                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                            Assigned On Briefs November 30, 2012

                             LEO HOLT v. ALMA JEAN HOLT

                   Direct Appeal from the Circuit Court for Shelby County
                        No. CT-000498-10      Robert S. Weiss, Judge


                     No. W2012-00265-COA-R3-CV - Filed April 15, 2013


This is an appeal from a divorce action in which the trial court ordered Husband to pay Wife
alimony in futuro and alimony in solido. The trial court refused, however, to order Husband
to pay for the costs of providing COBRA benefits for Wife. Husband and Wife appeal.
After thoroughly reviewing the record, we affirm in part and reverse in part.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
                       part, Reversed in part & Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

Eugene G. Douglass, Bartlett, Tennessee, for the appellant, Leo Holt.

Felicia Corbin Johnson, Memphis, Tennessee, for the appellee, Alma Jean Holt.

                                           OPINION 1
                              I. Background and Procedural History

      On December 11, 1987, Leo Holt (“Husband”) and Alma Jean Holt (“Wife”) were
married. Husband has a Bachelor of Arts in Business Administration and a Bachelor of


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
Science in Religion and his Masters in Theology. Wife has a Masters in Biblical Studies and
her doctorate in Ministry. In 1989, Husband and Wife started a nondenominational church
in Memphis, Tennessee. Since its inception, the church has grown substantially both in terms
of membership and the physical size of the church which is now housed in a multi-million
dollar building.

       On March 25, 2009, Husband initially filed for divorce against Wife in the Circuit
Court of Shelby County. After conducting a trial on the matter, however, the case was
dismissed based on Husband’s failure to establish grounds for divorce. Shortly thereafter,
on February 3, 2010, Husband re-filed for divorce alleging inappropriate marital conduct and
irreconcilable differences. On March 16, 2010, Wife filed an answer and counter-complaint
for divorce against Husband alleging inappropriate marital conduct, abandonment, and cruel
and inhuman treatment. After Husband filed an answer to the counter-complaint, Wife filed
a motion for temporary spousal support on June 21, 2010. Thereafter, on July 14, 2010, the
Divorce Referee awarded temporary support to Wife in the amount of $3,300 per month and
further ordered Husband to continue to pay the parties’ bills. The trial court agreed, and on
March 15, 2011, ordered the same by entry of its order on the Divorce Referee’s ruling.

       After extensive litigation, on July 28, 2011, the parties stipulated that grounds for
divorce existed pursuant to Tennessee Code Annotated section 36-4-129. Thereafter, the trial
court conducted several bifurcated hearings on the parties’ complaints for divorce which took
place on August 1, September 23 and 28, October 12, and November 3, 2011. Thereafter,
on December 13, 2011, the trial court entered its final decree of divorce. The trial court
ordered, in relevant part, as follows: awarded Wife her marital portion of Husband’s pension
in the amount of $274.82 per month; awarded Wife alimony in solido in the amount of
$29,700 based on Husband’s failure to make mortgage payments on the parties’ marital
residence; awarded Wife alimony in futuro in the amount of $2,500 per month; declined
Wife’s request that Husband be required to pay for the costs of providing her COBRA
benefits; and awarded Wife $10,000 in attorney’s fees as alimony in solido. Subsequently,
Husband and Wife each timely filed a notice of appeal to this Court.

                                   II. Issues Presented

       Husband presents the following issues, as restated and consolidated, for our review:

       (1)    Whether there the trial court erred by awarding Wife alimony in solido
              in the amount of $29,700, and

       (2)    Whether the trial court erred by awarding Wife alimony in futuro in the
              amount of $2,500 per month.

                                             -2-
       In addition, Wife presents the following issues, as restated, for our review:

       (1)    Whether the trial court erred by refusing to order Husband to pay for
              the costs of providing COBRA benefits for Wife,

       (2)    Whether the trial court erred in its alimony in solido award by only
              ordering Husband to pay one-half of her attorney’s fees, and

       (3)    Whether the trial court erred by refusing to consider income generated
              through the church when making its determination of alimony and its
              distribution of the marital estate based on the theory that the church was
              an alter ego of Husband.

                                  III. Standard of Review

        It is well settled that a trial court’s decision regarding an award of spousal support is
factually driven and involves the careful balancing of many factors. Robertson v. Robertson,
76 S.W.3d 337, 340-41 (Tenn. 2002); Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001).
“[T]he 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.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011) (quoting
Broadbent v. Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006)). We decline to second-guess
a trial court's decision to award spousal support absent an abuse of discretion. Id. (citing
Robertson, 76 S.W.3d at 343). A trial court abuses its discretion when it “causes an injustice
by applying an incorrect legal standard, reaches an illogical result, resolves the case on a
clearly erroneous assessment of the evidence, or relies on reasoning that causes an injustice.”
Id. (citing Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011); Henderson
v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010)). This standard does not permit an appellate
court to substitute its judgment for that of the trial court. Myint v. Allstate Ins. Co., 970
S.W.2d 920, 927 (Tenn. 1998). Rather, “[u]nder the abuse of discretion standard, a trial
court’s ruling ‘will be upheld so long as reasonable minds can disagree as to propriety of the
decision made.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v.
Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 266, 273 (Tenn.
2000)). We review the trial court’s findings of fact de novo with a presumption of
correctness, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); Crabtree
v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000). No presumption of correctness attaches to
the trial court’s conclusions of law, however, and our review is de novo. Bowden v. Ward,
27 S.W.3d 913, 916 (Tenn. 2000).




                                               -3-
                                               IV. Analysis

       We begin our analysis by addressing Wife’s argument that the trial court erred by
refusing to consider income generated through the church when making its determination of
alimony and its distribution of the marital estate based on the theory that the church was an
alter ego of Husband. However, Wife failed to cite any applicable law or form any legal
argument in her brief to support this contention. As we recently stated in Forbess v. Forbess,
370 S.W.3d 347 (Tenn. Ct. App. 2011):

        This court has repeatedly held that a party’s failure to cite authority for its
        arguments or to argue the issues in the body of its brief constitute a waiver on
        appeal. Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006)
        (failure “to cite to any authority or to construct an argument regarding [a]
        position on appeal” constitutes a waiver of the issue); Bean v. Bean, 40 S.W.3d
        52, 55–56 (Tenn. Ct. App. 2000) (“Courts have routinely held that the failure
        to make appropriate references to the record and to cite relevant authority in
        the argument section of the brief as required by Rule 27(a)(7) constitutes a
        waiver of the issue.”).

Id. at 355; see also Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001) (“Where a
party makes no legal argument and cites no authority in support of a position, such issue is
deemed to be waived and will not be considered on appeal.”) (citing Branum v. Akins, 978
S.W.2d 554, 557 n.2 (Tenn. Ct. App. 1998); see also Morris v. Snodgrass, 886 S.W.2d 761
(Tenn. Ct. App. 1994); Maryville Housing Authority v. Ramsey, 484 S.W.2d 73 (Tenn. Ct.
App. 1972)). Therefore, because Wife failed to cite any applicable law or provide any legal
argument to support this position, we conclude that this issue is waived.2

                                          A. Alimony In Solido

       Next, we shall address whether the trial court erred in its award of alimony in solido
in favor of Wife. Husband argues that the trial court erred by ordering him to pay Wife
$29,700 in alimony in solido based on his failure to make mortgage payments on the parties’
marital residence. On the other hand, Wife argues that the trial court acted within its

        2
          Wife also argues in the “Conclusion” section of her brief that Husband should be required to obtain
life insurance naming Wife as the sole irrevocable beneficiary as part of his alimony obligation. However,
Wife failed to designate this as an issue in her brief. “We may consider an issue waived where it is argued
in the brief but not designated as an issue.” Forbess v. Forbess, 370 S.W.3d 347, 356 (Tenn. Ct. App. 2011)
(citing Childress v. Union Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002); Tenn. R. App. P. 27(b)
(requiring that an appellee who requests affirmative relief must include “the issues and arguments involved
in his [or her] request for relief” in the appellee brief)). Accordingly, we conclude that this issue is waived.

                                                      -4-
discretion by awarding her alimony in solido in the amount of $29,700, but further argues
that the trial court erred by only awarding her one-half of her attorney’s fees as additional
alimony in solido.

       In Gonsewski v. Gonsewski, 350 S.W.3d 99 (Tenn. 2011), the Tennessee Supreme
Court explained that:

       [A]limony in solido, is also a form of long-term support. The total amount of
       alimony in solido is set on the date of the divorce decree and is either paid in
       a lump sum payment of cash or property, or paid in installments for a definite
       term. Tenn. Code Ann. § 36–5–121(h)(1); Broadbent, 211 S.W.3d at 222
       (“Alimony in solido consists of a definite sum of money that is paid in a lump
       sum or in installments over a definite period of time.”). “A typical purpose of
       such an award would be to adjust the distribution of the parties' marital
       property.” Burlew, 40 S.W.3d at 471. Alimony in solido “may be awarded in
       lieu of or in addition to any other alimony award, in order to provide support,
       including attorney fees, where appropriate.”            Tenn. Code Ann. §
       36–5–121(d)(5). Unlike alimony in futuro, the other form of long-term
       support, alimony in solido is considered a final judgment, “not modifiable,
       except by agreement of the parties,” and does not terminate upon the death or
       remarriage of the recipient or payor spouse. Tenn. Code Ann. §
       36–5–121(h)(2)–(3); see Riggs [v. Riggs], 250 S.W.3d [453,] 456 n. 3.

Id. at 108.

        The trial court’s final decree provides that “Wife is awarded $29,700.00 as alimony
in solido which represents the 9 months of mortgage payments Husband failed to make on
the marital residence from October, 2009 until foreclosure. Said sum shall be paid at no
interest at the rate of $500.00 per month beginning in December, 2011.” In arriving at this
conclusion, the trial court made the following oral rulings:

       The [marital residence] was purchased for $490,000 with $70,000 down.
       Mortgage was paid by husband until October 2009, at which time husband
       moved out. Unfortunately, when husband moved out he stopped paying
       anything towards the marital residence and the mortgage company in turn
       began foreclosure proceedings.

               While husband did contact a realtor and attempt to relieve the parties
       of this obligation, it was unsuccessful. Wife, however, in addition, just ignored
       the realities of the situation or refused to cooperate with the realtors, which

                                              -5-
       contributed to the property being foreclosed. A request that the house be
       merely repurchased from the bank completely ignores the economic realties of
       these parties to sustain that notion.

                However, while husband claims he stopped paying the mortgage due to
       a drop in his income, he was still grossing in excess of $100,000 a year
       between his pension and church salary. While there was some testimony that
       a suit is pending in Chancery regarding debt deficiency from the mortgage, no
       proof was ever presented regarding what that amount was.

              ....

             With regards to alimony in solido, I'm going to award wife $29,700 in
       alimony in solido, which represents the nine months of mortgage payments
       which husband just failed to make. This should be paid in installments of $500
       per month until the balance is paid in full.

        After thoroughly reviewing the record, we conclude that the trial court abused its
discretion by awarding Wife alimony in solido in the amount $29,700. We are unable to find
any support for the trial court’s determination. Wife did not seek alimony in solido based on
Husband’s missed mortgage payments. Nor is there any indication from the record that the
trial court’s intent behind its award of alimony in solido was an attempt to adjust the
distribution of the parties’ marital estate. The trial court simply concluded that, due to
Husband’s failure to pay nine consecutive mortgage payments, Wife was entitled to the
amount of those missed payments as alimony in solido. Absent any evidence or findings of
dissipation by Husband, there is no basis for the trial court’s award of alimony in solido
based on Husband’s missed mortgage payments. Therefore, we reverse the judgment of the
trial court awarding Wife alimony in solido in the amount of $29,700.

      In addition to the award of $29,700 in alimony in solido, the trial court also awarded
Wife approximately one-half of her attorney’s fees as alimony in solido in the amount of
$10,000. Specifically, the trial court concluded as follows regarding Wife’s attorney’s fees:

               With regards to the request for attorneys fees, there was an affidavit
       filed with this Court seeking approximately $20,000 in attorney’s fees. Again,
       the problem in this case is that there just aren’t any assets. I mean, the house
       is gone, for, you know, whatever reason. Both parties testified that they
       pawned or frittered away, you know, the assets that they had in their
       possession. Mrs. Holt testified that she gave away $18,000 in furs for far out
       less than valued. Again, there was just no proof of what she actually got for

                                             -6-
       it and there is no proof of what Mr. Holt got for his watch, and I didn't have
       anything to base it on.

              So, with regards to the attorney’s fees, I will award wife as alimony in
       solido, attorney’s fees in the amount of $10,000, and that payment shall be
       worked out between the parties.

On appeal, Wife argues that the trial court erred in this regard and instead should have
awarded her the entire amount of her attorney’s fees and expenses which were approximately
$20,000.

       The decision to award attorney’s fees as an award of alimony in solido lies within the
discretion of the trial court, and this Court will not reverse the award absent an abuse of
discretion. See Fickle v. Fickle, 287 S.W.3d 723, 737 (Tenn. Ct. App. 2008). It appears from
the record that the trial court properly considered the totality of the circumstances between
the parties in arriving at its decision to award Wife one-half of her attorney’s fees. We must
affirm the trial court’s ruling “‘so long as reasonable minds can disagree as to propriety of
the decision made.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v.
Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 266, 273 (Tenn.
2000)). We are unable to find any abuse of discretion in this matter. Therefore, we affirm
the judgment of the trial court awarding Wife one-half of her attorney’s fees as alimony in
solido in the amount of $10,000.

                                   B. Alimony In Futuro

        Husband argues on appeal that the trial court erred in awarding Wife alimony in futuro
in the amount of $2,500 per month. Tennessee Code Annotated section 36-5-121 provides
courts discretion to award spousal support “according to the nature of the case and the
circumstances of the parties.” Tenn. Code Ann. § 36-5-121(a) (2010). Although there is a
legislative preference for awarding rehabilitative alimony, “when the court finds that there
is relative economic disadvantage and that rehabilitation is not feasible,” an award of
alimony in futuro is warranted. Tenn. Code Ann. § 36-5-121(f)(1). In other words, alimony
in futuro is appropriate when a

       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.



                                              -7-
Id. When determining whether to award spousal support and the nature, amount, and
duration of such support, courts consider several 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;
              (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(i)(1)-(12)(Supp. 2012). The two most important factors
relating to a trial court’s award of alimony are the need of the economically disadvantaged
spouse and the obligor spouse’s ability to pay. See Watson v. Watson, 309 S.W.3d 483,
497-98 (Tenn. Ct. App. 2009) (citation omitted); Williams v. Williams, 286 S.W.3d 290,
295-96 (Tenn. Ct. App. 2008) (citations omitted).

      In its final decree, the trial court made the following findings regarding its award of
alimony in futuro:



                                              -8-
       With regards to alimony, the Court considered all of the factors of T.C.A.
       §36-5-121 (i). Both parties have approximately the same education with the
       Husband having a degree from Friendship University in Biblical Scholarship
       and Wife has a doctorate from Friends Christian University. The parties were
       married 24 years and although they are getting old and having ailments, there
       was no proof that age or medical condition prohibited employment nor was
       there any proof of physical disability or incapacity. The separate assets of each
       party was not an issue and provisions were made with regards to marital
       property. At the peak of their earnings, the parties were jointly making
       approximately $13,000.00 per month. The parties continued to live at that
       level which became unsustainable for either of them and the Court determines
       that the standard of living is not a significant factor. Relative fault was not a
       consideration as both parties were at fault on some level and tax consequences
       were not an issue. Husband is the minister at Grace Fellowship Christian
       Church and works full time and has better earning capacity than Wife. Wife
       has the ability to work but has not made a serious effort to find employment
       since the filing of this divorce. Wife has shown a certain level of need and
       Husband has the ability to pay.

              ....

              Husband shall pay Wife $2,500.00 per month as alimony in futuro
       beginning in December, 2011. Husband has been paying alimony pendente lite
       on or about the 21st day of each month and will continue to make the alimony
       payments hereunder on or about the same date and they will not be deemed
       late until after the 26th.

Additionally, the trial court made the following oral rulings which were incorporated into the
final decree:

               While both parties have degrees from Friendship University in biblical
       scholarship, and wife has a doctorate from Friends Christian University, I'm
       going to find that husband has a far greater role of earning capacity in that he
       is the lead pastor at Grace Christian Fellowship Church, and at this time wife
       does not have that means or ability.
               Roles of education. The parties have approximately the same
       education.
               Duration of Marriage. This is a 24-year marriage and there’s,
       obviously, consideration. The age and mental condition of each party, while
       there was testimony that both parties are getting old and having ailments, there

                                              -9-
        was no proof that age or medical condition was a factor, nor was there any
        proof that physical condition or physical disability or incapacity was a
        consideration.
                Number six, extent. It would be undesirable to seek employment
        outside because of minor child, obviously, is not relevant in this case.
                Separate assets of each party was not an issue. Provisions were made
        with regards to marital property, parties didn't have anything to divide.
                Standard of living. I think the testimony was clear that the parties were,
        in their salad days, between the two of them they were earning, approximately,
        about $13,000 a month between wife’s $4500 a month and Pastor Holt’s
        pension and his salary from Grace Christian Fellowship. Unfortunately, when
        those amounts declined they continued to live at that level, which was
        unsustainable, and it was unsustainable for either one of them. So the standard
        of living is not a significant factor that the Court is considering. Wife did help
        to support Pastor Holt, Mr. Holt, in his leadership of Grace Christian
        Fellowship Church.
                Relative faults was not a consideration. Both parties were at fault on
        some level, and tax and consequences was not an issue.
                For all that considered, wife is awarded $2500 a month in alimony in
        futuro.

        Upon review of the record, we find no abuse of discretion in the trial court’s decision
to award Wife alimony in futuro. In arriving at its decision, the trial court properly
considered the relevant factors set forth at Tennessee Code Annotated section 36-5-121(i).
At the time of trial, Husband was 64 years old, and Wife was 57 years old. During the
parties’ twenty-four year marriage, Wife worked alongside Husband in order to grow and
develop the church they established together in 1989. In January 2010, however, Wife was
fired from her position at the church and was still unemployed at the time of trial.3 Thus,
Wife has a definite need for support. On the other hand, Husband continues to serve as the
pastor of the church earning a substantial income, while also receiving monthly pension
benefits from the City of Memphis. In fact, Husband’s figures illustrate his ability to pay
support to Wife given that his income exceeds $9,000 per month. A relative economic
disadvantage undoubtedly exists between the parties. While Wife will hopefully secure some
form of employment in the future, it is unlikely that she will ever be able to attain a standard
of living that is reasonably comparable to that enjoyed by the parties during the marriage, or
to that enjoyed by Husband post-divorce. Accordingly, we affirm the trial court’s decision
to award Wife alimony in futuro in the amount of $2,500 per month.


        3
        In her brief, Wife states that Husband fired her from her position at the church. Husband states,
however, that the decision to fire Wife was made by the Board of Deacons at the church.

                                                  -10-
                                          C. COBRA Benefits

        Finally, we address Wife’s argument that the trial court erred by refusing to order
Husband to pay for the costs of providing COBRA benefits for Wife. Pursuant to Tennessee
Code Annotated section 36-5-121(k), “[t]he 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.” An order to pay health insurance premiums is
regarded as a form of alimony subject to the provisions contained in section 36-5-121. See
Guiliano v. Guiliano, No. W2007-02752-COA-R3-CV, 2008 WL 4614107, at *4 (Tenn. Ct.
App. Oct. 15, 2008) (citing Dospil v. Dospil, No. M2006-01596-COA-R3-CV, 2007 WL
3332849, at *8 (Tenn. Ct. App. Nov. 8, 2007) (no perm. app. filed)). We emphasize,
however, that the abuse of discretion standard “‘reflects an awareness that the decision being
reviewed involved a choice among several acceptable alternatives,’ and thus ‘envisions a less
rigorous review of the lower court's decision and a decreased likelihood that the decision will
be reversed on appeal.’” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105-06 (Tenn. 2011)
(citations omitted). Therefore, viewing the entire record before us in the light most favorable
to the trial court’s decision, Id. (citations omitted), we are unable to conclude that the trial
court abused its discretion by refusing to order Husband to pay for the costs of providing
COBRA benefits for Wife.

                                              V. Conclusion

       For the foregoing reasons, we affirm in part and reverse in part. Costs of this appeal
are taxed equally to the Appellant, Leo Holt, and his surety, and the Appellee, Alma Jean
Holt, and her surety,4 for all of which execution may issue if necessary.




                                                             _________________________________
                                                             DAVID R. FARMER, JUDGE




       4
           Wife also filed a Notice of Appeal with surety.

                                                    -11-
