                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                            Submitted on Briefs April 17, 2002



                 RONALD E. WALKER v. SHERRY K. WALKER

                     Appeal from the Circuit Court for Hamilton County
                          No. 00D612     Samuel H. Payne, Judge

                                      FILED MAY 29, 2002

                                 No. E2001-01759-COA-R3-CV




Ronald E. Walker (“Husband”) and Sherry K. Walker (“Wife”) were divorced in 2001, pursuant to
a final judgment. The parties were awarded joint custody of their then almost sixteen year old child
(“Child”) with Husband serving as the primary physical custodian of the Child. The Trial Court
awarded Wife alimony in futuro and ordered Wife to pay child support. Husband appeals the type
of alimony awarded to Wife, the amount of the alimony award, and the amount of Wife’s child
support obligation. We affirm, as modified, and remand.


           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                         Affirmed, as Modified; Case Remanded.


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J.,
and HERSCHEL P. FRANKS, J., joined.


John R. Morgan, Chattanooga, Tennessee, for the Appellant, Ronald E. Walker.

Sherry B. Paty, Chattanooga, Tennessee, for the Appellee, Sherry K. Walker.
                                                    OPINION

                                                   Background

                In March 2000, after almost 17 years of marriage, Husband, age 47 at the time of trial,
filed a Complaint for Divorce, alleging alternative grounds of inappropriate marital conduct and
irreconcilable differences. Wife, age 44 at the time of trial, filed an Answer and Counter-Complaint
for divorce alleging inappropriate marital conduct on the part of Husband and irreconcilable
differences. The parties have one minor Child who, at the time of trial, was nearly 16 years old.

                The record on appeal shows that Husband is a long-time employee of TVA and in
2001, had a base yearly salary of $51,700. Husband’s income, however, was substantially higher
due to his overtime pay. The Trial Court found Husband’s average yearly income from 1997-2000,
to be $62,000 per year.

                The record shows that at the time of trial, Wife had been employed by DuPont for
nearly one year and had a yearly gross income of approximately $23,000.1 Prior to working at
DuPont, Wife was employed by Walmart, a local church, and a temporary employment service.
Wife testified her current job at DuPont was the best job she ever had. Wife also testified that,
during the parties’ 16-year marriage, she has had 11 surgeries. Wife currently takes medication for
diabetes, high blood pressure, and thyroid problems. Wife testified her health problems have
interfered in the past with her ability to work. The record on appeal does not show the education
level reached by Husband or Wife.

               Both parties, in their respective Income and Expense Statements contained in the
record on appeal, claimed a monthly deficit after their expenses were deducted from monthly net
income. Wife claimed a monthly deficit in the amount of approximately $940, while Husband
claimed a monthly deficit of $370. Both Husband and Wife, in their Income and Expense
Statements, claimed a monthly payment for a 1999 mini-van in the amount of approximately $720.

                Trial was held in April 2001, and thereafter, the Trial Court entered a Final Judgment
granting both parties a divorce without specifying the grounds. The trial transcript shows the Trial
Court, in awarding alimony in futuro to Wife, found that the disparity in the parties’ incomes was
“just too great.” Wife’s alimony in futuro totaled $500 every two weeks, or approximately $1,080
per month. The Trial Court also awarded Wife one-half of Husband’s TVA 401(k) and annuity
accounts and one-half of Husband’s monthly pension.2




        1
            For simplicity’s sake, we use round num bers in this opinion as much as possible.

        2
         Wife’s portion of Husband’s monthly pension totaled approximately $380 per month which she is to receive
once Husband becomes eligible to begin receiving pension benefits or reaches the age of 65.

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                The Trial Court, in its Final Judgment, also awarded Husband primary residential
custody of the Child, and ordered Wife to pay child support in the amount of $323 per month. The
Final Judgment incorporated, by reference, a Permanent Parenting Plan which provided that both
parties were to serve as joint residential custodians of the Child and contemplated that the “[Child]
shall reside with both parents which shall consist of equal time with both parents to coincide with
their work schedules.”

                The Trial Court awarded the parties’ home to Husband but assigned Husband the first
and second mortgages on the house. The Trial Court also awarded a judgment lien in the amount
of $11,000 in favor of Wife to represent her equity in the parties’ home.3 Husband also was awarded
the parties’ automobiles with the exception of the parties’ 1999 mini-van. The Trial Court ordered
the mini-van to be sold or traded and ordered Husband to assist Wife in finding another vehicle for
her use.

                  Husband appeals. We affirm, as modified.

                                                     Discussion

               On appeal and although not exactly stated as such, Husband raises the following
issues: (1) whether the Trial Court erred in awarding alimony in futuro instead of rehabilitative
alimony to Wife; (2) whether the Trial Court erred in awarding Wife alimony in the amount of
approximately $1,080 per month; and (3) whether the Trial Court erred in setting Wife’s child
support obligation since it failed to take into account Wife’s alimony income. Wife raises no
additional issues on appeal.

                Our review is de novo upon the record, accompanied by a presumption of correctness
of the findings of fact of the Trial Court, unless the preponderance of the evidence is otherwise.
Tenn. Rule App. P. 13(d); Brooks v. Brooks, 992 S.W.2d 403, 404 (Tenn. 1999). The Trial Court’s
conclusions of law are subject to a de novo review with no presumption of correctness. Ganzevoort
v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).

                 This Court has held that "[t]rial courts have broad discretion to determine whether
spousal support is needed and, if so, its nature, amount, and duration." Anderton v. Anderton, 988
S.W.2d 675, 682 (Tenn. Ct. App. 1998). “Appellate 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.” Id. A trial court’s determination regarding
spousal support generally will not be altered by this Court unless the trial court abused its discretion.
Robertson v. Robertson, E2000-01698-SC-R11-CV, 2002 Tenn. LEXIS 172, at * 11 (Tenn. Apr. 4,
2002).


         3
           Husb and w as ordere d to pay Wife $ 11,00 0 for he r equity in the parties’ home upon the Child’s graduation
from high scho ol.

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               When determining whether a spouse should receive support , how much support, and
what type of alimony is warranted, trial courts are to apply the factors outlined in Tenn. Code Ann.
§ 36-5-101(d)(1), which provides:

               In determining whether the granting of an order for payment of
               support and maintenance to a party is appropriate, and in determining
               the nature, amount, length of term, and manner of payment, the court
               shall consider all relevant factors, including:

               (A) The relative earning capacity, obligations, needs, and financial
               resources of each party, including income from pension, profit
               sharing or retirement plans and all other sources;

               (B) The relative education and training of each party, the ability and
               opportunity of each party to secure such education and training, and
               the necessity of a party to secure further education and training to
               improve such party's earning capacity to a reasonable level;

               (C) The duration of the marriage;

               (D) The age and mental condition of each party;

               (E) The physical condition of each party, including, but not limited
               to, physical disability or incapacity due to a chronic debilitating
               disease;

               (F) The extent to which it would be undesirable for a party to seek
               employment outside the home because such party will be custodian
               of a minor child of the marriage;

               (G) The separate assets of each party, both real and personal, tangible
               and intangible;

               (H) The provisions made with regard to the marital property as
               defined in § 36-4-121;

               (I) The standard of living the parties established during the marriage;

               (J) The extent to which each party has made such tangible and
               intangible contributions to the marriage as monetary and homemaker
               contributions, and tangible and intangible contributions by a party to
               the education, training or increased earning power of the other party;


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               (K) The relative fault of the parties in cases where the court, in its
               discretion, deems it appropriate to do so; and

               (L) Such other factors, including the tax consequences to each party,
               as are necessary to consider the equities between the parties.

Tenn. Code Ann. § 36-5-101(d)(1).

               While all relevant factors must be considered when setting the amount of an alimony
award, need and the ability to pay are the critical factors. Anderton v. Anderton, 988 S.W.2d at 683.
Discussing the intent behind alimony, our Supreme Court has held:

               "the purpose of spousal support is to aid the disadvantaged spouse to
               become and remain self-sufficient and, when economic rehabilitation
               is not feasible, to mitigate the harsh economic realities of divorce."

Burlew v. Burlew, 40 S.W.3d 465, 470-71 (Tenn. 2001) (quoting Anderton v. Anderton, 988 S.W.2d
at 682).

               Although "the legislature has demonstrated a preference for an award of rehabilitative
alimony[,]" the relevant statute for alimony, Tenn. Code Ann. § 36-5-101(d)(1), does contemplate,
under the appropriate circumstances, a long-term award of alimony, or alimony in futuro, providing:

               Where there is such relative economic disadvantage and rehabilitation
               is not feasible in consideration of all relevant factors . . . then the
               court may grant an order for payment of support and maintenance on
               a long-term basis . . . .

Crabtree v. Crabtree, 16 S.W.3d 356, 358 (Tenn. 2000). "[T]he purpose of [alimony in futuro] is
to provide financial support to a spouse who cannot be rehabilitated." Burlew v. Burlew, 40 S.W.3d
at 471.

               Husband’s issues on appeal regarding the Trial Court’s award of alimony to Wife
concern both the type and the amount of alimony. We first will consider the issue regarding the type
of alimony the Trial Court awarded to Wife.

                Recently, our Supreme Court issued its opinion in Robertson v. Robertson, regarding
the issue of alimony in a case which had facts similar to this matter. Robertson v. Robertson, 2002
Tenn. LEXIS 172, at * 12-15. Mr. Robertson, like the Husband in this matter, was employed by
TVA and his average yearly income was approximately $60,000. Id., at * 13. Mrs. Robertson had
a yearly income similar to that of the Wife’s in this matter, earning approximately $22,000. Id., at
* 12. Accordingly, the Robertsons had a disparity in income commensurate with that of the parties
in this matter.

                                                 -5-
               In Robertson, our Supreme Court found that the trial court’s award of rehabilitative
alimony to Mrs. Robertson was not an abuse of discretion. Id., at * 15-16. The Robertson Court
reversed this Court which found Mrs. Robertson should be awarded alimony in futuro since she
“could not be rehabilitated to a reasonable standard of living, viewed in the context of her pre-
divorce standard of living.” Id., at * 4. The Robertson Court stressed the importance of considering
every relevant factor provided by the alimony statute and the application of the statute’s factors on
a case-by-case basis. Id., at *7. The Court recognized the legislature’s preference for rehabilitative
alimony and discussed the purpose of rehabilitative alimony as follows:

                [R]ehabilitative alimony may assist the disadvantaged spouse in
                obtaining further education or training. . . . (“Rehabilitative alimony
                serves to support an economically dependent spouse ‘through a
                limited period of re-education or retraining following divorce, thereby
                creating incentive and opportunity for that spouse to become self-
                supporting.’”). It may also provide temporary income to support the
                disadvantaged spouse during the post-divorce economic adjustment.
                ...

Id., at * 8 (citations omitted).

                The Robertson Court, in finding that the trial court’s award of rehabilitative alimony
to Mrs. Robertson was not an abuse of discretion, reviewed Mrs. Robertson’s work history as a full-
time homemaker and part-time substitute teacher and her recent attainment of a 4-year degree in
education. Id., at * 15-16. The Court found significant that Mrs. Robertson anticipated beginning
her teaching career with a salary of approximately $22,000, stating that “[i]n light of [Mrs.]
Robertson’s college education and new employment, we agree that [Mrs.] Robertson, though
economically disadvantaged, is capable of rehabilitation.” Id. In addition, the Court found that the
rehabilitative alimony could assist Mrs. Robertson in obtaining a master’s degree to increase her
earning capacity. Id., at * 16.

                 We believe the facts of Robertson are readily distinguishable from the facts of this
case. Wife’s circumstances show that, unlike the economically disadvantaged spouse in Robertson,
it is highly unlikely that Wife could rehabilitate herself through further education or training.
According to Robertson, the Trial Court should not have relied as heavily as it did upon just one of
the factors of the alimony statute, the disparity in the parties’ incomes. See id., at * 7. The proof in
the record, however, shows that other factors establish Wife’s need for alimony in futuro. While we
acknowledge the legislature has expressed a preference for rehabilitative alimony in Tenn. Code
Ann. § 36-5-101(d)(1), the record on appeal shows that, due to Wife’s earning history, age, and
health, Wife’s possibilities to rehabilitate herself to increase her income are limited. See Tenn. Code
Ann. §§ 36-5-101(d)(1)(A), (B)& (E). Accordingly, after considering all relevant factors provided
by the alimony statute in light of the facts and circumstances presented by the record, we hold the
Trial Court’s award of alimony in futuro, as opposed to rehabilitative alimony, was not an abuse of


                                                  -6-
discretion. See Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998); Robertson v.
Robertson, 2002 Tenn. LEXIS 172, at * 11.

             We next consider Husband’s arguments on appeal that the amount of alimony
awarded to Wife was an abuse of discretion and that Wife’s alimony income should be counted as
“gross income” for purposes of calculating her child support obligation. Since the amount of
alimony Wife receives may impact her child support obligation, we will consider these issues
together.

               With respect to Wife’s child support obligation, the record shows the Trial Court
apparently did not treat Wife’s alimony as income when setting her child support obligation at $323
per month. The Trial Court found that Wife’s annual yearly gross income was $22,992, and the
Child Support Guidelines (“Guidelines”) Chart shows a child support obligation of $323 per month
for one child for that amount of yearly gross income. The Guidelines clearly provide that when
calculating the obligor’s child support payment, alimony is included in the definition of “gross
income.” Tenn. Comp. R. & Regs., ch. 1240-2-4-.03(3)(a). Accordingly, we hold it was error for
the Trial Court to fail to include Wife’s alimony in her gross income when calculating her child
support obligation. Due to the effect any change in the amount of alimony might have upon Wife’s
child support obligation, we must discuss the issue regarding the amount of alimony awarded to
Wife before further considering Wife’s child support obligation.

                Husband contends the amount of alimony awarded to Wife, approximately $1,080
per month, constitutes an abuse of discretion and argues that after he pays alimony each month, he
has a deficit. The record on appeal shows that after Husband receives child support from Wife in
the amount of $323 and after he pays $1,080 in alimony to Wife, he has a monthly deficit of $410
per month. The record shows that Wife, on the other hand, has approximately $540 per month
remaining after she pays child support of $323 and receives alimony of $1,080 per month.

                 As discussed, while each factor of the alimony statute must be considered, need and
ability to pay are the most important considerations. See Anderton v. Anderton, 988 S.W.2d at 683.
The record on appeal shows that while Wife has shown a need for alimony in futuro, Husband does
not have the ability to pay Wife the amount of alimony ordered by the Trial Court. We find, after
considering all relevant factors, the amount of alimony should be reduced to $750 per month. See
Tenn. Code Ann. §§ 36-5-101(d)(1)(H) & (L). This reduction in Husband’s alimony obligation
means that after Wife’s child support obligation is taken into account, each party will have some
excess income remaining and will not face a monthly deficit. Therefore, the portion of the Final
Judgment regarding the amount of alimony awarded to Wife is modified to reflect an award of
alimony in futuro of $750 per month.

               Since, as discussed, alimony is included in the Guidelines’ definition of “gross
income,” we now consider whether Wife’s child support obligation should be modified to reflect the
inclusion of alimony. See Tenn. Comp. R. & Regs., ch. 1240-2-4-.03(3)(a). Wife’s receipt of
alimony in the amount of $750 per month increases her total yearly gross income to approximately

                                                -7-
$32,000, or approximately $2,670 per month. The Guidelines Chart provides that Wife’s child
support obligation for one child is $443 per month.

                 Wife contends on appeal, however, that her child support obligation of $323 per
month set by the Trial Court was not error because of the equal parenting time the parties have with
the Child. Wife’s argument is, in essence, that her above-average visitation with the Child justifies
a downward deviation from the Guidelines amount. The Trial Court, in its Final Judgment, however,
did not state it was deviating from the Guidelines amount to take into consideration Wife’s shared
parenting time. Instead, the Trial Court applied the Guidelines to Wife’s annual yearly gross income
excluding alimony rather than deviating downward from the Guidelines amount. The Permanent
Parenting Plan does contemplate that the Child will spend equal amounts of time with the parties to
coincide with the parties’ work schedules. Husband, however, testified the Child spends 90% of his
time at Husband’s home. Wife testified that while she is living separately from Husband and the
Child, she spends a considerable amount of time with the Child and has stayed overnight with the
Child at Husband’s home. Wife also testified she purchases food and clothing for the Child.

               The Guidelines “are a minimum base for determining child support obligations.”
Tenn. Comp. R. & Regs., ch. 1240-2-4-.02(5). Tenn. Code Ann. § 36-5-101(e)(1)(A) provides a
rebuttable presumption that the Guidelines amount shall be applied by the trial court. See also Tenn.
Comp. R. & Regs., ch. 1240-2-4-.01(2). Trial courts, however, have limited discretion to deviate
upward or downward from the Guidelines. Bowers v. Bowers, 956 S.W.2d 496, 499 (Tenn. Ct. App.
1997). Tenn. Code Ann. § 36-5-101(e)(1)(A) provides, in pertinent part, as follows:

               If the court finds that evidence is sufficient to rebut this presumption,
               the court shall make a written finding that the application of the . . .
               [Guidelines] would be unjust or inappropriate . . . in order to provide
               for the best interest of the child(ren) or the equity between the parties.
               Findings that the application of the [Guidelines] would be unjust or
               inappropriate shall state the amount of support that would have been
               ordered under the [Guidelines] and a justification for the variance
               from the [Guidelines].

Tenn. Code Ann. § 36-5-101(e)(1)(A); see also Tenn. Comp. R. & Regs., ch. 1240-2-4-.02(7). Our
Supreme Court in Jones v. Jones, 930 S.W.2d 541 (Tenn. 1996), outlined the limited circumstances
in which trial courts may deviate downward from the Guidelines’ amount which include instances
“where the child(ren) spend more visitation time with the obligor than is assumed by the
[G]uidelines. . . .” Id. at 545 (citing Tenn. Comp. R. & Regs., ch. 1240-2-4-.04(2)(b)).

              Wife testified she spends a lot of time with the Child but did not quantify how much
time. Husband, who has physical custody of the Child, testified that the Child spends 90% of his
time at Husband’s home. While Wife stays overnight some with the Child at Husband’s home, the
Guidelines contemplate overnight visitation with the non-custodial, obligor parent in joint custody
arrangements such as the parties’. See Tenn. Comp. R. & Regs., ch. 1240-2-4-.02(6). In addition,

                                                  -8-
Husband has actual physical custody of the Child, and the record shows that Wife, while exercising
overnight visitation with Child, is doing so at Husband’s home instead of her own residence. See
Tenn. Comp. R. & Regs., ch. 1240-2-4-.02(6) (stating that “[t]hese [G]uidelines are designed to
consider the actual physical custody of the child(ren), regardless of whether . . . such an arrangement
is ordered to be joint custody or split custody”). Due to the lack of proof in the record justifying a
downward deviation from the Guidelines amount and the lack of written findings by the Trial Court
in the Final Judgment regarding the variance, we hold that Wife’s child support obligation should
equal the Guidelines amount of $443 per month based upon her income from her DuPont job and
her receipt of alimony. Accordingly, the portion of the Trial Court’s Final Judgment regarding child
support is modified to include Wife’s alimony in her income, thereby resulting in a child support
obligation of $443 per month.

                                             Conclusion

                The Trial Court’s judgment regarding the amount of alimony is modified by setting
alimony at $750 per month. The portion of the judgment regarding the amount of child support is
modified by setting child support at $443 per month. The Trial Court’s judgment is affirmed, as
modified. This cause is remanded to the Trial Court for such further proceedings as may be required,
if any, consistent with this Opinion and for collection of the costs below. The costs on appeal are
assessed equally against the Appellant, Ronald E. Walker, and his surety and the Appellee, Sherry
K. Walker.




                                                       ___________________________________
                                                       D. MICHAEL SWINEY, JUDGE




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