                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    June 17, 2008 Session


            LINDA KAY EDWARDS v. RONALD DELL EDWARDS

                  Appeal from the Chancery Court for Cumberland County
                      No. 9520-9-06   Ronald Thurman, Chancellor



                   No. E2007-1680-COA-R3-CV - FILED AUGUST 8, 2008



After sixteen years of marriage, Linda Kay Edwards (“Wife”) sued Ronald Dell Edwards
(“Husband”) for divorce. After the trial, the Trial Court entered an order, inter alia, granting the
parties a divorce, distributing the marital property, and ordering Husband to pay Wife transitional
alimony in the amount of $2,600 per month for twelve months. Wife appeals raising issues
regarding the distribution of marital property and alimony. We modify the Trial Court’s Final
Decree to order that Husband is to pay Wife alimony in futuro in the amount of $1,000 per month
after the transitional alimony ends, and we affirm as modified.


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


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
SHARON G. LEE, J., joined.


Allison Barker Watson and Vivian E. Warner, Crossville, Tennessee for the Appellant, Linda Kay
Edwards.

G. Earl Patton, Crossville, Tennessee for the Appellee Ronald Dell Edwards.




                                            OPINION
                                            Background


              Wife and Husband were married in 1990 in Indiana. No children were born of the
marriage. Husband retired in 2000. That same year, Wife went on disability as a result of her
multiple sclerosis. In 2001, Husband and Wife moved to Tennessee and built a house.
Approximately five years later, Wife sued Husband for divorce. The case was tried without a jury.

                At the time of trial, Wife was 61 years old and was living in Evansville, Indiana,
where she moved after the parties separated. Wife testified that she and Husband each have grown
children and also grandchildren, but they had no children together. Wife was diagnosed with
multiple sclerosis in 1995, during the marriage. She receives Social Security disability of $852 per
month. Wife had no income other than Social Security and the temporary alimony the Trial Court
ordered Husband to pay. Wife, who completed two years of college, did mainly clerical work until
August of 2000, when she went on disability. Wife testified that she takes a number of medications
as a result of her multiple sclerosis. Wife’s affidavit of income and expenses introduced at trial
shows that Wife has Social Security income of $852.00 per month and expenses of $3,026.00 per
month.

                When the parties married, Wife owned a small house with a mortgage on it, a car that
was paid off, and a savings account containing approximately $20,000. Wife also had an IRA, but
as Wife testified that she had no recollection of how much it was worth when the parties married,
she stipulated at trial that this entire account would be considered marital. After the parties married,
Wife sold her house and netted approximately $10,000. Wife gave her mother approximately $1,000
of that money and gave the rest to Husband. Wife testified that when the parties married, Husband
had a pension through Aetna that he had accrued prior to the marriage. Wife testified that she was
not claiming any portion of that pension as marital property. Wife also testified that Husband has
some Vandalia stock that he inherited that is his separate property.

                Wife testified that Husband had an IRA prior to the marriage, which at the time of
trial had approximately $60,000 in it. Wife claimed that $37,931 of that $60,000 is marital property.
When asked how she calculated the $37,931 figure, Wife explained: “With everything, we were
married 10 years of the 16 years that [Husband] worked at the Keller Crescent to accrue that IRA
and so I took the percentage of the 10 years, which was like 67 percent, and averaged it out and
that’s how I got that figure.” Wife testified that Husband elected to take a survivor benefit on his
Aetna pension when he retired. Because he took a survivor benefit, Husband receives less money
each month so that upon his death Wife would continue to receive an income from this source. Wife
stated that she would like to retain this benefit after the divorce if possible. Wife testified that she
is driving a 2006 Town & Country Limited van but that she owes more on this vehicle than it is
worth.

                Husband was 68 years old at the time of trial and in good health. He has a college
degree and worked in advertising and sales until he retired in 2000. After Husband’s retirement, the
parties together had an income of approximately $77,000 per year. Husband explained that when
he retired in 2000: “I had a Keller Crescent pension fund that I had to take a lump sum on. I had a

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profit sharing account and I had a savings account, and they all amounted to $562,000 that I put into
the Merrill Lynch account.” The Merrill Lynch account was a joint account. Husband testified that
not all of this money was earned during the marriage, but he did not know how much of it was
separate property. Husband testified that in 1995, he inherited $131,000 in cash and five shares of
stock in an Illinois bank and that he put the money into the parties’ joint account. Husband stated
that he contributed “[a]t least 90 percent or more” of the money in the marriage. Husband has a
monthly income of $862.50 from an IRA, $1,485 from a pension, and $1,422 from Social Security.
Husband’s affidavit of expenses introduced at trial shows that Husband has expenses of $3,610 per
month. Husband testified that assuming he did not remarry, he would have no objection to Wife
receiving the survivor benefits on his Aetna pension if this were possible. Husband drives a Chrysler
Crossfire with no debt owed on it.

                When asked, Husband testified that Wife could probably get a job “[i]f she was doing
the type of work she did before. It’s not manual labor. If she would have stayed in her marriage,
she wouldn’t have had to gone (sic) back to work in the first place.” Husband testified: “she does
her own housework. I’ve offered many times to get cleaning help for her, but she’s always said no.
She exercises regularly. She takes two and a half mile power walks.” Husband stated that he thinks
Wife is entitled to 35 percent of the house, not 50 percent.

                The Trial Court entered a Final Decree on June 29, 2007, inter alia, granting the
parties a divorce, distributing the marital property, and ordering Husband to pay Wife transitional
alimony of $2,600 per month for twelve months. In its Final Decree, the Trial Court specifically
found and held, inter alia:

               The Court finds that all of the property these parties own is marital property,
       with the exception of a portion of the Husband’s Individual Retirement Account
       Merrill Lynch Account…which was stipulated as the [Husband’s] separate property
       due to [the] fact it was accrued during [Husband’s] work prior to the marriage.

       IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED:

               1. That the parties are hereby declared to be divorced….

               2. Each party is granted the marital personal property that is now in each
       party’s respective possession.

              3. Husband shall have and receive the 2005 Chrysler Crossfire automobile….
       There is no debt owing on this vehicle.…

            4. Wife shall have and receive the 2006 Chrysler Town and Country
       Van…and shall be solely responsible for the debt owed on said vehicle.…

              5. The marital home located at 33 Madeline court, Fairfield Glade, TN 38558
       is valued by the Court at Seven Hundred Eighty Thousand and 00/100 Dollars
       ($780,000.00). The debt owed on said home at the time of this hearing was Two

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       Hundred Eighty Nine Six Hundred Thirty Eight and 00/100 Dollars. ($289,638.00).
       The Wife’s interest in the marital home is One Hundred Ninety Six Thousand One
       Hundred Forty Four and 80/100 ($196,144.80). Husband shall have thirty days from
       the date of entry of this Final Decree to purchase from Wife her interest in the marital
       home. This time may be extended only upon the written agreement of both parties.
       If the Husband fails to purchase Wife’s interest within the time set forth above, the
       home shall be sold by public sale by the Clerk & Master and the proceeds divided
       Sixty per cent (60%) to the Husband, Forty (40%) to the Wife.

               6. Regarding Husband’s Individual Retirement Account,…Twenty Two
       Thousand Two Hundred Seventy Seven and 00/100 Dollars in that account is
       Husband’s separate property and he shall have and receive the same. The remaining
       balance is marital property and shall be divided Sixty (60%) percent to Husband and
       Forty (40%) percent to Wife.

               7. The Wife shall receive the sum of $55,439.60 from the parties[’] joint
       Merrill Lynch CMA account…valued at $138,599.00 (value at date of divorce). This
       amount is a division based upon the Husband receiving Sixty percent (60%) and
       Forty percent (40%) to Wife.

              8. The remaining Merrill Lynch accounts, including Wife’s Individual
       Retirement account are to be divided, Sixty percent (60%) to Husband and Forty
       percent (40%) to Wife.

               9. The Wife is entitled to and Husband is Ordered to pay transitional alimony
       in the amount of Two Thousand Six Hundred and 00/100 Dollars ($2,600.00) per
       month beginning June 1, 2007 and continuing for a total of twelve months.…

In its memorandum opinion dictated from the bench, the Trial Court stated that Wife should be able
to generate sufficient income from the property awarded to her to take care of her needs.

               Post-trial, Husband filed a motion for contempt. After a hearing, the Trial Court
entered a Final Order on November 5, 2007, inter alia, refusing to find Wife in contempt and
amending the Final Decree to include assets inadvertently omitted. The Trial Court held that these
assets “were to be divided in accordance with the Court’s prior order with Sixty (60%) percent to
[Husband] and Forty (40%) to [Wife].”

               Wife appeals to this Court.

                                             Discussion

               Although not stated exactly as such, Wife raises two issues on appeal: 1) whether the
marital property was distributed in an equitable manner; and 2) whether the Trial Court erred in not
awarding Wife alimony in futuro.


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                Husband filed a motion asking this Court to consider certain post judgment facts.
Specifically, Husband requested this Court to consider that Husband chose to take the option given
by the Trial Court to purchase Wife’s interest in the marital home, that Husband incurred closing
costs in connection with this purchase, and that Husband’s mortgage payment has increased as a
result of this purchase. Husband requests that “[i]n the event the Court of Appeals reconsiders
and/or reassesses the parties’ incomes and needs to determine whether or not the Trial Court’s Order
of alimony was appropriate under the circumstances, it would be appropriate to take these facts into
consideration.”

               The Trial Court’s order gave Husband the option of purchasing Wife’s interest in the
marital home. If Husband chose not to purchase Wife’s interest, the home would be sold and the
proceeds divided 60% to Husband and 40% to Wife. Husband chose to purchase Wife’s interest.
Therefore, Husband voluntarily assumed the obligation of a higher mortgage payment. In addition,
under either option, Wife would have been paid for her interest in the home as awarded under the
Trial Court’s order and so has received nothing more than what the Trial Court ordered.

                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).

               We now address whether the marital property was distributed in an equitable manner.
Courts must look to Tenn. Code Ann. § 36-4-121 when determining how to distribute property in
a divorce. In pertinent part, Tenn. Code Ann. § 36-4-121 provides:

       (b) For purposes of this chapter:

               (1)(A) “Marital property” means all real and personal property, both tangible
       and intangible, acquired by either or both spouses during the course of the marriage
       up to the date of the final divorce hearing . . .

                      (B) “Marital property” includes income from, and any increase in
       value during the marriage of, property determined to be separate property in
       accordance with subdivision (b)(2) if each party substantially contributed to its
       preservation and appreciation, . . .

                                                 ***

                       (D) As used in this subsection (b), “substantial contribution” may
       include, but not be limited to, the direct or indirect contribution of a spouse as
       homemaker, wage earner, parent or family financial manager, together with such
       other factors as the court having jurisdiction thereof may determine.



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                                        ***

       (2) “Separate property” means:

                (A) All real and personal property owned by a spouse before marriage,
including, but not limited to, assets held in individual retirement accounts (IRAs) as
that term is defined in the Internal Revenue Code of 1986, as amended;

                                        ***

(c) In making equitable division of marital property, the court shall consider all
relevant factors including:

       (1) The duration of the marriage;

       (2) The age, physical and mental health, vocational skills, employability,
       earning capacity, estate, financial liabilities and financial needs of each of the
       parties;

       (3) The tangible or intangible contribution by one (1) party to the education,
       training or increased earning power of the other party;

       (4) The relative ability of each party for future acquisitions of capital assets
       and income;

       (5) The contribution of each party to the acquisition, preservation,
       appreciation, depreciation or dissipation of the marital or separate property,
       including the contribution of a party to the marriage as homemaker, wage
       earner or parent, with the contribution of a party as homemaker or wage
       earner to be given the same weight if each party has fulfilled its role;

       (6) The value of the separate property of each party;

       (7) The estate of each party at the time of the marriage;

       (8) The economic circumstances of each party at the time the division of
       property is to become effective;

       (9) The tax consequences to each party, costs associated with the reasonably
       foreseeable sale of the asset, and other reasonably foreseeable expenses
       associated with the asset;

       (10) The amount of social security benefits available to each spouse; and



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               (11) Such other factors as are necessary to consider the equities between the
               parties. . . .

Tenn. Code Ann. § 36-4-121 (2005).

               A trial court has wide discretion in dividing the interest of the parties in marital
property. Barnhill v. Barnhill, 826 S.W.2d 443, 449 (Tenn. Ct. App. 1991). As noted by this Court
in King v. King, when dividing marital property:

               The trial court’s goal in every divorce case is to divide the parties’
               marital estate in a just and equitable manner. The division of the
               estate is not rendered inequitable simply because it is not
               mathematically equal, Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn.
               1996); Ellis v. Ellis, 748 S.W.2d 424, 427 (Tenn. 1988), or because
               each party did not receive a share of every item of marital property.
               Brown v. Brown, 913 S.W.2d [163] at 168. . . . In the final analysis,
               the justness of a particular division of the marital property and
               allocation of marital debt depends on its final results. See Thompson
               v. Thompson, 797 S.W.2d 599, 604 (Tenn. App. 1990).

King v. King, 986 S.W.2d 216, 219 (Tenn. Ct. App. 1998) (quoting Roseberry v. Roseberry, No.
03A01-9706-CH-00237, 1998 Tenn. App. LEXIS 100, at *11-12 (Tenn. Ct. App. Feb. 9, 1998), no
appl. perm. appeal filed).

                After a careful and thorough review of the record in light of the statutory factors, we
are unable to conclude that the Trial Court abused its discretion when distributing the marital
property. The division cannot be considered “inequitable simply because it is not mathematically
equal….” Id. at 219. The Trial Court found that Husband “came into the marriage with quite a bit
of money” and that he contributed this significant amount to the marital estate. The Trial Court
found that both parties had contributed to the acquisition of the property contained in the marital
estate. However, the Trial Court also found after considering all the evidence, including Husband’s
having brought considerably more property into the marriage than Wife did, that Husband’s
contribution to the acquisition of the marital estate was greater than Wife’s, and this was the basis
for the Trial Court’s 60% - 40% allocation. As the evidence does not preponderate against the Trial
Court’s findings relative to this issue, and as we find no abuse of discretion, we affirm the Trial
Court’s distribution of the marital property.

               We next consider whether the Trial Court erred in not awarding Wife alimony in
futuro. As pertinent to this issue, Tenn. Code Ann. § 36-5-121 provides:

       (d)(1) The court may award rehabilitative alimony, alimony in futuro, also known
       as periodic alimony, transitional alimony, or alimony in solido, also known as lump
       sum alimony or a combination of these, as provided in this subsection (d).
               (2) It is the intent of the general assembly that a spouse, who is economically
       disadvantaged relative to the other spouse, be rehabilitated, whenever possible, by

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the granting of an order for payment of rehabilitative alimony. 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.
         (3) Where there is relative economic disadvantage and rehabilitation is not
feasible, in consideration of all relevant factors, including those set out in subsection
(i), the court may grant an order for payment of support and maintenance on a long-
term basis or until death or remarriage of the recipient, except as otherwise provided
in subdivision (f)(2)(B).
         (4) An award of alimony in futuro may be made, either in addition to an
award of rehabilitative alimony, where a spouse may be only partially rehabilitated,
or instead of an award of rehabilitative alimony, where rehabilitation is not feasible.
Transitional alimony is 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.

                                         ***

(f)(1) Alimony in futuro, also known as periodic alimony, is a payment of support
and maintenance on a long term basis or until death or remarriage of the recipient.
Such alimony may be awarded when the court finds that there is relative economic
disadvantage and that rehabilitation is not feasible, meaning that 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, considering the relevant
statutory factors and the equities between the parties.

                                         ***

(i) 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:

        (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 earnings
capacity to a reasonable level;

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               (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;
               (6) 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;
               (7) The separate assets of each party, both real and personal, tangible and
       intangible;
               (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.…

Tenn. Code Ann. §36-5-121 (2005). As this Court discussed in Dube v. Dube:

               While all relevant factors must be considered when setting the amount of an
       alimony award, need and the ability to pay are the critical factors. Robertson, 76
       S.W.3d at 342. Discussing the intent behind alimony, our Supreme Court has held:
       "the purpose of spousal support is to aid the disadvantaged spouse to become and
       remain self-sufficient and, when economic rehabilitation is not feasible, to mitigate
       the harsh economic realities of divorce." Burlew v. Burlew, 40 S.W.3d 465, 470-71
       (Tenn. 2001) (quoting Anderton, 988 S.W.2d at 682).

                Although "the legislature has demonstrated a preference for an award of
       rehabilitative alimony[,]" Crabtree v. Crabtree, 16 S.W.3d 356, 358 (Tenn. 2000),
       the relevant alimony statute, Tenn. Code Ann. § 36-5-101(d)(1), does contemplate,
       under the appropriate circumstances, a long-term award of alimony, or alimony in
       futuro, providing: “[w]here there is such relative economic disadvantage and
       rehabilitation is not feasible in consideration of all relevant factors, . . . then the court
       may grant an order for payment of support and maintenance on a long-term basis .
       . . .” Tenn. Code Ann. § 36-5-101(d)(1). "[T]he purpose of [alimony in futuro] is to
       provide financial support to a spouse who cannot be rehabilitated." Burlew, 40
       S.W.3d at 471.

Dube v. Dube, 104 S.W.3d 863, 869 (Tenn. Ct. App. 2002). As our Supreme Court stated in Bratton
v. Bratton, “trial courts should not refrain from awarding long-term support when appropriate under
the enumerated statutory factors. ‘The statutory preference for rehabilitative support does not

                                                   -9-
entirely displace other forms of spousal support when the facts warrant long term or more open-
ended support.’” Bratton v. Bratton, 136 S.W.3d 595, 605 (Tenn. 2004) (quoting Anderton v.
Anderton, 988 S.W.2d 675, 682 (Tenn. Ct. App. 1998)) (other citations omitted).

                The Trial Court stated that Wife should be able to generate sufficient income from
her share of the property division to provide for her needs. The evidence preponderates against this
finding. The evidence in the record on appeal shows that Wife has multiple sclerosis, that she went
on disability in 2000, and that she is unable to go back to work. Wife has shown an income of
$852.00 per month and expenses of $3,026.00 per month. Wife was awarded approximately
$498,000 in assets from the divorce. Although Wife will be able to generate income from these
assets, there was no proof that she will be able to generate enough to meet her needs. We also note
that Husband was awarded an even greater share of the marital estate as his share of the marital
estate totaled approximately $774,000. Husband’s share includes over $457,000 in cash. Just as
Wife undoubtedly will be able generate some income from her assets received in the divorce,
Husband just as undoubtedly will be able generate income from assets he received.

                Wife has shown an economic disadvantage relative to Husband and has shown that
rehabilitation is not feasible. The evidence shows that Wife has a need for alimony in futuro and
Husband has the ability to pay. However, the evidence shows that Husband cannot continue to pay
$2,600 per month. After carefully considering all relevant factors, we modify the Trial Court’s Final
Decree to order Husband to pay to Wife alimony in futuro of $1,000 per month beginning on the first
day of the month immediately after the conclusion of the transitional alimony ordered by the Trial
Court, and we affirm as so modified.




                                            Conclusion

                The judgment of the Trial Court is modified to order Husband to pay to Wife alimony
in futuro of $1,000 per month beginning the first month after the conclusion of the transitional
alimony, and the judgment is affirmed as so modified. This cause is remanded to the Trial Court for
collection of the costs below. The costs on appeal are assessed against the Appellee, Ronald Dell
Edwards.




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       ___________________________________
       D. MICHAEL SWINEY, JUDGE




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