Anthony Bruce Colston v. Melinda Kay Colston ( 2011 )


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  •                    IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    May 13, 2011 Session
    ANTHONY BRUCE COLSTON v. MELINDA KAY COLSTON
    Appeal from the Circuit Court for Sumner County
    No. 28454C     C. L. Rogers, Judge
    No. M2010-02094-COA-R3-CV - Filed June 30, 2011
    In this post-divorce proceeding, Husband appeals the trial court’s order requiring him to pay
    an alimony arrearage of $86,000.00. We affirm the judgment for the arrearage and remand
    the case for reconsideration of the requirement that Husband pay the arrearage at $1,500.00
    per month.
    Tenn. Rule App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
    Part and Reversed in Part; Case Remanded
    R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
    J R. and A NDY D. B ENNETT, JJ., joined.
    Gary Michael Williams, Hendersonville, Tennessee, for the appellant, Anthony Bruce
    Colston.
    Mark Thomas Smith, Gallatin, Tennessee, for the appellee, Melinda Kay Colston.
    MEMORANDUM OPINION 1
    I. Facts and Procedural History
    In this case, we are called upon to review the trial court’s order requiring Husband to
    pay an alimony arrearage of $86,000.00 which accrued from the entry of the Final Decree
    1
    Tenn. R. Ct. App. 10 states:
    This Court, with the concurrence of all judges participating in the case, may affirm, reverse
    or modify the actions of the trial court by memorandum opinion when a formal opinion
    would have no precedential value. When a case is decided by memorandum opinion it shall
    be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
    or relied on for any reason in any unrelated case.
    of Divorce until Husband filed a Petition to Terminate Alimony. Anthony Bruce Colston
    (“Husband”) and Melinda Kay Colston (“Wife”) were divorced on September 21, 2007. The
    Final Decree of Divorce ordered Husband to pay Wife alimony in futuro in the amount of
    $3,000 per month. Husband appealed the award of alimony in futuro, and this Court upheld
    the award in Colston v. Colston, No. M2007-02757-COA-R3-CV, 
    2009 WL 2589040
     (Tenn.
    Ct. App. Aug. 21, 2009).
    On December 10, 2009, Husband filed a Petition to Terminate Alimony averring that
    he was physically unable to work due to “severe medical conditions.” Husband alleged that
    his physical condition constituted a substantial and material change of circumstances
    warranting the termination of his alimony obligation. Wife filed an answer in which she
    denied that Husband was entitled to relief, and stated that Husband had not paid alimony in
    accordance with the prior order of the court, which resulted in a significant alimony
    arrearage.
    The court held a hearing on Husband’s petition on August 24, 2010 at which Husband
    testified that he had nine surgeries, including four amputations, since the entry of the Final
    Decree of Divorce. Husband testified that as a result of these surgeries, he experienced
    severe depression and blood clots and was unable to work. Husband stated that his only
    income was a monthly social security disability payment of $1,640.00. Wife advised the
    court that she had no objection to the termination of Husband’s alimony obligation as of the
    date Husband filed his Petition to Terminate Alimony; however, she objected to Husband
    being excused from paying alimony from September 2007 until December 2009.
    The court entered an order on September 8, 2010 and noted that Wife, “advised the
    Court [she] had no objection to the termination of alimony from the time [Husband] filed his
    petition but [she] did object to excusing any of his court ordered alimony payments from
    September 15, 2007 until December 10, 2009.” The trial court held that Husband, “had
    violated the orders of this Court by not paying alimony as ordered” and required Husband to
    pay $1,500.00 per month toward an alimony arrearage of $86,000.00 plus ten percent per
    annum in interest, to be deducted from Husband’s disability check. The court terminated
    Husband’s alimony obligation as of December 10, 2009, the date Husband filed the Petition
    to Terminate Alimony.
    Husband appeals raising the following issues for our review:
    I. Whether the trial court erred in ordering Husband to pay an alimony
    arrearage from September 2007 to December 2009 in the amount of $86,000.
    II. Alternatively, whether this Court should reduce Husband’s monthly
    arrearage payment to $500 per month.
    -2-
    II. Discussion
    The Final Decree of Divorce awarded Mother alimony in futuro in the amount of
    $3,000.00 per month, an amount which the trial court set based upon Wife’s need and
    Husband’s ability to pay. Husband appealed the trial court’s award of alimony and this Court
    affirmed the trial court, finding that “the nature and amount of the alimony awarded by the
    trial court was supported by the evidence.” Colston v. Colston, No. M2007-02757-COA-R3-
    CV, 
    2009 WL 2589040
    , at *3 (Tenn. Ct. App. Aug. 21, 2009). In this proceeding, Husband
    contends that his medical problems constitute a substantial and material change in
    circumstances and that he should be excused from paying the arrearage which accrued since
    the entry of the Final Decree; he requests that the termination of his alimony be retroactive
    to September 2007.
    Pursuant to Tenn. Code Ann. §36-5-121(f)(2)(A), “An award of alimony in futuro
    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 circumstance.” Until the necessary change in circumstance is shown and
    the award modified, the order “shall be entitled to be enforced as any other judgment of a
    court of this state . . . .” Tenn. Code Ann. § 36-5-121(o). Tenn. Code Ann. §36-5-
    121(f)(2)(A) does not expressly authorize the court to make a modification of an award of
    alimony effective prior to the date of filing of the petition to modify. To the extent that the
    statute allows retroactive modification in the exercise of the court’s discretion, the record
    does not support a finding that the court abused its discretion in not making the cessation of
    alimony payments retroactive.2 We affirm the court’s entry of judgment for the arrearage in
    the amount of $86,000.00.
    Next, we must determine whether the trial court erred in requiring Husband to pay
    $1,500.00 per month toward the arrearage. Husband requests that this Court reduce the
    monthly payment to $500.00.
    In the Final Decree, the trial court determined that Husband had the ability to pay
    $3,000.00 per month in alimony; this determination was supported by evidence of Husband’s
    2
    Trial courts have broad discretion to determine whether spousal support is needed and, if so, its
    nature, amount, and duration. Broadbent v. Broadbent, 
    211 S.W.3d 216
    , 220 (Tenn. 2006); Bratton v.
    Bratton, 
    136 S.W.3d 595
    , 605 (Tenn. 2004). Accordingly, appellate courts are disinclined to second-guess
    the trial court’s alimony determination. Bogan v. Bogan, 
    60 S.W.3d 721
    , 727 (Tenn. 2001); Nelson v.
    Nelson, 
    106 S.W.3d 20
    , 23 (Tenn. Ct. App. 2002). Under an abuse of discretion standard, a trial court's
    ruling “will be upheld so long as reasonable minds can disagree as to propriety of the decision made..”
    Eldridge v. Eldridge, 
    42 S.W.3d 82
    , 85 (Tenn. 2001).
    -3-
    ability to earn income from a cable sales business despite his disabilities.3 In considering the
    petition to modify, the trial court made no findings as to Husband’s physical condition or
    whether he had the ability to earn income to supplement the $1,640.00 in social security
    disability he receives monthly.
    While we acknowledge and appreciate the trial court’s willingness to allow the
    judgment to be paid in monthly installments, we are unable to discern the basis upon which
    the court determined Husband could pay $1,500.00 per month. Husband testified that he paid
    the cost of medications from the money he received from disability payments, which left him
    with “little or no money at the end of the month.”4 In light of this testimony, the evidence
    does not support the requirement that Husband pay $1,500.00 per month toward the
    judgment. Consequently, we reverse the order requiring Husband to pay $1,500.00 per
    month and remand the case for reconsideration of the amount to be paid monthly to satisfy
    the arrearage.
    ___________________________________
    RICHARD H. DINKINS, JUDGE
    3
    In 2007, Husband was found by an administrative law judge of the social security administration
    to be disabled “because of insulin dependent diabetes mellitus with peripheral neuropathy, chronic pain
    syndrome, torsion dystonia, pontine stroke and depression.” Colston v. Colston, 
    2009 WL 2589040
    , at *1.
    4
    Husband introduced a list of fourteen medications he takes; however he did not include the
    monthly cost of the medication.
    -4-
    

Document Info

Docket Number: M2010-02094-COA-R3-CV

Judges: Judge Richard H. Dinkins

Filed Date: 6/30/2011

Precedential Status: Precedential

Modified Date: 4/17/2021