                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 August 27, 2015 Session

    GELA ANNETTE FABRIZIO v. KEITH ANTHONY FABRIZIO, SR.

                   Appeal from the Chancery Court for Monroe County
                      No. 17855     Jerri S. Bryant, Chancellor



             No. E2014-02067-COA-R3-CV-FILED-OCTOBER 29, 2015



This appeal arises from an action for divorce wherein the trial court awarded alimony to
the plaintiff wife, whom the court determined to be economically disadvantaged due to
her inability to maintain employment. The husband has appealed the spousal support
award, asserting that the trial court erred in its analysis of the applicable statutory factors.
Discerning no error, we affirm.

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

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

Steven B. Ward, Madisonville, Tennessee, for the appellant, Keith Anthony Fabrizio, Sr.

Peter Alliman, Madisonville, Tennessee, for the appellee, Gela Annette Fabrizio.

                                          OPINION

                           I. Factual and Procedural Background

       The plaintiff, Gela Annette Fabrizio (“Wife”), filed a complaint for divorce
against the defendant, Keith Anthony Fabrizio, Sr. (“Husband”), on November 20, 2012.
The parties‟ marriage commenced December 14, 1991, and their separation occurred on
October 6, 2012. There are no minor children of the marriage.

       Both parties were employed during the marriage and contributed financially to the
marital estate. Approximately three years before the trial in this matter, Wife began
experiencing significant health problems, including chronic obstructive pulmonary
disease, chronic sino-pulmonary infections (sometimes requiring hospitalization),
degenerative joint disease, chronic back pain, and urinary problems. According to Wife,
she also suffered from anxiety and chronic major depression due to her health and marital
problems. By the time of trial, Wife was no longer able to maintain employment and had
no income. Meanwhile, Husband was employed, reporting a gross monthly income of
$5,852.

       The trial court conducted a hearing on the merits on March 25, 2014. Although
the record contains no transcript of that hearing, the parties filed an agreed statement of
the evidence demonstrating the following facts: Husband left the marital residence in
September 2012, having told Wife that he no longer loved her. According to Wife,
Husband thereafter began living with another woman. Wife stated that Husband refused
to assist her during her illnesses and resultant surgeries and hospitalizations. His refusal
to help intensified her mental distress and depression. Wife reported that while
Husband‟s physical health and mental health were good, she was incapable of working
due to her health concerns. Wife had applied for social security disability assistance but
had not been granted such assistance by the time of trial.

       Wife claimed that Husband spent money on expensive jewelry and other items
following the parties‟ separation. According to Wife, when she confronted Husband
about these purchases, he indicated he was going to “run up” a large amount of credit
card debt in order to increase his expenses for trial. Husband denied making such a
statement.

       Husband did acknowledge, however, that he had left Wife after explaining that he
did not love her anymore, and that his conduct had caused Wife mental and emotional
hardship. Husband did not dispute Wife‟s multiple, significant health issues. He
admitted not helping Wife during her illnesses. Husband also acknowledged that he
began dating another woman in August 2013 and that they were cohabitating. Husband‟s
brother also testified, further corroborating the significance of Wife‟s medical problems.
He stated that Husband had abandoned Wife.

       Exhibit 1 at trial consisted of a master asset list, which demonstrated that the
parties‟ most substantial assets were two parcels of improved real property, with title to
both being encumbered by mortgage debt. The parties also maintained unpaid balances
on several credit cards. Moreover, Husband owed a substantial debt on his vehicle.
Husband filed an income and expense statement, reflecting a monthly net income in the
amount of $3,826 following the deduction of employment taxes, health insurance
expense, and an IRA contribution. Husband reported monthly expenses of $3,994 in
addition to the amount of spousal support he was paying pending trial. Wife‟s income
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and expense statement demonstrated that she had no income apart from the alimony
payments she received from Husband. Wife reported having monthly expenses totaling
$2,161.

        Following the hearing, the trial court entered a final judgment on July 7, 2014. As
Husband was found to be guilty of inappropriate marital conduct, a divorce was awarded
to Wife. The court fashioned an equitable division of the parties‟ marital property, which
is not in dispute on appeal. The court assessed the majority of the parties‟ combined debt
to Husband, ordering Wife to pay only the debts related to the marital residence, which
was awarded to her. Concerning spousal support, the trial court stated:

      The Court finds that this was a long term marriage and that alimony is
      appropriate based upon the duration of the marriage, the Husband‟s ability
      to pay, and the Wife‟s need. The Court finds that the Wife is an
      economically disadvantaged spouse, is not receiving Social Security
      disability, and is unable to work due to her physical, psychological and
      emotional infirmities which is well documented by the record, including the
      Wife‟s medication and medical requirements.                The Court further
      specifically finds that the Wife is not capable of working and that it is
      appropriate to award alimony in futuro and based upon the testimony and
      the entire record, the Court awards the Wife alimony in futuro in the
      amount of Two Thousand and No/100 ($2,000.00) per month payable in
      weekly payments beginning March 25, 2014. In the event the Wife‟s
      Social Security disability claim is approved, then the Court may reconsider
      the amount of [the] alimony award. In the event the Wife‟s Social Security
      disability claim is approved and she receives an arrearage, the parties have
      agreed and the Court approves that the Wife shall pay to the Husband one-
      half (1/2) the arrearage accumulated between February 1, 2011, when the
      claim for disability was filed, and the date of trial, March 25, 2014.

        Both parties filed post-trial motions seeking alteration of the trial court‟s final
judgment. Wife additionally filed a subsequent motion for contempt, asserting that
Husband had failed to pay the full amount of alimony due. As the trial court found
Husband to have a spousal support arrearage in the amount of $1,874, Wife was awarded
attorney‟s fees of $1,000 related to the contempt motion. The court denied both parties‟
post-trial motions seeking amendment of the final judgment. Husband timely appealed.




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                                     II. Issue Presented

       Husband‟s sole issue on appeal is whether the trial court erred in awarding Wife
alimony in futuro in the amount of $2,000 per month based upon the relevant statutory
factors.

                                  III. Standard of Review

        Regarding alimony, our Supreme Court has “repeatedly and recently observ[ed]
that trial courts have broad discretion to determine whether spousal support is needed
and, if so, the nature, amount, and duration of the award.” See Gonsewski v. Gonsewski,
350 S.W.3d 99, 105 (Tenn. 2011). The Court has further explained:

       [A] trial court‟s decision regarding spousal support is factually driven and
       involves the careful balancing of many factors. As a result, “[a]ppellate
       courts are generally disinclined to second-guess a trial judge‟s spousal
       support decision.” Kinard, 986 S.W.2d at 234. Rather, “[t]he role of an
       appellate court in reviewing an award of spousal support is to determine
       whether the trial court applied the correct legal standard and reached a
       decision that is not clearly unreasonable.” Broadbent v. Broadbent, 211
       S.W.3d 216, 220 (Tenn. 2006). Appellate courts decline to second-guess a
       trial court‟s decision absent an abuse of discretion. An abuse of discretion
       occurs when the trial court causes an injustice by applying an incorrect
       legal standard, reaches an illogical result, resolves the case on a clearly
       erroneous assessment of the evidence, or relies on reasoning that causes an
       injustice. This standard does not permit an appellate court to substitute its
       judgment for that of the trial court, but “„reflects an awareness that the
       decision being reviewed involved a choice among several acceptable
       alternatives,‟ and thus „envisions a less rigorous review of the lower court‟s
       decision and a decreased likelihood that the decision will be reversed on
       appeal.‟” Henderson, 318 S.W.3d at 335 (quoting Lee Medical, Inc. v.
       Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)). Consequently, when
       reviewing a discretionary decision by the trial court, such as 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.

Id. at 105-06 (other internal citations omitted).




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                                IV. Alimony in Futuro

       Husband contends that the trial court‟s award of spousal support was excessive
based on the relevant statutory factors, with the most significant considerations, in his
view, being Wife‟s need and Husband‟s ability to pay. Our statutory scheme regarding
awards of alimony, provided in Tennessee Code Annotated § 36-5-121 (2014), states in
pertinent part:

      (d)(1) The court may award rehabilitative alimony, alimony in futuro, also
      known as periodic alimony, transitional alimony, or alimony in solido, also
      known as lump sum alimony or a combination of these, as provided in this
      subsection (d).

      (2) 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
      alimony. . . .

      (3) 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, except as otherwise provided in subdivision (f)(2)(B).

      ***

      (f)(1) Alimony in futuro, also known as periodic alimony, is a payment of
      support and maintenance on a long term basis or until death or remarriage
      of the recipient. Such alimony may be awarded when the court finds that
      there is relative economic disadvantage and that rehabilitation is not
      feasible . . . .

      ***

      (i) In determining whether the granting of an order for payment of support
      and maintenance to a party is appropriate, and in determining the nature,
      amount, length of term, and manner of payment, the court shall consider all
      relevant factors, including:

             (1) The relative earning capacity, obligations, needs, and
             financial resources of each party, including income from

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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;

(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




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             (12) Such other factors, including the tax consequences to
             each party, as are necessary to consider the equities between
             the parties.

       In the case at bar, an examination of the above factors in light of the evidence
presented at trial clearly militates in favor of an award of alimony in futuro to Wife.
With regard to the first statutory factor, Husband‟s earning capacity greatly exceeded that
of Wife, due to her inability to work and earn an income. Husband reported gross income
of $5,852 per month while Wife‟s income was zero. Husband has greater financial
resources than Wife due to his ability to maintain employment and his IRA. Regarding
factor two, neither party presented evidence regarding education or training, but the
record does demonstrate that Wife‟s health condition, rather than a lack of education, is
the primary cause of her unemployment. Factor three concerns the marriage‟s duration.
These parties were married for approximately twenty-three years, which constitutes a
marriage of lengthy duration. With regard to factors four and five, although the parties
were of similar age, Husband‟s mental health and physical health were far superior to
Wife‟s, considering the chronic health problems she had experienced.

        As to factors six and seven, the parties have no minor children. Wife‟s separate
estate exceeded Husband‟s by approximately $7,500. Factor eight relates to the marital
property distribution, which was nearly equal in this case. With regard to factor nine, the
evidence preponderates in favor of a finding that the parties enjoyed a comfortable
standard of living during the marriage. Concerning factors ten and twelve, both parties
contributed to the marital estate as wage earners for most of the marriage, and there
existed no significant tax consequences to consider. Finally, with regard to factor eleven,
the trial court found Husband to be at fault for the dissolution of the marriage.

       As our Supreme Court has frequently observed, two of the most important factors
with regard to a determination of spousal support are “the disadvantaged spouse‟s need
and the obligor spouse‟s ability to pay.” Mayfield v. Mayfield, 395 S.W.3d 108, 116
(Tenn. 2012). Upon our careful review of the record, we agree with the trial court that
Wife is an economically disadvantaged spouse. It was apparently undisputed that Wife
was unable to maintain employment due to her health condition and therefore had no
income. Wife was not receiving social security disability benefits or any other type of
assistance. Consequently, she was completely dependent upon Husband‟s income to
provide for her needs. Husband reported gross income of $5,852 per month, which
placed him in a far better financial position than Wife.

      Regarding Husband‟s ability to pay, Husband reported a net income of $3,826 per
month following the deduction of his employment taxes, insurance expense of $569, and
IRA contribution of $296. However, Husband‟s most recent paycheck stub, appearing in
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the record from the motion and contempt hearing held in August 2014, evinces an
insurance expense deduction of $42 per week, or $182 per month, and an IRA
contribution of $45 per week, or $195 per month. Ergo, it appears that Husband has
decreased his payroll deductions following the divorce, resulting in an increase of
approximately $500 in Husband‟s monthly net income.

       Our review of the expenses listed on Husband‟s statement demonstrates that
Husband claimed to be paying $536 per month for a 2011 vehicle, as well as health club
payments of $283 per month and credit card payments totaling over $1,400 per month.
Husband also listed an “expected” mortgage payment of $425 per month, apparently
denoting an amount that he was not paying at the time of trial. Husband thus reported
total monthly expenses of $3,994 per month, or almost twice the amount of reasonable
monthly expenses reported by Wife.

        By reason of the trial court‟s determination that Wife established a need for the
amount of alimony awarded and Husband demonstrated an ability to pay such amount,
we conclude that the trial court correctly found Wife‟s listed expenses to be reasonable
and necessary, while determining that Husband‟s listed expenses were not reasonable or
necessary. Husband‟s decision to amass a substantial amount of consumer debt via credit
card and vehicle payments should not deprive Wife of having her reasonable needs met.
Furthermore, the credit card bills introduced by Husband at trial demonstrated that the
payments he listed on his expense statement exceeded the minimum monthly requirement
in most cases. In addition, Husband was making contributions to his IRA on a monthly
basis and also paying health club dues and other discretionary expenses. Based on the
totality of the evidence presented, we conclude that the trial court did not err in
determining that Husband maintained the ability to pay spousal support.

        Regarding Wife‟s need, Husband inexplicably argues that Wife‟s reported
monthly expenses of $2,161 are excessive, despite his claiming almost twice that amount.
Husband points out that he was ordered to pay all of the listed credit card debt and
medical bills, such that Wife‟s monthly expense of $175 related to each of these
respective expense categories should be deducted. The record contains no evidence,
however, from which we can determine that Wife‟s allotted monthly payment of $175 for
credit cards would be extinguished by the trial court‟s ordered assessment of certain
credit card debt to Husband in the divorce. Although Wife does identify an expense of
$175 per month for “Medical (payment on accts),” with Husband being ordered in the
final judgment to pay all of Wife‟s outstanding medical bills, elimination of this expense
would render Wife‟s total monthly expenses to be roughly $2,000, which was the amount
awarded by the trial court in monthly spousal support. In addition, Wife established that
she would, following the divorce, incur a monthly health insurance expense of $92,
which was not included in her expense statement.
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        Based upon our thorough review of the evidence, we conclude that the trial court
did not abuse its discretion in either the amount or nature of the alimony awarded to
Wife. The trial court did not “apply[] an incorrect legal standard, reach[] an illogical
result, resolve[] the case on a clearly erroneous assessment of the evidence, or rely[] on
reasoning that cause[d] an injustice.” See Gonsewski, 350 S.W.3d at 105. Wife
demonstrated a reasonable need for the spousal support awarded while Husband
demonstrated the ability to pay such an award. Therefore, we affirm the trial court‟s
award of spousal support to Wife.

                                     V. Conclusion

       For the foregoing reasons, we affirm the trial court‟s judgment in all respects.
Costs on appeal are assessed to the appellant, Keith Anthony Fabrizio, Sr. This case is
remanded to the trial court, pursuant to applicable law, for collection of costs assessed
below.



                                                _________________________________
                                                THOMAS R. FRIERSON, II, JUDGE




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