               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               January 13, 2015 Session

      GLENNA RANDOLPH INMAN v. ROBERT ALLAN INMAN, JR.

                 Appeal from the Circuit Court for Hamilton County
                     No. 13D-454     L. Marie Williams, Judge


                No. E2014-01163-COA-R3-CV-FILED-MAY 26, 2015



In this divorce case, Robert Allan Inman, Jr. (Husband) appeals the trial court‟s decision
awarding Glenna Randolph Inman (Wife) alimony in futuro of $1,900 per month. We
hold that the court‟s decision is supported by a number of relevant statutory factors,
including the twenty-nine year duration of the marriage, Wife‟s age, sixty-three at the
time of trial, her poor physical condition, Husband‟s good physical condition, his higher
earning capacity, Wife‟s demonstrated need, and Husband‟s ability to pay. 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., C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

John T. Rice, Chattanooga, Tennessee, for the appellant, Robert Allan Inman, Jr.

Leslie B. McWilliams, Chattanooga, Tennessee, for the appellee, Glenna Randolph
Inman.

                                       OPINION

                                            I.

        Wife filed for divorce on February 21, 2013. Husband filed an answer and
counterclaim on April 9, 2013. Wife filed a motion for alimony pendente lite, which the
trial court granted, by order entered December 18, 2013, in the amount of $2,000 per
month. The parties entered into a mediated settlement agreement that addressed and
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disposed of all issues save alimony. The question of alimony was tried before the court
on March 6, 2014. Only the parties testified. Husband argued that Wife was voluntarily
underemployed. Wife asserted that she was working as much as she could, given her
poor health condition and her other circumstances. On April 17, 2014, the trial court
entered a final judgment approving and incorporating the settlement agreement. The
court awarded Wife alimony in futuro of $1,900 per month.

                                             II.

      Husband appeals, raising two issues:

             1. Did the trial court err in awarding Wife alimony in futuro?

             2. Did the trial court err in finding that Wife was not
             voluntarily underemployed?

                                           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
             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
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             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 non-jury 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.

       Husband argues that the trial court erred in awarding Wife alimony in futuro. In
view of this argument, we will review recent observations of the Supreme Court on the
subject of alimony:

             Tennessee recognizes four distinct types of spousal support:
             (1) alimony in futuro, (2) alimony in solido, (3) rehabilitative
             alimony, and (4) transitional alimony. Tenn. Code Ann. § 36-
             5-121(d)(1) (2010 & Supp.2012). 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. Alimony in solido, another form of long-term
             support, is typically awarded to adjust the distribution of the
             marital estate and, as such, is generally not modifiable and
             does not terminate upon death or remarriage. Id. at 108. By
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             contrast, rehabilitative alimony is short-term support that
             enables a disadvantaged spouse to obtain education or
             training and become self-reliant following a divorce. Id.

             Where economic rehabilitation is unnecessary, transitional
             alimony may be awarded. Transitional alimony assists the
             disadvantaged spouse with the “transition to the status of a
             single person.” Id. at 109 (internal quotation marks omitted).
             Rehabilitative alimony “is designed to increase an
             economically disadvantaged spouse‟s capacity for self-
             sufficiency,” whereas “transitional alimony is designed to aid
             a spouse who already possesses the capacity for self-
             sufficiency but needs financial assistance in adjusting to the
             economic consequences of establishing and maintaining a
             household without the benefit of the other spouse‟s income.”
             Id. Consequently, transitional alimony has been described as
             a form of short-term “bridge-the-gap” support designed to
             “smooth the transition of a spouse from married to single
             life.”

             Transitional alimony is payable for a definite period of time
             and may be modified only if: (1) the parties agree that it may
             be modified; (2) the court provides for modification in the
             divorce decree, decree of legal separation, or order of
             protection; or (3) the recipient spouse resides with a third
             person following the divorce. Tenn. Code Ann. § 36-5-
             121(g)(2).

             Tennessee statutes concerning spousal support reflect a
             legislative preference favoring rehabilitative or transitional
             alimony rather than alimony in futuro or in solido. See Tenn.
             Code Ann. § 36-5-121(d)(2)-(3); Gonsewski, 350 S.W.3d at
             109. . . . Decisions regarding the type, length, and amount of
             alimony turn upon the unique facts of each case and careful
             consideration of many factors, with two of the most important
             factors being the disadvantaged spouse‟s need and the obligor
             spouse‟s ability to pay. Id. at 109-10.

Mayfield v. Mayfield, 395 S.W.3d 108, 115-16 (Tenn. 2012) (internal citation omitted;
emphasis in original).

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       Tennessee courts making an alimony decision must consider the following
statutory factors when relevant:

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

Tenn. Code Ann. § 36-5-121(i) (2014).

      The trial court addressed and applied several of these factors in its order granting
alimony pendente lite, stating in pertinent part as follows:
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               The Court finds this is a marriage of 29 years. [Wife] is 63
               years old and [Husband] is 60 years old. There are two adult
               children of the marriage. Although both parties were
               employed at the time they were married, [Wife] did not work
               after the children were born until she worked part-time at a
               preschool the younger child was attending. . . . It is clear from
               an examination of the earnings of both parties that [Husband]
               has a substantially greater earning capacity than does [Wife]
               and has the greater opportunity for future earnings and
               accumulation of income. . . . [Wife] has significant health
               problems that impede her ability to earn. She is receiving
               Social Security benefits. Whereas, she is not paying COBRA
               at the moment, she will be in the future. [Husband] was
               giving her $745.00 every four weeks after their separation.

       At trial, Husband testified that he had worked as a letter carrier for the U.S. Postal
Service for twenty-six years. Regarding the possibility of his retirement, Husband stated,
“well, I guess I‟m eligible when I turn [sixty-three], in another couple of years, but I
don‟t intend to. My health is good.” In 2012, Husband‟s gross pay was $61,339.51, or
$5,111.63 per month. In 2013, Husband earned $57,132.05, or $4,761 per month. The
evidence shows that Husband earns roughly $4,700 per month. His take-home pay has
been significantly less, but this is because he has elected to have substantial discretionary
deductions taken out of his bi-weekly paychecks. For example, Husband has $240.60 per
month deducted for life insurance premiums. Other monthly deductions include $260
deposited directly to his checking account,1 $614.64 to his retirement account, and
$493.94 representing repayment of a loan against his 401(k) account. At the time of trial,
one of the parties‟ adult sons was living with Husband in an apartment and contributing
$120 per month towards rent. Husband presented evidence that his total monthly
expenses were $2,469.

       Wife testified that she has significant health problems. She stated that she had a
right shoulder replacement that resulted in permanent nerve damage; replacement
surgeries for both her left and right hips; and left shoulder replacement surgery. Other
medical problems are as follows: inner ear and balance problems, osteoporosis, and
benign nodules on her thyroid gland. Her thyroid condition requires an annual ultrasound
evaluation. Wife testified that she was taking seven different prescriptions. She had been
insured under Husband‟s health insurance, but anticipated that she would have to pay for
COBRA coverage at a rate of $588 per month after the divorce.
       1
         This deduction is curious. It may be that the bank account into which the $260 deduction was
deposited is different from the bank account into which Husband‟s net wages were deposited.
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       Wife works part-time as a substitute teacher. In response to Husband‟s allegation
that she had frequently turned down substitute teaching jobs, Wife testified, “I feel like
I‟m doing really well if I can substitute two or maybe three days a week with my physical
conditions and the side effects of medication.” Wife said she was working as much as
her physical condition would permit, and that “it is my intention to do what I can do for
as long as I can do it.” She earns approximately $56 per day for substitute teaching.
Wife testified that her gross income was $319.34 monthly; her net income was $278.51.
She receives Social Security benefits in the amount of $740, bringing her total monthly
income to $1,018.51. She presented evidence of monthly expenses totaling $2,909, for a
monthly deficit of $1,890.49. Wife said that “on several occasions, [Husband] asked me
to apply for Social Security Disability. He said that he felt that I could get it and . . . was
quite insistent.”

       As already stated, the parties entered into a settlement agreement that resolved all
issues, including property division, but not alimony. According to the parties‟ proposed
division of assets and liabilities, Wife received assets worth $12,903 and liabilities of
$3,787, for a net value of $9,116. Husband received assets worth $7,652 and liabilities of
$13,459, for a net of negative $5,807. Additionally, the marital residence, unencumbered
and valued at approximately $160,000, was to be sold and the proceeds split equally.
Husband also agreed to pay Wife 50% of his retirement plan, with her share being
reduced by $5,000,2 and 50% of the value of his postal service pension as of the date of
divorce.

      The trial court, after hearing the parties‟ testimony, entered a memorandum
opinion stating in pertinent part:

               [T]he Court finds [Wife] is economically disadvantaged
               compared to [Husband]. Additionally, the Court finds she is
               not capable of being rehabilitated and transitional alimony is
               not appropriate for this situation. In determining whether or
               not alimony should be paid, the Court incorporates the
               findings of its December 18, 2013 Order [granting alimony
               pendente lite] and supplements these by finding [Husband]
               assumed more of the debt than did [Wife] and she received
               more of the assets. Fault is not a factor the Court deems
               appropriate to consider in this cause. Neither party is
               adhering to the standard of living established during the
       2
           The value of Husband‟s USPS Thrift Plan was approximately $239,000. Thus, Wife received
about $114,500 (half of the plan amount less $5,000), and Husband received about $124,500 in the
parties‟ agreed division of this asset.
                                                 7
              marriage. Both parties have made tangible and intangible
              contributions to the marital estate. The Court finds the gross
              earnings of [Husband] substantially greater than those of
              [Wife] and further finds his disposable income is reduced
              substantially by expenditures which save for his future to the
              exclusion of [Wife]. He contributes to a 401(k), and has a
              loan payment deducted directly from his paycheck. He
              contributes to a thrift plan and puts $130.00 every two weeks
              into his checking account for his own benefit. [Husband]
              does not include in his income statement the monies his son
              contributes to the household. While [Husband] contends
              [Wife] should be taking more work as a substitute teacher
              than she does, the Court finds her explanations for not taking
              more work credible and logical.

              Accordingly, the Court finds [Husband] shall pay $1,900.00
              per month alimony in futuro to [Wife]. Additionally, the
              Court finds he owes an arrearage of $2,405.00 in past due
              alimony which shall be paid at the rate of $100.00 per month.
              Further, the Court finds he shall maintain [Wife] on his
              current life insurance policy at the present policy limit to
              secure the alimony.

(Emphasis added.)

        The evidence does not preponderate against the findings of the trial court.
Looking at the pertinent statutory factors in light of the proof presented, the following
factors support the trial court‟s decision to award alimony in futuro in the amount of
$1,900 per month: (1) Wife‟s demonstrated need; (2) Husband‟s ability to pay; (3) the
long-term twenty-nine year duration of the marriage; (4) Wife‟s age, poor health, and
relatively small earning capacity; and (5) Wife‟s intangible contributions to the marriage,
including her efforts as mother to the parties‟ two children and homemaker. The
determination that Wife was not voluntarily underemployed was driven in large part by
the trial court‟s in-person assessment of the witnesses‟ demeanor and credibility. We
find no abuse of discretion in the court‟s resolution of this issue.

       Wife argues that she should be awarded her attorney‟s fees on appeal, on the
authority of Tenn. Code Ann. § 36-5-103(c) (2014), which provides:

              The plaintiff spouse may recover from the defendant spouse
              . . . reasonable attorney fees incurred in enforcing any decree
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             for alimony. . . 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.

As a further ground supporting her claim for attorney‟s fees on appeal, Wife argues that
Husband‟s appeal in this case is frivolous. We do not find his appeal to be frivolous. We
also do not believe Wife is entitled to her fees on appeal under Tenn. Code Ann. § 36-5-
103(c).

                                           V.

        The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant Husband, Robert Allan Inman, Jr. The case is remanded for enforcement of the
trial court‟s judgment and collection of costs assessed below, pursuant to applicable law.


                                         ______________________________________
                                         CHARLES D. SUSANO, JR., CHIEF JUDGE




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