                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                November 17, 2005 Session

      BRUCE R. GOODMAN v. JUDY LYNN McMURRAY GOODMAN

                 Direct Appeal from the Circuit Court for Davidson County
                 No. 02D-2973     Jack Norman, Jr., Judge by Substitution



                   No. M2004-02781-COA-R3-CV - Filed January 9, 2006


Appellant Bruce Goodman (“Husband”) filed for divorce from Appellee Judy Goodman (“Wife”)
after twenty-six years of marriage. The parties entered into a permanent parenting plan and
subsequently went to trial seeking a property settlement and a decree on spousal support. The trial
court awarded each party approximately $1.4 million from the marital estate and also granted Wife
$4,000 per month in alimony in futuro. Husband appeals the alimony award. We affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

Alfred H. Knight, Mary Arline Evans, and Alan Dale Johnson, Nashville, Tennessee, for the
appellant, Bruce R. Goodman.

Rose T. Palermo, Nashville, Tennessee, for the appellee, Judy Lynn McMurray Goodman.

                                           OPINION

                         Factual Background and Procedural History

       This case involves the break-up of a twenty-six year marriage between Bruce Goodman
(“Husband”) and Judy Goodman (“Wife”). Husband filed a complaint for divorce on December
20, 2002, citing the grounds of irreconcilable differences and inappropriate marital conduct.
Wife denied Husband’s allegations of fault and filed a counter-complaint for divorce on the
grounds of irreconcilable differences and adultery. The trial court granted Wife a divorce based
upon the stipulated grounds of adultery by Husband.

       At the time of the divorce, Husband was a physician earning an income of approximately
$300,000 per year. Wife was a registered nurse with a potential earning capacity of
approximately $40,000 per year. During the divorce proceedings, the parties agreed upon a
division of marital assets, which resulted in the distribution of more than $1.4 million to each
party. The court also granted Wife child support in the amount of $25,200 per year pursuant to
the parties’ permanent parenting plan and awarded alimony in futuro in the amount of $4,000 per
month until Husband dies or until Wife reaches age 65, dies, or remarries–whichever occurs first.

        In determining the award of in futuro alimony, the trial judge heard evidence concerning
contributions that Wife had made to both the marriage itself as well as to Husband’s medical
practice, the ability of Wife to be rehabilitated, and the necessary expenses incurred in
maintaining the standard of living that Wife had become accustomed to during the marriage.
Upon conclusion of the evidence, the trial judge made the following findings in relation to the
alimony award:

       The Court has taken into consideration that the parties have been married for twenty-
       six years; the Husband is a physician with an average annual income of $300,000.00;
       the Wife is a registered nurse with a potential earning capacity of $40,000.00
       annually; the Wife has made contributions directly to the Husband’s medical practice,
       as well as being a mother and homemaker, resulting in the marital estate being
       accumulated through the joint efforts of the parties; and fault clearly falls on the
       Husband. Furthermore, the parties have enjoyed a high standard of living and the
       Wife cannot be rehabilitated to the standard the parties enjoyed during the marriage.
       For these reasons, the Court finds that this case, which is very similar to [Bratton v.
       Bratton], is a case for an award of spousal support on a protracted basis.
       Accordingly, the Husband shall be, and he hereby is, required to pay to the Wife the
       sum of $4,000.00 per month as alimony in futuro taxable as income to Wife until the
       Husband’s death, the Wife’s death or remarriage or until she reaches age sixty-five,
       whichever event occurs first.

        Husband subsequently filed a Motion to Alter or Amend with the trial court arguing,
among other things, that the trial court erred in awarding Wife alimony in futuro due to Wife’s
earning capacity as well as the value and liquidity of the marital assets awarded to Wife in the
divorce decree. Husband further asserted that the trial court erred in relying on the holding in
Bratton v. Bratton, 136 S.W.3d 595 (Tenn. 2004), for the proposition that alimony in futuro was
appropriate in this case. In hearing this matter, the trial judge rejected Husband’s argument and
stated:

       I don’t think that the Court relied upon the . . . [Bratton] case, as [Husband’s counsel
       has] stated . . . in making my decision. And I outlined the reasons that I felt that the
       alimony award was justified.
                And then I said, for these reasons, the Court finds that this case is very similar
       to the [Bratton] case. And that is the only reference I made to the [Bratton] case.
                I set out that I took into consideration that this was a long-term marriage, a
       marriage of 26 years. I set out the disparity of income earning ability. That


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       [Husband] had the ability to earn approximately $300,000 a year in income, and that,
       hopefully, [Wife] would have the ability to earn $40,000 when she had completed her
       nursing studies.
                I took into consideration her contribution to the marriage as a housewife, as
       a homemaker, and as an employee at [Husband’s] medical practice. I took into
       consideration the degree of fault, which I don’t think there is any question about that.
                I took into consideration the standard of living that these parties had enjoyed
       during their marriage. And for that reason, I felt that this was a case that justified an
       award for long-term alimony.
                The reason that I did that is because I tried to take into consideration the
       future of both of these parties. And I tried to reach a decision that would enable both
       of these parties to enjoy a standard of living that was somewhat even, that each
       would enjoy–have assets to enjoy the same standard of living.
                ....
                I think that [Wife] has a right to expect [a] standard of living somewhat
       commensurate with what she enjoyed during the marriage, if Dr. Goodman has the
       ability to pay, which he certainly does.
                And I also took into consideration in my award, that the award only goes to
       age 65. That I don’t think [Wife] is required to expend her part of the marital estate
       division to maintain her standard of living. I think she is entitled to rely upon that for
       old age. And that is why I set the termination of alimony at 65, thinking that after 65,
       she could begin to encroach upon her assets to give her a security in her older age.
                So for all of those reasons, I felt this was a case that justified long-term
       alimony in futuro.

Husband appeals the alimony award.

                                          Issues Presented

      Whether the trial court erred in granting alimony in futuro in the amount of $4,000 per
month. We affirm.

                                        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) (2005); 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



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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).

        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 chosen a different alternative. White v.
Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App.1999).

                                                     Analysis

        In his brief, Husband argues that the trial court erred in awarding Wife $4,000 per month
in alimony in futuro because, “[i]nstead of considering [Wife’s] economic needs, the [trial court]
focused entirely upon equalizing the parties’ future incomes and enabling the wife to continue to
enjoy the standard of living ‘the parties enjoyed during their marriage.’” In conjunction with
Wife’s economic need, Husband further asserts that the trial court erred in failing to consider
Wife’s award of $1.4 million of marital property when granting her alimony in futuro. For the
reasons stated herein, we affirm the trial court.

        In determining the appropriateness of an award of alimony, courts must consider the
statutory factors set out in Tenn. Code Ann. § 36-5-101(d) (Supp. 2004).1 This section 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:
                 (i) 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;
                 (ii) 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;
                 (iii) The duration of the marriage;
                 (iv) The age and mental condition of each party;
                 (v) The physical condition of each party, including, but not limited to,
         physical disability or incapacity due to a chronic debilitating disease;




         1
          Section 36-5-101, as amended effective July 1, 2005, is currently codified at T enn. Code Ann. § 36-5-121
(2005). However, since the trial court decided this case before the current amendment, we review this matter under the
version of the statute in effect at the time of the Final Divorce Decree rendered on August 9, 2004.

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               (vi) 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;
               (vii) The separate assets of each party, both real and personal, tangible and
       intangible;
               (viii) The provisions made with regard to marital property as defined in § 36-
       4-121;
               (ix) The standard of living of the parties established during the marriage;
               (x) 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;
               (xi) The relative fault of the parties in cases where the court, in its discretion,
       deems it appropriate to do so; and
               (xii) 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)(E) (Supp. 2004).

        In applying section 36-5-101(d), Tennessee courts have historically considered the most
important factors to be the need of the spouse seeking support and the ability of the other spouse
to pay. Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001). However, in 2003 the Tennessee
Legislature revised section 36-5-101 and added the following provisions:

               (B) The general assembly finds that the contributions to the marriage as
       homemaker or parent are of equal dignity and importance as economic contributions
       to the marriage. Further, where one (1) spouse suffers economic detriment for the
       benefit of the marriage, the general assembly finds that the economically
       disadvantaged spouse’s standard of living after the divorce should 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.
               (C) . . . . 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. . . .

Tenn. Code Ann. § 36-5-101(d)(1)(B) and (C) (Supp. 2004).

       When alimony is appropriate under section 36-5-101, there are four types which trial
courts may award: rehabilitative alimony, transitional alimony, alimony in futuro and alimony in


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solido. See Tenn. Code Ann. § 36-5-101 (Supp. 2004). Rehabilitative alimony is temporary
support and maintenance granted in order to allow the disadvantaged spouse “to achieve, with
reasonable effort, an earning capacity that will permit [such] 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.” Tenn. Code
Ann. § 36-5-101(d)(1)(C) (Supp. 2004). Courts may award transitional alimony when it “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).

        The general assembly has expressly stated a preference for grants of rehabilitative
alimony. Tenn. Code. Ann. § 36-5-101(d)(1)(C) (Supp. 2004); Crabtree v. Crabtree, 16 S.W.3d,
356, 358 (Tenn. 2000). However, “[w]here there is relative economic disadvantage and
rehabilitation is not feasible in consideration of all relevant factors . . . 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.” Tenn. Code. Ann. § 36-5-101(d)(1)(C) (Supp. 2004). “There are
two forms of ‘long term or more open-ended support’: alimony in futuro and alimony in solido.”
Burlew, 40 S.W.3d at 471. Alimony in futuro is open-ended support that is generally paid “until
the death or remarriage of the recipient except as otherwise provided in [Tenn. Code Ann. § 36-
5-101](a)(3).” Tenn. Code Ann. § 36-5-101(d)(1)(C) (Supp. 2004). See Waddey v. Waddey, 6
S.W.3d 230, 232 (Tenn. 1999) (citing McKee v. McKee, 655 S.W.2d 164, 165 (Tenn. Ct. App.
1983)). “Alimony in solido is an award of a definite sum of alimony and ‘may be paid in [a lump
sum or in] installments provided the payments are ordered over a definite period of time and the
sum of the alimony to be paid is ascertainable when awarded.’” Burlew, 40 S.W.3d at 471
(citation omitted).

        Considering the facts in the case at bar, we find that the trial court did not abuse its
discretion in awarding alimony in futuro to Wife in the amount of $4000 per month. Rather, we
find the facts in the instant case analogous to those in Bratton v. Bratton, 136 S.W.3d 595 (Tenn.
2004).2 In Bratton, the husband appealed an alimony in futuro award of $10,500.00 per month
on the basis that the trial court “looked at the parties’ standard of living during the marriage as
the primary factor in making the award.” Id. at 604. In affirming the award, the Tennessee
Supreme Court held as follows:




         2
            Husband cites Langley v. Langley, No. 2002-02278-COA-R3-CV, 2003 W L 22989026 (Tenn. Ct. App. Dec.
19, 2002)(no perm. app. filed), and Crabtree v. Crabtree, 16 S.W .3d 356 (Tenn. 2000), as support for his argument that
the trial court erred awarding alimony in futuro so to allow W ife to maintain and continue the marital standard of living.
However, we note that these cases were decided under the version of Tenn. Code Ann. § 36-5-101(d)(1) existing prior
to the 2003 amendments by the Tennessee General Assembly. As previously noted, the 2003 amendments placed a
greater importance upon the marital standard of living. See Tenn. Code Ann. § 36-5-101(d)(1)(B) and (C) (Supp. 2004).



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        Contrary to Dr. Bratton’s argument that the trial court relied on the parties’ standard
        of living as the primary factor, a review of the trial court’s decision reveals that the
        trial court considered all of the statutory factors and discussed the fact that the most
        significant factors to be considered were need and ability to pay. The trial court also
        discussed rehabilitation and the legislature’s expressed preference therefore.

        The trial court determined that Ms. Bratton was economically disadvantaged due to
        the fact that she had chosen to forego a career in order to be the homemaker and
        primary caretaker for the children. . . . On the other hand, Dr. Bratton was a
        successful orthopedic surgeon with a yearly income in excess of $500,000.00. Dr.
        Bratton was found to be at fault for the break up of the marriage, admitting that he
        had been having an affair with a co-worker for whom he had expended large sums
        of money during their romance. The trial court also noted that the wife could not be
        rehabilitated to the standard of living which the parties’ had enjoyed during the
        marriage and concluded that considering “all applicable factors,” an award of
        $10,500.00 [per month] would be appropriate.

        Because the trial court properly applied the relevant statutory factors, we affirm the
        trial court’s award of alimony.

Id. at 605.

         Like the trial court in Bratton, the trial court in this case appears to have also considered
the relevant statutory factors enumerated under Tenn. Code Ann. § 36-5-101(d)(1) in determining
the alimony award. Specifically, the record shows that the trial court heard evidence concerning
the parties’ finances, Wife’s share of the marital estate, Wife’s contributions to the marriage, and
Wife’s need for spousal support. Wife testified at trial that she and Husband married in 1978.
Wife further stated that she worked as a registered nurse and supported Husband while he
completed his medical degree and residency. After Husband’s residency, Wife testified that
Husband began working as an associate in another doctor’s practice while she worked part time
and cared for the parties’ first child. After Husband began his own practice in 1989, Wife
testified that she began assisting Husband with his medical practice–both as an registered nurse
and as an office manager, and continued to do so until Husband filed for divorce. Husband later
stipulated that Wife was entitled to a divorce on the grounds of adultery committed by Husband.
At the time of divorce, tax returns established that Husband had an adjusted gross income of
$318,000. Wife had no income, but testified that she would earn approximately $40,000 upon
completion of her Masters Degree in Nursing. Wife further stated that her basic living expenses
totaled $8,286 per month, which was consistent with the monthly expenses incurred by the
parties during the marriage.

       At the conclusion of the evidence, the trial court entered a Final Decree of Divorce
awarding Wife half of the marital estate and $4,000 per month in alimony in futuro. In



                                                  -7-
supporting the alimony award, the trial court, as previously noted in the facts section of this
opinion, made the following findings in accordance with section 36-5-101(d)(1):

       the parties have been married for twenty-six years; [Husband] is a physician with an
       average annual income of $300,000.00; [Wife] is a registered nurse with a potential
       earning capacity of $40,000.00 annually; [Wife] has made contributions directly to
       [Husband’s] medical practice, as well as being a mother and homemaker . . . ; and
       fault clearly falls on [Husband]. Furthermore, the parties have enjoyed a high
       standard of living and [Wife] cannot be rehabilitated to the standard the parties
       enjoyed during the marriage.

(emphasis added). Husband subsequently filed a Motion to Alter or Amend asking the trial court
to reconsider the award of alimony in futuro. In denying the motion, the trial judge again
expressed his reasoning behind the alimony award, stating that:

                I think that [Wife] has a right to expect [a] standard of living somewhat
       commensurate with what she enjoyed during the marriage, if Dr. Goodman has the
       ability to pay, which he certainly does.
                And I also took into consideration in my award, that the award only goes to
       age 65. That I don’t think [Wife] is required to expend her part of the marital estate
       division to maintain her standard of living. I think she is entitled to rely upon that for
       old age. And that is why I set the termination of alimony at 65, thinking that after 65,
       she could begin to encroach upon her assets to give her a security in her older age.
                So for all of those reasons, I felt this was a case that justified long-term
       alimony in futuro.

        After reviewing the record in this case, we find that the evidence does not preponderate
against the factual findings expressed by the trial court in the final divorce decree or at the
hearing on the Motion to Alter or Amend. We also find that, as in Bratton, the trial court in this
case properly applied the relevant statutory factors in determining the alimony award.
Specifically, the record explicitly shows that the court considered the relative earning capacities
of each party; the obligations, needs and financial resources of each party; the relative
educational level and training of each party; the duration of the marriage; the provisions made
with regard to marital property; the marital standard of living; the contributions of Wife to the
marriage and to Husband’s increased earning power; and the relative fault of Husband in causing
the divorce. As a result, we affirm the trial court’s award of alimony in futuro. Costs of this
appeal are taxed to Appellant, Bruce Goodman, and his surety, for which execution may issue if
necessary.



                                                        ____________________________________
                                                        DAVID R. FARMER, JUDGE


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