               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                August 25, 2015 Session

      CYNTHIA RHEA HELTON v. GREGORY HERBERT HELTON

               Appeal from the Chancery Court for Anderson County
             No. 10CH1508    Hon. William Everett Lantrip, Chancellor


            No. E2014-01861-COA-R3-CV-FILED-NOVEMBER 3, 2015


This post-divorce appeal concerns the trial court‟s denial of the husband‟s motion to
terminate his spousal support obligation and to add his current wife as a beneficiary to his
life insurance policy. We affirm the court‟s denial of the termination of the support
obligation but reverse the court‟s denial of the request to amend the life insurance policy.

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

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY, and THOMAS R. FRIERSON, II, JJ., joined.

William J. Taylor, Knoxville, Tennessee, for the appellant, Gregory Herbert Helton.

Patty Jane Lay, Knoxville, Tennessee, for the appellee, Cynthia Rhea Helton.

                                        OPINION

                                  I.     BACKGROUND

       Following approximately 30 years of marriage, Cynthia Rhea Helton (“Wife”) and
Gregory Herbert Helton (“Husband”) were divorced by order of the trial court in April
2011. Two children, who have since attained the age of majority, were born of the
marriage. As pertinent to this appeal, the court awarded Wife rehabilitative alimony at
the rate of $2,000 per month for 40 months, to begin following the sale of the marital
residence. The court also placed a constructive trust over Husband‟s $1,200,000 life
insurance policy and designated Wife as the trustee. The court directed Husband to
designate Wife as a one-third beneficiary, each of the two children as a one-sixth
beneficiary, and his father, Herbert Helton (“Grandfather”), as a one-third beneficiary.
Husband appealed the court‟s decision, but a panel of this court denied the appeal for lack
of a final order. Neither party filed an appeal of the final order.

        Upon remand, Husband was initially non-compliant with the court‟s order to remit
spousal support. He finally began remitting spousal support payments in November
2012, including an $8,000 deficiency payment for the preceding four months. One year
later, Husband filed a motion to substitute his current wife, Cheryl Helton (“Cheryl”), as
a beneficiary to his life insurance policy in place of Grandfather, who had predeceased
him. Prior to the hearing on the motion, Husband filed a motion to terminate his spousal
support obligation and to compel Wife to submit documentation of her efforts toward
rehabilitation.1 He claimed that Wife had been awarded spousal support to pursue the
education and experience that would allow her to return to her employment as a licensed
pharmacist. He alleged that her failure to take any step to regain her license since he
began remitting spousal support justified the termination of his support obligation.

      Wife objected, arguing that Grandfather‟s interest in the policy transferred to her
and the children upon his death and that a substantial and material change in
circumstances had not occurred to justify termination of the support obligation.

       On March 14, 2014, a hearing was held on the motion to terminate the support
obligation. Wife testified that her economic situation had not changed since the time of
the divorce. She acknowledged that she did not have documentation to establish that she
had taken specific steps to rehabilitate herself since she began receiving spousal support.
She explained that she had purchased a book to study the new terminology in her field
but that she was not yet knowledgeable enough to attend classes or apply for internships
after her 20-year absence from the pharmaceutical field.

       Husband admitted that he was able to remit the spousal support payments as
required but asserted that Wife had not provided any proof to establish that she had taken
any step toward rehabilitation to justify further support.

       Following the presentation of the above evidence, the trial court denied Husband‟s
request to terminate his support obligation and awarded Wife attorney fees for her
defense of the support obligation. Thereafter, the court also denied the motion to
substitute Cheryl for Grandfather in the life insurance policy. The court stated,




1
  The motion was titled as a motion to compel. However, Husband requested entry of an order
terminating his support obligation or entry of an order compelling Wife to supply evidence of her steps
toward rehabilitation.
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      The asset was awarded as part of the final decree to [Wife] as a division of
      the property. She took that policy with restrictions placed on it as it relates
      to the interest of third parties.

      The court is without power to divest or alter the division of that insurance
      policy at this time. I believe that that is an asset owned by [Wife]. She‟s
      subject to the restrictions placed on it.

      The death of a . . . beneficiary designated may very well mean that the
      beneficiary of that trust no longer exists and the ownership interest is with
      [Wife]. For that reason the [c]ourt is overruling the motion.

This timely appeal followed.

                                        II.     ISSUES

      We consolidate and restate the issues raised on appeal as follows:

      A.    Whether the trial court erred in denying Husband‟s request to
      terminate his spousal support obligation.

      B.      Whether the trial court erred in denying Husband‟s request to amend
      his life insurance policy.

      C.     Whether Wife is entitled to attorney fees on appeal.

                               III.   STANDARD OF REVIEW

       On appeal, the factual findings of the trial court are accorded a presumption of
correctness and will not be overturned unless the evidence preponderates against them.
See Tenn. R. App. P. 13(d). The trial court‟s conclusions of law are subject to a de novo
review with no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47
(Tenn. 2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
Mixed questions of law and fact are reviewed de novo with no presumption of
correctness; however, appellate courts have “great latitude to determine whether findings
as to mixed questions of fact and law made by the trial court are sustained by probative
evidence on appeal.” Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995).

       “[M]odification of a spousal support award is „factually driven and calls for a
careful balancing of numerous factors.”‟ Wiser v. Wiser, 339 S.W.3d 1, 11 (Tenn. Ct.
App. 2010) (quoting Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001)). “Generally,
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the trial court‟s decision on whether to modify spousal support is not altered on appeal
unless the trial court abused its discretion.” Id. (citing Goodman v. Goodman, 8 S.W.3d
289, 293 (Tenn. Ct. App. 1999)). “A trial court abuses its discretion only when it
„applie[s] an incorrect legal standard or reache[s] a decision which is against logic or
reasoning that cause[s] an injustice to the party complaining.”‟ Eldridge v. Eldridge, 42
S.W.3d 82, 85 (Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).
If a discretionary decision is within a range of acceptable alternatives, we will not
substitute our judgment for that of the trial court simply because we may have chosen a
different alternative. White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App.
1999). “Consequently, when reviewing . . . an alimony determination, the appellate court
should presume that the decision is correct and should review the evidence in the light
most favorable to the decision.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105-06 (Tenn.
2011) (citations omitted).

                                    IV.    DISCUSSION

                                            A.

       Citing Irvin v. Irvin, No. M2011-02424-COA-R3-CV, 2012 WL 5993756 (Tenn.
Ct. App. Nov. 30, 2012), perm. app. denied (Tenn. Apr. 10, 2013), Husband argues that
termination of his support obligation was warranted because Wife had not taken any
significant steps to rehabilitate herself to regain her employment as a pharmacist. Wife
responds that Husband failed to establish a substantial and material change in
circumstances to support the termination of his support obligation.

      “Alimony” is defined, in pertinent part, by Black‟s Law Dictionary, 9th edition, as

      [a] court-ordered allowance that one spouse pays to the other spouse for
      maintenance and support . . . after they are divorced.

        Tennessee recognizes four different types of alimony: rehabilitative alimony,
transitional alimony, alimony in futuro, and alimony in solido. The type of alimony at
issue in this case, rehabilitative alimony, is temporary support intended to assist the
economically disadvantaged spouse in obtaining the education or training necessary to
allow him or her to achieve a reasonable standard of living in comparison to the standard
of living maintained by the parties during the marriage, or to the post-divorce standard of
living available to the other spouse. Tenn. Code Ann. § 36-5-121(e)(1). Awards of
rehabilitative alimony “remain in the court‟s control for the duration of such award, and
may be increased, decreased, terminated, extended, or otherwise modified, upon a
showing of a substantial and material change in circumstances.” Tenn. Code Ann. § 36-
5-121(e)(2). The award may also be “extended beyond the term initially established by
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the court” or “increased in amount, or both” upon a showing by the recipient “that all
reasonable efforts at rehabilitation have been made and have been unsuccessful.” Tenn.
Code Ann. § 36-5-121(e)(2).

       In determining whether to award alimony, the court must first consider whether
the spouse seeking alimony is economically disadvantaged. Perry v. Perry, 114 S.W.3d
465, 467 (Tenn. 2003). “Once the trial court has found a party to be economically
disadvantaged relative to his or her spouse, it must determine the nature, amount, length
of term, and manner of payment of the award.” Id. The two most relevant factors in
determining the amount of alimony awarded are the economically disadvantaged
spouse‟s need and the obligor spouse‟s ability to pay. Robertson v. Robertson, 76
S.W.3d 337, 342 (Tenn.2002). When considering these two factors, the primary
consideration is the disadvantaged spouse‟s need. Watters v. Watters, 22 S.W.3d 817,
821 (Tenn. Ct. App. 1999).

       In Irvin, the wife was awarded rehabilitative alimony to pursue additional
education. 2012 WL 5993756, at *21-23. This court denied the husband‟s initial appeal
for lack of a final order. Id. at *8. Upon remand, the trial court considered additional
motions submitted by the husband, including a motion to terminate spousal support
because the wife had not taken steps to pursue her education as promised. Id. The wife
admitted at the post-remand hearing that she did not intend to pursue any further
education. Id. at *11. Despite the wife‟s admission, the trial court upheld the award
based upon procedural grounds. Id. at *21. This court reversed and terminated the award
in light of the wife‟s admission, finding that she was no longer in need of support to
pursue additional education. Id. at *21-23.

       Unlike the support recipient in Irvin, Wife testified that she was in the process of
pursuing additional education. She alleged that she fully intended to return to the
pharmaceutical field but that she lacked the requisite knowledge to apply for internships
or attend courses at the present time. She asserted that she purchased a book to aid her in
her preparation. She believed further study of the book would ready her for the necessary
internships and courses. Additionally, she had further need of support, and Husband
maintained the ability to remit support. Under these circumstances, we affirm the court‟s
denial of Husband‟s request to terminate his spousal support obligation when he failed to
establish a substantial and material change in circumstances.

                                            B.

       Husband argues that the court erred in denying his request to amend the life
insurance policy following Grandfather‟s death. He claims that he retained a one-third
interest in the policy as evidenced by his selection of Grandfather as a beneficiary. Wife
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responds that the policy was awarded to her as marital property and that the court was
without jurisdiction to modify the division of property once the divorce became final.
She claims that Grandfather‟s interest automatically transferred to her and the children
upon his passing.

       Beneficiaries named in a life insurance policy ordinarily hold a “mere
expectancy,” not a “vested right or interest in the policy.” Herrington v. Boatright, 633
S.W.2d 781, 783 (Tenn. Ct. App. 1982). “However, where a divorce decree requires the
husband to keep a life insurance policy in effect and denies him the right to change the
beneficiary, then the [named beneficiaries hold] a vested interest in the policy.” Id.

        At the time of the divorce, the court did not address the potential need for a change
in the beneficiary designations in the event that a beneficiary predeceased Husband.
Wife maintains that such a provision was unnecessary because she was awarded sole
ownership of the policy as a marital asset. Wife is correct that the court initially stated in
the transcript that the policy was awarded to her as a marital asset; however, the judgment
of divorce provided, in pertinent part, as follows:

       [Husband] and Wife are awarded their respective life insurance policies;
       however, the [c]ourt hereby places a constructive trust over Husband‟s
       [$1,200,000] life insurance policy (approximate value) with Wife serving
       as Trustee. Husband shall designate [Wife] a one/third beneficiary (1/3);
       Husband‟s two children . . . each a one-sixth (1/6) beneficiary; and
       [Grandfather] a one-third (1/3) beneficiary. These beneficiary designations
       shall be irrevocable. Wife, as Trustee, shall receive notices from the
       insurance company of all activity pertaining to this policy. No one shall
       encumber this policy. The parties will cooperate with each other to
       effectuate this provision.

(Emphasis added).

       Husband, through the constructive trust, retained ownership of the policy but was
specifically directed by the trial court to allocate a one-third interest in the policy to Wife.
Wife held a vested interest in one-third of the policy but did not automatically assume a
vested interest in Grandfather‟s share upon his passing. At most, she gained an
expectancy of a portion of his share in the event that his share was not otherwise
allocated prior to Husband‟s passing. Accordingly, the trial court erred in denying the
motion to amend the life insurance policy. As the owner of the policy, Husband is
permitted to reallocate Grandfather‟s interest. As trustee, Wife must implement any
changes directed by Husband that do not conflict with the divorce judgment.

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                                             C.

       Wife requests attorney fees on appeal. Tennessee Code Annotated section 27-1-
122 provides for an award of sanctions in the form of attorney fees when an appeal is
determined to be frivolous. To find an appeal frivolous, the appeal must be wholly
without merit and lacking in justiciable issues. See Davis v. Gulf Ins. Group, 546 S.W.2d
583, 586 (Tenn. 1977); Indus. Dev. Bd. of Tullahoma v. Hancock, 901 S.W.2d 382, 385
(Tenn. Ct. App. 1995). An award of attorney fees on this ground is unwarranted because
this appeal is not frivolous as evidenced by our reversal of the trial court‟s refusal to
allow an amendment to the life insurance policy.

      However, a right to recover attorney fees for the enforcement of any decree for
alimony was created in Tennessee Code Annotated 36-5-103(c), which provides,

       The plaintiff spouse may recover from the defendant spouse, and the spouse
       or other person to whom the custody of the child, or children, is awarded
       may recover from the other spouse reasonable attorney fees incurred in
       enforcing any decree for alimony and/or child support, or in regard to any
       suit or action concerning the adjudication of the custody or the change of
       custody of any child, or children, of the parties, both upon the original
       divorce hearing and at any subsequent hearing, which fees may be fixed
       and allowed by the court, before whom such action or proceeding is
       pending, in the discretion of such court.

(Emphasis added). Exercising our discretion, we respectfully deny the request for
attorney fees on appeal.

                                   V.      CONCLUSION

       The judgment of the trial court is affirmed in part, as to the denial of the motion to
terminate the spousal support obligation. The judgment of the trial court is reversed in
part, as to the court‟s denial of motion to amend the life insurance policy. The case is
remanded for proceedings consistent with this opinion. Costs of the appeal are taxed
one-half to the appellant, Gregory Herbert Helton, and one-half to the appellee, Cynthia
Rhea Helton.


                                                  _________________________________
                                                  JOHN W. McCLARTY, JUDGE



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