                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 October 24, 2012 Session

      TORRIE SCHNEIDER LONGANACRE v. MATTHEW ROBERT
                        LONGANACRE

             Appeal from the Chancery Court for Montgomery County
            No. MCCHCVDI10490      Laurence M. McMillan, Chancellor


                No. M2012-00161-COA-R3-CV - Filed January 16, 2013


Husband appeals the order granting Wife a legal separation and alimony in futuro. Finding
no error, we affirm.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court. P ATRICIA J. C OTTRELL, P. J., M.
S., filed a dissenting opinion. F RANK G. C LEMENT, J R., J., filed a concurring opinion.

Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Matthew Robert Longanacre.

Donald N. Capparella and Jason Gichner, Nashville, Tennessee; and Elizabeth D. Rankin,
Clarksville, Tennessee, for the Appellee, Torrie Schneider Longanacre.

                                          OPINION

                              I. Facts and Procedural History

        Matthew Longanacre (“Husband”) and Torrie Longanacre (“Wife”) married on
December 7, 2002. No children were born of the marriage. In March 2009, Wife fell down
the stairs at the couple’s home and struck her head. Wife sustained a traumatic brain injury
and, as a result, has difficulty reading, writing, and completing tasks, and suffers debilitating
migraine headaches and seizures.

      Husband, a soldier with the United States Military, deployed overseas in March 2010.
Wife continued to live in the couple’s home in Clarksville, Tennessee, for three months
before moving to Florida to live with her parents.1 On October 28, 2010, while still
deployed, Husband sent an email to Wife suggesting that they separate. On December 15,
Wife filed for a petition seeking a legal separation on the grounds of irreconcilable
differences, cruel and inhuman treatment, and adultery. On January 5, 2011, Husband
answered and counter-sued for an absolute divorce on the grounds of irreconcilable
differences and inappropriate marital conduct. Wife answered Husband’s counterclaim
denying that Husband had grounds for divorce.

       The matter was heard on November 8 and 9, 2011; the court issued its Memorandum
Opinion on November 22, and a Final Decree on December 19. In the decree the court
dismissed Husband’s counterclaim for divorce, granted Wife’s complaint for legal
separation, distributed the marital estate, awarded Wife alimony in solido and, after finding
that Wife was “not capable of rehabilitation” due to her brain injury, awarded alimony in
futuro in the amount of $1,250.00 per month.

        Husband filed a timely appeal in which he raises the following issues:

        I.      The Trial Court erred in denying Defendant an absolute divorce on the
                ground of Inappropriate Marital Conduct.
        II.     The Trial Court erred in awarding permanent alimony.

                                            II. Discussion

       In our review of a divorce proceeding, the trial court’s findings of fact “are presumed
to be correct unless the evidence preponderates otherwise.” Langschmidt v. Langschmidt,
81 S.W.3d 741, 744 (Tenn. 2002) (citing Tenn. R. App. P. 13(d)). Questions of law are
reviewed de novo without the presumption of correctness. See id. at 745 (citing Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993)). Mixed questions of law and
fact are reviewed de novo with no presumption of correctness, with the appellate court
having “great latitude to determine whether findings as to mixed questions of fact and law
made by the trial court are sustained by probative evidence on appeal.” Id. at 745 (citing
Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995)).

A. Legal Separation

        In the final decree, the court held that “wife did not commit acts during this marriage
that rise to the level of inappropriate marital conduct” and that, accordingly, Husband failed


        1
         Wife testified that she was unable to care for herself alone because she would lock herself out of
the house, was not able to drive, and could not get groceries.

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to carry his burden of proof. The court held that Wife proved grounds for legal separation
as provided by Tenn. Code Ann. § 36-4-102 and proceeded to divide the marital property and
to make the awards of alimony.

       Husband contends that the trial court erred in dismissing his complaint and in granting
Wife a legal separation. He asserts that the court should have awarded him an absolute
divorce because Wife committed inappropriate marital conduct through her “reckless money
management,” physical assaults of Husband, “extreme jealousy,” and alienation of Husband
from his other family members.

       Tenn. Code Ann. § 36-4-101(a)(11) defines inappropriate marital conduct as:

       The husband or wife is guilty of such cruel and inhuman treatment or conduct
       towards the spouse as renders cohabitation unsafe and improper, which may
       also be referred to in pleadings as inappropriate marital conduct[.]

In Chaffin v. Ellis, this Court succinctly summarized the standard for a court to determine
inappropriate marital conduct as follows:

       Inappropriate marital conduct can be found when “[t]he husband or the wife
       is guilty of such cruel and inhuman treatment or conduct towards the spouse
       as renders cohabitation unsafe and improper . . . .” Tenn. Code Ann. § 36-4-
       101(11) (2001); see Eldridge v. Eldridge, 137 S.W.3d 1, 23–24 (Tenn. Ct.
       App. 2002). Thus, inappropriate marital conduct is established when “either
       or both of the parties [have] engaged in a course of conduct which (1) caused
       pain, anguish or distress to the other party and (2) rendered continued
       cohabitation ‘improper,’ ‘unendurable,’ ‘intolerable,’ or ‘unacceptable.’”
       Eldridge, 137 S.W.3d at 24 (quoting Earls v. Earls, 42 S.W.3d 877, 892
       (Tenn. Ct. App. 2000) (Cottrell, J., concurring)).

Chaffin v. Ellis, 211 S.W.3d 264, 289 (Tenn. Ct. App. 2006).

       Husband’s testimony with respect to Wife’s “reckless money management” was that
Wife was continuing to “charge money on the credit card” as he was trying to pay it off, that
Wife requested that they to incur more debt to finance her “cosmetic surgery,” and that Wife
was not on “the same sheet of music” with regard to his effort to pay off the parties’ debt.
Wife testified that the charges on the credit card largely related to travel from Florida to




                                             -3-
Tennessee for medical treatment and included some purchases for clothing and presents. 2
Wife testified that the surgery was an additional corrective procedure on her bladder and
abdomen necessitated by complications arising from a hysterectomy she underwent due to
ovarian cancer; she testified that the entire cost was covered by insurance.3

       The testimony of Wife’s alleged physical assaults on Husband related to an event
which occurred during Husband’s visit home on leave from deployment. Husband testified
that he and Wife had a disagreement in which Wife “got upset and kind of lunged” at him
and that he put up his hands to stop her. In his testimony, Husband denied physically
harming Wife. Wife, however, testified as follows regarding the incident:

        [W]e were at a bed and breakfast. And he grabbed me by the shoulders and
        said I am sick of this. And I fell to the ground. And he kicked me not hard
        enough to hurt – like hurt anything. And I got up and he walked off. And he
        apologized incessantly and said I’m so sorry, I’m so sorry.

Other evidence relative to this incident included an email Husband sent to Wife on July 26,
2010, in which he wrote: “I can never apologize enough for my behavior” during the
vacation, and that “I don’t know how you stood up from and said that you forgive me while
in tears,” and “I know I have hurt you emotionally before, I never thought I would stoop to
such a level so low.”

        With respect to Wife’s jealousy, Husband testified that Wife caused him to become
alienated from his daughter, ex-wife, and other family members. Husband testified that he
had not been able to see his nephews and nieces for years, that he had not been able to have
a visit with his daughter since 2005, and that his Wife became jealous when he scheduled to
have lunch with his daughter in 2007. Husband testified that Wife was often jealous. Wife
did not refute Husband’s testimony in this regard.

      The record supports the trial court’s determination that Wife did not engage in a
course of conduct that caused pain and anguish to Husband or which made continued




       2
          The testimony of both parties relative to credit card debt was somewhat limited in light of the
statements of counsel prior to commencement of trial that the debt had been paid by Husband and that
division of credit card debt was not an issue for the court to decide.
        3
            Wife’s testimony that this additional procedure was covered by insurance was not refuted.

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cohabitation unacceptable.4 Thus, we affirm the trial court’s dismissal of Husband’s
counterclaim for absolute divorce.

       Husband next contends that the court should have declared the parties divorced
because “reconciliation is not a realistic option and both spouses have suffered pain at the
hand of the other spouse” and because Wife filed for legal separation only to maintain her
benefits under Husband’s insurance.

       Tenn. Code Ann. § 36-4-102 provides that a party alleging grounds for divorce may
“as an alternative to filing a complaint for divorce, file a complaint for legal separation.” If
the other party objects, the court may grant an order of legal separation after a hearing in
which statutory grounds are established. Tenn. Code Ann. § 36-4-102(b). It is within the
discretion of the trial court to decide whether to grant the remedy of divorce or the remedy
of legal separation. See Edmisten v. Edmisten, No. M2001-00081-COA-R3-CV, 2003 WL
21077990, at *8 (Tenn. Ct. App. May 13, 2003).

       The trial court determined that Wife proved that Husband engaged in inappropriate
marital conduct, a finding which Husband does not appeal. Pursuant to Tenn Code Ann. §
36-4-102(b) the court had the discretion to grant Wife a legal separation. The cases relied
upon by Husband, Earls v. Earls, 42 S.W.3d 887 (Tenn. Ct. App. 2000) and Hill v. Hill, No.
M2007-00471-COA-R3-CV, 2008 WL 1822453 (Tenn. Ct. App. April 23, 2008), do not
require the court, under the circumstances presented in this case, to declare the parties
divorced.

       In Earls, the trial court denied the Husband’s complaint for divorce and, instead,
awarded support to the Wife, who had been catastrophically injured; this Court reversed the
decision and remanded the case for the trial court to enter an order declaring the parties
divorced in accordance with Tenn. Code Ann. § 36-4-129(b). Significantly, we noted that
the Earls conceded that their differences were irreconcilable and that “Ms. Earls resisted Mr.
Earls divorce, and did not seek one of her own, not out of affection for Mr. Earls, but because
she desired to avoid losing the health insurance provided by Mr. Earls’ employer.” Earls,
42 S.W.3d at 884. In Hill, the trial court found that Husband was guilty of inappropriate
marital conduct and granted the Wife a legal separation rather than a divorce. After
determining that the trial court ordered the separation solely in order for the wife to remain




        4
         Although the trial court did not make specific findings of fact, the evidence cited by Husband does
not preponderate against the determination that Wife was not guilty of inappropriate marital conduct.

                                                    -5-
covered by the husband’s insurance until she qualified for medicare, this court reversed 5 ; in
so doing, we noted that the trial court found there was “little hope” that the parties would
reconcile. Hill, 2008 WL 1822453, at *5. We also discussed the discretion given to trial
courts in deciding whether to grant a legal separation or a divorce as well as statutory
limitations on the exercise of that discretion. Id.

       As noted in Henderson v. SAIA, Inc.:

       A trial court abuses its discretion when it causes an injustice by applying an
       incorrect legal standard, reaching an illogical decision, or by resolving the case
       “on a clearly erroneous assessment of the evidence.” Lee Medical, Inc. V.
       Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). The abuse of discretion standard
       does not permit the appellate court to substitute its judgment for that of the
       trial court. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.2001). Indeed, when
       reviewing a discretionary decision by the trial court, the “appellate courts
       should begin with the presumption that the decision is correct and should
       review the evidence in the light most favorable to the decision.” Overstreet v.
       Shoney's, Inc., 4 S.W.3d 694, 709 (Tenn.Ct.App.1999); see also Keisling v.
       Keisling, 196 S.W.3d 703, 726
       (Tenn.Ct.App.2005).

Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010), reh'g denied (Sept. 8, 2010)

       On the record before us, we cannot conclude that the court abused its discretion in
granting a legal separation and not a divorce.

B. Alimony in Futuro

       Husband contends that, while Wife may need some form of periodic alimony, the trial
court erred in awarding Wife $1,250 per month in alimony in futuro because Wife



       5
           This court stated:

       [i]t is undisputed, and the trial court found, that there is little hope that these parties will
       reconcile. The trial court’s decision to grant a legal separation instead of divorce was driven
       by the financial benefit of keeping Wife covered under Husband’s health insurance policy.
       However, purely financial reasons are simply not sufficient to justify an award of legal
       separation instead of divorce.

Hill, 2008 WL 1822453, *6.

                                                     -6-
“overstated her condition” and because “Dr. Hughes’ opinion . . . does not support
permanent alimony in light of the other testimony at trial.”

       Trial courts have broad discretion to determine whether spousal support is needed.
See Garfinkel v.Garfinkel, 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996). Alimony decisions
require a careful balancing of the factors in Tenn. Code Ann.§ 36-5-121(i); the two most
important factors are the need of the disadvantaged spouse and the obligor’s ability to pay.
Varley v. Varley, 934 S.W.2d 659, 668 (Tenn. Ct. App. 1996). Once the trial court has
determined that alimony is appropriate, it must determine the nature, amount, and period of
the award.6 Our legislature has stated a public policy preference for temporary, rehabilitative
spousal support over long-term support. Tenn. Code Ann. § 36-5-121(d)(2).

     The proper legal standard for awarding of alimony in futuro was set forth in
Gonsewski v. Gonsewski as follows:

        [A]limony in futuro is intended to provide support on a long-term basis . . .
        where “the court finds that there is relative economic disadvantage and that
        rehabilitation is not feasible.” Alimony in futuro is appropriate when “the
        disadvantaged spouse is unable to achieve, with reasonable effort, an earning
        capacity that will permit the 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.

The purpose of long-term spousal support is to aid the disadvantaged spouse when economic
rehabilitation is not feasible in order to mitigate the harsh economic realities of divorce.
Shackleford v. Shackleford, 611 S.W.2d 598, 601 (Tenn. Ct. App. 1980). Appellate courts
are disinclined to second-guess a trial court’s decision regarding spousal support unless the
decision is not supported by the evidence or is contrary to public policy. Brown v. Brown,
913 S.W.2d 163, 169 (Tenn. Ct. App. 1994). In Gonsewski, our Supreme Court stated that
the role of appellate courts in reviewing an award of alimony is “to determine whether the
trial court applied the correct legal standard and reached a decision that is not clearly




        6
          The court may award rehabilitative alimony, alimony in futuro, transitional alimony, alimony in
solido or a combination of these. Tenn. Code Ann. § 36-5-121(d)(1).

                                                  -7-
unreasonable.”7 Gonsewski, 350 S.W.3d at 105 (citing Broadbent v. Broadbent, 211 S.W.3d
216, 220 (Tenn. 2006)).

       In making the award of alimony, the court found that Wife sustained a traumatic brain
injury in her 2009 fall. The court further determined that Wife was not capable of
rehabilitation.

        As evidence of her disability, Wife submitted the deposition of Dr. Richard Hughes,
who treated her from 2003 to the time of trial, medical records, and her own testimony. Dr.
Hughes testified that Wife suffered from a traumatic brain injury and that it was “extremely
debilitating.” Detailing the effects of Wife’s condition, Dr. Hughes stated that she “has
severe difficulty with balance,” lacks fine motor coordination, is “unable to spell a word”
when asked, cannot “add three plus three,” and that “there has certainly been an accelerated
pattern and severity in her migraines since the traumatic brain injury.” Dr. Hughes opined
that Wife was “absolutely not employable at this time.” Husband testified that he had to
assist Wife in walking only for a period of weeks after her fall and that he observed Wife
writing and using the computer after her fall. Husband produced no expert evidence of
Wife’s condition.

       The medical records and testimony of Dr. Hughes support the court’s finding that
Wife sustained a traumatic brain injury in her 2009 fall; Husband has not cited evidence in
the record sufficient to preponderate against that finding.8 Based upon the appropriate
standard of review in alimony determinations, we cannot say that the trial court applied an
incorrect legal standard or reached a clearly unreasonable conclusion in holding that Wife
is incapable of rehabilitation or in the type and amount of alimony awarded. Accordingly,
we affirm the trial court’s award.




        7
           “Consequently, when reviewing a discretionary decision by the trial court, such as an alimony
determination, the appellate court should presume that the decision is correct and should review the evidence
in the light most favorable to the decision.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105–06 (Tenn. 2011).

        8
          Dr. Hughes testified that he reviewed Wife’s medical records prior to his deposition and that “I felt
that I could form an opinion based on my own observation and physical exam of [Wife]. However, when
I reviewed the . . . records closely, it merely substantiated my professional opinion.”

                                                     -8-
                               III. Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed in all respects.




                                            ________________________________
                                            RICHARD H. DINKINS, JUDGE




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