614 S.W.3d 90
Tenn. Ct. App.2019Background
- Parties: Leann Barnes (Wife) and David Ellett Barnes (Husband) divorced after a 25+ year marriage; Wife received alimony in futuro of $6,000/month after this Court reinstated that award on appeal (Barnes I).
- Husband later developed disabling conditions (back and carpal tunnel surgeries) and began receiving private disability benefits and Social Security disability; he sold his dental practice and other assets while a pending petition to modify was litigated.
- Husband petitioned (Dec. 2015) to reduce/terminate alimony due to disability and reduced his payments unilaterally during the proceeding; Wife filed contempt and enforcement motions asserting arrearages.
- At trial, Husband’s monthly receipts included non‑taxable private disability (~$19,226), Social Security (~$2,795), rental and investment income; experts calculated a decline in gross income but small change in after‑tax disposable income.
- The trial court found a substantial and material change and reduced alimony from $6,000 to $3,900/mo (a 35% reduction) but held Husband in contempt for willfully underpaying and calculated arrearages using the reduced rate.
- On appeal, the Court of Appeals reversed, holding Husband failed to prove a substantial reduction in his ability to pay (considering after‑tax income, assets, lack of documented expenses), reinstated $6,000/mo, remanded to recalculate arrearages and to determine attorney’s fees on appeal; trial‑court fee ruling on trial fees to be reconsidered.
Issues
| Issue | Wife's Argument | Husband's Argument | Held |
|---|---|---|---|
| Whether Husband proved a substantial and material change in circumstances to reduce alimony in futuro | Disability did not materially reduce ability to pay because disability benefits largely replaced prior net income; Husband retained substantial assets; Wife’s need unchanged | Disability drastically reduced Husband’s gross income and retirement plan, warranting reduction | Reversed: reduction improper. Disability did not show a substantial impact on ability to pay when considering after‑tax income and assets; $6,000/month reinstated |
| Proper measure of income for modification | Court should consider total after‑tax income and available assets, not gross income alone | Focus on reduction in gross income from practice as proof of diminished ability to pay | Court rejected reliance on gross income alone; emphasized after‑tax disposable income and asset availability |
| Arrearage calculation basis | Arrearage should be calculated at original $6,000/mo rate | Trial court used reduced $3,900/mo when computing arrearage | Arrearage recalculated on remand based on $6,000/mo plus post‑judgment interest |
| Award of attorney’s fees (trial and appeal) | Wife (economically disadvantaged) should recover fees incurred defending reduction | Husband opposed; trial court awarded fees only for contempt portion | Appellate fees awarded to Wife; remanded for trial court to reconsider award of trial‑level fees under Tenn. Code Ann. § 36‑5‑103(c) |
Key Cases Cited
- Gonsewski v. Gonsewski, 350 S.W.3d 99 (Tenn. 2011) (standards and factors for spousal support decisions)
- Broadbent v. Broadbent, 211 S.W.3d 216 (Tenn. 2006) (appellate review standard for spousal support: legal standard and unwarranted/clear unreasonableness)
- Eberbach v. Eberbach, 535 S.W.3d 467 (Tenn. 2017) (statutory authority and standard for awarding attorney’s fees in enforcement of support orders)
- Malkin v. Malkin, 475 S.W.3d 252 (Tenn. Ct. App. 2015) (ability to pay analysis requires more than income—expenses and assets matter)