                                                                                           10/24/2017
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  May 17, 2017 Session

                  AMY JO SLOCUM V. JAMIE DON SLOCUM

                  Appeal from the Circuit Court for Wilson County
                      No. 2015-DC-258      Clara Byrd, Judge


                             No. M2016-01881-COA-R3-CV



This is a divorce case. Jamie Don Slocum appeals the trial court’s division of the marital
estate and the trial court’s award of rehabilitative support to his spouse, Amy Jo Slocum.
Husband argues that the trial court erred in finding that he dissipated marital assets (1)
before the parties’ separation and (2) during the pendency of the divorce. Husband also
asserts that wife has an earning capacity higher than the $1,449 per month found by the
trial court. Wife posits that the trial court’s findings of fact are correct and supported by
the preponderance of the evidence. She argues, however, that her spousal support award
of $1,264 per month until May 31, 2025, should be classified as transitional support
rather than rehabilitative. We hold that the trial court’s judgment with respect to spousal
support should be modified to reflect that her support award is in the nature of
transitional spousal support. As modified, the trial court’s judgment is affirmed.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J.,W.S., and BRANDON O. GIBSON, J., joined.

Derrick H. Green, Mt. Juliet, Tennessee, for the appellant, Jamie Don Slocum.

Misty Lavender Foy, Murfreesboro, Tennessee, for the appellee, Amy Jo Slocum.




                                             1
                                        OPINION

                                             I.

       The parties were married on October 17, 1998. Two daughters were born to their
marriage, ages twelve and nine at the time of the divorce. The parties separated on May
20, 2015 after wife learned of husband’s affair. She filed her complaint two days later.
On June 5, 2015, wife filed a motion for support pendente lite. The trial court heard the
motion on July 24, 2015. Both parties testified at the hearing but there is no transcript in
the record. The trial court found “[t]hat Husband’s testimony about his income, his tax
returns, his trips to California, and his girlfriend, [is] not truthful.” The court ordered
husband to pay support pendente lite of $800 every two weeks, and also “to pay for any
and all extracurricular activities, school supplies, registration fees, and any other school-
related expenses for the children within two weeks of receiving notice from [wife].”
Wife later filed two motions for contempt, on August 21, 2015, and May 4, 2016,
alleging that husband had not paid support as ordered by the trial court.

       On May 12, 2016, at the beginning of trial, the parties stipulated and agreed to a
permanent parenting plan designating wife primary residential parent of the children and
granting husband 114 days per year of residential parenting time. They further stipulated,
for purposes of calculating child support, that husband’s gross monthly income was
$5,533, and that wife’s was $1,449. Under the child support guidelines worksheet, this
agreement resulted in a child support order requiring husband to pay $1,006 per month.
The case was tried on the remaining issues of division of the marital estate and wife’s
request for spousal support and attorney’s fees. At the end of the two-day trial at which
the parties were the primary witnesses, the trial court found that husband “does, in fact,
make, and his earning capacity is, $5,533 per month.” The court found wife’s earning
capacity to be approximately $1,449 per month. Regarding wife’s education, the court
stated “that [w]ife is well educated and trained because she was a kindergarten teacher
before she became a stay-at-home mom.” Addressing husband’s argument that it should
have found wife to have a higher earning capacity, the trial court held as follows, in
pertinent part:

              the [c]ourt does not find that [wife] is underemployed. Wife
              testified her reasons for working this job, and she is the
              primary residential parent and has to provide for the children
              the majority of the time, and thus, she is unable to work the
              hours or number of jobs necessary to make more than that at
              this time because of the two minor children who are living in
              the home. More specifically, in order for Wife to get
              recertified teaching, she would have to go back to school for
                                             2
             approximately two (2) years, Wife testified that this was not a
             viable option at this time. Instead, Wife testified that she has
             taken a job with American Airlines and has tried to set her
             hours around the time that she is primary residential parent.
             She further testified that, at American Airlines, there is room
             for advancement, she can pick up additional shifts, and she
             receives far greater benefits than she would if she went back
             to teaching, including, but not limited to, flights, and really
             good insurance.

                                   *     *       *

             The [c]ourt finds that it would not be practical for Wife to get
             any other job or to go back to school because she’s still
             responsible for the minor children. The [c]ourt further finds
             that Wife is earning just about as much as she could make
             outside the home with the time available.

             The [c]ourt further finds that Husband is out of town a lot.
             Husband testified that he makes an average of twenty (20) to
             thirty (30) trips out of town per year, and the evidence is
             absolutely there.      During his travels, Wife is solely
             responsible for the children.

(Numbering in original omitted.)

      Regarding husband’s dissipation of marital assets, the trial court found as follows:

             The [c]ourt finds that Husband had an affair; Husband has not
             been truthful with the IRS; and that Husband has dissipated
             marital assets, as set forth more fully . . . below.

                                   *     *       *

             The [c]ourt does make a finding that Husband did dissipate
             some of the marital property. The [c]ourt cannot account for
             all of the dissipation because there are a lot of deposits.

             The undisputed proof shows that Husband cashed out his Star
             Retirement on April 20, 2015 in the amount of $20,204.00.
             The [c]ourt further finds that there was no reason to do so at
                                             3
             the time because there was in excess of $50,000.00 in the
             bank. The [c]ourt can only consider that this was done for the
             purpose of defeating the spouse’s interest; there is no other
             credible reason for him to withdraw it except to defeat Wife’s
             interest thereon. Husband’s reasoning, which the [c]ourt did
             not find credible, was that the Wife had unknown credit card
             debt. However, Wife had attempted to pay the two credit
             cards, which together totaled approximately $10,000.00 from
             the bank account that had a balance in excess of $50,000.00,
             and Husband had the credit card companies refund the
             payments.

             The [c]ourt finds that Husband’s trips have gotten more and
             more expensive.

             The [c]ourt finds that Husband did have a girlfriend, and there
             is no doubt that Husband had an affair. The [c]ourt finds that
             the testimony was that he admitted that he took his girlfriend
             on some trips with him at a time when he said his business
             was basically slow and he was not making money, yet he was
             going on these trips to make money in the future.

       The primary marital asset was the parties’ residence, which, at the time of the
divorce, they owned encumbrance-free. The stipulated value of the house was $259,000.
The parties reached a pre-trial agreement regarding the division of personal property,
several relatively small bank accounts, wife’s retirement account of $12,000 from her
former teaching job, and a couple of credit card debts in the approximate amounts of
$5,200 and $4,300. After making extensive findings of fact pertinent to each applicable
statutory factor, the trial court held as follows in dividing the marital estate:

             The [m]arital [h]ome is the children’s residence. They have
             resided there since birth.

                                  *      *       *

             The minor children need to maintain residence at the [m]arital
             [h]ome in order to maintain the stability of the family and
             friends that they have grown up with. The minor children
             need to live in the same school district. Wife has testified that
             she wants to stay in the house, and maintain the children’s
             stability there.
                                             4
               Husband has not been honest and truthful with the IRS about
               his income.

               The [c]ourt finds that it would not be fair to make the Wife
               pay to the Husband fifty-percent (50%) of the equity in the
               [m]arital [h]ome because then she would have an additional
               payment.

               Considering the factors of equitable distribution above, the
               [c]ourt finds that in this particular situation the equities would
               require this [c]ourt to award Wife seventy-five percent (75%)
               interest, or $194,250.00, in the [m]arital [h]ome, and Husband
               twenty-five percent (25%) interest, or $64,750.00, in the
               [m]arital [h]ome. The [c]ourt’s primary objective is to keep
               the children in their home until they are old enough to go to
               college, and also due to the Husband’s dissipation of the
               marital assets during the time of this marriage. The
               remaining division of assets is relatively a wash, since each’s
               vehicles have little to no value, the bank accounts have little
               to no value, and the credit cards are relatively equal.

       At the beginning of trial, the parties stipulated that husband was in arrears on
pendente lite support in the amount of $7,616. Husband, perhaps prompted by the trial
court’s admonition during trial that “you better write her a check before we leave this
courthouse today, or else you’re going to jail for direct contempt,” did just that to get
current on his support obligation, but remained in arrears for reimbursement to wife for
the expenses of the children’s extracurricular activities. Because husband had not timely
met his support obligations, the trial court ruled that,

               [p]er Tennessee Code Annotated 36-4-121,1 the [c]ourt
               imposes a lien on Husband’s share of the [m]arital [h]ome, as
               and for a security for the payment of child support and/or
               spousal support, to ensure future child support and spousal
               support payments, due to Husband’s history not making
               payments in the pendente lite order.
       1
         Tenn. Code Ann. § 36-4-121(e)(1) provides that “[t]he court may impose a lien upon the
marital real property assigned to a party, or upon such party’s separate real property, or both, as
security for the payment of child support[,]” and section (e)(2) provides, “[t]he court may impose
a lien upon the marital real property assigned to a party as security for the payment of spouse
support or payment pursuant to property division.”
                                                5
        The trial court awarded wife spousal support in the amount of $1,264 per month,
which it classified as “rehabilitative alimony to allow her time to get on her feet.” The
court made this classification despite the parties’ stipulation that wife was only requesting
transitional and/or alimony in solido. Husband timely filed a notice of appeal.

                                             II.

       Husband raises the following issues, as quoted from his brief:

              1. Whether the [trial court] erred in finding Husband
              dissipated marital property.

              2. Whether the [c]ourt erred in ordering [r]ehabilitative
              [a]limony [and] finding that it would not be practical for the
              Wife to get any other job or go back to school and that the
              Wife was earning as much as she could outside the home.

              3. Whether the [c]ourt erred in its ruling regarding the marital
              property distribution between the Husband and Wife.

Wife raises the additional issue of whether the trial court erred in declining to award her
attorney’s fees.

                                            III.

                                             A.

       This Court has set forth the standard of review of a trial court’s division of marital
property as follows:

              Once the marital property has been valued, the trial court is to
              divide the marital property in an equitable manner. Tenn.
              Code Ann. § 36–4–121(a)(1); Miller [v. Miller], 81 S.W.3d
              [771,] at 775 [(Tenn. Ct. App. 2001)]. A division of marital
              property in an equitable manner does not require that the
              property be divided equally. Robertson v. Robertson, 76
              S.W.3d 337, 341 (Tenn. 2002). Dividing a marital estate is
              not a mechanical process but, rather, is guided by considering
              the factors in Tenn. Code Ann. § 36–4–121(c). Kinard [v.
              Kinard], 986 S.W.2d [220,] at 230 [Tenn. Ct. App. 1998]. . . .
              Trial courts have wide latitude in fashioning an equitable
                                             6
             division of marital property, Fisher v. Fisher, 648 S.W.2d
             244, 246 (Tenn. 1983), and this court accords great weight to
             the trial court’s division of marital property. Wilson v.
             Moore, 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996). Thus,
             we defer to the trial court’s division of the marital estate
             unless it is inconsistent with the factors at Tenn. Code Ann. §
             36–4–121(c) or is not supported by a preponderance of the
             evidence. Brown v. Brown, 913 S.W.2d 163, 168 (Tenn. Ct.
             App. 1994).

Luplow v. Luplow, 450 S.W.3d 105, 109-110 (Tenn. Ct. App. 2014).

       In making an equitable division of property, the trial court must consider the
following statutory factors:

             (1) The duration of the marriage;

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

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

             (4) The relative ability of each party for future acquisitions of
             capital assets and income;

             (5)(A) 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 earner
             to be given the same weight if each party has fulfilled its role;

             (B) For purposes of this subdivision (c)(5), dissipation of
             assets means wasteful expenditures which reduce the marital
             property available for equitable distributions and which are
             made for a purpose contrary to the marriage either before or
             after a complaint for divorce or legal separation has been
             filed.
                                            7
              (6) The value of the separate property of each party;

              (7) The estate of each party 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 foreseeable expenses associated with the asset;

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

              (11) Such other factors as are necessary to consider the
              equities between the parties.

Tenn. Code Ann. § 36-4-121(c) (Supp. 2016).

       The trial court made specific findings of fact relative to each of the above pertinent
statutory factors. The parties were married seventeen years, a duration which the trial
court found to be a long-term marriage. Husband was 45 years old, and wife 44. Both
were in generally good physical and mental health. Throughout the course of the
marriage, husband was self-employed in the music industry as a producer, songwriter,
and performer. His career required him to travel frequently; he regularly took between
twenty and thirty trips away from home per year. Wife worked as a schoolteacher during
the early years of the marriage. After the children were born, she became a stay-at-home
mom, taking care of the children and the household.

        The testimony of the parties differed sharply on certain financial matters. Wife
testified that Husband earned a lot of money in cash during his music career travels. She
said that husband “always told me that he made $100,000 per year. It didn’t reflect on
his taxes, but he made a lot of cash.” Wife stated that they kept in upwards of $10,000 in
cash in a closet in the house. When she realized she was going to file for divorce, she
went to the closet to take a photograph of the cash, but found it gone. Husband admitted
that he made cash earnings on the road, but said that it wasn’t very much. He testified
that he never made $100,000 in a year, nor did he tell wife he made that amount. He
further denied that they kept cash in a closet.

       In 2001, Wife’s parents built a marital residence for the parties. The parties paid
for the materials and took out a mortgage on the residence. They were able to pay it off
                                             8
with the help of two inheritances, one received by husband from a family friend, and one
from wife’s uncle. Neither party had any separate assets at the time of the divorce.

       Husband testified that he had “a relationship” with his paramour since 2013.2
Wife testified that during the last part of the marriage, husband’s out-of-town trips
increased in frequency and duration. She put on extensive evidence documenting
husband’s travel expenditures. Husband admitted that his girlfriend accompanied him on
some of these trips and that he traveled more often to Los Angeles, where she resided.
He said the trips were primarily for his business, however. Husband also testified that he
paid his girlfriend “directly” a couple of times for doing work on his music projects.

        In mid-2014, Wife became suspicious that husband was having an affair. Husband
denied it, and they attended marriage counseling the second half of 2014. In late March
of 2015, wife discovered what she considered conclusive evidence of husband’s ongoing
affair and told him the marriage was over. In April of 2015, husband withdrew $27,000
from the parties’ primary checking account and $19,000 from his retirement account.
Wife began looking for employment; she said she “applied everywhere.” She received an
offer from Delta airlines to work as a flight attendant, which required her to travel to
Atlanta for seven weeks of training. Wife testified:

               [Husband], at that time we were still living together, and I
               told him about that job opportunity, and he said that he would
               not watch the kids for those seven weeks, that he hoped my
               sister or my mom could watch them because he didn’t have
               time.

Wife turned down the offer because she realized the job would require too much travel
for her to be able to take care of the children. Wife’s teaching certificate had expired in
2012. She testified that it would take her at least a year and a half of school and training
to get it back. She felt that she couldn’t afford to go that long without income and was
not interested in returning to a teaching career. Wife got a part-time job with American
Airlines working about 25 hours a week and earning an average of $1,449 per month.
She testified that she picked up as many extra shifts as she could, and she was “trying to
be a good employee to get full-time, to just move up the ladder, and to get full-time.”
She was optimistic that she would be able to advance with the company over time, and
stated that American provided her with good employment benefits.

       2
         Wife put into evidence numerous printouts of Facebook private messages between
husband and his girlfriend that explicitly described their sexual activities. Husband did not deny
that the messages were genuine, but testified that they were “just talk” and that their relationship
was “purely platonic.” It is obvious that the court did not believe him.
                                                 9
        Husband testified that recent changes in the music industry had caused his
business and earning capacity to decline. At the time of trial, he had been living rent-free
at a friend’s house. The trial court found that husband’s earning capacity was $5,533,
and wife’s was $1,449 ‒ the amounts stipulated by the parties for child support purposes.
The evidence does not preponderate against this conclusion.

       In 2011, the Tennessee legislature amended the pertinent statute to define
“dissipation of assets” as “wasteful expenditures which reduce the marital property
available for equitable distributions and which are made for a purpose contrary to the
marriage[.]” Tenn. Code Ann. § 36-4-121(c)(5)(B). As this Court has observed,

              The statutory definition is consistent with prior Tennessee
              caselaw emphasizing that the “concept of dissipation is based
              on waste.” Williams v. Williams, No. E2004–02439–COA–
              R3–CV, 2005 WL 2205913, at *9 (Tenn. Ct. App. Sept. 12,
              2005) (citing Altman v. Altman, 181 S.W.3d 676, 681–82
              (Tenn. Ct. App. 2005) (perm. app. denied)). This Court has
              noted that actions deemed to be dissipation have typically
              involved “intentional and purposeful conduct that has the
              effect of reducing the funds available for equitable
              distribution.” Long v. Long, No. M2006–02526–COA–R3–
              CV, 2008 WL 2649645, at *9 (Tenn. Ct. App. July 3, 2008)
              (quoting Williams, 2005 WL 2205913, at *9). One factor to
              be considered in determining whether a spouse has dissipated
              marital property is whether the allegedly dissipating spouse
              “intended to hide, deplete, or divert a marital asset.” Long,
              2008 WL 2649645, at *9. [T]he party asserting dissipation
              . . . bears the burden of proof on this issue. Altman, 181
              S.W.3d at 682.

Hayes v. Hayes, No. W2010-02015-COA-R3-CV, 2012 WL 4936282, at *8 (Tenn. Ct.
App., filed Oct. 18, 2012). The issue of dissipation is often a “fact and credibility driven
decision.” Watson v. Watson, 309 S.W.3d 483, 492 (Tenn. Ct. App. 2009), quoting Lane
v. Lane, No. M2000-01135-COA-R3-CV, 2001 WL 1523365, at *3 (Tenn. Ct. App.,
filed Nov. 30, 2001).

      The trial court credited wife’s testimony that husband’s out-of-town trips had
become more frequent and of longer duration since his affair began, and husband
admitted that his paramour was with him on some of these trips. The court properly
considered husband’s dissipation of marital assets as one factor in the context of
weighing the totality of the circumstances and equities of the divorce. As we have stated,
                                            10
              Dissipation is not a separate factor. To the contrary, the
              allegedly improper or wasteful expenditure or transaction
              must be considered in the context of the marriage as a whole,
              and it must be weighed along with all the other relevant
              factors in the case.

Altman, 181 S.W.3d at 682. The trial court also considered it important for the children
to be able to remain in the same residence and school district, and recognized wife’s role
as their primary caregiver. We find that the trial court’s division of the marital estate is
consistent with the factors provided by Tenn. Code Ann. § 36-4-121(c) and is supported
by the preponderance of the evidence.

                                            B.

       Husband’s challenge of the trial court’s alimony ruling is also primarily supported
by his arguments that wife had a greater earning capacity than that found by the court,
and that he did not dissipate marital assets. Our standard of review of the trial court’s
spousal support decision is as stated by the Supreme Court:

              For well over a century, Tennessee law has recognized that
              trial courts should be accorded wide discretion in determining
              matters of spousal support. This well-established principle
              still holds true today, with this Court repeatedly and recently
              observing that trial courts have broad discretion to determine
              whether spousal support is needed and, if so, the nature,
              amount, and duration of the award.

              Equally well-established is the proposition that a trial court’s
              decision regarding spousal support is factually driven and
              involves the careful balancing of many factors. Kinard v.
              Kinard, 986 S.W.2d 220, 235 (Tenn. Ct. App. 1998); see also
              Burlew, 40 S.W.3d at 470; Robertson v. Robertson, 76
              S.W.3d 337, 340–41 (Tenn. 2002). As a result, “[a]ppellate
              courts are generally disinclined to second-guess a trial judge’s
              spousal support decision.” Kinard, 986 S.W.2d at 234.
              Rather, “[t]he role of an appellate court in reviewing an award
              of spousal support is to determine whether the trial court
              applied the correct legal standard and reached a decision that
              is not clearly unreasonable.” Broadbent v. Broadbent, 211
              S.W.3d 216, 220 (Tenn. 2006). Appellate courts decline to
              second-guess a trial court’s decision absent an abuse of
                                            11
             discretion. Robertson, 76 S.W.3d at 343. An abuse of
             discretion occurs when the trial court causes an injustice by
             applying an incorrect legal standard, reaches an illogical
             result, resolves the case on a clearly erroneous assessment of
             the evidence, or relies on reasoning that causes an injustice.
             Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn.
             2011); Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn.
             2010). This standard does not permit an appellate court to
             substitute its judgment for that of the trial court, but
             “ ‘reflects an awareness that the decision being reviewed
             involved a choice among several acceptable alternatives,’ and
             thus ‘envisions a less rigorous review of the lower court’s
             decision and a decreased likelihood that the decision will be
             reversed on appeal.’ ” Henderson, 318 S.W.3d at 335
             (quoting Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524
             (Tenn. 2010)). Consequently, when reviewing a discretionary
             decision by the trial court, such as an alimony determination,
             the appellate court should presume that the decision is correct
             and should review the evidence in the light most favorable to
             the decision.

Gonsewski v. Gonsewski, 350 S.W.3d 99, 105–06 (Tenn. 2011) (internal citations and
footnote omitted).

       A trial court’s award of spousal support is governed by Tenn. Code Ann. § 36–5–
121(i) (2017), 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:

             (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

                                           12
             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 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.

In its judgment, the trial court listed these factors and made specific findings of fact
regarding each. Obviously, many of the facts recited in section III(A) above are also
pertinent to the award of spousal support. The trial court ruled as follows:

                                            13
              Considering the findings set forth above, the Court finds that
              Wife is entitled to rehabilitative alimony to allow her time to
              get on her feet. More specifically, the Court finds that she
              needs extra time for the minor children to get older. The
              youngest minor child will not be eighteen (18) until 2025, and
              so the Court finds that a spousal support award from June 1,
              2016 through May 31, 2025 is appropriate. Moreover, based
              on the combined gross monthly income less the child support
              consideration, an award of $1,264.00 per month to Wife
              would give Wife a total household income of $3,719.00 for a
              household of three (3) and Husband a total household income
              of $3,263.00 for a household of one (1).

Based on our review of the record, the evidence does not preponderate against the trial
court’s conclusion that wife has need, and husband has the ability to pay, spousal support
in the amount of $1,264 per month.

       At the beginning of trial, when the parties informed the court of their stipulations,
among them was the agreement that wife was requesting transitional and/or in solido
alimony. The trial court’s divorce judgment states that “[t]he remaining issues to be
decided [are] the fair and equitable division of marital property, . . . whether or not the
Wife should receive spousal support, either transitional or in solido or both, and, whether
or not the Husband should pay Wife’s attorney fees.” (Emphasis added). Wife asserts in
her brief that “although the [t]rial [c]ourt classified and ordered the award of
rehabilitative alimony, it is apparent from the [f]inal [d]ecree of [d]ivorce that the trial
court intended to order a transitional alimony award.”

        The Supreme Court has recognized that “Tennessee statutes concerning spousal
support reflect a legislative preference favoring rehabilitative or transitional alimony
rather than alimony in futuro or in solido.” Mayfield v Mayfield, 395 S.W.3d 108, 115
(Tenn. 2012). The spousal support statute provides, in pertinent part, the following
classifications and characterizations of rehabilitative and transitional alimony:

              (e)(1) Rehabilitative alimony is a separate class of spousal
              support . . . . To be rehabilitated means to achieve, with
              reasonable effort, an earning capacity that will permit the
              economically disadvantaged spouse’s standard of living after
              the divorce to be reasonably comparable to the standard of
              living enjoyed during the marriage, or to the post-divorce
              standard of living expected to be available to the other

                                            14
spouse, considering the relevant statutory factors and the
equities between the parties.

(2) An award of rehabilitative alimony shall remain in the
court’s control for the duration of such award, and may be
increased, decreased, terminated, extended, or otherwise
modified, upon a showing of a substantial and material
change in circumstances. For rehabilitative alimony to be
extended beyond the term initially established by the court, or
to be increased in amount, or both, the recipient of the
rehabilitative alimony shall have the burden of proving that
all reasonable efforts at rehabilitation have been made and
have been unsuccessful.

(3) Rehabilitative alimony shall terminate upon the death of
the recipient. Rehabilitative alimony shall also terminate
upon the death of the payor, unless otherwise specifically
stated.

                     *       *        *

(g)(1) Transitional alimony means a sum of money payable
by one (1) party to, or on behalf of, the other party for a
determinate period of time. Transitional alimony is awarded
when the court finds that rehabilitation is not necessary, but
the economically disadvantaged spouse needs assistance to
adjust to the economic consequences of a divorce, legal
separation or other proceeding where spousal support may be
awarded, such as a petition for an order of protection.

(2) Transitional alimony shall be nonmodifiable unless:

(A) The parties otherwise agree in an agreement incorporated
into the initial decree of divorce or legal separation, or order
of protection;

(B) The court otherwise orders in the initial decree of divorce,
legal separation or order of protection; or

(C) The alimony recipient lives with a third person . . . .

                                 15
              (3) Transitional alimony shall terminate upon the death of the
              recipient. Transitional alimony shall also terminate upon the
              death of the payor, unless otherwise specifically stated in the
              decree.

Tenn. Code Ann. § 36-5-121.

        The trial court did not make specific findings regarding whether wife is in need of
rehabilitation, or whether rehabilitation is feasible. It did find that “wife is well educated
and trained,” but that in order to get recertified as a teacher, “wife would have to go back
to school for two years, which is not a viable option at this time.” The trial court further
found that “it would not be practical for wife to get any other job or to go back to school
because she’s still responsible for the minor children,” and “wife is earning just about as
much as she could make outside the home with the time available.” The court stated it
was awarding her spousal support “to allow her time to get on her feet.” Furthermore, the
award was for a determinate time, and the trial court stated that it would be “non-
modifiable” ‒ both characteristics of an award of transitional, not rehabilitative, alimony.
We believe the trial court unintentionally referred to the spousal support award as
rehabilitative support. In any event, we hold that the evidence preponderates in favor of
an award of transitional support rather than rehabilitative support. Under the
circumstances and considering the applicable statutory factors, we hold that an award of
transitional alimony is appropriate in this case.

       Wife argues that the trial court erred in refusing to order husband to pay her
attorney’s fees and asks for an award of fees on appeal. The trial court found that each
party had sufficient resources to pay his or her own attorney’s fees. The evidence does
not preponderate against this decision. Exercising our discretion, we likewise hold that
the parties will be responsible for their own attorney’s fees on appeal.

                                             IV.

        The judgment of the trial court is modified to reflect an award of transitional,
rather than rehabilitative, alimony. The judgment is in all other respects affirmed. Costs
on appeal are assessed to the appellant, Jamie Don Slocum. The case is remanded to the
trial court for enforcement of the judgment as modified, and for collection of costs
assessed below.


                                           _______________________________
                                           CHARLES D. SUSANO, JR., JUDGE

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