                      IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE
                                             January 9, 2003 Session

              RANDY J. OVERSTREET v. REBECCA D. OVERSTREET

                           Appeal from the Circuit Court for Davidson County
                               No. 01D-1938     Marietta Shipley, Judge



                            No. M2002-01178-COA-R3-CV - Filed June 3, 2003


In this divorce Husband appeals the type and amount of alimony awarded Wife at the end of a
twenty-three year marriage. Because the evidence does not preponderate against the trial court’s
findings and the trial court acted within its discretion in applying relevant legal principles, we affirm.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and WILLIAM B. CAIN , J., joined.

Vicky V. Klein, Madison, Tennessee, for the appellant, Randy J. Overstreet.

D. Scott Parsley, Joshua G. Strickland, Nashville, Tennessee, for the appellee, Rebecca D.
Overstreet.

                                            MEMORANDUM OPINION1

        The parties were married for twenty-three years. They stipulated grounds for divorce and
were declared divorced pursuant to Tenn. Code Ann. § 36-4-129. They also agreed to an equal
distribution of property, and the trial court approved that agreement. The trial court awarded Wife
alimony in futuro of $100 per week. The only issue in this appeal by Husband is the nature and
amount of alimony.



        1
            Tenn. R. Ct. App . 10 states:

        This Court, with the concurrence of all judges participating in the case, may affirm, reverse o r modify
        the actions of the trial court by memorandum opinion when a formal opinion would have no
        precedential value. When a case is decided by memorandum opinion it shall be designated
        “MEMORANDUM OPIN ION,” shall not be published, and shall not be cited or relied on for any
        reason in any unrelated case.
        Trial courts have broad discretion to determine whether spousal support is needed and, if so,
its nature, amount and duration. Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001). Appellate
courts are generally disinclined to second-guess a trial court’s spousal support decision unless it is
not supported by the evidence or is contrary to public policies reflected in applicable statutes. Bogan
v. Bogan, 60 S.W.3d 721, 733 (Tenn. 2001). Our role is to determine whether the award reflects a
proper application of the relevant legal principles and that it is not clearly unreasonable. Id. 60
S.W.3d at 733. When the trial court has set forth its factual findings in the record, we will presume
the correctness of those findings so long as the evidence does not preponderate against them. Tenn.
R. App. P. 13(d); Bogan, 60 S.W.3d at 733; Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn.2000).

       Pursuant to Tenn. Code Ann. § 36-5-101(a)(1), courts have discretion to order “suitable
support and maintenance of either spouse by the other spouse . . . according to the nature of the case
and the circumstances of the parties. . . .” There are no hard and fast rules for spousal support
decisions, such determinations require a careful balancing of the relevant factors, and the
determinations hinge on the unique facts of each case. Robertson v. Robertson, 76 S.W.3d 337, 338
(Tenn. 2002). In determining whether to award support and the nature, amount and length of such
support, the court is to consider all relevant factors, including those enumerated in Tenn. Code Ann.
§ 36-5-101(d)(1).2

      Among the factors to be considered by the courts in making spousal support decisions, the
two considered to be the most important are the disadvantaged spouse’s need and the obligor


        2
            The factors the court must consid er in setting the alimo ny obligation 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 incapacity
        due to a chronic debilitating disease;
        (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 §§ 36-4 -121 ;
        (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 discretion, deems it ap propriate 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 ).

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spouse’s ability to pay. Robertson, 76 S.W.3d at 342; Bogan, 60 S.W.3d at 730. The statutory
factors to be considered include the relative earning capacity, obligations, needs, and financial
resources of each party; the relative education and training of each party; the ability and opportunity
and necessity of each party to secure such education and training in order to improve such party’s
earning capacity to a reasonable level; and the assets of each party, whether they be separate assets
or marital property awarded in the divorce. Tenn. Code Ann. § 36-5-101(d)(1).

        There can be no dispute that Wife is economically disadvantaged, the first requirement for
an award of alimony. Tenn. Code Ann. § 36-5-101. Both parties have a high school education and
both have worked throughout the marriage. At the time of the divorce, Wife was 46 and Husband
was 42. Wife has performed mostly factory work and at the time of the divorce was working at a
book bindery for $9.00 per hour. A comparison of the parties’ income over the past six years shows
that Husband has routinely made approximately twice as much as Wife. At the time of the divorce
his income was $43,000 and hers was $19,200. It is unlikely her income will rise significantly
through promotion. Wife’s work experience, age, and education do not suggest a strong likelihood
she can change careers to one more lucrative or with greater opportunities for higher eventual
earnings. The evidence does not preponderate against the trial court’s finding that Husband has the
greater ability to earn income.

        Husband asserts that alimony in futuro is not appropriate. It is accurate that where economic
disadvantage exists, the legislature has expressed a preference for rehabilitative alimony over long-
term, open-ended alimony in futuro. Tenn. Code Ann. § 36-5-101(d)(1); Robertson, 76 S.W.3d at
339-40; Burlew, 40 S.W.3d at 470; Crabtree, 16 S.W.3d at 358. The purpose of an award of
rehabilitative alimony is to encourage divorced spouses to become self-sufficient. Robertson, 76
S.W.3d at 339-40; Burlew, 40 S.W.3d at 471, Crabtree, 16 S.W.3d at 360. Rehabilitative alimony
is appropriate where the spouse is economically disadvantaged, but where rehabilitation is possible
by the grant of “rehabilitative, temporary support and maintenance.” Tenn. Code Ann. § 36-5-
101(d)(1). Such support may assist the disadvantaged spouse in obtaining further education or
training or may also provide temporary income to support the disadvantaged spouse during the post-
divorce economic adjustment. Robertson, 76 S.W.3d at 340-41.

        In determining whether a disadvantaged spouse can be rehabilitated with short-term support,
the court is to consider “every relevant factor.” Id. 76 S.W.3d at 340. Neither the standard of living
the parties enjoyed during the marriage nor the income or earning potential of the other spouse can
be used as the sole or determinative factor. Id.; Crabtree, 16 S.W.3d at 359.

        Where, considering all the relevant factors, rehabilitation is not possible, the courts should
not refrain from awarding long-term support when that support is appropriate under the statutory
factors. Robertson, 76 S.W.3d at 341-42. The statutory preference for rehabilitative support does
not entirely displace other forms of support. Id.; Anderton v. Anderton, 988 S.W.2d 675, 682 (Tenn.
Ct. App. 1998). The support statute itself provides for the grant of an award of support on a long-
term basis “where there is such relative economic disadvantage and rehabilitation is not feasible in
consideration of all relevant factors.” Tenn. Code Ann. § 36-5-101(d)(1). The purpose of alimony


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in futuro is to provide financial support to a spouse who cannot be rehabilitated. Burlew, 40 S.W.3d
at 470-71.

        Although the trial court did not make a specific finding that economic rehabilitation of Wife
is not feasible, the facts support such a finding. Based upon her earnings and her stated expenses,
Wife was not self-sufficient at the time of the divorce. There is no evidence in the record to indicate
that rehabilitative alimony for a short period of time would enable Wife to increase her earning
capacity significantly enough to become economically self-sufficient. Therefore, we conclude that
rehabilitative alimony is not required and that alimony in futuro is appropriate.

       Husband also asserts the amount of alimony is excessive; that the court awarded more than
Wife’s expense statement showed she needed; and the amount is greater than he can pay based on
his own income and expense statement.

        Wife’s statement shows expenses of $2,000 per month, with net take home pay of $1,400.
Husband’s statement includes a monthly income amount lower than his income for the prior year.
He testified he had voluntarily taken a job with reduced earnings but reduced hours to allow more
time for responsibilities related to the parties’ adult daughter who lived with him. She was
employed, but did not drive. His statement also includes $336 in monthly expenses related to the
daughter, including food, clothing, recreation, and health insurance.

        Having fully reviewed the record, we conclude that the evidence does not preponderate
against the trial court’s determination of Wife’s need and husband’s ability to pay.

      We affirm the trial court’s award of alimony. Costs of this appeal are taxed to the appellant,
Randy J. Overstreet.



                                                       ____________________________________
                                                       PATRICIA J. COTTRELL, JUDGE




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