                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON


ANN ELIZABETH DUDENHOEFFER,   )
                              )
         Plaintiff/Appellee,  ) Madison Chancery No. 49454
                              )
VS.                           ) Appeal No. 02A01-9607-CH-00160
                              )
GEORGE DANIEL DUDENHOEFFER, )
                              )
         Defendant/Appellant. )


         APPEAL FROM THE CHANCERY COURT OF MADISON COUNTY
                       AT JACKSON, TENNESSEE
              THE HONORABLE JOE C. MORRIS, CHANCELLOR


                                                            FILED
                                                               July 2, 1997

JOHN B. LINK, III                                           Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
Nashville, Tennessee
Attorney for Appellant

JAMES F. BUTLER
SPRAGINS, BARNETT, COBB & BUTLER
Jackson, Tennessee
Attorney for Appellee




AFFIRMED




                                                         ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.


      In this action for separate maintenance, the trial court awarded Ann Elizabeth
Dudenhoeffer (“Wife”) a decree of separate maintenance and dismissed George Daniel

Dudenhoeffer’s (“Husband”) counter-complaint for divorce. The trial court ordered Husband

to maintain Wife as an insured on his medical insurance policy until Wife reaches age

sixty-five and ordered Husband to maintain his three preexisting life insurance policies

designating Wife as the sole irrevocable beneficiary. Wife was awarded the following: the

marital residence, an automobile, Wife’s IRA account, Husband’s IRA account, one-half

of Husband’s retirement benefits, the remaining balance of Husband’s 401-K account, a

certificate of deposit, eighty-eight shares of Tenneco stock, the proceeds from a savings

account, all savings bonds in Wife’s possession, two burial plots, an annuity, and the

parties’ jointly owned personal property and household goods which Wife had in her

possession. Husband was awarded the personal property which he had in his possession,

a truck, a bass boat, a motor, a trailer, boating accessories, and proceeds previously

withdrawn by him from his 401-K account. The trial court awarded Wife $6,638.50 as

alimony in solido to aid Wife in paying her attorney fees and alimony in futuro in the

following amounts:

               $2,000.00 per month beginning 10/1/95 and ending 12/31/95;
               $1,800.00 per month beginning 1/1/96 and ending 12/31/96;
               $1,500.00 per month beginning 1/1/97 and ending 12/31/98;
               $1,200.00 per month beginning 1/1/99 and ending 9/5/2001,
               Wife’s sixty-fifth birthday;
               and $600.00 per month from 9/2001 until Wife’s death or
               remarriage.

Husband appeals the decision of the trial court arguing that the trial court erred in awarding

Wife alimony in futuro instead of rehabilitative alimony and in awarding Wife $6,638.50 as

alimony in solido. For the reasons stated hereafter, we affirm the judgment of the trial

court.



                                          FACTS



         After forty-one years of marriage, Husband left Wife on March 6, 1994 for another

woman. Wife was fifty-nine years of age at the time of trial, and Husband was age fifty-

eight.




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       With the exception of brief intervals, Wife was employed outside the home

throughout the entire marriage. Having only an eleventh grade education, Wife’s jobs

consisted primarily of receptionist and secretarial-type work. In 1959, Wife worked for the

Case Company for six to eight months on a part-time basis while Husband was engaged

in military service. In March 1962, Wife began working for Sears-Roebuck Company

(“Sears”). Wife remained employed with Sears until October 1980. After leaving her

employment with Sears, Wife went to work for Husband’s newly opened business, Halls

Tractor Company, whereupon Wife worked on a full time basis and was not paid a salary.

Wife worked for Halls Tractor Company until it ceased to exist in July 1982. Wife’s

following four jobs consisted of work as an office receptionist for various professionals in

the community.



       Having an eighth grade education, Husband worked as a mechanic and as a

salesman. Due to his position as a salesman, Husband’s job required him to move

frequently from place to place during the first part of the parties’ marriage. Consequently,

Wife made the necessary arrangements for the parties’ moves and organized their new

homes once the moves were completed.



       Husband traveled out of town throughout the week and on many weekends due to

his schedule as a salesman. Wife, therefore, maintained the home during the marriage.

Wife decorated the home, mowed the lawn, planted flowers and shrubs, painted, prepared

meals, laundered and pressed clothing, helped Husband with his paperwork, arranged

appointments for Husband, and ran various errands for Husband. Wife also entertained

Husband’s family, friends and business associates.



       Wife ceased working at the age of fifty-four and considers herself retired from

employment outside the home. Suffering from rheumatoid arthritis, Wife testified that her

arthritic condition affects her right knee, hip, elbows, forearm and wrists. Wife testified that

her present living expenses total approximately $2,467.32 per month.




                                               3
        The year preceding trial, Husband’s gross income totaled $56,586.00. Husband

earned $54,798.64 from his work at the Gehl Company and received $404.15 per month
                                                                                          1
in retirement benefits from his former employer, Case Company.                                Husband had also

accumulated $39,120.38 from his 401-K plan with the Gehl Company.2



        At age sixty-five, Husband will receive $1,200.00 per month in Social Security

benefits, and Wife will receive $600.00 per month in Social Security benefits at age sixty-

five.



        Husband admitted to having adulterous affairs throughout the course of the

marriage. In 1978, Husband engaged in an affair with a certain woman whom Wife later

discovered. Husband later moved in with this other woman for a three week period. Upon

apologizing to Wife and promising that he would never again engage in an affair, Husband

moved back home with Wife.



        After moving back home with Wife, Husband continued his affair with the other

woman. Husband continued contacting her, spent $40,000.00 on a farm for her, bought

an automobile for her, paid her automobile insurance on a regular basis, and paid a

moving van to move her possessions from Memphis, Tennessee to Pittsburgh,

Pennsylvania. Husband twice posted a criminal bond for the other woman, although he

testified that she reimbursed him for the expense of posting the bonds. Upon leaving Wife

on March 6, 1994, Husband moved in with the other woman.



                                                        LAW



        The issues before this Court are as follow:

        1) Whether the trial court erred in awarding Wife alimony in futuro in the following



        1
          Husband worked twenty-four years for the Case Com pany and currently rec eives $40 4.15 per m onth
in retirement benefits. Husband’s Case Company retirement benefits accrued entirely within the duration of
the parties’ marriage.

        2
            Hu sba nd’s 401 -K plan increas es a t a rate of ap prox imately $3,000 .00 per year.

                                                          4
amounts: $2,000.00 per month beginning October 1, 1995 and ending December 31,

1995; $1,800.00 per month beginning January 1, 1996 and ending December 31, 1996;

$1,500.00 per month beginning January 1, 1997 and ending December 31, 1998;

$1,200.00 per month beginning January 1, 1999 and ending on Wife’s sixty-fifth birthday,

September 5, 2001; and $600.00 per month from September 2001 until Wife’s death or

remarriage; and

       2) Whether the trial court erred in awarding Wife alimony in solido in the amount of

$6,638.50 in order to aid Wife in paying her attorney fees incurred in this matter.



       Tenn. Code Ann. § 36-5-101(d)(1) provides as follows:

              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 .

As noted by the supreme court in Self v. Self, 861 S.W.2d 360, 361 (Tenn. 1993), T.C.A.

§ 36-5-101(d)(1) reflects a clear legislative intent to allow an award for permanent alimony

only “when the court granting the divorce finds that economic rehabilitation is not feasible

and long-term support is necessary.” Thus, there must be a threshold determination by

the trial judge that rehabilitation of the economically disadvantaged spouse is not feasible

based upon consideration of all relevant factors. Kincaid v. Kincaid, 912 S.W.2d 140, 144

(Tenn. Ct. App. 1995).



       In determining whether the granting of an order for payment of support and

maintenance to a party is proper, 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;

                                              5
              (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 Sec. 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.

T.C.A. § 36-5-101(d)(1).



       Nonetheless, trial courts have broad discretion in determining whether to award

alimony and in determining the amount and duration of alimony. Aaron v. Aaron, 909

S.W.2d 408, 410 (Tenn. 1995); Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct. App.

1994); Loyd v. Loyd, 860 S.W.2d 409, 412 (Tenn. Ct. App. 1993); Houghland v.

Houghland, 844 S.W.2d 619, 621 (Tenn. Ct. App. 1992); Lancaster v. Lancaster, 671

S.W.2d 501, 503 (Tenn. Ct. App. 1984). As a general rule, we are disinclined to alter a

trial court’s award of alimony unless it is not supported by the evidence or is contrary to the

public policy embodied in the applicable statutes. Brown, 913 S.W.2d at 169; Gilliam v.

Gilliam, 776 S.W.2d 81, 86 (Tenn. Ct. App. 1988); Ingram v. Ingram, 721 S.W.2d 262, 264

(Tenn. Ct. App. 1986).



       The decision to award alimony is factually driven and requires a balancing of the

factors enumerated in T.C.A. § 36-5-101(d)(1). Denton v. Denton, 902 S.W.2d 930, 932

(Tenn. Ct. App. 1995); Loyd, 860 S.W.2d at 412. The need of the spouse to whom

alimony is awarded and the ability of the other to pay are two dominant factors to consider

when deciding a proper award of alimony. Kincaid, 912 S.W.2d at 144; Smith v. Smith,


                                              6
912 S.W.2d 155, 159 (Tenn. Ct. App. 1995); McCarty v. McCarty, 863 S.W.2d 716, 720

(Tenn. Ct. App. 1992); Loyd, 860 S.W.2d at 412; Gilliam, 776 S.W.2d at 86; Lancaster,

671 S.W.2d at 503. Moreover, the fault of a spouse in precipitating a divorce is also a

consideration when determining an alimony award. T.C.A. § 36-5-101(d)(1)(K); Gilliam,

776 S.W.2d at 86.



       A wife whose marriage has been shattered by her husband’s misconduct should not

be left in a financial condition inferior to her economic situation prior to the parties’ divorce.

Aaron, 909 S.W.2d at 410-11; Gilliam, 776 S.W.2d at 86; Shackleford v. Shackleford, 611

S.W.2d 598, 601 (Tenn. Ct. App. 1980). However, in recognizing the premise that a

divorce should not economically prejudice an innocent spouse, this idea must be tempered

by the statutory factors set forth in T.C.A. § 36-5-101(d)(1). Brown, 913 S.W.2d at 169-70.



       In the present case, upon consideration of Wife’s age, limited earning capacity,

physical condition, the infeasibility of Wife’s rehabilitation, the forty-one year duration of the

marriage, the tangible and intangible contributions Wife made during the marriage, and the

relative fault of Husband in precipitating this action for separate maintenance, we hold that

the trial court did not err in awarding Wife alimony in futuro in the aforementioned amounts.



       The awarding of attorney fees in a divorce proceeding is within the sound discretion

of the trial court, and this Court will not interfere with the trial court’s award unless the

evidence preponderates against such a decision. Houghland, 844 S.W.2d at 623; Storey

v. Storey, 835 S.W.2d 593, 597 (Tenn. Ct. App. 1992); McCarty, 863 S.W.2d at 722;

Batson v. Batson, 769 S.W.2d 849, 862 (Tenn. Ct. App. 1988); Lyon v. Lyon, 765 S.W.2d

759, 762-63 (Tenn. Ct. App. 1988); Crouch v. Crouch, 385 S.W.2d 288, 293 (Tenn. Ct.

App. 1964). Attorney fee awards in divorce actions are treated as alimony; thus, when

determining whether to award attorney fees, consideration should be given to the statutory

factors enumerated in T.C.A. § 36-5-101(d). Kincaid, 912 S.W.2d at 140; Storey, 835

S.W.2d at 598; Raskind v. Raskind, 325 S.W.2d 617, 625 (Tenn. Ct. App. 1959).




                                                7
       Trial courts have the discretion to make awards to help a spouse defray his or her

legal expenses in a divorce case. Fox v. Fox, 657 S.W.2d 747, 749 (Tenn. 1983); Loyd,

860 S.W.2d at 413. These awards are appropriate only when the spouse seeking them

lacks sufficient funds to pay for his or her legal expenses or would be required to deplete

his or her resources in order to pay these expenses. Brown, 913 S.W.2d at 170;

Houghland, 844 S.W.2d at 623; Ingram, 721 S.W.2d at 264; Harwell v. Harwell, 612

S.W.2d 182, 185 (Tenn. Ct. App. 1980).



       In the case at bar, based upon Wife’s age, limited earning capacity, limited

resources, physical condition, the forty-one year duration of the marriage, the tangible and

intangible contributions Wife made during the marriage, and the relative fault of Husband

in precipitating this action for separate maintenance, we do not find that the evidence

preponderates against the trial court decision to award Wife $6,638.50 as alimony in solido

in order to aid Wife in paying her attorney fees incurred in this matter.



       The judgment of the trial court is hereby affirmed. Costs on appeal are taxed to

Appellant for which execution may issue if necessary.



                                                        HIGHERS, J.
CONCUR:



FARMER, J.



LILLARD, J.




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