                      IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                                      Assigned on Briefs July 8, 2015

                    JODI LYNN JENKINS v. STEVEN LOUIS JENKINS

                 Appeal from the Chancery Court for Sullivan County at Kingsport
                           No. K0039313    E.G. Moody, Chancellor



                 No. E2014-02234-COA-R3-CV-FILED-SEPTEMBER 25, 2015



The plaintiff, Jodi Lynn Jenkins (“Wife”), filed this divorce action against the defendant,
Steven Louis Jenkins (“Husband”), on March 20, 2014. Prior to trial, the parties reached
an agreement regarding certain issues, including an equitable division of their marital
property, a permanent parenting plan, and child support. The trial court conducted a
hearing on September 10, 2014, regarding the remaining issues of alimony and attorney‟s
fees. Following the hearing, the trial court entered an order awarding Wife alimony in
futuro in the amount of $3,500 per month until Husband‟s child support obligation
terminated and $4,500 per month thereafter. The court also awarded Wife $5,000 in
attorney‟s fees.1 Husband timely appealed. Discerning no error, we affirm the trial
court‟s judgment. We remand this action to the trial court for a determination regarding
the issue of a reasonable award of attorney‟s fees to Wife incurred in defending this
appeal.

           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 CHARLES D.
SUSANO, JR., C.J., and D. MICHAEL SWINEY, J., joined.

Amber Floyd Lee, Johnson City, Tennessee, for the appellant, Steven Louis Jenkins.

Gregory W. Francisco, Kingsport, Tennessee, for the appellee, Jodi Lynn Jenkins.




1
    The trial court‟s award of attorney‟s fees to Wife was not appealed.
                                        OPINION

                          I. Factual and Procedural Background

       The parties were married on June 5, 1990. Three children were born of the
marriage, two of whom had attained the age of majority while the remaining minor child
was seventeen years old by time of trial. During the marriage, Wife earned a bachelor‟s
degree in elementary education with a special education endorsement. Early in the
marriage, Wife taught school for approximately one year before transitioning to a stay-at-
home parent for the parties‟ children. Wife subsequently taught English as a second
language (“ESL”) for brief periods when the parties resided in a foreign country. During
her work as an ESL teacher, Wife began experiencing symptoms of Post-Traumatic
Stress Disorder (“PTSD”), which she attributed to sexual abuse that she suffered as a
child.

        Following the family‟s return to the United States, Wife began receiving
therapeutic treatment for PTSD and also began taking medications for depression and
anxiety. Wife explained that she was unable to return to teaching elementary school
students because associating with children of such age worsened her condition. Wife
stayed home to take care of the parties‟ children and also served as a caregiver for her
ailing parents. At some point, Wife discovered that for her, yard work was therapeutic.
This led to Wife‟s establishing a business known as Eclectic Handywoman, wherein she
offered various services for hire, including mowing, landscaping, sitting with elderly
clients, and other tasks. Wife continued to operate this business at the time of trial,
earning approximately $1,000 per month.

       Husband obtained a higher level of education than Wife. Wife testified that
Husband was enrolled in graduate school when the parties met; however, the record is
unclear regarding which advanced degrees Husband earned, if any. He was employed
throughout the marriage in various teaching or technology-related positions. By trial,
Husband maintained employment with Bank of America, earning gross income
exceeding $12,000 per month. Husband also owned a software business named
Synaptian, which yielded a net income of approximately $700 per month. In addition,
the parties owned various rental properties, from which they also derived monthly
income.

       Following months of marital counseling, the parties separated in early 2014 when
Husband left the marital residence. Wife filed the instant action on March 20, 2014,
seeking a divorce, equitable distribution of the marital estate, child support, and alimony.
The trial court conducted a hearing on September 10, 2014, during which Husband and
Wife were the only witnesses. At the hearing‟s outset, the parties entered a stipulation of
                                             2
agreement, which detailed their settlement of certain issues involving property division,
their permanent parenting plan, and an agreed amount of child support. In their
agreement, the parties established that the marital residence would be sold and the
proceeds equally divided. Wife would be permitted to continue living in the marital
residence until the sale or, at the latest, until December 1, 2015. Husband was awarded
his software business and its assets. Likewise, Wife was awarded her handywoman
business and its assets.

       The parties further agreed that certain rental properties (“Martindale” and “Old
Embreeville”) would be sold and the proceeds equally divided. Husband retained other
valuable rental properties owned by the parties. In exchange, Wife was to be awarded all
of the parties‟ retirement accounts and a payment of $14,432 from Husband. Overall,
each party received marital assets worth nearly $300,000 in the division. The parties
determined that Wife should be the primary residential parent for their youngest
daughter, with Husband receiving co-parenting time on alternating weekends. The
parties further agreed that Husband‟s child support obligation would be $1,208 per
month.

       Following the hearing, the court entered a judgment awarding a divorce to Wife
based upon Husband‟s inappropriate marital conduct. The trial court adopted and
incorporated the parties‟ agreement regarding the equitable division of their marital
property. Further, the court made findings regarding the statutory factors related to
spousal support, determining that Wife should receive alimony in futuro in the amount of
$3,500 per month until Husband‟s child support obligation terminated and $4,500 per
month thereafter. Wife was also awarded $5,000 in attorney‟s fees as alimony in solido.
Husband timely appealed.

                                  II. Issues Presented

        The parties present the following issues for our review, which we have restated
slightly:

      1.     Whether the trial court abused its discretion in awarding Wife
             alimony in futuro.

      2.     Whether the trial court erred in the amount of alimony awarded.

      3.     Whether Wife is entitled to an award of attorney‟s fees on appeal.




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                                  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).

                             IV. Award of Alimony in Futuro

       Husband argues that the trial court abused its discretion by awarding Wife alimony
in futuro. According to Husband, the trial court should have determined that Wife had
the ability to be rehabilitated and could attain a standard of living similar to that which
Husband would enjoy following the divorce. Husband further contends that Wife‟s
claimed expenses were inflated and improperly included expenses attributable to other
adults in the household, namely the parties‟ two adult daughters. Following a thorough
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review of the evidence and the statutory factors regarding alimony, we disagree with
Husband‟s contentions.

      Our statutory scheme regarding awards of alimony, provided in Tennessee Code
Annotated § 36-5-121 (2014), states in pertinent part:

      (c)(1) Spouses have traditionally strengthened the family unit through
      private arrangements whereby one (1) spouse focuses on nurturing the
      personal side of the marriage, including the care and nurturing of the
      children, while the other spouse focuses primarily on building the economic
      strength of the family unit. This arrangement often results in economic
      detriment to the spouse who subordinated such spouse‟s own personal
      career for the benefit of the marriage. It is the public policy of this state to
      encourage and support marriage, and to encourage family arrangements that
      provide for the rearing of healthy and productive children who will become
      healthy and productive citizens of our state.

      (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.

      (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


                                             5
maintenance on a long-term basis or until death or remarriage of the
recipient, except as otherwise provided in subdivision (f)(2)(B).

(4) An award of alimony in futuro may be made, either in addition to an
award of rehabilitative alimony, where a spouse may be only partially
rehabilitated, or instead of an award of rehabilitative alimony, where
rehabilitation is not feasible. Transitional alimony is awarded when the
court finds that rehabilitation is not necessary, but the economically
disadvantaged spouse needs assistance to adjust to the economic
consequences of a divorce, legal separation or other proceeding where
spousal support may be awarded, such as a petition for an order of
protection.

(5) Alimony in solido may be awarded in lieu of or in addition to any other
alimony award, in order to provide support, including attorney fees, where
appropriate.

(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.

***

(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:


                                     6
(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;

(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 instant action, the trial court made extensive findings of fact regarding these
statutory factors, which we paraphrase as follows:

       1.     Husband has a much greater earning capacity. Although Wife might
              be slightly underemployed, she could not increase her income
              without additional training or education. Wife has been out of the
              labor market for twelve years. Wife is economically disadvantaged
              compared to Husband, and rehabilitation is not feasible.

       2.     Husband has more education and training than does Wife.

       3.     The twenty-four-year marriage was of long duration.

       4.     The parties are similar in age, but Wife has been diagnosed with
              PTSD, which affects her earning capacity.

       5.     Both parties are in good physical health.

       6.     Neither party will be caring for a minor child for an extended period
              because the youngest child is near the age of majority.

       7.     Neither party has any separate property.

       8.     The parties equitably divided their marital assets.

       9.     The court considered the parties‟ standard of living during the
              marriage.

       10.    Both parties made tangible and intangible contributions to the
              marriage.

       11.    Husband is at fault in the divorce.

       12.    Wife will incur greater tax liability from the property division.

      The trial court further found that Wife had demonstrated a need for permanent
alimony and that Husband had the ability to pay such spousal support. The court
                                              8
specifically found that Husband‟s income and expense statement demonstrated that he
currently enjoyed a monthly surplus in the amount of $1,171. After deducting from
Husband‟s expenses the mortgage payment amounts for the marital residence and the
Martindale rental property, both of which were in the process of being sold, the court
found that Husband would have a monthly surplus of at least $4,000. The court also
determined that Husband received monthly rental income and had been living solely upon
the funds in the rental-income account for the preceding few months. Further, the court
concluded that when his child support obligation to Wife terminated, Husband would
maintain a monthly income surplus of at least $5,208.

       Concerning Wife‟s income and expenses, the trial court found that although Wife
reported $6,190 in monthly expenses, certain expenses needed to be deducted. The court
determined that Wife‟s anticipated mortgage/rental expense should be adjusted to $1,000
per month rather than $1,300 per month, finding the lesser amount to be comparable to
that claimed by Husband. The court further deducted “overlapping” or excessive food
and clothing expenses, thereby reducing Wife‟s total monthly expenses to $5,640. The
court found Wife‟s monthly income to be $1,000 from her business, noting that she
would also be receiving $1,208 per month in child support for a short time. Determining
that Wife would therefore have a monthly financial need of $3,432, the court awarded her
alimony in futuro in the amount of $3,500 per month. The court also found that upon the
cessation of Husband‟s child support obligation, Wife‟s need would increase by
approximately $1,000 per month. At that time, Wife would no longer receive $1,208 in
monthly child support but would experience a reduction in her monthly expenses by $253
for expenses related to the child. Ergo, the court concluded that Wife‟s alimony in futuro
should increase to $4,500 per month when Husband‟s child support obligation ended.

       Following our thorough review of the evidence presented in this case, we agree
with the trial court‟s findings of fact and conclusions of law. Husband‟s earning capacity
from his employment was significantly greater than Wife‟s earning capacity from her
business. In addition, Husband retained income-producing rental properties in the
division of marital assets. Even with additional education or training, Husband presented
no evidence that Wife‟s income level could ever be comparable to his.

       Furthermore, we find no error in the trial court‟s determination of Wife‟s need and
Husband‟s ability to pay spousal support. The trial court made reasonable adjustments to
the parties‟ expenses based upon the evidence presented, reducing expenses that were
terminating or duplicative. The proof demonstrated that Husband would enjoy a large
monthly surplus and that Wife‟s reasonable expenses exceeded her income. We find no
abuse of discretion in either the nature, amount, or duration of the trial court‟s award of
alimony.


                                             9
      Husband asserts that when fashioning its award of alimony in futuro, the trial court
should have considered that Wife was including the needs of her two adult daughters in
her monthly expense computation. As Husband points out, Tennessee Code Annotated §
36-5-121 (f)(2) provides:

           (A) An award of alimony in futuro shall 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 substantial and
           material change in circumstances.

           (B) In all cases where a person is receiving alimony in futuro and the
           alimony recipient lives with a third person,2 a rebuttable presumption is
           raised that: . . .

                   (ii) The third person is receiving support from the alimony recipient
           and the alimony recipient does not need the amount of alimony previously
           awarded and the court should suspend all or part of the alimony obligation
           of the former spouse.

       We note that the language utilized in this statutory subsection suggests that it is
intended to apply in an action involving an alimony modification rather than an initial
alimony award. For example, subsection (B) refers to a person “receiving alimony in
futuro,” and subsection (B)(ii) speaks to alimony “previously awarded.” Tenn. Code
Ann. § 36-5-121 (f)(2)(B); see also Gentry v. Gentry, No. M2007-00876-COA-R3-CV,
2
    As this Court has previously explained:

           Tennessee courts have consistently held that the “lives with a third person” language applies to
           any third person, including adult children. See Azbill v. Azbill, 661 S.W.2d 682, 686 (Tenn. Ct.
           App. 1983) (observing that “[n]owhere does [the statute] indicate that there must be any type of
           liason, sexual or otherwise” between alimony recipient and third person); Edwards v. Edwards,
           No. E2004–02490–COA–R3–CV, 2005 WL 2043580 at *2 (Tenn. Ct. App. E.S., filed Aug. 25,
           2005) (“third person” included adult daughter and son-in-law); Woodall, 2004 WL 2345814 at *4
           (stating that “the nature of the relationship” between alimony recipient and third person “is
           irrelevant to the statute”); Benning v. Benning, No. 01A01–9805–CV–00238, 1999 WL 51877 at
           *2 (Tenn. Ct. App. E.S., filed Feb. 5, 1999) (“the statute does not require any specific kind of
           relationship for its application. It applies in all cases where an alimony recipient „lives with a third
           person,‟ regardless of the relationship, or the gender of the third person”); Hubbard v. Hubbard,
           No. 03A01–9603–CV–00108, 1996 WL 563890 at *2 (Tenn. Ct. App. E.S., filed Oct. 1, 1996)
           (“the statute makes no exceptions as to any third party. Under the statute, it is clear that the adult
           son living with appellee is a third party as contemplated by the statute”); Broersma v. Broersma,
           No. 85–290–II, 1986 WL 4848 at *2 (Tenn. Ct. App. M.S., filed Apr. 25, 1986) (third person “is
           one of plaintiff's adult daughters who continued to live in her mother‟s home even after she
           reached her majority”).

Hickman v. Hickman, No. E2013-00940-COA-R3-CV, 2014 WL 786506 at *6 (Tenn. Ct. App. Feb. 26, 2014).

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2008 WL 275881 at *3 (Tenn. Ct. App. Jan. 31, 2008) (explaining that although the party
seeking the alimony modification normally bears the burden of proving that the
modification is warranted, Tennessee Code Annotated § 36-5-121 (f)(2)(B) represents
one type of change in circumstances wherein the party receiving the alimony will bear the
evidentiary burden).

        Assuming, arguendo, that this statutory subsection would apply to the instant
action involving an initial alimony award, we do not find Husband‟s argument regarding
Wife‟s alleged contributions to the parties‟ adult children to be persuasive. The evidence
demonstrated that the parties‟ two oldest daughters were living away at college and did
not reside with Wife. Wife‟s only testimony regarding her adult children was that while
her food expense might decrease slightly when the youngest child left for college, she
also considered that their daughters would still be home during summer breaks. Wife
also admitted that her listed expenses for school supplies, tutoring, and music lessons,
which were attributable to the parties‟ youngest daughter, would end when that daughter
graduated from high school. According to Wife, all other monthly expense amounts
listed were for her personally.

        In determining the appropriate amount of alimony to award to Wife, the trial court
deducted $200 from her claimed food expense. Furthermore, when determining the
proper adjustment to Wife‟s alimony award upon cessation of Husband‟s child support
obligation, the trial court deducted all expenses related to the youngest daughter. Thus,
we conclude that the trial court properly considered and deducted any amounts
attributable to the parties‟ adult children. We affirm the trial court‟s award of alimony in
terms of nature, duration, and amount.

                              V. Attorney‟s Fees on Appeal

       Wife asserts that she should be awarded her attorney‟s fees incurred in defending
this appeal regarding her award of alimony, pursuant to Tennessee Code Annotated § 36-
5-103 (c) (2014), 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.
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Further, as this Court has elucidated:

       Our supreme court has defined the factors that should be applied when
       considering a request for attorney fees incurred on appeal. These factors
       include the ability of the requesting party to pay the accrued fees, the
       requesting party‟s success in the appeal, whether the requesting party
       sought the appeal in good faith, and any other equitable factor that need be
       considered. See Folk v. Folk, 357 S.W.2d 828, 829 (Tenn. 1962).

Dulin v. Dulin, W2001-02969-COA-R3-CV, 2003 WL 22071454 at *10 (Tenn. Ct. App.
Sept. 3, 2003).

       We determine this to be an appropriate case for an award of attorney‟s fees on
appeal. Husband did not achieve success in his appeal of the alimony award to Wife.
Further, we recognize that Husband has a significantly higher earning capacity and thus a
greater ability to pay the requested fees. Therefore, we remand this issue to the trial court
for the limited purpose of determining a reasonable amount of attorney‟s fees to be
awarded to Wife for successfully defending Husband‟s appeal.

                                         VI. Conclusion

       For the foregoing reasons, we affirm the trial court‟s award of alimony in futuro to
Wife in all respects. We remand, for the trial court‟s determination, the issue of a
reasonable award of attorney‟s fees to Wife incurred in defending this appeal. Costs of
this appeal are assessed to the appellant, Steven Louis Jenkins.




                                                    _________________________________
                                                    THOMAS R. FRIERSON, II, JUDGE




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