Jimmy H. Vaughn v. Mary Runyon Vaughn

• Court: Court of Appeals of Tennessee
• Decided: April 29, 1998
• Docket: 01A01-9707-CV-00347
• Status: Published

Opinion

JIMMY H. VAUGHN, ) DAVIDSON CIRCUIT ) No. 77466 Plaintiff/Appellant ) ) Appeal No. v. ) 01A01-9707-CV-00347 ) MARY RUNYON VAUGHN,

Defendant/Appellee ) ) ) FILED April 29, 1998

Cecil W. Crowson Appellate Court Clerk IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

APPEAL FROM THE DAVIDSON COUNTY CIRCUIT COURT AT NASHVILLE, TENNESSEE

HONORABLE MURIEL ROBINSON, JUDGE

Larry Roberts 627 Second Avenue South Nashville, TN 37210 ATTORNEY FOR PLAINTIFF/APPELLANT

Thomas F. Bloom 500 Church Street, 5th Floor Nashville, TN 37219 ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

WILLIAM H. INMAN, SENIOR JUDGE

CONCUR:

HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION BEN H. CANTRELL, JUDGE

JIMMY H. VAUGHN, ) DAVIDSON CIRCUIT ) No. 77466 Plaintiff/Appellant ) ) Appeal No. v. ) 01A01-9707-CV-00347 ) MARY RUNYON VAUGHN, ) ) Defendant/Appellee )

OPINION

The trial court found that there had been a change of circumstances and

increased Jimmy Hunter Vaughn’s [husband’s] alimony obligation to Mary

Runyon Vaughn [wife] from $400.00 per month to $600.00 per month. The

court also found that husband should pay $350.00 as reasonable attorney fees to

wife’s attorney.

We affirm the judgment of the trial court.

Husband was granted a divorce from wife in 1975. The court ordered

husband to pay wife alimony in futuro of $200.00 per month until her death or

remarriage. Neither party has remarried.

In July 1992 the parties entered an agreed order increasing alimony to

$400.00 per month.

In April 1997 wife petitioned for another increase and the trial judge

ordered husband to increase alimony to $600.00 per month. Husband appeals,

insisting there has been no substantial and material change in circumstances to

warrant the increase.

At the time of the hearing,Wife received $368.00 per month in Social

Security benefits and $400.00 alimony, for a total net monthly income of

$768.00. Husband’s statement of income and expenses indicated his net

monthly income was $1,965.00 after paying $400.00 monthly in alimony. Wife testified that since 1992 she has experienced an increase of $115.00

per month in her mortgage payment, which is now $673.00 per month, and that

her home needs roof and garage repairs. Her car reached such a state of

disrepair that it was towed away. She has been hospitalized and her monthly

medication costs have increased beyond her ability to pay for them. A new

prescription has gone unfilled. Her monthly expenses exceed her income and

she now has unpaid hospital bills and receives food stamp assistance.

Husband’s expenses include a mortage payment of $315.00, monthly

payments totalling $623.00 on $17,800.00 of credit card debt, and entertainment

related expenses of $183.00 per month, including YMCA membership,

American On Line, cable t.v. and general entertainment of $75.00 per month.

He also alleged, among other expenses, a monthly food budget of $400.00 for

himself.

Review of the findings of fact made by the trial court is de novo upon the

record of the trial court, accompanied by a presumption of the correctness of the

finding, unless the preponderance of the evidence is otherwise. T.R.A.P. 13(d).

An award of alimony in futuro remains within the control of the court

issuing the initial decree, and may be modified on application to the court.

T.C.A. § 36-5-101(a)(1) describes the condition that must be met for

modification: “ . . . on application of either party, the court may increase or

decrease the amount of such support only upon a showing of a substantial and

material change of circumstances.” The party seeking relief on the grounds of

changed circumstances has the burden of proving the changed circumstances

justifying an increase or decrease in the amount of the alimony award. Azbill v.

Azbill, 661 S.W.2d 682 (Tenn. App. 1983). The two most important factors are

the need of the obligee spouse and the ability to pay of the obligor spouse, with the need of the obligee being the single most critical factor in the modification

decision. Lancaster v. Lancaster, 671 S.W.2d 501 (Tenn. Ct. App. 1984).

We find the evidence preponderates in favor of the trial court’s increase

of alimony to the wife. Since the last increase in 1992 she has sustained an

increase in her monthly mortgage payment, declining health resulting in

unexpected and unpaid hospital and prescription bills, and deterioration of her

home due to inability to pay for repairs.

Husband raises the issue of the trial court’s order that he pay wife’s

attorney’s fee of $350.00.

The trial court is vested with wide discretion in the allowance of attorney

fees and this Court will not interfere except upon a showing of abuse of that

discretion. The evidence is overwhelming that wife lacks the ability to pay her

attorney’s fees, and we find the trial court did not abuse its discretion in

ordering the fees to be paid by husband.

The judgment of the trial court is affirmed with costs assessed to the

appellant and the case is remanded.

_______________________________ William H. Inman, Senior Judge CONCUR:

___________________________ Henry F. Todd, Presiding Judge

_________________________ Ben H. Cantrell, Judge IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

JIMMY H. VAUGHN, ) DAVIDSON CIRCUIT ) No. 77466 Plaintiff/Appellant ) ) Appeal No. v. ) 01A01-9707-CV-00347

MARY RUNYON VAUGHN, ) ) FILED ) Defendant/Appellee ) September 2, 1998

Cecil W. Crowson Appellate Court Clerk O R D E R O N P E T IT I O N T O R E -H E A R

Appellee [ “Wife”] petitions for rehearing of this appeal and for cause

avers that the opinion of the court was silent on the issues of (1) failure of the

trial court to award her a greater increase in alimony and (2) her request for

award of attorney fees on appeal.

The trial court increased Wife’s alimony by fifty percent, from $400.00

per month to $600.00 per month, based on changed circumstances. She

showed an increase in her monthly mortgage and medication costs as well as the

need for home repairs and a car. Based on these circumstances, we affirmed the

increase in alimony. Pursuant to this petition, we have reviewed the record

once more and cannot find that the evidence supports a greater increase.

Wife also requested on appeal that this court award her a reasonable

attorney fee for the appeal or remand the case to the trial court for determination

and award of an appropriate fee.

Our opinion and judgment in this case affirmed the trial court’s award of

$350.00 in attorney fees for Wife’s trial counsel. After the trial of this matter,

her then counsel petitioned the trial court to withdraw and for cause stated that

there were no issues remaining before the court. When Husband filed notice of appeal, Wife was required to obtain new counsel for representation on appeal,

whose fees she seeks to assign to Husband.

Wife’s insistence of her attorney fees on appeal is well taken, and the

petition to re-hear is granted as to this issue. The case is remanded to the trial

court for a determination of such fees. Costs are assessed to the appellant.

___________________________ Henry F. Todd Presiding Judge, Middle Section

___________________________ Ben H. Cantrell, Judge

___________________________ William H. Inman, Senior Judge