                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                      November 30, 2005 Session

                MICHAEL EDWARD ORT v. LORA JEANETTE ORT

                     Direct Appeal from the Chancery Court for Gibson County
                              No. 16499    George R. Ellis, Chancellor



                       No. W2005-00833-COA-R3-CV - Filed January 5, 2006


This is a divorce case. Husband appeals the trial court’s division of marital property, award alimony
in futuro to Wife, naming of Wife as primary residential parent, and child support order. We affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

David E. Caywood and C. Timothy Crocker, Milan, Tennessee, for the appellant, Michael Edward
Ort.

Mary Jo Middlebrooks and Betty Stafford Scott, for the appellee, Lora Jeanette Ort.

                                       MEMORANDUM OPINION1

        This is a divorce action. Michael Edward Ort (Dr. Ort) and Lora Jeanette Ort (Ms. Ort) were
married in 1987. Four children were born of the marriage. At the time of the hearing of this matter
in April 2004, Dr. Ort was 41 and Ms. Ort was 39 years of age. Dr. Ort earned his medical degree
during the course of the marriage, and is employed by West Tennessee Healthcare as an emergency
room doctor. Ms. Ort has a degree in Biology and completed two years of medical school. She has


       1
           RULE 10 of the Rules of the Court of Appeals of Tennessee provides as follows:

                This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion would have
       no precedential value. W hen a case is decided by memorandum opinion it shall be designated
       "M EM ORANDUM O PINION", shall not be published, and shall not be cited or relied on for any
       reason in any unrelated case.
been a stay-at-home mother since 1991, when the parties’ eldest child was born. The parties agree
that they both decided it would be best for Ms. Ort to stay at home.

        In January 1992, while Ms. Ort was expecting the parties’ second child, the parties were in
a serious car accident while Dr. Ort was driving. Ms. Ort suffered multiple injuries, including a
brain stem tear and brain bleeding, and was in a coma for one month. She successfully delivered the
child in July 1992. The family then relocated to Texas, where they had no family and where Dr. Ort
worked extremely long hours in a family residency program.

       In 1994, Dr. Ort told Ms. Ort about his first extramarital affair. The parties moved back to
Tennessee in 1995. Dr. Ort had a second affair in 1999. The parties entered counseling, but Dr. Ort
admitted to continuing the affair while in counseling.

        Dr. Ort filed a complaint for divorce on June 2, 2003. In his complaint, he alleged that Ms.
Ort was unable to appropriately care for the minor children or to safely operate a vehicle. He prayed
for an absolute divorce based on inappropriate marital conduct or irreconcilable differences, to be
designated primary residential parent, an equitable division of property, and attorney’s fees and costs.
Dr. Ort also prayed the court to issue a restraining order that limited Ms. Ort’s driving to daylight
hours and to a vehicle with no more than two passengers, and which prohibited her from eating,
drinking, or talking on a cell phone while driving during the pendency of this cause. The trial court
granted the temporary restraining order as prayed for by Dr. Ort on the same day.

        Ms. Ort answered and counter-complained on June 9. In August 2003, the trial court lifted
the restraining order following Ms. Ort’s completion of an occupational therapy evaluation of her
driving skills. Dr. Ort dismissed his complaint in September 2003, and filed an answer and counter-
complaint to Ms. Ort’s counter-complaint on April 1, 2004. Ms. Ort answered on April 6, 2004.

        The trial court heard this matter on April 6, 2004. In its April 6 order, the trial court ordered
the parties to undergo a custodial psychological evaluation, and the parties agreed on an evaluation
by Dr. Robert W. Kennon (Dr. Kennon). On March 2, 2005, the trial court issued findings of fact
and a final decree of divorce. The trial court awarded Ms. Ort a divorce on the grounds of adultery
and, after consideration of the factors enunciated in Tennessee Code Annotated § 36-6-106, found
it was in the best interest of the children that Ms. Ort be named primary residential parent. The trial
court found the division of marital property as proposed by Ms. Ort was equitable and divided the
parties’ property accordingly. The trial court also found Ms. Ort was economically disadvantaged
relative to Dr. Ort and awarded Ms. Ort alimony in futuro of $2,280 per month and attorney’s fees
and cost as alimony in solido. It ordered Dr. Ort to pay child support in the amount of $4,493 per
month in accordance with the child support guidelines. Dr. Ort filed a timely notice of appeal to this
Court.

                                          Issues Presented

        Dr. Ort presents the following issues for our review, as we slightly re-state them:


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        (1)     Whether the trial court erred in naming Ms. Ort primary residential parent
                where the court made several findings and conclusions in the final decree that
                are not supported by the evidence at trial and where it failed to properly
                consider Dr. Kennon’s evaluation.

        (2)     Whether the trial court erred in its determination of Dr. Ort’s child support
                obligation.

        (3)     Whether the trial court erred in awarding Ms. Ort alimony in futuro.

        (4)     Whether the trial court erred in the division of marital property.

        Ms. Ort requests an award of attorney’s fees and costs incurred for this appeal.

                                         Standard of Review

        We review the trial court's findings of fact de novo, with a presumption of correctness. Tenn.
R. App. P. 13(d); Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000). We will not reverse the
trial court’s factual findings unless they are contrary to the preponderance of the evidence. Id.
Insofar as the trial court’s determinations are based on its assessment of witness credibility, appellate
courts will not reevaluate that assessment absent evidence of clear and convincing evidence to the
contrary. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
Our review of the trial court’s conclusions on matters of law, however, is de novo with no
presumption of correctness. Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn. 2005). We likewise
review the trial court’s application of law to the facts de novo, with no presumption of correctness.
State v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005).

                                               Analysis

        We first consider whether the trial court erred by naming Ms. Ort primary residential parent.
Dr. Ort’s argument, as we perceive it, is that Ms. Ort is less capable than he of caring for the children
because of memory and judgment problems resulting from injuries sustained in the 1992 car
accident; that he is better able to control and discipline the children; that Ms. Ort has driving
difficulties; and that the trial court failed to consider Dr. Kennon’s evaluation insofar as it assessed
Dr. Ort’s strengths. Ms. Ort, on the other hand, contends she has always been the primary care-taker
of the children; that she has passed five driving evaluations; and that the only serious accident the
parties have been involved in occurred while Dr. Ort was driving. She submits that the
psychological evaluation performed by Dr. Robert Kennon concluded that she demonstrated no
psychological or emotional difficulties that would impede her ability to care for the children. She
further points out that at trial, a witness who also is the mother of four children testified that Ms. Ort
“has the children under control as much as any mother that has four children.”




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         We review the trial court’s determination of child custody under an abuse of discretion
standard, affording the trial court great deference. Herrera v. Herrera, 944 S.W.2d 379, 385 (Tenn.
Ct. App. 1996). This Court will not interfere with the trial court’s determination absent a palpable
abuse of discretion or unless the judgment is against the great weight of the evidence. Id. at 386.
This deferential review is premised on the assumption that the trial court first considered the best
interests of the child in making the custody determination and did not act arbitrarily. Id. In making
a custody determination, the trial court must engage in a comparative fitness analysis of the parents.
Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App.1996). In so doing, it must consider the
factors outlined by the legislature as codified at Tenn. Code Ann. § 36-6-106. Id. Custody
determinations are thus based on a combination of subtle factors, and require a factually based
inquiry. Id. The trial court is in the best position to weigh the facts presented to it, and to assess the
credibility of the parties. Id. Similarly, the details of visitation arrangements are within the
discretion of the trial court. Hogue v. Hogue, 147 S.W.3d 245, 251 (Tenn. Ct. App.2004). Although
the trial court's discretion is not without limit and its determinations must be based on the evidence
and appropriate legal principles, we will not disturb the trial court’s determinations absent an abuse
of discretion. Id.

         Upon review of the record of this case, we find no abuse of discretion in the trial court’s
naming of Ms. Ort as primary residential parent. Although Dr. Kennon’s evaluation stated that
although Ms. Ort had “chronic yet stable difficulty with short term memory as a result of her head
injury . . . . [f]indings of this examination suggested fairly normal neurocognitive functioning.” Dr.
Kennon also stated that Ms. Ort’s “[s]tream of thought was logical and clear . . . she exhibited no
bizarre thoughts . . . . [i]nsight into her own functioning was relatively good.” Clearly, Ms. Ort has
suffered on-going injury as a result of the 1992 car accident. However, the record does not
demonstrate that she is unable to care for the parties’ children. We affirm on this issue.

         We next turn to whether the trial court erred in determining Dr. Ort’s child support
obligation. Dr. Ort contends the trial court erred by failing to utilize the child support guidelines
based on the income shares model which were in effect at the time the final order was entered in
March 2005. The revised child support guidelines went into effect in January 2005, and this matter
was heard by the trial court in April 2004. The trial court generally will apply the statute in effect
at the time of the hearing. Redmond v. Hunt, No. W2004-00127-COA-R3-JV, 2004 WL 2848385,
at *4 (Tenn. Ct. App. Dec. 10. 2004)(no perm. app. filed)(citing Connell v. Connell, No. 03A01-
9808-CV-00282, 2000 WL 122204, at *3 (Tenn. Ct. App. Jan. 25, 2000)(holding: trial court properly
applied provisions of Tennessee Code Annotated § 36-6-108 which went into effect one day before
hearing)). Thus, the trial court did not err by utilizing the child support guidelines in effect in April
2004. We affirm the child support award.

        Dr. Ort also submits that the trial court erred by awarding Ms. Ort alimony in futuro and that
Ms. Ort is a “proper candidate” for rehabilitative alimony. We review an award of alimony under
an abuse of discretion standard. Herrera v. Herrera, 944 S.W.2d 379, 385 (Tenn. Ct. App. 1996).
If a discretionary decision is within a range of acceptable alternatives, appellate courts will not
substitute their decision for that of the trial court simply because the appellate court would have


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chosen a different alternative. White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App.1999).
When determining whether an award of alimony is appropriate, courts must consider the statutory
factors set out in Tennessee Code Annotated § 36-5- 101(d). We historically have considered the
need of the spouse seeking support and the ability of the other spouse to provide such support to be
the most important factors. E.g., Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001).

        The legislature has clearly stated a preference for rehabilitative alimony designed to enable
an economically disadvantaged spouse to attain economic self-sufficiency. Tenn. Code Ann. §
36-5-101(d)(1)(C)(Supp. 2004)2; Crabtree v. Crabtree, 16 S.W.3d, 356, 358 (Tenn. 2000).
Alternatively, transitional alimony may be awarded under Tennessee Code Annotated §
36-5-101(d)(1)(D). Transitional alimony may be “awarded when the court finds that rehabilitation
is not necessary, but the economically disadvantaged spouse needs assistance to adjust to the
economic consequences of a divorce, legal separation or other proceeding where spousal support
may be awarded, such as a petition for an order of protection.” Tenn. Code Ann. § 36-5-
101(d)(1)(D)(Supp. 2004). An award of alimony in futuro is appropriate “where there is relative
economic disadvantage and rehabilitation is not feasible in consideration of all relevant factors,”
including those enumerated in § 36-5-101(d)(1)(E). Tenn. Code Ann. § 36-5-101(d)(1)(C)(Supp.
2004).

        Dr. Ort submits that Ms. Ort’s memory and cognitive function impairment resulting from the
1992 car accident prevent her from adequately caring for the parties’ children. On the other hand,
he argues that Ms. Ort is only forty-years of age, has a college degree and two years of medical
school, and is capable of earning a nursing degree and returning to work full-time. We find Dr. Ort’s
position to be somewhat disingenuous at best. Upon review of the record in this case, we find no
abuse of discretion in the trial court’s award of alimony in futuro to Ms. Ort.

        We finally turn to whether the trial court erred in its division of marital property. We note
that Dr. Ort has failed to include in his brief a tabulation of property as required by Rule 7 of the
Rules of the Court of Appeals of Tennessee. His argument, moreover, is based solely on a
contention that the trial court erred by valuing the marital residence at $225,000, as valued by Ms.
Ort, and not at $240,000, as proposed by Dr. Ort. Upon review of the tabulation of property included
in Ms. Ort’s brief to this Court and the record in this case, we find the division of property to be
equitable. This issue is without merit.

                                                   Holding

        We affirm the judgment of the trial court in all respects. Ms. Ort requests an award of
attorney’s fees and costs on appeal. This Court has the discretion to award additional attorney’s fees
and costs incurred on appeal. Seaton v. Seaton, 516 S.W.2d 91, 93 (Tenn. 1974). In light of our
disposition of this matter, we award Ms. Ort attorney’s fees and costs incurred on appeal. Upon


        2
        This section, as amended effective July 1, 2005, is currently codified at T ennessee Code Annotated 36-5-
121(2005).

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remand, the trial court shall determine the additional fees to be allowed counsel for the appellee for
services in this Court. Costs of this appeal are taxed to the Appellant, Michael Edward Ort, and to
his surety, for which execution may issue if necessary.



                                                       ___________________________________
                                                       DAVID R. FARMER, JUDGE




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