                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   October 15, 2003 Session

             ROSE MARIE HARPER BRITT v. ELMER LEE BRITT

                Direct Appeal from the Chancery Court for Madison County
                          No. 58837    Joe C. Morris, Chancellor



                  No. W2003-00430-COA-R3-CV - Filed December 17, 2003


This appeal arises from a divorce action in which the trial court granted wife an absolute divorce and
open-ended rehabilitative alimony, ordered the parties marital property sold and the assets divided,
and entered a parenting plan submitted by wife. We affirm in part, modify in part, reverse in part,
and remand.

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

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

K. Don Bishop, Henderson, Tennessee, for the appellant, Elmer Lee Britt.

Mary Jo Middlebrooks and Betty S. Scott, Jackson, Tennessee, for the appellee, Rose Marie Harper
Britt.

                                             OPINION

       Rose Marie Harper Britt (“Wife”) and Elmer Lee Britt (“Husband”) were married in March
1974. One child was born of the marriage in July 1986. In August 2001, Wife filed a complaint for
absolute divorce based on irreconcilable differences and inappropriate marital conduct. Husband
answered and counter-claimed on the grounds of inappropriate marital conduct in March 2002.

        The matter was heard on July 30, 2002. On August 29, 2002, the court notified the parties’
attorneys, by letter, of its ruling. The court awarded Wife a divorce on the grounds of inappropriate
marital conduct. The court found the parties could not reach a satisfactory agreement regarding the
division of property, and ordered it to be sold and the proceeds divided. It also ordered Husband to
pay Wife rehabilitative alimony of $800 per month until further orders of the court, and referenced
a previously approved parenting plan.
       Husband’s attorney filed a motion to withdraw from the lawsuit on November 5, 2002.
However, the court did not grant the motion until February 18, 2003, when it entered an agreed order
allowing substitution of counsel for Husband.

       In January 2003, Wife’s attorney submitted an order of absolute divorce and mediated
parenting plan to the court. Wife’s attorney informed the court that she had forwarded these
documents to Husband’s attorney on November 7, 2002. She further informed the court that she had
made several requests for responses from Husband’s attorney, but had received none.

        The court entered the order for absolute divorce and permanent parenting plan on January
24, 2003. The final order reiterated the terms of the court’s August 2002 ruling, ordered each party
to pay their own attorney’s fees, and ordered Husband to pay the costs of the cause. Husband filed
a timely appeal to this Court.

                                         Issues Presented

       Husband raises the following issues for review by this Court:

       (1)     Whether the parenting plan entered by the court without a hearing in January
               2003 supersedes a parenting plan that was approved but not entered in July
               2002.

       (2)     Whether the court erred by awarding rehabilitative alimony to Wife without
               setting a termination date.

       (3)     Whether the rehabilitative alimony award is excessive.

       (4)     Whether the trial court erred by ruling the parties’ property could not be
               divided and must be sold.

       (5)     Whether the trial court erred in entering the Order for Absolute
               Divorce without the approval of Husband or his attorney.

       Wife requests attorney’s fees and costs incurred on appeal.

                                        Standard of Review

       To the extent these issues involve questions of fact, our review of the trial court's ruling is
de novo with a presumption of correctness. Tenn. R. App. P. 13(d); Sullivan v. Sullivan, 107 S.W.3d
507, 509 (Tenn. Ct. App. 2002). We may not reverse the trial court's factual findings unless they are
contrary to the preponderance of the evidence. Id. at 510. With respect to the court's legal
conclusions, however, our review is de novo with no presumption of correctness. Id.



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                                           Parenting Plan

       Husband submits the trial court erred by entering a parenting plan which differed from a plan
previously agreed by the parties and approved by the court in July 2002. Upon review of the two
plans, we find the only substantive difference to be the amount of child support to be paid by
Husband. The parenting plan entered by the court in January 2003 set child support at $655 per
month. The plan agreed upon in July 2002 provided for child support of $580 per month.

        Husband does not argue that the amount of child support set in the January 2003 order
deviates from the statutory guidelines, or that the court erred in calculating his income in determining
child support. Further, the amount of child support set by the trial court has not been raised as an
issue on appeal. Thus any error in entering one parenting plan over the other is harmless. We affirm
the parenting plan as entered in January 2003.

                                           Alimony Award

         Husband contends that although the trial court properly awarded Wife rehabilitative alimony,
it erred by leaving the duration of the award open-ended. Wife, on the other hand, submits the award
was within the trial court’s discretion and, further, that the court properly should have awarded her
alimony in futuro. We agree with wife that alimony in futuro is appropriate in this case, and
accordingly modify the trial court’s award.

        We begin our analysis of this issue by noting that, contrary to Wife’s assertion, this Court’s
opinion in Perry v. Perry, No. W2001-01350-COA-R3-CV, 2002 WL 1751407 (Tenn. Ct. App.
March 21, 2002)(Farmer, J., dissenting), rev’d, 114 S.W.3d 465 (Tenn. 2003), does not stand for the
proposition that a court may award rehabilitative alimony without setting a duration for the award.
In Perry, the trial court awarded Ms. Perry rehabilitative alimony for a period of two years, and
ordered the parties to return to court before the end of that time for a review of the award. Perry,
114 S.W.3d at 468. The issue on appeal in Perry was whether a showing of a substantial and
material change of circumstance was required to modify the award. The Tennessee Supreme Court
reversed this Court, holding that, although the trial court retains jurisdiction to modify an award of
rehabilitative alimony for the duration of the award, such modification requires a showing of
substantial and material change of circumstance. Id. Both this Court and the Tennessee Supreme
Court, however, specifically declined to opine on the propriety of the original award of rehabilitative
alimony. Id. Thus the reasoning of Perry is inapplicable to this case. Further, in light of our
conclusion that alimony in futuro is appropriate in this case, we decline to address the issue of
whether a trial court may properly award rehabilitative alimony without setting a specific duration
for the award.

       Despite the preference for rehabilitative alimony, after reviewing the record before us, we
believe an award of alimony in futuro is appropriate in this case. These parties were married in
1974, when Wife was sixteen years of age. They were married for twenty-eight years and have one
child. During the course of the marriage, Wife was primarily a homemaker, although she worked


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intermittently part-time as a substitute teacher and teacher’s aide. Wife has a high-school education,
and currently works at Wal-Mart earning approximately $7.28 per hour. Wife testified that her hours
at Wal-Mart are limited to twenty-five per week because of Wal-Mart’s cut-backs on payroll.
Husband testified that his gross income from his employment as a mechanic at Sonoco and farming
is in excess of $50,000 per year. We accordingly modify the award of alimony to Wife to an award
of alimony in futuro. We remand for a determination of the amount of alimony in accordance with
the factors enumerated in Tenn. Code Ann. § 36-5-101(d)(1). In light of the foregoing, it is
unnecessary for us to address Husband’s assertion that the amount of the alimony award was
excessive.

                                         Division of Property

        Both Husband and Wife submit the trial court erred by ordering the property in this case sold,
rather than dividing the property. As we perceive it, the primary dispute here concerns who should
receive a new home on Liberty Road, which is mortgaged for $91,500, and who should receive an
older, but debt-free, home on Willoughby Road. Both parties submit they should receive the Liberty
Road home. The order of the trial court reads:

        The Court has not been able to reach a satisfactory conclusion from the proposals
        presented in the above cause. Therefore, all property, both real and personal, will be
        sold and the cash derived therefrom will be divided equally between the parties.


The trial court further ordered that debts of $91,591.91 to Farm Credit Services and $2,979.89 to
WFS Financial would be paid out of proceeds from the sale.

        We agree with the parties that this is unsatisfactory. Although under Tenn. Code Ann. § 36-
4-121 it is within the discretion of the trial court to order the sale of property, we do not believe this
case calls for the sale of all property, both real and personal. Moreover, the court has made no
findings regarding what property, if any, is separate property. Although the equities of this case
might require the sale of the parties’ real property, we do not believe equity demands the sale of all
property, both real and personal. Moreover, we believe the totality of the property can be divided
in such a way as to be equitable to both parties upon application of the statutory considerations. We
accordingly reverse the order requiring the sale of all property. We remand for a determination of
what property, if any, is separate property, and for an equitable division of property pursuant to Tenn.
Code Ann. §36-4-121.

                                              Conclusion

        We affirm the trial court’s judgment awarding Wife an absolute divorce and the parenting
plan as entered in January 2003. We modify the award of rehabilitative alimony to Wife to an award
of alimony in futuro, and remand for a determination of the amount of alimony. We reverse the
order requiring all property of the parties sold, and remand for an equitable division of property.


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         In light of our holdings on the foregoing, the propriety of the entry of the absolute divorce
without Husband’s approval is pretermitted. We decline Wife’s request for attorney’s fees. Costs
of this appeal are taxed to the appellant, Elmer Lee Britt, and his surety, for which execution may
issue if necessary.



                                                       ___________________________________
                                                       DAVID R. FARMER, JUDGE




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