                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                      May 7, 2001 Session

                 GEORGE M. CLAYTON v. BETTY L. CLAYTON

                       Appeal from the Circuit Court for Monroe County
                          No. 11322 Lawrence H. Puckett, Judge

                                       FILED MAY 30, 2001

                                  No. E2000-01413-COA-R3-CV


This is a divorce case. The trial court granted the counter-plaintiff, Betty L. Clayton (“Wife”), a
divorce from the original plaintiff, George M. Clayton (“Husband”), on the ground of inappropriate
marital conduct; divided the parties’ marital property; identified and decreed the distribution of their
separate property; and awarded Wife alimony in solido of $325,000, plus attorney’s fees of $15,000.
Husband appeals the division of property, the amount of the alimony award, and the award of
attorney’s fees. We affirm.

            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 HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY, J., joined.

Steven M. Jacoway, Chattanooga, Tennessee, and Sharon G. Lee, Madisonville, Tennessee, for the
appellant, George M. Clayton.

H. Allen Bray, Maryville, Tennessee, for the appellee, Betty L. Clayton.

                                              OPINION

                                  I. Facts and Procedural History

        The trial court dissolved a marriage of some 43 years. At the time of trial, Wife was 60 years
old, and Husband was 67.

        The record reflects that the parties had a modest lifestyle for most of their marriage. At the
time of their marriage in 1957, Wife worked in a real estate office, and Husband was an enlisted man
in the United States Navy. Eventually, the parties moved to Chattanooga, and Husband quit work
for a period of time in order to return to school and obtain his bachelor’s degree. During this latter
period of time, Wife paid all of the household expenses and provided for the needs of the parties’
two children.

         The parties purchased a home in Chattanooga where they resided for 20 years. In the early
1970’s, Husband started his own cleaning business, and Wife went to work for Blue Cross/Blue
Shield of Tennessee. Both parties contributed to the payment of marital expenses. Husband testified
that he paid the mortgages and utilities, although Wife noted that sometimes she had to pay the
utilities because of Husband’s lack of funds. Wife further testified that she used her salary to pay
for the balance of the household expenses. She also stated that she purchased furniture and
appliances for the home out of her bank account.

       At some point during the 1980’s, Husband’s business was assessed with back federal taxes.
The Internal Revenue Service garnished Wife’s wages. Eventually, Husband’s business went
bankrupt.

        By 1993, the parties had accumulated relatively few assets other than their home, an older
vehicle, and Wife’s retirement account with Blue Cross/Blue Shield. They had no other investments
or savings. In that year, however, Husband’s father and stepmother died, leaving Husband an
inheritance of approximately $1,105,000.1 Upon receiving this inheritance, the parties began to
purchase several assets, including new vehicles, vacation timeshares, and a residence in Coker
Creek, Tennessee. Wife retired in 1995 and began receiving approximately $1,221 per month in
retirement benefits. She testified that even after Husband received his inheritance, she continued to
pay for many of the household expenses.

        After the parties moved to Coker Creek, Husband received a condemnation notice from the
City of Chattanooga with respect to the parties’ former residence. He did not immediately advise
Wife of the condemnation notice. The house was eventually demolished, apparently with Husband’s
permission but without Wife’s knowledge. She testified that she lost several items of personal
property, including some family keepsakes, which had not been removed from the house prior to its
demolition. After their house was razed, Husband transferred the real estate, without Wife’s
knowledge, to Tennessee Temple University. The University executed a promissory note in favor
of Husband for $18,000 for the property, which had an appraised value of $31,500. The remainder
of the property’s value was deemed a charitable donation.

      In July, 1998, Husband began a relationship with another woman. He filed for divorce in
September, 1998. Wife answered and filed a counterclaim.

       A final judgment was entered May 8, 2000, awarding Wife a divorce on the ground of
inappropriate marital conduct. The trial court divided the marital property as follows:


         1
          At the time of the hearing below, Husband had an account with Evergreen Management in the amount of
$1,042,837. It is undisputed that this account w as owned by Husba nd as his separate p roperty. T he accou nt is apparen tly
the balance of Husband’s inheritance, including appreciation over time.

                                                            -2-
       Assets/Debt                                   Value                    Husband                        Wife

Marital Residence                                 $150,000                    $ 75,000                     $ 75,000
1999 Chrysler Automobile                            18,000                      18,000
1997 Chrysler Automobile                            12,000                                                   12,000
1994 S10 Truck                                       3,000                                                    3,000
Tractor                                              6,000                                                    6,000
Mower                                                  800                                                      800
Miscellaneous Household Items                        1,300                                                    1,300
Miscellaneous Furniture                              2,150                                                    2,150
Pepper Tree Laurel Point
   Timeshare                                           8,5002                                                 8,500
Town Square Timeshare                                 13,500                                                 13,500
Promissory Note from
   Tennessee Temple University                        18,000                     18,000
Cash – Volunteer Federal
   Credit Union CD                                   39,305                                                  39,305
Credit Card Debt                                    <10,000>                                                <10,000>

                                                  $262,555                    $111,000                    $151,555

After awarding Husband half of the value of the marital residence, the trial court decreed that
Husband’s share would be awarded to Wife as alimony in solido. Husband was ordered to pay Wife
additional alimony in solido of $250,000 spread out over three years. Finally, the trial court awarded
Wife $15,000 in attorney’s fees.

                                                  II. Property Division

        Husband argues that the trial court erred in making a property division and an award of
alimony in solido heavily weighted in favor of Wife.3 Husband argues that the trial court erred in
awarding to Wife the entire value of the marital residence. He also contends that the award of
alimony in solido was actually an adjustment of the marital property distribution and rendered the
division inequitable.




         2
             The trial court failed to assign a value to this asset; however the parties agree that its value is $8,500.

         3
           In arguing that the d ivision of marita l property is not equitable, Husband does not raise as an error the trial
court’s classification of Wife’s monthly retirement benefits as her “income” and her separa te property. Because Husband
has not raised this issue on appeal, we will not address the propriety of omitting this asset from the marital estate. See
Tenn. R. App. P. 13(b) (appellate review generally extends only to those issues presented by the parties on appeal).
However, even had the issue been raised, it would not have affected our judgment that the division of marital property
is equitable under the facts of this case.

                                                              -3-
        Property may be equitably divided and distributed between the parties once it is properly
classified as marital. See T.C.A. § 36-4-121(a)(1) (Supp. 2000). “Trial courts have wide latitude
in fashioning an equitable division of marital property.” Brown v. Brown, 913 S.W.2d 163, 168
(Tenn. Ct. App. 1994). Such a division is to be effected upon consideration of the statutory factors
found in T.C.A. § 36-4-121(c). Marital fault cannot be considered. T.C.A. § 36-4-121(a)(1).

         “[A]n equitable property division is not necessarily an equal one. It is not achieved by a
mechanical application of the statutory factors, but rather by considering and weighing the most
relevant factors in light of the unique facts of the case.” Batson v. Batson, 769 S.W.2d 849, 859
(Tenn. Ct. App. 1988). It is not necessary that both parties receive a share of each piece of property.
Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn. Ct. App. 1990). Appellate courts are to defer
to a trial court’s division of marital property unless the trial court’s decision is inconsistent with the
statutory factors or is unsupported by the preponderance of the evidence. Brown, 913 S.W.2d at
168.

        The trial court awarded 58% of the marital estate to Wife. We find no error in this
distribution. This was a marriage of 43 years. Both parties made contributions to the marriage.
Husband made substantial financial contributions to the marriage after he received his inheritance;
for example, the parties used his inherited funds to purchase several marital assets. The evidence
preponderates, however, that for the first 36 years of this marriage, Wife was primarily responsible
for the parties’ expenses. She paid most of the household expenses, supported Husband through
college, and provided for the needs of the parties’ two children. Even after Husband received his
inheritance, Wife continued to pay for many of the household expenses. Now retired, Wife is in poor
health and has few separate assets. While Husband currently has health problems as well, he has
substantial separate property. See T.C.A. § 36-4-121(c)(6).4 Given the current state of the parties’
respective financial conditions and their contributions during the marriage, the evidence does not
preponderate against the trial court’s division of the marital estate.

        Husband argues that the trial court erred in awarding Wife the entire value of the marital
residence. We find no error in the trial court’s award. The court assigned each of the parties fifty
percent of the value of the marital residence, but awarded Wife Husband’s share as alimony in
solido. An award of alimony may be made out of a spouse’s share of the marital property. See
T.C.A. § 36-5-101(a)(1) (Supp. 2000). Furthermore, as will be discussed in greater detail in the next
section of this opinion, we find that the trial court did not abuse its discretion in its award of alimony
to Wife. Accordingly, we find Husband’s argument to be without merit.

        Moreover, we find no merit in Husband’s argument that the award of alimony in solido was
an attempt by the trial court to adjust the marital property division and that the award renders the
division inequitable. While we recognize that alimony in solido may be used in some cases to adjust
the division of the parties’ marital property, see Burlew v. Burlew, 40 S.W.3d 465, 471 (Tenn.


         4
          The statute clearly pe rmits a court, in d eciding wha t is an equitable d ivision of marital property, to consider
“[t]he value of the separate property of each party.” T.C.A. § 36-4-121(c)(6) (emphasis added).

                                                            -4-
2001), that was not the purpose of the award in the instant case. The trial court’s award of alimony
was based upon the demonstrated need of Wife and was intended to supplement her retirement
income. The trial court’s division of the marital property was equitable, and the award of alimony
does not affect the equitable nature of that division. This issue is also found adverse to Husband.

                                 III. Alimony and Attorney’s Fees

        Husband challenges the award of alimony in solido on two other bases. First, he contends
that the award was an improper attempt by the trial court to divide Husband’s separate property
between the parties. Second, he argues that Wife did not demonstrate the requisite need for such an
award.

        In determining the propriety, nature, and amount of an alimony award, courts are to consider
the statutory factors enumerated in T.C.A. § 36-5-101(d)(1)(A)-(L). “[T]here is no absolute formula
for determining the amount of alimony.” Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995). The
needs of the party requesting alimony, the obligor spouse’s ability to pay, and the relative fault of
the parties are the three most important factors in determining an appropriate award of alimony. Bull
v. Bull, 729 S.W.2d 673, 675 (Tenn. Ct. App. 1987).

        Because the amount of alimony to be awarded is within the trial court’s sound discretion, we
will not alter such an award unless there is a showing of an abuse of that discretion. Lindsey v.
Lindsey, 976 S.W.2d 175, 180 (Tenn. Ct. App. 1997). This Court has described the abuse of
discretion standard as follows:

               The standard conveys two notions. First, it indicates that the trial
               court has the authority to choose among several legally permissible,
               sometimes even conflicting, answers. Second, it indicates that the
               appellate court will not interfere with the trial court’s decision simply
               because it did not choose the alternative the appellate court would
               have chosen.

               Appellate courts have the task of articulating the boundaries of the
               permissible range of the trial court’s options. When the courts refer
               to an abuse of discretion, they are simply saying that either the
               discretion reposed in the lower court judge was not exercised in
               conformity with applicable guidelines or the decision was plainly
               against the logic and effect of the facts before the court.

BIF, a Div. of Gen. Signal Controls, Inc. v. Service Constr. Co., C/A No. 87-136-II, 1988 WL
72409, at *2-*3 (Tenn. Ct. App. M.S., filed July 13, 1988) (footnote, citations, and internal quotation
marks omitted).




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        T.C.A. § 36-5-101(d)(1) reflects a preference for an award of rehabilitative alimony. Kinard
v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998). An award of rehabilitative alimony,
however, is appropriate only where rehabilitation is feasible. See T.C.A. § 36-5-101(d)(1). In the
instant case, rehabilitative alimony is clearly not appropriate;5 Wife is retired and in poor health.
Thus, the trial court correctly concluded that Wife is entitled to some kind of long-term support.
Generally speaking, an award of alimony in solido is preferable to an award in futuro. Houghland
v. Houghland, 844 S.W.2d 619, 621 (Tenn. Ct. App. 1992).

        The trial court did not abuse its discretion in awarding Wife alimony in solido of $325,000.
As indicated previously, Wife made significant contributions, financial and otherwise, throughout
the marriage. She is currently in poor health and has few separate assets. Husband, on the other
hand, has substantial separate property as a result of his inheritance. We also find the parties’
standard of living relevant to the alimony determination. Although the parties maintained a
relatively modest lifestyle for most of the marriage, they enjoyed a higher standard of living during
the last seven years of the marriage. Wife has reasonably grown accustomed to this standard of
living over a significant period of time, and it is evident that she cannot approximate such a lifestyle
on her own income. The trial court determined that Wife has monthly expenses of at least6 $2,700
compared to her income of $1,221 per month. It further determined, given Wife’s age, her health,
and other pertinent factors, that an award of $325,000 was needed to fund her unfunded needs into
the future. The evidence does not preponderate against these determinations. We find that the trial
court’s award of $325,000 alimony in solido is appropriate to meet Wife’s needs. Furthermore, the
evidence does not preponderate against a finding that Husband has the ability to pay the ordered
alimony.

         Husband mischaracterizes the trial court’s award of alimony as an attempt to divide
Husband’s inheritance between the parties. Although it is evident that the trial court considered
Husband’s inheritance in making the award, we do not agree that the trial court was striving to divide
his separate property. A court may consider a spouse’s separate assets in determining the appropriate
amount of an alimony award. See T.C.A. § 36-5-101(d)(1)(G). Certainly, the separate property of
a spouse may be taken into consideration when determining his or her ability to pay. Accordingly,
the trial court’s consideration of Husband’s separate property in setting alimony was proper.

       Finally, Husband argues that the trial court erred in awarding Wife $15,000 in attorney’s fees.
He contends that the trial court made the award in order to punish Husband. He further argues that
because of the marital property division and Wife’s retirement income, she has adequate property
and income to pay her own fees.

       In a divorce action, an award of attorney’s fees is considered an award of alimony. Ford v.
Ford, 952 S.W.2d 824, 830 (Tenn. Ct. App. 1996). As such, a trial court is to consider the factors


       5
           Husband does not argue that Wife can be rehabilitated.

       6
           There was proof that her needs were greater than $2,700.

                                                         -6-
enumerated in T.C.A. § 36-5-101(d)(1)(A)-(L) in awarding attorney’s fees. Storey v. Storey, 835
S.W.2d 593, 598 (Tenn. Ct. App. 1992). The decision to award attorney’s fees lies within the sound
discretion of the trial court, and we will not disturb that decision absent an abuse of that discretion.
Barnhill v. Barnhill, 826 S.W.2d 443, 456 (Tenn.Ct. App. 1991). We do not find that the trial court
abused its discretion in awarding Wife $15,000 in attorney’s fees. The trial court set the alimony
in solido award based upon its findings as to Wife’s needs. Under the facts of this case, we find no
error in the failure of the trial court to consider Wife’s alimony as a source of funds to pay her
attorney. Furthermore, the quantum of marital property awarded to Wife is not such as to render the
court’s decision with respect to attorney’s fee an abuse of discretion.

                                    IV. Discretion of Trial Court

      The trial court made a number of decisions in this case that were discretionary in nature.
None of those decisions were outside the bounds of its discretion. See BIF, 1988 WL 72409, at *2-
*3.

                                           V. Conclusion

        The judgment of the trial court is affirmed. This case is remanded for enforcement of the trial
court’s judgment and for collection of costs assessed below, all pursuant to applicable law. Costs
on appeal are taxed to the appellant, George M. Clayton.


                                                        ___________________________________
                                                        CHARLES D. SUSANO, JR., JUDGE




                                                  -7-
