                                                                                          02/15/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              November 14, 2017 Session

           ROBERT HARVEY SANTEE v. STACY LYNN SANTEE
                 Appeal from the Chancery Court for Sevier County
                  No. 13-9-285 Telford E. Forgety, Jr., Chancellor
                           ___________________________________

                               No. E2016-02535-COA-R3-CV
                           ___________________________________


CHARLES D. SUSANO, JR., Judge, concurring in part and dissenting in part.

       I concur completely in the majority’s decisions pertaining to (1) the allocation of
the parties’ debt; (2) the imputation of income to wife for the purpose of calculating child
support; and (3) wife’s request for her attorney’s fees as alimony in solido. In my
judgment, there is no error regarding any of these matters. I dissent, however, from the
majority’s decision to award wife “rehabilitative” alimony rather than alimony in futuro.
I do so because, I believe, the evidence clearly and overwhelmingly preponderates
against the trial court’s “rehabilitative” decision.

       The trial court “observe[d] that there is no question here but that wife is
economically disadvantaged within the meaning of [Tenn. Code Ann. § 36-5-121(c)(2)
and (e)(1)].” Husband earns approximately $500,000 annually from his profession as a
radiologist. Wife, on the other hand, was a stay-at-home wife and mother during the 26
years of the parties’ marriage. Her one business undertaking resulted in a loss of some
$10,000. Enough said.

       Where do we go from here? A finding of economic disadvantage is only the first
step in the “alimony” analysis. The majority points out that wife intends to get a two-
year diploma leading to an occupation as a medical assistant. The majority opines as
follows:

              While the rehabilitative alimony awarded by the Trial Court
              will not transform wife entirely from being economically
              disadvantaged, it will enable her to increase her capacity for
              self-sufficiency.

(Emphasis added.) The majority misconstrues the concept of “rehabilitation.” It is a
concept with a clear statutory definition. The issue is not whether wife can “increase her
capacity for self-sufficiency” or be in a position to fund a good or reasonable standard of
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living. The real issue is whether wife can be “rehabilitated” as that concept is defined in
Tenn. Code Ann. § 36-5-121, not just once but twice. The pertinent subsections are as
follows:

                                    Subsection (c)(2)

              The general assembly finds that the contributions to the
              marriage as homemaker or parent are of equal dignity and
              importance as economic contributions to the marriage.
              Further, where one (1) spouse suffers economic detriment for
              the benefit of the marriage, the general assembly finds that
              the economically disadvantaged spouse's standard of living
              after the divorce should 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.

                                    Subsection (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 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.

In this case, we are comparing (1) a standard of living funded by an income of half a
million dollars with (2) that of one attainable by a high school graduate with essentially
no work history for some 26 years. We need to look no further than husband’s own
statement. According to him, wife “has no real ability to earn an income anywhere close
to the lifestyle” enjoyed by the parties in their marriage.

       The fact that wife wants to get a two-year degree so she can be a medical assistant
misses the point. Wife going forward can never enjoy a standard of living even remotely
close to that which she enjoyed in the marriage or the standard of living that husband will
enjoy as a result of his $500,000 annual income.



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       The majority talks about the fact that husband was planning to retire in 2017. It
says that his retirement would “naturally . . . affect his ability to pay.” If and when
husband does retire, his situation will be analyzed under the principles set forth in Bogan
v. Bogan, 60 S.W.3d 721 (Tenn. 2001). Until husband retires, any decision regarding the
impact of such an event on his ability to pay in futuro spousal support is purely
speculative and premature.

       In its memorandum opinion delivered from the bench, which is incorporated in the
final judgment by reference, the trial court discussed the issue of wife’s fault in the
demise of the marriage:

              The relative fault of the parties, in cases where the Court, in
              its discretion, deems it appropriate to consider. It is
              appropriate here to consider fault, and fault has already been
              allocated [in the court’s discussion of grounds], as the Court
              said, to the wife. But it is appropriate in this case.

                                   *      *       *

              Case law also tells us that, while fault is a factor or may be a
              factor in alimony decisions, that, nevertheless, the alimony
              decision must not be punitive in nature. Quite frankly, I’ve
              never been able just exactly 100 percent to reconcile those
              two things, because it seems to me that, look, if it is a case
              where alimony is otherwise appropriate and the Court decides
              no, I’m not going to give any alimony, that’s punitive, isn’t
              it? Seems to me.

              If it is a case where a certain amount of alimony is otherwise
              indicated but the Court awards less than it otherwise would
              have because of fault, that’s punitive, isn’t it?

              So I’ve never been able to 100 percent reconcile those
              principles of law in my mind. I think probably where it winds
              up is that, look, you may take into account fault, but you may
              not take – there is a certain point after which the application
              of fault to the decision becomes punitive, and then it is not
              sustainable. So I think that’s the best I can do at reconciling
              those principles of law.

       In the final judgment, the court found as follows:



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              That the Court finds that the Wife is in need of and that
              Husband has the ability to pay, rehabilitative alimony based
              on the statutory factors as more particularly set forth in the
              aforementioned Opinion of the Court.

It used similar language in the ordering part of the final judgment:

              That the Wife has a need for and the Husband had the ability
              to pay rehabilitative alimony in the amount of $3,500.00 per
              month for a period of sixty (60) months. Said payments shall
              be made directly to the Wife commencing on September 1,
              2016 and continuing on the 1st day of each and every
              calendar month thereafter until paid in full.

       It is apparent that the trial court was troubled by the interplay between (a) cases
discussing “punitive” alimony, see e.g., Duncan v. Duncan, 686 S.W.2d 568, 571 (Tenn.
Ct. App. 1984), and (b) the language of Tenn. Code Ann. § 36-5-121(i)(11) (“The
relative fault of the parties, in cases where the court, in its discretion, deems it appropriate
to do so”). It is interesting to note that subsection (i)(11) is the only subsection of (i) that
makes specific reference to the trial court’s discretion as to whether it is “appropriate” to
consider the relative fault of the parties in the alimony analysis.

        The issue here, however, is not whether the trial court was correct in its
observation of confusion in reconciling the statute with the “punitive” alimony cases.
The issue in this case is whether the trial court did, in fact, consider the relative fault of
the parties as a factor to be considered in the court’s discretion on the issue of alimony. I
believe that it did not. In making this statement, I am relying on a number of things.
First, the trial court did not expressly state that it was considering wife’s fault in setting
alimony. Second, the final judgment of the court makes no mention of relative fault of
the parties. Finally, the court discussed the alimony decision without reference to wife’s
fault but did discuss it when the court was discussing grounds.

        The trial court obviously was unable to decide whether to “punish” wife for her
conduct or to ignore that conduct in setting alimony. I believe that the only conclusion
one can reach is that the trial court opted to ignore that conduct in the alimony analysis.
If this is not the case, where is the evidence reflecting that the court found a certain
alimony award but then lessened it because of wife’s fault?

        Considering all of the above, it seems clear to me that the trial court did not intend
in the alimony analysis to penalize wife for her affair.

      I would reverse the trial court’s decision awarding “rehabilitative” alimony and
remand to the trial court for the entry of a judgment awarding wife alimony in futuro of

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$3,500 per month, said award to terminate on the death of either party or wife’s
remarriage.


                                      _______________________________
                                      CHARLES D. SUSANO, JR., JUDGE




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