358 S.W.3d 623
Tenn. Ct. App.2011Background
- Marsha Bordes and Julian Bordes divorced in 1999; MDA awarded Wife custody and alimony in futuro with a stepped schedule and no modification clause.
- Husband later petitioned (2008) to modify final decree to decrease alimony; at filing his child support had ended and alimony was $2,000/month.
- At a 2010 hearing, Husband testified health problems after the divorce reduced his ability to work; he sold the Orkin franchise and started a restaurant, with income largely from the restaurant and retirement; Wife argued no modification was warranted.
- Trial court held the economic downturn and health issues were not unanticipated and denied modification, while awarding Wife attorney fees of $7,500.
- On appeal, court reversed, holding there was a substantial and material change in circumstances enabling modification, set alimony at $1,050/month, and reversed the attorney-fees award to Wife.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a substantial and material change in circumstances warranting modification | Bordes argues income decline and health problems constitute substantial/material change | Bordes contends needs and ability to pay justify modification | Yes; substantial and material change existed supporting modification |
| How to determine Husband's earning capacity for modification | Bordes contends higher earning capacity than court calculated | Wife argues earning capacity should reflect post-divorce circumstances | Earning capacity set at $75,000/year; trial court’s higher range rejected |
| Appropriate alimony amount after modification | Bordes seeks reduction based on earning capacity and Wife's need | Wife maintains current support adequate | Alimony modified to $1,050/month |
| Attorney fees on modification petition | Wife’s fees were awarded without right after modification denied | Wife prevailed on petition | Reversed; attorney fees award to Wife reversed |
Key Cases Cited
- Bogan v. Bogan, 60 S.W.3d 727 (Tenn. Ct. App. 2000) (substantial change in circumstances requires analysis of ability to pay and need)
- Wright v. Quillen, 83 S.W.3d 768 (Tenn. Ct. App. 2002) (core factors for modification of alimony; equity between ability and need)
- Cranford v. Cranford, 772 S.W.2d 48 (Tenn. Ct. App. 1989) (fact-driven balancing of alimony factors; abuse of discretion standard)
- Richardson v. Spanos, 189 S.W.3d 720 (Tenn. Ct. App. 2005) (earning capacity considerations in modifying alimony)