WILMA JEAN LAMPLEY,                  )
                                     )   Williamson Chancery
    Plaintiff/Petitioner/Respondent, )   No. 23651
                                     )
VS.                                  )
                                     )   Appeal No.
GORDON RAY LAMPLEY,                  )   01A01-9708-CH-00423
                                     )
    Defendant/Respondent/Petitioner. )
                                                      FILED
                IN THE COURT OF APPEALS OF TENNESSEE
                     MIDDLE SECTION AT NASHVILLE February 6, 1998

                                            Cecil W. Crowson
       APPEAL FROM CHANCERY COURT OF WILLIAMSON COUNTY
                    AT FRANKLIN, TENNESSEE Appellate Court Clerk

                  HONORABLE H. DENMARK BELL, JUDGE




Honorable Virginia Lee Story
136 Fourth Avenue, South
P.O. Box 1608
Franklin, TN 37065-1608
ATTORNEY FOR PLAINTIFF/PETITIONER/RESPONDENT

Honorable Ernest W. Williams
Honorable J. Russell Heldman
320 Main Street, Suite 101
Franklin, TN 37064
ATTORNEYS FOR DEFENDANT/RESPONDENT/PETITIONER




                      AFFIRMED AND REMANDED



                               HENRY F. TODD
                               PRESIDING JUDGE, MIDDLE SECTION




CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
WILMA JEAN LAMPLEY,                  )
                                     )                 Williamson Chancery
    Plaintiff/Petitioner/Respondent, )                 No. 23651
                                     )
VS.                                  )
                                     )                 Appeal No.
GORDON RAY LAMPLEY,                  )                 01A01-9708-CH-00423
                                     )
    Defendant/Respondent/Petitioner. )




                                     OPINION


       This is a post-divorce decree proceeding in which the defendant husband has appealed

from an unsatisfactory disposition of his counter petition to terminate alimony.



       On January 21, 1997, the wife filed a second “Petition for Enforcement of final Decree

and for Contempt” containing the following:

                        Defendant is in wilful contempt of the lawful Orders
               of this Court by his failure to pay Wife’s health insurance and
               Petitioner would respectfully request that Defendant should
               be punished by powers of civil contempt by incarceration and
               that he be required to pay all medical bills which have been
               incurred by Petitioner as a result of his failure to abide by the
               lawful orders of this Court.

                       That a Show Cause issue requiring the defendant to
               appear and show cause, if any he has, why he should not be
               punished by civil/or criminal contempt and incarcerated until
               he purges himself of contempt by reinstating Wife’s medical
               insurance why he should not be made to immediately pay all
               outstanding medical bills which have been incurred as a result
               of his canceling her insurance or be incarcerated.


       On March 19, 1997, the Trial Court ordered as follows:

                       That Ms. Lampley’s Petition for Contempt is granted
               however, the Court does not impose any sentence upon Mr.
               Lampley for contempt but will require Mr. Lampley to pay
               Ms. Lampley’s attorney’s fees in the amount of One
               Thousand Eight Hundred Twenty Five ($1,825.00) Dollars
               which shall in the nature of additional alimony and not
               subject to bankruptcy.




                                             -2-
               That Mr. Lampley’s Counter-Petition is denied as to
       the termination of alimony and Mr. Lampley shall continue to
       pay the alimony obligation as awarded in the Final Decree of
       Divorce. Further, Mr. Lampley shall immediately resume Ms.
       Lampley’s health insurance coverage and pay all medical bills
       which she has incurred as a result of his not having insurance
       coverage as was available to him through COBRA.



The marital dissolution agreement contained the following provisions:

               2.     REAL PROPERTY. The parties own real
       property located at 7324 Snow Mangrum, Fairview,
       Williamson County, Tennessee which shall be sold and Wife
       will receive the sum of Thirty Thousand and 00/100
       ($30,000.00) Dollars of the equity as a division of marital
       property, with the remaining balance, after payment of real
       estate commission, closing costs and all indebtedness existing
       against said property, shall be paid to Husband.

                The Wife shall continue to reside in the marital
       residence free from interference from Husband and shall pay
       the utilities associated therewith in a timely manner. Husband
       shall pay the mortgage existing on said property and upkeep
       and maintenance pending the sale in a timely manner.
                                     ----
                The parties have will (sic) divide all remaining
       personal property and all property now in the possession of
       each party shall become the party’s sole and separate property
       free of all claims of the other party.
                                     ----
                4.       ALIMONY.        Husband shall pay Wife
       rehabilitative alimony for a period of 60 months at the rate of
       $600.00 per month. Said alimony payments shall begin the
       first day of the first month following the sale of the marital
       residence. Additionally, as rehabilitative alimony. Husband
       shall pay Wife’s health insurance premium through COBRA
       for a period of 36 months or until Wife can qualify the
       TENNCARE.

               5.    INDEBTEDNESS. Husband will pay all
       existing medical bills and each party will pay ½ of the
       Dillard’s account and the furniture bill.         All other
       indebtedness will be paid by the party in whose name the
       indebtedness exists, holding the other party harmless for the
       same.

              6.       FEES AND COSTS. Husband shall pay the
       attorney’s fees in the amount of $500.00 and the costs of this
       cause.

               7.       If it becomes necessary for either party to
       institute legal proceedings to enforce the terms of this instant
       agreement, then the other party shall be responsible for all
       attorney’s fees and costs associated with said enforcement.


                                     -3-
                                         ----
                      17.     In the event that   it becomes necessary for
               either party to seek to enforce     the terms of this instant
               agreement, then the other party    shall be responsible for a
               reasonable attorney’s fees and      the costs of this cause.



       On November 6, 1996, the wife filed a “Petition for Enforcement of Final Decree and for

Contempt.”



       On November 25, 1996, the Trial Court entered the following order:

                       IT IS THEREFORE ORDERED ADJUDGED, AND
               DECREED that the Respondents alimony payments shall be
               paid on the 1st of each month in the amount of $600.00
               pursuant to the Final Decree of Divorce. That said payments
               shall hereafter be paid through the Clerk’s office together
               with a 5% clerk’s fee beginning December 1, 1996 and the 1st
               of each month thereafter pursuant to the Final Decree. That
               balance owing for the alimony payment for the month of
               November, 1996 shall paid immediately to Petitioner.


       On December 5, 1996, the husband filed an “Answer to Petition for Enforcement of Final

Decree and for Contempt and Petition for Termination or Reduction of Alimony Payments Set

Forth in the Final Decree,” containing the following.

                                 COUNTER-PETITION

                      Comes now the respondent, Gordon Ray Lampley, and
               assumes the role of Counter-Petitioner and therefore states as
               follows:

               1.     That on December 28, 1995, a Final Decree was
               entered in this cause which provided for rehabilitative
               alimony at the rate of $600 per month for sixty (60) months
               to begin on the first month following the sale of the marital
               residence. The marital residence was sold in September,
               1996.

               2.      The respondent/counter-petitioner’s personal financial
               situation has drastically changed since the original marital
               dissolution agreement was entered into, even including the
               financial loss that was incurred because of the sale of the
               home.

               3.    It is further alleged that the petitioner, Wilma Jean
               Lampley, is not in need of the rehabilitative alimony
               payments that are being paid on a monthly basis.



                                            -4-
              4.      T.C.A. § 36-5-101(5)(d)(2) states an award of
              rehabilitative, temporary support and maintenance shall
              remain in the Court’s control for the duration of such award
              and may be increased, decreased, terminated, extended or
              otherwise modified, upon showing substantial material
              change of circumstances.

              5.       The respondent/counter petitioner, had a substantial
              material change of circumstances and would show that
              rehabilitative alimony should not only be terminated because
              of this fact but also because lack of need by the petitioner.


                     WHEREFORE,             premises          considered,
              respondent/counter-petitioner prays

              3.     that all rehabilitative alimony payments be terminated
              by the Court upon immediate hearing of this matter.


       On April 18, 1997, the husband filed the following notice of appeal:

                      Please take notice that the Respondent/Counter-
              Petitioner, Gordon Ray Lampley, hereby appeals to the Court
              of Appeals, Middle Section of Nashville, from the Order
              entered by the Chancery Court for Williamson County,
              Tennessee entered the 19th day of March, 1997 wherein the
              Court found Gordon Ray Lampley in contempt of Court and
              awarded attorney fees as additional alimony, not subject to
              bankruptcy, and the Court denied Mr. Lampley’s counter
              petition for the termination of alimony. In addition, the Court
              determined Mr. Lampley liable for all medical bills incurred
              as a result of not having insurance coverage available to him
              through COBRA.


       On December 28, 1995, the Trial Court Entered a “Final Decree of Divorce

containing the following:

                      THIS cause came on to be heard upon Complaint for
              Absolute divorce, Waiver of Service of Process, and Marital
              Dissolution Agreement entered into by and between the
              parties, from all of which it appears that the parties should be
              granted an absolute divorce on the grounds of irreconcilable
              differences, and that the Marital Dissolution Agreement is fair
              and equitable and should be approved by the Court;

                      IT IS THEREFORE, ORDERED, ADJUDGED and
              DECREED, that the parties are granted an absolute divorce
              on the grounds of irreconcilable differences, and the parties
              are restored to all of the rights and privileges of unmarried
              persons.

                   IT IS FURTHER ORDERED, ADJUDGED and
              DECREED, that the Marital Dissolution Agreement is fair

                                            -5-
               and equitable and proper and is hereby approved by the Court
               and made a part of this Final Decree as if set out herein
               verbatim.


       On appeal, the husband presents the following issue:
                      Whether the trial court erred in refusing to terminate
             Mr. Lampley’s obligation to pay Ms. Lampley rehabilitative
             alimony of $600 per month for 60 months and to pay Ms.
             Lampley’s health insurance premium through COBRA for a
             period of 36 months or until she can qualify for Tenn-Care.


       The wife requests attorney’s fees in this appeal.



       Appellant first argues that their marital dissolution agreement was made in the

anticipation that his share of the proceeds of the sale of the marital home would provide the

funds to enable him to pay the agreed periodic alimony, and that the sale price of the home

proved to be inadequate for this purpose.



       Appellant also argues that his varying employment and business ventures since the

divorce have rendered him unable to pay the alimony. His testimony in this regard is

summarized as follows:

                      The August 1996, auction sale of home did not
               produce agreed $30,000 for wife and husband forced to
               contribute $5,795 cash to provide the $30,000.

                       At the time of the divorce, appellant was employed
               as sales manager of General American Insurance and had a
               “real good” year selling real estate with Caldwell Banker of
               Dickson with net take-home pay of $4,020.97 per month.
               He was “doing real well” with 40 to 45 listings and
               expecting listing of 81 lots.


       In February or March 1996, appellant created a business called “Advance Cash”

which was essentially a short-term, high interest small loan business. He created other

associated businesses called Tele-Check, Tele-Trak and Mid State Credit Bureau.



       In 1996, appellant began to work for Caldwell Banker, a real estate sales agency and

had brief success until an associate created another real estate company called ERA and

                                              -6-
obtained the transfer of appellant’s listings to the new company. At the trial, appellant had

only two listings. In January 1997, appellant jointed ERA.



       In February 1997, appellant filed a Chapter 7 Bankruptcy.



       At some point in the development of his separate activities, appellant left his

supervisory employment with American General. Subsequently, he was permitted to resume

work with American General as a sales agent.



       In September 1996, appellant purchased a home for himself and a lady with children.

The payment on the home is $947.00 per month of which appellant pays one-half.



       He pays $257.71 per month on an automobile bought for his daughter.



       He pays $300.00 per month college tuition for his daughter and $223.00 per month

for his son of a previous marriage.



       He is paying $300.00 per month COBRA Health Insurance for himself and son.



       He has an independent license to sell health insurance but is not affiliated with any

insurance company.



       Appellant admits net income of $199.87 per week (about $800.00 per month) which

he “draws” from three of his “stores.” He admits that his commissions on real estate sales

“could be” $800 per month, which would add up to $1,600.00 per month.



       In contrast, appellant insists that appellee now earns $6,652.00 per month, a dramatic

increase from her 1994 gross income of $833.00 per month.



                                              -7-
        Appellant also alleges that, appellee by various means has acquired three real estate

properties. Appellee’s mother gave her two acres containing a residence. Her son-in-law

gave her 2 acres with a trailer home on it which rents for $300.00 per month. She has used

her part of the distribution of the marital estate and a $60,000.00 loan to construct a new

home.



        In short, appellant insists that he made a bad bargain in the property settlement

agreement and that he should therefore be relieved of it; that he is no longer able to pay the

agreed alimony; and that appellee does not need it.



        Appellee responds that the joint earnings of the parties in 1994 were $84,914; in

1995, appellants reported earnings were $63,123.00; and, in 1996, his gross earnings were

$75,472.00.

        The wife points out that her net income from her home cleaning business is only

$1,828.00 per month, and the husband’s admitted net take-home pay was $4,020.97 per

month in 1996.



        It also appears from the evidence that, in 1996, the husband purchased a home jointly

with his paramour and children and that he pays ½ of the $947.00 per month mortgage

payment on the home.



        It also appears that the husband was relieved of $60,000.00 of unsecured debts by a

1996 bankruptcy, and that he owns property at Crossville, Tennessee which the bankruptcy

trustee may claim.



        As stated above, the sole issue presented by appellant is the reduction or termination

of alimony.




                                               -8-
       Alimony is not a required provision in the marital dissolution agreement provided by

T.C.A. § 36-4-104. Nevertheless, the parties saw fit to include alimony in their agreement. It

must be presumed that the alimony provision was part of the inducement or consideration for

the other provisions regarding division of the marital estate. The Courts are justified in being

reluctant to disturb an alimony obligation assumed under such conditions.



       The evidence does not preponderate against the refusal of the Trial Judge to alter the

liability of the husband for alimony.



       The appellee/wife requests the award of attorney’s fees on appeal. As noted above,

the marital dissolution agreement specifically provides that a party who succeeds in a move

to enforce the agreement is entitled to attorney fees. It does not appear from this record that

either party has heretofore invoked this attorney fee provision. No reason occurs to this

Court why the provision should not be enforced.



       Accordingly, the wife is hereby awarded reasonable attorney fees incurred in this

appeal, the amount of same to be ascertained and judgment rendered therefor by the Trial

Court upon remand.




                                              -9-
       The judgment of the Trial Court is affirmed. Costs of this appeal are accessed against

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

with this opinion.



                             AFFIRMED AND REMANDED




                                            HENRY F. TODD
                                            PRESIDING JUDGE, MIDDLE SECTION




CONCUR:



BEN H. CANTRELL, JUDGE



WILLIAM C. KOCH, JR., JUDGE




                                            -10-
