Nancy Maureen Jarman v. Franklin N. Jarman

10/31/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

July 10, 2018 Session

NANCY MAUREEN JARMAN v. FRANKLIN N. JARMAN

Appeal from the Circuit Court for Davidson County

No. 74538 Philip E. Smith, Judge

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No. M2017-01730-COA-R3-CV

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This appeal arises from competing post-divorce petitions to increase, modify

and/or terminate alimony in futuro and an award of attorney’s fees arising therefrom. In

the parties’ 1975 divorce decree, the husband was ordered to pay alimony in futuro to the

wife, which was subsequently modified in 1980, and most recently in 2003. In 2016, the

former wife petitioned the court to increase alimony, which the former husband answered

by filing a counter-petition to reduce or terminate alimony. The trial court denied both

petitions and awarded the former wife attorney’s fees. Both parties appeal. We affirm.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT, J. joined. W. NEAL MCBRAYER, J., filed a separate concurring and dissenting

opinion.

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

Nancy Maureen Jarman.

Gregory D. Smith, Brenton H. Lankford, and Ann Ralls Niewold, Nashville, Tennessee,

for the appellee, Franklin M. Jarman.

OPINION

Nancy Maureen Jarman (“Wife”) and Franklin N. Jarman (“Husband”) were

married in 1970 and divorced on January 3, 1975. In the Final Decree of Divorce,

Husband was ordered to pay alimony in futuro to Wife in the amount of $3,100 per

month for the first eleven months, and $2,400 per month thereafter until Wife’s death or

remarriage. The divorce decree did not include a contractual provision regarding an

entitlement to recover attorney’s fees in the event either party sought or opposed a post-

divorce petition to modify or terminate alimony.

On March 5, 1980, the trial court modified Husband’s alimony obligation,

reducing the amount to $600 per month. Thereafter, by an order entered December 12,

2003, the trial court increased Husband’s alimony obligation to $1,000 per month.

On March 24, 2016, Wife filed a petition to increase alimony, alleging that “since

the entry of the last Order affecting alimony in this matter, there has been a material and

substantial change of circumstances justifying an increase in the amount of alimony.”

Husband filed an answer and counter-petition to terminate or reduce his alimony

obligation.

Trial took place over three non-consecutive days in February, April and May

2017, where Husband and Wife were the only witnesses. At the time of trial, Wife was 76

years old, and Husband was 85.

Wife testified that the last time she had a fulltime job was in 2000, which was

prior to the 2003 modification order, although she did do some consulting work brokering

and selling art pieces in 2003. More recently, Wife worked as an in-home caretaker

performing household tasks for her client, such as cooking, cleaning and caring for her

client’s pet, in exchange for room and board. Wife has been working and living with her

current client since December 2016, when she returned to Nashville. Prior to that, she

lived in Austin, Texas and had the same working and living arrangement with another

client.

Before becoming an in-home caretaker, Wife lived in an extended stay motel in

Texas. Wife testified that the motel was riddled with drug dealing and prostitution. Wife

stated that she moved into the motel to escape a condominium that had become hazardous

to her health. Wife claimed that she had to go to the emergency room three or four times

in the year she lived in the condominium from being exposed to drug fumes in her

housing complex. Wife testified that she was evicted from the condominium because she

refused to pay rent due to “the circumstances [she] was living under.”

Wife testified that she could not afford to live on her own, explaining that if she

could afford to live independently, she would do so. Wife said she looked at apartment

complexes on “Harding Road or West End, [and] Broadway” and a couple on “Hillsboro

Road,” but went on to say “they were just absolutely awful and overpriced.” Wife

elaborated that “because of the real estate market and the cost of renting these days in a

safe place, in a good location … [she] really only … found one place to rent near where

[she] live[s] right now, and the rent is $2,800.” On cross-examination, Wife was asked if

she found any potential apartments for less than $2,800, and she responded that she found

apartments between $2,000 and $2,200, but they “were dumps, if you know what a dump

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is.” Wife further testified that she found a one-bedroom apartment for $1,629 per month,

but said it was “subpar.” Wife admitted that she confined her search for apartments to her

current area of Nashville, which is Belle Meade and West End. Wife also acknowledged

that she had only owned one home since the parties’ divorce in 1975, which she sold

shortly after the 1980 alimony modification order.

Wife explained she has not had a car since her vehicle was stolen in 2010 and that

she could not afford to replace it. She also stated that in 2000, while living in Texas, she

“lost a lot of things in a flood,” and “had a number of robberies and that sort of thing.”

Wife admitted that she has been unable to make ends meet on numerous occasions, has

been forced to sell possessions such as jewelry and paintings, and has borrowed money

from friends that she intends to pay back. Wife testified that she owes $2,000 to one

friend, $600 to another, and has not been able to pay her attorney to represent her in this

case. Wife claimed that the only possessions of value she had to her name were some

photographs, a few pieces of art, a fur coat, and some furniture. When questioned further,

Wife admitted she owned a few pieces of jewelry worth a few thousand dollars that she

forgot to disclose during the discovery process.

Regarding her employment, Wife admitted that she has not looked for any other

jobs since moving back to Nashville in late 2016. Her monthly gross income is $1,729,

which consists of $729 per month in social security income and $1,000 per month Wife

receives in current alimony from Husband.

As for Husband, he married his current wife in 1976, and they live in a home he

owns that is valued at more than $1.2 million. He also owns property on Center Hill Lake

and multiple vehicles. Husband has not been gainfully employed since his last employer,

Wellness Environments, closed in December 2016. Although he was 85 years old and not

working at the time of trial, Husband insisted that he was not retired. Husband has an

annual income of approximately $81,000, which consists of a monthly pension from

Genesco, his former employer, as well as monthly social security and veterans’ disability

income. His wife’s annual income as an interior designer is approximately $38,000, and

she receives an additional $15,000 to $20,000 annually in obligatory distributions as the

beneficiary of a trust. Husband testified that he paid their taxes, but stated that he could

not comment on the value of his wife’s separate assets, and claimed he did not know how

much she contributed to their monthly living expenses.

The meager evidence Husband provided in discovery indicated that his monthly

discretionary spending far exceeded his monthly income of $6,760.40. Husband’s

monthly expenditures included, inter alia, approximately $800 per month for his country

club membership, approximately $4,100 per month for a million-dollar life insurance

policy benefitting his current wife, approximately $1,200 per month spent on repaying

school loans for their adult children, $520 per month for a hired

groundskeeper/housekeeper, and approximately $200 per month on alcohol. Husband

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testified that he provided the majority of financial support for his current wife and paid

most of their bills.

When asked how he could continue to pay expenses that significantly exceeded his

income, Husband testified he would “work it out” and that certain cuts to his

discretionary spending were “on the planning table.” Husband claimed he did not know

the current value of his stocks nor did he know what happened to the stock he previously

had in Genesco that was worth approximately one million dollars at the time of the

parties’ divorce in 1975. The trial court found Husband was evasive in many of his

answers and said that many of Husband’s answers were not believable. The trial court

surmised that Husband was attempting to hide his income from the court. Accordingly,

the trial court gave greater weight to Wife’s testimony which he found to be more

credible.

On August 29, 2017, the trial court issued a memorandum opinion and order. It

found that although Wife’s financial needs had increased, Wife failed to show that her

increased needs were unforeseeable or unanticipated at the time of the last order in 2003.

Hence, the court denied her petition on the ground that she failed to prove a material

change in circumstances.

As for Husband’s counter-petition, the trial court found that Husband proved a

substantial and material change in circumstances; however, he failed to prove that the

requested modification was appropriate under the circumstances, given the vast disparity

in assets and income between the parties. Therefore, the trial court denied Husband’s

counter-petition to terminate his alimony obligation and awarded Wife attorney’s fees in

the amount of $14,000. This appeal followed.

ISSUES

Each party presents one issue. Wife contends the trial court erred in failing to find

that she proved a material and substantial change of circumstances justifying an increase

in alimony in futuro. For his part, Husband contends the trial court erred in awarding

attorney’s fees in any amount to Wife; however, he does not challenge the amount of the

award.

STANDARD OF REVIEW

On appeal, we review the trial court’s findings of fact de novo upon the record,

with a presumption of correctness unless the preponderance of the evidence is otherwise.

Tenn. R. App. P. 13(d). “Because modification of a spousal support award is factually

driven and calls for a careful balancing of numerous factors, a trial court’s decision to

modify support payments is given wide latitude within its range of discretion.” Bogan v.

Bogan, 60 S.W.3d 721, 727 (Tenn. 2001) (citations omitted). In particular, the issue of

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“whether there has been a sufficient showing of a substantial and material change of

circumstances” is in the trial court’s sound discretion. Id. at 727 (quoting Watters v.

Watters, 22 S.W.3d 817, 821 (Tenn. Ct. App. 1999)). Accordingly, on appeal we are

“generally disinclined to second-guess a trial judge’s spousal support decision.”

Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011) (quoting Kinard v. Kinard,

986 S.W.2d 220, 234 (Tenn. Ct. App. 1998)).

As for attorney’s fees, in the absence of a contractual provision, we review the

issue of whether a party in a proceeding to modify alimony is entitled to an award of

attorney’s fees pursuant to the abuse of discretion standard.1 See (Cooley) v. Cooley, 543

S.W.3d 674, 682 (Tenn. Ct. App. 2016); Malkin v. Malkin, 475 S.W.3d 252, 263 (Tenn.

Ct. App. 2015); Tenn. Code Ann. § 36-5-103(c); see also Eberbach v. Eberbach, 535

S.W.3d 467, 479 n. 7 (Tenn. 2017) (“[W]ith regard to a trial court’s award of attorney’s

fees under [Tenn. Code Ann. §] 36-5-103(c), the Court of Appeals’ standard of review is

abuse of discretion for both the issue of whether the party is entitled to an award and the

issue of the amount of the fees awarded.”).

ANALYSIS

I. MODIFICATION OF ALIMONY IN FUTURO

Alimony in futuro provides long-term support until the death or remarriage of the

recipient and “may be increased, decreased, terminated, extended, or otherwise modified,

upon a showing of substantial and material change in circumstances.” Cooley, 543

S.W.3d at 682 (quoting Tenn. Code Ann. § 36-5-121(f)(2)(A)); Gonsewski, 350 S.W.3d

at 107. A change in circumstances is “‘substantial’ when it significantly affects either the

obligor’s ability to pay or the obligee’s need for support.” Bogan, 60 S.W.3d at 728. A

change in circumstances is “material” when the change occurred since the original

alimony award, and the change was not anticipated or contemplated by the parties at the

time of the award. Id. (citing Watters, 22 S.W.3d at 821). Additionally, the change in

circumstances “must have occurred since the original award.” Brewer v. Brewer, 869

S.W.2d 928, 935 (Tenn. Ct. App. 1993).2

1

If the issue is whether a former spouse is entitled to attorney’s fees pursuant to a provision in a

marital dissolution agreement, “the proper standard of review is de novo because the issue is a question of

law.” Eberbach, 535 S.W.3d at 479 n. 7. “Our courts long have observed at the trial court level that

parties are contractually entitled to recover their reasonable attorney’s fees when they have an agreement

that provides the prevailing party in a litigation is entitled to such fees.” Id. at 478 (citations omitted).

2

If the petitioner establishes the existence of both a substantial and a material change in

circumstances, then the petitioner must overcome an additional hurdle, which is proving that he or she is

entitled to a modification. Covarrubias v. Baker, No. E2016-02316-COA-R3-CV, 2017 WL 6276230, at

*4 (Tenn. Ct. App. Dec. 11, 2017). For the petitioner to be entitled to a modification of his or her alimony

(continued…)

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Here, Wife relies on the fact that her “need has increased” to prove a material

change of circumstances. The trial court denied Wife’s petition, finding that she failed to

prove a material change in circumstances because she could not show that the changes

she relied on were not anticipated or contemplated by the parties at the time of the 2003

modification. In its Memorandum Opinion and Order, the trial court noted,

There is no other change of circumstances alleged in [Wife’s] petition other

than her increased need. There is no allegation as to why her need has

increased since the previous order of 2003. . . . nor has she shown that the

need was unforeseeable at the time of the previous order in 2003.

[Wife]’s increased need may well constitute a substantial change of

circumstances. However, [Wife] has failed to show a material change in

circumstances. Therefore, the Court has no choice but to dismiss her

Petition to Increase Alimony.

As the petitioning party, Wife has the burden of proving that there has been both a

substantial and material change in circumstances since the parties’ modified alimony

support order was entered in 2003. Bogan, 60 S.W.3d at 727–28; Tenn. Code Ann. § 36-

5-121(a). A change in circumstances is considered to be “material” when the change was

not anticipated or contemplated by the parties at the time of the award and the change

occurred since that time. Id. at 728 (citing Watters, 22 S.W.3d at 821).

At oral argument, counsel for Wife argued that having no job, no vehicle, and no

housing was materially different than her circumstances at the time the current alimony

order was ratified in 2003. We note, however, that Wife did not have a fulltime job in

2003; therefore, her lack of fulltime employment now cannot serve as a material change.

We also note that Wife’s monthly income, which is limited to her alimony and social

security benefit, is substantially the same as it was in 2003.

As for her housing situation, Wife states that she cannot afford to buy a house or

rent an apartment in Nashville. The record reflects that Wife has only owned one home

since the 1975 divorce, which she sold after the 1980 modification and before the 2003

modification order was entered. As for the cost of renting an apartment, it was not

unforeseeable that the cost of rental housing would have increased. Thus, this

circumstance, although unfortunate, cannot serve as a factual basis for a material change

of circumstance.

obligation, the petitioner must establish that the modification is justified based upon the same factors that

are relevant to the initial award of alimony. Bogan, 60 S.W.3d at 730. “Those factors are found in Tenn.

Code Ann. § 36-5-121(i) and include, inter alia, the relative earning capacity, financial resources,

education, and separate assets of each of the parties.” Covarrubias, 2017 WL 6276230, at *4.

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As for the theft of her car, that specific circumstance was not reasonably

foreseeable. Nevertheless, one must anticipate, or foresee, a few bumps in the road as the

years go by. This modest loss, standing alone, is insufficient to constitute a material

change of circumstances.

Wife also testified that she experienced unanticipated medical expenses due to

drug fumes she was exposed to in her housing complex in Texas. Although she states that

she went to the emergency room on several occasions, Wife presented no evidence of the

medical expenses she incurred. Thus, the mere fact that she found it necessary to seek

treatment at an emergency room on multiple occasions while in Texas is insufficient to

constitute a material change of circumstances. Moreover, as the trial court surmised after

noting that Husband was 85 and Wife was 76 years old at the time of trial:

It is certainly reasonable for one or both parties to hope and expect to get

older. It is certainly reasonable for one or both parties to anticipate a higher

cost of living in future years. It is also certainly reasonable for one or both

parties to anticipate that their expenses may increase establishing an

increased need for more money.

In the final order, the trial court found that “[Wife] has not had an unforeseen or

unanticipated loss of employment since the last order nor has she shown any additional

circumstances that were unforeseen and unanticipated.” We have determined that the

evidence does not preponderate against the trial court’s finding that Wife failed to prove a

change of circumstances that was not anticipated or contemplated by the parties at the

time of the award. Therefore, we affirm the trial court’s decision to deny Wife’s petition

to increase alimony on the ground that she failed to prove a material change in

circumstances.

II. ATTORNEY’S FEES

Husband asserts that the trial court erred in awarding Wife any amount of

attorney’s fees incurred in defending Husband’s counter-petition to terminate his alimony

obligation.

In post-divorce modification proceedings, a marital dissolution agreement may

create a right to recover attorney’s fees. See Eberbach, 535 S.W.3d at 474-75. In the

absence of an attorney fee provision in a marital dissolution agreement, there are both

statutory and common law grounds for awarding attorney’s fees in alimony modification

cases. See Evans v. Evans, No. M2002-02947-COA-R3-CV, 2004 WL 1882586, at *14

(Tenn. Ct. App. Aug. 23, 2004) (“[S]everal bases have been used as authority for an

award of attorney’s fees.”). One statutory ground is found at Tenn. Code Ann. § 36-5-

103(c), also known as “Tennessee’s Enforcement of Orders statute.” Eberbach, 535

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S.W.3d at 475. The version of the statute in effect at the time this matter was decided

provided that “[t]he plaintiff spouse may recover from the defendant spouse . . .

reasonable attorney fees incurred in enforcing any decree for alimony, . . . both upon the

original divorce hearing and at any subsequent hearing . . . in the discretion of such

court.” Tenn. Code Ann. § 36-5-103(c) (2017). “In a number of other modification cases,

the court has simply relied on the general principles applicable to attorney’s fees in

divorce cases and on opinions involving initial awards.” Evans, 2004 WL 1882586, at

*15.3

More significantly, the reported decision of Malkin v. Malkin, 475 S.W.3d 252

(Tenn. Ct. App. 2015) explains that Tenn. Code Ann. § 36-5-103(c) authorizes the courts,

in their discretion, to “award attorney’s fees to an alimony recipient who is forced to

defend an action to reduce or terminate that alimony.” Id. at 263. (citing Henderson v.

Henderson, No. M2013–01879–COA–R3–CV, 2014 WL 4725155, at *12 (Tenn. Ct.

App. Sept. 23, 2014); Evans, 2004 WL 1882586, at *13–14; Owens v. Owens, No.

M2012–01186–COA–R3–CV, 2013 WL 3964793, at *6 (Tenn. Ct. App. July 30, 2013)

(“Reasonable fees may be awarded pursuant to § 36–5–103(c) in actions to enforce a

decree for alimony, which has been interpreted as including the situation where an

alimony recipient is forced to defend an action to reduce or terminate that alimony.”)).

Additionally, the Malkin court recognized that

Alimony is only awarded in the first instance to an economically

disadvantaged spouse who has a demonstrated need for the support. Absent

a showing in a modification proceeding that the need no longer exists,

requiring the recipient to expend that support for legal fees incurred in

defending it would defeat the purpose and public policy underlying the

3

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

We conclude that ample authority exists to authorize a court to award fees in a

modification proceeding on the same basis, and according to the same principles, as a fee

award is made in the divorce proceeding and initial award under in Tenn. Code Ann. §

36-5-101. Therefore, there exists a legal ground for the award of fees herein that is

alternative, or additional, to the ground relied upon by the trial court.

It has become well settled that an award of attorney’s fees in divorce cases is considered

alimony or spousal support, generally characterized as alimony in solido. Yount v. Yount,

91 S.W.3d 777, 783 (Tenn. Ct. App. 2002); Wilder v. Wilder, 66 S.W.3d 892, 894 (Tenn.

Ct. App. 2001); Herrera v. Herrera, 944 S.W.2d 379, 390 (Tenn. Ct. App. 1996);

Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn. Ct. App. 1992); Storey v. Storey,

835 S.W.2d 593, 597 (Tenn. Ct. App. 1992). Like other spousal support, an award of

attorney’s fees is available to either spouse.

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

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statute on spousal support. Additionally, the possibility of being burdened

with a former spouse’s attorney’s fees helps deter unwarranted or

unjustified attempts by an obligor to evade or reduce an existing support

obligation.

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

1882586, at *13.

Because Malkin is a reported case, “it constitutes binding precedent for Tennessee

trial courts on the issue involved in this appeal unless our Supreme Court overrules it or

our General Assembly changes the law.” In re Estate of Tucker, No. E2014-02112-COA-

R3-CV, 2015 WL 7068134, at *3 (Tenn. Ct. App. Nov. 12, 2015). Thus, it is significant

that our Supreme Court has not disturbed the Malkin decision in any respect.

As for the Tennessee General Assembly, it has taken no action to reverse or limit

the scope of the Malkin decision. To the contrary, in order to resolve any uncertainty on

the issue, the General Assembly amended the statute, effective July 1, 2018, to be wholly

consistent with the ruling in Malkin. Although the amendment has no direct bearing on

the rights of the parties to this action, it is relevant to note that the statute as amended

pursuant to H.R. 2526, § 1, 110th Gen. Assemb., Reg. Sess. (Tenn. 2018), which is

presently in effect, reads:

A prevailing party may recover reasonable attorney’s fees, which may

be fixed and allowed in the court’s discretion, from the non-prevailing

party in any criminal or civil contempt action or other proceeding to

enforce, alter, change, or modify any decree of alimony, child support,

or provision of a permanent parenting plan order, or in any suit or action

concerning the adjudication of the custody or change of custody of any

children, both upon the original divorce hearing and at any subsequent

hearing.

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

Here, Wife was both a plaintiff and a defendant in the competing petitions to

increase and decrease or terminate alimony. When Husband filed his counter-petition to

terminate his alimony obligation, Wife defended the existing alimony decree, and by

doing so Wife was seeking “to enforce” the existing award of alimony then in effect. See

Malkin, 475 S.W.3d at 263; See also Evans, 2004 WL 1882586, at *13 (citing Duke v.

Duke, Nos. M2001-00080-COA-R3-CV, M2002-00026-COA-R3-CV, 2003 WL 113401

(Tenn. Ct. App. Jan. 14, 2003)). In another Court of Appeals case, Duke v. Duke, the

husband argued that Tenn. Code Ann. § 36-5-103(c) did not allow the court to award fees

to a defendant spouse in a post-divorce proceeding. Id. at *5. The court rejected this

argument stating:

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We do not agree with Mr. Duke’s interpretation of the statute. The key is in

the words “enforcing any decree for alimony or child support. . . .” A

spouse who defends a petition to change an alimony or child support

order is acting to enforce it. The statute does not distinguish between

winners and losers, and while the courts have sometimes made that a factor,

see Placencia v. Placencia, 3 S.W.3d 497 (Tenn. Ct. App. 1999), we do not

think it is the determining factor. In each case the court should do what is

equitable. See Sherrod v. Wix, 849 S.W.2d 780 (Tenn. Ct. App. 1992).

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

In an exercise of its discretion, the trial court took into consideration Wife’s

significantly limited financial means along with Husband’s considerable assets, and

awarded Wife attorney’s fees of $14,000. Having reviewed the record and considered the

relevant factors, we find no abuse of discretion in awarding Wife attorney’s fees pursuant

to Tenn. Code Ann. § 36-5-103(c) for successfully enforcing the 2003 alimony decree

Husband sought to reduce or terminate. Thus, we affirm Wife’s award of attorney’s fees.4

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs

of appeal assessed against the appellee, Franklin M. Jarman.

________________________________

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

4

In this appeal, Husband only challenges the award of any fees; he does not challenge the amount

of attorney’s fees awarded. Thus, we need not review the amount of the award.

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