William James Jekot v. Pennie Christine Jekot ( 2018 )

09/28/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 23, 2017 Session
WILLIAM JAMES JEKOT v. PENNIE CHRISTINE JEKOT
Appeal from the Circuit Court for Rutherford County
No. 48908 Howard W. Wilson, Chancellor
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No. M2016-01760-COA-R3-CV
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Following his retirement, an alimony obligor petitioned to terminate his alimony. The
parties agreed that the obligor’s retirement represented a substantial and material change
in circumstances since the original support decree. But the obligor also conceded his
ability to pay the alimony. Following a hearing, the trial court determined that the
obligor failed to meet his burden of proof and denied his request to terminate his alimony
obligation. The court also awarded the obligor’s former spouse her attorney’s fees
without specifying the basis for the award. On appeal, the obligor argues, among other
things, that his former spouse had the burden of proving her continuing need for alimony
once a substantial and material change in circumstances was conceded. We affirm the
denial of the request to terminate alimony but vacate the award of attorney’s fees.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part; Vacated in Part; and Remanded
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ANDY D. BENNETT
and RICHARD H. DINKINS, JJ., joined.
Katie M. Zipper, Franklin, Tennessee, (on appeal) for the appellant, William James Jekot.
Darrell L. Scarlett, Murfreesboro, Tennessee, for the appellee, Pennie Christine Jekot.
OPINION
I.
Dr. William James Jekot and Ms. Pennie Christine Jekot divorced in 2005. They
have been at odds over the issue of spousal support ever since.
A.
In the original divorce proceeding, the trial court awarded Ms. Jekot rehabilitative
alimony in the amount of $15,000 per month for the first twelve months following the
divorce, $10,000 for the succeeding twenty-four months, and $5,000 for the twenty-four
months thereafter. Dr. Jekot challenged the award on appeal; Ms. Jekot contended that
the award should have been designated as alimony in futuro.
In Jekot v. Jekot (Jekot I), this Court agreed with both parties. 232 S.W.3d 744
(Tenn. Ct. App. 2007). We found “that the initial award of alimony of $15,000 per
month was not adequately supported by the evidence.” Id. at 753. So we modified the
award to $9,000 per month. Id. We noted that, “[w]hile this amount does not differ from
the average monthly amount of alimony awarded by the trial court over the sixty months
the court allowed for [Ms. Jekot’s] rehabilitation, it provides that each payment is
consistent with [Ms. Jekot’s] actual monthly needs.” Id.
We also modified the award to alimony in futuro, concluding that the award of
rehabilitative alimony was inconsistent with the facts. Id. Given Ms. Jekot’s age, 55 at
the time of trial, and the fact that she had not used her career skills in two decades, we
deemed the expectation that Ms. Jekot would “be able to effectively compete for
employment as she near[ed] an age at which many retire” unrealistic.1 Id.
Five years later, in Jekot v. Jekot (Jekot II), Ms. Jekot asked us to review a
substantial reduction in her alimony award. 362 S.W.3d 76, 77 (Tenn. Ct. App. 2011).
Dr. Jekot claimed “that his income had decreased dramatically in the three years
following the divorce” while Ms. Jekot’s need “had diminished,” primarily due to income
from a medical office building she had been awarded in the division of marital property.
Id. at 78. The trial court found that Dr. Jekot’s income as an orthopedic surgeon “had
decreased by one-third” and reduced Ms. Jekot’s alimony to $5,000 per month. Id. at 78-
79.
We reversed the trial court, determining that the evidence preponderated against
the “finding that a substantial and material change of circumstance [had] occurred since
the entry of the order setting alimony in 2005.” Id. at 84. Dr. Jekot’s practice income
had decreased, but after taking into account other income sources, his average annual
income in the years following the divorce had actually increased by over $200,000. Id. at
82. Dr. Jekot also claimed that his expenses had increased since the divorce, and the
1
One member of the panel did not share that view and dissented from the amount of alimony
awarded. Jekot I, 232 S.W.3d at 754 (Swiney, J., concurring and dissenting). Although agreeing that
alimony in futuro was appropriate under the facts, the dissenter objected to the “assumption” that
Ms. Jekot had “absolutely zero earning capacity” and found that $9,000 per month exceeded Ms. Jekot’s
“proven needs.” Id. at 754-55.
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proof supported such a finding. But “the only substantial change in his expenses [wa]s
that he now pa[id] alimony.” Id. at 83. So the increase could not constitute a material
change in that it did not occur after entry of the divorce decree and it was not
unanticipated at the time of the decree. Id.
In Jekot II, we also examined the claim that Ms. Jekot’s need for alimony had
decreased. We reasoned that, even if Ms. Jekot was receiving income from the medical
office building as Dr. Jekot claimed, the income was not unanticipated at the time of the
divorce decree and the award of alimony. Id. at 84. Thus we concluded that the receipt
of that income could not justify a change in the amount of alimony awarded.
B.
Less than four years after our decision in Jekot II, Dr. Jekot was back in the
Circuit Court for Rutherford County, Tennessee, petitioning for termination of his
alimony. Now 66 years old, he planned to retire. As grounds for termination of his
alimony obligation, in addition to his retirement, Dr. Jekot pointed to many of the same
facts examined in Jekot II, such as diminishing income from his medical practice and the
impact of the division of marital property.
The court conducted a one-day hearing on the petition at which the parties and
Dr. Jekot’s investment advisor testified.2 At the outset of the hearing, counsel for
Dr. Jekot agreed that Dr. Jekot had the ability to pay the alimony even following
retirement.3 Still Dr. Jekot claimed that the evidence would show that Ms. Jekot had no
need for alimony.
According to the testimony, Dr. Jekot retired on July 1, 2015. Prior to that, he had
practiced orthopedic surgery in Murfreesboro for thirty-three years. Beyond his age, he
explained that the reason for his retirement was that the income from his practice had
been declining over the years due to increasing competition and the retirement of many of
his referring doctors. Dr. Jekot had also developed a hand tremor, so he no longer could
perform surgery.
Dr. Jekot “lived frugally and invested wisely.” So even with declining income
from his medical practice, he had managed to contribute $50,000 per year to his
retirement fund. And his assets had grown significantly since the divorce from roughly
2
Chancellor Howard W. Wilson was assigned to preside over the proceedings after the recusal of
the presiding circuit court judge, the Honorable Keith Siskin.
3
In his opening statement, counsel stated Dr. Jekot “has the ability to pay, but it’s a qualified
ability to pay where you say it would be grossly inequitable to take what he has saved and preserved to
fund her animal shelter and these other interests that [Ms. Jekot] has . . . .”
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$1.5 million to $4.5 million. Dr. Jekot testified to having liquid assets of approximately
$4.3 million, including a savings account of more than $2.1 million.
Dr. Jekot’s testimony confirmed he had the ability to pay Ms. Jekot alimony
following retirement and that he could do so without going into debt. But he agreed with
the statement that “eventually” he would have to “dip[] into the money that [he] received
at the time of the original property division” to make alimony payments. He also offered
that his alimony obligation could adversely impact his ability to make planned gifts of
“[a]pproximately a million dollars each” to “the University of Michigan orthopedic
department and University of Notre Dame where [he] went to college.” He sought the
“freedom” to fund those gifts over his former spouse’s charitable interests.
His counsel asked Dr. Jekot several questions about his former spouse’s need for
alimony. Given the assets she received as part of the divorce, Dr. Jekot could think of no
reason why Ms. Jekot would have any need for alimony, let alone alimony of $9,000 per
month. Despite his own monthly budget, excluding alimony, taxes, and investment
advisory fees, exceeding $6,700, Dr. Jekot opined that Ms. Jekot needed only $2,000 per
month to support herself. He felt that his former spouse’s need could be satisfied through
social security and rental income from the medical office building she was awarded in the
divorce.
Ms. Jekot, who was 66 at the time of the hearing, testified that she had not worked
or sought employment since the divorce. Her background was in education, but in order
to be licensed to teach, she would have needed additional training. She lived on her
alimony and social security of $1,200 per month.
Ms. Jekot’s testimony revealed no specifics about her expenses. Efforts by
Dr. Jekot’s counsel to have Ms. Jekot to itemize her monthly expenses proved fruitless.
Instead Ms. Jekot would refer to her check register or credit card statement as the best
indication of her monthly expenses. For example, when Dr. Jekot’s counsel asked
Ms. Jekot about her monthly utility expenses, the following exchange took place:
Q: Well, how much is your electric ––
A: Mr. Burger, I have no idea.
Q: Don’t your records show that it’s about three to four hundred dollars
a month?
A: No.
Q: Okay. Well, can you –– if you don’t –– how can you tell me it’s not
400 a month if you don’t know what it is?
A: I know it’s more than that. I’m usually writing a check ––
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Q: Approximately what do you think it is?
A: In the summer my utilities for my heat –– or my air –– excuse me ––
are way over $400.
Q: About what do you think they’re reflected on your tax return,
ma’am? I mean, I’m sorry, on your ––
A. I’m [sic] have to see the checkbook register for me to even make a
judgment on it.
Q. Okay.
At one point, Dr. Jekot’s counsel suggested that Ms. Jekot’s expenses were only
about $3,500 or $4,000 a month. Ms. Jekot replied:
A: You said that in the first hearing. You said it in the second hearing.
It’s totally nonsense.
Q: Ma’am, I ––
A. It is absolutely not factual and it is –– every bit of the alimony that I
get is spent on my expenses.
Ms. Jekot also denied that she was using her alimony to support an animal shelter that she
had founded. Although she admitted making an occasional loan to the shelter, she
claimed to have always been repaid.
The investment advisor testified that he was managing assets of Dr. Jekot with a
current value of about $4 million. When asked if Dr. Jekot could pay $9,000 per month
in alimony “without dissipating substantially his core financial savings,” the advisor
could only say “[i]t could be a challenge at some point if we have another period like
2000 to 2002 where we have three years of a down market.” The advisor went on to
explain that, “if the market remains vigorous and active and positive, [Dr. Jekot] might
have a very positive financial future.”
Following the close of proof, counsel for Ms. Jekot stipulated that Dr. Jekot’s
retirement was “objectively reasonable.” Yet Ms. Jekot’s counsel maintained that
Dr. Jekot had failed to meet his burden of proof.
The trial court agreed and denied the petition to terminate alimony. The court
found that, even absent the stipulation, “the evidence overwhelmingly demonstrates” that
Dr. Jekot’s retirement was objectively reasonable. But “given the amount of wealth he
has accumulated and amounts he continues to accumulate through investments,”
Dr. Jekot had the ability to pay his support obligation. As for need, based on her bank
account statements, the court found that Ms. Jekot’s need for alimony had actually
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increased since the divorce. The court specifically credited her testimony that her
expenses were “necessary for the maintenance of her assets and overall standard of living
as enjoyed throughout the duration of the [p]arties[’] marriage.” And the court found “no
evidence elsewhere in the record to indicate that expenses reflected in [Ms. Jekot’s]
checking account statement are unnecessary, unreasonable, frivolous, or unreflective of
[Ms. Jekot’s] actual financial need.”
The memorandum and order went on to provide that “[c]ourt costs, discretionary
costs, and attorney fees for Respondent are taxed to Petitioner.” Ms. Jekot later filed both
a motion for approval of fee award with a supporting affidavit from her counsel and a
motion for approval of discretionary costs. The court entered an order on the motions
awarding Ms. Jekot attorney’s fees of $14,280 and discretionary costs of $508.
II.
On appeal, Dr. Jekot raises six issues for our review. The first four issues relate to
the denial of his request for termination of his alimony obligation. The fifth issue relates
to the trial court’s award of attorney’s fees, discretionary costs, and court costs to
Ms. Jekot. Finally, Dr. Jekot requests an award of attorney’s fees incurred on appeal, as
does Ms. Jekot.
A.
The type of alimony awarded to Ms. Jekot, alimony in futuro, “remain[s] 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. § 36-5-121(f)(2)(A) (2017). A “substantial”
change is one that “significantly affects either the obligor’s ability to pay or the obligee’s
need for support.” Bogan v. Bogan, 60 S.W.3d 721, 728 (Tenn. 2001) (citing Bowman v.
Bowman, 836 S.W.2d 563, 568 (Tenn. Ct. App. 1991)). To be material, the “change in
circumstances must have occurred since the entry of the divorce decree ordering the
payment of alimony” and “must not have been foreseeable at the time the parties entered
into the divorce decree.” Watters v. Watters, 22 S.W.3d 817, 821 (Tenn. Ct. App. 1999).
“[W]hen an obligor’s retirement is objectively reasonable, it does constitute a
substantial and material change in circumstances – irrespective of whether the retirement
was foreseeable or voluntary . . . .” Bogan, 60 S.W.3d at 729. Typically, the
determination of whether a retirement is objectively reasonable requires an examination
of “the totality of the circumstances surrounding the retirement.” Id. Here, as noted
above, Ms. Jekot stipulated that Dr. Jekot’s retirement was objectively reasonable.
But an objectively reasonable retirement, which is deemed a substantial and
material change in circumstance, does “not necessarily entitle[]” an obligor “to an
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automatic reduction or termination of his or her support obligations.” Id. at 730; see also
Tenn. Code Ann. § 36-5-121(f)(2)(A) (directing that alimony in futuro “may be
increased, decreased, terminated, extended or otherwise modified, upon a showing of
substantial and material change in circumstances” (emphasis added)). The substantial
and material change in circumstance brought on by the retirement “merely allows the
obligor to demonstrate that reduction or termination of the award is appropriate.” Id.
The obligor does so by reference to the factors used in determining an initial award of
alimony, which are set forth in Tennessee Code Annotated § 36-5-121(i). See id. (citing
the predecessor to Tenn. Code Ann. § 36-5-121(i)).
While Tennessee Code Annotated § 36-5-121(i) identifies several factors that may
be relevant to the analysis,4 “the two most important considerations in modifying a
spousal support award are the financial ability of the obligor to provide for the support
and the financial need of the party receiving the support.” Id. Unlike at the initial award
of alimony stage when the need of the receiving spouse is deemed a more important
consideration, however, in deciding whether to modify alimony “the ability of the obligor
4
The statutory factors, some of which may not be relevant in every circumstance, are as follows:
(1) The relative earning capacity, obligations, needs, and financial resources of
each party, including income from pension, profit sharing or retirement plans and all
other sources;
(2) The relative education and training of each party, the ability and opportunity
of each party to secure such education and training, and the necessity of a party to secure
further education and training to improve such party’s earnings capacity to a reasonable
level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited to, physical
disability or incapacity due to a chronic debilitating disease;
(6) The extent to which it would be undesirable for a party to seek employment
outside the home, because such party will be custodian of a minor child of the marriage;
(7) The separate assets of each party, both real and personal, tangible and
intangible;
(8) The provisions made with regard to the marital property, as defined in § 36-4-
121;
(9) The standard of living of the parties established during the marriage;
(10) The extent to which each party has made such tangible and intangible
contributions to the marriage as monetary and homemaker contributions, and tangible and
intangible contributions by a party to the education, training or increased earning power
of the other party;
(11) The relative fault of the parties, in cases where the court, in its discretion,
deems it appropriate to do so; and
(12) Such other factors, including the tax consequences to each party, as are
necessary to consider the equities between the parties.
Tenn. Code Ann. § 36-5-121(i) (2017).
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to provide support must be given at least equal consideration” to the need of the recipient.
Id.
Dr. Jekot argues that the trial court erred in four respects in denying his request to
terminate his alimony obligation. First, he submits that the trial court erred in placing the
burden on him to prove Ms. Jekot’s need for support. We can quickly dispense with this
issue as our supreme court has placed the burden on “the obligor to demonstrate that
reduction or termination of the award is appropriate.” Id. at 730. If there was a change in
Ms. Jekot’s need that would support a reduction or termination of her alimony award,
Dr. Jekot had the burden of establishing that change.
Second, Dr. Jekot argues that the trial court erred in finding that Ms. Jekot needed
$9,000 per month in alimony in futuro when Ms. Jekot was unable to provide a list of her
expenses. The issue is premised on the false notion that Ms. Jekot bore the burden of
proving her need. To the extent the issue challenges the underlying factual finding made
by the trial court, we presume the correctness of the finding, unless the preponderance of
the evidence is otherwise. Tenn. R. App. P. 13(d).
The evidence here does not overcome the presumption of the correctness of the
trial court’s findings. Ms. Jekot testified to spending all of the alimony on her monthly
expenses and that her monthly expenses were accurately reflected in her bank and credit
card statements. Dr. Jekot introduced into evidence 13 months of bank statements, and
based on those statements, the trial court calculated her monthly withdrawals as
averaging $10,500 per month. The court also specifically credited her testimony that her
expenses were “necessary for the maintenance of her assets and overall standard of living
as enjoyed throughout the duration of the [p]arties marriage.” We “afford great weight”
to factual findings based on credibility determinations. Cornelius v. Tenn. Dep’t
Children’s Servs., 314 S.W.3d 902, 907 (Tenn. Ct. App. 2009).
Third, Dr. Jekot argues that the trial court erred in requiring him to satisfy his
alimony obligation from his award of marital property. This argument is unavailing. In
response to a leading question from his attorney, Dr. Jekot agreed with the statement that
“eventually” he would have to “dip[] into the money that [he] received at the time of the
original property division” to make alimony payments. But Dr. Jekot never elaborated
on this claimed eventuality or specified when or under what circumstances it might occur.
And his own financial advisor testified that Dr. Jekot could satisfy his alimony obligation
from investment earnings.
Fourth, Dr. Jekot argues that the trial court abused its discretion in failing to
terminate or modify his alimony obligation. Modification of an alimony award is a
factually driven determination that requires a balancing of factors. Brown v. Brown, 913
S.W.2d 163, 169 (Tenn. Ct. App. 1994). So the determination of whether to modify or
terminate an alimony award is discretionary. See Bogan, 60 S.W.3d at 727. An abuse of
8
discretion occurs when a court “causes an injustice to the party challenging the decision
by (1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable
decision, or (3) basing its decision on a clearly erroneous assessment of the evidence.”
Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).
The trial court did not abuse its discretion here. The court “properly identified and
applied the most appropriate legal principles applicable to the decision.” See id. The
court first considered whether Dr. Jekot’s retirement was objectively reasonable and
determined, based on both Ms. Jekot’s stipulation and the facts, that a substantial and
material change in circumstance had occurred. The court then looked to the statutory
factors for setting alimony, focusing on the financial ability of Dr. Jekot to provide for
the support and the financial need of Ms. Jekot. The findings concerning Dr. Jekot’s
ability to pay alimony and Ms. Jekot’s need are “properly supported by evidence in the
record.” See id. And the decision to deny Dr. Jekot relief “was within the range of
acceptable alternative dispositions.” See id.
B.
In its memorandum and order, the trial court “taxed” Dr. Jekot court costs,
discretionary costs, and the attorney’s fees of Ms. Jekot. Ms. Jekot later filed a “Motion
for Approval of Fee Award,” which requested approval of attorney’s fees as evidenced by
an attached affidavit. Dr. Jekot contends that the court erred in its awards to Ms. Jekot.
“Costs included in the bill of costs prepared by the clerk shall be allowed to the
prevailing party unless the court otherwise directs.” Tenn. R. Civ. P. 54.04(1). Dr.
Jekot’s assignment of error relative to court costs is based on his belief that he should
have been the prevailing party. Because we disagree, the trial court did not err in
awarding Ms. Jekot court costs.
For the same reason, Dr. Jekot challenges the award of discretionary costs.
Discretionary costs are “[c]osts not included in the bill of costs prepared by the clerk”
and include, among other things, “reasonable and necessary court reporter expenses for
depositions or trials.” Id. 54.04(2). As the name implies, discretionary costs are
awarded in the trial court’s discretion. Id.
As the party seeking discretionary costs, Ms. Jekot bore the burden of
demonstrating her entitlement to recover such costs. See Carpenter v. Klepper, 205
S.W.3d 474, 490 (Tenn. Ct. App. 2006). In most instances, the burden is a four-part
showing of (1) being the prevailing party, (2) costs specified in Tennessee Rule of Civil
Procedure 54.02(c), (3) which are necessary and reasonable, and (4) the absence of
“conduct during the litigation that would justify depriving [the requesting party] of the
costs.” Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 215 (Tenn. Ct. App. 2008).
Unlike court costs, “[p]arties are not entitled to costs under Tenn. R. Civ. P. 54.04(2)
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simply because they prevail at trial.” Mass. Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d
13, 35 (Tenn. Ct. App. 2002). But in most circumstances “courts should . . . award
discretionary costs to a prevailing party if the costs are reasonable and necessary and if
the prevailing party has filed a timely and properly supported motion.” Id.
We conclude there was no abuse of discretion on the part of the trial court.
Ms. Jekot was the prevailing party, and she sought only the recovery of costs specified
under Rule 54.04(2) that were both reasonable and necessary. And she filed a timely and
properly supported motion for the costs.
Concerning the award of attorney’s fees, we are hampered in our review because
Ms. Jekot did not specify the basis for her request for an award of attorney’s fees, and the
trial court’s order does not cite to the authority for its award. Under the “American rule,”
which is followed in Tennessee and most other jurisdictions, “a party in a civil action
may recover attorney fees only if: (1) a contractual or statutory provision creates a right
to recover attorney fees; or (2) some other recognized exception to the American rule
applies, allowing for recovery of such fees in a particular case.” Cracker Barrel Old
Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009).
In post-divorce legal proceedings such as this one, a marital dissolution agreement
may create a right to recover attorney’s fees. See Eberbach v. Eberbach, 535 S.W.3d
467, 474-75 (Tenn. 2017). Another common basis for an award of attorney’s fees is
Tennessee Code Annotated § 36-5-103(c), also known as “Tennessee’s Enforcement of
Orders statute.” Id. at 475. The version of the statute in effect at the time this matter was
decided allowed “[t]he plaintiff spouse [to] recover . . . reasonable attorney fees incurred
in enforcing any decree for alimony . . . at any subsequent hearing . . . in the discretion of
such court.”5 Tenn. Code Ann. § 36-5-103(c) (2017). We also note that, in Jekot II,
Ms. Jekot unsuccessfully sought an award of attorney’s fees under Tennessee Code
Annotated § 36-5-121. Jekot II, 362 S.W.3d at 85-86. But reliance on that statute in
connection with a post-divorce petition to terminate alimony would be problematic. See
Scherzer v. Scherzer, No. M2017-00635-COA-R3-CV, 2018 WL 2371749, at *22-23
(Tenn. Ct. App. May 24, 2018) (McBrayer, J., concurring).
In their briefs, both parties discuss the trial court’s award of attorney’s fees in
terms of the court’s discretion. This suggests that the award was made under a statute
rather than a contract. Yet we cannot be certain under what statute the court awarded
fees. Under the circumstances, we vacate the award of attorney’s fees. On remand, Ms.
Jekot must specify the contractual or statutory provision under which she claims a right to
5
Effective July 1, 2018, Tennessee Code Annotated § 36-5-103(c) allows “[a] prevailing party
[to] recover reasonable attorney’s fees . . . in any . . . proceeding to enforce, alter, change, or modify any
decree of alimony.” 2018-2 Tenn. Code Ann. Adv. Legis. Serv. 236 (LexisNexis).
10
recover her attorney’s fees or identify some other recognized exception to the American
rule.
C.
Both parties request an award of attorney’s fees incurred on appeal. But, neither
party provides the basis for their request. So we decline to award either party their
attorney’s fees on appeal.
III.
We vacate the award of attorney’s fees to Ms. Jekot, but we affirm the decision of
the trial court in all other respects. Although his retirement was objectively reasonable
and constituted a substantial and material change in circumstance, Dr. Jekot failed to
demonstrate that a reduction or termination of his alimony obligation was appropriate.
This matter is remanded for further proceedings consistent with this opinion.
_________________________________
W. NEAL MCBRAYER, JUDGE
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