                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  October 25, 2012 Session

              DANNY GRUBBS DODD v. JUDITH GAIL PARIS DODD

                    Appeal from the Circuit Court for Sumner County
                        No. 2011CV413       C. L. Rogers, Judge


                 No. M2012-00153-COA-R3-CV - Filed January 9, 2013


In this divorce proceeding, Husband appeals the trial court’s award of alimony in futuro to
Wife. Finding no error, we affirm.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
P. J., M. S., and A NDY D. B ENNETT, J., joined.

S. Jason Whatley, Sr., Columbia, Tennessee, for the Appellant, Danny Grubbs Dodd.

Bruce N. Oldham and Sue Hynds Dunning, Gallatin, Tennessee, for the Appellee, Judith Gail
Paris Dodd.

                                            OPINION

                               I. Facts and Procedural History

        Danny Dodd (“Husband”) and Judith Dodd (“Wife”) were married on December 5,
      1
2002. Throughout the marriage, Husband owed and operated several businesses and Wife
worked as a substitute teacher and teacher’s aide at a local elementary school. When the
parties married in 2002, Husband was the owner and operator of Easy Tree Service. In 2004,
Husband sold Easy Tree Service and purchased a second business, Walton Ferry Storage.
In June 2010, Husband sold Walton Ferry Storage; in August of that year he purchased land
and built his next business, Dodd’s Country Store.


          1
          Husband and Wife had been married to each other once before; they had two children together
during the first marriage.
       On April 8, 2011, Husband filed a complaint for divorce alleging that Wife was guilty
of inappropriate marital conduct. Wife answered and counter-sued for divorce on the
grounds of inappropriate marital conduct, adultery, and irreconcilable differences.

       On September 19 Wife filed a Petition for Contempt alleging that on May 13, 2011,
Husband purchased a residence in Buchanan, Tennessee, which he had titled in the name of
Dodd’s Country Store and encumbered other marital assets in violation of the injunction
issued at the filing of the divorce complaint.

       After a trial, the court issued its Final Decree of Divorce on December 14 dismissing
Husband’s complaint, granting Wife a divorce on the grounds of adultery and dividing the
marital assets and debts. In addition, the court determined that Wife was economically
disadvantaged and awarded her alimony in futuro of $3,156 per month. The court also found
Husband in wilful contempt of court for violations of the statutory injunction required by
Tenn. Code Ann. § 36-4-106(d); the court also awarded Wife a judgment for attorney fees.

        Husband raises one issue on appeal: Whether the trial court erred in awarding alimony
in futuro under the facts of this case and whether the amount of that alimony, regardless of
classification, was improper and an abuse of discretion. Wife requests her attorneys’ fees on
appeal.

                                       II. Discussion

A. Alimony in Futuro

        Husband contends that the trial court abused its discretion in awarding alimony in
futuro and in setting the amount of support at $3,156 per month. Husband argues that there
was no evidence indicating whether Wife could “rehabilitate herself” or had made any
“reasonable efforts” to do so, no evidence indicating the standard of living during the
marriage, and no evidence of Husband’s ability to pay alimony. Further, Husband contends
that the court misapplied the factors at Tenn. Code Ann.§ 36-5-121(i).

       Trial courts have broad discretion to determine whether spousal support is needed.
See Garfinkel v.Garfinkel, 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996). Alimony decisions
require a careful balancing of the factors in Tenn. Code Ann.§ 36-5-121(i); the two most
important factors are the need of the disadvantaged spouse and the obligor’s ability to pay.
Varley v. Varley, 934 S.W.2d 659, 668 (Tenn. Ct. App. 1996). Once the trial court has
determined that alimony is appropriate, it must determine the nature, amount, and period of




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the award.2 Our legislature has stated a public policy preference for temporary, rehabilitative
spousal support over long-term support. Tenn. Code Ann. § 36-5-121(d)(2). The proper
legal standard for awarding alimony in futuro was set forth in Gonsewski v. Gonsewski as
follows:

        [A]limony in futuro is intended to provide support on a long-term basis . . .
        where “the court finds that there is relative economic disadvantage and that
        rehabilitation is not feasible.” Alimony in futuro is appropriate when “the
        disadvantaged spouse 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,
        or to the post-divorce standard of living expected to be available to the other
        spouse.

Gonsewski v. Gonsewski, 350 S.W.3d 99, 107–08 (Tenn. 2011) (citations omitted).

        Ruling from the bench, the court stated:

                 [Wife is] certainly economically disadvantaged. . . . She’s 56, She’s a
        teacher’s assistant at school. . . . I think her net pay after tax and health
        insurance is a little over $400 a month. She raised the boys. She was the
        homemaker. The husband was out earning a living.
                 My understanding is she has a high school education. She attempted a
        little schooling, but her work history, her training . . . no way she will approach
        any semblance of what the life style was while she was married; nor will she
        do much better than 447 a month; and third, when a husband goes out,
        commits adultery, almost dissipates assets for the wrong reasons, it just sort of
        nags at me for the first thing to come out of their mouth is, well, they can go
        to work. That doesn’t add up. . . .
                 So economically disadvantaged, nothing was shown that there’s any
        training we could give to her over the next six years before she’s at least
        eligible for social security that’s going to make a hill of beans difference.
        Without any kind of proof like that, based on what I know and from what I did
        know, I’m not finding she’s trainable.




        2
          The court may award rehabilitative alimony, alimony in futuro, transitional alimony, alimony in
solido or a combination of these. Tenn. Code Ann. § 36-5-121(d)(1).

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The court also made specific findings with respect to the evidence about Husband’s ability
to pay and his credibility:

               Now, the Court was not presented one iota of proof about what his
       monthly expenses are. The wife certainly showed her need. The husband was
       claiming he doesn’t have the ability to pay, but never, nothing in the record
       shows his monthly expenses. . . . Now, I also know you’re living in a
       $325,000 house, and I’m not going to let you hide behind that mortgage
       payment and claim I can’t pay alimony because I’m got this mortgage payment
       on a house that I bought in violation of the order.
               . . . I’m amazed that in an alimony case I cannot have an exhibit that
       says here’s my monthly necessary expenses to prove that you can’t pay it. So
       I find that there’s absolutely no credible proof showing that he does not have
       the ability to pay, taking into consideration that he’s not going to hide behind
       a 5,000 square foot house purchased in violation of a statutory injunction, say
       that, and the absence of proof.
       ***
               Wife certainly needs to be brought up to some reasonable standard of
       prior to the divorce or at least the amount that the husband will have. And,
       again, the husband indicates, the best I can tell -- it never did come down to
       what his monthly income gross was. He gave us a business summary from
       April to October and says I pay out 90-something thousand dollars in salary to
       my son and all these other people that work there. Interesting. Maybe if he’s
       as broke as he says he is, it’s interesting he can pay that many people to
       maintain his business on a 7-day, 24-hour time frame. Secondly, I hear his
       mortgage payment is being paid by the company. . . .
               So his own lack of proof prevents the Court from giving any credibility,
       even if he did try to say this is what he grossed each month. . . . And, again,
       I’ve plowed this ground, no proof of what monthly expenses are, so any
       attempt to say he can’t pay alimony, based on what I previously said, falls flat
       on the Court’s ear due to lack of evidence or appropriate evidence.

Using Wife’s income and expense statement, the court calculated Wife’s need to be $3,375
and awarded her alimony in futuro in the amount of $3,156 per month.

       Appellate courts are disinclined to second-guess a trial court’s decision regarding
spousal support unless the decision is not supported by the evidence or is contrary to public
policy. Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct. App. 1994). In Gonsewski, our
Supreme Court stated that the role of appellate courts in reviewing an award of alimony is
“to determine whether the trial court applied the correct legal standard and reached a decision

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that is not clearly unreasonable.”3 Gonsewski, 350 S.W.3d at 105 (citing Broadbent v.
Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006)). When the trial court has set forth its factual
findings in the record, we will presume the correctness of those findings so long as the
evidence does not preponderate against them. Tenn. R.App. P. 13(d); Bogan, 60 S.W.3d at
727; Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000). “Because the trial judge is in
the best position to assess the credibility of the witnesses, such credibility determinations are
entitled to great weight on appeal.” Burden v. Burden, 250 S.W.3d 899, 905 (Tenn. Ct. App.
2007).

       There is substantial evidence in the record to support the court’s determination that
Wife could not be rehabilitated and could not establish the standard of living she enjoyed
during the marriage; Husband has not cited to evidence that preponderates against the court’s
findings in that regard.

       The proof showed that Wife was fifty-six years old and had worked in a local public
school as a substitute teacher and teacher’s aide since 1998.4 Wife testified that she
completed high school and attended some college. Wife stated that her only other work
experience was when she worked in several restaurants, banks, and department stores.
Wife’s income and expense statement was entered into evidence showing a monthly income
of $447 and monthly expenses of $3,825.18. With respect to the standard of living enjoyed
by the couple during the marriage, the evidence showed that the couple lived in a 6,000
square foot home, owned and enjoyed vacations at several time shares, and that Husband
purchased Wife a new vehicle for her birthday.

        The proof also showed that Husband is self-employed and runs a convenience store
and restaurant he opened in 2010. Husband introduced a profit and loss statement for the
business showing a net loss of $8,253.40 between January and October of 2011, and testified
that he did not draw a salary from the business. Also admitted into evidence was a profit and
loss statement that Husband used to secure the loan for his Henry County home; this
statement listed the store’s net income as $105,328.76 for the period of February 22 through
April 30. On cross examination, Husband admitted that he could manipulate the various
expenditures in the computer program used to produce the profit and loss statement, although



        3
           “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.” Gonsewski, 350 S.W.3d at 105–06.
        4
         Wife testified, “I was parent volunteer and such as that when my kids were [attending the school],
and then when my youngest started school, that’s when I started substitute teaching.” Wife began substitute
teaching in 1998; after the parties married in 2002, she took a full-time position as a teacher’s aide.

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he denied having done so. Husband did not admit into evidence or produce his individual
or business tax return for 2010.

       The trial court applied the correct legal standards in awarding alimony in futuro by
determining that Wife was economically disadvantaged and was not capable of rehabilitation
as well as in its application of the factors found in Tenn. Code Ann.§ 36-5-121(i).5 Further,
the amount of alimony awarded was supported by Wife’s testimony as well as her income
and expense statement, and the amount of the award was not clearly unreasonable;
consequently, we decline to substitute our judgment for that of the trial court.6 We affirm
the court’s award of alimony.

B. Attorneys’ Fees on Appeal

       As the economically disadvantaged spouse, Wife requests that she be awarded
attorney’s fees incurred in defending this appeal. An award of appellate attorney fees is
within this Court’s sound discretion. Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App.
1995). In determining whether to award attorney’s fees on appeal, we consider the ability
of the party seeking the fee award to pay such fees, success on appeal, whether the appeal
was taken in good faith, and any relevant equitable factors. Darvarmanesh v. Gharacholou,
No. M2004-00262-COA-R3-CV, 2005 WL 1684050, at *16 (Tenn. Ct. App. July 19, 2005);
see Tenn. Code Ann. § 36-5-103(c); see also Bryant v. Bryant, No. M2007-02386-COA-R3-
CV, 2008 WL 4254364, at *9–10 (Tenn. Ct. App. Sept. 16, 2008). Considering these factors,
we are of opinion that Wife is entitled to the fees she has incurred for this appeal and remand
the case for a determination of the amount to be awarded.

                                             III. Conclusion

        For the reasons set forth above, the judgment of the trial court is affirmed.


                                                           _________________________________
                                                           RICHARD H. DINKINS, JUDGE


        5
           The statutory factors to be considered include: the relative earning capacity, obligations, needs,
and financial resources of each party; the relative education and training of each party; the age and mental
condition of each party; ability, opportunity and necessity of each party to secure education and training in
order to improve the party’s earning capacity to a reasonable level; and the assets of each party, whether they
be separate assets or marital property awarded in the divorce. Tenn. Code Ann. § 36-5-121(i).
        6
          We give great weight to the trial court’s finding that Husband lacked credibility, which finding was
based in large part on Husband’s failure to provide documentation of his income and monthly expenses.

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