Jekot v. Jekot

362 S.W.3d 76, 2011 WL 5115542, 2011 Tenn. App. LEXIS 581
CourtCourt of Appeals of Tennessee
DecidedOctober 25, 2011
DocketM2010-02467-COA-R3-CV
StatusPublished
Cited by13 cases

This text of 362 S.W.3d 76 (Jekot v. Jekot) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jekot v. Jekot, 362 S.W.3d 76, 2011 WL 5115542, 2011 Tenn. App. LEXIS 581 (Tenn. Ct. App. 2011).

Opinion

OPINION

FRANK G. CLEMENT, JR., J„

delivered the opinion of the Court,

in which ANDY D. BENNETT and RICHARD H. DINKINS, JJ, joined.

Wife appeals the trial court’s decision to substantially reduce her alimony, contending there has not been a substantial and material change of circumstances. The parties were divorced in 2005 following a thirty year marriage. In 2008, Husband filed a petition for modification of alimony. The trial court held that a decrease in Husband’s income constituted a substantial and material change of circumstance, which warranted the reduction in alimony. The trial court also held that Husband was entitled to interest on overpayments of alimony. Wife appealed. We reverse based on the finding that there was not a substantial and material change of circumstance. We also find that although Husband is entitled to recover overpayments of alimony following the first appeal, he is *78 not entitled to interest on the overpay-ments. Wife has requested her attorney’s fees. Applying the principles stated in Gonsewski v. Gonsewski, 350 S.W.3d 99 (Tenn.2011), we find Wife is not entitled to recover her attorney’s fees on appeal.

This is the second appeal following the divorce of William James Jekot, M.D., (“Husband”) and Pennie Christine Jekot (“Wife”) on October 5, 2005. The parties had been married almost thirty years at the time of their divorce.

In the 2005 Divorce Decree, Husband was awarded marital property in the amount of $1,459,116, and Wife was awarded $1,468,758. A substantial component of the marital property was two medical office buildings, which the court ordered to be sold and the proceeds to be divided equally. In the 2005 divorce, the trial court awarded Wife rehabilitative alimony for five years to be paid as follows: $15,000 per month for the first twelve months, $10,000 per month for the next twenty-four months, and $5,000 per month for the final twenty-four months. Husband appealed from that decision.

In the first appeal, Jekot v. Jekot, 232 S.W.3d 744 (Tenn.Ct.App.2007), this court modified the alimony award in two ways. First, the court determined that the alimony should have been classified as alimony in futuro, not rehabilitative. This was because Wife, who had been out of the workforce for nearly twenty years, had demonstrated a need for such alimony, stating “at the time of trial, Wife was fifty-five years of age, and we do not believe it is realistic to expect that she will be able to effectively compete for employment as she nears an age at which many retire.” Id. at 753. Second, the court modified the payment schedule by requiring that the alimony, which was to be paid for sixty months, be paid in equal installments of $9,000 per month. Id. at 752. The modification of the monthly payments to $9,000 per month was based on the finding that $9,000 was “consistent with Wife’s actual monthly needs.” Id. Husband filed a Rule 11 petition for permission to appeal to the Supreme Court, which was denied on May 14, 2007, and mandate issued on May 31, 2007.

Pursuant to an agreement by the parties, an Agreed Order was entered in the trial court on January 8, 2008, which modified the division of the marital estate by awarding each party one of the two medical office buildings that previously was ordered to be sold. Husband was awarded the medical condominium located at 1029 Highland Avenue and Wife was awarded the medical condominium located at 1035 Highland Avenue. The buildings were substantially equal in value and both were located in Murfreesboro, Tennessee.

On October 3, 2008, three years after the divorce, Husband filed a petition for modification of alimony, contending that a substantial and material change of circumstances had occurred that warranted a reduction of his alimony obligation. Husband contended that his income had decreased dramatically in the three years following the divorce. Husband further contended that Wife’s need for alimony in futuro had diminished, due in part to income she now received from the medical office building she was awarded pursuant to the January 2008 Agreed Order. Husband also requested that he receive ten percent interest on the alimony he had overpaid following the decision of this court in the first appeal.

Following a hearing on April 29, 2010, the trial court entered an order finding that a substantial and material change of circumstance had occurred in that Husband’s “practice income” had decreased by one-third. The trial court found that Husband’s Schedule E income in 2005 at the time of the divorce was $522,953.00, and *79 that Husband’s Schedule E income for 2009 was $348,929.00. Therefore, the court held that the amount of alimony paid by Husband should be reduced to $5,000 per month. The trial court also held that Husband was entitled to $575.00 in interest on the overpayment of alimony. Wife filed a motion to alter or amend, which the trial court denied. Wife filed a timely appeal.

Analysis

Wife raises three issues on appeal. First, she contends that the trial court abused its discretion in ordering a modification of alimony in futuro. Second, she contends that the trial court erred in ordering Wife to pay interest on the voluntary overpayments of alimony made following the release of the Court of Appeals opinion in Jekot v. Jekot, 232 S.W.3d 744. Lastly, Wife argues that the trial court erred by not awarding her attorney’s fees. We shall address each issue in turn.

I.

Modification of Alimony

The appellate standard of review of a trial court’s decision on matters of alimony was recently stated in detail in Gonsewski v. Gonsewski, 350 S.W.3d 99, 105-06 (Tenn.2011):

For well over a century, Tennessee law has recognized that trial courts should be accorded wide discretion in determining matters of spousal support. See Robinson v. Robinson, 26 Tenn. (7 Hum.) 440, 443 (1846) (“Upon a divorce ... the wife is entitled to a fair portion of her husband’s estate for her support, and the amount thus to be appropriated is a matter within the legal discretion of the chancellor.... ”). This well-established principle still holds true today, with this Court repeatedly and recently observing that trial courts have broad discretion to determine whether spousal support is needed and, if so, the nature, amount, and duration of the award. See, e.g., Bratton v. Bratton, 136 S.W.3d 595, 605 (Tenn.2004); Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn.2001); Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn.2000).
Equally well-established is the proposition that a trial court’s decision regarding spousal support is factually driven and involves the careful balancing of many factors. Kinard v.

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Cite This Page — Counsel Stack

Bluebook (online)
362 S.W.3d 76, 2011 WL 5115542, 2011 Tenn. App. LEXIS 581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jekot-v-jekot-tennctapp-2011.