                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   January 12, 2007 Session

     HERMAN CHARLES HEIKKENEN v. JANICE LEE HEIKKENEN

                        Appeal from the Circuit Court for White County
                         No. CC 988     John Turnbull, Circuit Judge


                    No. M2005-01084-COA-R3-CV - Filed on May 11, 2007


On this appeal, the sole issue is whether the trial court erred in awarding $1,500.00 per month as
alimony in futuro to the wife. Finding no basis for determining the trial court abused its discretion
in awarding alimony in this amount, we affirm.

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

DONALD P. HARRIS, SR.J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J.,
and FRANK G. CLEMENT , JR., J., joined.

Craig P. Fickling, Cookeville, Tennessee, for the appellant, Herman Charles Heikkenen.

Thomas F. Bloom, Nashville, Tennessee, for the appellee, Janice Lee Heikkenen.

                                             OPINION

       This case was initially tried before the Circuit Court for White County, Tennessee, on June
21, 2004. At the conclusion of the trial, the trial court granted Ms. Heikkenen a divorce on stipulated
grounds pursuant to Tennessee Code Annotated section 36-4-129, divided the marital property of
the parties and made provisions for the parenting of the parties’ minor child. Because Ms.
Heikkenen, a school teacher, had not, at the time, been rehired for the upcoming school year, the trial
court delayed its determination of the issue of alimony. A subsequent hearing was conducted on
March 11, 2005. While the order entered by the trial court reflects Ms. Heikkenen testified during
that hearing and that exhibits were introduced, neither a transcript of those proceedings nor a
statement of the evidence presented have been included in the record on this appeal. No exhibits
introduced during that hearing have been certified as part of the record before this court.

       A transcript of the proceedings held June 21, 2004, reveals the parties were married on May
4, 1982, and have a son, Eric, born April 14, 1994. During the course of the marriage, Dr.
Heikkenen attended medical school from which he graduated in 1994. While Dr. Heikkenen was
earning his medical degree, Ms. Heikkenen worked at Neiman Marcus in Texas and contributed her
earnings to the family’s expenses. Following his graduation, Dr. Heikkenen began a residency
program at the University of Tennessee. Prior to completing his residency requirements, he took a
two and one-half year leave of absence. The leave of absence began when Ms. Heikkenen’s brother
committed suicide and Dr. Heikkenen’s mother was diagnosed with terminal breast cancer and died
from her illness six month later. Perhaps as a result of these events, Dr. Heikkenen fell into
alcoholism for which he received treatment as a part of an impaired physicians program. During this
period of time, Dr. Heikkenen contributed nothing toward the support of his wife and their son. He
completed his residency requirements in 2002. By this time, he had withdrawn $73,952.30 from an
Individual Retirement Account accumulated during the marriage of the parties in order to support
himself.

        Dr. Heikkenen is now a licensed physician in the states of Arizona, Georgia and Colorado.
At the time of trial, he was forty-eight years of age and was living in Prescott, Arizona. Dr.
Heikkenen moved to Prescott in December 2003, having accepted a job at the Prescott Urgent Care
Center where he practices family medicine. His work includes providing medical care for the
patients of a nursing care center and also seeing individual patients. Under the terms of his contract,
he is paid hourly at the rate of $52.50 per hour. In the year 2004, Dr. Heikkenen earned $60,167.64
through June 6 of that year.

        Janice Heikkenen, aged forty-seven at the time of trial, received a Bachelor of Science degree
from the University of Tennessee in 1980. She returned to school at Tennessee Technological
University (Tennessee Tech) in order to receive her teacher’s certificate. In May 2003, she received
her Master’s Degree in Curriculum and Instruction from Tennessee Tech, and in May 2004, received
a Ed.S. degree in Instructional Leadership. At the time of trial, she had taught two years in the White
County school system but had not been rehired for the upcoming school year. Ms. Heikkenen
indicated that it would be August 2004 before she knew whether she would be retained as a school
teacher. She and the parties’ son were living in a house located in Sparta, Tennessee, furnished by
her parents.

        In July, 2003, Ms. Heikkenen was diagnosed with breast cancer. She underwent a modified
mastectomy on August 15, 2003, and had undergone chemotherapy and radiation treatments. At
trial, Ms. Heikkenen testified she was scheduled to have breast reconstruction surgery on July 15,
2004, and that she faced the possibility of additional surgery following that.

        As a result of the uncertainty concerning Ms. Heikkenen‘s re-employment by the White
County School System, the trial court postponed it’s decision on alimony and ordered that Dr.
Heikkenen continue paying the temporary support payments until that determination was made. The
court designated Ms. Heikkenen the primary residential parent for the parties minor son and ordered
that Mr. Heikkenen pay child support in the amount of $1,600.00 per month. The court also ordered
that Dr. Heikkenen pay $4,000 toward Ms. Heikkenen’s attorneys fees.

       The record reflects a hearing was held before the trial court on March 11, 2005, regarding
the award of alimony to Ms. Heikkenen. As previously stated, no transcript of that proceeding or
statement of the evidence presented has been filed in the record on appeal. In the brief filed in behalf


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of Dr. Heikkenen, it is asserted that Ms. Heikkenen testified at that hearing she had been rehired by
the White County School system and was earning $2672.24 per month gross and $2150.99 net
income. The statement in the brief concerning Ms. Heikkenen’s income makes reference to an
unverified, unsigned document titled “Statement of Income and Need”, filed November 15, 2005,
contained in the Technical Record. By order filed April 11, 2005, the trial court ordered that Dr.
Heikkenen pay $1,500 per month alimony to Ms. Heikkenen for life or until her remarriage
beginning March 11, 2005. From that order, Dr. Heikkenen has appealed.

       Tennessee Code Annotated section 36-5-121(a) gives the courts 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." In determining whether to award support, and the nature,
amount and duration of such support, courts are to consider a number of factors:

       (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



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       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) (2005).

        It is obvious that many of the enumerated factors are directly related to the economic needs
of the parties and their ability to meet those needs with the economic resources and earning potential
available to them after divorce. Thus, Tennessee courts have frequently stated that the most
important factors to consider when deciding upon alimony are the need of the disadvantaged spouse
and the ability of the other spouse to provide support. Robertson v. Robertson, 76 S.W.3d 337, 338
(Tenn. 2002); Bogan v. Bogan, 60 S.W.3d 721, 730 (Tenn. 2001); Aaron v. Aaron, 909 S.W.2d 408,
410 (Tenn. 1995).

         As the language of the statute indicates, the trial court has broad discretion in determining
the type, amount, and duration of alimony to award, based upon the particular facts of each case.
Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001); Crabtree v. Crabtree, 16 S.W.3d 356, 360
(Tenn. 2000); Sullivan v. Sullivan, 107 S.W.3d 507, 511 (Tenn. Ct. App. 2002); Kinard v. Kinard,
986 S.W.2d 220, 234 (Tenn. Ct. App. 1998). Since alimony is largely a matter in the discretion of
the trial court, appellate courts are not inclined to alter a trial court's award of alimony, unless the
trial court applied an incorrect legal standard or reached a decision not supported by the facts that
causes an injustice to the party complaining. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).
Findings of fact by the trial court are presumed to be correct unless the evidence preponderates
otherwise. Tenn. R. Civ. P. 13(d).

         Our review of the action of the trial court in awarding alimony in this case is severely
hampered by the absence of a transcript of the proceedings or statement of evidence introduced at
the March 11, 2005 hearing. The Tennessee Rules of Appellate Procedure place the responsibility
for preparing an accurate transcript or statement of the evidence upon the appellant. See Tenn. R.
App. P. 24(b) (2004); McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989). Without
a statement of the evidence which accurately reflects the evidence presented to the trial court, we
must presume that the record, had it been accurately presented to this Court, would contain sufficient
evidence to support the trial court's decision. See, Mfrs. Consolidation Serv., Inc. v. Rodell, 42
S.W.3d 846, 865 (Tenn. Ct. App. 2000); Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App.
1992); McDonald, 772 S.W.2d at 914. Indeed, there is an additional reason to apply the presumption
in this case. The “Statement of Income and Need” contained in the technical record and referred to
by Dr. Heikkenen as evidence of Ms. Heikkenen’s income, itemizes her necessary monthly expenses
which total $6,145.23. Assuming this document was offered to the trial court, the itemized expenses


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exceeded Ms. Heikkenen’s monthly income of $2150.99 and child support of $1600.00 by $2,394.24
per month. Without a transcript or statement of the evidence offered, we simply cannot speculate
as to the testimony presented to the trial court at that hearing. Accordingly, we must presume the
testimony of Ms. Heikkenen and the exhibits offered during the March 11, 2005 hearing established
a need for the additional support awarded by the trial court.

         The only evidence contained in the record before us concerning Dr. Heikkenen’s ability to
pay support was presented at trial. That evidence consisted of a pay record of Dr. Heikkenen
containing his 2004 earnings through June 6 of that year. For the 5.2 month period covered, Dr.
Heikkenen earned gross wages of $60,167.64 or $11,570.70 per month. For that period, $23,532.86
was deducted from his gross income for federal and state taxes. We calculate Dr. Heikkenen netted
$7,045.15 per month for that period. After deducting the child support and alimony awarded by the
trial court, Dr. Heikkenen had $3,945.15 remaining net income available for his own living expenses.

        At trial, Dr. Heikkenen claimed monthly expenses totalling $7529.00 per month. Included
in these expenses were $1,484.00 in child support payments, $500.00 to the Internal Revenue
Service, $500.00 in legal fees, $600.00 for pendente lite support payments, and $310 per month for
automobile payments and automobile insurance for Ms. Heikkenen’s automobile that Dr. Heikkenen
was ordered to pay during the pendency of the divorce action. Deduction of these amounts from Dr.
Heikkenen’s income leave $4,135.00 per month in recurring living expenses which approximates
the amount he has available.

        At trial, Dr. Heikkenen testified that he had been called in more than his normal hours during
January, February and March of 2004, because those months are included in the flu season and one
of his senior partners was ill during that period. He indicated he expected to work fewer hours
during the summer months and estimated he would gross an average of $9,838.18 per month. There
is no evidence in the record before us that Dr. Heikkenen testified or offered additional evidence as
to his full year’s income during the March 11, 2005, hearing. Accordingly, the trial court would
have been justified in accepting his average income for the 5.2 month period as representative of Dr.
Heikkenen’s earning ability.

        Considering the factors set forth in Tennessee Code Annotated section 36-5-121(i), we note
additional factors that would justify an award of alimony in this case. Dr. Heikkenen has a
considerably higher relative earning capacity than does Ms. Heikkenen. Based upon the 5.2 month
period for which earnings were provided, he has the ability to earn approximately $139,000 per year
whereas Ms. Heikkenen earns approximately $32,000 per year based upon the “Statement of Need
and Income” referred to in Dr. Heikkenen’s brief. The parties had a long-term marriage of twenty-
two years. Ms. Heikkenen made substantial contributions to the marriage and Dr. Heikkenen’s
earning ability by applying her earnings to the family’s expenses while Dr. Heikkenen attended
medical school. During the two and one-half year leave of absence following his graduation from
medical school, Dr. Heikkenen contributed nothing to the support of his wife and child, and depleted
$73,952.30 of marital savings for his own support. Ms. Heikkenen has been diagnosed with breast
cancer and will require additional surgery and treatment because of that condition. There is no


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evidence Dr. Heikkenen presently has a physical or mental condition that would interfere with his
ability to continue his current employment. Finally, the dissolution of the marriage was due to the
fault of Dr. Heikkenen.

         In summary, there is no basis for determining the trial abused its discretion in awarding Ms.
Heikkenen $1500.00 per month as alimony in futuro. Accordingly, the judgment of the trial court
is affirmed and this matter is remanded to the trial court. Ms. Heikkenen has requested she be
awarded her attorney’s fees incurred in defending this appeal. We believe she is entitled to recover
her reasonable attorney’s fees, the amount to be determined by the trial court on remand. The costs
of this appeal shall be assessed to Dr. Heikkenen.



                                                       ___________________________________
                                                       DONALD P. HARRIS, SENIOR JUDGE




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