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Edwards v. Edwards8/25/2005
I.
Wife's first husband, who had been a railroad employee, died in 1991. She married Husband, who had also worked for the railroad, in 1992. The parties were divorced ten years later. By the terms of the divorce judgment entered in the trial court on April 29, 2002, Wife was awarded $475 per month in alimony in futuro, with the payments to terminate upon, inter alia, Wife "cohabit . . . with any other adult."
Four months after the entry of the divorce judgment, Husband filed a motion with the trial court seeking to modify the judgment. As pertinent to this appeal, the motion is very short:
Comes the plaintiff, Clyde Edwards, and moves the Court for an Order providing that alimony is no longer payable unto [Wife] in this cause by reason of [Wife's] residing with another adult who is able- bodied and capable of contributing to the expenses of the household in which [Wife] resides.
The trial court conducted a hearing on February 3, 2003. Following the hearing, the court entered an order on August 29, 2003, reciting, in part, as follows:
That the Court has reviewed the Decree of Divorce previously entered in this matter, particularly, the portion regarding the establishment of alimony for [Wife]. The term upon which [Husband] relies is that which reads alimony shall terminate upon the wife "cohabitating with any other adult." The Court does not consider [Wife] temporarily residing with her daughter as a violation of this provision. The Court regards cohabitation as a permanent living arrangement where [Wife] would sleep in the same bed with an adult male and permanently reside with him. The Court FINDS that [Wife] took up temporary residence with her daughter as she had no where else to go until she began receiving the additional income of her deceased husband's railroad retirement. The Court has further reviewed all factors pursuant to [Tenn. Code Ann. §] 36-5-101 in its review of [Husband's] request to terminate alimony. The Court FINDS that the relative positions of the parties, their health, financial standing and standard of living has not changed since the entry of the Decree of Divorce.
(Capitalization in original). In the same order, the court stated that it found Wife was "still . . . in need of and [Husband] has the ability to pay the alimony as ORDERED, in the amount of $475.00 per month." (Capitalization in original).
Husband filed a motion to alter or amend the trial court's judgment, which the trial court denied by order entered September 14, 2004. In the latter order, the court reversed its earlier comment as quoted above with respect to the meaning of the language "liv with a third person" as found in Tenn. Code Ann. § 36-5-101(a)(3). The court stated that it "recognize that the support for the recipient of the alimony form a third source, does not have to be limited to a `romantic' co-habitation ."
Husband appeals, raising two issues:
1. Did the trial court err in failing to terminate alimony in accordance with the provisions of the final decree of divorce and [Tenn. Code Ann.] § 36- 5-101(a)(3)(A) & (B)?
2. Did the trial court err in failing to modify or terminate alimony by reason of material change of circumstance?
II.
Our review of this non-jury case is de novo upon the record of the proceedings below with a presumption of correctness as to the trial court's factual findings, "unless the preponderance of the evidence is otherwise." Tenn. R. App. P. 13(d). The trial court's conclusions of law are not accorded the same deference. Brumit v. Brumit, 948 S.W.2d 739, 740 (Tenn. Ct. App. 1997).
III.
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