                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                August 20, 2014 Session

  REBECCA LYNN WILLENBERG v. MARK EDWARD WILLENBERG

               Appeal from the Chancery Court for Williamson County
                       No. 40740  Robbie T. Beal, Chancellor




              No. M2013-02627-COA-R3-CV – Filed September 23, 2014




In this divorce action, Husband appeals the trial court’s ruling that Wife was incapable of
rehabilitation and the award of alimony in futuro. Wife also appeals contending that the
award of alimony in futuro was too low; that the court failed to award her attorney fees; and
that the court refused to designate her as the custodian for their son’s college account. We
reverse the court’s ruling that Wife is incapable of rehabilitation and its award of alimony
in futuro, and remand for further proceedings; in all other respects, we affirm the judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed in
                    Part and Affirmed in Part; Case Remanded.

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R., P. J., M. S., and A NDY D. B ENNETT, J., joined.

Kimpi K. Kendrick, Murfreesboro, Tennessee, for the appellant, Mark Edward Willenberg.

Joanie L. Abernathy, Franklin, Tennessee, for the appellee, Rebecca Lynn Willenberg.

                                        OPINION

       This appeal arises from the divorce of Rebecca Willenberg (“Wife”) and Mark
Willenberg (“Husband”), who were married on June 2, 1990. On March 9, 2012, Wife filed
a Complaint For Absolute Divorce alleging irreconcilable differences and inappropriate
marital conduct, in which she requested, inter alia, temporary and permanent alimony.



                                             1
        On September 1, 2013, the Chancery Court entered a Final Decree of Divorce,
declaring the parties divorced pursuant to Tenn. Code Ann. § 36-4-129; the court divided the
marital property, assets, and mortgage debt. The court awarded Husband the marital home,
valued at $313,000; a 401(k) at a value of $100,000; $110,000 worth of stock; one-half of
his pension funds; a 2006 Toyota Avalon, 2000 Dodge Ram, 2002 Nitro Bass boat, as well
as fishing equipment and guns; and 100% of any bonuses he received from his employer.
Wife was awarded Husband’s retirement savings plan valued at $305,000; one-half of
Husband’s pension funds; a 401(k) in her individual name; and a 2005 Chevy Equinox. Both
parties were awarded checking and savings accounts in their individual names, and any
furniture, furnishings, and personal property in their possession.

        The court held that Wife could not be rehabilitated and awarded her alimony in futuro
in the amount of $2,000 per month for 12.5 years; she was also awarded alimony in solido
in the amount of $35,000.1

        Husband filed a timely appeal contending that the court erred in failing to award
rehabilitative alimony and in finding that he was able to increase his income. Wife appeals
the amount of alimony in futuro awarded, the court’s failure to award attorney fees, and the
failure to designate her as the custodian of a college account maintained for their son.

                                           DISCUSSION

I. A WARD OF S POUSAL S UPPORT

        Trial courts have broad discretion to determine whether spousal support is needed and,
if so, the nature, amount, and duration of support. See Garfinkel v.Garfinkel, 945 S.W.2d
744, 748 (Tenn. Ct. App. 1996). Pursuant to Tennessee law, a court may award rehabilitative
alimony, alimony in futuro, transitional alimony, alimony in solido or a combination of these.
Tenn. Code Ann. § 36-5-121(d)(1). Our Supreme Court, in Mayfield v. Mayfield, offered a
description of each form of spousal support:

        Alimony in futuro, a form of long-term support, is awarded where an
        economically disadvantaged spouse cannot achieve self-sufficiency and
        economic rehabilitation is not feasible. Alimony in solido, another form of
        long-term support, is typically awarded to adjust the distribution of the marital
        estate; it is generally not modifiable and does not terminate upon death or
        remarriage. Rehabilitative alimony is short-term support that enables an


       1
         The division of marital property is not in issue on appeal; neither party contests the award of
alimony in solido or that the court did not award transitional alimony.

                                                   2
      economically disadvantaged spouse to obtain education or training and become
      self-reliant following a divorce.       Where economic rehabilitation is
      unnecessary, transitional alimony, which is intended to assist the
      disadvantaged spouse in transitioning to the status of a single person, may be
      awarded.

395 S.W.3d 108, 115 (Tenn. 2012).

       Spousal support decisions require a careful balancing of the factors in Tenn. Code
Ann. § 36-5-121(i)2 and typically hinge on the unique facts and circumstances of the case.
See Anderton, 988 S.W.2d at 683; see also Hawkins v. Hawkins, 883 S.W.2d 622, 625 (Tenn.
Ct. App. 1994). The two most important factors are the need of the disadvantaged spouse
and the obligor’s ability to pay. Varley v. Varley, 934 S.W.2d 659, 668 (Tenn. Ct. App.
1996). Appellate courts will not alter such awards absent an abuse of discretion. Riggs v.
Riggs, 250 S.W.3d at 456-57 (Tenn. Ct. App. 2007 (citing Lindsey v. Lindsey, 976 S.W.2d
175, 180 (Tenn. Ct. App. 1997)); moreover, the appellate courts are disinclined to second-
guess a trial court’s decision regarding spousal support unless it is not supported by the



      2
          The factors are as follows:

          (1) 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;
          (2) 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 earnings capacity to a reasonable level;
          (3) The duration of the marriage;
          (4) The age and mental condition of each party;
          (5) The physical condition of each party, including, but not limited to, physical disability
          or incapacity due to a chronic debilitating disease;
          (6) 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;
          (7) The separate assets of each party, both real and personal, tangible and intangible;
          (8) The provisions made with regard to the marital property, as defined in § 36-4-121;
          (9) The standard of living of the parties established during the marriage;
          (10) 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;
          (11) The relative fault of the parties, in cases where the court, in its discretion, deems it
          appropriate to do so; and
          (12) Such other factors, including the tax consequences to each party, as are necessary to
          consider the equities between the parties.

                                                      3
evidence or is contrary to public policy. Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct.
App. 1994).

      After dividing the marital assets, the court made the following findings in awarding
alimony:

              17. Pursuant to the factors in T. C. A. § 36-5-121(2),3 the Court finds
      that the Wife is not a candidate for rehabilitation and is entitled to alimony in
      futuro based on the following findings and factors:

              a. Husband has greater earning capacity tha[n] that of Wife and even
      if Wife receives an accounting certificate, she could technically make up to
      $50,000.00 per year, outside range. Husband earns between $100,000.00 and
      $120,000.00, depending on bonuses and the Husband has the ability to
      increase his earning capacity based upon the fact that he’s with a well-
      established company, he has an extremely significant amount of tenure with
      that company, and the Court assumes he has the ability, even though he’s
      capped out in his current level, to earn more, assuming he’s promoted again
      prior to retirement.

             b. Both parties have relatively the same education. However, because
      the Husband has remained in the same industry for such an extended period of
      time, his training in a marketable field is substantial. Even if he was to lose his
      job, the training that he’s received would be much more profitable than the
      Wife’s training that she received in college.

                c. This is a long-term marriage of 23 years.

             d. Both parties are in good physical health; however, both parties are
      reaching the point where they should be concerned about retirement.

            e. The extent that it would be undesirable for a party to seek
      employment outside the home does not apply.

            f. The parties do not have any separate assets of significance, although
      the Husband has a small inheritance in an investment account.




      3
          It is apparent that the court meant the citation to be Tenn. Code Ann. § 36-5-121(i).

                                                     4
             g. The Court believes the division of property has been equitable.
       Husband has the ability to liquidate any equity in the marital home, but Wife
       would incur a tax penalty if she liquidated the retirement account she was
       awarded.

                 h. The Court believes it should not consider fault against either party.

                 i. The Wife has become used to a good standard of living.

               18. The Court does not think Wife is capable of rehabilitation, so an
       award of alimony in futuro is appropriate. Wife has a need for alimony and
       Husband has the ability to pay. Wife shall be awarded $35,000.00 as alimony
       in solido to equalize the division of assets, and Husband shall pay Wife this
       sum within sixty (60) days from July 17, 2013, and said funds shall be made
       via check made out to Wife and her attorney and shall be delivered to Wife’s
       attorney’s office.

              19. In order to get Wife to the age of retirement, the Court further
       awards Wife alimony in futuro in the amount of $2,000.00 per month for a
       period of 12.5 years to begin August 1, 2013 and continue on the first of each
       month thereafter, for a period of 150 months, or until Wife’s death or
       remarriage, or until Husband’s death. In order to secure his alimony obligation
       to Wife, Husband shall maintain a life insurance policy on his life in the
       amount of $250,000.00 for a ten (10) year term with Wife named as
       beneficiary.

Husband contends that the court erred in finding that Wife was not a candidate for
rehabilitation and in awarding Wife alimony in futuro. He also contends that she is qualified
for many jobs in her field, but made no effort to find a position, and did not show an inability
to work.

       Tenn Code Ann. § 36-5-121(e)(1) addresses the nature and propriety of an award of
rehabilitative alimony; the focus is on increasing the disadvantaged spouse’s earning
capacity.4 Inherent in the statutory framework is the expectation that, with training or


       4
           Tenn. Code Ann. § 36-5-121(e)(1) provides:

           (e)(1) Rehabilitative alimony is a separate class of spousal support, as distinguished from
           alimony in solido, alimony in futuro, and transitional alimony. To be rehabilitated means
           to achieve, with reasonable effort, an earning capacity that will permit the economically

                                                      5
education, the earning capacity of that spouse can be increased. In our consideration of this
issue, we are mindful of the instruction in Gonsewski v. Gonsewski:

        The statutory framework for spousal support reflects a legislative preference
        favoring short-term spousal support over long-term spousal support, with the
        aim being to rehabilitate a spouse who is economically disadvantaged relative
        to the other spouse and achieve self-sufficiency where possible. See Tenn.
        Code Ann § 36-5-121(d)(2)–(3); Bratton, 136 S.W.3d at 605; Perry v. Perry,
        114 S.W.3d 465, 467 (Tenn. 2003). Thus, there is a statutory bias toward
        awarding transitional or rehabilitative alimony over alimony in solido or in
        futuro. While this statutory preference does not entirely displace long-term
        spousal support, alimony in futuro should be awarded only when the court
        finds that economic rehabilitation is not feasible and long-term support is
        necessary. See Bratton, 136 S.W.3d at 605; Robertson, 76 S.W.3d at 341–42.

350 S.W.3d 99, 109 (Tenn. 2011).

        The findings quoted above address the factors at Tenn. Code Ann. § 36-5-121(i)
governing the propriety of an award of alimony; the court did not make specific factual
findings relative to its conclusion that Wife was not capable of rehabilitation. Where the
court has not made findings, we review the record and determine where the preponderance
of the evidence lies. See Brooks v. Brooks, 992 S.W.2d 405, 405 (Tenn. 1999); Devorak v.
Patterson, 907 S.W.2d 815, 818 (Tenn. Ct. App. 1995); Goodman v. Memphis Park Comm’n,
851 S.W.2d 165, 166 (Tenn. Ct. App. 1992); Kelly v. Kelly, 679 S.W.2d 458, 460 (Tenn. Ct.
App. 1984).

        Wife testified that she had a degree in public management; that her degree qualified
her for several non-specialized government jobs; that she had not made any effort to utilize
her degree; that she possessed skills in “Excel [and] Word”; that she had experience as a


         disadvantaged spouse’s standard of living after the divorce to be reasonably comparable
         to the standard of living enjoyed during the marriage, or to the post-divorce standard of
         living expected to be available to the other spouse, considering the relevant statutory
         factors and the equities between the parties.

           Evidence in the record as to the parties’ standard of living consisted primarily of the marital
property, bank and retirement accounts accumulated during the marriage, and the absence of debt other than
the mortgage on the marital home; neither party contests the division of marital property. Wife does not
contend that the amount of alimony awarded is inadequate because it will not allow her to achieve a
particular post-divorce standard of living; rather, she asserts that the amount is inadequate because her
monthly expenses exceed the award.

                                                    6
probation officer and in “financial aid procedures”; and that she had no physical limitations.
Wife also testified that she “loved numbers” and had investigated a two-year accounting
certificate program offered at Lipscomb University, costing “$16,000 to $18,000” and that
with the certificate her income could rise from $39,000 per year to “about 45 or 50.” This
testimony supports a determination that Wife can be rehabilitated and achieve a higher
income in the future, and that the long-term support as ordered by the court may not be
necessary.5 See Gonsewski, supra.

       Because the evidence preponderates against the court’s finding, we reverse the award
of alimony in futuro. For the same reasons, the evidence supports an award of rehabilitative
alimony; accordingly, we remand the case for a determination of the duration and amount of
the award.

        We are mindful of Wife’s need for support during the period of rehabilitation. Wife
testified–and the court found–that she was in need of support and husband had the ability to
pay; the court, however, did not make findings relative to the $2,000 per month awarded.
Wife contends that the amount awarded is insufficient and that the evidence “clearly showed
Wife had a need for $2,400 per month and Husband had the ability to pay $2,400 per month.”
We agree that the evidence supports Wife’s need for support and Husband’s ability to pay
support in addition to the cost of rehabilitation. Thus, in making the award, the court should
consider the effect of our reversal of the award of alimony in futuro on Wife’s need for
support.6 Further, pursuant to Tenn. Code Ann. § 36-5-121(e)(2), the trial court retains
authority to modify the award if there is a material change in Wife’s prospects for
rehabilitation such that the court determines that rehabilitation is not feasible and an award
alimony in futuro is appropriate. See Crabtree v. Crabtree, 16 S.W.3d 356 (Tenn. 2000).


       Husband also contends that the court erred in finding that he had the ability to increase
his earning capacity. He does not state how the court’s ruling prejudiced his cause or
influenced the award of alimony, and has otherwise failed to show that the court’s ruling


        5
         We note also that Wife testified that she was asking the court to consider her request to continue
her education “as an option.”
        6
           In Crabtree v. Crabtree, 16 S.W. 3d 356 (Tenn. 2000), our Supreme Court considered a case in
which the trial court had awarded a party rehabilitative alimony of $1,700 per month for a period five years
followed by an award of alimony in futuro of $1,200 per month. The Supreme Court held that the concurrent
awards of alimony in futuro and rehabilitative alimony were inconsistent, reversed the in futuro award and
affirmed the award of rehabilitative alimony. Id. at 360-61. In recognition of the fact that the reversal of the
in futuro award “eliminated the income stream that the trial court found was needed by [the spouse receiving
alimony],” the court increased the amount of rehabilitative alimony to $2,500 per month. Id. at 361.

                                                       7
involved a substantial right that affected its judgment or resulted in prejudice to the judicial
process. See Tenn. R. App. 36(b). We have modified the award of alimony commensurate
with the evidence in the record and argument.

II. A TTORNEY F EES AND D ESIGNATION OF C USTODIAN OF C OLLEGE A CCOUNT

        A. Attorney Fees

      In the final decree, the court found that “each party has the ability to pay his or her
own attorney’s fees” and declined to award fees. Wife contends that she should have been
awarded fees because she did not have “funds to pay her legal expenses” and that paying the
expenses would require her to deplete the assets she was awarded.7

        An award of attorney fees in a divorce case constitutes alimony in solido and the
decision of whether or not to award attorney fees is within the sound discretion of the trial
court. Gonsewski, 350 S.W.3d at 113; Tenn. Code Ann. § 36-5-121(h)(1) (“alimony in solido
may include attorney fees, where appropriate.”). In determining whether to award attorney
fees, the trial court should consider all the relevant statutory factors, including the relative
fault of the parties. Yount v. Yount, 91 S.W.3d 777, 783 (Tenn. Ct. App. 2002) (citing
Lindsey v. Lindsey, 976 S.W.2d 175 (Tenn. Ct. App. 1997)). An award is considered most
appropriate where the final decree of divorce does not provide the obligee spouse with a
source of funds, such as from property division or alimony in solido, with which to pay his
or her attorney. Id. (citing Houghland v. Houghland, 844 S.W.2d 619 (Tenn. Ct. App. 1992)).
We will not disturb the decision on appeal unless that discretion has been abused. Id.

       The court applied the statutory factors when it divided the marital property, which
resulted in Wife receiving, inter alia, a retirement account with a value of $305,000, one-half
of Husband’s two pension funds; the court also awarded Wife $35,000 in alimony in solido.
On the record presented, we cannot conclude that the court abused its discretion.

        B. Designation of Custodian of College Account




        7
          Wife argues that the trial court “applied an incorrect theory of law when it ruled ‘the only reason
that the court would consider requiring the husband to pay the wife’s attorney fee is through fault.’” We do
not agree that the statement was a ruling. Prior to making the statement, the court held that “both parties
have received a significant . . . amount of marital assets,” and that “Both parties are in a position to pay their
own attorney’s fees.” Taken in context, the statement is not a ruling and does not show that the court applied
an incorrect legal theory.

                                                        8
      The parties maintain a college account for their son, of which Husband is custodian;
Wife contends that the court erred in not naming her as custodian of the account.

       In the final decree the court stated the following with reference to the account:

       15. Too much paperwork is required to transfer a college account from
       Husband’s name to Wife’s name, so the account shall remain in Husband’s
       name, but on January 1 of each year Husband shall provide to Wife year-end
       statements showing the balance on all college accounts and an accounting of
       all expenditures. Since the account is a college fund provided by the paternal
       grandparents, it is appropriate to leave it in Husband’s name.

        There was very little proof as to the nature of the account; neither party included the
account as a marital asset and Wife does not contend that the account should have been
divided as a marital asset. Notwithstanding, in the absence of further proof relative to the
account and inasmuch as it is maintained for the use and benefit of the parties’ child, we
believe it is appropriate to review the court’s resolution of Wife’s request under the standard
we apply to the division of marital property. Under this standard, we accord trial courts wide
latitude, Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn. 1983), and give great weight to the
trial court’s decision. Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996). Thus,
we defer to the trial court unless the decision is inconsistent with the factors in Tenn. Code
Ann. § 36-4-121(c)8 or is not supported by a preponderance of the evidence. Brown v.

       8
           Tenn. Code Ann. § 36-4-121(c) states:

            (c) In making equitable division of marital property, the court shall consider all relevant
            factors including:
            (1) The duration of the marriage;
            (2) The age, physical and mental health, vocational skills, employability, earning
            capacity, estate, financial liabilities and financial needs of each of the parties;
            (3) The tangible or intangible contribution by one (1) party to the education, training or
            increased earning power of the other party;
            (4) The relative ability of each party for future acquisitions of capital assets and income;
            (5)(A) The contribution of each party to the acquisition, preservation, appreciation,
            depreciation or dissipation of the marital or separate property, including the contribution
            of a party to the marriage as homemaker, wage earner or parent, with the contribution of
            a party as homemaker or wage earner to be given the same weight if each party has
            fulfilled its role;
            (B) For purposes of this subdivision (c)(5), dissipation of assets means wasteful
            expenditures which reduce the marital property available for equitable distributions and
            which are made for a purpose contrary to the marriage either before or after a complaint
            for divorce or legal separation has been filed.
            (6) The value of the separate property of each party;

                                                       9
Brown, 913 S.W.2d 163, 168 (Tenn. Ct. App. 1994). Because the parties agree that the
account is solely for their son’s college education, we do not consider the factors at Tenn.
Code Ann. § 36-4-121(c) particularly helpful in addressing this issue.

      Wife argues that evidence of “previous disagreements regarding family or their son’s
expenses” and “Husband’s failure to reimburse Wife for certain family or their son’s
expenses” support her contention that the court erred in not naming her as custodian of the
account.

        At the time of trial in July of 2013, the parties’ son was preparing to enter the
University of Tennessee; there was no testimony that the account would not be used, as
necessary and in accordance with the terms applicable to the account, to fund his education.
Further, Wife did not identify or testify as to any particular concern relative to Husband’s
management of the account. Although Wife is concerned with Husband’s willingness to pay
for the college expenses, the record does not preponderate against the court’s ruling.9




            (7) The estate of each party at the time of the marriage;
            (8) The economic circumstances of each party at the time the division of property is to
            become effective;
            (9) The tax consequences to each party, costs associated with the reasonably foreseeable
            sale of the asset, and other reasonably foreseeable expenses associated with the asset;
            (10) The amount of social security benefits available to each spouse; and
            (11) Such other factors as are necessary to consider the equities between the parties.
        9
        Citing Husband’s testimony that “she can have the entire college account,” Wife also contends that
Husband agreed that she could be custodian of the account. The testimony cited by Wife occurred at the end
of Husband’s cross-examination, when he was being questioned regarding various bills which Wife
contended he had not paid; the examination concluded as follows:

            Q.   Are you opposed to Missus’ name being on the college account?
            A.   She can have the entire college account.
            Q.   You’re suggesting that her name be substituted as custodian for your name.
            A.   It’s fine with me.

Considered in context, we do not consider this proof of Husband’s agreement to have Wife named as
custodian of the account. To the extent there is such an agreement, the parties are free to implement it
directly with the holder of the account.

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                                     CONCLUSION

        For the foregoing reasons, the award of alimony in futuro is reversed and the case
remanded for proceedings in accordance with this opinion; in all other respects, the judgment
is affirmed.




                                                  ________________________________
                                                  RICHARD H. DINKINS, JUDGE




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