                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  August 23, 2002 Session



     NIKKI LYNN HERRINGTON BOWIE v. RICHARD ROY BOWIE

                     Appeal from the Chancery Court for Knox County
                       No. 132605-1    John F. Weaver, Chancellor

                                 FILED OCTOBER 29, 2002

                                No. E2001-02923-COA-R3-CV




Richard Roy Bowie (“Husband”) and Nikki Lynn Herrington Bowie (“Wife”) were divorced in 2000.
Wife was awarded sole custody of the couple’s young child. Husband was granted visitation
pursuant to a custody agreement filed March 1, 2000. The Trial Court found that Wife’s monthly
need was $7,200, but that Husband was unable to pay this amount. The Trial Court awarded Wife
monthly child support in the amount of $1,057, and alimony in futuro of $1,500 per month. Husband
appeals the type of alimony awarded to the Wife, the Trial Court’s finding regarding the amount of
Wife’s monthly need, and the amount of alimony awarded. Wife raises an additional issue regarding
whether the Trial Court erred in not awarding her attorney’s fees. We affirm.


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


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J., and
CHARLES D. SUSANO, JR., J., joined.

James F. Logan, Jr., Cleveland, Tennessee, for the Appellant, Richard Roy Bowie.

Charles H. Child, Knoxville, Tennessee, for the Appellee, Nikki Lynn Herrington Bowie.
                                                    OPINION

                                                  Background

                This appeal involves a dispute regarding the type and amount of alimony awarded to
Wife pursuant to a final divorce decree entered in 2000. In 1996, after 24 years of marriage, the
parties separated and Wife, who was not gainfully employed outside the home, filed a complaint for
separate maintenance and child support. An order granting judgment by default was entered in
August of 1997, and an order of separation was entered in September of 1997, requiring Husband
to pay $10,000 per month to Wife as child support and spousal support. Husband never paid this
amount.

                Husband filed a complaint for divorce in 1999 alleging irreconcilable differences.
Wife countersued for divorce alleging, inter alia, adultery. At trial, Husband admitted to having
several affairs during the course of the marriage. The Trial Court granted Wife a divorce on the
ground of adultery.

              The parties have three children, only one of which was a minor at the time of trial.
Wife was granted sole custody of the minor child. Husband was granted visitation pursuant to a
custody agreement filed March 1, 2000, and ordered to pay child support in the amount of $1,057
per month.

               During the marriage, the parties lived in various places including New York, Boston,
Africa, Germany, and Tennessee. They established a high standard of living that included regular
travel and the acquisition over the years of such items as a Porsche 911, a Porsche 944, two
timeshares in Florida, a Steinway grand piano valued at trial at $20,000, and at least one airplane.
The majority of the moves made by the parties appear to have been to further or facilitate Husband’s
career as a doctor.

                 The record on appeal shows that Husband, who was 54 years old when the trial
started, is a general surgeon with his own medical practice. Husband also receives income from two
mini-storage warehouse facilities that he owns. Evidence at trial showed that Husband’s net income
from his medical practice had fallen in recent years from over $190,0001 in 1996, to approximately
$29,000 in 1999. Husband attributes his decline in income to several factors including the sale and
restructuring of a hospital with which Husband was affiliated and upon which Husband depended
for patients; the lack of return on Medicare and TennCare patients due to reduced fee allowances and
increased processing expenses; and the fact that Xantus, a contract provider with which Husband had
a contract, is now defunct. Despite the great disparity, and recent substantial decline, in Husband’s
income over the last five or six years, the Trial Court did not find Husband willfully underemployed.
The Trial Court found Husband’s income to be $7,200 per month.



       1
           For the sake of simplicity, we use round numbers in this Opinion whenever possible.

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                During the 24-year marriage, Wife, who was 50 years old at the time of trial, was
primarily a stay-at-home mother. She graduated from Emory and Henry in 1971 with a major in
music and a minor in elementary education. While at Emory and Henry, Wife received several
honors including being voted Miss Emory and Henry by the administration, being voted May Queen
by her fellow students, and becoming first runner-up to Miss Virginia. Evidence at trial showed that
Wife also had studied opera at Indiana University and then at the Julliard School of Music, but did
not obtain a degree at either institution. Wife did obtain a few vocal jobs approximately 25 years
ago, but the evidence showed that some of these “jobs” were nonpaying and that Wife did not earn
enough from her vocal jobs to support herself. The Trial Court found that Wife’s work history
consisted of a position as a receptionist/switchboard operator at a floral exchange in Boston
approximately 20 years ago, work with a church choir, and some very limited work at Husband’s
medical office and mini-warehouses.

              When dividing the marital property, the Trial Court noted that the amount awarded
to Husband slightly exceeded that awarded to Wife and stated that the court would take this into
account when making the additional provisions of the divorce, such as alimony. The Trial Court
found Wife’s monthly need to be $7,200, but also found Husband’s current income was only $7,200
per month. The Trial Court granted Wife alimony in futuro in the amount of $1,500 per month.

                                              Discussion

               Husband raises the following issues on appeal: (1) did the Trial Court err in awarding
Wife alimony in futuro instead of rehabilitative alimony; (2) did the Trial Court err in finding Wife’s
level of need was $7,200 per month; and (3) did the Trial Court err in requiring Husband to pay
$1,500 per month in alimony. Wife raises the additional issue of whether or not the Trial Court erred
in not awarding her attorney’s fees.

                Our review is de novo upon the record, accompanied by a presumption of correctness
of the findings of fact of the trial court, unless the preponderance of the evidence is otherwise. Tenn.
Rule App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court's conclusions
of law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v.
Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

                This Court has held:
        Trial courts have broad discretion to determine whether spousal support is needed
        and, if so, its nature, amount, and duration. 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 the public policies reflected in the applicable statutes.

Anderton v. Anderton, 988 S.W.2d 675, 682 (Tenn. Ct. App. 1998) (citations omitted). A trial
court's determination regarding spousal support generally will not be altered by this Court unless the
trial court abused its discretion. See Robertson v. Robertson, 76 S.W.3d 337, 342 (Tenn. 2002). It
is the roll of this Court to correct errors below and not to fine tune a trial court’s decision.


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               When determining whether a spouse should receive support, how much support, and
what type of alimony is warranted, trial courts are to consider the factors outlined in Tenn. Code
Ann. § 36-5-101(d)(1), which provides:

       In determining whether the granting of an order for payment of support and
       maintenance to a party is appropriate, and in determining the nature, amount, length
       of term, and manner of payment, the court shall consider all relevant factors,
       including:
       (A) 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;
       (B) 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 earning capacity to a
       reasonable level;
       (C) The duration of the marriage;
       (D) The age and mental condition 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 party will be custodian of a minor child of the
       marriage;
       (G) The separate assets of each party, both real and personal, tangible and intangible;
       (H) The provisions made with regard to the marital property as defined in § 36-4-121;
       (I) The standard of living of the parties established during the marriage;
       (J) The extent to which each party has made such tangible and intangible contributions to the
       marriage as monetary and homemaker contributions, and tangible and intangible
       contributions by a party to the education, training or increased earning power of the other
       party;
       (K) The relative fault of the parties in cases where the court, in its discretion, 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. Code Ann. § 36-5-101(d)(1) (2001).

                While all relevant factors must be considered when setting the amount of an alimony
award, need and the ability to pay are the critical factors. Anderton, 988 S.W.2d at 683. Discussing
the intent behind alimony, our Supreme Court has held: "the purpose of spousal support is to aid the
disadvantaged spouse to become and remain self-sufficient and, when economic rehabilitation is not
feasible, to mitigate the harsh economic realities of divorce." Burlew v. Burlew, 40 S.W.3d 465,
470-71 (Tenn. 2001) (quoting Anderton, 988 S.W.2d at 682).



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               Although "the legislature has demonstrated a preference for an award of rehabilitative
alimony[,]" Crabtree v. Crabtree, 16 S.W.3d 356, 358 (Tenn. 2000), the relevant alimony statute,
Tenn. Code Ann. § 36-5-101(d)(1), does contemplate, under the appropriate circumstances, a long-
term award of alimony, or alimony in futuro, providing: “[w]here there is such relative economic
disadvantage and rehabilitation is not feasible in consideration of all relevant factors, . . . then the
court may grant an order for payment of support and maintenance on a long-term basis . . . .” Tenn.
Code Ann. § 36-5-101(d)(1) (2001). "[T]he purpose of [alimony in futuro] is to provide financial
support to a spouse who cannot be rehabilitated." Burlew, 40 S.W.3d at 471.

               Husband's issues on appeal regarding the Trial Court's award of alimony to Wife
concern both the type and the amount of alimony. We first will consider the issue regarding the type
of alimony the Trial Court awarded to Wife.
                Recently, our Supreme Court issued its opinion in Robertson v. Robertson regarding
the issue of alimony, including the type of alimony. Robertson v. Robertson, 76 S.W.3d 337 (Tenn.
2002). Mr. Robertson was employed by TVA and his average yearly income was approximately
$60,000. Id. at 342. Ms. Robertson had a yearly income of approximately $22,000. Id.
Accordingly, the Robertsons had a disparity in income, although not as pronounced as the parties
in this matter.

                Despite this disparity in income between the husband and wife in Robertson, our
Supreme Court held that the trial court's award of rehabilitative alimony, rather than alimony in
futuro, to Ms. Robertson was not an abuse of discretion. Id. The Supreme Court in Robertson
reversed this Court which found Ms. Robertson should be awarded alimony in futuro since she
"could not be rehabilitated to a reasonable standard of living, viewed in the context of her pre-
divorce standard of living." Id. at 339. The Robertson Court stressed the importance of considering
every relevant factor provided by the alimony statute and applying the statute's factors on a case-by-
case basis. Id. at 341. The Court recognized the legislature's preference for rehabilitative alimony
and discussed the purpose of rehabilitative alimony as follows:

        [R]ehabilitative alimony may assist the disadvantaged spouse in obtaining further
        education or training. . . . ("Rehabilitative alimony serves to support an economically
        dependent spouse 'through a limited period of re-education or retraining following
        divorce, thereby creating incentive and opportunity for that spouse to become self-
        supporting.'"). It may also provide temporary income to support the disadvantaged
        spouse during the post-divorce economic adjustment.

Id. at 340-41 (citations omitted).

               The Robertson Court, in finding that the trial court's award of rehabilitative alimony
to Ms. Robertson was not an abuse of discretion, reviewed Ms. Robertson's work history as a full-
time homemaker and part-time substitute teacher and her recent attainment of a 4-year degree in
education. Id. at 342. The Court found it significant that Ms. Robertson anticipated beginning her
teaching career with a salary of approximately $22,000, stating that "[i]n light of Ms. Robertson's


                                                  -5-
college education and new employment, we agree that Ms. Robertson, though economically
disadvantaged, is capable of rehabilitation." Id. at 343. In addition, the Court found that the
“rehabilitative alimony could assist Ms. Robertson in obtaining her master's degree to increase her
earning capacity in the future.” Id.

                 We believe the facts of Robertson are readily distinguishable from the facts of this
case. Wife's circumstances show that, unlike the economically disadvantaged spouse in Robertson,
it is highly unlikely that she can rehabilitate herself through further education or training. The Trial
Court found it unlikely that Wife would be able to do anything to appreciably remedy her economic
disadvantage and that Wife’s economic rehabilitation is not feasible.

                In light of Robertson, a trial court cannot rely upon just one of the factors of the
alimony statute, the disparity in the parties' incomes. Id. at 340. The proof in the record in this case,
however, shows that other relevant factors establish Wife's need for alimony in futuro. The Trial
Court properly considered all of the relevant statutory factors including the relative earning
capacities of the parties, the relative education and training of the parties, the long duration of the
marriage, the age of the parties, the extent to which it would be undesirable for the Wife to be
employed outside the home as she is the custodian of the parties’ minor child, the standard of living
established by the parties during the marriage, the Wife’s intangible contributions to the marriage,
the relative fault of the parties, the provisions made with regard to the marital property, the equities
between the parties, Wife’s education having been in music, and Wife’s having a very limited work
history.

                While we acknowledge that the legislature has expressed a preference for
rehabilitative alimony in Tenn. Code Ann. § 36-5-101(d)(1), the record on appeal shows, as found
by the Trial Court, that Wife's possibilities to rehabilitate herself are limited. See Tenn. Code Ann.
§ 36-5-101(d)(1)(2001). The evidence contained in the record does not preponderate against this
finding by the Trial Court. Accordingly, after applying all relevant statutory factors to the facts and
circumstances shown by the record, we hold the Trial Court's award of alimony in futuro, as opposed
to rehabilitative alimony, was not an abuse of discretion, and we affirm on this issue.

                As far as the Husband’s issue regarding whether the Trial Court erred in finding that
the Wife’s level of need was $7,200 per month, we find that the facts do not preponderate against
this finding. When a Trial Court has seen and heard witnesses, especially where issues of credibility
and weight of oral testimony are involved, considerable deference must be accorded to the Trial
Court's factual findings. Seals v. England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn.
1999). Since the facts do not preponderate against the Trial Court’s finding, we affirm on this issue.
We also note that while the Trial Court found Wife’s level of need to be $7,200 per month, the Trial
Court awarded only $1,500 per month in alimony.

              We next address Husband’s issue regarding whether the Trial Court erred in requiring
Husband to pay $1,500 per month in alimony. The Trial Court found Wife’s needs to be $7,200 per
month less child support of $1,057 per month or $6,143. The Trial Court further found that


                                                  -6-
Husband’s current monthly income of $7,200 was insufficient to allow him to meet Wife’s needs.
The evidence found in the record before us does not preponderate against either of these factual
findings. After considering all relevant factors and the record before us, we hold that the Trial
Court’s award of alimony in the amount of $1,500 per month was not an abuse of discretion.
Therefore, we affirm on this issue.

                Finally, we address whether the Trial Court erred in refusing to grant to Wife her
attorney’s fees. “‘[A]n appellate court should not reverse for ‘abuse of discretion’ a discretionary
judgment of a trial court unless it affirmatively appears that the trial court’s decision was against
logic or reasoning, and caused an injustice or injury to the party complaining.’” Marcus v. Marcus,
993 S.W.2d 596, 601 (Tenn. 1999)(quoting Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)).
The record does not support a finding that the Trial Court’s decision was against logic or reasoning,
or that it caused an injustice or injury to the Wife. Therefore, we affirm on this issue as well. Wife
also has requested that she be awarded her attorney’s fees and costs incurred on appeal. After
consideration of all relevant factors and in the exercise of our discretion, we decline Wife’s request.

                                             Conclusion

                The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for such further proceedings as may be required, if any, consistent with this Opinion and for
collection of the costs below. The costs on appeal are assessed against the Appellant, Richard Roy
Bowie, and his surety.




                                                       ___________________________________
                                                       D. MICHAEL SWINEY, JUDGE




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