                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  February 12, 2009 Session

   BRENDA KAY (WOODS) SHOOSTER v. RAYMOND (RAY) GERALD
                        SHOOSTER

                  Appeal from the General Sessions Court for Roane County
                         No. 7588A   Dennis W. Humphrey, Judge


                                ________________________

                No. E2008-00877-COA-R3-CV - FILED MARCH 6, 2009
                                ________________________


In this divorce action, the husband appeals the trial court’s award to the wife of permanent alimony.
In addition, he contends the trial court erred in requiring him to pay the wife’s monthly health
insurance premiums and to maintain an existing life insurance policy on his life with the wife
designated as the beneficiary. We affirm.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
                               Affirmed; Case Remanded

JOHN W. MCCLARTY , J., delivered the opinion of the court, in which CHARLES D. SUSANO , JR. and
D. MICHAEL SWINEY , JJ. joined.

Scarlett B. Latham, Albany, Kentucky, for appellant, Raymond (Ray) Gerald Shooster.

Browder G. Williams, Kingston, Tennessee, for appellee, Brenda Kay (Woods) Shooster.


                                            OPINION


                                       I. BACKGROUND

         The parties, Brenda Kay (Woods) Shooster (“Wife”) and Raymond (Ray) Gerald Shooster
(“Husband”), were married on May 2, 1981. Wife filed for divorce in July 2005. At the time of the
trial, the couple had been married for 26 years.


       During the trial, a conference was conducted, after which the court noted as follows:
         The only – the biggest issue we have here is the – her request for the need for
         alimony. And I think this Court feels that she would be deserving of alimony, even
         not looking at the fault factor.

         Wife is a high school graduate with some college course work. Her work history includes
jobs in a machine shop, convenience store, billing office, hardware store, and a mortgage company.
In her past jobs, Wife typically earned between $7 to $9 per hour. In 2004, upon obtaining her
affiliate broker’s license, Wife began selling real estate. Her real estate earnings are commission
based.

        At the time of trial, Wife testified that she had eleven active real estate listings; however, as
of August 30, 2007, she claimed to have made no sales for the year. She denied hiding any income,
claimed to have applied unsuccessfully for other employment, and indicated that she was cleaning
another realtor’s house “[o]nce a week, once every two weeks” to make money to purchase items
she needed. Wife opined that she was a good real estate agent and had no plans to discontinue her
pursuit of that career. Husband acknowledged that Wife “used to sell a lot of property” when she
worked at Crye-Leike, where she spent a lot of time at the office and requested a lot of “floor time”
with the company. He complained that Wife’s income precipitously declined when she made the
voluntary decision to leave Crye-Leike and to go to Appalachian Realty with her friend Susan
McCombs.

        Wife testified that she has severe allergies and asthma, mitral valve prolapse, high blood
pressure, and a genetic tendon disorder for which she had received surgery on her shoulder and wrist.
She stated that she has to take shots every week to keep her allergies under control. Wife further
noted that she must have mammograms performed every three months to check for recurring breast
lumps, as she has already had lumps twice removed from her breasts. Wife admitted that none of
these conditions prevent her from working as a realtor.

       Husband is also a high school graduate. At the time of the trial, he was employed by Johnson
Controls in Athens and was earning approximately $65,000 per year. According to Husband, he was
paid $3,768 per month.1 Additionally, he earned $100 per month as a quality manager of a junkyard.

       In 2003, the reported income for the couple was $72,074. Wife’s gross income that year was
$744 from selling real estate. In 2004, Husband had income of $58,208; Wife reported a gross
income of $25,930 from real estate sales. In 2005, the year Wife filed for divorce, her reported gross
income dropped to $15,261. Husband’s income that year was $66,942. In 2006, during the divorce
proceedings, Wife reported gross commissions of only $3,285. Husband earned $61,793 that year.
         At trial, Husband estimated his post-divorce monthly living expenses would be about
$2,000 per month. Wife submitted that her estimated monthly living expenses after the divorce
would be $3,456.




         1
          At trial, Husband stated his monthly income was $3,168, but indicated that was after $600 was deducted to pay
on his loans from his 401(k). Those loans have now been paid with proceeds from the sale of the marital residence.

                                                         -2-
       It was ordered by the trial court that most of the marital debt be paid from the sale proceeds
of the marital residence after payment of the mortgage balance on the residence.2 The closing
statement from the sale of the marital residence reflects that the sales price was $209,000. After
payment of the mortgage, the debts recited in the final decree and the costs of the sale, the parties
each should have received approximately $34,327.46.

       At the conclusion of the trial, the court noted the following in its findings of fact and
conclusions of law:

       The fifty-three-year-old wife, whose income as a realtor is minimal, seeks alimony.
       The husband, 46, earns approximately $70,000 annually. Considering the statutory
       criteria, and especially Ms. Shooster’s extensive health issues, the court finds that
       permanent alimony is appropriate and hereby orders such at $1,500 each month. In
       addition thereto, Mr. Shooster is Ordered to pay his ex-wife’s health insurance
       premiums, and to maintain the existing life insurance policy of $100,000 with Ms.
       Shooster as the beneficiary thereon, providing proof every June 1st and every
       December 1st that such is maintained.

In the Final Decree of Divorce, the trial court held, inter alia, as follows:

       The Court found that both the plaintiff and the defendant are guilty of inappropriate
       marital conduct, and that they should be declared divorced pursuant to T.C.A. § 26-4-
       129.
                                                ***
       It is further ORDERED by the Court that the defendant shall pay to the plaintiff One
       Thousand Five Hundred and 00/100 ($1,500.00) Dollars each month as permanent
       alimony, which will end on the death of either party or the remarriage of the plaintiff;
       that, in addition, the defendant shall pay the monthly premium cost for health
       insurance for the plaintiff; and that the defendant shall maintain his existing life
       insurance policy with Tennessee Farmers Life Insurance Company account #051677,
       with a death benefit payable to the plaintiff in the amount of One Hundred Thousand
       and 00/100 ($100,000.00) Dollars.

Final Decree (entered April 14, 2008). Husband filed a timely appeal.


                                                     II. ISSUES

       1. Whether the trial court erred in awarding Wife permanent alimony in the amount
       of $1,500 per month and in requiring Husband to pay the monthly premium on her
       health insurance.




       2
           The parties agreed on a distribution of their personal property and no dispute has arisen regarding that issue.

                                                           -3-
       2. Whether the trial court erred in ordering Husband to maintain Wife as a
       beneficiary on his life insurance policy.


                                 III. STANDARD OF REVIEW

        Our review is de novo upon the record, accompanied by a presumption of correctness of the
findings of fact of the trial court, unless the preponderance of the evidence is otherwise. Tenn. R.
App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court’s conclusions of law
are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v. Loudon
County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001); Burlew v. Burlew, 40 S.W.3d 465, 470
(Tenn. 2001).


                                        IV. DISCUSSION

                                                 A.

        Trial courts have broad discretion in awarding spousal support. Bratton v. Bratton, 136
S.W.3d 595, 605 (Tenn. 2004). “Accordingly, ‘[a]ppellate courts are generally disinclined to
second-guess a trial judge’s spousal support decision unless it is not supported by the evidence or
is contrary to the public policies reflected in the applicable statutes.’ ” Bogan v. Bogan, 60 S.W.3d
721, 727 (Tenn. 2001) (quoting Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998)). The
role of an appellate court in reviewing an award of spousal support is to determine whether the trial
court applied the correct legal standard and reached a decision that is not clearly unreasonable. Id.
at 733. Thus, this court gives awards of alimony an abuse of discretion review. See Bratton, 136
S.W.3d at 605. If a discretionary decision is within a range of acceptable alternatives, we will not
substitute our judgment for that of the trial court simply because we may have chosen a different
alternative. White v. Vanderbilt Univ., 21 S .W.3d 215, 223 (Tenn. Ct. App.1999).

       A threshold determination for the court in deciding whether to award alimony is the
determination of whether the spouse seeking alimony is economically disadvantaged. Perry v. Perry,
114 S.W.3d 465, 467 (Tenn. 2003). Once the trial court has found a party to be economically
disadvantaged relative to his or her spouse, it must determine the nature, amount, length of term, and
manner of payment of the award. Id. at 467.

       In making an alimony award, the court must consider all relevant factors under T.C.A. § 36-
5-121(i)(2005), but the two most relevant factors in determining the amount of alimony awarded are
the economically disadvantaged spouse’s need and the obligor spouse’s ability to pay. Robertson
v. Robertson, 76 S.W.3d 337, 342 (Tenn. 2002). When considering these two factors, the primary
consideration is the disadvantaged spouse’s need. Aaron v. Aaron, 909 S.W.2d 408, 410
(Tenn.1995); Watters v. Watters, 22 S.W.3d 817, 821 (Tenn. Ct. App.1999).

       T.C.A. § 36-5-121(2005) provides as follows in part regarding the criteria to be considered
in making an award of alimony:

                                                 -4-
       (1) 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;

       (2) 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
       reasonably level;

       (3) The duration of the marriage;

       (4) The age and mental condition of each party;

       (5) The physical condition of each party, including, but not limited to, physical
       disability or incapacity due to a chronic debilitating disease;

                                                ***

       (8) The provisions made with regard to the marital property as defined in § 36-4-
       121;

       (9) The standard of living of the parties established during the marriage;

       (10) 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;

       (11) The relative fault of the parties in cases where the court in its discretion, deems
       it appropriate to do so; and

       (12) Such other factors, including the tax consequences to each party, as are
       necessary to consider the equities between the parties.

T.C.A. § 36-5-121(i).

       T.C.A. § 36-5-121 establishes several different classes of alimony, and reflects a statutory
preference for rehabilitative alimony and transitional alimony over periodic alimony. See also
Bratton, 136 S.W.3d at 605; Perry, 114 S.W.3d at 467; Crabtree v. Crabtree, 16 S.W.3d 356, 358
(Tenn. 2000). Section 36-5-121(d)(2) states that “[i]t is the intent of the general assembly that a
spouse, who is economically disadvantaged relative to the other spouse, be rehabilitated, whenever
possible.” The purpose of such an award is to encourage and aid the economically disadvantaged
spouse in becoming more self-sufficient. Burlew v. Burlew, 40 S.W.3d 465, 471(Tenn. 2001).
However, this statutory preference does not displace other forms of spousal support when the


                                                 -5-
circumstances warrant long-term or more open-ended support. T.C.A. § 36-5- 121(d)(3). See also
Aaron, 909 S.W.2d at 410; Anderton v. Anderton, 988 S.W.2d 675, 682 (Tenn. Ct. App. 1998).
T.C.A. § 36-5-121(d)(3) provides that when the disadvantaged spouse is not capable of economic
rehabilitation sufficient to support a reasonable standard of living under the circumstances, the court
may award long-term spousal support.

         There are four types of alimony to be awarded to an economically disadvantaged spouse:
rehabilitative alimony, transitional alimony, alimony in futuro, and alimony in solido. Each type
addresses a specific need. Rehabilitative alimony is temporary support intended to assist the
economically disadvantaged spouse in obtaining the education or training necessary to allow him or
her to achieve a reasonable standard of living in comparison to the standard of living maintained by
the parties during the marriage, or to the post-divorce standard of living available to the other spouse.
T.C.A. § 36-5-121(e)(1). Where rehabilitation is not necessary, transitional alimony may be awarded
to assist the disadvantaged spouse in adjusting to the economic consequences of the divorce. T.C.A.
§ 36-5-121(g)(1). Alimony in futuro and alimony in solido are long term forms of spousal support.
T.C.A. § 36-5-121(f)(1), (h)(1). Alimony in futuro is typically awarded when a spouse is
economically disadvantaged, but rehabilitation is not feasible -- i.e., the disadvantaged spouse
cannot achieve an earning capacity that will allow him or her to maintain an appropriate standard of
living. T.C.A. § 36-5-121(f)(1). This type of alimony is awarded on a “long term basis or until
death or remarriage of the recipient” spouse. Id. Alimony in solido, on the other hand, is a lump
sum award of alimony, but it may be paid in installments over a specific period of time. T.C.A. §
36-5-121(h)(1). Courts typically award this type of alimony to adjust the division of marital
property, Burlew, 40 S.W.3d at 471, or to assist the disadvantaged spouse in paying attorney's fees.
Koja v. Koja, 42 S.W.3d 94, 98 (Tenn. Ct. App. 2000).

       There are no hard and fast rules for making spousal support decisions and such
determinations require a “careful balancing” of the relevant factors. Miller v. Miller, No.
M2002-02731-COA-R3-CV, 2003 WL 22938950 at *3 (Tenn. Ct. App. M.S., Dec. 10, 2003)(citing
Anderton v. Anderton, 988 S.W.2d 675 (Tenn. Ct. App. 1998)).

         T.C.A. § 36-5-121 requires the courts to take into consideration the different roles spouses
may have in a marriage when considering an award of alimony. The statute provides that “[t]he
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 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.” T.C.A.. § 36-5-121(c)(2). Pursuant
to the statute, the courts must consider the parties’ standards of living during the marriage and
post-divorce where one spouse, as the homemaker or parent, has concentrated his or her efforts on
the family, while the other spouse has followed a career. Jackson v. Jackson, No.
W2006-00182-COA-R3-CV, 2007 WL 529928 at *8 (Tenn. Ct. App. W.S., Feb. 22, 2007)(citing
Goodman v. Goodman, No. M2004-02781- COA-R3-CV, 2006 WL 47359 at *4, 5 n. 2 (Tenn. Ct.



                                                  -6-
App. M.S., Jan. 9, 2006); see also Morrow v. Morrow, No. M2003-02448-COA-R3-CV, 2005 WL
1656825 at *8 (Tenn. Ct. App. M.S., July 14, 2005).


                                                  V. ANALYSIS

                                                           A.

        Husband argues that the trial court failed to make a finding that Wife was incapable of being
rehabilitated and made no discernable effort to apply the “statutory criteria” to the facts of the case.
Husband further contends there was no medical proof offered to establish that Wife had “extensive”
health issues which impacted her capacity to work and no evidence in the record establishing a
correlation between any health problems of Wife and a need for alimony. Husband asserts that,
pursuant to T.C.A. § 36-5-121(g), transitional alimony would have been more appropriate in this
case than permanent alimony, because Wife has already furthered her education beyond that of
Husband and has obtained a real estate license.

       A consideration of the Shoosters’ circumstances and the applicable factors enumerated in
T.C.A. § 36-5-121(i), particularly Wife’s need for support balanced against Husband’s ability to
provide support, indicates that the trial court did not abuse its discretion when it awarded Wife
permanent alimony.

        Wife was fifty-three years old at the time of trial and Husband is six years younger. While
Wife did not offer any testimony that her medical conditions interfered with her ability to work, Wife
has considerable health problems that could significantly impact her productivity. At the time of the
divorce, the parties had been married for 26 years, with Wife’s major contribution to the marriage
being as a homemaker, wife, and mother. Under the facts of this case, the disadvantaged spouse,
Wife, is unable to achieve an earning capacity that will permit her to have a standard of living after
the divorce comparable to the post-divorce standard of living for Husband. Thus, Wife is not
capable of economic rehabilitation sufficient to support a reasonable standard of living. The trial
court therefore properly awarded Wife long-term spousal support. T.C.A. § 36-5-121(d)(3) & (f)(1);
see also Anderton, 988 S.W.2d at 682 (“The statutory preference for rehabilitative support does not
entirely displace other forms of spousal support when the facts warrant long term or more
open-ended support.”).3



                                                           B.



         3
          A benefit of alimony in futuro (or permanent alimony) is that it can be modified in the event of a substantial
and material change in circumstances. “An award of alimony in futuro shall remain in the court's control for the duration
of such award, and may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of
substantial and material change in circumstances.” T.C.A. § 36-5-121(f)(2 )(A) .

                                                          -7-
        The trial court also awarded Wife an additional economic benefit by requiring Husband to
pay Wife’s monthly health insurance premiums. Pursuant to T.C.A. § 36-5-121(j), the trial court
“may direct a party to pay the premiums for insurance insuring the health care costs of the other
party, in whole or in part, for such duration as the court deems appropriate.” While the Wife’s
financial need will be reduced by Husband’s payment of $348.84 per month for Wife’s health
insurance, we do not find that the trial court abused its discretion in making this award. See Kemp
v. Kemp, No. 88-175-II, 1988 WL 116368, at *3 (Tenn. Ct. App. M.S., Nov. 2, 1988) (holding that
the receipt of COBRA benefits constitutes a form of alimony).


                                                        C.

        Husband additionally argues that the trial court erred in ordering him to maintain a life
insurance policy on himself in the amount of $100,000 with Wife as the beneficiary. T.C.A. § 36-5-
121(k) authorizes the trial court to require a party to provide life insurance coverage on his own life,
designating the other party as beneficiary, in order to secure his alimony obligation. Thus, the award
is specifically authorized by statute. It was within the trial court’s discretion to award it.4

                                            VI. CONCLUSION

       Based on the foregoing, we affirm (1) the award of permanent alimony to Wife in the amount
of $1,500 a month, (2) the award to Wife of payment of her monthly health insurance premiums by
Husband, and (3) the order that Husband maintain a life insurance policy on himself in the amount
of $100,000 with Wife as the beneficiary. Thus, for the reasons stated herein, we affirm the
judgment of the trial court in its entirety. Costs on appeal are assessed to the Appellant, Raymond
(Ray) Gerald Shooster. This case is remanded to the trial court for enforcement of the court’s
judgment and for collection of costs assessed below, pursuant to applicable law.




                                                                      ______________________________
                                                                      JOHN W. McCLARTY, JUDGE




        4
         The order requiring Husband to maintain life insurance to secure his alimony obligation is modifiable. See
Young v. Young, 971 S.W .2d 386, 393 (Tenn. Ct. App.1997).

                                                       -8-
