                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                      July11, 2002 Session

             MONICA L. GOLDBERG V. RUSSELL A. GOLDBERG

                   Appeal from the Chancery Court for Williamson County
                          No. 27310   Russ Heldman, Chancellor



                   No. M2001-01442-COA-R3-CV - Filed January 16, 2003


This is a divorce case involving alimony and property division. The parties have five children; the
oldest is severely handicapped and the three youngest are minors. The husband is a hospital
consultant. The wife works part-time as a nurse and owns a small business. In addition to child
support, the trial court ordered the husband to pay substantial alimony in futuro, and assume
approximately ninety-eight percent of the marital debt. The husband was also ordered to maintain
a considerable amount of life insurance to secure his spousal and child support obligations. On
appeal, the husband argues that the award of alimony is excessive, that rehabilitative alimony instead
of alimony in futuro should have been awarded, that the trial court improperly divided the marital
debt, and that the amount of life insurance required was excessive. We affirm in part and reverse
in part. We affirm the trial court’s holding with regard to the division of marital debt and the amount
of life insurance, and modify the award of alimony, awarding rehabilitative alimony in a reduced
amount.

 Tenn. R. App. P. 3; Judgment of the Chancery Court is Affirmed in Part and Reversed in
                                         Part

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., and ALAN E. HIGHERS, J., joined.

Thomas F. Bloom, Nashville, Tennessee, for appellant, Russell A. Goldberg

Virginia Lee Story, Franklin, Tennessee, for appellee, Monica L. Goldberg

                                             OPINION

Monica L. Goldberg (“Wife”) and Russell A. Goldberg (“Husband”) were married on April 19,
1980. At the time of their marriage, Wife had just earned her Registered Nurse license and Husband
had just completed a dual master’s degree in gerontology and public administration. The marriage
produced five children, the oldest of whom is severely disabled and now lives in a supported group
home funded by the state.
         During most of the marriage, Husband worked for Columbia/HCA. Toward the end of his
employment with Columbia/HCA, Husband earned $120,000 per year plus a potential yearly bonus
of $50,000. In October 1997 Husband was laid off and received approximately $160,000 to
$200,0001 in severance pay. This money was used for living expenses and to start a jewelry
company for Wife. Husband’s experience with a for-profit medical institution such as
Columbia/HCA left him with mental health concerns and philosophically unwilling to continue
working at for-profit medical institutions. Consequently, he began working for non-profit medical
facilities. Husband first worked as a consultant for successive non-profit hospitals in Florida,
Alabama, and Washington state. He then obtained a permanent position at Phyve Corporation in
Tennessee, but was laid off approximately seven months later. At the time of the trial, Husband
worked for St. Mary’s Hospital in St. Louis, Missouri, as a consultant, earning $3,350 per week, with
a gross average monthly income of $11,106 per month, and net pay of $6,772.67. After Husband
was laid off from Columbia/HCA, Wife reactivated her nursing license in order to begin working
part time administering allergy shots. She also earned money from the jewelry business, which was
operated out of her home. In 2000, Wife earned approximately $28,000.

       On August 17, 2000, Wife filed for divorce, citing Husband’s inappropriate marital conduct.
The next month Husband was ordered to move into an apartment. He was ordered to pay Wife
$5,000 per month pendente lite. At the pendente lite hearing, Wife indicated that her monthly
expenses were $7,270.

        The trial was held on February 20 and 23, 2001. At the time of trial, Husband was forty-six
years old and Wife was forty-two years old. Both parties testified with regard to Wife’s earning
capacity. Citing his experience in health care, Husband testified that Wife had an earning capacity
of $50,000 to $100,000, noting that some hospitals were offering a starting bonus of $10,000. He
asserted that he could use his extensive contacts in the health care industry to assist Wife in obtaining
full-time, flexible work. In contrast, Wife testified that a person with her experience could only earn
between $13.00 and $13.50 per hour, or approximately $27,000 per year. Neither party offered
expert proof with regard to Wife’s earning capacity.

          At the trial, Wife testified that she had revised her calculation of expenses to be $9,175 per
month. Wife said that the marital home was worth approximately $390,000 minus real estate
commissions and repair fees, and was encumbered by approximately $340,000 in outstanding
mortgages. Husband testified that the parties’ home was worth $410,000 to $420,000. The proof
at trial showed that the parties accumulated $76,984.50 in marital debt, which was mostly comprised
of debt consolidation loans, a loan from Husband’s brother, and an outstanding IRS debt from 1999.
Husband also testified that, at that time, he maintained a life insurance policy in the amount of
$300,000. He testified that his bipolar condition and medicine usage would prevent him from
qualifying for additional insurance.



         1
          Husband could not rec all the exa ct amo unt of his severance pa ckage, nor did he produce any record of his
severance pay.

                                                         -2-
       Shortly after the trial, on February 27, 2001, the trial court granted Wife the divorce, based
on Husband’s stipulation of inappropriate marital conduct. The final judgment was entered on May
22, 2001. In the final order, the trial court concluded that Wife was incapable of rehabilitation, and
awarded alimony in futuro:

         The Court specifically has considered all statutory and all relevant factors in setting
         alimony in this cause and finds that Wife is incapable of being rehabilitated and
         therefore alimony in futuro is awarded. [Wife] cannot be rehabilitated when viewed
         in the context of the standard of living in relation to [Husband]. Her rehabilitation
         is not feasible. Alimony in futuro shall terminate upon the death or remarriage of
         [Wife] or upon [Husband’s] death.

The trial court ordered Husband to pay Wife $3,000 per month alimony in futuro, and $3,114 per
month in child support. In addition, Husband was ordered to maintain $500,000 in life insurance
to secure the child support payments, and $100,000 in life insurance to secure the alimony payments.
The trial court allocated approximately ninety-eight percent of the $76,984.50 in marital debt to
Husband. Husband was ordered to pay Wife $6,300 in attorney’s fees. Wife was awarded the
marital home subject to the outstanding mortgages. From this order, Husband now appeals.

        On appeal, Husband argues that the trial court erred in awarding Wife periodic alimony in
the amount of $3,000 per month. He asserts that this amount is excessive and that Wife should have
been awarded rehabilitative alimony instead of alimony in futuro. Husband further argues that the
trial court erred in assigning approximately ninety-eight percent of the marital debt to him, and in
ordering him to maintain $600,000 in life insurance to secure alimony and child support payments.2
Wife asserts that the trial court’s order is appropriate and seeks her attorney’s fees for this appeal.

        Because this case was heard by the trial court sitting without a jury, we review the case de
novo upon the record with a presumption of correctness of the trial court’s findings of fact, unless
the evidence preponderates against the decision of the trial court. See Tenn. R. App. P. 13(d);
Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). Questions of law are reviewed de
novo without a presumption of correctness. Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001)
(citation omitted). In reviewing an alimony award or a division of marital property, the appellate
court will not overturn the judgment of the trial court unless the award evidences an abuse of
discretion. See Lindsey v. Lindsey, 976 S.W.2d 175, 179, 180 (Tenn. Ct. App. 1997). A trial court
abuses its discretion when it reaches a decision against logic that causes a harm to the complaining
party or when the trial court applies an incorrect legal standard. Eldridge v. Eldridge, 72 S.W.3d
82, 85 (Tenn. 2001) (citing State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). An order requiring
an obligor to maintain life insurance is also reviewed under a standard of abuse of discretion, Tenn.
Code Ann. § 36-5-101(g); Young v. Young, 971 S.W.2d 386, 392 (Tenn. Ct. App. 1998), as is the


         2
           The trial court’s May 22, 2001 F inal Judgment appears to order Husband to maintain $500,000 in life insurance
for the child support obligation and $100 ,000 for the alimony obligation, for a total of $6 00,00 0, although the parties,
in their appellate briefs, indicate that Husband was ordered to maintain $850,000 in life insurance.

                                                           -3-
award of attorney’s fees. Langschmidt v. Langschmidt, 81 S.W.3d 741, 751 (Tenn. 2002) (citing
Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995); Fox v. Fox, 657 S.W.2d 747, 749 (Tenn.
1983)).

        Husband first argues that the trial court erred in awarding Wife alimony in futuro rather than
rehabilitative alimony. Section 36-5-101(d) of the Tennessee Code Annotated, which governs
awards of alimony, clearly states a preference for rehabilitative alimony when feasible:

       It is the intent of the general assembly that a spouse who is economically
       disadvantaged, relative to the other spouse, be rehabilitated whenever possible by the
       granting of an order for payment of rehabilitative, temporary support and
       maintenance. Where there is such relative economic 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
       except as otherwise provided in subdivision (a)(3). . . .

Tenn. Code Ann. § 36-5-101(d)(1) (2001) (emphasis added). Thus, there is a legislative preference
for an award of rehabilitative alimony when possible. Robertson v. Robertson, 76 S.W.3d 337, 340
(Tenn. 2002); Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000). The court must first
determine if a spouse is economically disadvantaged, and then consider all relevant factors
enumerated in section 36-5-101(d)(1)(A)-(L),3 as well as any other pertinent facts, to determine if


       3
           The factors enumerated in section 36-5-101(d)(1)(A)-(L) are:
       (A) The relative earning capacity, obligations, needs, and financial resources of each party, including
       incom e from pension, profit sharing or retirement plans and all other sources;

       (B) The relative education and training of each party, the ability and oppo rtunity 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 reasonable level;

       (C) T he duration o f the marriage;

       (D) The age and m ental co ndition of each party;

       (E) The physical condition of each party, including, but not limited to, physical disability or incap acity
       due to a chronic debilitating disea se;

       (F) The extent to which it would be undesirable for a party to seek employment outside the home
       because such pa rty will be cu stodian of a m inor ch ild of the marriage;

       (G) The separate assets of ea ch pa rty, both real and persona l, tangible and intangible;

       (H) The pro visions m ade with rega rd to the marital property as defined in § 3 6-4-1 21;

                                                                                                             (continued...)

                                                          -4-
rehabilitation of the disadvantaged spouse is feasible. Robertson, 76 S.W.3d at 338; Crabtree, 16
S.W.3d at 358. These factors must also be considered in setting the amount of the alimony award.
See Robertson, 76 S.W.3d at 340. Alimony is not intended to put one spouse on equal footing with
the other, or to let the obligee spouse to live in the manner to which he or she was accustomed during
the marriage. Robertson, 76 S.W.3d at 340; see Crabtree, 16 S.W.3d at 359-60.

        In Robertson, the parties were divorced after twenty-two years of marriage. Robertson, 76
S.W.3d at 338. They were in their early forties and had one minor child. Id. at 339, 343. The
husband earned approximately $60,000 per year working for TVA. Id. at 342. During the marriage,
the wife had primarily been a homemaker, occasionally doing substitute teaching. Id. At the time
of the divorce she had recently earned a degree in education and planned to work as a teacher,
earning approximately $22,500. To increase her salary, she planned to obtain her master’s degree.
Id. The trial court had awarded rehabilitative alimony for one year. Id. at 339. The court of appeals
modified this, awarding alimony in futuro. Id. The court of appeals acknowledged that, after
divorce, the parties often cannot maintain their prior standard of living, but concluded that “the
inquiry as to whether a requesting spouse can be rehabilitated must be viewed in the context of ‘the
standard of living of the parties established during the marriage.’ ” Robertson v. Robertson, No.
E2000-01698-COA-RM-CV, 2000 Tenn. App. LEXIS 573, at *11 (Tenn. Ct. App. Aug. 25, 2002)
(citation omitted). Utilizing this reasoning, the court of appeals concluded that the wife could not
be rehabilitated and should receive alimony in futuro. Id. at *18.

         On appeal, the Tennessee Supreme Court rejected this reasoning. It quoted the alimony
statute, which requires consideration of the parties’ standard of living, along with numerous other
factors. Robertson, 76 S.W.3d at 341 n.2. Nevertheless, it said that it disagreed with the court of
appeals’ conclusion “that the parties’ standard of living should be” the standard by which a court
must determine whether an economically disadvantaged spouse can be rehabilitated. Id. at 340. It
“encouraged” trial courts to use means other than alimony to meet the needs of an economically
disadvantaged spouse, such as the division of marital property or marital debt. Id. at 341. Noting
that the parties had substantial marital debt and thus would not be able to attain their prior standard
of living, the supreme court simply concluded that the wife should be awarded rehabilitative alimony
only, in the amount of $250 per month for two years. Id. at 343.

        3
         (...continued)
        (I) T he stand ard o f living of the p arties established during the marriage;

        (J) The exten t to which each party ha s mad e such tangible and intangible contribution s to the marriage
        as monetary and home maker contributio ns, and tangible and intangible contribution s by a party to the
        education, training or increa sed earning pow er of the other p arty;

        (K) The relative fault of the parties in cases where the court, in its discretio n, deems it appropriate to
        do so; and

        (L) Such other factors, including the tax consequences to each party, as are necessary to consider the
        equities between the parties.
Tenn. Cod e Ann. § 36-5-101(d)(1 )(A)-(L) (2001).

                                                            -5-
         Robertson must be viewed against the backdrop of the supreme court’s earlier decision in
Crabtree v. Crabtree, 16 S.W.3d 356 (Tenn. 2000). In Crabtree, the proof showed that the husband
earned in excess of $400,000 per year. Id. at 356 n.1. The wife worked part time as an accountant.
Id. at 360. The most optimistic testimony, provided by the husband, was that the wife had the ability
to earn between $65,000 and $100,000 per year. Id. The trial court ordered both rehabilitative
alimony and alimony in futuro. Id. at 357-58. The court of appeals affirmed the award of both types
of alimony, expressing concern that rehabilitative alimony alone would not enable the wife to
approximate the standard of living from the parties’ twenty-three year marriage. Id. at 359. The
Tennessee Supreme Court rejected this reasoning, awarding rehabilitative alimony alone, without
reference to the parties’ former standard of living or the considerable disparity in their earning
capacity. Id. at 359-61.

        From Robertson and Crabtree, we must conclude that, although the alimony statute refers
to the parties’ relative earning capacity and their standard of living as factors to be considered, these
factors have been deemed of only marginal relevance to the issue of whether the obligee spouse can
be rehabilitated. See Tenn. Code Ann. § 36-5-101 (d)(1)(A) and (I) (2001). Rather, the focus under
both Crabtree and Robertson appears to be whether the obligee spouse can earn enough money to
be self-sufficient, even if at a level far below the parties’ former standard of living and even if the
earning capacity of the obligor spouse is far greater.

        In the case at bar, the trial court concluded that Wife “cannot be rehabilitated when viewed
in the context of the standard of living in relation to [Husband].” In light of Crabtree and
Robertson, we must conclude that this finding is erroneous; we hold that Wife is capable of being
rehabilitated, and that the award of alimony in futuro must be reversed.

        Husband also appeals the amount of alimony awarded, arguing that the trial court should not
have awarded Wife $3,000 per month. Husband asserts that Wife’s need for the funds, coupled with
her ability to earn money, as well as his income level, warrants at most an award of rehabilitative
alimony in the amount of $1,500 per month for ten years, instead of the $3,000 per month alimony
in futuro ordered by the trial court. He notes that in setting alimony obligations, the two most
important factors to consider are the obligee’s need for the funds and the obligor’s ability to pay.
Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001) (citations omitted). It is erroneous for a trial
court to order an obligor to pay an amount of alimony beyond his ability to pay. See Goodman v.
Goodman, 8 S.W.3d 289, 296 (Tenn. Ct. App. 1999) (citation omitted) (reducing husband’s alimony
obligation from $2,200 to $1,000 per month, which ultimately reduced his total monthly support
obligation from $4,435 per month to $3,234 per month, allowing him to retain just under fifty
percent of his disposable income).

       In the case at bar, Husband’s gross income is $11,106 per month. His net income is
$6,772.67. After Husband pays his current child support obligation of $3,114 per month and his
alimony obligation of $3,000 per month, he is left with less than $700 per month, or less than ten
percent of his income, to support himself. At the time of trial, Wife earned approximately $28,000
per year, or $2,333.33 per month. Wife testified at trial that she could start in a full-time nursing


                                                  -6-
position at $13.00 to $13.50 per hour. Husband opined, based on his experience in health care, that
Wife could earn $50,000 or more per year as a home-based clinical case manager.

       Even considering Wife’s stated expenses of $9,175 per month,4 we find that the award of
$3,000 per month alimony is excessive and simply beyond Husband’s ability to pay. Therefore, we
modify the award of alimony to $1,500 per month in rehabilitative alimony for a period of ten years,
or upon the death of Wife, if her death occurs before the end of the ten-year period.5

        Husband next argues that the trial court erred in assigning approximately ninety-eight percent
of the marital debt to him. The trial court is afforded wide latitude when distributing the marital
property and the marital debt. Watters v. Watters, 959 S.W.2d 585, 590 (Tenn. Ct. App. 1997). The
division of marital property and marital debt is to be equitable, not necessarily equal. See Tenn.
Code Ann. § 36-4-121(a)(1) (2001); Watters, 959 S.W.2d at 591. When dividing marital property
and debt, the trial court must consider the factors set forth in section 36-4-121(c) of the Tennessee
Code Annotated. Tenn. Code Ann. § 36-4-121(c).6 The Tennessee Supreme Court has encouraged


       4
           W e note that Wife’s stated expenses at the pendente lite hearing were $7,270 per mo nth.

       5
           This permits Husband to retain $2,158.67 per month, or approxim ately thirty-two percent of his net income.

       6
           The factors enumerated in section 36-4-121(c) are:

       (1) T he duration o f the marriage;

       (2) The age, physical and mental health, vocational skills, employability, earning capacity, estate,
       financial liabilities and financial needs of each of the p arties;

       (3) The tangible or intangible contribution by one (1) party to the education, training or increased
       earning power of the other party;

       (4) T he relative ability of each party for future ac quisitions of cap ital assets and inco me;

       (5) The contribution of each party to the acquisition, preservation, appreciation, depreciation or
       dissipation of the marital or separate property, including the contribution of a party to the marriage
       as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage
       earne r to be given the same weight if each pa rty has fulfilled its ro le;

       (6) T he value of the se parate pro perty o f each p arty;

       (7) T he estate of each pa rty at the time of the marriage ;

       (8) The economic circumstances of each party at the time the division of property is to become
       effective;

       (9) The tax consequences to each party, costs associated with the reasonably foreseeable sale of the
       asset, and other reasonably foreseeab le expenses a ssociated with the asset;

                                                                                                          (continued...)

                                                            -7-
adjusting the division of marital property as a means of meeting the needs of the economically
disadvantaged spouse. Robertson, 76 S.W.3d at 341 (citing Crabtree, 16 S.W.3d at 361 n.4; Renfro
v. Renfro, 848 P.2d 830, 834 (Alaska 1993)). The Robertson court stated:

         When practical, . . . a trial court should consider awarding more assets to an
         economically disadvantaged spouse to provide future support, rather than relying
         solely upon an award of alimony. When there are few marital assets but a
         considerable amount of marital debt, a trial court should similarly consider awarding
         a disadvantaged spouse a lesser amount of marital debt. Careful distribution of the
         marital property may assist the disadvantaged spouse in achieving rehabilitation in
         furtherance of the legislative policy of eliminating spousal dependency.

Robertson, 76 S.W.3d at 341. Thus, pursuant to the legislative goal of eliminating spousal
dependency, it is proper for a trial court to divide the marital property and debt in such a way that
helps the disadvantaged spouse achieve financial independence.

         Here, the only marital asset whose value was in dispute was the marital residence. Husband
testified that the property had approximately $70,000 to $80,000 in equity, while Wife’s testimony
indicated that the property had approximately $50,000 in equity, minus repairs and real estate fees.7
Regardless of the amount of equity in the marital home, Wife was apparently granted all of that
equity when the trial judge awarded her the house, subject to the outstanding mortgages. Husband
is responsible for $75,360, or approximately ninety-eight percent of the marital debt, and Wife is
responsible for $1,624.50, or approximately two percent of the debt.

        Applying the statutory requirements and caselaw to this situation, we find that the trial court
did not abuse its discretion when it divided the marital property and marital debt. In this case, during
the parties’ twenty-year marriage, Wife primarily raised the parties’ children while Husband built
his career and enhanced his earning capacity. See Tenn. Code Ann. § 36-4-121(c)(5). Moreover,
Husband’s income is at least four times greater than Wife’s; thus, his ability to acquire capital assets
in the future is much greater than that of Wife. See Tenn. Code Ann. § 36-4-121(c)(2) and (4).
While Husband’s debt obligation is considerably higher than Wife’s allocated debt, his alimony
obligation has been reduced, and as the children grow older, his child support obligations will also
be reduced. Therefore, the trial court’s division of marital property and marital debt is affirmed.


         6
          (...continued)
         (10) The amount of social security benefits available to each spouse; and

         (11) Such other factors as are necessary to consider the equities b etween the parties.
Tenn. Cod e Ann. § 36-4-121(c) (200 1).


         7
            W ife testified at trial that the house had been for sale for a year and had not been sold. The house was
origina lly listed at $459,000, and had subsequently been reduced to $429,000. The parties owed approximately $341,000
on the home.

                                                          -8-
         Next, Husband argues that the trial court abused its discretion when it ordered him to
maintain life insurance in the amount of $600,000. The trial court may require the payor spouse to
maintain life insurance in order to secure payment to the payee spouse in the event of the payor’s
death. See Tenn. Code Ann. § 36-5-101(g);8 Young v. Young, 971 S.W.2d 386, 392 (Tenn. Ct. App.
1998). The decision of the trial court regarding such life insurance will not be reversed absent an
abuse of discretion. Id. at 392. Here, the trial court ordered Husband to maintain $100,000 in life
insurance to secure his alimony obligation and $500,000 in life insurance to secure his child support
obligation. Husband asserts that he currently maintains a $300,000 policy, and that his medical
history would prevent him from economically obtaining additional coverage. At trial, however,
Husband offered no proof that he had attempted to obtain additional coverage, or proof that such
an attempt had been declined. Based on this record, we cannot conclude that the trial court abused
its discretion in ordering Husband to maintain $600,000 in life insurance.9

         Finally, Wife seeks her attorney’s fees on appeal. Here, Wife received the equity in the
marital home, and Husband will still pay over sixty-eight percent of his net income in child support
and alimony, while maintaining responsibility for a substantial amount of the marital debt. Under
all of these circumstances, we decline Wife’s request for attorney’s fees.

        In sum, under Crabtree and Robertson, we find that Wife can be rehabilitated, and therefore
that an award of alimony in futuro is not warranted. We also conclude that the amount of alimony
awarded exceeds Husband’s ability to pay. Therefore, the award of alimony is modified to $1,500
per month for ten years, or upon the death of Wife, if her death occurs before the end of the ten-year
period. We affirm the division of marital property and debt, and affirm Husband’s obligation to
maintain life insurance in the amount of $600,000. Wife’s request for attorney’s fees on appeal is
denied.




         8
             Section 36-5-101 (g) states:

         The court may direct either or both parties to designate the other party and the children of the marriage
         as beneficiaries under any existing policies insuring the life of either party and maintenance of existing
         policies insuring the life of either party, or the purchase and maintenance of life insurance and
         designation of beneficiaries.

Tenn. Co de A nn. § 3 6-5-1 01(g) (20 01).


         9
          If Husband has in fact been ordered to maintain in excess of $600,000 in life insurance, the amount required
is hereby modified to $600,000.

                                                            -9-
       The decision of the trial court is affirmed in part, reversed in part, and modified as set forth
above. Costs are taxed equally to appellant, Russell A. Goldberg, and his surety, and appellee,
Monica L. Goldberg, for which execution may issue if necessary.




                                                        ___________________________________
                                                        HOLLY KIRBY LILLARD, JUDGE




                                                 -10-
