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Edwards v. Edwards8/25/2005
the Trial Court and specifically decided by the Trial Court. It is telling that Wife stated in her Motion To Set Aside Order Terminating Alimony filed on October 10, 2002, " hat [Wife's] only source of income now and since the time of the parties' divorce has been the monthly alimony paid by [Husband], that her circumstances have not changed at all since the entry of Final Decree and that she resides with her daughter out of necessity, not out of convenience." In short, by filing this motion to set aside order terminating alimony, Wife specifically placed at issue any change in her income as a material change of circumstances when she alleged that her "only source of income now and since the time of the parties' divorce has been the monthly alimony paid by [Husband]. . . ."
As to the majority's noting that there was "some suggestion in the record that Husband, who had also worked for the railroad, was aware, at the time of the parties' divorce , that, once divorced from him, Wife would be eligible for a pension by virtue of her first husband's service with the railroad", I respectfully disagree. Either the Trial Court considered and decided this issue of Wife's change of circumstances due to her increased income, or, as the majority holds, it did not. The majority claims that " he trial court in the instant case seems to have believed that this was what Husband was trying to do", holding this issue in "reserve". I find nothing in the record of the original hearing to suggest anything as to Wife's income other than Wife's very clear and explicit testimony that she was receiving no income and her daughter's testimony that she didn't know if her mother would be eligible for a pension on the account of her late husband after this divorce. I find no such "suggestion" as to Husband's knowledge, but instead choose to rely upon the actual testimony of Wife that she had no other income. I believe Wife's testimony to have been clear, and I believe her testimony was intended to show that she had no income and her alimony should be based upon her having no income. She was successful. I am puzzled how Husband is to be charged with being aware of Wife's ability to collect this future income but somehow Wife did not know about it.
For these reasons, I would affirm the Trial Court's decision as to Husband's first issue, but I would reverse the Trial Court's decision finding there was no material change in circumstances sufficient to modify the alimony, and I would modify the alimony by reducing it accordingly.
D. MICHAEL SWINEY, JUDGE
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