                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 October 12, 2011 Session

                 KATHRYN A. DUKE v. HAROLD W. DUKE, III

                Appeal from the Chancery Court for Williamson County
                     No. 33519    Timothy L. Easter, Chancellor


                   No. M2009-02401-COA-R3-CV - Filed June 1, 2012


P ATRICIA J. C OTTRELL, dissenting in part.

        I disagree with the majority’s analysis of the requirements for rehabilitative alimony.
All types of alimony are statutory, and the legislature’s definitions must be applied. The
legislature has stated that it intends that an economically disadvantaged spouse be
rehabilitated, through an award of rehabilitative alimony, whenever rehabilitation possible.
Tenn. Code Ann. § 36-5-121(d)(2).

       In response to some judicial decisions regarding how to determine if a spouse can be
rehabilitated, the legislature enacted a definition. Tennessee Code Annotated § 36-5-121
provides in parts (d)(2) and (e)(1) that “to 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.

        The trial court did not explain its conclusion that the wife herein could be rehabilitated
in light of the statutory definition. Based on my review of the facts, I cannot conclude that
the evidence establishes that the wife’s post-divorce earning capacity will allow her a
standard of living comparable to Husband’s. Accordingly, I would hold that the facts
preponderate against the trial court’s finding that the wife can be rehabilitated.




                                                    ___________________________________
                                                    PATRICIA J. COTTRELL, JUDGE
