William Perry v. Ricki Perry ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
JANUARY 23, 2002 Session
WILLIAM HARWELL PERRY v. RICKI C. CHILDS PERRY
Direct Appeal from the Chancery Court for Tipton County
No. 16, 505; The Honorable Martha Brasfield, Chancellor
No. W2001-01350-COA-R3-CV - Filed March 21, 2002
The Appellant and the Appellee were divorced by final decree of divorce entered by the Chancery
Court of Tipton County. The trial court ordered the Appellant to pay the Appellee rehabilitative
alimony on a temporary basis for two years. The trial court stated that the parties would return to
court prior to the expiration of the two year period to determine whether rehabilitative alimony
should continue. Prior to the expiration of the two year period, the Appellee filed a petition to
modify the final decree of divorce to continue alimony payments and a petition for contempt. The
Appellant filed a petition for an order closing rehabilitative alimony. The trial court held a hearing
on the petitions. Following the hearing, the trial court ordered the Appellant to pay the Appellee
rehabilitative alimony for three additional years. The trial court ordered the Appellant to pay the
Appellee’s attorney’s fees.
The Appellant appeals the decision of the Chancery Court of Tipton County ordering the
Appellant to pay the Appellee rehabilitative alimony for three additional years and ordering the
Appellant to pay the Appellee’s attorney’s fees. For the reasons stated herein, we affirm the trial
court’s decision.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., (by separate
concurrence in part and dissent in part) and HOLLY KIRBY LILLARD, J., (by separate concurrence)
joined.
J. Thomas Caldwell, Ripley, TN, for Appellant
Julie D. Byrd, Tina Lum Perrusquia, Bartlett, TN, for Appellee
OPINION
I. Facts and Procedural History
The Appellant, William Harwell Perry (“Mr. Perry”), and the Appellee, Ricki C. Childs Perry
( “Ms. Perry”), were divorced by final decree of divorce entered by the Chancery Court of Tipton
County on November 16, 1998. In the findings of fact incorporated into the final decree of divorce,
the trial court found that Mr. Perry would earn over $40,000.00 in 1998, and Ms. Perry would earn
$16,640.00 in 1998. The trial court ordered Mr. Perry to pay Ms. Perry rehabilitative alimony in the
amount of $700.00 per month on a temporary basis through December 31, 2000. Prior to December
31, 2000, the parties would return to court at which time the trial court would determine whether the
rehabilitative alimony should continue. The trial court stated, “Continuance of the alimony shall be
based upon Mrs. Perry’s needs, her return to school, her progress made at school, her grades and any
other factors which may be relevant to this issue.”
On March 18, 1999, Ms. Perry filed a petition for writ of scire facias and contempt of court.
The petition alleged that Mr. Perry had failed to pay Ms. Perry rehabilitative alimony for the months
of January, February, and March, 1999. On November 3, 2000, Ms. Perry filed a petition to modify
the final decree of divorce to continue alimony payments and a petition for contempt. On December
20, 2000, Mr. Perry filed a petition for an order closing rehabilitative alimony. On March 1, 2001,
a hearing was held on the petitions.
Ms. Perry and Mr. Perry testified that they were both forty-seven years old and were high
school graduates. Ms. Perry testified that she worked as a seamstress and earned an annual income
of $21,736.00. She stated that the summer following the divorce, she enrolled in a community
college to earn an associate’s degree in engineering drafting. Ms. Perry claimed that she did not
enroll in the community college immediately following the divorce because Mr. Perry did not pay
rehabilitative alimony until March, 1999. She testified that she had a 3.2 grade point average and
that at her current course load, she would complete the engineering drafting program in five years.
Ms. Perry filed an affidavit of income and expenses stating that her apartment and utility expenses
were $835.00 per month, her car payment was $309.00 per month, and her living expenses were
$1,010.25 per month.
Mr. Perry testified that he had worked as a dock worker for the past twenty-two years and
also worked as an emergency medical technician. He claimed that he earned an annual income of
$38,000.00 in 2000. Mr. Perry stated that for the past three years, he had been living in a thirty-foot
camper-trailer and kept his personal property in a rented space because he could not afford anything
better. He testified that he sustained a leg injury at work on December 4, 2000 and had been drawing
worker’s compensation disability until late February, 2001.
On May 11, 2001, the trial court entered an order on Ms. Perry’s petition to modify the final
decree of divorce to continue alimony payments and petition for contempt and on Mr. Perry’s
petition for an order closing rehabilitative alimony. The trial court found Mr. Perry in contempt of
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court for failure to pay Ms. Perry rehabilitative alimony during the months of January, February, and
March, 1999. The trial court found that prior to the hearing, Mr. Perry paid Ms. Perry the
rehabilitative alimony he owed for January, February, and March, 1999. The trial court found that
Ms. Perry needed a continuation of rehabilitative alimony based on her testimony at the hearing. The
trial court ordered Mr. Perry to pay Ms. Perry rehabilitative alimony for three additional years in the
amount of $550.00 per month from January 1, 2001 until June 30, 2002, and thereafter, $400.00 per
month from July 1, 2002 until December 31, 2003. The trial court ordered Mr. Perry to pay Ms.
Perry’s attorney’s fees in the amount of $800.00. This appeal followed.
II. Standard of Review
The standard of review for a non-jury case is de novo upon the record. See Wright v. City
of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of correctness as to the
trial court’s factual findings, unless the preponderance of the evidence is otherwise. See TENN. R.
APP . P. 13(d). For issues of law, the standard of review is de novo, with no presumption of
correctness. See Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).
III. Law and Analysis
The following issues are presented for our review:
1. Whether the trial court erred by ordering the continuation of rehabilitative alimony;
2. Whether the trial court erred by awarding attorney’s fees to Ms. Perry; and
3. Whether this Court should award attorney’s fees and costs on appeal.
We will address each issue in turn.
The first issue presented for our review is whether the trial court erred by ordering the
continuation of rehabilitative alimony. The trial court has broad discretion concerning the amount,
type, and duration of spousal support based on the particular facts involved. See Watters v. Watters,
959 S.W.2d 585, 593 (Tenn. Ct. App. 1997). The trial court’s decision is entitled to great weight
on appeal and will not be disturbed absent a showing of abuse of discretion. See id. (citing Aaron
v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995); Luna v. Luna, 718 S.W.2d 673, 675 (Tenn. Ct. App.
1986)); Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996). Accordingly, this Court is
not inclined to alter a trial court’s award of alimony “unless it is not supported by the evidence or
is contrary to the public policy embodied in the applicable statutes.” Brown v. Brown, 913 S.W.2d
163, 169 (Tenn. Ct. App. 1994) (citing Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn. Ct. App. 1988);
Ingram v. Ingram, 721 S.W.2d 262, 264 (Tenn. Ct. App. 1986)).
The trial court stated that during the November 16, 1998 hearing, it was unsure whether Ms.
Perry actually intended to return to school. Thus, the trial court declined to make a final decision
on the amount and duration of rehabilitative alimony. Rather, the trial court decided that Mr. Perry
would pay Ms. Perry rehabilitative alimony on a temporary basis for two years. The trial court stated
that prior to the end of the two year period, the trial court would assess whether rehabilitative
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alimony should continue. The trial court enumerated four factors it would examine in making its
decision: Ms. Perry’s needs, her return to school, her grades, and her progress made at school. Two
years later, the trial court heard proof on the four factors. Ms. Perry submitted an affidavit of income
and expenses which showed a monthly net income of $1,303.35 and monthly expenses of $2,154.25.
Thus, the affidavit showed that Ms. Perry had a need of approximately $850.00 per month. Ms.
Perry testified that she enrolled in a community college after Mr. Perry begin paying rehabilitative
alimony. Ms. Perry claimed that she maintained a 3.2 grade point average in school and would
graduate in five years. At the close of the hearing, the trial court ordered the rehabilitative alimony
to continue for an additional three years.
Mr. Perry argues that the trial court erred by ordering the continuation of rehabilitative
alimony because Ms. Perry failed to show a substantial and material change in circumstances.
Section 36-54-101(d)(2) of the Tennessee Code states that “[a]n award of rehabilitative, temporary
support and maintenance shall remain in the court’s control for the duration of such award, and may
be increased, decreased, terminated, extended, or otherwise modified, upon a showing of substantial
and material change in circumstances.” TENN. CODE ANN . § 36-54-101(d)(2) (Supp. 2000). We
agree that a person seeking to modify a final award of rehabilitative alimony must show a substantial
and material change in circumstances. When the trial court fails to make a final award of
rehabilitative alimony, however, it is not necessary to show a substantial and material change in
circumstances to modify a temporary, open-ended award of rehabilitative alimony.
In the case at bar, the trial court took a “wait and see” approach to awarding rehabilitative
alimony. The trial court stated that it was uncertain whether Ms. Perry actually intended to return
to school. The trial court declined to make a final decision with regard to rehabilitative alimony until
it could determine whether Ms. Perry had returned to school, how she was doing in school, and her
financial needs while attending school. Thus, the trial court ordered Mr. Perry to pay rehabilitative
alimony on a temporary basis for two years until the trial court could better assess Ms. Perry’s
educational and financial situation. Because the trial court ordered a temporary, open-ended award
of rehabilitative alimony, we find that Ms. Perry did not have to show a substantial and material
change in circumstances in order to be awarded a continuation of rehabilitative alimony. From our
review of the record, we further find that the trial court did not abuse its discretion in ordering Mr.
Perry to continue to pay rehabilitative alimony to Ms. Perry for an additional three years.
Accordingly, we affirm the trial court’s decision ordering the continuation of rehabilitative alimony.
The second issue presented for our review is whether the trial court erred by awarding
attorney’s fees to Ms. Perry. The decision to award attorney’s fees is within the sound discretion of
the trial court. See Richardson v. Richardson, 969 S.W.2d 931, 936 (Tenn. Ct. App. 1997) (citation
omitted). An appellate court will not overturn a trial court’s award of attorney’s fees absent an abuse
of discretion. See Garfinkel v. Garfinkel, 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996).
In the case at bar, Mr. Perry argues that the trial court abused its discretion by awarding
attorney’s fees to Ms. Perry in the amount of $800.00. Ms. Perry’s attorney informed the trial court
that her usual fee was $150.00 per hour; however, Ms. Perry presented no proof as to the actual time
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expended by her attorney. At the hearing, Mr. Perry was aware that Ms. Perry presented no proof
regarding attorney’s fees, but we are unable to find any objection in the record as to the award of
attorney’s fees. We find that the trial court was in a position to determine the reasonable value of
services rendered by Ms. Perry’s attorney, and we conclude that $800.00 was a reasonable estimate
of attorney’s fees. We find no abuse of discretion on the part of the trial court in its award of
attorney’s fees. Accordingly, we affirm the trial court’s award of attorney’s fees to Ms. Perry.
The third issue presented for our review is whether this Court should award attorney’s fees
and costs on appeal. Ms. Perry requests this Court to award her attorney’s fees and costs necessitated
by this appeal. We respectfully deny Ms. Perry’s request for attorney’s fees and costs on appeal.
IV. Conclusion
For the foregoing reasons, the decision of the trial court is affirmed. Costs of this appeal are
taxed against the Appellant, William Harwell Perry, and his surety, for which execution may issue
if necessary.
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ALAN E. HIGHERS, JUDGE
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