                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 February 20, 2001 Session

               PHILLIP OWEN PAGE v. LUCILLE GREER PAGE

                  Direct Appeal from the Circuit Court for Shelby County
                       No. 160522    John R. McCarroll, Jr., Judge



                    No. W2000-01314-COA-R3-CV - Filed May 15, 2001


This appeal arises from a divorce action to end a twenty-five year marriage. Wife was forty-nine
years old and who served as a homemaker for the majority of the marriage. Husband was also forty-
nine years old and worked as a sales manager earning approximately $95,000 in salary and a bonus
check that varied based upon the profit of his employer. This bonus check was typically $40,000.
Wife was granted a divorce on the grounds of inappropriate marital conduct and awarded
rehabilitative alimony of approximately $40,000 a year for the next five years, as well as alimony
in solido of 25% of Husband’s bonus check for the next five years. Wife was also awarded 50% of
husband’s retirement plan. Wife appealed arguing that she was entitled to an award of alimony in
futuro, to a larger yearly alimony award, and that an award of alimony in solido based upon the
future earnings of Husband could not be granted. We affirm as modified.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
joined. HOLLY K. LILLARD, J. filed a separate opinion concurring in part, dissenting in part.

Robert A. Wampler, Memphis, Tennessee, for the appellant, Lucille Greer Page.

William W. Dunlap, Jr., Memphis, Tennessee, for the appellee, Phillip Owen Page.

                                           OPINION

        After twenty-five years of marriage, Phillip Page (Husband) filed for divorce on October
2, 1998 alleging irreconcilable differences. Lucille Page (Wife) filed an answer and counterclaim
citing the same allegation. Both parties later amended their complaints to allege inappropriate
marital conduct by the other party.

       At the time of trial, Husband was a forty-nine year old sales manager earning
approximately $95,000 per year with a yearly bonus based upon his company’s earnings. Wife
was age forty-nine with a B.S. in Business Education. She had been unemployed for nineteen
years due to the fact that she served as a homemaker for the majority of the marriage. After the
separation, Wife began attending State Tech in Memphis to develop her computer skills.

        The trial court granted Wife a divorce on the grounds of inappropriate marital conduct.
The court split the marital property in the manner agreed by the parties. Wife requested an award
of alimony in futuro, but this request was denied. The court instead granted Wife rehabilitative
alimony that varied between $30,000 and $42,000 a year for a period of five years.1 Wife was
also awarded twenty-five percent (25%) of Husband’s net bonus check each year for the next five
years as alimony in solido.2 In addition, Wife was awarded fifty percent (50%) of Husband’s
pension. This appeal followed.

       The issues presented by the appellant, as we perceive them, are as follows:

       I.          Did the trial court err in the type of alimony awarded to Wife?

       II.         Did the trial court err in the amount of alimony awarded to Wife?

To the extent that these issues involve questions of fact, our review of the trial court’s ruling is
de novo with a presumption of correctness. See Tenn. R. App. P. 13(d). Accordingly, we may
not reverse the court’s factual findings unless they are contrary to the preponderance of the
evidence. See, e.g., Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996); Tenn. R. App.
P. 13(d). With respect to the court’s legal conclusions, however, our review is de novo with no
presumption of correctness. See, e.g., Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen
and Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999); Tenn. R. App. P. 13(d).

       Trial courts have broad discretion to determine whether spousal support is needed
       and, if so, its nature, amount, and duration. Kinard v. Kinard, 986 S.W.2d 220,
       234 (Tenn. Ct. App. 1998); Garfinkel v. Garfinkel, 945 S.W.2d 744, 748 (Tenn.
       Ct. App. 1996). "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 ." Kinard, 986
       S.W.2d at 234.



       1
           The actual award of rehabilitative alimony varied by years as follows:

                   Year   1          $36,000
                   Year   2          $39,000
                   Year   3          $42,000
                   Year   4          $30,000
                   Year   5          $30,000

       2
           This check usually amounts to $40,000.

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Fraysier v. Fraysier, No. E2000-02485-COA-R3-CV, 2001 WL 194351, at *3 (Tenn. Ct.
App.Feb. 27, 2001).

                                        Type of Award

      Section 36-5-101(d)(1) of the Tennessee Code states that

      [i]t is the intent of the general assembly that a spouse who is economically
      disadvantaged, relative to the other spouse, be rehabilitated whenever possible by
      the granting of an order for payment of rehabilitative, temporary support and
      maintenance. Where there is such relative economic disadvantage and
      rehabilitation is not feasible in consideration of all relevant factors, including
      those set out in this subsection, then the court may grant an order for payment of
      support and maintenance on a long-term basis or until the death or remarriage of
      the recipient . . . . Rehabilitative support and maintenance is a separate class of
      spousal support as distinguished from alimony in solido and periodic alimony. 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 of 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;


                                               -3-
                 (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) (Supp. 2000).

                 The preference for rehabilitative alimony over alimony in futuro was set
         forth by our Supreme Court in Self v. Self, 861 S.W.2d 360, 361 (Tenn. 1993):

                  [Tenn. Code Ann. § 36-5-101 (d)(1)] reflects an obvious legislative
                  policy that, if possible, the dependency of one ex-spouse on the
                  other be eliminated and both parties be relieved of the impediments
                  incident to the dissolved marriage, and that an ex-spouse be
                  adjudged permanently dependent upon the other only when the
                  court granting the divorce finds that economic rehabilitation is not
                  feasible and long-term support is necessary.

                 It is clear from the opinion in Self that a trial court should grant alimony in
         futuro only when rehabilitation is not feasible and such long term support is
         necessary. See also Storey v. Storey, 835 S.W.2d 593, 597 (Tenn. Ct. App. 1992).
         The trial court must, therefore, make a threshold determination that, considering
         all relevant factors, rehabilitation of the economically disadvantaged spouse is not
         feasible. See Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995).

Fraysier, 2001 WL 194351, at *4.

        In the case before us, it is clear that the trial court properly considered and rejected the
request for alimony in futuro. The trial court stated in its oral conclusions that “I think that Mrs.
Page is entitled to some rehabilitative alimony, and I think it ought to be for a period of five
years.” In addition, the court unequivocally rejected alimony in futuro. “I don’t think there
should be any periodic alimony until she remarries or dies; I think it ought to be just
rehabilitative.” The trial court specifically stated that “pursuant to T.C.A. 36-5-101" Husband
“shall pay to [Wife] rehabilitative alimony for a period of five (5) years.” As the trial court
properly considered the relevant factors as provided under section 36-5-101 of the Tennessee
Code, and because we do not find the trial court’s award of spousal support to be contrary to the
evidence or to public policy, we hereby affirm the trial court’s award of rehabilitative alimony.3

         3
           “[A]n award of rehabilitative a limony rema ins modifiab le by the cour ts. Tenn. Co de Ann. § 36-5-10 1(d), in
pertinent part provides:

                  An award of rehabilitative, temporary support and maintenance shall remain in the
                  court’s control for the duration of such award, and may be increased, decreased,
                                                                                                            (continued ...)

                                                           -4-
        We note that Wife has also argued that an alimony in solido award cannot be based on
future earnings.4 Alimony in solido is normally not based on future earnings, however,
“[e]xtreme circumstances could arise where it might be necessary to do so.” Record v. Record,
No. W2000-01294-COA-R3-CV, 2000 WL 1880275, at *10 (Tenn. Ct. App. Dec. 28, 2000)
(quoting Aleshire v. Aleshire, 642 S.W.2d 729, 733 (Tenn. Ct. App. 1981)). Upon
consideration, we find that the award to one spouse of a yearly bonus check that varies in amount
does not qualify as an “extreme circumstance” allowing the court to award a percentage of such
bonuses to the other spouse as alimony in solido. However, in light of the factors listed in
section 36-5-101(d)(1) of the Tennessee Code, we find that the award to Wife of a percentage of
Husband’s bonus check is correct. As such, we hereby modify this award and find that Wife
should be awarded twenty-five percent (25%) of Husband’s bonus check as part of her
rehabilitative alimony. The finding of the trial court is affirmed as modified.

                                                Amount of Award

        “The amount of alimony to be allowed in any case is a matter for the discretion of the trial
court in view of the particular circumstances, for the appellate courts are disinclined to review
such discretion except in cases where it has manifestly been abused.” Hanover v. Hanover, 775
S.W.2d 612, 617 (Tenn. Ct. App. 1989) (citing Ingram v. Ingram, 721 S.W.2d 262 (Tenn. Ct.
App. 1986)). Upon our review of the facts and circumstances surrounding the amount of
alimony awarded by the trial court in this case, we find that the court did not manifestly abuse its
discretion. As such, we hereby affirm the amount of alimony awarded by the trial court.

                                                     Conclusion

        Based on the foregoing conclusions, we hereby affirm the trial court judgment as



modified. Costs on appeal are assessed against the Appellant, Lucille Page, and her surety, for
which execution may issue if necessary.


        3
            (...continued)
                     terminated, or extended, or otherwise modified upon a showing of substantial and
                     material change in circumstances.

        Thus, the co urts retain authority during the period of rehabilitation to modify the award as changing
        circumstances may require . See Self v. S elf, 861 S.W .2d [360 ,] 363; Loria v. L oria, 952 S.W.2d 836,
        838; see also Wiseman v. Wiseman, No. 03 A01-96 12-CV -00392 , 1997 W L 4184 95, at *2 (T enn. Ct.
        App. Jul. 28, 19 97), perm. app. denied; Som merville v . Som merville , No. 01-A-01-9502-CV-00070,
        1995 W L 498943, at *1 (Tenn. Ct. App. Aug. 23, 1995 ) (no perm. app. filed).”

Stockman v. Stockman, No. 01A01-9801-CH -00026, 1999 W L 617637, at *4 (Tenn. Ct. App. Aug. 17, 1999 ).

        4
            Wife refer s specifically to the award of 25% of Husband’s bonus check.

                                                          -5-
      ___________________________________
      DAVID R. FARMER, JUDGE




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