                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                       July 9, 2001 Session

                 SHERRY ANN HALL v. MARK STEPHEN HALL

                   An Appeal from the Circuit Court for Rutherford County
                           No. 99DR-347      Royce Taylor, Judge



                     No. M2000-01788-COA-R3-CV - Filed April 19, 2002


This is a divorce case. The wife was awarded more than half of the martial assets and alimony in
futuro in amounts that would step down after three years and end when the wife reaches retirement
age. In addition, the trial court awarded the wife, in lieu of attorney’s fees, ownership in a life
insurance policy on the husband’s life. The husband now appeals the trial court’s division of marital
property, the award of alimony in futuro, and the award relating to attorney’s fees. We affirm the
trial court’s division of marital property and the award relating to attorney’s fees, but we reverse the
trial court’s award of alimony in futuro and instead award rehabilitative alimony.

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

HOLLY K. LILLARD, J., delivered the opinion of the court, in which ALAN E. HIGHERS, J., and DAVID
R. FARMER , J., joined.

Thomas F. Bloom, Nashville, Tennessee, for the appellant, Mark Stephen Hall.

Janet D. Powell, Murfreesboro, Tennessee, for the appellee, Sherry Ann Hall.


                                              OPINION

       This is a divorce case. Appellant Mark Stephen Hall (“Husband”) and appellee Sherry Ann
Hall (“Wife”) were married on February 26, 1972, in Louisiana. Shortly thereafter, the couple
moved to Texas for about one year where Husband continued his career in the Air Force at Laughlin
Air Force Base. During that time, Wife did not work outside the home. Thereafter, the parties
moved to Louisiana, where Husband began working for BellSouth as an electronics technician.
Husband earned additional income by opening a gun shop and working as a soccer referee.

        After the couple moved back to Louisiana, Wife began working at a shipyard as a payroll
clerk. Shortly thereafter, she quit working due to complications with her pregnancy with the parties’
first child, a son. Two years later, Wife gave birth to a second child, a daughter. When the daughter
was eighteen months old, Wife returned to work at the shipyard, working approximately thirty hours
a week. The shipyard eventually went out of business, at which time Wife went to work as a
temporary secretary. She also worked periodically as a substitute teacher at her children’s school.
While in Louisiana, Wife took some classes at a local university to pursue her degree in special
education.

        In 1987, Husband was transferred through his employment at BellSouth to Murfreesboro,
Tennessee. After moving to Tennessee, Wife waited about a year before resuming college classes
at Middle Tennessee State University. In the meantime, she worked for three years in the Rutherford
County School System as a substitute teacher, earning minimum wage. After about two and one-half
years, as a substitute teacher, she became an educational assistant. Husband completed courses at
the university in Louisiana and at Middle Tennessee State University, majoring in computer science,
but he never earned a college degree. BellSouth reimbursed him for his college tuition. Wife paid
for her own educational pursuits, at times borrowing money from her aunt to help pay tuition.

         In 1993, Wife left her job as an educational assistant to work at Bedford Trucking. She later
left the trucking company and worked on a part-time basis at a doctor’s office for approximately five
months. After that, she went back to work for the school system as an educational assistant, working
thirty-five (35) hours per week and earning $9.27 per hour. Prior to the divorce, however, Wife was
informed that her position as an educational assistant would be terminated within six weeks of the
2000-2001 school year due to federal funding cutbacks.

        On March 12, 1999, Wife filed a petition for divorce based on Husband’s inappropriate
marital conduct. Wife also requested that the trial court grant her alimony pendent lite during the
course of the proceedings. By report of a special master, Husband was ordered to pay $708 per
month in alimony pendente lite, and was also ordered to pay the parties’ monthly house note of $646
during the pendency of the case.

        The trial below was conducted on May 25, 2000. In an order filed on June 15, 2000, the trial
court granted Wife the divorce. The trial court held that Wife was incapable of being rehabilitated
and awarded her alimony in futuro of $1,000 per month from September 1, 2000, through May 1,
2003, and $600 per month from June 1, 2003, through May 1, 2015, when Wife reaches social
security retirement age. With respect to the division of marital property, the trial court ordered that
the marital residence be sold, the proceeds of which were to be used to pay off the mortgage and
other marital debts. Because the marital debt exceeded the equity in the house, the parties ultimately
received no proceeds from the sale. With regard to the other marital property, Wife was awarded
approximately $48,624.70 in marital assets, which was approximately 55.7% of the total marital
assets. Husband was awarded approximately $38,645.96 in marital assets, or approximately 44.3%
of the total. Finally, in lieu of attorney fees, the trial court awarded Wife “all interest including but
not limited to the cash value [approximately $15,500] in the Jefferson Pilot life insurance policy
insuring the life of Mark Stephan [sic] Hall, Sr., and the ownership of said policy shall be transferred
to the name of [Wife].” The trial court also stated that Wife would be obligated to continue

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payments on the policy, but if Husband were to be found otherwise uninsurable, he would be
obligated to pay the cost of the policy. Husband now appeals from that order.

         Husband argues on appeal that the trial court’s division of the marital property was
inequitable. He argues further that the trial court erred in finding Wife incapable of rehabilitation,
and in awarding alimony in futuro rather than rehabilitative alimony. Finally, Husband claims that
the trial court erred in awarding Wife the interest in the life insurance policy in lieu of attorney’s
fees.

        The trial court has substantial discretion in dividing the marital property, and its distribution
will be given “great weight” on appeal. See Ford v. Ford, 952 S.W.2d 824, 825 (Tenn. Ct. App.
1996) (quoting Barnhill v. Barnhill, 826 S.W.2d 443, 449 (Tenn. Ct. App. 1991)). Accordingly,
its division of the marital estate is presumed to be correct unless the evidence preponderates
otherwise. Lancaster v. Lancaster, 671 S.W.2d 501, 502 (Tenn. Ct. App. 1984); Tenn. R. App. P.
13(d).

       Husband first argues that the trial court’s division of the marital property was inequitable
under the circumstances in this case. The division of marital property in divorce cases is governed
by Tennessee Code Annotated § 36-4-121, which generally provides that the trial court is to divide
the property equitably without regard to fault.1 In dividing the marital property, the trial court
considered the relevant factors listed in Tennessee Code Annotated § 36-4-121(c):

        (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) The contribution of each party to the acquisition, preservation, appreciation,
        depreciation or dissipation of the marital or separate property, including the


        1
            Ten nesse e Co de A nno tated § 36-4-121(a)(1) (2001) reads in pertinen t part:

           Distribution of marital property. – (a)(1) In all actions for divorce or legal separation, the court
        having jurisdiction thereof may, upon requ est of either party, an d prior to any d eterm ination as to
        whether it is appropriate to order the support and maintenance of on e (1) p arty b y the other, equ itably
        divide, distribute or assign the m arital pro perty betw een the parties w ithou t regard to ma rital fault in
        proportions as the co urt de em s just.

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         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;

         (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, 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.

Tenn. Code Ann. § 36-4-121(c) (2001). Though their calculations differ slightly, the parties agree
that Wife received approximately 55.7% of the total marital assets and that Husband received
approximately 44.3%.2 Husband contends that the trial court’s property division was inequitable
considering the above-enumerated factors.

        After a careful review of the record, we find that the trial court did not abuse its discretion
in dividing the marital property in this case. At the time of their divorce, the parties were both fifty-
one (51) years of age, and they had been married for over twenty-seven (27) years. Though Wife
suffers from minor heath problems, both parties enjoy relatively good health. Husband concedes that
the parties have disparate earning capacities. At the time of the hearing below, Husband earned
approximately $45,000 per year, and Wife had an annual income of about $14,000.3 However, Wife
has the potential to earn between $21,000 and $24,000 as a teacher after she earns her college degree.
Although Wife’s salary as a teacher will likely increase somewhat over time, she will not begin
earning a full salary until approximately age 55, and the amount of increase in her salary is uncertain.
It is undisputed that Wife did not work on a full-time basis during the marriage, and that she


         2
          The difference can be accounted for by the fact that $8,17 5.20 in Husband’s B ellSouth stock was award ed to
W ife and $4,741.46 was awarded to Husband. Also, the court awarded Wife the 1992 Ford Van ($3,770), the 1993
Honda ($1,675), John Deere Mower ($800), and a sewing machine ($300). The remainder of the property was divided
evenly.
         3
          According to the parties’ 1999 W-2 state ments and federal tax returns, Husband had gross earnings of
$56,962.00 and Wife had earned $14,095.87. Husband quit working his extra jobs, however, and now claims that his
earnings will cap at approximately $45,000 per year as long as he works for BellSouth. Wife has submitted no evidence
that Husband is willfully underemployed.

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contributed to the family primarily as a homemaker and a caretaker for the children. Considering
these factors, we find that the trial court did not err in distributing the marital assets as it did, giving
a small proportionate advantage to Wife. See Ford, 952 S.W.2d at 826-27 (affirming award to wife
of 69% of marital assets when the husband had greater earning capacity and the wife had contributed
to the marriage as a homemaker and mother).

        Next, Husband contends that the trial court erred in awarding alimony in futuro rather than
rehabilitative alimony. As noted above, the trial court awarded Wife alimony in futuro in the amount
of $1,000 per month until May of 2003, and thereafter $600 per month until May of 2015 when
Wife reaches social security retirement age.

        The trial court is afforded substantial discretion in making decisions regarding spousal
support. Hawkins v. Hawkins, 883 S.W.2d 622, 625 (Tenn. Ct. App. 1994). In Tennessee,
rehabilitative alimony is preferred over alimony in futuro in order to eliminate the dependency of one
spouse on the other “and to relieve the parties of ‘impediments incident to the dissolved marriage.’”
Crabtree v. Crabtree, 16 S.W.3d 356, 358-59 (Tenn. 2000) (quoting Self v. Self, 861 S.W.2d 360,
361 (Tenn. 1993)). Tennessee Code Annotated § 36-5-101(d) provides in pertinent part:

        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
        maintenance on a long-term basis or until the death or remarriage of the recipient
        except as otherwise provided in subdivision (a)(3).

Tenn. Code Ann. § 36-5-101(d)(1) (2001). The following factors should be considered by a trial
court in determining the nature and amount of alimony to be awarded:

           (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;



                                                    -5-
          (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;

          (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)(A) - (L) (2001). Because the statute reflects the legislative policy
of eliminating spousal dependency, alimony in futuro should be awarded only when the trial court
finds that “economic rehabilitation is not feasible and long-term support is necessary.” Crabtree,
16 S.W.3d at 359 (quoting Self, 861 S.W.2d at 361).

        In considering the statutory factors listed above, the trial court determined that “there is a
relative economic disadvantage. [Husband] makes in excess of three times what [Wife] earns and
can earn.” The trial court then found that, although Wife was attempting to rehabilitate herself, “at
her age [51] it’s not feasible that she’ll ever reach the earning capacity of [Husband].” On that basis,
and because “just about every one” of the statutory factors applied in favor of Wife, the trial court
awarded the stated amount of alimony in futuro, rather than rehabilitative alimony.

       Husband argues that the evidence preponderates against the trial court’s finding that Wife
cannot be rehabilitated. He asserts that it is not necessary for Wife to reach the same earning
capacity as Husband to be considered economically rehabilitated. See Crabtree, 16 S.W.3d at 360.
Rather, under Crabtree she need only be able to achieve a reasonable income. Wife argues that there
is no evidence in the record to support Husband’s contention that she will be able to raise her


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earning capacity to a reasonable level as compared to his earning capacity. She argues that, because
she will be entering the workforce at age 55, her level of income will never be raised to a “reasonable
level” as compared to the income of Husband.

         Under the standard in Crabtree, we are compelled to conclude that the trial court erred in
finding Wife incapable of rehabilitation. During the marriage, Wife consistently worked on a part-
time basis, and is working toward earning her teaching degree. If Wife works as a teacher for the
county system, she will earn a starting salary of $21,000 to $24,000 per year. Under Crabtree, when
Wife’s salary is compared to Husband’s salary of $45,000, we must conclude that Wife can be
rehabilitated in that her earning capacity can reach a reasonable level. See Dempsey v. Dempsey,
No. M1998-00972-COA-R3-CV, 2000 Tenn. App. LEXIS 477, at *10 (Tenn. Ct. App. July 21,
2000) (finding that a trial court should determine whether the disadvantaged spouse can improve his
or her earning capacity to a “reasonable” level); but see Page v. Page, No. W2000-01314-COA-R3-
CV, 2001 Tenn. App. LEXIS 361, at *13 (Tenn. Ct. App. May 15, 2001) (“Crabtree appears to force
the trial court to award rehabilitative alimony, and no alimony in futuro, if rehabilitative alimony is
feasible to any degree.” (Emphasis added.) (Lillard, J., concurring in part and dissenting in part)).

          The Crabtree Court held that where “an award of rehabilitative alimony is justified by the
parties’ circumstances, a trial court initially should award rehabilitative alimony only. . . . Once
awarded, rehabilitative alimony may be modified if the recipient’s prospects for economic
rehabilitation materially change.” Crabtree, 16 S.W.3d at 360. Therefore, under Crabtree, because
Wife is entitled to rehabilitative alimony, she cannot also receive alimony in futuro. We recognize
that each of the statutory factors weigh in favor of Wife, particularly considering the duration of the
marriage, the age of the parties, and the Husband’s undisputed inappropriate marital conduct, but this
result is compelled by the standard in Crabtree. Accordingly, we reverse the trial court’s award of
alimony in futuro and award Wife $1,000 per month in rehabilitative alimony for five years. This
five-year income stream will help Wife with her expenses while she completes her college degree
and for a reasonable time thereafter to assist her in making the transition into being financially self-
sufficient. See id. at 361 (modifying award to enable wife to have a smooth transition from part-time
to full-time employment).

        Finally, Husband argues that the trial court erred in awarding Wife the cash value in a life
insurance policy on his life worth approximately $15,500 in lieu of $11,326.50 in attorney’s fees.
Husband does not argue that Wife is not entitled to attorney’s fees. Rather, he claims that Wife can
afford to pay her attorney’s fees by liquidating the $8,175.20 in BellSouth stock she received in the
property division. Though sale of the stock would be insufficient to cover the total amount of
attorney fees, Husband argues that the attorney fees charged to Wife were grossly excessive.
Furthermore, Husband argues that the trial court had no basis on which to award Wife an asset wroth
$15,500 to cover an $11,326.50 fee, where the value of the award exceeds the amount of the fee by




                                                  -7-
$4,173.50. Husband argues that “there is no support in Tennessee law for an award of attorney’s
fees that is greater than the amount of actual fees incurred.” 4

        From a review of the record, we must conclude that the trial court’s award was not an award
of attorney’s fees. Rather, the award appears to be an extension of the trial court’s division of
marital property, allowing the Wife to have sufficient assets out of which to pay her attorney’s fees.
This slight increase in Wife’s proportion of assets does not alter our initial decision that the trial
court properly exercised its discretion in dividing the marital property between these parties. For
these reasons, and for the reasons we have discussed in affirming the court’s initial division of
marital property, we affirm the trial court’s award of the cash value of the life insurance policy in
lieu of attorney’s fees.

        In sum, we affirm the trial court’s division of marital property and the award of the cash
value of the life insurance policy. We reverse the trial court’s award of alimony in futuro and award
rehabilitative alimony to Wife in the amount of $1,000 per month for five years.

       Accordingly, the decision of the trial court is affirmed in part and reversed in part as set forth
above. The cause is remanded to the trial court for any further proceedings consistent with this
Opinion. Costs are to be taxed equally to appellant, Mark Stephen Hall, and his surety, and appellee,
Sherry Ann Hall, for which execution may issue if necessary.




                                                                 ___________________________________
                                                                 HOLLY K. LILLARD, JUDGE




         4
            Husband argued to the trial court that the amoun t of Wife’s fees were unreasonab le because his fees were
significantly less. Wife argued that, w hile ex cessive, a large portion of her fees were generated be cause of Hu sband’s
refusal to coop erate and abide b y cou rt orders. Th e trial court determ ined that W ife’s attorney’s fee s were not
unreasonab le in light of the circumstance s. From our review o f the record , we c ann ot conclude that the evidence
prep ond erates a gainst that find ing.

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