                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON
                             Assigned On Briefs September 26, 2013

               JAMES M. ROBERTS, II v. JACQUELINE R. ROBERTS

                    Direct Appeal from the Circuit Court for Shelby County
                         No. CT-005542-10     James F. Russell, Judge


                   No. W2012-02143-COA-R3-CV - Filed November 26, 2013


Plaintiff/Appellant appeals the trial court’s division of property and award of alimony in this
divorce action. We affirm.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

Kim C. Gilleland, Murfreesboro, Tennessee, for the appellant, James M. Roberts, II.

Scottie O. Wilkes, Memphis, Tennessee, for the appellee, Jacqueline R. Roberts

                                    MEMORANDUM OPINION 1

       James Miller Roberts, II (Mr. Roberts) and Jacqueline R. Roberts (Ms. Roberts) were
married in 1993. The marriage was Mr. Roberts’ second marriage, and Ms. Roberts’ first.
Two children were born of the marriage, a son in 1995 and a daughter in 2001. In November
2010, Mr. Roberts filed a complaint for divorce in the Circuit Court for Shelby County. In
his complaint, Mr. Roberts alleged irreconcilable differences and inappropriate marital
conduct as grounds for divorce and prayed for a divorce pursuant to Tennessee Code

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            Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

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.
When 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not be published, and shall not be cited or relied on for any reason in any unrelated case.
Annotated § 36-4-101(3). He further prayed for an equitable division of property and entry
of his proposed parenting plan.

       Ms. Roberts filed an answer and counter-complaint in March 2011, admitting the
existence of irreconcilable differences, denying allegations of inappropriate conduct, and
asserting a counter-claim for a divorce on the grounds of inappropriate conduct and adultery.
She prayed to be named primary residential parent of the parties’ minor children, a division
of property that included an award of the parties’ marital residence to her, child support,
alimony, and attorneys’ fees and costs. Mr. Roberts answered the counter-complaint and
pled the affirmative defense of condonation.

       Following unsuccessful mediation, the matter came to be heard on February 16, 2012.
No transcript was made of the February 16 hearing. On February 21, 2012, the trial court
held a second hearing wherein the trial court issued oral findings of fact and conclusions of
law but took no further proof.

        On August 17, 2012, the trial court entered the final decree of divorce, incorporating
into its final order its February findings and conclusions. The trial court found that Mr.
Roberts had stipulated that he was guilty of inappropriate conduct and granted the parties a
divorce pursuant to Tennessee Code Annotated § 36-6-101. The trial court incorporated the
parenting plan proposed by Mr. Roberts, determined that Ms. Roberts was not voluntarily
unemployed, and set Mr. Roberts’ child support at $1,253 per month based on the child
support guidelines. The trial court found that neither party owned separate property, that they
had divided their household furnishings by consent, and that Ms. Roberts was economically
disadvantaged where she currently was unemployed and in “uncertain health.” The trial
court awarded Ms. Roberts alimony in futuro in the amount of $1,022 per month, and found
that Mr. Roberts did not have the ability to pay additional transitional or rehabilitative
alimony as requested by Ms. Roberts. The trial court also awarded each party the personal
property currently in their possession and the financial assets in their respective names, and
ordered each to pay any debts he or she incurred subsequent to their separation. The martial
residence was awarded to Ms. Roberts. The trial court found that the martial residence was
purchased in 2004 for a purchase price in the amount of $175,000; that the outstanding
mortgage balance on the residence was $152,714; and that the residence was valued at
$138,175 by Ms. Roberts and at $179,500 by Mr. Roberts. The trial court found that Ms.
Roberts had no means to provide housing for herself and the parties’ children, and ordered
Mr. Roberts to pay the house note in the amount of $1,385 per month until the parties’
daughter graduates high school or the property is refinanced. The trial court ordered that Ms.
Roberts would be given 90 days within the time the parties’ daughter graduates high school
to refinance the property, and would be awarded all equity existing at that time. The trial
court ordered that if Ms. Roberts failed to refinance, the property would be sold and the

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equity divided between the parties. The trial court emphasized that the house payment would
not be deemed alimony, but as a “preservation of the martial residence as a marital asset.”
The trial court also awarded Ms. Roberts her attorney’s fees and costs upon finding that she
had “no liquid assets currently available to her and no income.” The trial court also denied
a contempt petition filed by Ms. Roberts in January 2012. Mr. Roberts filed a timely notice
of appeal to this Court.

                                      Issues Presented

       Mr. Roberts raises the following issues for our review, as presented by him:

       (1)    Whether the trial court erred when it ordered the Appellant to make the
              mortgage payment on the marital residence until the parties’ daughter
              graduated from high school.

       (2)    Whether the trial court erred when it awarded 100% of the equity in the
              martial residence to the Appellee, provided the Appellee refinances the
              mortgage in her name 90 days prior to the daughter’s graduation from
              high school.

       (3)    Whether the trial court erred when it awarded alimony in futuro to the
              Appellee.

       (4)    Whether the trial court erred when it awarded Attorney Fees to the
              Appellee in the amount of $20,860.00

                                     Standard of Review

        We generally review the trial court’s findings of fact de novo on the record, with a
presumption of correctness, and will not reverse those findings unless the evidence
preponderates against them. Tenn. R. App. P. 13(d); Berryhill v. Rhodes, 21 S.W.3d 188, 190
(Tenn. 2000). Insofar as the trial court’s determinations are based on its assessment of
witness credibility, we will not reevaluate that assessment absent clear and convincing
evidence to the contrary. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). Our review of
the trial court’s conclusions on matters of law, however, is de novo with no presumption of
correctness. Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn. 2005). We likewise review the
trial court’s application of law to the facts de novo, with no presumption of correctness. State
v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005).

       In the current case, however, only a partial transcript has been transmitted to this

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Court, and that transcript contains only the trial court’s findings of fact and conclusions of
law. No transcript of the divorce proceedings was made, and no court-approved statement
of the evidence has been provided to us on appeal. The record contains no exhibits other
than affidavits of the parties that are contained in the technical record and copies of Ms.
Roberts’ attorney’s fees. “It is well settled that, in the absence of a transcript or statement
of the evidence, there is a conclusive presumption that there was sufficient evidence before
the trial court to support its judgment, and this Court must therefore affirm the judgment.”
Outdoor Mgmt., LLC v. Thomas, 249 S.W.3d 368, 377 (Tenn. Ct. App.2007) (citation
omitted). The appellant carries the burden to demonstrate that the evidence preponderates
against the judgment of the trial court. Id. (citation omitted). The appellant also bears the
burden to provide this Court with a transcript of the evidence or a statement of the evidence
from which we may determine whether the evidence preponderates against the trial court’s
findings. Id. at 378 (citation omitted). In the absence of a transcript or statement of the
evidence, we may reverse the trial court’s judgment only if we find that the trial court
committed an error of law based on the “technical record” transmitted to us. Riedel v. Riedel,
No. M2011–01111–COA–R3–CV, 2013 WL 5948021, at *4 (Tenn. Ct. App. Nov. 4,
2013)(citations omitted).

                                          Discussion

       We turn first to Mr. Roberts’ contention that the trial court erred by ordering him to
pay the note on the parties’ marital residence and by awarding Ms. Roberts all the equity in
the home if she refinances it within 90 days of the parties’ daughter’s graduation from high
school. Mr. Roberts addresses these issues together in his brief, consolidating them into an
appeal of the trial court’s division of marital property, and we accordingly address them
together here. Mr. Roberts asserts the trial court’s order amounts to an award in the amount
of $113,570 and that the payments “should have been factored into the martial asset division
matrix.” He asserts that the “marital property matrix changes dramatically with the inclusion
of these payments[,]” resulting in an award to Ms. Roberts of approximately 63% of the
marital assets. He further asserts that the division is also unfair where it results in a
“potential windfall” for Ms. Roberts in the event of a significant increase in the housing
market if Ms. Roberts refinances within the allotted time, while a decrease in the market
would result in Mr. Roberts incurring 50% of the debt. He does not assert that the trial court
erred by awarding the marital residence to Ms. Roberts, but asks this Court to “adjust the
division . . . appropriately[.]”

       Ms. Roberts, on the other hand asserts that the division of property is fair and that Mr.
Roberts’ argument is based on “speculation” and fails to take into account that the payments
also include interest, taxes and insurance. She also submits that Mr. Roberts’ calculation of
the resulting division of property is misleading where he fails to take his Federal

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Employment Retirement System (“FERS”) assets into account. Ms. Roberts contends that
the trial court recognized that Mr. Robert has an FERS account, the value of which Mr.
Roberts “refused to disclose” and was unknown to the trial court.

        The trial court must divide the marital estate equitably. Tenn. Code Ann. §
36–4–121(a)(1)(2010 and 2013 Supp.); Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. Ct.
App. 1988). The factors to be considered by the trial court when dividing the marital estate
are set forth in § 36–4–121(c) of the Tennessee Code. An equitable division of marital
property does not require a precisely equal division of marital assets, but requires a fair
result. Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn. 2002); Batson, 769 S.W.2d at
859. Additionally, the trial court may adjust the division of marital property to assist the
economically disadvantaged spouse when there is a disparity between the parties’ relative
earning capacities. Robertson, 76 S.W.3d at 341. We review a trial court’s property award
under an abuse of discretion standard. Sullivan v. Sullivan, 107 S.W.3d 507, 512 (Tenn. Ct.
App.2002). An abuse of discretion occurs when the trial court applies an incorrect legal
standard, reaches an illogical conclusion, bases its decision on an assessment of the evidence
that is clearly erroneous, or uses reasoning that results in an injustice. State v. Hester, 24
S.W.3d 1, 35 (Tenn. 2010).

        In this case, it is undisputed that Ms. Roberts in unemployed and has no liquid assets.
 It also is not disputed that Mr. Roberts monthly income is approximately $7,471. Further,
the trial court found that Ms. Roberts is not voluntarily unemployed, that she has filed for
bankruptcy, and that the proof in the matter demonstrated that she is unemployed due to
“multiple serious health problems as well as other forces[.]” The trial court further found
that Ms. Roberts has a retirement account valued at $214,000 through her former employer,
and that the funds cannot be accessed for years to come. The court also determined that Mr.
Roberts has funds and accounts worth approximately $184,000 in military and civilian
pensions, and an FERS account “which has an undetermined value . . . which . . . is liquid
and reasonably accessible by him.” It also found that the value of the marital residence is
“sheer speculation.” In light of the equities between the parties, including their relative
earning capacities and Ms. Roberts’ economic disadvantage relative to Mr. Roberts, we find
no abuse of discretion in the trial court’s division of martial property. We accordingly affirm
on this issue.

       We turn next to whether the trial court erred in its award of alimony in this case. Mr.
Roberts does not assert that he does not have the ability to pay alimony as ordered by the trial
court, nor does he assert that Ms. Roberts does not need the alimony ordered. Rather, he
asserts that the trial court erred by awarding Mr. Roberts alimony in futuro rather than
rehabilitative alimony. He asserts that the trial court’s findings with respect to Ms. Roberts’
health were not supported by the proof, that both parties were 48 years of age at the time of

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the divorce, that both were college graduates, and that both held professional careers
throughout the marriage. Mr. Roberts does not suggest an appropriate rehabilitative alimony
amount or period, however.

       A trial court has wide latitude in making an award of alimony. Owens v. Owens, 241
S.W.3d 478, 490 (Tenn. Ct. App.2007). An alimony award depends on the circumstances
of each case, and the need of the recipient spouse and the obligor spouse’s ability to pay are
primary considerations. Burlew v. Burlew, 40 S.W.3d 465, 472 (Tenn. 2001). When
determining the type and amount of alimony to be awarded, the trial court must balance
several statutory factors, including those enumerated in section 36–5–121 of the Tennessee
Code. Although there is a preference for rehabilitative alimony, the type and amount of an
alimony award remain largely within the discretion of the trial court. Id. at 470. On appeal,
we will not alter a trial court’s award of alimony absent a finding of an abuse of discretion.
Id.

         In light of the foregoing discussion with respect to the trial court’s division of property
in this case, we find no abuse of discretion on the part of the trial court with respect to its
award of alimony. As noted above, in the absence of a transcript or statement of the
evidence, we presume the trial court’s factual findings to be correct. Thus, we presume the
trial court’s findings with respect to Ms. Roberts’ health concerns to be correct, and there is
nothing in the technical record to demonstrate that the trial court erred in its findings.
Further, it is not disputed that Ms. Roberts has a college degree and had a professional career
as a social worker and advisor. Mr. Roberts does not indicate how she might be rehabilitated.
We additionally note the trial court’s observation that Ms. Roberts requested alimony in
futuro in the amount of $1,000 per month, plus transitional alimony in the amount of $500
per month for a period of two years, and its finding that Mr. Roberts does not have the ability
to pay rehabilitative alimony in addition to alimony in futuro. The trial court also observed
that its awards would result in “approximately equal” disparities “in terms of income relative
to ongoing monthly expenses[,]” and that a return to employment by Ms. Roberts may give
rise to a change in circumstance warranting modification. We find no abuse of discretion on
the part of the trial court and affirm on this issue.

        We turn finally to the trial court’s award of attorney’s fees and costs to Ms. Roberts.
Mr. Roberts asserts that the trial court’s award of attorneys fees was not appropriate because
“a significant portion” of the “later part” of the fees were generated by a petition for
contempt filed by Ms. Roberts in January 2012, which the trial court dismissed as lacking
merit. He further asserts that the award amounted to $20,860.00 and that, added to the
property division and alimony award, it “reaches the realm of an injustice.” Ms. Roberts
asserts that only a small fraction of her attorney’s fees were generated by the contempt issue,
and that the award was equitable in light of the parties’ relative financial positions.

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        The decision to award attorney’s fees as an award of alimony in solido lies within the
discretion of the trial court, and we will not reverse the award absent an abuse of discretion.
E.g., Fickle v. Fickle, 287 S.W.3d 723, 737 (Tenn. Ct. App. 2008). In its August 2012 order,
the trial court found that Ms. Roberts had incurred attorney’s fees in the amount of
$20,860.00 as set forth in affidavits filed by her counsel. The trial court found these fees to
be fair and reasonable, and further found that Mr. Roberts had the ability to pay the fees. Mr.
Roberts does not assert that the attorney’s fees were not reasonable, and upon review of the
detailed fees contained in the record, we observe that fees of approximately $300 were
generated by the contempt petition. Finding no abuse of discretion on the part of the trial
court, we affirm.

                                           Holding

      In light of the foregoing, the judgment of the trial court is affirmed in its entirety.
Costs on appeal are taxed to the Appellant, James Miller Roberts, II, and his surety, for
which execution may issue if necessary. This matter is remanded to the trial court for
enforcement of the judgment and the collection of costs.




                                                    _________________________________
                                                    DAVID R. FARMER, JUDGE




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