                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON

             VENESSA LYNN TOTTY v. MICHAEL ALAN TOTTY

                    An Appeal from the Circuit Court for Shelby County
                  No. 157141-5 R.D.; The Honorable Kay S. Robilio, Judge,



                    No. W1999-02426-COA-R3-CV - Decided May 2, 2000


This appeal involves a dispute regarding a final decree of divorce entered in the Shelby County
Circuit Court. The Husband appeals the trial court’s order claiming error in several aspects of the
decision, including the determination as to his alimony obligation.

Tenn.R.App.P. 3; Appeal as of right; Judgment of the Circuit Court Modified in Part; Vacated
in Part and Affirmed in Part

HIGHERS , J., delivered the opinion of the court, in which CRAWFORD , P.J., W.S., joined, and
FARMER , J., concurred separately.

               Vickie Hardy Jones, Memphis, for Appellant, Michael Alan Totty

       Carol Smith Katz, KATZ MALLORY & MILLER, Memphis, for Appellee, Venessa
       Lynn Totty

                                             OPINION

         Michael Totty appeals from a final decree of divorce entered in the Circuit Court of Shelby
County. For the reasons stated herein, we modify the trial court decision in part, vacate the decision
in part, and affirm in all other respects.

                                  Facts and Procedural History

       Michael Alan Totty (“Husband”) and Venessa Lynn Totty (“Wife”) were married in 1979.
The parties had one child during the marriage who was fifteen years old at the time this action arose.1
Wife filed a complaint for divorce on October 9, 1997, alleging irreconcilable differences and
Husband’s inappropriate marital conduct as grounds for the divorce. Husband filed an answer and
counter-complaint in which he sought a divorce on the same grounds alleged by Wife.


       1
         According to information contained in the record, the child is no longer a minor, having
turned eighteen on November 2, 1999.
        The facts most relevant to the present appeal pertain to the financial position of the respective
parties. Wife is a high school graduate and attended one semester of nursing school. She holds a
license to sell several types of insurance and, at the time these proceedings arose, was employed as
an insurance sales agent with Ron Meador Insurance. In this position, Wife is basically self-
employed. She deducts her business expenses from her gross income and pays both employee and
employer taxes. For 1998, Wife earned eight thousand one hundred dollars ($8,100) in her capacity
as an insurance agent. Husband, on the other hand, obtained a GED before entering the Marines.
His formal education was supplemented by mechanical training he received in the Marines. He is
currently employed by a concrete cutting company and earns forty five thousand dollars ($45,000)
per year. During their marriage, the parties amassed a sizable debt which ultimately led them to file
separate Chapter 7 bankruptcies.2

        The trial court entered the final decree of divorce on December 4, 1998. The trial court’s
order provided for the following: 1) Wife was awarded an absolute divorce on the grounds of
inappropriate marital conduct, 2) the parties were awarded joint custody of their child with Husband
having primary physical custody, 3) the parties, along with their child, were ordered to attend family
counseling to be paid for on a pro rata basis, 4) Wife was ordered to pay twenty one percent (21%)
of her net income as child support, 5) the parties were ordered to pay various health care expenses
for the minor child on a pro rata basis, 6) Wife was awarded nine hundred dollars ($900.00) per
month as alimony in futuro, said sum to be increased to one thousand two hundred dollars
($1,200.00) per month when the parties’ son graduated from high school or turned eighteen (18)
years old, and 7) Husband was ordered to pay three thousand five hundred dollars ($3,500.00) as
alimony in solido to pay Wife’s attorney fees.


                                          Law and Analysis

        We begin our analysis by noting that this case, and the relationship between the parties, can
be described as acrimonious, at best. The record indicates that the trial court entertained numerous
factual allegations and disputes. Rule 13(d) of the Tennessee Rules of Appellate Procedure governs
our review of the trial court’s factual determinations. Accordingly, we will presume that the trial
court’s findings of fact are correct, “unless the preponderance of the evidence is otherwise.”
T.R.A.P. 13(d).

         Husband argues that the trial court erred in: 1) awarding alimony in futuro, 2) the amount
awarded as alimony, 3) the basis for calculating Wife’s child support obligation, 4) requiring the
parties to pay uninsured medical expenses on a pro rata basis, 5) requiring the parties, including the
child, to attend family counseling, 6) awarding Wife $3,500.00 as alimony in solido for payment of
her attorney fees, and 7) declining to award Husband attorney fees expended in seeking child support


        2
        The bankruptcies discharged approximately sixty nine thousand dollars ($69,000) in credit
card debt.

                                                   2
from Wife. We will consider each of these issues in turn.3

                                              I. Alimony
        In his first issue, Husband appeals the trial court’s award of alimony in futuro in the amount
of one thousand two hundred dollars ($1,200.00) per month.4 In cases such as the present, we 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.
See Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct. App.1994); Ingram v. Ingram, 721 S.W.2d
262, 264 (Tenn. Ct. App.1986).

         The Tennessee Legislature has expressed a preference for rehabilitative alimony.
Specifically, T.C.A. § 36-5-101(d)(1)5 reflects a preference for temporary, rehabilitative spousal


       3
         The record in this case has been supplemented with a subsequent order of the trial court
which amended certain provisions of the final divorce decree. Pertinent to the present appeal, that
order provided that: 1) Wife was required to pay $225.00 per month in child support and 2) Wife
would be responsible for one-third (1/3) of all uninsured medical expenses with Husband being
responsible for the remaining two-thirds (2/3). This subsequent order cures the objections of
Husband insofar as it sets a definite obligation as to child support and uninsured medical expenses.
Therefore, we do not address those issues.
       4
         The $900 figure that also appears in the record is the amount of alimony Wife was to
receive until the parties minor child graduated from high school.
       5
           T.C.A. § 36-5-101(d)(1) provides:

                (d)(1) It is the intent of the general assembly that a spouse who is economically
       disadvantaged, relative to the other spouse, be rehabilitated whenever possible by the
       granting of an order for payment of rehabilitative, temporary support and maintenance.
       Where there is such relative economic disadvantage and rehabilitation is not feasible in
       consideration of all relevant factors, including those set out in this subsection, then the
       court may grant an order for payment of support and maintenance on a long-term basis
       or until the death or remarriage of the recipient except as otherwise provided in subdivision
       (a)(3). Rehabilitative support and maintenance is a separate class of spousal support as
       distinguished from alimony in solido and periodic alimony. 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

                                                  3
support, as opposed to long-term support. See Herrera v. Herrera, 944 S.W.2d 379, 387 (Tenn. Ct.
App. 1996); Wilson v. Moore, 929 S.W.2d 367, 375 (Tenn. Ct. App. 1996). The purpose of
rehabilitative support is to enable the disadvantaged spouse to acquire additional job skills,
education, or training that will enable him or her to be more self-sufficient. See Smith v. Smith, 912
S.W.2d 155, 160 (Tenn. Ct. App. 1995); Cranford v. Cranford, 772 S.W.2d 48, 51 (Tenn. Ct. App.
1989). This type of temporary support is advantageous because it allows the parties actually to close
the relationship. In contrast, alimony in futuro is long-term spousal support meant to provide
financial assistance to a disadvantaged spouse who is unable to achieve some degree of
self-sufficiency. See Loria v. Loria, 952 S.W.2d 836, 838 (Tenn. Ct. App. 1997). This type of
support has the obvious disadvantage of creating a continuing relationship between divorced parties.

       Husband points out that, in the present case, the trial court expressly found that Wife was
capable of being rehabilitated. He argues that this is the threshold question in determining whether
alimony in futuro is proper. In response, Wife does not really take issue with the question of whether
she is capable of being rehabilitated. Rather, she argues that there are two considerations in
determining whether an award of alimony in futuro is proper: 1) whether there is relative economic
disadvantage and, if so, 2) whether rehabilitation is feasible.


               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.



                                                  4
        While recognizing the legislative preference for rehabilitative alimony, the Tennessee
Supreme Court has noted that a court may grant alimony in futuro where rehabilitation is not
feasible. Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995); Self v. Self, 861 S.W.2d 360, 361
(Tenn. 1993); See also Tenn. Code Ann. § 36-5-101(d)(1). There is no doubt that Wife is
economically disadvantaged as compared to Husband. There also seems to be no dispute that Wife
is capable of being rehabilitated. Therefore, the dispositive question is whether it is feasible for
Wife to be rehabilitated. The trial court adopted the position, which Wife now advances, that
rehabilitation is not feasible because there is not a source of funds available that would allow her to
seek additional education or training.6 We do not, however, believe this to be the case and, therefore,
find the award of alimony in futuro to be erroneous.

        While we recognize the weight that is due the trial court’s alimony determination, we also
recognize the need to uphold the legislative preference regarding alimony awards and the public
policies that this preference promotes. Long-term spousal support is only appropriate where the
disadvantaged spouse is unable to achieve some degree of self-sufficiency. See Loria, 952 S.W.2d
at 838. We do not believe that to be the situation in the present case.

        Our review of the record, as well as a balancing of the factors contained in T.C.A. § 36-5-
101(d) leads us to conclude that rehabilitative alimony is warranted. At 38 years old, Wife is not
limited by her age. Additionally, neither her health nor her emotional state prevents her from
sustaining gainful employment. There are no minor children, so her ability to work outside the home
is not hindered. Wife relies upon Ford v. Ford, 952 S.W.2d 824 (Tenn. Ct. App. 1996) to support
her contention that the facts of the present case support the award of alimony in futuro. However,
Wife has attended nursing school, and she holds licenses to sell, and has been selling, insurance.
This is contrary to the facts in Ford, in which Ms. Ford had no formal training or skills and had never
held a job other than as a part-time office clerk.

        Certainly, rehabilitation will require Wife to make changes in her life and lifestyle. However,
rehabilitative alimony will allow her some financial stability while she undertakes to make those
changes. In short, we believe that rehabilitative alimony, in a sufficient amount for a sufficient
period of time, will allow Wife to meet her financial obligation while striving for self-sufficiency. 7


       6
         Although agreeing that Wife was capable of being rehabilitated, the trial court, in awarding
alimony in futuro stated, “a source of funds to be utilized by Plaintiff to further her education is not
available.”
       7
          Wife argues that she will have to obtain “long term vocational training in a new field of
endeavor in order to achieve an income level to support herself to a level relative to her standard of
living.” However, both parties will have to learn to adjust to a different standard of living. The
parties enjoyed a standard of living which was beyond their means, as exemplified by their individual
bankruptcies which were filed during the course of these proceedings. For Wife, the tangible effect
of this will be her need to improve her earning capacity. Rehabilitative alimony will allow her the
time to do so. Moreover, rehabilitative alimony will allow Wife to become self-sufficient, thereby

                                                   5
While there is no exact formula for determining the appropriate duration for rehabilitative alimony,
we must endeavor to strike a balance between the interests of both parties. In that regard, we believe
forty-eight (48) months is a sufficient period of time to allow Wife to improve her earning capacity.
This length of time will provide her with some measure of financial security, while allowing the
parties to move on with their individual lives.

        Having determined that the facts of this case warrant an award of rehabilitative alimony, we
turn our attention to the amount of the award. “The amount of alimony to be allowed in any case
is a matter for the discretion of the trial court in view of the particular circumstances." Ingram v.
Ingram, 721 S.W.2d 262, 264 (Tenn. Ct. App.1986). As stated by our supreme court in Aaron v.
Aaron, 909 S.W.2d 408 (Tenn. 1995), the real need of the spouse seeking the support is the single
most important factor. In addition to the need of the disadvantaged spouse, the courts most often
consider the ability of the obligor spouse to provide support. See Cranford v. Cranford, 772 S.W.2d
48, 50 (Tenn. Ct. App.1989).

        In the present case, the trial court obviously considered all the relevant factors in determining
the amount of alimony, and we will not disturb the court’s determination. The award of $1,200 per
month serves as a balance between the needs of Wife and the ability of Husband to pay. Therefore,
in accordance with the foregoing discussion, we modify the award of alimony in futuro to an award
of rehabilitative alimony in the amount of $1,200 per month for a period of 48 months.

                                       II. Family Counseling
        The trial court’s decree provided that “the parties and the minor child shall attend family
counseling...to improve the communication between the parties.” Husband argues that this aspect
of the decree exceeded the trial court’s authority. Wife, on the other hand, argues that the trial
court’s authority to order counseling derives from the state’s role as parens patrie.

        T.C.A. § 36-6-101(e)(1) provides some guidance on the present issue. That section states:
                In an action for dissolution of marriage involving minor children, or in a
        post-judgment proceeding involving minor children, if the court finds, on a case by
        case basis, that it would be in the best interest of the minor children, the court may
        on its own motion, or on the motion of either party, order the parties, excluding the
        minor children, to attend an educational seminar concerning the effects of the
        dissolution of marriage on the children. The program may be divided into sessions,
        which in the aggregate shall not exceed four (4) hours in duration. The program shall
        be educational in nature and not designed for individual therapy.

 Under the aforementioned statute, a trial court may order the parties, excluding the minor children,
to attend an educational seminar concerning the effects of the dissolution of the marriage on the


severing the ties between the parties. In light of the animosity that exists, we consider this to be a
desirable result and absolutely in line with the goal the legislature contemplated when expressing
a preference for rehabilitative alimony.

                                                   6
children. However, that section is inapplicable to the present case for several reasons. First, the
counseling in the present case appears to have been ordered for therapeutic reasons rather than
educational reasons and, contrary to the statute, included the minor child. Second, T.C.A. § 36-6-
101(e)(1) contemplates sessions of limited duration, specifically no more than four (4) hours in
duration. In the present case, no time limitation was imposed or, it appears, even contemplated.
Finally, and perhaps most importantly, T.C.A. § 36-6-101(e)(1) only applies where a minor child is
involved. In the present case, the parties’ child has reached the age of majority, thereby rendering
T.C.A. § 36-6-101(e)(1) completely inapplicable. Similarly, we find the authority cited by Wife to
be irrelevant to the present issue. Hence, we can discern no basis justifying the trial court’s decision
on this issue. Accordingly, we vacate that part of the final divorce decree which ordered the parties
to attend family counseling.

                                         III. Attorney’s Fees
        The final issue raised in this appeal relates to attorney fees. Husband alleges that the trial
court erred in: 1) awarding Wife $3,500 as alimony in solido for payment of her attorney fees and
2) declining to award him his attorney fees incurred in seeking child support from Wife.

        The decision to award attorney's fees lies within the sound discretion of the trial judge, see
Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995), and this court will not interfere with the trial
judge's decision unless the evidence preponderates against it. See Batson v. Batson, 769 S.W.2d
849, 862 (Tenn. Ct. App.1988). A party is entitled to attorney's fees when he or she lacks sufficient
funds to pay his or her legal expenses or would find it necessary to deplete other assets to do so. See
Brown v. Brown, 913 S.W.2d 163, 170 (Tenn. Ct. App.1994); Kincaid v. Kincaid, 912 S.W.2d 140,
144 (Tenn. Ct. App.1995). The record indicates that the amount the trial court awarded was
substantially less than the total amount of attorney fees owed by Wife. Considering the relative
financial position of the parties, we do not believe the evidence to preponderate against the trial court
decision awarding Wife $3,500 as alimony in solido and we, therefore, reject the argument that it
should be disturbed.

        Husband also claims that the trial court erred in failing to award him attorney fees incurred
in seeking a change of custody and child support. He cites to T.C.A. § 36-5-103(a)(2)(c) in support
of his claim that he was entitled to recover his attorney fees.8 However, that statutory authority is

        8
            That section provides:

               The plaintiff spouse may recover from the defendant spouse, and the
        spouse or other person to whom the custody of the child, or children, is awarded
        may recover from the other spouse reasonable attorney fees incurred in enforcing
        any decree for alimony and/or child support, or in regard to any suit or action
        concerning the adjudication of the custody or the change of custody of any child, or
        children, of the parties, both upon the original divorce hearing and at any subsequent
        hearing, which fees may be fixed and allowed by the court, before whom such action or
        proceeding is pending, in the discretion of such court.

                                                   7
permissive, as indicated by its use of the word “may.” Moreover, the statute clearly states that the
award is within the discretion of the trial court. Once again considering all relevant facts, including
the financial disparity between the parties, we find no abuse of that discretion in the present case.

                                             Conclusion
        For the foregoing reasons, we modify the trial court decision relating to the alimony award.
Additionally, we vacate the order of the trial court requiring the parties to attend family counseling.
In all other respects, we affirm the trial court decision. Costs of this appeal are taxed to Husband,
Michael Alan Totty, for which execution may issue if necessary.




(Emphasis added)



                                                  8
