                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                OCTOBER 11, 2007 Session

      CARMEN RAMPAUL MOHAMMED v. FAROUK MOHAMMED

                   Direct Appeal from the Circuit Court for Shelby County
                          No. CT-004275-02     Rita L. Stotts, Judge



                    No. W2007-00360-COA-R3-CV - Filed March 11, 2008


This is an appeal involving a post-divorce award of alimony in futuro. The court awarded the wife
a divorce from the husband after 36 years of marriage. The husband has a bachelor’s and master’s
degree in electrical engineering. The wife does not have a college degree and makes a living as a
hair stylist. In the final divorce decree, the court awarded the wife temporary alimony in the amount
of $3,500 per month. The husband sought to reduce his alimony obligation. At the hearing, the
court found a material change in circumstances and reduced the husband’s alimony obligation from
$3,500 a month to $2,000 a month. The court ordered, however, that this $2,000 a month award was
in futuro until the wife’s death or remarriage. The husband appeals, and we affirm and remand for
a determination of an appropriate award of the wife’s attorney’s fees.

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

ALAN E. HIGHERS, P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER , J., and
HOLLY M. KIRBY , J., joined.

Robert S. Weiss, Memphis, TN, for Appellant

Sharon Harless Loy, Memphis, TN, for Appellee
                                      MEMORANDUM OPINION 1

                                   I. FACTS & PROCEDURAL HISTORY

       After 34 years of marriage, Carmen Rampaul Mohammed (“Appellee” or “Wife”) filed for
divorce from Farouk Mohammed (“Appellant” or “Husband”) on July 30, 2002. The parties have
two adult children. Wife alleged in her complaint that Husband physically abused her on several
occasions and threatened to kill her. Wife indicated that the court had previously granted an ex parte
order of protection against Husband. The complaint also alleged irreconcilable differences and
inappropriate marital conduct. Husband filed an answer and counter-complaint for divorce on
August 23, 2002, which alleged that Wife was guilty of inappropriate marital conduct and habitual
drunkenness.

        On April 29, 2004, Wife filed a motion for a default judgment based on Husband’s refusal
to comply with discovery requests and court orders. Previously, Wife filed numerous petitions for
contempt due to Husband’s failure to comply with court orders. On March 18, 2003, Wife filed a
contempt petition alleging that Husband sold two parcels of real property in violation of a temporary
injunction. The court ordered that Husband obtain an appraiser to determine the value of the two
parcels. On January 16, 2004, Wife filed a contempt petition, alleging that Husband had failed to
comply with a consent order on discovery and two other orders. On March 8, 2004, the trial court
ordered Husband to comply with a consent order dated May 27, 2003. Wife alleged in her motion
for a default judgment that Husband had failed to comply with certain orders, and also had failed to
comply with the pendent lite support order, which required him to pay the mortgages on the marital
home and rental properties owned by the parties. Wife also alleged in her motion for a default
judgment that Husband failed to comply with discovery requests pursuant to Rules 33 and 34 of the
Tennessee Rules of Civil Procedure.

       Husband then filed his first Chapter 13 petition for bankruptcy protection. Wife, however,
obtained relief from the automatic stay.2 The trial court then granted Wife’s motion for default
judgment and set the matter on the uncontested divorce docket. On December 12, 2004, the court
entered a final decree of divorce based upon the parties’ stipulation of Husband’s cruel and inhuman
treatment of Wife. The court awarded Wife temporary alimony in the amount of $3,500 per month.
The court stated that Husband “has the ability to earn income to the extent that the Husband is
capable and able to pay alimony to the Wife.” The court found that Husband had worked as an


       1
           Rule 10. MEMORANDUM OPINION
                          This Court, with the concurrence of all judges participating in the case,
                 may affirm, reverse or modify the actions of the trial court by memorandum opinion
                 when a formal opinion would have no precedential value. W hen a case is decided
                 by memorandum opinion it shall be designated “MEMORANDUM OPINION”,
                 shall not be published, and shall not be cited or relied on for any reason in any
                 unrelated case.

       2
           Husband filed subsequent Chapter 13 petitions on August 31, 2005; January 12, 2006; and June 21, 2006.


                                                        -2-
electrical engineer during the marriage. In 1998, Husband claimed a gross annual income of
$127,659; in 2001, Husband claimed in a financial application, under oath, that his income was
$145,000 and that his net worth was $725,000. Husband did not file income tax returns in 2001,
2002, or 2003. The court ordered Husband to pay Wife temporary alimony in the amount of $3,500
per month, reserving the final ruling on alimony “after such time as the Court determines the net
value of and distribution of the real property . . . .” The court stated that “[t]he alimony award is
based upon consideration of all relevant statutory factors provided by Tenn. Code Ann. § 36-5-101.”
The court also awarded Wife her attorney’s fees based on “Husband’s efforts to thwart discovery”
and on Wife’s financial need.

         As to the division of the marital property,3 Husband received, among other things, the interest
in the two Lot-A-Burger franchise restaurants and one Church’s Chicken franchise restaurant. Wife
received the marital home and a money market account in the amount of $65,000. As to the division
of marital debt, “Husband is ordered to be solely responsible for any and all debts incurred by him,
including but not limited to all amounts owed to unsecured creditors included in Husband’s
Voluntary Petition for Chapter 13 Bankruptcy protection.” The decree also ordered Husband to
continue paying the mortgage on the marital home. The couple owned rental properties, and the
court ordered that “Husband shall not accept any rental payments from tenants and shall direct all
rental payments to be made directly to the escrow account [ ], as previously ordered by this Court.
Such rental payments may be used to pay the mortgages payments on the properties until such time
as the properties are sold.” Wife was to receive any rental payments in excess of the monthly
mortgage payments. The parties had no separate property.

        On January 10, 2005, Husband filed a motion for a new trial and a motion to alter or amend
the final decree of divorce. Husband alleged that he had turned over all discovery documents in his
possession at the time of Wife’s request, and thus, the entry of a default judgment was error. The
court denied this motion on February 23, 2005. Wife then filed several petitions for contempt.4 The
marital home, which was awarded to Wife, was foreclosed upon and sold in October of 2006 because
of Husband’s failure to pay the mortgage. All rental properties were also foreclosed upon.

        On January 24, 2006, Husband filed a petition to modify his alimony obligation contained
in the final decree of divorce. Husband filed an amended petition to modify on May 23, 2006.
Husband’s amended petition alleged that since the time of the entry of the final decree of divorce,
his financial situation has changed, and that he is unable to meet his alimony obligation.
Specifically, Husband alleged that his main source of income was from a Church’s Chicken fast food
franchise, and that he lost this franchise in April of 2005.




         3
             The division of marital property is not an issue on appeal.

         4
            W e need not get into great detail as to all the contempt petitions filed in this case, as they are numerous and
are not dispositive of the sole issue on this appeal.


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         At the modification hearing held on November 30, 2006 and January 12, 2007, Husband
testified that as of 2001, he has worked at his two Lot-A- Burger restaurants that he leases from two
other individuals. Husband must pay the lessors each $4,000 a month. Husband testified that
business is down because of changes in the demographics and the loss of his biggest customers,
employees from a railroad company. Husband testified that he is currently only able to pay one of
the lessors $4,000 a month, and he is paying the second lessor $2,300 a month. Husband is also
responsible for the payment of county and city taxes on these two restaurants. Husband’s 2003
partnership income tax return stated a loss of $27,142.58 in 2003 and a loss in 2005 of $8,224. The
2004 statement showed income of $9,700. Husband previously owned a third franchise, a Church’s
Fried Chicken, but that franchise was terminated in May of 2005. Husband also testified that he is
currently involved in a Chapter 13 Bankruptcy proceeding and that he has placed around $10,000
into that proceeding.

        On cross-examination, Husband testified that he was shot in 2002 and the bullets remain in
his waist, and thus he cannot take jobs where he must climb or walk for long periods. Husband has
both a bachelor’s degree and master’s degree in engineering. Husband testified that he had worked
in the past as an electrical engineer, but has not worked in that field since 1999. Husband’s affidavit
of income and expenses claimed that he had a monthly gross income of $3,400.00 and a monthly net
balance after expenses of a negative $4,494.25. Husband’s greatest expense listed on his affidavit
was that of groceries/dining out, which he alleged was $600 a month.

        Wife testified that she is a hair stylist and works on commission at a hair salon. She retains
60 percent of her earnings, and the other 40 percent goes to the owner of the salon. Wife earns on
average $75 a week in tips from her customers at the salon. Wife does not have a college education
and was sixteen years old when the parties married. Wife has worked as a hair stylist for the past
16 years. Wife suffers from diabetes and spends around $100 a month on her prescriptions. Wife’s
income reported on her 1099 was $26,754.80 in 2005, and $30,434.46 in 2006. Wife made a
$25,000 down payment on her house that she purchased in 2005. Wife’s affidavit of income and
expenses listed her gross monthly income before self-employment taxes at $1,456, with a net amount
at $1,300.42. Wife listed her total average monthly expenses at $2,745.71. She also testified that
Husband’s alimony arrearage is around $58,000.

        The trial court pronounced its ruling from the bench and later entered an order on January
22, 2007, which reduced Husband’s alimony obligation from $3,500 a month to $2,000 a month.
As to Husband’s claimed negative income of $4,494.25 a month, the court pointed out that of that
amount, $3,500 was listed as alimony expense which Husband was simply not paying. Although the
court stated from the bench that Husband was not “completely candid,” the court went on to find in
its order that Husband had shown a substantial and material change in circumstances that warranted
the reduction in his alimony obligation. The court ordered, however, that this $2,000 a month
alimony award was in futuro, to be paid until Wife’s death or remarriage. Husband filed his notice




                                                 -4-
of appeal on February 15, 2007. The court subsequently entered a corrected order on May 4, 2007,
nunc pro tunc to the January 22, 2007 order.5 The court, in greater detail, found as follows:

                   2.        That the Plaintiff/Respondent is awarded alimony in futuro
                             until her death or remarriage based on the following findings:
                             a.      That the Plaintiff/Respondent is relatively
                                     economically disadvantaged.
                             b.      That rehabilitation is not feasible, such that the
                                     Plaintiff/Respondent is unable to achieve, with
                                     reasonable effort, an earning capacity that will permit
                                     the spouse’s standard of living after the divorce to be
                                     reasonably comparable to the standard of living
                                     enjoyed during the marriage.
                   ...
                                                II. ISSUE PRESENTED

        Appellant presents the following issue for review: Whether the trial court abused its
discretion by awarding Wife alimony in futuro in the amount of $2,000 per month because Wife is
not economically disadvantaged. For the following reasons, we affirm the decision of the trial court.
In addition, we award Appellee her attorney’s fees.

                                            III.   STANDARD OF REVIEW

         We review a trial court’s conclusions of law under a de novo standard with no presumption
of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate
of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)). We afford a
trial court’s factual findings a presumption of correctness, and we will not overturn such findings
unless the evidence preponderates against them. Tenn. R. App. P. 13(d) (2007); Bogan v. Bogan,
60 S.W.3d 721, 727 (Tenn. 2001). For the evidence to preponderate against a trial court’s finding
of fact, it must support another finding of fact with greater convincing effect. Watson v. Watson,
196 S.W.3d 695, 701 (Tenn. Ct. App. 2005) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d
66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d
581, 596 (Tenn. Ct. App. 1999)). The trial court has great discretion in setting an alimony award,
and we will not interfere with such a decision absent an abuse of discretion. Robertson v. Robertson,
76 S.W.3d 337, 342 (Tenn. 2002); Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000) (citing
Hanover v. Hanover, 775 S.W.2d 612, 617 (Tenn. Ct. App. 1989)).


         5
            Although neither party raises the issue of whether the trial court lacked subject matter jurisdiction to enter
a corrected order after Husband filed his notice of appeal, generally, “once a party perfects an appeal from a trial court's
final judgment, the trial court effectively loses its authority to act in the case without leave of the appellate court.” First
American Trust Co. v. Franklin-Murray Developm ent Co., L.P., 59 S.W .3d 135, 141 (Tenn. Ct. App. 2001) (footnote
omitted). Remand on the matter is unnecessary, though, as we can decide the issue based upon the record and the
original order.


                                                             -5-
                                         IV. DISCUSSION

                                       A. Alimony in futuro

        On appeal, Husband asserts that the trial court abused its discretion by awarding Wife
alimony in futuro in the amount of $2,000 per month, because Wife failed to establish that she had
a need for such an award, and that the $2,000 a month alimony award exceeds his income.

        Trial courts have a great deal of discretion in determining the nature, duration, and amount
of an alimony award. Fulbright v. Fulbright, 64 S.W.3d 359, 367 (Tenn. Ct. App. 2001); see also
Tenn. Code Ann. § 36-5-121(a) (2005). Likewise, trial courts have wide latitude in modifying an
award of spousal support. Perry v. Perry, 114 S.W.3d 465, 466–67 (Tenn. 2003) (citation omitted)
(“Because modification of a spousal support award is factually driven, a trial court’s decision to
modify its award is given wide latitude within the trial court’s range of discretion.”). Trial courts
may, “upon application of either party, [ ] award an increase or decrease or other modification of the
award based upon a showing of a substantial and material change of circumstances[.]” Tenn. Code
Ann. § 36-5-121(a) (2005).

       An award of alimony in futuro, also referred to as permanent or periodic alimony, “continues
support that was incident to the marital relationship and continues indefinitely. It is generally based
on the need of the recipient for continued longterm support after the breakup of the marriage.”
Bryan v. Leach, 85 S.W.3d 136, 146 (Tenn. Ct. App. 2001) (citation omitted). Tenn. Code Ann.
§ 36-5-121 (d)(3) provides as follows:

               Where there is relative economic disadvantage and rehabilitation is
               not feasible, in consideration of all relevant factors, including those
               set out in subsection (i), the court may grant an order for payment of
               support and maintenance on a long-term basis or until death or
               remarriage of the recipient[.] . . .

The factors set out in subsection (i), which the trial court must consider when determining the nature,
amount, length, and manner of payment of the alimony award, are as follows:

               (1) 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;
               (2) 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 earnings capacity to a reasonable level;
               (3) The duration of the marriage;
               (4) The age and mental condition of each party;



                                                 -6-
                  (5) The physical condition of each party, including, but not limited to,
                  physical disability or incapacity due to a chronic debilitating disease;
                  (6) 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;
                  (7) The separate assets of each party, both real and personal, tangible
                  and intangible;
                  (8) The provisions made with regard to the marital property, as
                  defined in § 36-4-121;
                  (9) The standard of living of the parties established during the
                  marriage;
                  (10) 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;
                  (11) The relative fault of the parties, in cases where the court, in its
                  discretion, deems it appropriate to do so; and
                  (12) Such other factors, including the tax consequences to each party,
                  as are necessary to consider the equities between the parties.

Tenn. Code Ann. § 36-5-121(i). The trial court should consider these same factors when modifying
an award.6 Norvell v. Norvell, 805 S.W.2d 772, 774 (Tenn. Ct. App. 1990) (citing Threadgill v.
Threadgill, 740 S.W.2d 419, 422 (Tenn. Ct. App. 1987)).

        Turning back to the present case, the judge implicitly found in the original order that Wife’s
rehabilitation is not feasible. See Hopkins v. Hopkins, 2002 WL 31387297, at *3 (Tenn. Ct. App.
2002) (“Although the record does not specifically show that the Trial Court found that rehabilitation
of [Wife] is not feasible, such finding is implicit in the Trial Court’s award of alimony in futuro.”).
The trial judge did not make findings of fact as to the statutory factors that she considered when she
set Wife’s permanent alimony award. Thus, we must review the record to determine where the
preponderance of the evidence lies. Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001) (citing
Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000)); Hopkins, 2002 WL 31387297, at *3.

       We conclude that an award of alimony in futuro in the amount of $2,000 is appropriate in this
case. We are dealing with a marriage of 36 years, which ended because of Husband’s inhumane
treatment of Wife. At the time of the divorce, Wife was 52 years old and Husband was 56 years old.

         6
             The obligor spouse must prove a change of circumstances after the entry of the decree ordering the payment
of alimony. Norvell, 805 S.W .2d at 774 (citation omitted). W ife argues in her brief that “Husband failed to prove that
his income has changed subsequent to the entry of the Final Decree of Divorce.” W ife’s argument concludes, however,
that “the evidence strongly supports the trial court’s ruling and said ruling should not be disturbed.” W e do point out
that it is undisputed from the record that Husband lost his Church’s Chicken restaurant after the award of temporary
alimony. In any event, W ife fails to argue that the court erred in reducing the alimony award, so we will not address that
issue.


                                                           -7-
Wife is a hair stylist with no college education, and Husband has two advanced engineering degrees.
Thus, Husband has a considerably higher earning capacity than Wife. The record indicates that Wife
supported Husband while he pursued his degrees. As to the health of the parties, Wife suffers from
diabetes, although Husband testified that he suffers a physical impairment due to a shooting incident.
 There is no testimony that either party is unable to work because of the aforementioned ailments.

        We next turn to two of the most important factors, which are the need of the disadvantaged
spouse and the obligor spouse’s ability to pay. Perry v. Perry, 114 S.W.3d 465, 467 (Tenn. 2003).
As to Wife’s financial need, her affidavit of income and expenses stated $1,300.42 net income and
$2,745.71 monthly expenses. Wife also testified that as a hair stylist, her monthly income fluctuated.
The trial court found Wife to be a credible witness. As to Husband’s ability to pay, the judge found
that Husband had not been “candid” with the court. The trial court pointed out that of Husband’s
alleged negative income of $4,494.25 a month, $3,500 in alimony expense was not actually being
paid. We also point out the questionable $600 a month grocery/dining out expense that Husband
claimed in his affidavit of income and expenses. Furthermore, Husband has two advanced degrees
and is choosing not to use them.

        Finally, we address Husband’s argument that the trial court entered the award of alimony in
futuro as a form of punishment against him for his previous failures to comply with court orders.
While we agree that “unneeded alimony may not be added to punish a guilty spouse[,]” Wilder v.
Wilder, 66 S.W.3d 892, 895 (Tenn. Ct. App. 2001), we find Husband’s argument meritless.
Nothing in the record indicates that the trial court based its decision to award alimony in futuro on
Husband’s previous contemptuous behavior.7 Taking into consideration the aforementioned, the trial
court did not abuse its discretion in awarding Wife alimony in futuro because Wife is economically
disadvantaged. In sum, we find that the evidence does not preponderate in Husband’s favor, and we
affirm the alimony award.

                                         B.     Attorney’s fees on Appeal

        Wife has requested an award of her attorney’s fees on appeal. “Attorney’s fees are only
awarded if provided for by contract, statute, or a recognized ground of equity.” Parchman v.
Parchman, No. W2003-01204-COA-R3-CV, 2004 Tenn. App. LEXIS 768, at *15 (Tenn. Ct. App.
Nov. 17, 2004) (quoting Austin Powder Co. v. Thompson, No. 03A01-9607-CV-00229, 1996 Tenn.
App. LEXIS 805, at *5 (Tenn. Ct. App. Dec. 16, 1996)). When dealing with cases of divorce, we
may award attorney’s fees based upon the prevailing party’s economic disadvantage. Boggs v.
Boggs, No. M2006-00810-COA-R3-CV, 2007 WL 2353156, at *6 (Tenn. Ct. App. Aug. 17, 2007).
“Thus, parties may be entitled to an additional award for their legal expenses if they demonstrate that
they lack sufficient funds to pay their legal expenses or that they would be required to deplete other
needed assets to do so.” Fox v. Fox, No. M2004-02616-COA-R3-CV, 2006 WL 2535407, at *11


         7
            W e also point out that Tenn. Code Ann. § 36-5-121(i)(12) allows for the court to consider other factors “as
are necessary to consider the equities between the parties.” Thus, although not solely determinative, the trial court could
consider the legal expense Husband created by time after time disobeying court orders.


                                                           -8-
(Tenn. Ct. App. Sept. 1, 2006). Based on Wife’s need and her success on this appeal, we grant Wife
an award of her attorney’s fees. On remand, the trial court is directed to set the reasonable legal
expenses Wife incurred as a result of this appeal.


                                       V. CONCLUSION

        For the aforementioned reasons, we affirm the decision of the trial court and remand on the
sole issue of attorney’s fees. Costs of this appeal are taxed to Appellant, Farouk Mohammed, and
his surety, for which execution may issue if necessary.



                                                      ___________________________________
                                                      ALAN E. HIGHERS, P.J., W.S.




                                                -9-
