                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                 OCTOBER 3, 2000 Session



              LINDA MAY TAYLOR v. JAMES ARNOLD TAYLOR

                      Appeal from the Circuit Court for Bradley County
                        No. V-99-388    Lawrence H. Puckett, Judge

                                  FILED NOVEMBER 17, 2000

                                 No. E2000-00476-COA-R3-CV


This appeal arises from a divorce in which the Trial Court awarded Linda May Taylor ("Wife"), age
58, alimony until she reaches age 65 or she retires, whichever occurs first. Wife was also awarded
the parties' home. The Trial Court granted James Arnold Taylor ("Husband"), age 61, his interest
in the marital home but ordered that Wife does not have to pay Husband for his interest in the marital
home until Wife reaches age 65. Husband appeals. We affirm.


       Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed; Case Remanded.


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J., and
CHARLES C. SUSANO, J. joined.

Randy Sellers, Cleveland, Tennessee, for the appellant, James Arnold Taylor.

Robert S. Thompson, Cleveland, Tennessee, for the appellee, Linda May Taylor.


                                             OPINION

                                            Background

               After a thirty-nine-year marriage, the Plaintiff, Linda May Taylor ("Wife"), was
awarded a divorce on the grounds of inappropriate marital conduct of the Defendant, James Arnold
Taylor ("Husband"). The parties have two adult children who no longer live with them. Wife, age
58 at the time of trial, has a high school diploma and provides childcare in her home for up to 50
hours per week. Wife also works part-time for four to five evenings per week as a floor cleaner.
Wife earns approximately $1,220 per month from her childcare job, and $540 per month from her
part-time employment. The record indicates that Husband did not want Wife working outside of the
home, which led to her self-employment in childcare beginning approximately thirty-five years ago.

                Husband has a high school diploma plus two years of college classes. At the time of
trial, Husband was 61 years old. For approximately 28 years, Husband has been employed as a
contract engineer. The nature of his work is such that he is an independent contractor who works
for a period of time at a job and moves on when that job is completed. As a result, he is
intermittently employed and his income level fluctuates. Over the relevant five-year period,
Husband's average income was $61,200 with a high of $100,000 in 1997, and a low of $22,000 in
1999. At the time of trial, Husband earned $45 per hour and had just completed a four-month stint
where he earned $14,000 per month, including overtime. Husband was scheduled to begin another
job where he anticipated earning $7,200 per month. The proof at trial also established that, in
addition to his hourly wages, Husband received a per diem for his living expenses in the amount of
$516 per month during his recent employment.

               The Trial Court found that the proof supported Wife's allegation of inappropriate
marital conduct. Wife testified that throughout their marriage, she has endured Husband's violent
temper and verbal abuse. The parties separated after a violent confrontation which occurred after
Husband learned that Wife had placed her inheritance in a separate savings account instead of
sharing the money with Husband. Thereafter, Husband threatened to kill Wife and physically
assaulted her. Wife testified that she had deposited her inheritance, approximately $58,000, in her
own account because the parties had no retirement savings.

                Wife testified that between her two jobs, she earns approximately $1,760 per month
in gross income. After deductions for taxes and health insurance, Wife nets $1,253 per month. Her
monthly expenses totaled $2,408 per month. Without assistance, Wife would have a deficit of
$1,155 per month. The Trial Court recognized that without alimony, Wife would not be able to meet
her monthly expenses. The Trial Court expressly found that due to Husband's greater earning
capacity, better health, and his fault, Wife is entitled to alimony in the amount of $1,200 per month
until age 65 or when she retires, whichever occurs first.

               With respect to the parties' marital property, the Trial Court essentially made a 50/50
distribution, awarding the house to Wife but giving Husband his net equity in the house in the
amount of $16,466. The Trial Court ordered that Wife does not have to pay Husband the $16,466
until the year 2006 which is when Wife reaches age 65. The Trial Court further provided that
Husband shall have a lien on the property in the amount of $16,466 drawing interest at the rate of
10% per annum until the $16,466 is paid by Wife to Husband. Further, the Trial Court provided that
if Husband fails to pay the $1,200 per month alimony, Wife is entitled to a set-off and the $16,466
owed to Husband shall be reduced by that amount. This award by the Trial Court enables Wife to
keep the house so that she has a place to live and can continue her childcare business from which she
earns the majority of her income. Meanwhile, Husband's interest is protected by his lien on the
property. The Trial Court's overall division of the parties' assets and liabilities resulted in an award
to Husband in the amount of $55,462 and an award to Wife in the amount of $54,964. Husband


                                                  -2-
appeals that portion of the Trial Court's decision which delays for seven years Wife's payment to
Husband of Husband's interest in the marital residence, and the award of $1,200 per month as
alimony for approximately seven years or until Wife retires.

                                              Discussion

                On appeal, Husband raises the following issues: 1) whether the Trial Court erred in
not ordering the parties' home sold; 2) whether the Trial Court erred in delaying Husband's receipt
of his net equity in the parties' home; and 3) whether the evidence preponderates against the Trial
Court's award of alimony to Wife until she reaches age 65 or she retires, whichever occurs first.
Wife does not dispute the Trial Court's decision and contends that it is supported by a preponderance
of the evidence.

                Our review is de novo upon the record, accompanied by a presumption of the
correctness of the findings of fact of the trial court, unless the preponderance of the evidence is
otherwise. Tenn. R. Civ. P. 13(d); Brooks v. Brooks, 992 S.W.2d 403, 404 (Tenn. 1999). As for
the Trial Court's conclusions of law, this Court will conduct a de novo review with no presumption
of correctness. See Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).

                 Courts have wide discretion when determining how to divide a marital estate in an
equitable manner. Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn. 1983). It is well-settled that the
court's goal in every divorce case is to "divide the parties' marital estate in a just and equitable
manner." King v. King, 986 S.W.2d 216, 219 (Tenn. Ct. App. 1998) (citations omitted). Moreover,
this Court has held that "[i]n the final analysis, the justness of a particular division of the marital
property . . . depends on its final results." Id. On appeal, we must consider the fairness of the overall
division of the marital estate in order to determine if the division was proper. See Brown v. Brown,
913 S.W.2d 163, 169 (Tenn. Ct. App. 1994).

              The Trial Court's exercise of discretion is guided by the factors listed in Tenn. Code
Ann. § 36-4-121(c), and by other factors made relevant by the facts of the particular case. Denton
v. Denton, 902 S.W.2d 930, 932 (Tenn. Ct. App. 1995). Tenn. Code Ann. § 36-4-121(c), provides:


                In making equitable division of marital property, the court shall
                consider all relevant factors including:

                (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-
               (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) The contribution of each party to the acquisition, preservation,
               appreciation or dissipation of the marital or separate property,
               including the contribution of a party to the marriage as a 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;

               (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; and

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

               In this case, we find no abuse of discretion in the Trial Court's decision to award the
parties' home to Wife rather than ordering the home be sold. As discussed, Wife conducts a
childcare business in the parties' home and has done so for many years. The proof established that
she earns approximately $1,220 month from this job. In contrast, she earns only $540 per month
from her part-time employment as a floor cleaner. Moreover, throughout their marriage, Husband
did not want Wife working outside of the home which left her few options for employment
opportunities. If the house was sold, the evidence showed that Wife would experience difficulty
maintaining her childcare business. Accordingly, we hold that the Trial Court did not err in
awarding the house to Wife instead of ordering that it be sold.

                 Similarly, Husband's argument that the Trial Court erred in its decision to delay his
receipt of his net equity in the parties' home also fails. Husband contends that Wife's award of liquid
assets enables her to pay Husband the $16,466, or alternatively, that Wife should pay this sum from
her inheritance. In light of the factors listed in Tenn. Code Ann. § 36-4-121 (c), we affirm the Trial
Court's decision.

               It is true that when dividing assets and liabilities, courts may consider a spouse's
separate property. We find, however, that due to Wife's financial needs and circumstances, the Trial


                                                 -4-
Court committed no error in not requiring Wife's inheritance be used to pay Husband immediately.
See Tenn. Code Ann. § 36-4-121 (c)(5). The proof established that although the parties are fast-
approaching retirement age, they have no retirement savings due to Husband's mismanagement of
their money and that Wife will need her inheritance for her retirement. Moreover, the Trial Court
held that the amount of Husband's net equity could be offset for any unpaid alimony for
approximately one year in if Husband experienced difficulty in meeting this obligation.

                 Accordingly, we hold that the Trial Court did not err in its determination that Wife
receive the parties' home and that Husband receive his net equity in the home, plus interest, in seven
years. We find the Trial Court's decision to be equitable under these circumstances. The Trial Court
fashioned a remedy that both protects the Husband as far as receiving his $16,466 plus interest and
protects Wife's receiving alimony from Husband for seven years. This remedy also gives Wife a
place to live and allows her to continue her childcare business. The Trial Court acted well within
its discretion in fashioning this division of the marital estate to arrive at this equitable distribution.

               Husband's final issue involves the Trial Court's grant of alimony to Wife in the
amount of $1,200 per month until Wife reaches 65 or she retires, whichever event occurs first.
Husband argues that the preponderance of the evidence weighs against this award because it is based
largely upon Wife's need to make the house payment and because the Trial Court failed to consider
Husband's age at the time of trial. If Husband has to pay alimony until Wife reaches age 65, he will
have this financial obligation until age 68.

                This Court has held that "[t]rial courts have broad discretion to determine whether
spousal support is needed and, if so, its nature, amount, and duration." Anderton v. Anderton, 988
S.W.2d 675, 682 (Tenn. Ct. App. 1998). Accordingly, a decision of the trial court regarding this
issue will not be disturbed on appeal "unless it is not supported by the evidence or is contrary to the
public policies reflected in the applicable statutes." Id. When determining whether a spouse should
receive support, trial courts are to follow Tenn. Code Ann. § 36-5-101(d)(1), 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:

                (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 § 36-4-121;

               (I) The standard of living 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.

Tenn. Code Ann. § 36-5-101(d)(1).

                  While all relevant factors must be considered, need and the ability to pay are the
critical factors in setting the amount of an alimony award. Anderton, 988 S.W.2d at 683. Discussing
the intent behind alimony, this Court has held that:

               [t]he purpose of spousal support is to aid the disadvantaged spouse to
               become and remain self-sufficient and, when economic rehabilitation
               is not feasible, to mitigate the harsh economic realities of divorce.

Id. at 682.




                                                 -6-
                The evidence does not preponderate against the Trial Court's decision to award Wife
alimony in the amount of $1,200 per month. The proof at trial showed that between her two jobs,
Wife earns a monthly net income of $1,253. Wife's monthly expenses, which cover only her basic
needs, total $2,408 and are almost double her monthly net income. As a result, Wife has a monthly
deficiency of $1,155 which is covered by the Trial Court's award of alimony in the amount of $1,200
per month.

               In contrast, Husband earns $45 per hour as a contract engineer and over the past five
years, has averaged $61,000 per year, or $5,080 per month, in gross income. In 1997, Husband
earned $100,00 gross income. In addition, Husband's Income and Expense Statement filed with the
Trial Court reflects that Husband also received a monthly per diem in the amount of $516 for his
living expenses from his recent employer. The preponderance of the evidence clearly demonstrates
that Husband's earning capacity is much greater than Wife's and that he has many more employment
opportunities by comparison. Moreover, we reject Husband's argument that Wife should not receive
alimony because this award is based largely upon Wife's need for assistance in making the house
payment in the amount of $780 per month. As discussed, Wife earns most of her income from her
childcare business which is and has been conducted in her home. The Trial Court recognized, and
we agree, that without her childcare business, Wife would need more financial assistance which
could increase the alimony award. We hold that the Trial Court did not err in ordering Husband to
pay Wife alimony in the amount of $1,200 per month until she reaches age 65 or retires, whichever
occurs first.

                Wife asks that Husband's appeal be treated as a frivolous appeal and that she be
awarded her attorney fees and costs incurred for this appeal. We decline to hold that this is a
frivolous appeal, and further decline to award Wife any additional attorney fees and costs incurred
by this appeal.

                                            Conclusion

               The judgment of the Trial Court is affirmed, and this matter remanded for further
proceedings as may be required, if any, consistent with this Opinion, and for collection of the costs
below. Costs of this appeal are taxed to the Appellant, James Arnold Taylor, and his surety.




                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




                                                -7-
