                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   JULY 13, 2000 Session

               DONALD JOSEPH RUSSO v. DEBRA ANN RUSSO

                Direct Appeal from the Chancery Court for Sumner County
                  No. 98D-355; The Honorable Tom E. Gray, Chancellor



                  No. M1999-02380-COA-R3-CV - Filed December 7, 2000


This appeal arises from an action for divorce initiated by Donald Joseph Russo (“Husband”) against
Debra Ann Russo (“Wife”). The trial court granted Wife an absolute divorce and alimony in futuro;
awarded custody of the parties’ minor children to Wife; ordered Husband to pay child support in the
amount of thirty-two hundred dollars per month with additional child support of two thousand
dollars per month to be placed in educational trust for parties’ minor children; and awarded the
majority of marital assets to Wife. Husband appeals.

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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and WILLIAM B. CAIN , J., joined.



James C. Bradshaw, III, Nancy A. Vincent, Nashville, for Appellant

Larry Hayes, Jr., Nashville, for Appellee

                                            OPINION

On August 20, 1998, Husband filed a complaint for divorce in the Sumner County Chancery Court,
alleging inappropriate marital conduct, abandonment, and irreconcilable differences. Thereafter,
Wife filed an answer and counter-complaint for divorce, alleging inappropriate marital conduct by
Husband. Wife later amended her complaint to allege adultery as an additional ground for divorce.
Wife also moved to dismiss Husband’s complaint for divorce based on the doctrine of unclean
hands. At trial on the matter, the following testimony was presented.

      Husband and Wife were married in 1979, following their respective graduations from
medical and nursing school. In the early years of the marriage, the parties moved several times so
Husband could participate in various internship and fellowship programs. In 1985, the parties
moved to Hendersonville, Tennessee, in order for Husband to start a private cardiology practice.
Prior to the move, Wife worked as a nurse’s aide and a registered nurse. Following the move, Wife
remained at home to care for the parties’ newly adopted child.1 Both parties acknowledge that Wife
has always served as primary caregiver to the children, now aged fourteen and eight.

       From 1985 to 1987, Wife worked part-time for Husband as a bookkeeper for Husband’s
medical practice. At some point in 1987, Wife refused to continue as a bookkeeper, and the wife
of one of Husband’s partners took over the duties. The parties’ marriage began to deteriorate
sometime during this period. Wife felt that Husband did not spend enough time with her and the
children because of the long hours spent at his medical practice. Husband also committed adultery
on two separate occasions during the marriage.

        On May 29, 1997, Wife filed a complaint for divorce that was subsequently withdrawn when
the parties reconciled. In 1998, Wife told Husband that she would continue the marriage only if he
abandoned his medical practice and moved to a ranch out west. Wife claimed that her “inner spirit”
needed to ride the range. Although Husband did not quit his practice, he did agree to buy Wife a
farm somewhere nearby. According to Wife, she felt that the marriage was over although she did not
intend to refile for divorce.

         Wife testified that her living expenses were around eleven thousand dollars per month, and
that the expenses for the parties’ children were around twenty-two hundred dollars per month.
Husband testified that his expenses (excluding alimony and child support) were around sixteen
thousand dollars per month. Husband’s income for the four years preceding the trial ranged between
seven hundred thousand and eight hundred thousand dollars.2 The parties’ marital estate consisted
of real property valued at $689,700; investment accounts valued at $1,521,745; retirement accounts
worth $805,894; bank accounts valued at $40,926; vehicles worth $28,679; Husband’s interest in
his medical practice valued at $370,000; and other assets valued at $138,863.

        On October 25, 1999, the trial court entered an order granting Wife an absolute divorce. The
court held that although both parties were at fault for the demise of the marriage, Husband was more
at fault. In addition, the trial court found that Wife’s motion to dismiss Husband’s complaint for
unclean hands was not well taken because his adulterous acts did not cause the parties’ divorce.
According to the court, Wife condoned one of Husband’s adulterous acts and did not know of his
other infidelity until after the divorce action was initiated.

       Wife was awarded custody of the parties’ two minor children, with liberal visitation granted
to Husband. The court awarded Wife child support in the amount of thirty-two hundred dollars per



       1
           The parties’ second child was born to the marriage in 1993.

       2
           Husband’s income was as follows: 1995 ($764,779); 199 6 ($805,333); 1997 ($7 10,036); 1998 ($713,292).

                                                         -2-
month.3 This amount included the tuition and school activity fees requested by Wife. In addition,
Husband was ordered to pay all of the health care and dental expenses for the parties’ children. The
court further found that there was no need for an educational trust fund because Husband had
sufficiently set aside funds for this purpose.4 The court later amended this finding and ordered
Husband to pay an additional one thousand dollars per child per month into an educational trust fund
for the children.

         The trial court found that Wife was entitled to alimony in futuro of seven thousand dollars
per month, regardless of her training and licensure as a registered nurse and her intention to resume
work at some point in the future. The court based the alimony award on Husband’s annual income
at the time of trial.5 In addition, the court awarded Wife assets worth approximately 58.73% of the
marital estate. This award included all of the investment accounts ($1,521,745); $251,527 of
retirement accounts; $24,791 of bank accounts; vehicles worth $18,679; and other assets valued at
$35,529. In making the award the court acknowledged Wife received an additional one hundred
thousand dollars from Husband as a down-payment for a house prior to the final decree of divorce.

       Husband was awarded the remaining 41.27% of the marital estate. His award included the
following: real property ($689,000); retirement accounts worth $555,131; bank accounts worth
$16,135; a vehicle valued at $10,000; and other assets worth $100,934. Husband appeals.

         On appeal, Husband asserts the trial court erred in awarding Wife alimony in futuro rather
than rehabilitative alimony. Husband also asserts the division of marital assets is inequitable.
Husband claims the court erred in granting the divorce to Wife and in requiring Husband to establish
an educational trust for children. Wife raises two additional issues. Wife asserts the trial court erred
in failing to dismiss Husband’s complaint for divorce. Wife also seeks attorneys’ fees on appeal.

                                                        Analysis

      Our review of this case is pursuant to Rule 13(d) of the Tennessee Rules of Appellate
Procedure, which provides for a de novo review upon the record of the trial court's findings of fact,
accompanied by a presumption of correctness, unless the evidence preponderates otherwise.




         3
           Although Husban d’s income exceede d ten thousand dollars p er month, the court limited h is obligation to thirty-
two percent of ten thousand dollars. The court stated that this deviation was appropriate because Husband was ordered
to pay all medical and dental expenses for the children as well as their tuition and o ther costs asso ciated with pr ivate
education.

         4
          At the time of trial, Husband had already set aside approximately $200,000 in investment accounts in the
children’s names.

         5
          Husband attempted to offer proof at trial that his income level would substantially decrease in January 2000,
due to the addition of another partner to his medical practice.

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                                                            Alimony

        Husband asserts that the trial court erred in granting Wife alimony in futuro rather than
rehabilitative alimony. Husband claims that due to Wife’s substantial award of marital assets as well
as her ability to be rehabilitated, alimony in futuro is improper. In addition, Husband requests the
amount of alimony awarded be reduced. We agree with Husband. Based upon the following, we
find both the term and amount of alimony awarded to Wife should be reduced.

        The trial court has broad discretion concerning the amount, type, and duration of spousal
support based on the particular facts involved. The exercise of such power will not be interfered
with absent a showing of abuse. Watters v. Watters, 959 S.W.2d 585, at 593 (Tenn. Ct. App. 1997)
citing Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn.1995); Luna v. Luna, 718 S.W.2d 673, 675
(Tenn. Ct. App. 1986). Accordingly, this Court is not inclined to alter a trial court's award of
alimony unless it is not supported by the evidence or is contrary to the public policy embodied in the
applicable statutes. Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct. App.1994); Gilliam v.
Gilliam, 776 S.W.2d 81, 86 (Tenn. Ct. App.1988); Ingram v. Ingram, 721 S.W.2d 262, 264 (Tenn.
Ct. App.1986).

        Whether an alimony award is appropriate is dependent on the facts and circumstances of each
case. While the alimony analysis is factually driven, the court must also balance several statutory
factors including those enumerated in § 36-5-101(d).6 Brown at 169; Denton v. Denton, 902 S.W.2d


          6
            Tenn. Cod e Ann. §36-5-10 1(d) provides:
           It 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 maintenanc e on a long-te rm basis or until the death or remarriage of the rec ipient except as otherwise provided in
subdivision (a)(3). Rehabilitative support and maintenanc e is a separate class of spousal support as distinguished from
alimony in solido and periodic a limony. In dete rmining wheth er the granting o f an order fo r paym ent of support and
maintenanc e to a party is ap propriate , and in determining the nature, amount, length of term, and manner of paymen t,
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 retirem ent 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 n ece ssity of a p arty to se cur e fur ther edu cati on a nd t rain ing t o im pro ve su ch p arty 's
earning cap acity to a reaso nable level;
           (C)The duration of the marriage;
           (D) Th e age and m ental cond ition of each p arty;
           (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;
                                                                                                                     (continued ...)

                                                                -4-
930, 932 (Tenn. Ct. App.1995). Although all statutory factors listed in Tenn. Code Ann. § 36-5-
101(d)(1) are important and will be considered by the trial court, need and the ability to pay are the
critical factors in setting the amount of an alimony award.

         Tenn.Code Ann. § 36-5-101(d)(1) reflects a preference for temporary, rehabilitative spousal
support, as opposed to long-term support. Wilson v. Moore, 929 S.W.2d 367, 375
(Tenn.Ct.App.1996). The purpose of rehabilitative support is to enable the disadvantaged spouse
to acquire additional job skills, education, or training that will enable him or her to be more
self-sufficient. Smith v. Smith, 912 S.W.2d 155, 160 (Tenn. Ct. App.1995); Kinard v. Kinard, 986
S.W.2d 220, at 234 (Tenn. Ct. App. 1998) In contrast, the purpose of long-term spousal support is
to provide support to a disadvantaged spouse who is unable to achieve some degree of
self-sufficiency. Loria v. Loria, 952 S.W.2d 836, 838 (Tenn.Ct.App.1997). A court may grant
alimony in futuro only where rehabilitation is not feasible. Aaron at 410; Self v. Self, 861 S.W.2d
360, 361 (Tenn.1993).

         In the case at bar, the express findings of the trial court supported by the record include the
following: Wife is financially disadvantaged due to her long absence from the working world; due
to Wife’s education and training she will eventually be able to resume her profession; both parties
are at fault in the marriage break-up. In addition to the facts above, the court must consider all other
sources of income available to the dependant spouse. Tenn. Code. Ann. §36-5-101(d)(1)(A).
Therefore, we must analyze the alimony award in light of Wife’s award of nearly two million dollars
of marital assets. In doing so, we find the award of seven thousand dollars alimony in futuro is
improper. Accordingly we hereby reduce Wife’s alimony award to five thousand dollars per month
for a period of five years following the entry of this opinion. Both the time period and the amount
of the award will give Wife ample opportunity to bring her job skills and training up to date.
Therefore, the decision of the trial court on this issue is reversed.

                                                   Educational Trust


         6
            (...continued)
          (J) The extent to which each party has made such tangible and in tangible contributions to the marriage as
monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training
or increase d earning p ower of the o ther party;
          (K) The relative fault of the parties in cases where the court, in its discretion, deems it approp riate 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.
          (2) An award of rehabilitative, temporary sup por t and mai nten anc e sha ll re mai n in t he c our t's control for the
duration of such award, and may be increased, decreased, terminated, extended, or otherwise modified, upon a showing
of substantial and material change in circumstances. Rehabilitative support and maintenance shall terminate upon the
death of the recipient. Such support and maintenance shall also terminate upon the death of the payor unless otherwise
specifically stated. The recipient of the support an d maintena nce shall have the burden of proving th at all reasonab le
efforts at rehab ilitation have be en made and have b een unsucc essful.




                                                               -5-
        Husband asserts that the trial court erred in requiring him to set up and make contributions
to an educational trust for the benefit of the parties’ children. Husband argues that in light of the
investment accounts already in place, the educational trust is unnecessary and improper. We do not
agree. For the following reasons, we hold that the educational trust is proper.

        While the trial court’s findings of facts are entitled to a presumption of correctness on appeal,
the lower court’s discretion is tempered by the child support guidelines. TENN . R. APP . P. 13 (d);
Jones v. Jones, 930 S.W.2d 541, 544 (Tenn. 1996). Statutory authority provides for a rebuttable
presumption that the percentage amount of child support provided in the guidelines is the correct
amount. However, "[the guidelines] are subject to deviation upward or downward when the
assumptions on which they are based do not pertain to a particular situation." Nash v. Mulle, 846
S.W.2d 803, 805 (Tenn.1993) In order to justify a deviation from this amount, the trial court must
make written findings outlining the reasons for this deviation. These reasons must show that the
deviation is either in the best interest of the child; that the child support guidelines would be unjust
or inappropriate; or needed to maintain equity between the parties. Tenn. Code Ann. §36-5-
101(e)(1).7

        Pursuant to the guidelines, the parties’ minor children are entitled to thirty-two percent of
the obligor’s “net income.” See TENN . CO M P . R. & REGS . Tit. 10, Ch. 1240-2-4-.03.8 In the case
at bar, Husband’s child support obligation would amount to approximately twelve thousand dollars
per month.9 The court below limited that amount to thirty-two hundred dollars per month. The court
based its deviation from statutory guidelines on Husband’s payment of the children’s medical and
dental expenses as well as all educational expenses. In addition, the court required Husband to
contribute one thousand dollars per month per child into educational trust to provide for the college
expense of the children. Therefore, Husband’s total child support obligation totaled fifty-two
hundred dollars per month.




          7
           Tenn. Code Ann. §36-5-101(e)(1) provides : In making its determination concerning the amount of support
of any minor child or children of the parties, the court sh all apply as a rebuttable presumption the child support
guidelines as provided in this subsection. If the court finds that evidence is sufficient to rebut this presumption, the court
shall make a written finding th at the app lication of th e child sup port guid elines wo uld be u njust or ina pprop riate in that
particular case, in order to provide for the best interest of the child(ren) o r the equity betwe en 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 un der the child supp ort guidelines and a justification for the variance fro m the guide lines.

          8
           Tenn.Comp.R. & Regs., ch. 1240-2-4-.04(3) provides as follows: The court must order child support based
upon the appropriate percentage of all net income of the obligor as defined according to 1240-2-4-.03 of this rule but
alternative payment arrangements may be made for the award from that portion of net income which exceeds $6,250.
When the net income of the obligor exceeds $6,250 per month, the court may establish educational or other trust funds
for the benefit of the child(ren) or make other provisions in the child(ren)'s best interest; however, all of the support
award a moun t based on net incom e up thro ugh $6 ,250 m ust be paid to the custo dial paren t.

          9
              This figure is based on H usband’s 1998 income of $713,292.

                                                               -6-
        While this amount may seem both excessive and unnecessary to Husband, we find that the
trial court’s decision is proper. In ordering Husband to contribute to the educational trust, the court
noted that its decision was affected by both the uncertainty of the investment funds growth potential
and the rising costs of education. Upon review, we find this presents adequate justification for the
establishment of the educational trust. Therefore, the trial court’s decision on this issue is affirmed.

                                           Division of Marital Assets

        Husband asserts the trial court’s division of marital assets is inequitable. Wife was awarded
approximately sixty percent of the marital assets, with Husband receiving the remaining forty
percent. For the following reasons, we find that the division was equitable and the decision of the
trial court should be affirmed.

        After characterizing the parties’ assets as either marital or separate property, the trial court
will make an equitable division of marital assets. An equitable division of property does not
necessarily mean an equal division. Bookout v. Bookout, 954 S.W.2d 730 (Tenn. Ct. App. 1997);
Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. Ct. App. 1988). “The division of the estate is not
rendered inequitable simply because it is not mathematically equal, or because each party did not
receive a share of every item of marital property.” King v. King, 986 S.W.2d 216, 219 (Tenn. Ct.
App. 1998) citing Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn.1996); Ellis v. Ellis, 748 S.W.2d
424, 427 (Tenn.1988); Brown v. Brown, 913 S.W.2d 163. In determining what constitutes an
equitable division of marital assets, the court will consider the factors listed in Tenn. Code Ann. §36-
4-121(c).10 The trial court's classification and division of marital property enjoys a presumption of
correctness and will be reversed or modified only if the evidence preponderates against the court's
decision. Lancaster v. Lancaster, 671 S.W.2d 501, 502 (Tenn. Ct. App.1984); Hardin v. Hardin, 689
S.W.2d 152, 154 (Tenn. Ct. App.1983).

         10
             Tenn. Co de Ann. §3 6-4-121(c) p rovides:
 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 ea ch of the parties;
           (3) The tangible or intangible contribution by one (1) party to the education, training or increased earnin g
power of the other party;
           (4) The relative ability of each party for future acquisitions of capital assets and income;
           (5) The contribution of each party to the acquisition, preservation, appreciation or dissipation of the marital
or separate property, including the contribution of a party to the marriage as homemaker, wage earner or parent, w ith
the contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled its role;
           (6) The value of the separate property of each party;
           (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; and
           (10) Such o ther factors as are necessary to consider the equ ities between the parties.




                                                           -7-
         As stated above, the trial court is granted broad discretion in adjusting and adjudicating the
parties' interest in all jointly owned property. Its decision regarding division of the marital property
is entitled to great weight on appeal. Watters at 590; citing Batson at 859. The fairness of the
property division is judged upon its final results. With the forgoing in mind and considering all
relevant factors, we do not find the final results of the trial court's distribution to be inequitable.
Accordingly, the divisions of assets as determined by the trial court is hereby affirmed.


                                           Attorney’s Fees

       Wife requests attorney’s fees incurred on appeal. For the following reasons, we hold that
Wife is entitled to attorney’s fees incurred on appeal. In a divorce case, attorneys' fees may be
properly allowed as part of the alimony awarded. Raskind v. Raskind, 325 S.W.2d 617, 625 (Tenn.
Ct. App. 1959). When the spouse seeking an award of legal expenses lacks sufficient funds to pay
her expenses or would be required to deplete her resources, the award of legal expenses is
appropriate. Brown, at 170; Butler v. Butler, 680 S.W.2d 467 (Tenn. App. 1984). Based upon the
foregoing, as well as the circumstances presented in this case, we find that Wife is entitled to an
award of legal expenses incurred on appeal.

                                         Remaining Issues

        As a final matter, we find it unnecessary to discuss the remaining issues raised by the parties.
In particular, Husband’s appeal of the grant of divorce to Wife and Wife’s appeal of the lower
court’s refusal to dismiss Husband’s divorce complaint are irrelevant in light of our ruling on the
other issues. As neither of these issues affect our disposition of this case, they do not merit
consideration.

                                             Conclusion

         Based on the foregoing, the decision of the trial court is affirmed in part and reversed in
part. Costs of this appeal are taxed to Appellant, Donald Joseph Russo for which execution may
issue if necessary.



                                                        ___________________________________
                                                        ALAN E. HIGHERS, JUDGE




                                                  -8-
