Douglas Patrick Hoering v. Marlita Dapar Hoering

04/01/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Submitted on Briefs November 1, 2021
DOUGLAS PATRICK HOERING v. MARLITA DAPAR HOERING
Appeal from the Probate & Family Court for Cumberland County
No. 2012-PF-2991 Larry M. Warner, Judge
No. E2021-00529-COA-R3-CV
In this post-divorce action, Douglas Patrick Hoering (“Husband”) petitioned for a
modification of his periodic alimony payment to Marlita Dapar (“Wife”), alleging that “she
is no longer suffering from a financial disadvantage, as she has obtained housing and
support from her paramour for some time.” The trial court ordered a reduction in
Husband’s monthly spousal support payment from $1,200 to $600, in a judgment
containing no findings of fact. Based on our de novo review of the record, we hold that
Husband failed to demonstrate a substantial and material change of circumstances that
would warrant decreasing his payment of alimony in futuro to Wife. The judgment of the
trial court is reversed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate & Family Court
Reversed; Case Remanded
KRISTI M. DAVIS, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY,
C.J., and CARMA DENNIS MCGEE, J., joined.
Howard L. Upchurch and Stacy H. Farmer, Pikeville, Tennessee, for the appellant, Marlita
Dapar.
Jonathan R. Hamby, Crossville, Tennessee, for the appellee, Douglas Patrick Hoering.
OPINION
I. BACKGROUND
The parties were divorced in 2013. At that time, they presented a marital dissolution
agreement (“MDA”) to the trial court, which approved and incorporated it into the divorce
decree. The MDA’s spousal support section provided, in its entirety, that “Husband shall
pay to Wife the amount of $1,200.00 per month as alimony in futuro until the death or
remarriage of Wife, subject to the following: the amount of alimony in futuro and child
support together shall not exceed the total amount of $1,200.00 per month.”
Husband filed his petition to modify alimony on January 27, 2020. The sole
allegation supporting his petition states “[t]hat a material change in circumstance has
occurred which would warrant a modification of said alimony. Specifically, the [Wife] is
no longer suffering from a financial disadvantage, as she has obtained housing and support
from her paramour for some time.” Wife denied this allegation, and a brief hearing
followed, at which the only witnesses were Husband and Wife. At the conclusion, the trial
court stated, without elaboration: “I believe the Husband’s entitled to some relief. I’m
going to reduce his alimony to $600 a month.”
The trial court’s final judgment contains no findings of fact. It states only as
follows, in pertinent part:
Following proof, review of the record, arguments of counsel, and statements
of both parties, the Court finds the following:
1. That the Petition to Modify Alimony is well-taken.
2. That the [Husband’s] alimony obligation to the [Wife] shall be reduced
from $1,200.00 per month to a sum of $600.00 monthly.
II. ISSUES PRESENTED
Wife appealed and presents the following issue: whether the trial court erred in
granting Husband’s petition to modify and decreasing the amount of alimony in futuro he
should be required to pay.
III. STANDARD OF REVIEW
As this Court has observed,
Our Supreme Court set out the standard of review to be applied in cases
involving a request for modification of a spousal support order stating:
Because modification of a spousal support award is “factually
driven and calls for a careful balancing of numerous factors,”
Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. Ct. App.
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1989), a trial court’s decision to modify support payments is
given “wide latitude” within its range of discretion, see
Sannella v. Sannella, 993 S.W.2d 73, 76 (Tenn. Ct. App.
1999). In particular, the question of “[w]hether there has been
a sufficient showing of a substantial and material change of
circumstances is in the sound discretion of the trial court.”
Watters v. Watters, 22 S.W.3d 817, 821 (Tenn. Ct. App. 1999)
(citations omitted). Accordingly, “[a]ppellate courts are
generally disinclined to second-guess a trial judge’s spousal
support decision unless it is not supported by the evidence or
is contrary to the public policies reflected in the applicable
statutes.” Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct.
App. 1998); see also Goodman v. Goodman, 8 S.W.3d 289,
293 (Tenn. Ct. App. 1999) (“As a general matter, we are
disinclined to alter a trial court’s spousal support decision
unless the court manifestly abused its discretion.”). When the
trial court has set forth its factual findings in the record, we will
presume the correctness of these findings so long as the
evidence does not preponderate against them. See, e.g.,
Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000); see
also Tenn. R. App. P. 13(d).
Schrade v. Schrade, No. E2016-01105-COA-R3-CV, 2017 WL 568545, at *4 (Tenn. Ct.
App. Feb. 13, 2017) (quoting Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001)).
IV. ANALYSIS
We first address the trial court’s failure to make any findings of fact in this case.
“Without findings of fact from a trial court, we have nothing upon which to presume
correctness.” Norris v. Norris, No. E2014-02353-COA-R3-CV, 2015 WL 9946262, at *2
(Tenn. Ct. App. Aug. 24, 2015). Tennessee Rule of Civil Procedure 52.01 provides that
“[i]n all actions tried upon the facts without a jury, the court shall find the facts specially
and shall state separately its conclusions of law and direct the entry of the appropriate
judgment.” Since its amendment effective in 2009, “the current version of Rule 52.01
requires the court to make these findings regardless of a request by either party.” Spigner
v. Spigner, No. E2013-02696-COA-R3-CV, 2014 WL 6882280, at *9–10 (Tenn. Ct. App.
Dec. 8, 2014). As we have stated too often before, “[t]his Court has previously held that
the requirement to make findings of fact and conclusions of law is ‘not a mere
technicality.’” E.g., Horine v. Horine, No. E2013-02415-COA-R3-CV, 2014 WL
6612557, at *7 (Tenn. Ct. App. Nov. 24, 2014); Spigner, 2014 WL 6882280, at *9.
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Our Supreme Court has explained the important reasons for Rule 52’s mandate that
trial courts make specific findings of fact and conclusions of law as follows:
Requiring trial courts to make findings of fact and conclusions of law is
generally viewed by courts as serving three purposes. 9C Charles A. Wright
et al., Federal Practice and Procedure § 2571, at 219–223 (3d ed.2005).
First, findings and conclusions facilitate appellate review by affording a
reviewing court a clear understanding of the basis of a trial court’s decision.
See Estate of Bucy v. McElroy, No. W2012–02317–COA–R3–CV, 2013 WL
1798911, at *3–4 (Tenn. Ct. App. Apr. 26, 2013) (noting that the Rule 52.01
requirement facilitates appellate review); Hardin v. Hardin, No. W2012–
00273–COA–R3–CV, 2012 WL 6727533, at *5 (Tenn. Ct. App. Dec. 27,
2012) (same); In re K.H., No. W2008–01144–COA–R3–PT, 2009 WL
1362314, at *8 (Tenn. Ct. App. May 15, 2009) (recognizing that without
findings and conclusions appellate courts are left to wonder about the basis
of a trial court’s decision); In re M.E.W., No. M2003–01739–COA–R3–PT,
2004 WL 865840, at *19 (Tenn. Ct. App. Apr. 21, 2004) (same); 9C Federal
Practice and Procedure § 2571, at 219 (recognizing that specific findings by
the trial court facilitate appellate review). Second, findings and conclusions
also serve “to make definite precisely what is being decided by the case in
order to apply the doctrines of estoppel and res judicata in future cases and
promote confidence in the trial judge’s decision-making.” 9C Federal
Practice and Procedure § 2571, at 221–22. A third function served by the
requirement is “to evoke care on the part of the trial judge in ascertaining and
applying the facts.” Id. at 222. Indeed, by clearly expressing the reasons for
its decision, the trial court may well decrease the likelihood of an appeal.
Hardin, 2012 WL 6727533, at *5.
Lovlace v. Copley, 418 S.W.3d 1, 34-35 (Tenn. 2013) (bracketed material in original
omitted); accord Machic v. Machic, No. E2017-01477-COA-R3-CV, 2018 WL 1445981,
at *2 (Tenn. Ct. App. Mar. 23, 2018). As this Court has recently reiterated,
The essential purposes of courts and judges are to afford
litigants a public forum to air their disputes, and to adjudicate
and resolve the disputes between the contending parties. To
carry out these purposes, judges must arrive at their decisions
by applying the relevant law to the facts of the case. Because
making these decisions is a “high judicial function,” a court’s
decisions must be, and must appear to be, the result of the
exercise of the trial court’s own judgment.
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The manner in which judges arrive at their decisions “gives
formal and institutional expression to the influence of reasoned
argument in human affairs.” In addition to expecting judges to
be “fair, impartial, and engaged,” the litigants, the bench and
bar, and the public expect them to explain why a particular
result is correct based on the applicable legal principles.
In re Nathan C., No. E2019-01197-COA-R3-PT, 2020 WL 730623, at *3 (Tenn. Ct. App.
Feb. 12, 2020) (emphasis in original; quoting Smith v. UHS of Lakeside, Inc., 439 S.W.3d
303, 312-13 (Tenn. 2014); internal citations in original omitted).
As the Supreme Court stated in Lovlace,
One remedy appellate courts typically apply when a trial court’s factual
findings fail to satisfy the Rule 52.01 requirement is to remand the case to
the trial court with directions to issue sufficient findings and conclusions.
See, e.g., Pandey v. Shrivastava, No. W2012–00059–COA–R3–CV, 2013
WL 657799, at *5–6 (Tenn. Ct. App. Feb. 22, 2013); Hardin, 2012 WL
6727533, at *5–6; In re Connor S.L., No. W2012–00587–COA–R3–JV,
2012 WL 5462839, at *4–5, *7 (Tenn. Ct. App. Nov. 8, 2012); Simpson v.
Fowler, No. W2011–02112–COA–R3–CV, 2012 WL 3675321, *4–5 (Tenn.
Ct. App. Aug. 28, 2012). Alternatively, an appellate court may choose to
remedy the trial court’s deficient factual findings by conducting a de novo
review of the record to determine where the preponderance of the evidence
lies.
418 S.W.3d at 36. In the present case, the record contains a transcript of the hearing, so
we are able to review the evidence presented verbatim, on a single legal issue that is in this
instance relatively clear and straightforward. Consequently, “[i]n the interest of judicial
economy and to save the parties additional expenses, we elect to proceed and make our
own determinations regarding where the preponderance of evidence lies as necessary.”
Norris, 2015 WL 9946262, at *3.
The trial court’s award of alimony in futuro is governed by Tenn. Code Ann. § 36-
5-121(f), which provides in pertinent part:
(1) Alimony in futuro, also known as periodic alimony, is a payment of
support and maintenance on a long term basis or until death or remarriage of
the recipient. Such alimony may be awarded when the court finds that there
is relative economic disadvantage and that rehabilitation is not feasible . . .
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(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 circumstances.
“A court may not modify or terminate a spousal support award until it first finds that a
sufficient change in circumstances has occurred since the entry of the original support
decree.” Schrade, 2017 WL 568545, at *4 (citing Bogan, 60 S.W.2d at 727-28). “Thus,
in most cases, the party seeking modification of an alimony award must initially prove that
a substantial and material change in circumstances has occurred.” Id.
Tennessee Code Annotated section 36-5-121(f)(2)(B) provides that
[i]n 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; or
(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.
However, in this case, nowhere in the record is there any reference or discussion regarding
the statutory presumption of section 36-5-121(f)(2)(B). Husband did not invoke it, nor did
he ever argue that the presumption should be applied. He does not refer to subsection
(f)(2)(B) on appeal. Our review is therefore limited to whether Husband demonstrated a
substantial and material change in circumstances.
The proof in the record is brief and consists only of the testimony of the parties.
The entire transcript of the hearing on Husband’s petition for alimony reduction is only 67
pages long. Moreover, a significant portion of it was spent on irrelevant or marginally
relevant subjects such as whether Husband was carrying on an affair during the marriage
with the woman, twenty years his junior, whom he married the same year as his divorce to
Wife. Regarding his finances, Husband testified that he has been on a fixed pension since
2010 (before the divorce), so his income has largely remained unchanged. Husband said
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that some of his medically-related expenses had gone up without providing any specific
details. He further testified:
Q. Now, when you filed your petition to modify alimony, you didn’t allege
that you had a, a, a problem with your ability to pay, did you?
A. No.
Q. The only allegation you made was that [Wife] had a paramour that was
living in her home, correct?
A. Yes.
The entirety of Husband’s proof regarding his allegation of Wife’s cohabitation with
her boyfriend is as follows:
Q. Now, at the time of the filing of this, you had an understanding that she
had a male paramour residing in the home; is that correct?
A. Correct, Carlos.
Q. All right. And based on largely that and his financial support is why you
decided to file this petition to modify?
A. Correct.
Q. And you still believe -- you don't know that he lived there or not at this
point, do you?
A. No, but he was there when she was served.
* * *
Q. Have you seen any paramour stay the night with [Wife]?
A. I was never in her bedroom, so I have no idea, but Carlos’ vehicle has
been there for, for years.
Q. Do you know where Carlos lives?
A. He’s, I think, on vacation in Portugal or something like that.
* * *
Q. Did you see her -- him having things in [Wife’s] house?
A. When I picked up my son, he had his own stuff there.
Q. What did you see?
A. Just from the doorway, just his own jackets and stuff like that --
Q. How do you know it was his jacket?
A. ‘Cause he put it in the kitchen area. Right by the front door is the kitchen.
Q. Okay. How did you know it was his jacket? You said that --
A. It came off his --
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Q. -- your son was there.
A. It came off his body.
Wife explained her relationship and living arrangement as follows:
Q. Okay. And are you -- do you have a -- are you in a, a romantic
relationship?
A. No.
Q. Okay. Have you been in a romantic relationship since your divorce?
A. Yes, before.
Q. And who is that romantic relationship with?
A. His name is Carlos. He’s from Portugal.
Q. He’s from Portugal?
A. Yes.
Q. Where is Carlos today?
A. He’s in Portugal.
Q. How long’s he been in Portugal?
A. Almost three months, but I was -- yes, three months.
Q. Okay. And when did your relationship end with Carlos?
A. Maybe more than, almost two years.
Q. Okay. And when Carlos is in the United States, where does he live?
A. He lives at the back of my house. I live in 102, and Carlos live[s] in the
other apartment at the back of my house, 103.
Q. Okay. When you call your house, is it a house or is it an apartment?
A. Oh, I’m sorry, apartment.
Q. Okay. And do you own or rent that?
A. I rent an apartment.
Q. Okay. And who do you rent that from?
A. I -- Charleston Apartment.
Q. Charleston --
A. Yes.
Q. -- Apartment? Is that where Carlos also rents?
A. Yes.
Q. Okay. So, he has his own address?
A. Yes.
Q. Okay. Has he ever resided with you?
A. No.
Q. Does he have, did he ever keep personal items at your home?
A. No.
O. No? Okay. Did he ever spend consecutive nights at your home?
A. No.
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Q. Okay. Does he, did he ever keep clothes at your home?
A. No. He has his own house.
* * *
Q. You say you’re no longer in a relationship with Carlos; is that correct?
A. Yes.
Q. And that ended sometime after the filing of the petition to modify the
alimony; is that right?
A. Yes.
Q. And he’s not living in . . . Portugal, he’s just visiting there; is that right?
A. Carlos is working in StonePeak. For three months, he has, after three
months or four months, they, they have to go back to, to Portugal because of
their visa. . . .
Q. But he’ll be back?
A. So, he’ll be back, so we don’t, yeah, he’ll be back.
Q. And do you plan on this relationship resuming at that point?
A. No.
After the divorce, Wife filed for bankruptcy. She works at Walmart, earning twelve
dollars an hour at the time of the hearing. Wife testified that she is also in poor health and
has struggled to pay her medical expenses. She stated that her standard of living is, and
has been, lower than when she was married.
As already noted, the parties agreed in their MDA, an enforceable contract, that
“Husband shall pay to Wife the amount of $1,200.00 per month as alimony in futuro until
the death or remarriage of Wife.” The trial court approved the MDA and incorporated it
into the divorce decree. We hold that Husband did not meet his burden of proving a
substantial and material change of circumstances that would warrant decreasing his
alimony payments to Wife.
V. CONCLUSION
The judgment of the trial court is reversed. Costs on appeal are assessed to the
appellee, Douglas Patrick Hoering, for which execution may issue if necessary.
_______________________________
KRISTI M. DAVIS, JUDGE
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