                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                      April 2, 2002 Session

              MELODY JO KNOWLES v. JACK REED KNOWLES

                 A Direct Appeal from the Chancery Court for Lewis County
                   No. 4182   The Honorable Russ Heldman, Chancellor



                     No. M2001-01282-COA-R3-CV - Filed April 19, 2002


        Wife sued for divorce on grounds of inappropriate marital conduct and adultery. The trial
court granted Wife an absolute divorce, awarded her alimony in futuro and attorney fees, and ordered
Husband to pay Wife’s health insurance costs. Husband appeals. We reverse in part and affirm in
part.


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

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

David L. Scott, Murfreesboro, For Appellant, Jack Reed Knowles

Delilah A. Speed, Columbia, For Appellee, Melody Jo Knowles

                                              OPINION

       Plaintiff, Melody Jo Knowles (“Wife”), and Defendant, Jack Reed Knowles (“Husband”),
were married in Michigan on October 27, 1984. The parties later relocated to Tennessee, and on
August 29, 2000, Wife filed for absolute divorce from Husband on grounds of inappropriate marital
conduct and adultery. There were no children born of the marriage, but Wife has an adult son, whom
Husband adopted during the parties’ marriage.

       After a nonjury trial, the trial court filed its final decree on April 23, 2001 which, inter alia,
granted Wife an absolute divorce on the grounds of adultery, adopted Husband’s proposed division
of property, and divided the parties’ marital debt. The marital debt assessed to Wife included
$4,000.00 for a Visa account. The Order further provides:
              It is further ordered that Defendant shall pay to Plaintiff the sum of
              Four Thousand and no/100 dollars ($4,000.00) for her Visa account,
              for which let execution issue if necessary.

                       It is further ORDERED that the Defendant shall pay to
              Plaintiff the sum of One Thousand Five Hundred and no/100 Dollars
              ($1,500.00) each month as Alimony in Futuro. He shall pay this
              alimony until the Plaintiff’s death or remarriage. The alimony shall
              be deducted from his paycheck by his employer, Saturn, as has been
              previously ordered. Saturn is instructed to immediately begin making
              payments of Seven Hundred Fifty and no/100 Dollars ($750.00) on
              the first and fifteenth of each month.

                      It is further ORDERED that the Defendant shall pay the health
              insurance for the Plaintiff for a total period of two years. For the next
              thirty-six months from the date of this decree, the Defendant shall
              provide insurance through COBRA, unless he can obtain insurance
              at a more reasonable rate through a private insurance carrier that is
              equivalent to the insurance provided through COBRA. Defendant is
              ordered to immediately contact his benefits department at Saturn to
              make sure the COBRA can go into effect as ordered. The Plaintiff
              shall be responsible for all medical expenses not covered by
              insurance.

                      It is further ORDERED that the Defendant shall be
              responsible for all medical expenses incurred by the Plaintiff through
              the date of the final hearing of the divorce not covered by insurance.
              This does not include optical coverage.

                     It is further ORDERED that the Defendant will pay the
              attorney’s fees for the Plaintiff’s attorney in the amount of One
              Thousand Seven Hundred and no/100 Dollars ($1,700.00).

                       It is further ORDERED that the Defendant will pay the costs
              of this cause for which let execution issue, if necessary.

On April 23, 2001, the Chancellor entered a Supplemental Order which provides as follows:

                     In supplement to the final decree, the Court finds that
              Husband’s adultery with a married woman caused the demise of the
              marriage of the Knowles. His marital fault is properly to be
              considered as a factor in awarding alimony, in addition to all other
              applicable statutory factors. The Court further finds that Mrs.


                                                -2-
                   Knowles cannot be rehabilitated when viewed in the context of the
                   standard of living established during the marriage. Mrs. Knowles
                   suffers from a relative economic disadvantage in relation to Mr.
                   Knowles. Her rehabilitation is not feasible. The Court accepts the
                   statements of the attorney for Mrs. Knowles in open court as a basis
                   for an award of attorney’s fees to Mrs. Knowles.

        Husband appeals and presents the following issues for review: (1) Whether the trial court
erred in awarding Wife alimony in futuro rather than rehabilitative alimony; (2) Whether the trial
court erred in awarding Wife alimony in futuro and rehabilitative alimony; (3) Whether the trial
court’s division of parties’ property was equitable; (4) Whether the trial court erred in awarding Wife
alimony in solido for the payment of her attorney’s fees.

        Since this case was tried by the court sitting without a jury, we review the case de novo upon
the record with a presumption of correctness of the findings of fact by the trial court. Unless the
evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d).

         When the resolution of the issues in a case depends upon the truthfulness of witnesses, the
trial judge, who has the opportunity to observe the witnesses and their manner and demeanor while
testifying, is in a far better position than this Court to decide those issues. McCaleb v. Saturn Corp.,
910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. App. 1997).
The weight, faith, and credit to be given to any witness’s testimony lies in the first instance with the
trier of fact, and the credibility accorded will be given great weight by the appellate court. Id.; In
re Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).

       We first address Husband’s issues regarding the trial court’s award of alimony to Wife.
Guidelines for the determination of alimony are set forth in T.C.A. § 36-5-101(d) (2001)1. The trial


       1
           That statute provides, in relev ant part:

                             (d)(1) 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 the granting of an order for payment of rehabilitative, temporary
                   support and maintenance. Where there is such relative economic disadvantage and
                   rehabilitation is not feasible in consideration of all relevant factors, includ ing those
                   set out in this subsection, then the court may grant an order for paym ent of support
                   and maintenance on a long-term b asis or until the death or remarriage of the
                   recipient except as otherwise provided in subdivision (a)(3). Rehabilitative support
                   and maintenance is a separate class of spousal supp ort as distinguished from
                   alimony in solido and periodic alim ony . In determining whether the granting of an
                   order for paym ent of support and ma intenance to a p arty is ap propriate, and in
                   determining the nature, amount, length of term, and manner of paym ent, the court
                   shall consider all relevant factors, including:

                                                                                                               (con tinued...)

                                                             -3-
court is afforded wide discretion concerning the award of alimony, and an appellate court should
reverse the trial court’s findings only in instances in which this discretion “has manifestly been
abused.” Hanover v. Hanover, 775 S.W.2d 612, 617 (Tenn. App. 1989). See also, Ford v. Ford,
952 S.W.2d 824, 827 (Tenn. App. 1997).

        In this case, Husband argues that the trial court erred in awarding Wife alimony in futuro,
rather than rehabilitative alimony. In this regard, Husband explains that Tennessee law expresses
a clear preference for rehabilitative alimony over any other type of alimony. See Self v. Self, 861
S.W.2d 360, 361 (Tenn. 1993). While we agree with this statement of Tennessee law, a trial court
should not grant rehabilitative alimony where rehabilitation is not feasible. See Kincaid v. Kincaid,
912 S.W.2d 140, 143 (Tenn. Ct. App. 1995). Trial courts must, therefore, make a threshold
determination after considering all relevant factors concerning the feasability of rehabilitation of the
economically disadvantaged spouse. See id. at 144. The Chancellor in this case made just such a
determination in his Supplemental Order.

        Here, the trial court found that Wife was economically disadvantaged in relation to Husband,
and that her rehabilitation was not feasible. The record indicates that Ms. Knowles has fibromyalgia,
a physical condition which makes it difficult and sometimes impossible for her to work. Ms.


       1
           (...continued)
                             (A) The relative earning capacity, obligations, needs, and financial
                   resources of each party, including income from pension, profit sharing or
                   retiremen t plans and all other sourc es;
                             (B) The relative educ ation and training of each party , the ab ility and
                   opp ortunity of each party to secure such education and tra ining , and the necessity
                   of a party to secure further education and training to improve such party's earning
                   capacity to a reaso nab le level;
                             (C) The duration of the marriage;
                             (D) The age and mental condition of each party;
                             (E) The physical condition of each party, including, but not limited to,
                   physical disability or incapacity due to a chronic debilitating disease;
                             (F) The extent to which it would be undesirable for a party to seek
                   employmen t outside the home because such party will be custodian of a minor
                   child of the marriage;
                             (G) The separate assets of each party, both real and personal, tangible and
                   intangible;
                             (H) The provisions made with regard to th e m arital pro perty as defined in
                   § 36-4-121;
                             (I) The standard of living of the parties established during the marriage;
                             (J) The extent to wh ich each party h as m ade such tangible an d intangib le
                   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;
                             (K) The relative fault of the parties in cases wh ere the cou rt, in its
                   discretion, deems it appropriate to do so; and
                             (L) Such other factors, including the tax consequences to each party, as
                   are nece ssary to consider the equities betw een the p arties.

                                                            -4-
Knowles testified that she worked as an interpreter for the deaf when she was living in Michigan,
but that she is no longer able to interpret because her hands and shoulders “do not work” well enough
because of her fibromyalgia.2

        It appears that the trial court awarded Ms. Knowles a proper amount of support in light of
Mr. Knowles’ income. Mr. Knowles’ average monthly income before taxes is approximately $6,250,
based upon an average yearly salary of $75,000.3 Mr. Knowles’ alimony payment of $1,500 per
month is not unreasonable, given his income. Additionally, as Ms. Knowles points out in her brief,
Mrs. Knowles will pay taxes on the alimony, and Mr. Knowles will receive a tax deduction which
will reduce his tax liability. We cannot say that the trial court abused its discretion in setting Mrs.
Knowles’ alimony at $1,500 per month.

         In his appellate brief, Husband makes much of the trial court’s reliance on adultery as a factor
in setting alimony in this case. Under T.C.A. § 36-5-101(b), the “relative fault” of the parties’ is an
enumerated factor in determining alimony. This Court has noted that “[t]he most common factors
influencing spousal support decisions are the need of the spouse requesting support, the fault of the
obligor spouse, and the ability of the obligor spouse to provide support.” Crain v. Crain, 925
S.W.2d 232, 234 (Tenn. Ct. App. 1996). Here, the trial court clearly stated in its Supplemental Order
that it had based its decision regarding alimony on Mrs. Knowles’ inability to be rehabilitated, on
her relative economic disadvantage, as well as upon Mr. Knowles’ adulterous relationship. These
considerations are proper under the alimony statute, and are well supported in the record.

        Husband also points to Wife’s statements in the record which indicate that she is hoping to
go back to school. Husband testified that Wife intended to return to school for a four or five- year
program “so she could get into a line of beauty work where she works at Fox and Company.”
However, without more specific information regarding Mrs. Knowles’ area of study and the
definitiveness of Mrs. Knowles’ plans, we believe the trial court properly determined that
rehabilitation was not feasible. In any event, the decree remains in the court’s control and is subject
to modification upon a showing of substantial and material change of circumstances. T.C.A. § 36-5-
101(a)(1). We therefore affirm the trial court’s award of alimony in futuro.

         The next issue Mr. Knowles raises on appeal is whether the trial court erred in ordering Mr.
Knowles to pay Mrs. Knowles’ health insurance coverage premiums for twenty-four (24) months
and to provide her with COBRA coverage for a total of thirty-six (36) months. Mr. Knowles, in his
brief, claims this award constitutes rehabilitative alimony. He asserts that rehabilitative alimony is
inconsistent with an award of alimony in futuro relying on Burlew v. Burlew, 40 S.W.3d 465 (Tenn.
2000).


         2
          The record also indicates that Ms. Knowles could not work as an interpreter in Tennessee in any case, becau se
she does not have the proper state certification.

         3
          Although Mr. Know les testified that his projected income for 2001 was only $52,000, the record indicates
he earned $72,000 in the year 2000 and $77,000 in the year 1999.

                                                          -5-
        Mr. Knowles argues “[a]limony in solido is an award for a definite sum of alimony,” and
insurance premiums may change, the trial court’s award of insurance premiums to Wife cannot be
alimony in solido. At the same time, Mr. Knowles argues that, since the trial court ordered payment
of the insurance premiums for a set amount of time, the award cannot be considered alimony in
futuro, which is alimony “which lacks sum certainty due to contingencies affecting the total amount
of alimony to be paid.” Id. By process of elimination, therefore, Mr. Knowles arrives at the
conclusion that the award of healthcare premiums must be rehabilitative alimony. We disagree.

       In Burlew, the Supreme Court clearly defines the two types of long-term alimony as follows:

                       There are two forms of "long term or more open-ended
               support": alimony in futuro and alimony in solido. "Whether
               alimony is in futuro or in solido is determined by either the
               definiteness [in solido ] or indefiniteness [in futuro ] of the sum of
               alimony ordered to be paid at the time of the award." Waddey v.
               Waddey, 6 S.W.3d 230, 232 (Tenn.1999) (citing McKee v. McKee,
               655 S.W.2d 164, 165 (Tenn. Ct. App.1983)). Alimony in solido is an
               award of a definite sum of alimony and "may be paid in installments
               provided the payments are ordered over a definite period of time and
               the sum of the alimony to be paid is ascertainable when awarded."
               Id. A typical purpose of such an award would be to adjust the
               distribution of the parties' marital property. See, e.g., Lindsey v.
               Lindsey, 976 S.W.2d 175, 180-81 (Tenn. Ct. App.1997); Houghland
               v. Houghland, 844 S.W.2d 619, 622-23 (Tenn. Ct. App.1992).
                       "Alimony in futuro, however, lacks sum-certainty due to
               contingencies affecting the total amount of alimony to be paid."
               Waddey, 6 S.W.3d at 232. Unlike alimony in solido, an award of
               alimony in futuro is subject to modification, and its duration may be
               affected by contingencies agreed upon by the parties or imposed by
               courts. Id. at 232-33; see also Day v. Day, 931 S.W.2d 936, 939
               (Tenn. Ct. App.1996) ("Final awards of alimony in solido are not
               modifiable."). As we have noted, the purpose of this form of
               alimony is to provide financial support to a spouse who cannot be
               rehabilitated.

Burlew v. Burlew, 40 S.W.3d 465, 471 (Tenn. 2001) (emphasis added). As the Court notes, courts
order alimony in futuro and alimony in solido for purposes other than rehabilitation.

       The trial court determined that Wife’s rehabilitation was not feasible, as we have previously
noted. The evidence does not preponderate against such a finding. T. R. A. P. 13 (d). Rehabilitative
alimony cannot be awarded absent a finding that rehabilitation on the part of the spouse is feasible.
See T.C.A. § 36-5-101(d)(1); Kincaid, 912 S.W.2d at 144. Thus, a provision for payment of
insurance premiums for two years is not rehabilitative alimony. There is no definiteness in the


                                                -6-
amount of the award, because of the possibility of insurance premiums changing over a period of
time. So, the award cannot be alimony in solido. See Burlew v. Burlew, 40 S.W.3d at 471. We,
therefore, construe the provision for the payment of the insurance premiums to be an additional
amount of alimony in futuro for the limited period of time involved.

        In other words, for a period of 24 months after the decree, Husband is required to pay
alimony in futuro of $1,500.00 plus a monthly amount for the insurance premium. At the end of two
years, the alimony reverts to $1,500.00 total. The trial court determined that there was a need for
the additional amount for insurance premiums and that Husband had the ability to pay the premiums
for that two year period. Although the premiums for COBRA could have been established by the
proof, Husband’s counsel asked that Husband be allowed to “shop” for a better rate in providing the
same coverage. Thus, the court could have awarded alimony in solido for the total amount of the
two year premium, but at Husband’s request the amount was left uncertain; thus necessitating
alimony in futuro.

         The next issue is whether the division of marital property in this case was equitable.
Although there is a presumption that marital property is owned equally, there is no presumption that
marital property should be divided equally. See Bookout v. Bookout, 954 S.W.2d 730, 731 (Tenn.
App. 1997). Thus, an equitable division of the marital property need not be an equal division of the
property. See id. A trial court is afforded wide discretion when dividing the marital property, and
its distribution will be given “great weight” on appeal. See Ford v. Ford, 952 S.W.2d 824, 825
(Tenn. App. 1997). Guidelines for the equitable division of marital property are set forth in T.C.A.
§ 36-4-121(c) (2001). That statute provides, in relevant part:

                       (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

                                                 -7-
               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

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

T.C.A. § 36-4-121(c)(2001).

        The trial court awarded Wife $24,950.00 in marital property, and assigned $9,500.00 of
marital debt to her, resulting in a net award of $15,450.00. The trial court awarded Husband
$16,100.00 in marital property and assigned $8,350.00 in marital debt to him, resulting in a net
award of $7,750.00. In his brief, Mr. Knowles acknowledges that the trial court “approved the
property division proposed by Husband and adopted the same values therein.” The trial court,
however, did make one change to Mr. Knowles’ proposed property division, when it ordered Mr.
Knowles to, “pay to Plaintiff the sum of Four Thousand and no/100 Dollars ($4,000.00) for her Visa
account.” It is this additional payment of $4,000.00 which Mr. Knowles disputes on appeal. With
this $4,000.00 alimony in solido award, Mrs. Knowles net property division is $19,450.00, while
Husband’s net property division is decreased to $3,750.00. By our calculations, this leaves Mrs.
Knowles with $15,700.00 more than Mr. Knowles, or a 83.5% to a 16.5% division in favor of Mrs.
Knowles. Considering the record as a whole, we find this to be an inequitable division of martial
property, and the final decree should be modified accordingly by reversing that part of the decree
awarding alimony in solido of $4,000.00.

        Finally, Mr. Knowles takes issue with the trial court’s award of $1,700.00 in attorney’s fees
to his wife. The law affords the trial court discretion concerning the award of attorney’s fees in a
divorce case. See Long v. Long, 957 S.W.2d 825, 827 (Tenn. App. 1997). On appeal, an appellate
court will not interfere with the trial court’s decision except upon a showing of an abuse of that
discretion. See id. In the case at bar, we believe the award of attorney’s fees to Wife was proper,


                                                -8-
especially given Husband’s fault and Wife’s poor financial situation. This issue is, therefore,
without merit.

        The final decree is reversed as to the award to Wife of $4,000.00 for her Visa account. The
decree is affirmed in all other respects, and the case is remanded to the trial court for such further
proceedings as are necessary. Costs of this appeal are assessed to appellant, Jack Reed Knowles, and
his sureties.


                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                                 -9-
