the date this decision becomes final.

        While it is not necessary to review the needs of Ms. Telford or the ability of Mr. Telford to
pay alimony, this Court will address these matters briefly. Divorce is often economically
devastating. However, during their marriage, the Telfords accumulated at least $80,000.00 in credit
card debt alone, and in addition were paying a mortgage, private school tuition, car payments, and
other unspecified debts. It is evident that Mr. and Ms. Telford were unable to afford the lifestyle
they had become accustomed to. Ms. Telford has argued throughout these proceedings that it was
the intention of the parties that the minor child remain in the home he has grown up in and continue
to attend private school. While their intentions are admirable the reality is that perhaps that is not
and never has been economically feasible for Mr. and Ms. Telford during this marriage or after the
divorce. Mr. Telford’s gross monthly income is $2,540.00. He pays Ms. Telford $500.00 per month
for child support and the Trial Court awarded Ms. Telford $1,000.00 per month in alimony for eight
years without first determining that she was economically disadvantaged as compared to Mr.
Telford. Mr. Telford’s net salary is slightly over $2,000.00 per month. That leaves him
approximately $500.00 per month or $6,000.00 per year to live on. Ms. Telford has a monthly salary
of $2,582.67, she is receiving $500.00 per month in child support and the Trial Court awarded an
additional $1,000.00 in alimony for a total of $4,082.67 or $48,992.04 per year.

       Ms. Telford has submitted monthly expenses of $3,715.98 which include a $1140.33
mortgage payment, $400.00 private school tuition, $200.00 after school care, $50.00 additional
school fees, a mobile phone bill of $56.00, $80.00 for lunch, $400.00 for food, $40.00 for
contributions,5 $30.95 for a home security system, $175.00 per month for gas for one vehicle,

       4
           This is Mr. Telford’s gross annual income.
       5
           The statem ent of exp enses merely stated “con tributio ns” and d id not g ive an y further d etail or explanation
                                                                                                                (con tinued...)

                                                             -5-
$116.25 per month for car tags, car insurance and maintenance, $367.06 car payment for a 1998
automobile, attorney fees of $100.00 per month, and $25.00 per month to Lowe’s. This list is not
exhaustive of the monthly expenses submitted by Ms. Telford, but merely reflects those items which
appear to us as being excessive. The simple fact that one wishes to maintain a certain lifestyle that
she became accustomed to by living on credit cards does not then entitle that person to 75% of her
former spouse’s income in alimony and child support in order to continue it.

                                                   II.

         Mr. Telford’s second issue on appeal is whether the Trial Court erred in granting Ms. Telford
a judgment for $21,040.00 as the amount owing on the property division. Mr. Telford argues that the
Agreed Order limited the time period he was to pay Ms. Telford $2,100.00 per month until which
time the outstanding balance on the two Visa cards was paid. Ms. Telford settled with the credit card
companies reducing the balance from approximately $80,000 to $4,000.00 and paid the balance in
full in March, 2000. Mr. Telford argues that the judgement against him should, therefore, be reduced
from $21,040.00 to $10,540.00 as the Trial Court awarded Ms. Telford a judgment for five additional
months. This issue was not raised at trial and issues not raised by the appellant at trial cannot be
raised in this Court for the first time. The jurisdiction of the Court of Appeals is appellate only.
T.C.A. 16-4-108. “As such the Court of Appeals can only consider such matters as were brought to
the attention of the Chancellor, and acted upon or pretermitted by him.”Clement v. Nichols, 209
S.W.2d 23, 23 (Tenn. 1948).

                                                   III.

         Ms. Telford’s first issue on appeal is whether the Trial Court erred in limiting alimony to eight
years. Because this Court vacated the alimony award of the Trial Court there is no reason to address
this issue.

                                                   IV.

         Ms. Telford’s second issue on appeal is whether the Trial Court erred in failing to grant
retroactive child support. With respect to child support, the agreed order set forth, “the issue of child
support is reserved because the parties have so many debts that need to be paid,” and further stated
that, “this deviation from the guidelines is in the best interest of the child because it permits the child
to stay in the home and school the child is used to.” Child support was set by the Trial Court at
$500.00 per month consisting of $425.00 per month guideline support, $53.00 per month
reimbursement to Ms. Telford for the minor child’s health insurance premium, and $22.00 per month
upward deviation from the child support guidelines as father visits with the child less than the amount
contemplated in the child support guidelines.



          5
           (...continued)
as to w hat ex actly th is constitutes.

                                                   -6-
       Ms. Telford argues that she is entitled to retroactive child support starting from the date of the
divorce, March 25, 1998, or, in the alternative, back to the date of the filing of the Petition to Enforce
and Set Child Support and for Contempt filed on November 18, 1999.

        As for Ms. Telford’s argument that she is entitled to retroactive child support beginning
March 25, 1998, the date of the divorce, we disagree. The parties entered into an Agreed Order which
stated that they were reserving the issue of child support for a future date in order to pay off some of
their debt. Further, the parties agreed that this arrangement was in the best interest of the minor child.
Ms. Telford is not appealing the Agreed Order, but is asking this Court to order child support back
to the date of the Agreed Order even though the Agreed Order specifically reserves child support.
This would effectively set child support at $500.00 per month at the time of the divorce in addition
to Mr. Telford’s property division payment to Ms. Telford of $2,100.00, for a total of $2,600.00 per
month during that period of time. Ms. Telford agreed to reserve the issue of child support and we
therefore find this argument to be without merit.

        As for Ms. Telford’s argument that she is entitled to retroactive child support beginning
November 18, 1999, the date she filed her Petition to Enforce and Set Child Support and for
Contempt, we disagree. Ms. Telford’s petition is seeking an initial setting of child support. She is
asking this Court to apply the child support order retroactively to the date of the filing of her petition.
In Gotten v. Gotten, 748 S.W.2d 430, 431 (Tenn. Ct. App. 1987), this Court held:

                The appellate court acts only upon the record in the case in the trial
                court and when the appellate court enters an order modifying the trial
                court order it is doing what should have been done in the first instance.
                The modification of the trial court order should be effective as of the
                date of the trail court order. Therefore, we hold that a judgment of the
                appellate court reversing or modifying the trial court judgment
                providing for periodic payments of alimony or child support is
                effective as of the date of the trial court judgment, unless the appellate
                court judgment specifies otherwise.

Thus, we hold that the child support order is effective, September 27, 2000, the date the Trial Court
order was entered.

       For the foregoing reasons the judgment of the Trial Court is vacated in part and affirmed as
modified, in part. This cause is remanded to the Trial Court for such proceedings as may be
necessary and for collection of costs below. Costs of appeal are adjudged equally against the
Appellant, Michael Allen Telford, and his surety, and the Appellee, Jacqueline M. Telford.



                                                _________________________________________
                                                HOUSTON M. GODDARD, PRESIDING JUDGE


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