                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                FEBRUARY 17, 2009 Session

    CHRISTOPHER EUGENE RICKMAN v. TRACY ANNA RICKMAN

                   Direct Appeal from the Circuit Court for Shelby County
                         No. CT-002402-02     Kay S. Robilio, Judge



                     No. W2008-01276-COA-R3-CV - Filed May 13, 2009


In this appeal, we are asked to determine whether the trial court erred in finding that the phrase
“taking up residence,” as used in the parties’ marital dissolution agreement, equated to cohabitation,
and in finding that Wife did not cohabitate with an unrelated male in violation of such agreement.
We are also asked to determine whether the trial court erred in finding no material change of
circumstances warranting a modification of Husband’s alimony obligation, and in denying
Husband’s motions to re-open and supplement proof and for a new trial, based on newly-discovered
evidence. We affirm.


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

ALAN E. HIGHERS, P.J.,W.S., delivered the opinion of the court, in which DAVID R. FARMER , J., and
J. STEVEN STAFFORD , J., joined.

Aubrey L. Brown, Jr., Memphis, TN, for Appellant

James O. Parker, Memphis, TN, for Appellee




                                             OPINION
                                    I. FACTS & PROCEDURAL HISTORY

       Christopher Eugene Rickman (“Husband” or “Appellant”) and Tracy Anna Rickman (“Wife”
or “Appellee”) were divorced on May 2, 2003. At the time of the divorce, the parties had two minor
children who have now attained the age of majority. The parties entered into a Marital Dissolution
Agreement (“MDA”) which awarded the 5,000 square foot marital residence (“Eastridge Cove”) to
Wife and provided that Husband would pay to Wife temporary and rehabilitative alimony in the
following amounts: $5,143.00 for the month of May 2003; $7,000.00 per month from June 1, 2003,
to December 31, 2007; and $3,500.00 per month from January 1, 2008, to December 31, 2009. As
additional support to Wife, Husband agreed to pay for Wife’s college education at Christian Brothers
University and law school education, or another educational program “calculated to result in the
award of a post-graduate or other certification.”1 Under the MDA, Husband’s obligation to pay
temporary and rehabilitative alimony terminated “upon the earlier to occur of Husband’s death,
Wife’s death or remarriage, or upon Wife taking up residence with any male person, other than a
blood relation, or upon any such male person taking up residence with Wife.”

        On March 2, 2007, Husband filed a Petition to Modify Final Decree of Divorce as to
Alimony. He alleged four substantial and material changes in circumstances warranting termination,
or alternatively, a reduction, in the alimony being paid by Husband to Wife: (1) that Wife had “taken
up residence” with an unrelated male, Robert Cosenza;2 (2) that Wife’s needs had decreased; (3) that
Wife’s income had increased; and (4) that Wife had completed her education and rehabilitation.3

        Subsequently, on June 8, 2007, Husband filed an Application for Temporary Injunction and
for Suspension of Alimony Payments asking the court to suspend his alimony obligation and to
essentially freeze several of Wife’s accounts in order that she would have funds available to repay
Husband should the court retroactively modify his obligation. In a June 18, 2007 Order the trial court
declined to suspend Husband’s alimony obligation, but enjoined Wife from utilizing the funds held
in a Certificate of Deposit with World Savings Bank. Additionally, the trial court set the issues for
an expedited hearing on July 23, 2007.


       According to Wife, Husband’s counsel asked for and received a continuance on July 23,
2007, because Husband had not yet received responses to his requests for Mr. Cosenza’s financial

         1
            Under the MDA, Husband’s obligation was limited to tuition, fees, books, supplies, and other charges
assessed directly by the institution. A financial cap was placed on Husband’s required contribution, as well as an end
date of May 2007. Additionally, Husband’s obligation terminated if W ife failed to remain enrolled as a full-time student
in good standing, summer included. According to Wife, Husband stopped paying her tuition in the spring of 2004
because he believed she was no longer a full-time student. On appeal, Wife does not seek reimbursement for tuition
expenses.

         2
           Wife admits that she and M r. Cosenza began a sexual relationship prior to the parties’ divorce, which has
continued since the divorce. She states that Husband cited the relationship as grounds for his divorce action.

         3
             On appeal, Husband raises only grounds one and three as warranting modification of alimony.

                                                          -2-
records.4 The hearing was reset for September, but then moved to October 22, 2007, due to
scheduling conflicts.

        On October 22 and October 24, 2007, a hearing was held concerning Husband’s petition.
At the hearing, Wife testified as to her living arrangements. She stated that after the parties’ divorce
in 2003, she moved into Eastridge Cove and remained living there until August 2005, when she
moved to Auburn, Alabama, to pursue a doctoral degree. Wife further testified that she leased an
apartment in Auburn from August 2005 to May 2006, and she provided copies of cancelled rent
checks for that period. Wife testified that she returned to Eastridge Cove for summer break from
May to August of 2006, when Eastridge Cove was sold. In August 2006, Wife returned to Auburn
where she rented a portion of her professor’s home.5 Cancelled rent checks to Wife’s professor were
introduced for the period of August 2006 to January 2007. In January 2007, Wife returned to
Memphis, where she leased a townhome on Sawmill Creek Lane from January 20, 2007 to January
31, 2008.

         Mr. Cosenza also testified at the hearing concerning his living arrangements. Mr. Cosenza
stated that he moved into the Vineyards Apartments in Germantown in 2003 and lived there until
August 2005. He conceded that while he lived at the Vineyards Apartments, Wife spent the night
with him “every so often[,]” but he claimed she did not keep clothing or toiletries there. He also
testified that between 2003 and August 2005, he did not keep clothing or toiletries at Eastridge Cove
and did not have a key to Eastridge Cove, where Wife was living.

         At the hearing, Mr. Cosenza testified that he moved in to Eastridge Cove in August 2005,
after Wife had moved to Auburn.6 He claimed that he paid Wife $1050.00 monthly as rent for the
first floor suite, which included a bedroom and bathroom, as well as pool and kitchen access. At the
hearing, Wife introduced carbon copies of checks and bank statements evidencing monthly payments
of approximately $1050.00 by Mr. Cosenza for the months of September 2005 through May 2006.7
Mr. Cosenza also explained that because Wife’s son was also living at Eastridge Cove, he did not


         4
           Wife claims that although M r. Cosenza did not bring all of the financial documents to his deposition, as
required by the subpoena duces tecum, “he agreed to voluntarily execute the necessary documents to allow Counsel for
Appellant to obtain the missing records.” It is unclear whether the continuance was based on the non-receipt of
documents from the companies or from Mr. Cosenza, himself.

         5
           In her deposition Wife explained that her professor left Auburn University for a sabbatical at St. Joseph’s
University in Philadelphia, Pennsylvania; however, he and his wife returned to their home in Auburn on some weekends.


         6
             In his deposition, on July 20, 2007, M r. Cosenza testified that he moved in to Eastridge Cove in May or June
of 2005. However, at the hearing, on October 24, 2007, he explained that the information he gave in his deposition
was incorrect, as at the deposition he had just completed seven months of chemotherapy treatment which affected his
ability to recall information. The Transcript of Deposition of Robert A. Cosenza dated July 20, 2007, was designated
as an additional portion of the record by Husband on August 28, 2008.

         7
           The April 2006 check was written for $1175.00. Mr. Cosenza testified that the check covered April as well
as “a piece of the month of M ay.”

                                                           -3-
have free reign of the house, and that the portion he did not rent was “pretty much off limits.” He
further testified that he placed a lock on the door to his bedroom to which Wife did not have a key.

        Finally, Mr. Cosenza testified that he remained living at Eastridge Cove until May 13, 2006,
when he leased an apartment at the Arbors of River Oaks in Memphis. At the hearing, he produced
a copy of his lease agreement, dated May 11, 2006, showing a lease term of May 13, 2006 to April
12, 2007.8 Mr. Cosenza extended that agreement and continued to live at the Arbors of River Oaks
until October 12, 2007. However, at the hearing, Husband’s counsel suggested that Mr. Cosenza
continued to reside at Eastridge Cove during the summer of 2006, after Wife returned there. As
evidence of his continued residency, Husband’s counsel introduced Mr. Cosenza’s change of address
information submitted to the post office changing his address from Eastridge Cove to a post office
box, effective August 10, 2006; statements from Mr. Cosenza’s First South Credit Union account
bearing Eastridge Cove as his address through October 31, 2006; Mr. Cosenza’s Teachers’ Credit
Union Statement, bearing Eastridge Cove as his address through at least June 30, 2006; and Mr.
Cosenza’s AmSouth Bank statement bearing Eastridge Cove as his address through October 10,
2006. On cross-examination, Mr. Cosenza explained that he changed his address with AmSouth
Bank prior to that time, and he said that Wife sold Eastridge Cove in August of 2006, and thus that
he could not have been living there beyond that time.

         At the hearing, Wife was questioned extensively concerning overnight stays with Mr.
Cosenza both at Eastridge Cove and in Mr. Cosenza’s apartments. Like Mr. Cosenza, Wife testified
that while Mr. Cosenza lived at the Vineyards Apartments in Germantown–from 2003 to August
2005–she spent the night with him only “on rare occasion” and did not have a key to his apartment.
Furthermore, she corroborated Mr. Cosenza’s testimony that Mr. Cosenza moved in to Eastridge
Cove in August of 2005 and moved out in May of 2006, prior to Wife’s return to Eastridge Cove for
the summer. She also corroborated his testimony concerning his stay at Eastridge Cove. Wife
explained that she allowed Mr. Cosenza to rent a portion of Eastridge Cove in order that her son,
who was attending college in Memphis, could remain in the home. In her deposition, Wife stated
that Mr. Cosenza rented only the downstairs master suite, while her son resided upstairs.9
Furthermore, she stated that she removed her belongings from the downstairs master suite which Mr.
Cosenza occupied, and that he moved his own furniture into his portion of the home. At trial, she
testified that Mr. Cosenza placed a lock on his bedroom door to which Wife had no key, and that he
did not co-mingle his groceries with Wife’s or Wife’s son’s groceries. She further stated that with
the exception of Mr. Cosenza’s renting a portion of Eastridge Cove, the two never had keys to each
others’ residences, never kept clothing or toiletries at each others’ residences and never co-mingled
funds to pay household expenses. Although Wife conceded that she returned to Eastridge Cove
approximately once a month while Mr. Cosenza resided there, she contended that she did not share


        8
           The record also contains a copy of Mr. Cosenza’s pro-rated check to Arbors of River Oaks, dated May 11,
2006, for M ay 2006's rent.

        9
          On August 28, 2008, Husband filed a Designation of Additional Portions of the Record Pursuant to Tennessee
Rules of Appellate Procedure, Rule 24, in which he added to the record on appeal the transcript of the deposition of
Tracy A. Rickman, dated July 20, 2007. ).

                                                        -4-
a bedroom with Mr. Cosenza, but instead slept in her room on the second floor, because her son was
also in the house.

         Wife was also questioned at length concerning trips she made with Mr. Cosenza. Wife
stipulated that she and Mr. Cosenza took twenty trips together, totaling sixty-four days, over a period
of four and a half years. Wife admitted that she and Mr. Cosenza shared a room and a bed during
these trips. However, Wife pointed out that since her divorce in 2003, she had taken forty-five trips,
totaling 131 days, without Mr. Cosenza.

        At the conclusion of the hearing, the trial court took the petition under
advisement.Subsequently, on November 21, 2007, before the trial court ruled on Husband’s petition,
Husband filed a Motion to Re-Open and Supplement Proof. A hearing was held on the motion on
November 30, 2007, wherein Husband alleged that although he subpoenaed American Express and
AT&T Universal (d/b/a “Citibank”) for Mr. Cosenza’s account statements before trial, he did not
receive such until November 15, 2007 and November 26, 2007, respectively.10 Husband claimed that
the statements revealed that from August 2005 to May 2006 Mr. Cosenza spent seventy-eight days
in Auburn, Alabama, while Wife was residing there. He also claimed that the statements revealed
two additional trips by Wife and Mr. Cosenza: a four day trip to California, and a five day trip to
Italy. On December 7, 2007, the trial court entered an Order denying Husband’s motion.

       On January 25, 2008, Husband filed a Second Motion to Re-Open and Supplement Proof.
A hearing was held on the motion on February 8, 2008, where Husband claimed that he received
additional documentation from Regions Bank on January 16, 2008, which allegedly showed that Mr.
Cosenza resided at Eastridge Cove, along with Wife, during the summer of 2006. On March 3,
2008, the trial court entered an Order denying Husband’s second motion.

       On March 24, 2008, the trial court entered an Order Denying Petition to Modify Final Decree
of Divorce as to Alimony, finding that “[t]he conduct of Defendant Tracy Anna Rickman . . . did not
amount to cohabitation with a third-party male to whom she was not related[.]” Subsequently, on
April 23, 2008, Husband filed a Motion for a New Trial, in which he re-alleged the grounds for his
motions to re-open and supplement proof, and added as a ground that by interrupting his
examination, the trial court “effectively prevented Counsel for Plaintiff from fully and thoroughly
examining Robert Cosenza at trial.” On June 5, 2008, the trial court entered an Order Denying
Motion for a New Trial.


                                           II. ISSUES PRESENTED



        10
            The record contains copies of subpoenas duces tecum to American Express and Citibank requesting by
October 19, 2007, statements of the accounts owned by Mr. Cosenza from August 2005 to December 2006. However,
we note that neither document bears the clerk’s signature nor an issue date. Wife does not challenge the issuance of
either subpoena.


                                                        -5-
        Appellant has timely filed his notice of appeal and presents the following issues, slightly
restated, for our review:

1.     Whether the trial court erred in denying Husband’s Petition to Modify Final Decree of
       Divorce as to Alimony, finding Wife had not “tak[en] up residence” with an unrelated male
       in violation of the parties’ MDA;

2.     Whether the trial court erred in denying Husband’s Petition to Modify Final Decree of
       Divorce as to Alimony, finding no material and substantial change in circumstances
       warranting modification; and

3.     Whether the trial court erred in denying Husband’s Motions to Re-Open and Supplement
       Proof and his Motion for a New Trial.

For the following reasons, we affirm the decision of the circuit court.


                                    III.   STANDARD OF REVIEW

        On appeal, a trial court’s factual findings are presumed to be correct, and we will not overturn
those factual findings unless the evidence preponderates against them. Tenn. R. App. P. 13(d)
(2008); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence to preponderate
against a trial court’s finding of fact, it must support another finding of fact with greater convincing
effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005) (citing Walker v. Sidney
Gilreath & Associates, 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. RR
Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999)). When the trial court makes
no specific findings of fact, we review the record to determine where the preponderance of the
evidence lies. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997) (citing Kemp v. Thurmond,
521 S.W.2d 806, 808 (Tenn. 1975)). We accord great deference to a trial court’s determinations on
matters of witness credibility and will not re-evaluate such determinations absent clear and
convincing evidence to the contrary. Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.
1999) (citations omitted). We review a trial court’s conclusions of law under a de novo standard
upon the record with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815,
817 (Tenn. Ct. App. 1989)).


                                           IV. DISCUSSION

                                    A.     “Taking up Residence”

       On appeal, Husband asserts that the circuit court erred when it denied his Petition to Modify
Final Decree of Divorce as to Alimony, finding that “the conduct of [Wife] did not amount to


                                                  -6-
cohabitation with a third-party male to whom she was not related[,]” and thus, that Wife did not
violate the parties’ MDA. As we noted above, the MDA provides that

       [t]he obligations of Husband created herein shall also terminate upon the earlier to
       occur of Husband’s death, Wife’s death or remarriage, or upon Wife taking up
       residence with any male person, other than a blood relation, or upon any such male
       person taking up residence with Wife.

On appeal, Husband offers two alternative arguments concerning the language of the MDA, which
we address below.

                                 1.   Any Residence Owned by Wife

        First, Husband contends that the phrase “taking up residence” does not equate to
“cohabitation,” and had the parties intended such they would have used the term “cohabitation”
explicitly. He notes that “take up” is defined, in the Merriam-Webster Thesaurus, as “to take for
one’s own use (something originated by another)” and that “residence” is defined, in the Merriam-
Webster Dictionary, as “the place where one actually lives as distinguished from one’s domicile or
a place of temporary sojourn” as well as “a building used as a home: DWELLING[.]” Husband
argues that utilizing the “common usage” of these words, the trial court was “required . . . to
terminate [Wife’s] alimony if the court found that at any time [Mr.] Cosenza took for his own use
the home or abode originated by [Wife].” Essentially, Husband suggests that because Wife allowed
Mr. Cosenza–a non-related male–to reside in the home she maintained as her permanent residence,
the MDA was violated, regardless of whether the two resided in the home simultaneously.

        “‘An MDA is a contract and as such generally is subject to the rules governing construction
of contracts.’” Honeycutt v. Honeycutt, 152 S.W.3d 556, 561 (Tenn. Ct. App. 2003) (quoting
Johnson v. Johnson, 37 S.W.3d 892, 896 (Tenn. 2001)). “‘Since the interpretation of a contract is
a matter of law, our review is de novo on the record with no presumption of correctness in the trial
court’s conclusions of law.’” Id. (quoting Witham v. Witham, No. W2000-00732-COA-R3-CV,
2001 WL 846067, at *3 (Tenn. Ct. App. July 24, 2001)).

         “The cardinal rule in the construction of contracts is to ascertain the intent of the parties.”
Id. (citing Bradson Mercantile, Inc. v. Crabtree, 1 S.W.3d 648, 652 (Tenn. Ct. App. 1999)). To
ascertain the parties’ intent, we first look to the plain meaning of the contract’s language. Allstate
Ins. Co. v. Watson, 195 S.W.3d 609, 611 (Tenn. 2006) (citing Planters Gin Co. v. Fed. Compress
& Warehouse Co., 78 S.W.3d 885, 889-90 (Tenn. 2002)). We construe each provision in light of
the entire agreement, Kyle v. J.A. Fulmer Trust, No. W2008-00220-COA-R3-CV, 2008 WL
5156306, at *4 (Tenn. Ct. App. Dec. 9, 2008) (citing Buettner v. Buettner, 183 S.W.3d 354, 359
(Tenn. Ct. App. 2005)), taking the language “in its plain, ordinary, and popular sense.” Honeycutt,
152 S.W.3d at 562 (citing Bradson Mercantile, Inc., 1 S.W.3d at 652). If we find that language clear
and unambiguous, the literal meaning controls. Id. (citing Planters Gin Co., 78 S.W.3d at 890).



                                                  -7-
However, if the language is ambiguous, we must look beyond the literal interpretation of the
language to determine the parties’ intent. Id. (citing Planters Gin Co., 78 S.W.3d at 890).

        “Contractual language ‘is ambiguous only when it is of uncertain meaning and may be fairly
understood in more ways than one.’” Id. (citing Farmers-Peoples Bank v. Clemmer, 519 S.W.2d
801, 805 (Tenn. 1975)). “A provision is not ambiguous simply because the parties interpret it
differently.” Kyle, 2008 WL 5156306, at *4 (citing Staubach Retail Servs.-Se., LLC v. H.G. Hill
Realty Co., 160 S.W.3d 521, 526 (Tenn. 2005); Cookeville Gynecology & Obstetrics, P.C. v. Se.
Data Sys., Inc., 884 S.W.2d 458, 462 (Tenn. Ct. App. 1994)).

        Despite the parties’ now differing interpretations of the phrase “taking up residence,” we find
that the language is not ambiguous, and thus give effect to the plain meaning of the language. We
cannot agree with Husband that the language was intended to relieve Husband of his alimony
obligation should Wife choose to rent her real property to an unrelated male, regardless of whether
Wife resided there, too. We must note that adopting this interpretation would force a violation of
the MDA should Wife choose to rent a residence owned by an unrelated male. Such an
interpretation also ignores the parties’ use of the word “with”; to violate the MDA, Wife must
“tak[e] up residence with” an unrelated male–both Wife and the unrelated male must reside together.
Given its context within a marital dissolution agreement, we find that the phrase “taking up
residence” cannot fairly be interpreted to mean anything other than “cohabitation.” Thus, the trial
court did not err in finding that Wife did not violate the MDA simply by leasing her real property
to an unrelated male.

                                          2. Cohabitation

         Alternatively, Husband argues that even if “taking up residence” means “cohabitation,” Wife
violated the MDA by cohabitating with Mr. Cosenza. As evidence of cohabitation, Husband points
out that prior to moving in to Eastridge Cove, Mr. Cosenza rented an apartment to which Wife was
authorized to have a key. He also claims that while Mr. Cosenza resided at Eastridge Cove, Wife
returned there “no less than one weekend a month and for extended periods during every holiday[.]”
Furthermore, Husband asserts that Mr. Cosenza did not actually move out of Eastridge Cove in May
of 2006 when Wife returned, but instead that the two lived there together from May 2006 to August
2006. Husband alleges that Mr. Cosenza “ran out and rented an apartment” in May of 2006 “in an
effort to maintain some appearance that [he and Wife] were not cohabitating[.]” Finally, as evidence
of cohabitation, Husband cites to “numerous, extravagant and exotic vacations” taken by Wife and
Mr. Cosenza “during which they would share a room and a bed and engage in sexual relations.”

       At trial, Wife admitted that she “on rare occasion” spent the night with Mr. Cosenza at his
apartment prior to her moving to Auburn, Alabama. Both in her deposition and at trial, Wife also
acknowledged that while she was a student at Auburn University, she, at times, returned to Memphis.
From the record, we find approximately forty-four days during the nine-month period of September




                                                 -8-
2005 to May 2006, in which Wife returned to Eastridge Cove while Mr. Cosenza also resided there.11
From the record, we also find approximately twenty-four days between November 21, 2006 and
January 13, 2007, in which Wife returned to Memphis and resided with Mr. Cosenza in his Arbors
of River Oaks apartment.12 At trial, Wife stipulated to taking twenty trips, totaling sixty-four days,
with Mr. Cosenza, during the period of May 2003 to October 2007. Wife conceded that she shared
both a room and a bed with Mr. Cosenza during these trips, but insisted that the two shared expenses.
Wife also pointed out that during the same four and half year period she took forty-five trips, totaling
131 nights, without Mr. Cosenza. Finally, Wife testified in her deposition that she and Mr. Cosenza
have never dated exclusively, and that she has dated other men since her divorce from Husband.

        In Honeycutt v. Honeycutt, 152 S.W.3d 556 (Tenn. Ct. App. 2003), this Court considered
whether a wife “cohabitate[d] with a man not related to her” in violation of a marital dissolution
agreement.13 In that case, Wife asserted that she maintained her own home in Cordova, Tennessee;
however, she stipulated to spending 41 consecutive days in the male’s home in Florida, as well as
206 days in the male’s home during a nine month period, 175 days during an eight month period, and
several trips of unspecified length. Id. at 560, 564-65. Additionally, she admitted to sharing a bed
and engaging in sexual relations with the male during these “visits,” keeping clothing and toiletries
in his home, having a key to his home, having “free run” of the home even when the male was
absent, and contributing to the purchase of groceries and toiletries. Id. at 565. In finding that the
wife cohabitated with the male, we noted that “cohabitation requires a ‘living with’ arrangement,
thus contemplating a continued course of conduct.” Id. at 566. We further cited our Supreme
Court’s explanation of the word “cohabit”:

         Independent of the use of the word continue, the word cohabit, standing alone,
         connotes a fixed rather than a transient condition. The term “cohabit,” says 14 C.J.S.,
         Cohabit, p. 1311, “imports a dwelling together for some period of time, and does not
         include mere visits or journeys” . . . .



         11
            Wife conceded that she returned to Eastridge Cove on the following dates: 9/2/05 to 9/6/05; 10/7/05 to
10/9/05; 11/18/05 to 11/27/05; 12/10/05 to 12/11/05; 12/17/05 to 1/4/06; 1/14/06 to 1/15/06; 4/6/06 to 4/8/06.

         12
           W ife conceded that she stayed with Mr. Cosenza at his apartment on the following dates: 11/21/06 to
11/24/06; 12/11/06 to 1/13/07 (with the exception of four days in Mississippi, six days in a hotel, and trips to Illinois
and Auburn of unspecified length).

         13
             In Honeycutt, an MDA provided that the husband would pay to the wife weekly alimony in futuro until the
occurrence of certain events, including “until such time as Wife . . . cohabitates with a man not related to her.” 152
S.W.3d at 558. In Honeycutt, we noted that Tennessee Code Annotated section 36-5-121(f)(2) (formerly Tennessee
Code Annotated section 36-5-101(a)(3)(A) and (B)), which creates a rebuttable presumption that a current alimony
award is no longer needed when a recipient of alimony in futuro lives with a third person, was inapplicable because the
MDA explicitly provided for the termination of alimony upon such occurrence, rather than merely creating a rebuttable
presumption. Id. at 564 n.5. Despite finding that the statute did not apply, we nonetheless relied on cases applying the
statute to determine whether cohabitation occurred. Therefore, we find it proper to rely on cases considering whether
a party “live[d] with a third person” for purposes of the statute, to determine whether a party cohabitated in violation
of an MDA.


                                                          -9-
Id. (quoting Jones v. State, 184 S.W.2d 167, 169 (Tenn. 1944)).

         On appeal, Husband cites the case of Azbill v. Azbill, 661 S.W.2d 682 (Tenn. Ct. App. 1983)
in support of his position that Wife and Mr. Cosenza cohabitated. In Azbill, this Court affirmed the
trial court’s finding that the wife was “liv[ing] with a third person” where the third party was at her
home “daily, had a key, came in and out as he pleased, had clothes and toilet articles in the house,
and at least on four different occasions spent the entire night in the home.” Id. at 686. However,
we must note that this Court’s decision in Azbill was not based merely on four nights spent together.
Instead, this Court gave great deference to the trial court’s credibility determinations. Before the trial
court, both wife and the third party testified that the third party male never spent the night at the
wife’s home and never kept toiletries or clothing there. Id. at 686-87. Yet, a private investigator
hired by the husband testified that he observed the wife’s home for four nights and found that the
third party spent each of those four nights there. Id. at 685. Likewise, the private investigator
testified that when he entered the home, he noticed both men’s toiletries and clothing. Id.
Additionally, evidence was introduced that the third party listed the wife’s address as his own on his
driver’s license and three years’ tax returns. Id. Evidence further showed that the third party did not
maintain a telephone at his home and that his past utility bills were “very small.” Id. Finding that
the conflicting testimony required a determination of witness credibility, this Court deferred to the
trial court’s ruling absent compelling evidence to the contrary. Id. at 687.


        Finally, in McCullough v. McCullough, No. 01A01-9701-CV-00039, 1997 WL 749459, at
*4 (Tenn. Ct. App. W.S. Dec. 5, 1997), we found no cohabitation warranting a modification of
alimony where uncontradictory evidence showed that an unrelated male stayed overnight with the
wife only “sporadic[ally],” “anywhere from zero to five nights in any given week.” In so finding,
we noted that the male maintained his own residence, and no evidence was introduced that the male
“kept clothing or toiletries at [the wife’s] home, that he had a key to the home, or that he routinely
ate his meals at [the wife’s] home.” Id. at *4.


         In the instant case, we agree with the trial court’s ruling that “[t]he conduct of [Wife] did not
amount to cohabitation with a third-party male to whom she was not related[.]” The evidence before
the trial court revealed the following: 1) Wife and Mr. Cosenza stayed overnight together “on rare
occasion” at Mr. Cosenza’s apartment from May 2003 to August 2005; 2) Wife returned to Eastridge
Cove where Mr. Cosenza was residing for approximately 44 days during the nine-month period of
September 2005 to May 2006; 3) Wife stayed at Mr. Cosenza’s apartment for approximately 24 days
during a seven and a half week break from late-November 2006 to mid-January 2007; and 4) Wife
and Mr. Cosenza shared a bed approximately 64 nights on trips during the course of four and a half
years. Importantly, we note that the trial court found both Wife and Mr. Cosenza to be credible
witnesses. We also note that Husband failed to introduce evidence contradicting Wife’s testimony
that she and Mr. Cosenza did not share a bedroom during her return visits to Eastridge Cove.
Likewise, Husband did not introduce evidence, with the exception of Mr. Cosenza’s renting a portion
of Eastridge Cove, that Wife and Mr. Cosenza kept toiletries or clothing at each others’ residences,


                                                  -10-
that either had keys to the others’ residence,14 or that the two shared household expenses.15 In
support of his contention that Wife and Mr. Cosenza resided together at Eastridge Cove during the
summer of 2006, Husband offered proof that Mr. Cosenza failed to change his address, with the post
office and certain companies, from Eastridge Cove to his new address until October of 2006.
However, because Eastridge Cove was sold in August of 2006, such failure to change his address
certainly did not evidence his living at Eastridge Cove beyond August 2006; therefore, we cannot
find that it evidences his living beyond approximately May 13, 2006–the date of Mr. Cosenza’s lease
at the Arbors of River Oaks Apartments. After reviewing the record, we find that rather than
showing that Wife and Mr. Cosenza shared a “‘common place of abode[,]’” McCullough, 1997 WL
749459, at *4 (quoting Binkley v. Binkley, No. 88-148-II, 1988 WL 97231, at *2 (Tenn. Ct. App.
M.S. Sept. 23, 1988)), the evidence suggested only a “transient condition” including “mere visits or
journeys[.]” Honeycutt, 152 S.W.3d at 566 (quoting Jones v. State, 184 S.W.2d 167, 169 (Tenn.
1944)).


                       B.     Material and Substantial Change of Circumstances


        Next, Husband argues that even if Wife and Mr. Cosenza did not “tak[e] up residence”
together in violation of the MDA, Husband’s alimony obligation should nonetheless be modified due
to a substantial and material change of circumstances. Husband claims such changes include: 1)
Wife’s “mov[ing] her paramour . . . into the former marital residence for at least a year, during which
time . . . he furnished her with additional support of no less than $1,050.00 per month; 2) Wife’s
using her alimony to pay for her education beyond the period which Husband was obligated to pay
for such; and 3) Wife’s using her alimony to pay for the expenses of the parties’ grown children.


       In her Affidavit of Income and Expenses, dated April 30, 2007, Wife listed a net monthly
income of $6,154.67, and total monthly expenses of $8,220.00. Of these expenses, $2852.00 was
for Wife’s education and expenses of the children–leaving a monthly deficit of ($2,075.33). In her
Revised Affidavit, dated October 22, 2007, Wife again listed a net monthly income of $6,154.67,
but amended her monthly expenses to $7,508.00. Of these expenses, $2,104.00 were for Wife’s
education and expenses of the children–leaving a monthly deficit of ($1,353.33).
       Husband contends that if Wife added the $1,050.00 that she received as rent from Mr.
Cosenza during the months of August 2005 to May 2006, and subtracted her education expenses and
the expenses paid on behalf of her children, Wife would have a surplus of $3,000 per month during


         14
            Husband points out that Wife was authorized to have a key to Mr. Cosenza’s apartment at The Vineyard;
however, Mr. Cosenza testified that such authorization only allowed W ife to obtain a key if she “needed to get in [to
his] apartment.” Furthermore, Wife testified that she has never had a key to any of M r. Cosenza’s residences.

         15
            Husband argues that Wife supported Mr. Cosenza by paying the mortgage, the utilities, and the homeowner’s
insurance on Eastridge Cove during the period that Mr. Cosenza resided there. Because it is customary for a landlord
to cover these expenses with rental income, we dismiss Husband’s contention.


                                                        -11-
the period she received rent from Mr. Cosenza and a surplus of $2,000 per month even after his
rental payments ceased.16 Therefore, he argues that Wife’s alimony should be terminated as of
August 2005, or alternatively that her alimony should be reduced to $4,000 per month for the period
of August 2005 to May 2006 and to no more than $5,000 per month from June 2006 through
December 2007.


        Tennessee Code Annotated section 36-5-121(e)(2) provides, in part, that “[a]n award of
rehabilitative alimony shall remain in the court’s control for the duration of such award, and may be
increased, decreased, terminated, extended, or otherwise modified, upon a showing of substantial
and material change in circumstances.” Our Supreme Court, in Bogan v. Bogan, 60 S.W.3d 721
(Tenn. 2001), explained:
        [A] change in circumstances is considered to be “material” when the change (1)
        “occurred since the entry of the divorce decree ordering the payment of alimony”
        Watters [v. Watters,] 22 S.W.3d [817,] 821, and (2) was not “anticipated or [within]
        the contemplation of the parties at the time they entered into the property settlement
        agreement[.]” [I]d.; see also McCarty v. McCarty, 863 S.W.2d 716, 719 (Tenn. Ct.
        App. 1992); Elliot v. Elliot, 825 S.W.2d 87, 90 (Tenn. Ct. App. 1991). Morever, a
        change in circumstances is considered to be “substantial” when it significantly affects
        either the obligor’s ability to pay or the obligee’s need for support. See Bowman v.
        Bowman, 836 S.W.2d 563, 568 (Tenn. Ct. App. 1991).


Bogan, 60 S.W.3d at 728.


         As the party seeking relief on the grounds of a substantial and material change of
circumstances, Husband bears the burden of proving such changed circumstances warranting
termination or a reduction in the amount of his alimony obligation. Watters, 22 S.W.3d at 821
(citing Seal v. Seal, 802 S.W.2d 617, 620 (Tenn. Ct. App. 1990)). Once the party seeking the relief
proves such grounds, the court should then “weigh the same criteria that were considered in making
the initial alimony award.” McCullough, 1997 WL 749459, at *4 (citations omitted). These factors
are enumerated in Tennessee Code Annotated section 36-5-121(i). “‘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, 22 S.W.3d at 821 (quoting Wilkinson v. Wilkinson, Shelby Law No. 69,
1990 WL 95571, at *4 (Tenn. Ct. App. W.S. July 12, 1990)).




        16
            These surplus calculations include in Wife’s net monthly income, her monthly graduate assistant stipend
of $1,250, which ended on May 15, 2007.


                                                       -12-
        We first address Husband’s contention that Wife’s monthly receipt of $1,050.00 rent from
Mr. Cosenza during a nine-month period constituted additional income sufficient to warrant a
modification of alimony. Husband is correct that during the period of August 2005 to May 2006,
Mr. Cosenza paid Wife $1,050.00 per month to live at Eastridge Cove. However, the record reveals
that during that same period, a mortgage existed on Eastridge Cove which Wife paid, presumably
with the rental income from Mr. Cosenza. Wife was not simply “pocketing” the rental income, but
it appears she used the rental income to pay her mortgage and used her alimony to pay her rent in
Auburn. Thus, Wife’s temporary rental expenses offset her temporary rental income. Because
Wife’s receipt of Mr. Cosenza’s rent did not increase Wife’s disposable income, we find that such
income is not a substantial and material change of circumstances warranting a modification of
alimony.


        Next we address Husband’s claim that because Wife used her alimony to cover her
educational expenses–which Husband was no longer required to pay–that Wife should be compelled
to reimburse Husband for such educational expenses. Husband maintains that “[i]t was . . . not
contemplated that [he] would continue to pay for [] Wife’s education beyond the extent that he
expressly obligated himself to do in the [MDA.]” We find Husband’s claim without merit. The
parties’ MDA provided under the heading “Temporary and Rehabilitative Alimony,” that Husband
would provide certain monthly support to Wife through December 2009. It further provided that
“[a]s additional support for Wife,” Husband would pay certain educational expenses for Wife,
including the expense of an undergraduate education at Christian Brothers University “so long as
Wife remain[ed] enrolled as a full-time student . . . in an undergraduate educational program
designed to result in the award of a baccalaureate or lesser degree in or before the summer of 2004,”
and the expense of a law degree from the University of Memphis if Wife enrolled in a “post graduate
program designed to result in the award of a Juris Doctor degree in or before May of 2007.” The
MDA clearly stated that “Husband’s obligation to fund Wife’s education shall not extend beyond
the conclusion of the spring semester of 2007.” Based on this language, Husband argues that Wife
should not have been permitted to use funds from her monthly alimony support to fund her education
beyond the spring of 2007. However, Husband overlooks additional language in the MDA which
provides:
       In the event Wife does not gain acceptance to law school, Husband will pay the
       expenses, as set forth above and subject to the same limitations, for whatever other
       educational program Wife chooses to pursue in lieu of law school, up to and through
       the end of the spring term of 2007, provided the same is calculated to result in the
       award of a post-graduate or other certification, regardless of whether said degree or
       certification is awarded after the Spring term of 2007. (emphasis added).


From the foregoing language, it is clear that when the parties entered into the MDA, they
contemplated that Wife might continue to pursue her education beyond the period in which Husband
was required to provide “additional support” for such. Therefore, we find that it was within the
parties’ contemplation that Wife would be required to fund her education from the income she
received, including her monthly alimony payment from Husband. As such, Wife’s using her monthly

                                                -13-
alimony payment to fund her educational expenses was not a substantial and material change of
circumstances warranting a modification of alimony.


        Finally, we address Husband’s claim that Wife should be required to reimburse him for the
alimony she used for the benefit of the parties’ grown children, as Husband was no longer required
to support them. Wife contends that the monies used to benefit the children were paid from her
“accumulated funds” rather than from her alimony. In support of this contention, Wife points out
that in her original affidavit of income and expenses her net monthly income was ($2,075.33),17
while the amount expended for her children was only $1,987.00. Likewise, Wife cites to her revised
affidavit of income and expenses showing her net monthly income was ($1,353.00), while the
amount expended for her children was only $1,239.00. Wife claims that because the amounts spent
from her accumulated funds were greater than the amounts spent on her children, the accumulated
funds, rather than the alimony, were used for the children. Because Husband has failed to introduce
evidence showing that Wife used her alimony payments towards the expenses of the parties’
children, we find that the evidence does not establish a substantial and material change of
circumstances warranting modification.18


                    C. Motions to Re-Open and Supplement and for a New Trial


       Finally, Husband argues that the trial court erred in denying his motions to re-open and
supplement proof and for a new trial. We address each argument below.


                                         1.   Re-Open and Supplement


       At the hearing on Husband’s first motion to re-open and supplement proof, Husband claimed
that while Wife attempted at trial to “minimize[] the frequency of her . . . overnight stays [with Mr.
Cosenza] while she was at Auburn,” newly-received credit card statements from American Express
and Citibank revealed that “during the time [that Wife] was at school at Auburn she and [Mr.]
Cosenza were spending almost every single weekend together, either at her and [Mr.] Cosenza’s
residence in Memphis, [] Wife’s residence at Auburn, or at whatever hotel they were staying at


         17
           “Net monthly income” is used to show alimony income minus expenses. Therefore, amounts shown in
parentheses indicate that Wife’s expenses exceeded Husband’s alimony obligation.

         18
            In so finding, we note that W ife’s argument may not stand for the period prior to M ay 15, 2007, when Wife
was acting as a graduate assistant. If we add Wife’s $1250.00 monthly stipend to her income listed in her original
affidavit and subtract her educational expenses of $865.00 from her listed expenses, we find that Wife’s net monthly
income was $9.47. Because the alimony she received was greater than her expenses, any payments towards the children
presumably w ould have come from her alimony. However, Wife’s original affidavit was dated April 30, 2007.
Therefore, we cannot be certain of Wife’s income and expenses prior to the ending of her assistantship, and Husband
has offered no proof regarding such.


                                                        -14-
during one of their numerous vacations together, and every major holiday together[.]” The trial court
denied Husband’s motion, but allowed him to make an offer of proof. In his offer of proof, Husband
alleged that the statements showed that Mr. Cosenza was in Auburn, while Wife was a student there,
for approximately eighty-five days during the ten-month period of August 2005 to May 2006.19
Additionally, he claimed that the statements showed that Wife and Mr. Cosenza took a four-day trip
to California in October of 2005 and a five-day trip to Italy in March of 2006.


        On appeal, Wife argues that Husband failed both at the deposition and at trial to question
either Mr. Cosenza or Wife regarding any trips Mr. Cosenza made to Auburn, even after Wife listed
Mr. Cosenza as an overnight visitor at Auburn in response to Husband’s interrogatory. Wife
maintains that Husband’s failure, prior to trial, to pursue the theory that Mr. Cosenza visited Wife
in Auburn should not be grounds for re-opening the proof. She also contends that Husband failed
to exercise due diligence in obtaining Mr. Cosenza’s credit card statements. However, Husband
counters this contention by stating that Mr. Cosenza’s failure to bring the required documents to his
July 20, 2007 deposition necessitated Husband’s subpoenaing the credit card companies, themselves,
and he provides a lengthy explanation as to why this was not done until so near to trial.


        “Permitting additional proof, after a party has announced that proof is closed, is within the
discretion of the trial court, and unless it appears that its action in that regard has permitted injustice,
its exercise of discretion will not be disturbed on appeal.” Simpson v. Frontier Cmty. Credit Union,
810 S.W.2d 147, 149 (Tenn. 1991) (citing State v. Bell, 690 S.W.2d 879, 882 (Tenn. Crim. App.
1985)). We need not address whether Husband acted with due diligence in obtaining Mr. Cosenza’s
credit card statements because we find that the information contained within them would not have
affected the outcome of the matter. See Long v. Miller, No. E2006-02237-COA-R3-CV, 2007 WL
2751663, at *9 (Tenn. Ct. App. Sept. 21, 2007) (“An erroneous exclusion of evidence requires
reversal only if the evidence would have affected the outcome of the trial had it been admitted.”)
(citing Pankow v. Mitchell, 737 S.W.2d 293, 298 (Tenn. Ct. App. 1987)). After reviewing Mr.
Cosenza’s Citibank and American Express credit card statements, we find that the statements show,
at most, that Mr. Cosenza was in Auburn for thirty-four days during the seventeen-month period of
July 2005 to December 17, 2006. We cannot presume, as Husband does, that charges incurred in
Fulton, Mississippi, Birmingham, Alabama, and Prattville, Alabama–approximately 225, 109, and
70 miles from Auburn, Alabama, respectively–indicate that Mr. Cosenza was visiting Wife in
Auburn. Even giving Husband the benefit of days where Mr. Cosenza incurred two charges within
five days of one another, without making purchases in other cities in between, we find the statements
reveal merely thirty-four days, rather than eighty-five days, that Mr. Cosenza spent in Auburn.
Additionally, we note that although Mr. Cosenza’s statements may show that he was in California
and Italy during the periods that Husband suggests, they do not indicate that Wife was accompanying


         19
             These dates include: 8/19/05 to 8/21/05; 8/26/05 to 8/29/05; 9/10/05; 9/15/05 to 9/21/05; 10/14/05 to
10/17/05; 10/28/05 to 10/30/05; 11/4/05 to 11/9/05; 12/2/05 to 12/10/05; 1/8/06 to 1/14/06; 1/15/06 to 1/17/06; 1/20/06
to 1/24/06; 1/27/06 to 1/30/06; 2/11/06 to 2/12/06; 2/24/06 to 2/26/06; 3/4/06 to 3/7/06; 3/11/06 to 3/17/06; 3/23/06 to
3/24/06; 4/14/06 to 4/18/06; 4/28/06 to 5/3/06.


                                                         -15-
him. We find that this evidence was insufficient to affect the trial court’s determination; therefore,
we find the trial court did not abuse its discretion in denying Husband’s first motion to re-open and
supplement proof.


        In his second motion to re-open and supplement proof, Husband claimed that supplemental
documentation from Regions Bank, which was received after the deadline set forth in the subpoena,
provided evidence that Mr. Cosenza lived in Eastridge Cove during the summer of 2006, when Wife
was also residing there. This documentation included “a checking account deposit fil[l]ed out by
Robert Cosenza and dated May 23, 2006, upon which Mr. Cosenza hand wrote his address [as] . .
. Eastridge Cove[,]” as well as “an additional pre-printed deposit slip presented by Mr. Cosenza on
June 23, 2006,20 which reflected, without correction, his address as the Eastridge Cove address.”
Finally, Husband claimed the Regions Banks documentation revealed that “every check written by
Mr. Cosenza on the account during the summer of 2006 (from and after May 13, 2006, through
August 2006) continues to bear, without correction, the pre-printed Eastridge Cove address.” At the
hearing on Husband’s second motion, the trial court denied his motion as well as his request to make
an offer of proof; however, included in the record is a deposit slip dated May 23, 2006, on which Mr.
Cosenza hand wrote Eastridge Cove as his address, as well as a deposit slip posted on June 26, 2006,
with Eastridge Cove pre-printed, and uncorrected, as Mr. Cosenza’s address.21


        Again, we find that the documentation would not have affected the trial court’s
determination, and therefore, that the trial court did not err in denying Husband’s second motion.
At the hearing on Husband’s petition to modify alimony, Husband’s counsel introduced a carbon
copy of a check dated May 18, 2006,22 on which Mr. Cosenza crossed out the pre-printed address
and hand wrote Eastridge Cove as his address. Mr. Cosenza maintained that his actions did not
mean that he was residing at Eastridge Cove at the time, but instead he explained that he “had a
checkbook full of checks [he] changed addresses on because [he] was too cheap obviously to buy
new checks.” We do not find Mr. Cosenza’s failure to correct his address on a pre-printed deposit
slip necessarily indicates that he was living at Eastridge Cove at the time. Although a closer call,
we likewise do not find that his affirmatively listing Eastridge Cove as his address on a blank deposit
slip indicates such. Accordingly, we conclude that the trial court did not err in denying Husband’s
motion to re-open and supplement proof.



                                                   2. New Trial


        20
             Mr. Cosenza did not date the deposit slip, but it was posted on June 26, 2006.

        21
             Also included in the record is a deposit slip, bearing no address, dated August 27, 2006.

        22
            The check appeared to be dated May 18, 2008; however, Mr. Cosenza testified that based on the check
sequence, the correct date must have been May 18, 2006.


                                                         -16-
        Finally, on appeal, Husband argues that the trial court erred in denying his motion for a new
trial. Husband contends that had the trial court considered the “newly discovered evidence”–the
documentation from American Express Citibank, and Regions–“it would have been constrained to
find that [] Wife and [Mr.] Cosenza were in fact cohabitating, not to mention taking up residence
with one another.”23


         Whether a new trial should be granted based on newly discovered evidence is within the
discretion of the trial judge. Collins v. Greene County Bank, 916 S.W.2d 941, 945 (Tenn. Ct. App.
1995) (citing Seay v. City of Knoxville, 654 S.W.2d 397 (Tenn. Ct. App. 1983)). The party moving
for a new trial “must demonstrate that the new evidence was not known prior to or during trial and
that it could not have been ascertained by the exercise of reasonable diligence.” Id. The trial court
must also consider whether the newly discovered evidence would affect the outcome of a new trial.
Id. (citing Leeper v. Cook, 688 S.W.2d 94 (Tenn. Ct. App. 1985)).


        We need not consider whether Husband exercised reasonable diligence in attempting to
ascertain the documentation from American Express, Citibank, and Regions Bank, because, as we
noted above, such documentation would not have affected the outcome of the trial. Accordingly, we
affirm the trial court’s denial of Husband’s Motion for a New Trial.


                                                 V. CONCLUSION


         For the aforementioned reasons, we affirm the decision of the circuit court. Costs of this
appeal are taxed to Appellant, Christopher Eugene Rickman, and his surety, for which execution may
issue if necessary.




                                                                 ___________________________________
                                                                 ALAN E. HIGHERS, P.J., W.S.




         23
            In his Motion for a New Trial, Husband alleged as an additional ground for a new trial, that “it was error for
the Court to interrupt and direct the examination of Robert Cosenza by Counsel for Plaintiff at trial[, and] [t]he Court’s
actions effectively prevented Counsel for Plaintiff from fully and thoroughly examining Robert Cosenza at trial[.]”
Husband does not raise this ground on appeal.


                                                          -17-
