                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    May 22, 2002 Session

  STEVEN ROBERT WILLIAMS v. MARGARET SIMPSON WILLIAMS

                   Direct Appeal from the Circuit Court for Shelby County
                          No. 160216 R.D.    D’Army Bailey, Judge



                     No. W2001-00101-COA-R3-CV - Filed June 20, 2002


This appeal arises from a divorce action. We are asked to review the trial court’s award of child
custody, rehabilitative alimony and attorney’s fees to the wife. We affirm. We additionally award
wife reasonable attorney’s fees incurred in this appeal.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY K. LILLARD, J., joined.

Robert M. Brannon, Jr. and Timothy J. Francavilla, Memphis, Tennessee, for the appellant, Steven
Robert Williams.

LeeAnn Pafford Dobson, Germantown, Tennessee, for the appellee, Margaret Simpson Williams.

                                            OPINION

        The parties were married on August 16, 1980. They have two minor children, a son born in
1986 and a daughter born in 1990. Both of the parties are college graduates. Mr. Williams has a
degree in political science and a Master’s degree in instructional design and technology education.
Mrs. Williams has a degree in interior design. Mr. Williams served in the military from 1980 until
1993, attaining the rank of major and serving in Central America and the Persian Gulf. He sustained
injuries while in the military which eventually resulted in the amputation of a knee cap in 1998. He
also has suffered damage to his sciatic nerve and hearing loss. After leaving the military, Mr.
Williams held positions with Autozone and then Time Warner, where he earned $58,000 per year.
At the time of the divorce, Mr. Williams was employed by M.S. Carriers at a yearly salary of
$50,000. Mrs. Williams worked only sporadically during the marriage and never in the field of
interior design. Her primary role in the marriage was to care for the home and children. At the time
of the divorce, Mrs. Williams was earning $12,214.47 as an educational assistant in the public school
system and pursuing a teaching certificate.
        Mr. Williams, appellant, filed a complaint for divorce on August 26, 1998. Mrs. Williams
filed an answer and counter complaint in December of 1998. The parties stipulated that there were
grounds for divorce. During the course of the marriage, Mr. Williams engaged in extra-marital
affairs which resulted in Mrs. Williams contracting a sexually transmitted disease.

       During the pendency of proceedings, four hearings were held on issues of child support and
alimony. An additional hearing was held in April of 1999 concerning Mr. Williams’ motion for
mental evaluation of the appellee and petition for temporary and permanent child custody, and Mrs.
Williams’ motion for mental evaluation of the family. On May 14, 1999, the court ordered a
psychological evaluation of the family to assist with determinations of child custody. The parties
subsequently stipulated to the psychological evaluations performed by Dr. John Ciocca, a clinical
psychologist.

       Following a four day trial, the trial court entered a final decree of divorce on December 5,
2000. Child custody was awarded to Mrs. Williams. Mr. Williams was awarded visitation Tuesday
evenings from 6-8 p.m., every other weekend, and four to five weeks during the summer. Mr.
Williams was ordered to pay child support of $1,098.68 per month, rehabilitative alimony of $750.00
per month for five years, and $7,500.00 of Mrs. Williams’ attorney’s fees. Mr. Williams’ motion to
stay execution pending appeal was denied following a hearing on January 12, 2001.

                                          Issues Presented

       Mr. Williams raises the following issues for our review:

       (1) Did the trial court err by failing to grant appellant’s request for primary custody
       and/or joint custody?

       (2) Did the trial court err by awarding an excessive amount of alimony?

       (3) Did the trial court err by ordering appellant to pay a portion of appellee’s
       attorney’s fees?

      Mrs. Williams asks this Court to award additional attorney’s fees for services rendered in
connection with this appeal.

                                         Standard of Review

       Appellate review of the trial court's findings of fact is de novo with a presumption of
correctness. Tenn. R. App. P. 13(d); see, e.g., Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn.
2000). We may not reverse the trial court's factual findings unless they are contrary to the
preponderance of the evidence. Id. Our review of the trial court’s conclusions on matters of law is
de novo, with no presumption of correctness. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000).
Our de novo review is tempered, however, by appreciation of the fact that the trial court is in the best


                                                  -2-
position to assess the credibility of the witnesses. See Massengale v. Massengale, 915 S.W.2d 818,
819 (Tenn. Ct. App. 1995). These determinations are afforded great weight on appeal. Id. We will
not reverse the trial court on issues regarding the credibility of witnesses unless there is clear and
convincing evidence to the contrary. Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996).

        Mr. Williams argues that the presumption of correctness for the findings of the trial court
should not apply in this case because the trial court abused its discretion by summarily ruling on
issues of alimony, attorney’s fees and child custody prior to any hearing on the evidence. He argues
that the differences between the statements made by the court regarding these issues prior to hearing
the evidence at trial and the ruling set forth in the final decree are so nominal as to amount to a
prejudgment, and thus negate the presumption of correctness upon appeal. Upon review of the entire
record in this case, we find no such prejudgment and see no reason to depart from the standard of
review ordinarily employed for child custody and alimony determinations.

        We review matters of child custody and alimony under an abuse of discretion standard. If
the discretionary decision is within a range of acceptable alternatives, appellate courts will not
substitute their decision for that of the trial court simply because the appellate court would have
chosen a different alternative. White v. Vanderbilt University, 21 S.W.3d 215, 223 (Tenn. Ct. App.
1999). We review the trial court's discretionary decisions to determine: (1) whether the decisions
are supported by the facts in evidence; (2) whether the trial court identified and applied the
applicable legal principles; (3) whether the trial court's decisions are within the range of acceptable
alternatives. Id.

                                                     Child Custody

        The courts consistently have emphasized that the welfare and needs of the children are the
paramount concerns in the determination of child custody. See, e.g., Parker v. Parker, 986 S.W.2d
557, 562 (Tenn. 1999); Lentz v. Lentz, 717 S.W.2d 876, 877 (Tenn. 1986). In making its custody
determination, the trial court must engage in a comparative fitness analysis of the parents. Parker,
986 S.W.2d at 562 (citing Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996)). In so
doing, it must consider the factors outlined by the legislature as codified at Tenn. Code Ann. §
36-6-106.1 Id. Custody determinations are thus based on a combination of subtle factors, and

       1
           The statute p rovides that th e trial court mu st consider:

                 (1) The love, affection a nd emotio nal ties existing be tween the pa rents and ch ild;
                 (2) The disposition of the parents to provide the child with food, clothing, medical care,
       education and other necessary care and the degree to which a parent has been the primary caregiver;
                 (3) The importance of continuity in the chil d's life and the length of time the child has lived
       in a stable, satisfacto ry environm ent; . . .
                 (4) The stability of the family unit o f the parents;
                 (5) The mental and physical health o f the parents;
                 (6) The home, scho ol and co mmunity reco rd of the child ;
                 (7) The reasonab le preferenc e of the child if twelv e (12) year s of age or o lder. . . .
                                                                                                             (continu ed...)

                                                             -3-
require a factually based inquiry. See id. Although not determinative, maintaining stability and
continuity in the children’s lives has continually been an important consideration in this inquiry.
Gaskill, 936 S.W.2d at 630. The trial court is in the best position to weigh the facts presented to it,
and to assess the credibility of the parties. Id at 631. A trial court’s child custody determination is
thus given wide discretion and we will not interfere with that determination unless the evidence
clearly preponderates against the court’s findings. Parker, 986 S.W.2d at 563.

        Mr. Williams contends on appeal that the trial court failed to consider the best interests of
the children and therefore abused its discretion in awarding sole custody to Mrs. Williams. He
submits that he has attempted to support the children’s relationship with their mother, while she has
attempted to disrupt their relationship with him. He directs us to Dr. Ciocca’s report, which contains
findings that Mrs. Williams has spoken negatively about him in front of the children, exhibiting
anger which she found difficult to control. Mr. Williams submits that the trial court awarded custody
to Mrs. Williams despite its recognition of the harmful effects on her children of her anger toward
and disparagement of Mr. Williams. He argues that granting custody to Mrs. Williams removes any
possibility that he will have input into the children’s lives.

         Upon review of the all evidence, including the report of Dr. Ciocca, we are satisfied that the
trial court did not abuse its discretion in this case. The trial court was in the best position to assess
the parties during the four day trial of this case. The trial transcript reveals that the trial court
considered the totality of the evidence before it, including its direct assessment of the Williams
family and Dr. Ciocca’s evaluation and recommendations, in making its determination. The trial
court noted that both parents had at times exercised poor judgment regarding their behavior in front
of their children, but stated, “I believe frankly her (Mrs. Williams’) testimony and that probably the
problems he’s (Mr. Williams) got with the children in view of what I’ve seen in Dr. Ciocca’s report
have more to do with him than with her. I don’t think she’s the architect of those problems that he’s
got with the children. And I think he’s the one that’s going to have to work on that.” Dr. Ciocca’s
report confirms that Mrs. Williams has been the primary care-taker of the children, and that her role
was accentuated by Mr. Williams’ extended absences while in the military. It further confirms that
the children’s primary attachment has been to their mother, and that they have expressed a preference
to continue living with her. Dr. Ciocca concluded that the children view their mother as their
“source of nuturance and security,” and that they “express extensive confidence in the parenting
decisions and ability of their mother.” As Dr. Ciocca notes, the Williams children undoubtedly have

        1
         (...continued)
                  (8) Evidence of physical or emotiona l abuse to the child, to the other parent or to any other
        person; . . . .
                  (9) The character and behavior of any other person who resides in or frequents the home of
        a parent and such person's interactions with the child; and
                  (10) Each pa rent's past and p otential for futu re performance o f parenting responsibilities,
        including the willingness and ability of each of the parents to facilitate and encourage a close and
        continuing parent-child relationship between the child and the other pa rent, consistent with the best
        interest of the child.

Tenn. Code Ann. § 36-6-106 (2001).

                                                          -4-
been exposed to the anger and animosity between their parents. These feelings appear to have
festered in a declining marriage over an extended period of time. We join the trial court in urging
the Williams to heed Dr. Ciocca’s advice in endeavoring to conduct themselves in a manner most
beneficial to their children, which includes encouraging a healthy relationship with both parents. As
the trial court aptly notes, we “don’t think you have to be a psychiatrist or a psychologist to know
that.” We affirm custody to the mother.

                                                        Alimony

       Whether an alimony award is appropriate is dependent on the facts and circumstances of each
case. The need of the recipient spouse, followed by the obligor’s ability to pay, are the primary
considerations in the determination of an award of alimony. Lancaster v. Lancaster, 671 S.W.2d
501, 503 Tenn. Ct. App. 1984); Goodman v. Goodman, 8 S.W.3d 289, 295 (Tenn. Ct. App. 1999).
In making its determination of an alimony award, the court must balance several statutory factors
including those enumerated in section 36-5-101(d)(1) of the Tennessee Code.2


       2
           Section 36 -5-101(d )(1) prov ides:

       It is the intent of the gen eral assemb ly that a spouse who is econom ically disadva ntaged, relativ e to
       the other spou se, be rehabilita ted whenever possible by the granting of an order for payment of
       rehabilitative, tempora ry support a nd mainten ance. W here there is such relative econom ic
       disadvantage and rehabilitation is not feasible in consideration of all relevant factors, including those
       set out in this subsection, then the court may grant an order for payment of support and maintenance
       on a long-term basis or until the death or remarriage of the recipient . . . . Rehabilitative support and
       maintenance is a separate class of spousal support as distinguished from alimo ny in solido an d period ic
       alimony. In determining whether the granting of an orde r for payme nt of suppo rt and mainte nance to
       a party is appropriate, and in determining the nature, amount, length of term, and m anner of pa yment,
       the court shall c onsider all re levant factors, inc luding:
                  (A) The relative earning capacity, obligations, needs, and financial resources of each party,
       including inco me from p ension, pro fit sharing or retirem ent plans and all other sourc es;
                  (B) The relative education and training of each pa rty, the ability and o pportunity of each pa rty
       to secure such education and training, and the necessity of a party to secure further education and
       training to imp rove such p arty's earning cap acity to a reaso nable level;
                  (C) The duration o f the marriage;
                  (D) Th e age and m ental cond ition of each p arty;
                  (E) The physical condition of each party, including, but not limited to, physical disability or
       incapacity d ue to a chro nic debilitating d isease;
                  (F) The extent to which it would be undesirable for a party to seek employment outside the
       home be cause such p arty will be custod ian of a mino r child of the m arriage;
                  (G) Th e separate a ssets of each p arty, both real a nd perso nal, tangible an d intangible;

                 (H) Th e provision s made with re gard to the m arital prope rty as defined in § 36-4-12 1;
                 (I) The stan dard of living of the parties es tablished d uring the mar riage;
                 (J) The exte nt to which eac h party has made such tangible and intangible contributions to the
       marriage as monetary and homemaker contribution s, and tangible and intangib le contributio ns by a
       party to the ed ucation, training or increased earning po wer of the oth er party;
                 (K) The relative fault of the parties in cases where the co urt, in its discretion, dee ms it
                                                                                                            (continu ed...)

                                                            -5-
The trial court has broad discretion in determining the type, amount, and duration of alimony based
upon the particular facts of each case. Kinard v. Kinard, 986 S.W.2d 220 (Tenn. Ct. App. 1998).
The amount of alimony is largely within the discretion of the trial court. Burlew v. Burlew, 40
S.W.3d 465, 470 (Tenn. 2001). This Court is not inclined to alter a trial court's award of alimony
absent a finding of an abuse of discretion. Id.

        Our statutes express a preference for an award of rehabilitative alimony. Tenn. Code Ann.
§ 36-5-101(d)(1)(2000); Crabtree v. Crabtree, 16 S.W.3d 356, 358 (Tenn. 2000).            T h e
purpose of rehabilitative alimony is to provide an economically disadvantaged spouse temporary
support for a period of time so that he/she may become and remain self-sufficient. Loria v. Loria,
952 S.W.2d 836, 838 (Tenn. Ct. App. 1997); Burlew, 40 S.W.3d at 470-71. Rehabilitative alimony
is intended to promote the self-sufficiency of the disadvantaged spouse by allowing him/her to
acquire additional job skills, education, or training. Kinard, 986 S.W.2d at 234.

         The trial court ordered Mr. Williams to pay rehabilitative alimony of $750.00 per month to
Mrs. Williams for a period of five years. Mr. Williams contends that this award was based on a
finding that Mrs. Williams had an income deficit after expenses of approximately $700 per month,
and that it is excessive in comparison with Mrs. Williams’ actual need. He notes that her annual
teacher’s assistant salary of $12,214.47 is for nine months of work. Mr. Williams submits that if
Mrs. Williams obtained summer employment at an equivalent hourly rate, she could substantially
increase her annual income. He also contends that Mrs. Williams’ car note of $343.77 a month will
be paid off in 18 months, and that her $100 a month payment to Dr. Ciocca will be paid in full after
eight months. He argues that based on her affidavit of expenses, Mrs. Williams income deficit, after
considering these eventual decreases in expenses and assuming summer employment, is $512.88 for
the first eight months, $412.88 for the following ten months, and $69.11 per month thereafter. He
contends that the award of alimony should be reduced to this income deficit amount.

        We have reviewed Mrs. Williams’ affidavit of expenses and agree with the trial court that
they are modest. As Mrs. Williams’ counsel aptly emphasized at oral argument, these expenses
include no amounts for rent or house note, utilities, garbage pick-up, household furnishings or other
household related expenses because Mrs. Williams has resided in her mother’s home since leaving
the marital residence. We cannot agree with Mr. Williams’ counsel’s contention at oral argument
that Mrs. Williams’ “choice” to live with her mother should not be a factor in our consideration of
the reasonableness of her expenses. As the trial court notes, it would not have been unacceptable
for Mrs. Williams to include sufficient funds to allow her to live independently in her alimony



         2
          (...continued)
         appropriate to do so; and
                   (L) Such other factors, includ ing the tax con sequence s to each pa rty, as are neces sary to
         consider the equities betw een the par ties.

Tenn. C ode Ann . § 36-5-10 1(d)(1) ( Supp. 20 00).



                                                           -6-
request. Moreover, we note that Mrs. Williams testified that it will cost approximately $15,000 over
five years for her to continue her education and receive a teaching certificate.

        Mr. Williams further submits that assuming, arguendo, Mrs. Williams’ need, $750 per month
is excessive considering his ability to pay. Mr. Williams affidavit reflects a net income of $3,074.02
per month. After deducting $1,098.00 in child support, Mr. Williams has a net income of $1,976.02,
as compared to Mrs. Williams’ net income of $695.43. An award of $750 per month thus leaves Mr.
Williams with a net income of $1,226.02 and Mrs. Williams with a net income of $1,445.43 per
month. We emphasize, however, that this is a temporary award, designed to enable Mrs. Williams
to become self-sufficient. We further note that Mr. Williams’ child support obligations partially
terminate in 2004 and end completely in 2008. Upon review of the evidence before us, including
Mr. Williams’ statement of expenses in his affidavit, we do not find this rehabilitative award to be
excessive or beyond the range of acceptable alternatives. This was a 20 year marriage which
included relocations with the military and extended absences by Mr. Williams. Mr. Williams also
has admitted to at least one extramarital affair which has caused permanent medical injury to Mrs.
Williams. We find no abuse of discretion and confirm the trial court’s award.

                                          Attorney’s Fees

        In a divorce case, an award of attorney's fees is treated as an award of alimony. Kinard v.
Kinard, 986 S.W.2d 220, 235 (Tenn. Ct. App. 1998). When determining whether to award
attorney's fees, the trial court must consider the same factors used when considering a request for
alimony. Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995). As with alimony, need
is the primary factor. Herrera v. Herrera, 944 S.W.2d 379, 390 (Tenn. Ct. App. 1996). An award
of attorney's fees is proper when one spouse is disadvantaged and does not have sufficient resources
with which to pay those fees. Id. The questions of whether to award attorney's fees, and the amount
thereof, are largely left within the discretion of the trial court and will not be disturbed on appeal
unless the trial court clearly abused its discretion. Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn.
1995).

        The trial court ordered Mr. Williams to pay $7,500.00 of Mrs. Williams’ attorney’s fees,
payable in installments of $125.00 per month. Prior to the four day trial of this case, Mrs. Williams’
fees amount to approximately $17,000.00. The record in this case illustrates a contentious divorce
which included, inter alia, numerous hearings before the divorce referee to determine payment of
child support and alimony, appeals by Mr. Williams of those determinations, petitions for injunctions
and modifications thereof, motions for contempt, and clinical psychological evaluations. Upon
review of the entire record, for the reasons noted supra in our determination of the issue of alimony,
we do not believe the trial court abused its discretion in awarding Mrs. Williams a portion of her
attorney’s fees. We affirm.




                                                 -7-
                       Appellee’s Request for Attorney’s Fees on Appeal

       It is within the discretion of this Court to award attorney’s fees to the prevailing party on
appeal where equitable. Hoalcraft v. Smithson, 19 S.W.3d 822, 830 (Tenn. Ct. App. 1999). We
hereby award Mrs. Williams her reasonable attorney’s fees generated by this appeal.

                                            Conclusion

        The judgment of the trial court is affirmed. Mrs. Williams is awarded reasonable attorney’s
fees on appeal. This matter is remanded for a determination of the attorney’s fees to which she is
entitled. Cost of this appeal are taxed to the appellant, Mr. Steven Robert Williams, and his surety,
for which execution may issue if necessary.



                                                      ___________________________________
                                                      DAVID R. FARMER, JUDGE




                                                -8-
