Appeals Court Upholds Alimony Payments By Dr. Strait

Wednesday, November 29, 2006

The Tennessee Court of Appeals has upheld a ruling that Dr. Timothy Strait continue alimony payments to his former wife, Louise Davenport Strait.

The couple was divorced in 1995. Dr. Strait continued to pay monthly alimony until he stopped, contending there was a "third party" in her home - a former fork lifter operator from Winston-Salem, N.C.

Mrs. Strait said Donald Yokeley had resided with her, but only earned about $1,000 per year and had not contributed to her support.

The appeals court agreed with Chancellor Howell Peoples that Dr. Strait should resume the alimony.

Here is the full opinion:

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 18, 2006 Session
TIMOTHY ALEXANDER STRAIT v. LOUISE DAVENPORT STRAIT
Appeal from the Chancery Court for Hamilton County
No. 94-75173 Howell N. Peoples, Chancellor
No. E2005-02382-COA-R3-CV - FILED NOVEMBER 29, 2006
In this post-divorce case, Timothy Alexander Strait (“Husband”) appeals (1) the trial court’s
denial of his petition to terminate his alimony in futuro obligation to his former wife, Louise
Davenport Strait (“Wife”), and (2) the trial court’s judgment awarding Wife an alimony
arrearage of $22,750. Wife raises a separate issue challenging the trial court’s denial of her
request for suit fees. As modified, the trial court’s judgment is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed as Modified; Case Remanded
CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS,
P.J., and SHARON G. LEE, J., joined.
Marvin Berke, Andrew L. Berke, Chattanooga, Tennessee, for the appellant, Timothy Alexander
Strait.
Roger W. Dickson, Leah M. Gerbitz, Chattanooga, Tennessee, for the appellee, Louise
Davenport Strait.
OPINION
I.
Husband and Wife were divorced on May 5, 1995. The judgment of divorce incorporated
the parties’ agreement. As pertinent to the issues on this appeal, the judgment provides that
Husband would pay Wife alimony in futuro in the following monthly installments: $5,500 from
August 15, 1995 until July 15, 1997; $4,500 from August 15, 1997 until July 15, 1999; and
$3,250 from August 15, 1999, until Wife’s remarriage or death.
On March 22, 2005, Husband, invoking the provisions of T.C.A. § 36-5-121(f)(2)(B),1
filed a petition asking the trial court to terminate his alimony in futuro obligation, or in the
alternative, to decrease the amount of his ordered alimony. Husband’s petition specifically
states:
[Wife] has had a third party living in her home for a period of time
believed to be in excess of two (2) years. Pursuant to Tennessee Code
Annotated § [36-5-121(f)(2)(B)], a rebuttal [sic] presumption is raised that
(A) the third party is contributing to the support of the alimony recipient,
thus, the alimony recipient does not need the amount of support previously
awarded or (B) the third person is receiving support from the alimony
recipient, thus, the recipient does not need the amount of alimony
previously awarded. In either circumstance, Tennessee Code Annotated §
[36-5-121(f)(2)(B)] provides that the court can suspend all or part of the
previously ordered alimony payments.
In her answer filed April 6, 2005, Wife admitted the allegations of the first sentence of
the above quoted paragraph, i.e., that she had a third party living in her home for over two years.
However, she denied that Husband was entitled to the relief sought. Wife asked that Husband be
held in contempt because he had unilaterally stopped paying alimony on January 1, 2005.2 She
requested that the court deny Husband’s petition and order him to pay all alimony due, plus
interest, as well as her legal expenses and costs.
The trial court conducted a hearing at which Husband, Wife, and the “third party,”
Donald Yokeley, testified. Following the hearing, the trial court entered an order on September
13, 2005, dismissing Husband’s petition in toto and ordering him to pay Wife an alimony
arrearage in the amount of $22,750.
The final order incorporates the following findings of fact and conclusions of law made
by the trial court from the bench at the conclusion of the hearing:
Once alimony in futuro has been ordered, it can be changed upon showing
a change of circumstances. The burden is on the party who alleges a
change of circumstances to prove by a preponderance of the evidence such
a change. In the present case that burden is upon [Husband].
According to the evidence submitted, and that’s what the Court has to
decide the case on, [Husband’s] income in 2005 is approximately the same
as it was at the time of the divorce in 1995, about $380,000 a year.
[Wife’s] assets and her income are approximately the same as they were in
1995. So basically there is no significant change of circumstances in
either his income or her assets and income.
1 The petition referred to the statute by its then-designation, T.C.A. § 36-5-101(a)(3). The numbering of the
statute was changed effective July 1, 2005, in advance of the trial of this matter on August 29, 2005. We will refer
to the new section number throughout this opinion.
2 Husband resumed his alimony payments in August, 2005, just before the trial of this matter began.
There is also an allegation that alimony should be modified or terminated
based upon Tennessee Code Annotated [36-5-121(f)(2)(B)]. That has to
do with a party who receives alimony either living with or having
someone live with them. The statute states that under such circumstances
a rebuttable presumption is raised either: (1) that this third person is
contributing to the support of the alimony recipient and that the alimony
recipient therefore does not need the continuing alimony support; or (2)
that the third person is receiving support from the alimony recipient and
the alimony recipient therefore does not need continuing alimony support.
At the time this petition was filed in March 2005 and for three years
preceding the filing of this petition, Donald Yokeley lived with [Wife].
During this period of time Mr. Yokeley had various temporary jobs and
according to the evidence earned approximately a thousand dollars or so a
year. He received food stamps during this time. [Wife] paid some
medical and dental expenses for him. She purchased some clothing for
him. She made some small gifts to him and to his children. She paid for
several trips they made together. In June 2005 she paid his first month’s
rent for his separate apartment.
The evidence is that in the last two months he has lived at that apartment
approximately 10 to 15 days a month each month. The Court finds that
Mr. Yokeley has also assisted [Wife] at times when she had injuries or
sickness. There is, however, no evidence that he has contributed to her
financial support. In fact, it’s fairly apparent that he doesn’t have the
wherewithal to make financial contributions.
The Court finds that Mr. Yokeley no longer lives with [Wife] at all times.
Even when he did, the evidence is that she didn’t contribute substantially
to his support, but to the extent that she did the expenditures for him were
not of large amounts. The evidence establishes that if the alimony
payments cease [Wife] will be required to dissipate her separate property
that she had prior to the marriage and the property she received as part of
her division of the marital assets.
The Court therefore finds that the statutory presumption is rebutted by the
evidence and the petition to terminate alimony should be dismissed.
[Husband] will be required to pay the arrearage of alimony in the amount
of $22,750 and the cost of this cause. . . .
II.
Husband raises the following issue, taken verbatim from his brief:
Whether the trial court erred in refusing to suspend alimony despite
[Wife’s] cohabitation and support of a third party, as well as her failure to
[present] any proof to overcome the statutory presumption of a suspension
of the alimony in futuro.
He asks us to reverse the trial court’s judgment dismissing his petition. He further requests that
we “suspend all alimony completely, and order [Wife] to reimburse [him] for alimony paid to her
since the filing of the petition.”
As we understand Husband’s brief, he seeks the following relief: first, that we suspend
his alimony obligation for all payments due from and after the filing of his petition; and second,
that we order Wife to reimburse him for all payments made by him “since the filing of the
petition.”
This case involves the interpretation and application of T.C.A. § 36-5-121(f)(2)(B):
(B) In all cases where a person is receiving alimony in futuro and the
alimony recipient lives with a third person, a rebuttable presumption is
raised that:
(i) The third person is contributing to the support of the alimony recipient
and the alimony recipient does not need the amount of support previously
awarded, and the court should suspend all or part of the alimony
obligation of the former spouse.
(ii) The third person is receiving support from the alimony recipient and
the alimony recipient does not need the amount of alimony previously
awarded and the court should suspend all or part of the alimony obligation
of the former spouse.
Given the issues raised by Husband, we must decide whether this statute as applied to the facts of
this case warrants the suspension, in whole or in part, of Husband’s alimony obligation to Wife
from and after the date of filing of Husband’s original petition or for any lesser period of time
that ensued after the filing of the petition.
Wife raises a separate issue. She contends that the trial court erred in denying her request
that Husband pay her attorney’s fees associated with her defense of his petition.
III.
Our review of the trial court’s findings of fact is de novo upon the record, accompanied
by a presumption of correctness, a presumption we must honor unless the preponderance of the
evidence is against those findings. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston,
854 S.W.2d 87, 91 (Tenn. 1993). There is no presumption of correctness as to the trial court’s
conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996).
IV.
Donald Yokeley worked as a forklift driver in Winston Salem, North Carolina, prior to
the time he met Wife and began a relationship with her in 2001. In 2002, Mr. Yokeley quit his
job and moved into Wife’s home in Chattanooga. He lived with Wife until June, 2005, when he
obtained a full-time job and moved into his own apartment. Up until that time, Mr. Yokeley did
odd jobs through temporary agencies and earned approximately $1,000 per year in each of the
years of 2002, 2003, and 2004. He also used money from a 401(k) plan as a source of income,
withdrawing over $10,000 from the account for some of his expenses over the same years.
According to Mr. Yokeley, Wife paid for the home expenses and utilities during the time
that he lived with her. He helped around the house by repairing things that needed to be fixed
and also helped Wife when she was recovering from various surgeries. Mr. Yokeley testified
that he received food stamps and paid for his own groceries with this assistance. He used Wife’s
address as his own when applying for food stamps. Wife bought his food to the extent that he
was unable to satisfy his needs with the food stamps. Mr. Yokeley stated that Wife bought a
Dodge van in 2004, and put the title in his name; however, he explained that the van was
“basically hers.” He said that he paid for his own gas. Wife also purchased clothing for Mr.
Yokeley, including a suit, sport coats, pants, shirts, and T-shirts.
Mr. Yokeley also admitted that Wife paid approximately $3,000 for an operation he
underwent and approximately $600 for a dental bill he incurred. She would also give him money
“here and there.” In 2003, he received a check from her in the amount of $1,000, but he did not
recall the purpose. He also received several checks from her for about $400 to $600. Wife
would also give money to Mr. Yokeley’s children. Over the years, she has taken Mr. Yokeley on
several trips to California and Florida. She paid for all of the airfare, hotel, and food expenses.
Since moving out of Wife’s home and getting his own apartment, Mr. Yokeley has
continued to spend the night at Wife’s house on multiple occasions. He testified that he has
spent approximately 10 to 15 days per month at his own apartment and that he plans to stay at his
place most of the time from this point on. Mr. Yokeley admitted that Wife paid his rent for the
first month.
Wife’s testimony was similar to that of Mr. Yokeley’s. She confirmed that Mr. Yokeley
lived with her for several years until he moved out in June, 2005. According to Wife, Mr.
Yokeley fixed things around the house and worked in the yard. He also helped her when she had
various surgical procedures. Wife explained that she and Mr. Yokeley intend to live separately
from this point on because they need their own space, although he still spends weekends with
her.
Wife described Mr. Yokeley as a “low maintenance” man, who did not demand much
when it came to food and clothing. She verified that she bought some of his groceries, while he
paid for the rest with food stamps. She also bought him various items of clothing on sale. In
addition, she stated that she gave Mr. Yokeley various sums of money over the last few years,
but she stated that the money she gave him came from her own dividends, not from alimony.
She admitted that she wrote checks for $100 or $200 to Mr. Yokeley’s children for birthday and
Christmas gifts.
Wife also admitted that she has taken Mr. Yokeley on several trips and that she bought a
van and put it in his name. She stated that he paid for his own gas, unless he was running
errands for her, in which event she would pay for the gas. Wife acknowledged that she paid
$3,000 to one of his doctors for a surgery he underwent. She paid another doctor related to this
surgery but could not recall the amount. Wife also paid Mr. Yokeley’s first month of rent in the
amount of $395, but she stated that Mr. Yokeley reimbursed her.
In addition to testifying about the living arrangement with Mr. Yokeley, Wife also
testified generally about her assets. She owns a townhouse for which she paid $315,000. She
has no mortgage but she does pay utilities. She also owns a 1997 Honda Accord. She has stocks
with a market value of $1,064,288.38. She receives dividends from these stocks, and she
recently sold $22,000 worth of SunTrust bank stock because she needed extra money. Wife
testified that she does not want to keep liquidating her stock holdings. In 2004, she received
$16,000 from the dissolution of her father’s trust. She still receives $1,800 quarterly from her
great grandmother’s trust. She recently received $8,000 from selling Cousins Properties stock.
She maintains an IRA account worth approximately $107,000. She has a savings account with a
minimal balance. Wife gave $5,000 or $6,000 to charities in 2004. Wife explained that Husband
has not paid her alimony from January through July, 2005, causing her to have many overdrafts
on her bank account. She confirmed that Husband resumed his alimony payments in August,
2005.
Based upon this evidence, the trial court found that Mr. Yokeley no longer lived with
Wife, and even when he did, Wife did not contribute substantially to his support. The trial court
also determined that Wife will be required to dissipate her separate and marital property if the
alimony in futuro payments cease. Finally, the trial court concluded that Wife rebutted the
statutory presumption that she no longer needs the support previously awarded. We must
determine whether the evidence preponderates against these findings.
V.
A.
Husband contends that Wife lived with and supported Mr. Yokeley within the meaning of
T.C.A. § 36-5-121(f)(2)(B). Husband also asserts that Wife failed to rebut the statutory
presumption that she does not need the amount of alimony previously awarded. Therefore, he
argues that the trial court erred in failing to completely suspend his alimony in futuro obligation
and in ordering him to pay an alimony arrearage.
B.
In Tennessee, there is a rebuttable presumption that a recipient of alimony in futuro no
longer needs alimony when he or she resides with a third party. T.C.A. § 36-5-121(f)(2)(B);
Wright v. Quillen, 83 S.W.3d 768, 775 (Tenn. Ct. App. 2002). The purpose underlying this
statute is to provide an alternative method of proof when the changed circumstance is the
cohabitation of the alimony recipient with a third person. Wright, 83 S.W.3d at 775; Azbill v.
Azbill, 661 S.W.2d 682, 686 (Tenn. Ct. App. 1983). However, cohabitation does not
automatically end the right of the recipient to receive alimony. Wright, 83 S.W.3d at 775; Isbell
v. Isbell, 816 S.W.2d 735, 738 (Tenn. 1991). Rather, such a living arrangement shifts the burden
of proof to the recipient to show a continued need for the alimony previously awarded. Wright,
83 S.W.3d at 775; Azbill, 661 S.W.2d at 686.
In two recent decisions, Woodall v. Woodall, No. M2003-02046-COA-R3-CV, 2004 WL
2345814 (Tenn. Ct. App. M.S., filed Oct. 15, 2004), and Evans v. Evans, No. M2002-02947-
COA-R3-CV, 2004 WL 1882586 (Tenn. Ct. App. M.S., filed Aug. 23, 2004), this Court faced
factual scenarios involving living arrangements with a third party that ceased shortly after a
petition to modify alimony was filed. In Woodall, the wife lived with another man for several
months but moved out shortly after the husband filed his petition for a modification of the
alimony obligation. 2004 WL 2345814, at *4. In Evans, the wife lived with another man for
periods of time over several years but purchased her own condominium shortly after the husband
filed a petition to terminate or decrease the alimony award. 2004 WL 1882586, at *1-2.
Emphasizing that the living situation at the time of trial must be considered in determining
whether the statute applies, we held, in both cases, that the evidence did not preponderate against
the trial court’s finding that the wife was not living with the other man. Woodall, 2004 WL
2345814, at *5; Evans, 2004 WL 1882586, at *5-6.
In the instant case, we hold that the evidence does not preponderate against the trial
court’s finding that Mr. Yokeley no longer lives with Wife. Indeed, it is undisputed that Mr.
Yokeley moved out of Wife’s home in June, 2005 and secured his own apartment, albeit with
initial assistance from Wife. Because the cohabitation ended, rendering T.C.A. § 36-5-
121(f)(2)(B) inapplicable going forward, we need not consider Wife’s current need for alimony
and whether she rebutted the statutory presumption. See Woodall, 2004 WL 2345814, at *6
(“since the cohabitation had ended by the time of the trial, the wife’s current need was not put at
issue absent a substantial and material change of circumstances”). We agree with the trial court
that there has been no general, unrelated to the statute, change in the parties’ circumstances.
Therefore, we affirm the trial court’s decision to dismiss Husband’s petition to terminate his
alimony in futuro obligation going forward. There is simply no basis for suspending Husband’s
alimony in futuro obligation completely for all payments due from and after the filing of his
petition when the alleged changed circumstance, i.e. Mr. Yokeley’s cohabitation with Wife, no
longer exists.
C.
Next, we must address Husband’s request that we order Wife to reimburse him for all
payments made by him “since the filing of the petition.” We agree that Husband is entitled to a
limited reimbursement.
Although the statute was found to be inapplicable in both Woodall and Evans, the Court
of Appeals in both cases made some pertinent comments on the subject of an alimony payor
being entitled to relief from an alimony obligation between the time of filing a modification
petition and the cessation of the third party living arrangement. In Evans, the Court of Appeals
specifically acknowledged:
[w]e are mindful that a modification petition based on cohabitation will
often trigger an end to that cohabitation. Faced with a potential loss of
support, an alimony recipient could predictably choose to end the situation
that jeopardizes that support. Whether the change in residence of the
alimony recipient or the third party is genuine and permanent or whether it
is a temporary subterfuge is a factual question to be determined by the fact
finder. Even where the move is determined to be genuine, however, the
paying former spouse may be entitled to some relief, in the form of
suspension of all or part of the alimony payments, from the time of the
filing of the modification petition until the change in residence. The
appropriateness of such relief would, of course, depend on the facts and
particularly whether the recipient rebutted the presumption of lack of need
during the relevant period.
2004 WL 1882586, at *5 (emphasis added); see also Woodall, 2004 WL 2345814, at *5 n.8.
The concurring opinion by Judge Koch in Evans agreed with the majority’s statement in this
regard:
I concur with the court’s observation that spouses like [the husband] may
be entitled to recover the spousal support they paid between the time they
filed their petition to suspend support under [the statute] and the time their
former spouse stops cohabiting. In this case, that period would have been
from March 2002 through July 2002 when [the wife] moved her clothes
out of [the other man’s] house. Because [the husband] did not request this
relief at trial, we cannot grant it to him on appeal.
2004 WL 1882586, at *19 n.1 (citations omitted).
In the instant case, Wife provided Mr. Yokeley, who was unemployed for the most part
and eligible for food stamps, with a place to live for approximately three years, she paid for his
medical and dental expenses, she purchased a van and put it in his name, she paid for some of his
clothing, groceries, and gas, and she took him on several all expense paid trips. Clearly, Wife
supported Mr. Yokeley to a significant degree until he moved out in June, 2005, approximately
two months prior to the trial. With respect to the post-filing period of time put at issue by
Husband, we hold that the evidence preponderates against the trial court’s determination that
Wife did not “contribute substantially to his support.” In our judgment, the evidence
preponderates otherwise.
In this case, the relevant period would be from March, 2005, when Husband filed his
initial petition through June, 2005, when Mr. Yokeley moved out of Wife’s home. The trial
court’s award of $22,750 as alimony arrearage was based on Husband’s failure to pay his
alimony in futuro obligation from January, 2005 through July, 2005, a period of seven months at
a rate of $3,250 per month.
We hold that the evidence preponderates against the trial court’s award of an alimony
arrearage of $22,750. The preponderance of the evidence is that Wife was substantially
contributing to Mr. Yokeley’s support for four of the seven months for which the trial court
awarded an arrearage. For these four months, Husband should not be obligated to pay that
portion of his alimony payment which can be reasonably related to Mr. Yokeley’s support. We
have concluded that half, i.e., $1,625, of his monthly alimony obligation can be reasonably
attributed to Mr. Yokeley’s support for each of these four months. We calculate the arrearage as
follows:
January and February, 2005 $ 6,500
March - June, 2005 6,500
July, 2005 3,250
$16,250
We modify the trial court’s alimony arrearage by decreasing it from $22,750 to $16,250.
VI.
Finally, we address Wife’s contention that the trial court erred in denying her request that
Husband pay her attorney’s fees associated with her defense of his petition.
This Court summarized the law regarding the recovery of attorney’s fees as alimony in
the case of Eldridge v. Eldridge, 137 S.W.3d 1, 24-25 (Tenn. Ct. App. 2002):
In a divorce case, an award of attorney’s fees is treated as an award of
alimony in solido. Kinard v. Kinard, 986 S.W.2d 220, 235 (Tenn. Ct.
App. 1998); Herrera v. Herrera, 944 S.W.2d 379, 390 (Tenn. Ct. App.
1996). Thus, when determining whether to award attorney’s fees, the trial
court is required to consider the same factors used when considering a
request for alimony. Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct.
App. 1995). As with alimony, need is the critical factor to be considered
by the court when deciding whether to award attorney’s fees. Herrera,
944 S.W.2d at 390. An award of attorney’s fees is proper when one
spouse is disadvantaged and does not have sufficient resources with which
to pay attorney’s fees. Id. The question of whether to award attorney’s
fees, and the amount thereof, are largely left within the discretion of the
trial court and will not be disturbed on appeal unless the trial court clearly
abused that discretion. Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn.
1995).
In light of this standard, we do not find that the trial court abused its discretion in denying Wife’s
request for attorney’s fees. Wife had more than sufficient funds to pay her own attorney’s fees.
VII.
The trial court’s award of an alimony arrearage is modified so as to provide that Husband
will pay an arrearage of $16,250. The judgment is affirmed in all other respects. This case is
remanded to the trial court for enforcement of its judgment as modified and the collection of
costs assessed below, all pursuant to applicable law. Costs on appeal are taxed one-half to the
appellant, Timothy Alexander Strait, and one-half to the appellee, Louise Davenport Strait.
_______________________________
CHARLES D. SUSANO, JR., JUDGE


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