                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    January 8, 2003 Session

                 HAZEL ANN EDDE v. GLADYS DALTON EDDE

                     Appeal from the Circuit Court for Davidson County
                         No. 00D-2337     Muriel Robinson, Judge



                      No. M2002-01204-COA-R3-CV - Filed June 3, 2003


After a thirty-six year marriage, Wife filed for divorce on the grounds of irreconcilable differences,
inappropriate marital conduct, and adultery. The trial court granted the divorce to Wife, divided the
marital property, and awarded Wife alimony in futuro in the amount of $425 per month. Husband
appeals. Because the evidence does not preponderate against the trial court’s decision, we affirm
the decision of the trial court.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and DON R. ASH , SP . J., joined.

Donald Arkovitz, James R. Tomkins, Nashville, Tennessee, for the appellant, Gladys Dalton Edde.

L.G. Burnett, Jr., Nashville, Tennessee, for the appellee, Hazel Ann Edde.

                                             OPINION

        Hazel Ann Edde (“Wife”) and Gladys Dalton Edde (“Husband”) were married on June 5,
1965. After thirty-six years of marriage, when Wife was 55 years old and Husband was 61, Wife
filed for divorce on the grounds of irreconcilable differences, inappropriate marital conduct, and
adultery. At the conclusion of the trial, the trial court held:

       Based on the testimony heard and the witnesses presented, Mrs. Edde has proved her
       case against Mr. Edde, and the Court finds him guilty of inappropriate marital
       conduct and guilty of adultery. The Court finds that Mr. Edde is not a credible
       witness. Therefore the Court awards a divorce to Mrs. Edde on grounds of
       inappropriate marital conduct and adultery, having observed the witnesses’s
       demeanor and on the proof presented to the court.
       As part of the divorce, the trial court made a distribution of the parties’ property by awarding
each party the personal and household items in their respective possessions and dividing the marital
residence, various pension and retirement benefits, and Husband’s workers’ compensation
settlement.

        The trial court awarded to Wife the marital residence and its contents (with the exception of
the items Wife agreed Husband could have), valued at $88,000, her retirement accounts in the
amount of $16,000, her Christmas account in the amount of $200, one-half of Husband’s pension
plan, half of the Primelite Variable Annuity and $3,000 of Husband’s workers’ compensation
judgment.1 The trial court awarded Husband his ENCO profit sharing, his IRA valued at $600, one-
half of the pension plan, half of the Primelite Variable Annuity, and the remainder of his workers’
compensation judgment, $30,970.91. The parties had no debts to allocate.

       The trial court then ordered Husband to pay alimony in futuro in the amount of $425 per
month, stating:

         The Court finds Mr. Edde has the ability to work, even though he says he doesn’t; by
         his own testimony he does. The Court finds Mr. Edde is just conveniently not
         working for this divorce and finds Mr. Edde does have sufficient assets to cover this
         alimony if he decides not to work. . . . It will be paid at the rate of $98.08 per week.

       Husband was also ordered to pay Wife’s attorney’s fees in the amount of $6,510. Husband
appeals, raising only the trial court’s award of alimony in futuro to Wife.

                                               I. Spousal Support

       While recognizing the discretion afforded to the trial court in making the decision to award
alimony, Husband objects to the trial court’s award of alimony in futuro to Wife because, he argues,
Wife does not have the need for the alimony and, even if this court determines that Wife does have
the need for the alimony, he does not have the ability to pay.

        Trial courts have broad discretion to determine whether spousal support is needed and, if so,
its nature, amount and duration. Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001). Appellate
courts are generally disinclined to second-guess a trial court’s spousal support decision unless it is
not supported by the evidence or is contrary to public policies reflected in applicable statutes. Bogan
v. Bogan, 60 S.W.3d 721, 733 (Tenn. 2001); Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct. App.
1998); Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct. App. 1994). Our role is to determine
whether the award reflects a proper application of the relevant legal principles and that it is not
clearly unreasonable. Bogan, 60 S.W.3d at 733. When the trial court has set forth its factual
findings in the record, we will presume the correctness of those findings so long as the evidence does


         1
           W hile the workers’ compensation settlement does not appear in the technical record, the transcript indicates
that the parties stipulated to the amount o f the judgment as $3 3,97 0.91 .

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not preponderate against them. Tenn. R. App. P. 13(d); Bogan, 60 S.W.3d at 733; Crabtree v.
Crabtree, 16 S.W.3d 356, 360 (Tenn.2000).

         Alimony or spousal support is authorized by statute, Tenn. Code Ann. § 36-5-101(a)(1),
which gives courts discretion to order “suitable support and maintenance of either spouse by the
other spouse . . . according to the nature of the case and the circumstances of the parties. . . .” There
are no hard and fast rules for spousal support decisions; such determinations require a careful
balancing of the relevant factors; and the determinations hinge on the unique facts of each case.
Robertson v. Robertson, 76 S.W.3d 337, 338 (Tenn. 2002); Watters v. Watters, 22 S.W.3d 817, 821
(Tenn. Ct. App. 1999); Anderton v. Anderton, 988 S .W.2d 675, 682-83 (Tenn. Ct. App. 1998). In
determining whether to award support and the nature, amount and length of such support, the court
is to consider all relevant factors, including those enumerated in Tenn. Code Ann. § 36-5-101(d)(1).2

         Among the factors to be considered by the courts in making spousal support decisions, the
two considered to be the most important are the disadvantaged spouse’s need and the obligor
spouse’s ability to pay. Robertson, 76 S.W.3d at 342; Bogan, 60 S.W.3d at 730; Manis v. Manis,
49 S.W.3d 295, 304 (Tenn. Ct. App. 2001). Of these two factors, the disadvantaged spouse’s need
is the threshold consideration and the “single most important factor.” Aaron v. Aaron, 909 S.W.2d
408, 410 (Tenn.1995) (quoting Cranford v. Cranford, 772 S.W.2d 48, 50) (Tenn. Ct. App.1989)).
However, the other spouse’s ability to pay is also to be considered. Id.; Koja v. Koja, 42 S.W.3d 94
(Tenn. Ct. App. 2000).


        2
            The factors the court must consid er in setting the alimo ny obligation are:

        (A) The relative earning capacity, obligations, needs and financial resources of each party, including
        incom e from pension, profit sharing or retirement plans and all other sources;
        (B) The relative education and training of each party, the ability and oppo rtunity of each pa rty to
        secure such education and training, and the necessity of a party to secure further education and training
        to imp rove such p arty’s earning cap acity to a reasonable level;
        (C) T he duration o f the marriage;
        (D) The age and m ental co ndition 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 pa rty will be cu stodian of a m inor ch ild of the marriage;
        (G) The separate assets of ea ch pa rty, both real and persona l, tangible and intangible;
        (H) The pro visions m ade with rega rd to the marital property as defined in §§ 36-4 -121 ;
        (I) T he stand ard o f living of the p arties established during the marriage;
        (J) The exten t to which each party ha s mad e such tangible and intangible contribution s to the marriage
        as monetary and home maker contributio ns, and tangible and intangible contribution s by a party to the
        education, training or increa sed earning pow er of the other p arty;
        (K) The relative fault of the parties in cases where the court, in its discretion, deems it ap propriate to
        do so; and
        (L) Such other factors, including the tax consequences to each party, as are necessary to consider the
        equities between the parties.

Tenn. Cod e Ann. § 36-5-101(d)(1 ).

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        When there is economic disadvantage between divorcing parties, spousal support is
appropriate. However, the legislature has expressed a preference for rehabilitative alimony over
long-term, open-ended alimony in futuro. Tenn. Code Ann. § 36-5-101(d)(1); Robertson, 76 S.W.3d
at 339-40; Burlew, 40 S.W.3d at 470; Crabtree, 16 S.W.3d at 358. When granting a divorce, a court
may grant an order for the payment of spousal support on a long-term basis or until the death or
remarriage of the recipient spouse if there is relative economic disadvantage between the spouses
and rehabilitation is not feasible. Tenn. Code Ann. § 36-5-101(d)(1). Where, considering all the
relevant factors, rehabilitation is not possible, the courts should not refrain from awarding long-term
support when that support is appropriate under the statutory factors. Robertson, 76 S.W.3d at 341-
42. The statutory preference for rehabilitative support does not entirely displace other forms of
support. Id.; Anderton, 988 S.W.2d at 682. The purpose of alimony in futuro is to provide financial
support to a spouse who cannot be rehabilitated. Burlew, 40 S.W.3d at 470-71.

        In determining whether a disadvantaged spouse can be rehabilitated with short-term support,
the court is to consider “every relevant factor.” Robertson, 76 S.W.3d at 340. Neither the standard
of living the parties enjoyed during the marriage nor the income or earning potential of the other
spouse can be used as the sole or determinative factor. Id.; Crabtree, 16 S.W.3d at 359.

        Husband does not directly challenge the trial court’s implicit finding that rehabilitation of
Wife was not feasible. In the instant case, the proof at trial showed that Wife has worked outside
the home only since 1986 and is currently employed as a teacher’s aide, earning approximately
$16,000 per year. Wife argues that her income has peaked, with little expectation of increases
beyond cost-of-living raises. She entered her current profession after the parties’ children were
grown and there is little likelihood, based on her age, education, and experience that she would be
able to start a new career with higher earning capacity. We agree with Wife.

        Husband does, however, make arguments that indicate that there is no real economic
disadvantage between the parties, citing the award to Wife of over $107,000 in unencumbered assets
and one half of Husband’s pension that she will begin to collect when Husband reaches 65.3 In
addition, Husband points out his lack of education, having completed only the third grade, his age,
and his considerable medical problems which limit his ability to work. He asserts that although he
may have had an earning capacity in the past of $30,000 per year, he is now unemployed and is able
to perform only occasional side jobs. His argument is summed up by his statement that Wife does
not have a need for alimony and, even if she does, he simply does not have the ability to pay.

        Among the statutory factors to be considered in deciding whether to award alimony are: the
relative earning capacity, obligations, needs, and financial resources of each party; the relative
education and training of each party; the ability and opportunity and necessity of each party to secure
such education and training in order to improve such party’s earning capacity to a reasonable level;
and the assets of each party, whether they be separate assets or marital property awarded in the



       3
           The amo unt of that benefit will be $131 per mo nth.

                                                          -4-
divorce. Tenn. Code Ann. § 36-5-101(d)(1). These factors embody the concepts of need and ability
to pay.

        Husband has a limited education, but was consistently employed as a heavy equipment
mechanic until he sustained a work related injury which resulted in an impairment to his body in the
amount of 10% to the body as a whole. Husband’s income ranged from $34,000 to $35,000 a year
in the past. More recently, after other health problems, Husband was employed sporadically, earning
at most approximately $600 per week.

        As a mechanic, Husband had worked on many kinds of engines, including truck engines,
often as an independent contractor. Husband admitted in his interrogatories that he was able to earn
$30 per hour and to work about 20 hours per week. At trial, however, he testified that he had not
been able to regularly find that much work per week and, more recently, had been unable to find any
work he was capable of performing. In contradiction, there was testimony from witnesses who saw
Husband working on vehicles a few months before trial.

        Wife’s income and expense statement indicates net take home monthly income in the amount
of $1,043. Wife lists her expenses as health insurance, mortgage/rent, water, electric, phone, gas,
car operation, car insurance, food, clothing, medical, dental, laundry, beauty shop, and home
maintenance in the amount of $1,307. Thus, Wife claimed a monthly shortfall of $263 per month.
Wife listed expenses in the amount of $105 for rent/mortgage, yet, as a result of the divorce, Wife
was awarded the marital residence valued at $88,000, which is unencumbered by a mortgage.
However, the instructions for the Rent/Mortgage item on the form say “including taxes and
insurance.” The trial court awarded Wife more than the shortfall listed on the form. In her brief,
Wife justifies the amount of alimony awarded as making up for home and auto repairs previously
made by her husband.


         The evidence does not preponderate against the trial court’s implicit findings that Wife is
economically disadvantaged and that her rehabilitation is not feasible. Based upon all the relevant
factors, including the economic factors outlined above and the duration of the marriage, we affirm
the trial court’s determination that Wife is entitled to alimony in futuro. In addition, the evidence
does not preponderate against the trial court’s explicit finding that Husband is able to generate more
income than he admits and is able to pay some alimony.

       With regard to Wife’s need, we note that the parties were frugal during the marriage, and
Wife’s expense statement reflects that same frugality. She testified that the statement reflected what
was needed absent extraordinary circumstances, like something needing major repair, and gave
examples of such extraordinary expenses she had recently incurred. We find nothing unreasonable
about Wife’s expenses or her need for more than minimum monthly expenses in case of unexpected
problems. The trial court acted within its discretion in setting the amount of the alimony based upon
the proof at trial.



                                                 -5-
       We affirm the trial court’s award of alimony and remand the case for any further proceedings
which may be necessary consistent with this opinion. Costs of the appeal are taxed to appellant, Mr.
Gladys Dalton Edde.




                                                      ____________________________________
                                                      PATRICIA J. COTTRELL, JUDGE




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