                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                        June 28, 2012 Session

       ALLISON LOUISE BATTLES v. ANDREW BRUCE BATTLES

                  Direct Appeal from the Circuit Court for Sumner County
                      No. 83CC1-2010-CV-550       C. L. Rogers, Judge


                  No. M2011-01762-COA-R3-CV - Filed September 26, 2012


This is an appeal of an alimony award. On appeal, Husband contends that the trial court
erred by awarding Wife alimony in futuro. Discerning no error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
                                    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.

Martin Sir and April Watkins, Nashville, Tennessee, for the appellant, Andrew Bruce Battles.

John R. Phillips, Jr., Gallatin, Tennessee, for the appellee, Allison Louise Battles.

                                   MEMORANDUM OPINION 1

                             I. Background and Procedural History

       On July 23,1988, Andrew Bruce Battles ("Husband") and Allison Louise Battles
("Wife") were married. Two sons were born of the marriage. Husband, a college professor,
has a doctorate in education. Wife, a special education teacher, has a masters degree. On


       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       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited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.
July 29, 2008, the parties separated after Husband moved out of the marital residence. The
two adult sons remained living in the marital residence with Wife after Husband moved out.

       On May 3, 2010, Wife filed a complaint for divorce based upon Husband’s
inappropriate marital conduct, or in the alternative, irreconcilable differences. Wife sought
temporary and permanent alimony based on her need and Husband’s ability to pay. In
response to a motion by Wife, the parties agreed to the entry of an order providing that
Husband would pay Wife $800.00 per month in spousal support beginning on June 1, 2010,
and continue to pay the health insurance costs for the parties' adult sons upon the condition
that such obligations would not exceed six months. On June 11, 2010, Husband filed an
answer and counter-complaint for divorce denying Wife's allegations of inappropriate marital
conduct, but admitted that the parties experienced irreconcilable differences. Husband
further argued that Wife was not entitled to temporary or permanent spousal support, and
alleged that he should be granted a divorce based on Wife’s inappropriate marital conduct.
Wife denied the allegations of inappropriate marital conduct, but admitted that irreconcilable
differences existed between them.

        On November 30, 2010, the trial court conducted a hearing on the parties’ complaints
for divorce. At the conclusion of the hearing, the trial court concluded that Wife was entitled
to a divorce based upon Husband’s inappropriate marital conduct. The trial court found that
Wife was economically disadvantaged and could not be rehabilitated so as to increase her
earning potential. The trial court further found that Wife demonstrated a reasonable monthly
need of $700.00. On the other hand, the trial court concluded that Husband had an average
yearly income of $63,395.00 and substantial separate assets of at least $100,000, and
therefore had the ability to pay. Thus, on December 29, 2010, the trial court entered the Final
Decree of Divorce, requiring Husband to pay Wife alimony in futuro in the amount of
$700.00 per month.

       Subsequently, on January 28, 2011, Husband filed a motion to clarify and/or to alter
or amend the Final Decree seeking reconsideration of the alimony award. Wife responded
to Husband’s motions, and filed her own motion to clarify and/or to alter or amend seeking
an increase in the alimony amount based on the fact that her employment contract with the
school was not renewed, and her only income was expected monthly unemployment benefits
of $971.67. On July 12, 2011, after considering the parties’ respective motions, the trial
court entered an order refusing to reconsider its alimony in futuro award of $700.00 per
month to Wife. Thereafter, Husband timely filed a notice of appeal to this Court.

                      II. Issue Presented and Standard of Review

       The sole issue presented for our review is whether the trial court erred by awarding

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Wife alimony in futuro. 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).

                                        III. Analysis

       On appeal, Husband argues that the trial court erred in awarding Wife alimony in
futuro because it misinterpreted the meaning of “rehabilitation” and “economic
disadvantage” as those terms relate to an award of alimony in futuro. 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

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       spouse.

Id. In 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). 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).

       Regarding the award of alimony in futuro, the Final Decree provides:

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       [T]he Court finds that this is a marriage of long duration. In assessing the
       Wife’s need, the Court reviewed her income and expense exhibit and her
       testimony. Certain items of her expenses are related to the parties’ adult
       children or are no longer necessary. As a result, the Court has determined that
       the Wife does have a reasonable monthly need of $700.00. The Court further
       finds that the Wife is economically disadvantaged in that she is 53 [years old]
       and the income she currently receives is quite likely going to be close to her
       highest earning ability. Further, the Court finds that the Wife faces certain
       obstacles in gaining future permanent full-time employment in her current
       profession.

       ....

       The Court finds that any rehabilitation of the Wife would be of no use as she
       currently has an adequate amount of education.

       The Court acknowledged that the Wife has had a long term standard of living
       which will be changed by the conduct of the Husband and the termination of
       this marriage. The Court further acknowledged that the Wife does not have
       any real ability to replace any income or to substantially increase her income.
       The Court did consider the assets and separate property of both parties and
       specifically of the Husband.

       The Court affirmatively finds that the Husband has the ability to pay alimony
       to the Wife. The Court finds that the Husband has an average yearly income
       of $63,395.00. The Court finds that the monthly income of the Husband is
       $5,283.00 and that the Husband has substantial liquid separate assets
       consisting, in part, of at least $100,000 in cash recently inherited from his
       mother.

       The Court finds that transitional alimony for a set period of time is not
       appropriate in this case. Therefore, the Court finds that the Wife should be
       awarded alimony in futuro which shall be paid until the death or remarriage of
       the Wife.

        After thoroughly reviewing the record, giving due deference to the trial court’s
credibility determinations, we agree with the trial court’s decision to award alimony in futuro
in this matter. The parties were married for twenty-two (22) years. The trial court granted
Wife a divorce based on Husband’s inappropriate marital conduct. In light of Wife’s age,
education, and experience, any attempt at rehabilitation would have been futile. Although

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Wife worked as a special education teacher at the time of trial, her employment contract was
not renewed, and thereafter she only received monthly unemployment benefits of $971.67.
On the other hand, as noted by the trial court, Husband earns approximately $5,283.00 per
month, and has substantial separate assets in excess of $100,000. A relative economic
disadvantage undoubtedly exists between the parties. Despite these facts, Husband asks this
Court to reevaluate the evidence presented to the trial court and reach a different conclusion.
We emphasize, however, that a trial court’s decision to award alimony is reviewed for an
abuse of discretion. Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011) (citing
Robertson v. Robertson, 76 S.W.3d 337, 343 (Tenn. 2002)). As such, 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)).
Therefore, while Husband may disagree, we decline his invitation to second-guess the trial
court’s discretionary decision in this matter. Discerning no error, we affirm.

                                      IV. Conclusion

       For the foregoing reasons, we affirm the judgment of the trial court. Costs of this
appeal are taxed to the Appellant, Andrew Bruce Battles, and his surety, for which execution
may issue if necessary.




                                                    _________________________________
                                                    DAVID R. FARMER, JUDGE




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