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

                VINCENTE ACOSTA V. KITY SONIA ACOSTA

                 Appeal from the Circuit Court for Hamilton County
                         No. 11D341     J.B. Bennett, Judge


               No. E2015-00215-COA-R3-CV-FILED-APRIL 26, 2016


This is a divorce case. On appeal, Vincente Acosta (Husband) argues that the trial court
erred in reopening the proof shortly after the conclusion of a nonjury trial. The court did
so for the purpose of receiving additional evidence on the subject of spousal support.
Husband also argues that the trial court erred in ordering him to pay Kity Sonia Acosta
(Wife) alimony in futuro of $1,500 per month. We hold that the trial court did not abuse
its discretion in reopening the proof and thereafter awarding Wife spousal support in
futuro. Accordingly, we affirm the judgment of the trial court.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Katherine H. Lentz, Chattanooga, Tennessee, for appellant, Vincente Acosta.

Rachel Bonano, Knoxville, Tennessee, for appellee, Kity Sonia Acosta.

                                       OPINION


                                            I.

      The parties were married in Mexico in 1999, divorced in 2002, and remarried in
Georgia in 2005. No children were born to their union. Wife had three children, all of
whom were adults at the time of trial. The parties separated for the last time in 2010.
Husband filed a complaint for divorce on February 11, 2011. The trial court entered an
agreed order requiring Husband to pay spousal support pendente lite of $1,250 per
month.
         A bench trial was held on October 7, 2014. Husband and Wife were the only
witnesses. The primary issue was spousal support, i.e., whether any should be ordered
and, if so, what type, in what amount, and for what duration.1 At the conclusion of the
trial, the court stated the following from the bench:

               I would like to set rehabilitative alimony for a term not to
               exceed two years, at which time we‟ll come back and
               determine whether or not, with reasonable effort, [Wife] has
               been able to achieve rehabilitation or not and at that time
               whether or not rehabilitative alimony should be extended.

               The Court finds that rehabilitative alimony for that period will
               be in the amount of $1,000 per month. While being mindful
               of the expressed intent that the Court maintains control for the
               duration of that award, the Court will entertain any petition to
               modify upon showing of a substantial and material change in
               circumstances.

The court asked the parties “to submit proposed findings of fact and conclusions of law in
lieu of closing argument on the issue of alimony.” It did not enter a written order
incorporating its oral statements from the bench.

        On October 23, 2014, after the parties filed their respective findings of fact and
conclusions of law, the trial court entered an order stating that “[t]he Court desires
additional evidence on the issue of alimony, specifically the form, amount, and duration,
if any.” Husband objected to the trial court‟s sua sponte decision to reopen the proof.

        A hearing was held on December 4, 2014. At the beginning of the hearing, the
trial court explained that it had reconsidered the amount of spousal support based on the
proof presented at the earlier October 7, 2014 trial. The court reasoned that $1,500 per
month was the appropriate amount, stating:

               I have also ‒ based upon the evidence from the October 7th,
               2014 hearing ‒ have concluded that if there is a rehabilitation
               alimony award, it should be higher than the $1,000 per month
               and it should be $1,500 per month, but with a $250 per month
               credit for dissipation of [Husband‟s] assets.
       1
         The trial court observed in its final divorce judgment that “[t]he parties stipulated many
of the facts and the categorization and division of the property. The main dispute involved
alimony.”
                                                2
             The Court has also concluded, again based on the October 7,
             2014 hearing, that alimony in futuro award, if that‟s awarded,
             should also be $1,500 per month again, though, with a $250
             per month credit for dissipation.

                                     *      *       *

             [B]ased on October 7 proof alone, I am awarding alimony and
             an amount of alimony. My only question is: Is it going to be
             rehabilitative or in futuro?

                                     *      *       *

             I‟ve already awarded based on the evidence before the Court
             on October 7 that there is an alimony award and the amount.
             It‟s just a question of form. And I think that . . . allows me to
             reopen the proof.

Wife was the only witness at the December 4, 2014 hearing. She testified briefly about
her health, employment history, and capacity to work given her physical disabilities.

       Following the hearing on the reopening of the proof, the court, on January 7, 2015,
entered its final divorce judgment, finding and holding, in pertinent part, as follows:

             The Court concludes that Wife is economically disadvantaged
             relative to Husband, Wife has a need for alimony, Husband
             has the ability to pay alimony, and the applicable factors
             overall favor awarding alimony. Husband‟s fault regarding
             domestic violence and, to a much lesser extent, his repeated
             violations of this Court‟s protective orders, are part of this
             conclusion. However, even leaving aside fault, the other
             [statutory] factors overall favor awarding alimony.

                                     *      *       *

             After considering the entire record in light of the applicable
             statutes and case law, the Court concludes rehabilitation of
             Wife, to achieve a post-divorce standard of living expected to
             be available to Husband, is not likely to occur with reasonable
             effort, is unlikely to be feasible, and, therefore, Wife is not
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             capable of economic rehabilitation. The Court also concludes
             Wife requires long-term support.

The trial court ordered Husband to pay $1,500 per month alimony in futuro – the award
to be offset by a judgment against Wife in the amount of $7,183 for the value of
Husband‟s personal property that Wife dissipated by giving it away to a charitable
institution. Husband timely filed a notice of appeal.

                                             II.

      Husband raises the following issues, as quoted from his brief:

             Whether the [t]rial [c]ourt erred in its sua sponte decision to
             reopen the proof relative to the issue of alimony.

             Whether it was error, after reopening the proof, to award
             Wife alimony in futuro of $1,500[ ] per month after the [t]rial
             [c]ourt‟s previous announcement of an award of rehabilitative
             alimony of $1,000[ ] per month for two (2) years at the
             conclusion of the parties‟ original trial.

(Paragraph numbering in original omitted.)

                                             III.

      The Supreme Court has provided the standards and principles that guide our
review of a trial court‟s alimony decision:

             For well over a century, Tennessee law has recognized that
             trial courts should be accorded wide discretion in determining
             matters of spousal support. This well-established principle
             still holds true today, with this Court repeatedly and recently
             observing that trial courts have broad discretion to determine
             whether spousal support is needed and, if so, the nature,
             amount, and duration of the award.

             Equally well-established is the proposition that 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.” Rather, “[t]he role of
                                              4
             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.” 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.‟ ” 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 v. Gonsewski, 350 S.W.3d 99, 105-06 (Tenn. 2011) (internal citations and
footnote omitted).

       Our review of this nonjury case is de novo upon the record of the proceedings
below with a presumption of correctness as to the trial court‟s factual findings, a
presumption we must honor unless the evidence preponderates against those findings.
Tenn. R. App. P. 13(d). We review the trial court‟s conclusions of law de novo with no
presumption of correctness. Oakes v. Oakes, 235 S.W.3d 152, 156 (Tenn. Ct. App.
2007).

                                           IV.

                                            A.

       Regarding the trial court‟s decision to reopen the proof, the general rule has been
stated by the Supreme Court:

             Permitting additional proof, after a party has announced that
             proof is closed, is within the discretion of the trial court, and
             unless it appears that its action in that regard has permitted
                                            5
              injustice, its exercise of discretion will not be disturbed on
              appeal. State v. Bell, 690 S.W.2d 879 (Tenn. Crim. App.
              1985).

Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 149 (Tenn. 1991). In McBay
v. Cooper, No. 01A01-9205-CV-00202, 1992 WL 205256 (Tenn. Ct. App. M.S., filed
Aug. 26, 1992), this Court further stated,

              [t]he mere fact that evidence adduced after reopening the case
              produced a different result is not determinative of trial court
              error, for the trial court is entitled to and should have the
              benefit of all available evidence for its assistance in arriving
              at a just determination.       The injustice which renders
              erroneous a reopening of proof is serious inconvenience to a
              party, the jury or the court, or the introduction of further
              evidence without a fair opportunity for rebuttal.

1992 WL 205256, at *3; cf. Rainbo Baking Co. of Louisville v. Release Coatings of
Tenn., Inc., No. 02A01-9510-CH-00223, 1996 WL 710928, at *3, *6 (Tenn. Ct. App.
W.S., filed Dec. 12, 1996) (holding that “permitting a retrial on the issue of damages was
an injustice to the defendant” where plaintiff “in effect, received a „new trial‟ or „another
bite at the apple‟ because it was allowed to re-present its case regarding the issue of
damages after it had previously failed to do so”).

        In the present case, no “injustice” resulted from the trial court‟s decision to reopen
the proof. There was no “serious inconvenience” to Husband, and he had an opportunity
to rebut Wife‟s evidence, or present further evidence of his own without any limitation.
Wife‟s testimony at the second hearing, held less than two months after trial, was almost
entirely duplicative of her trial testimony, particularly in regards to her income, work
history, and health condition. Under these circumstances, we find no abuse of discretion
in the trial court‟s decision to reopen the proof after trial.

                                             B.

       Regarding the trial court‟s decision to increase the alimony award, and to
reconsider the type of alimony that was appropriate, it is clear that the trial court simply
changed its mind upon further reflection upon the proof presented at trial. As this Court
has observed,

              A trial court has the authority to alter or amend its judgment
              before it becomes final. Jerkins v. McKinney, 533 S.W.2d
                                              6
              275, 280 (Tenn. 1976); Newport Hous. Auth., Inc. v.
              Hartsell, 533 S.W.2d 317, 320 (Tenn. Ct. App. 1975). Thus,
              as long as its judgment has not become final, the trial court
              may change its mind after reconsidering the proof and the
              applicable law.

Waste Mgmt., Inc., of Tenn. v. S. Cent. Bell Tel. Co. 15 S.W.3d 425, 429 (Tenn. Ct.
App. 1997); accord In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013).

                                            C.

      An award of spousal support is governed by Tenn. Code Ann. § 36-5-121 (2014),
which “recognizes four distinct types of spousal support: (1) alimony in futuro, (2)
alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony.” Mayfield v.
Mayfield, 395 S.W.3d 108, 115 (Tenn. 2012). The trial court considered awarding either
alimony in futuro or rehabilitative alimony in this case. As the Supreme Court stated in
Mayfield,

              Alimony in futuro, a form of long-term support, is appropriate
              when the economically disadvantaged spouse cannot achieve
              self-sufficiency and economic rehabilitation is not feasible.
              Gonsewski, 350 S.W.3d at 107. . . . [R]ehabilitative alimony
              is short-term support that enables a disadvantaged spouse to
              obtain education or training and become self-reliant following
              a divorce.

395 S.W.3d at 115. “Tennessee statutes concerning spousal support reflect a legislative
preference favoring rehabilitative or transitional alimony rather than alimony in futuro or
in solido.” Id. As we have observed, however,

              [a]lthough there is a legislative preference for awarding
              rehabilitative alimony, “when the court finds that there is
              relative economic disadvantage and that rehabilitation is not
              feasible,” an award of alimony in futuro is warranted. Tenn.
              Code Ann. § 36–5–121(f)(1). In other words, 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
                                            7
                   standard of living enjoyed during the marriage,
                   or to the post-divorce standard of living
                   expected to be available to the other spouse.

Jackman v. Jackman, 373 S.W.3d 535, 544 (Tenn. Ct. App. 2011) (internal citation
omitted).

      Tenn. Code Ann. § 36-5-121(i) provides as follows:

            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
            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
             (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.

In a thorough sixteen-page judgment, the trial court correctly recognized and discussed
the statutory criteria implicated by the facts found by the court. At the time of the
divorce, Husband was sixty years old and Wife was forty-two. Husband had been
employed at a local restaurant for about thirty years and was serving as assistant
manager. His average yearly income over the four years prior to trial was $52,687. Wife
has a very limited employment history. She testified that she cleaned houses for a friend,
worked as many hours as her health would permit, and earned approximately $70 per
month. Husband did not graduate from high school. Wife has a high school diploma and
one year of training at a university in Mexico about twenty years ago. Wife speaks very
little English. She required a translator in order to testify and understand questioning.
The trial court found this to be a “significant language barrier,” and observed that Wife

             also had difficulty comprehending certain questions, even
             given the benefit of translation.      This difficulty in
             comprehension appeared genuine and, therefore, credible.

Wife filed an affidavit of indigency, and the trial court found her to be indigent and
eligible to proceed on a pauper‟s oath.

      Husband appears to be in general good physical and mental health. He presented
no evidence to the contrary. Wife testified that she suffers from (1) chronic headaches
and (2) back pain, which was caused by Husband‟s physical abuse. She said that her
                                            9
physical condition makes it impossible for her to do anything other than light duty work
for relatively short periods of time. The trial court found that Husband had done the
things alleged in an earlier-awarded order of protection, including nine years of verbal,
emotional, physical, and sexual abuse. The trial court further stated in its final judgment:

              Wife‟s work-related back injury was aggravated in
              November, 2010 due to Husband‟s domestic violence against
              Wife. The Court also credits Wife‟s testimony that she began
              having headaches after the domestic violence, she has back
              pain, she cannot sit or stand for long periods of time, she can
              only perform light duty work and her vision has been
              affected.

                                      *      *      *

              Although Wife is not found to be “physically disabled” or to
              suffer from a “chronic debilitating disease,” as the Court
              understands those terms in the context of the pertinent statute,
              the statute explicitly is “not limited to” such specific
              conditions. The Court finds the Wife to have a physical
              condition involving her back which limits her physical
              capabilities, based upon the testimony of the work-related
              injury, aggravated by Husband‟s domestic violence
              committed against Wife, and its continued current effects, as
              well as headaches and adversely affected vision, both of
              which she has since the domestic violence.

(Footnote omitted.)

       There was essentially no marital estate. The marital residence had been lost to
foreclosure. As separate property, each party received two vehicles and the money in
their respective checking accounts ‒ $100 to Wife, and about $1,200 to Husband.
Husband states in his brief that “[i]t was undisputed that Wife retained possession and
unilaterally gave the majority of Husband‟s separate property to a local non-profit, The
Samaritan Center.” As already noted, the trial court valued this property at $7,183 and
awarded Husband a judgment in this amount.

       The evidence does not preponderate against the trial court‟s factual findings,
including its finding that “Wife is not capable of economic rehabilitation” with
reasonable effort. Wife‟s need is clearly established. Husband did not dispute his ability
to pay. On appeal, Husband argues that the trial court‟s alimony award was punitive.
                                            10
While the parties‟ relative fault is a factor to be considered in determining the nature and
amount of an alimony award, Tenn. Code Ann. § 36-5-121(i)(11), alimony “is not and
never has been intended by our legislature to be punitive.” Russell v. Russell, No.
M2012–02156–COA–R3–CV, 2013 WL 6228164, at *7 (Tenn. Ct. App. E.S., filed Nov.
27, 2013) (quoting Lindsey v. Lindsey, 976 S.W.2d 175, 179–80 (Tenn. Ct. App. 1997)).
In this case, the trial court properly considered the parties‟ relative fault, but there is no
indication that it placed such a heavy emphasis on Husband‟s fault that the judgment was
thereby rendered punitive. We find no merit in this argument.

                                             V.

       The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, Vincente Acosta. The case is remanded for enforcement of the trial court‟s
judgment and collection of costs assessed below.


                                                     _______________________________
                                                     CHARLES D. SUSANO, JR., JUDGE




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