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Posted by: Karen Belcher on May 24, 2018

Head Comment: W. NEAL MCBRAYER, J., concurring.

Court: TN Court of Appeals

Attorneys 1:

Adrian H. Altshuler and Charles G. Blackard, III, Franklin, Tennessee, for the appellant, Melissa Marie Scherzer.

Attorneys 2:

Mary Arline Evans, Nashville, Tennessee, for the appellee, Dale Robert Scherzer.

Judge(s): FRIERSON

In this post-divorce action, the husband filed a petition to terminate or modify $2,000.00 in monthly transitional alimony that had been previously awarded to the wife as part of the marital dissolution agreement incorporated into the divorce decree. Following a bench trial, the trial court found that the wife was cohabiting with her fiancé and had failed to rebut the statutory presumption, pursuant to Tennessee Code Annotated § 36-5- 121(g)(2)(C), that she was either providing support to or receiving support from a third person and no longer needed the amount of alimony previously awarded. The trial court suspended the husband’s transitional alimony obligation retroactive to October 2015, the month when he had begun to deposit payments into an escrow account at the court’s direction. The court also awarded to the husband attorney’s fees and expenses in the amount of $19,331.50. The wife has appealed. Having determined that the wife failed to rebut the statutory presumption, we affirm the suspension of the husband’s transitional alimony obligation. However, having also determined that the evidence does not support a finding that the wife had the ability to pay the husband’s attorney’s fees, we reverse the trial court’s award of attorney’s fees to the husband. We decline to award attorney’s fees incurred on appeal to either party.