               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                               October 11, 2011 Session

      KIMBERLY ANNE CHAVEZ v. JAMES ALBERT CHAVEZ, JR.

              Appeal from the Circuit Court for Montgomery County
              No. MCCCCVDV081015         John H. Gasaway III, Judge


               No. M2010-02123-COA-R3-CV - Filed January 5, 2012


Wife sought a divorce and Husband counterclaimed for a divorce. The trial court granted the
divorce to both parties. Wife was designated the primary residential parent and was awarded
transitional alimony and alimony in solido. Husband appeals. Finding no abuse of
discretion, we affirm.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and F RANK G. C LEMENT, J R., J., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, James Albert Chavez, Jr.

David Scott Parsley and Joshua G. Strickland, Nashville, Tennessee, for the appellee,
Kimberly Anne Chavez.

                                        OPINION

        James Albert Chavez, Jr. (“Husband”) and Kimberly Ann Chavez (“Wife”) married
on June 2, 1996. They had two children, a daughter and a son. Wife filed for divorce in
September 2008, and Husband counterclaimed for divorce. Both alleged irreconcilable
differences and inappropriate marital conduct. In June 2010, Wife amended her complaint
to allege adultery. Husband admitted being guilty of adultery.

      The case was tried over two days in June and July 2010. Finding that Husband
“engaged in inappropriate marital conduct by developing and fostering a relationship with
another woman,” and that Wife “engaged in inappropriate marital conduct by engaging in
alcohol and drug abuse,” the trial court granted the divorce to both parties. Wife was
designated as the primary residential parent. The marital home was ordered sold with the
proceeds going to Wife.1 The parties were awarded their separate retirement accounts, and
the marital property and debts were divided. The court ordered Husband to pay transitional
alimony of $1,800 per month for 48 months and alimony in solido of $90,000 over six years.
Wife was also awarded $20,000 in attorney fees. Husband was ordered to pay $1,653 per
month in child support. Husband appealed the designation of Wife as primary residential
parent, the allocation of parenting time and the alimony awards.

                                       S TANDARD OF R EVIEW

        The trial court’s findings of fact are reviewed de novo by this court with a
presumption of correctness. Tenn. R. App. P. 13(d). Matters of child custody and visitation
generally are within the broad discretion of the trial court. Eldridge v. Eldridge, 42 S.W.3d
82, 85 (Tenn. 2001). Similarly, “trial courts have broad discretion to determine whether
spousal support is needed and, if so, the nature, amount, and duration of the award.”
Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). Consequently, the abuse of
discretion standard is applied to such decisions. Id. “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.” Id.

                                              A NALYSIS

       Husband argues that he should have been designated the primary residential parent
and that his parenting time should have been 50-50 with Wife. The trial court went to great
lengths to list what considerations went into its ruling:

        Pursuant to the previous order of this Court, the parties exercised parenting
        time with their children on a week-on-week-off basis, for the past year. The
        Court heard evidence from both parties as to why each thinks that it is
        appropriate or not appropriate to continue this arrangement. The Court has
        also taken into consideration the testimony of Marilyn Drake Chavez [the
        parties’ daughter] in reaching its conclusion as to what is in the best interest
        of the children. The Court is mandated under T. C. A. § 36-6-106 to consider
        a number of factors in determining what is in the best interest of each child.
        The Court has considered the love, affection, and emotional ties existing
        between the parents and their children; the disposition of each parent to


       1
         The testimony on the equity in the home conflicted. Since Husband argued that the home might be
sold for a loss, the court ordered that any loss on the sale of the home would be suffered equally by the
parties.

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       provide each child with food, clothing, medical care, education and other
       necessary care; and the degree to which a parent has been the primary care
       giver. The Court has considered the importance of continuity in the children’s
       lives and the length of time they have lived in a stable and satisfactory
       environment. The Court has considered the stability of the family unit of the
       parents, the mental and physical health of the parents, the home, school and
       community records of the children to the extent it has been made known to the
       Court, and the reasonable preference of Marilyn Drake who is in excess of 12
       years of age. The Court finds there is no physical or emotional abuse to either
       of the children. Further, the Court has considered the character and behavior
       of Stephanie Field, who is a person who frequents the home of Husband and
       vice versa, to the extent that she has or will in the near future, and likely for
       some time, have interactions with each child. The Court has considered each
       parent’s past and potential for future performance of parenting responsibilities,
       including the willingness and ability of each of the parents to facilitate and
       encourage a close and continuing parent/child relationship between the child
       and the parent consistent with the best interest of the child. The Court has
       considered the history of the parenting time that each of the parents have had
       with the children in the last year or so pursuant to the Court’s temporary order.

        There is little doubt that the parents were fairly equal. The factors that tipped the
scales in Wife’s favor, as far as being the primary residential parent and having more time
with the children, were Husband’s job and Marilyn’s testimony. Husband is the president
and CEO of the Clarksville-Montgomery County Economic Development Council. The
travel demands arising from his job are considerable. The trial court found that “he has,
based on the testimony, engaged in many trips to many places and it has adversely affected
his ability to spend the parenting time that he was awarded by the Court on a timely basis.”
While Wife has a job that also requires travel, the trial court found that the time Wife “has
missed with the children has been minimal compared to the time Husband has missed with
the children.”

       Furthermore, the trial court found:

       that it’s not in their [the children’s] best interest to go a week and a week. It
       is too inconvenient, particularly for Mary [Marilyn] Drake, because she is 13
       and involved in dance . . . . This way the parenting time is not as disruptive as
       it has been and that’s the Court’s goal, and finds that it’s in the best interest of
       each child.




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        I have thought long and hard about whether to try to structure some way for
        Mr. Chavez to make up days that he misses because of the demands of his
        employment, and the Court believes that it is simply too difficult, if not
        impossible to do that.

       We have reviewed the record and find that the trial court’s findings are supported by
the preponderance of the evidence. The trial court’s decisions regarding who would be the
primary residential parent and parenting time are not an abuse of discretion. We, therefore,
affirm the trial court’s decisions on these matters.

       Husband challenges the trial court’s award of transitional alimony of $1,800 per
month for 48 months. “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 divorce . . . .” Tenn. Code Ann. § 36-5-121(g)(1).
The trial court expressly found that Wife did not need rehabilitative alimony.2 This finding
indicates that the trial court determined she already possessed the necessary education or
training3 to achieve the appropriate standard of living. However, by finding that she was
“economically disadvantaged” and in need of “some assistance to adjust to the economic
consequences of this divorce,” the trial court concluded that she could not remain in
Clarksville and achieve the desired standard of living, at least not right away.4

       Recently, our Supreme Court has reiterated that “two persons living separately incur
more expenses than two persons living together. Thus, in most divorce cases it is unlikely
that both parties will be able to maintain their pre-divorce lifestyle once the proceedings are
concluded.” Gonsewski v. Gonsewski, 350 S.W.3d at 113 (quoting Kinard v. Kinard, 986
S.W.2d 220, 234 (Tenn. Ct. App.1998)). We must also be mindful of the legislature’s
determination that:


        2
            According to Tenn. Code Ann. § 36-5-121(e)(1):

        [t]o 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 spouse, considering the
        relevant statutory factors and the equities between the parties.


        3
          The trial court observed that Wife is a college graduate with a marketing degree and that she “is as
talented as I’ve seen in a while. She is well educated, she is articulate, she is smart, and she has a work
history that puts her in administrative roles.”
        4
            The trial court noted, “she is not in Atlanta; she is in Clarksville.”

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       where one (1) spouse suffers economic detriment for the benefit of the
       marriage, the general assembly finds that the economically disadvantaged
       spouse’s standard of living after the divorce should 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 spouse, considering the
       relevant statutory factors and the equities between the parties.

Tenn. Code Ann. § 36-5-121(c)(2). It is clear from the language and context of Tenn. Code
Ann. § 36-5-121(c) & (d) that the economic disadvantage that triggers a support obligation
is a disadvantage relative to the other spouse.

       Tenn. Code Ann. § 36-5-121(i) instructs the court to consider all relevant factors in
determining whether spousal support is appropriate and in determining the nature, amount,
length of term, and manner of payment, including the following:

       (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;



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        (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.

The single most important consideration for the court in awarding alimony is the need of the
disadvantaged spouse seeking support, followed by the ability of the obligor spouse to pay
support. Oakes v. Oakes, 235 S.W.3d 152, 160 (Tenn. Ct. App. 2007).

        Husband makes over four times the income of Wife. The economic disadvantage is
undeniable.5 While it may not be possible for her to maintain her pre-divorce lifestyle, we
are instructed by the legislature to order a division of assets and/or a level of support that
provides Wife with a standard of living after the divorce that is “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 spouse.” Tenn. Code Ann. § 36-5-121(c)(2). In light
of the evidence in the record, the trial court’s findings and the statutory factors and
requirements, we cannot say that the trial court abused its discretion in ordering the
transitional alimony.

        As alimony in solido, the trial court ordered Husband to pay Wife $90,000 in $15,000
installments on August 1 of each year from 2011 through 2016, $20,000 of Wife’s attorney
fees within 120 days, and $4,000 for Wife’s private investigator fees within 120 days.
Husband’s basic argument against these awards is that they are excessive and unnecessary.
Again, in light of the evidence in the record, the trial court’s findings, including the relative
economic disadvantage of Wife, and the statutory factors and requirements, we cannot say
that the trial court abused its discretion in ordering these amounts of alimony in solido.




        5
        It is also clear that Wife suffered this “economic detriment for the benefit of the marriage,” Tenn.
Code Ann. § 36-5-121(c)(2), since she testified that she gave up a good job in Georgia “[s]o that my husband
could put his career first and move here for a better life for our family.”

                                                    -6-
       Wife suggests that she should have received more alimony. We respectfully decline
to so order and find that the trial court did not abuse its discretion in not ordering more
support. Furthermore, we decline to award Wife attorney fees for this appeal.

      Costs of appeal are assessed against Husband for which execution may issue if
necessary.

                                                     ______________________________
                                                          ANDY D. BENNETT, JUDGE




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