               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                January 27, 2016 Session


         EARL G. DONALDSON v. TERRI ALLISON DONALDSON

                  Appeal from the Circuit Court for Sumner County
                       No. 2014CV9     Joe Thompson, Judge

                         ________________________________

        No. M2015-01035-COA-R3-CV – Filed June 30, 2016
                    _________________________________

       In this divorce action, the trial court awarded alimony in futuro to Husband in the
amount of $1,450.00 per month. Wife appeals, contending that the findings that Husband
had a need for alimony and Wife had the ability to pay, as well as the nature, amount, and
duration of the award, are not supported by the record. In making the award, the court
did not find that rehabilitative, transitional, or short term alimony was inappropriate, and
the findings of fact do not otherwise allow for a review of the award. We vacate the
award and remand the case for further consideration of the nature, amount, and duration
of the award of alimony.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which W. NEAL
MCBRAYER, J. joined. D. MICHAEL SWINEY, JR., C.J., filed a dissenting opinion.

Francis King, Nashville, Tennessee, for the appellant, Terri Allison Donaldson.

William L. Moore, Gallatin, Tennessee, for the appellee, Earl G. Donaldson.

                                        OPINION

I. FACTUAL AND PROCEDURAL HISTORY

       Terri Allison Donaldson (―Wife‖) and Earl G. Donaldson, Jr. (―Husband‖) were
married in March 1988; two children were born of the marriage, both of whom have now
reached the age of majority. At the time of trial, Husband was 52 years old and worked
as chief dispatcher for a concrete manufacturer; Wife had her Doctorate of Nursing
Practice and was a professor and Director of the Doctor of Nursing Practice Program at
Vanderbilt University.

       Husband filed for divorce on January 3, 2014, citing irreconcilable differences and
seeking spousal support. The parties attended mediation on January 19, 2015, which was
unsuccessful. Wife filed her answer and counter complaint on February 5, alleging
irreconcilable differences and Husband‘s inappropriate marital conduct. Husband filed
his Amended Complaint for Divorce on March 9, adding an allegation of Wife‘s
inappropriate marital conduct. A trial was held on March 17.

       The trial court entered a Memorandum Opinion, which was incorporated into the
Final Decree of Divorce. The court declared the parties divorced, divided the marital
property, allocated the marital debt, named Wife primary residential parent for the then-
minor child, and awarded the Husband $1,450 per month in periodic alimony ―until the
death of either of the parties, or remarriage of the Husband, whichever occurs first,‖ the
payment of which was to be secured by a $250,000 life insurance policy naming Husband
as sole beneficiary and remaining in force until Husband is age 65.

       Wife appeals the award of alimony in futuro, articulating the following issue for
our review:

      In this divorce case, did the Trial Court err in requiring the wife to pay
      alimony in futuro of $1,450.00 per month to the husband, a 53-year old
      man, in good health, who is earning nearly $67,000 a year at a company he
      has worked for since 2004, and in an industry that he has worked in for
      more than 25 years, and who, by his own testimony and admission, has
      current net monthly income that exceeds his current monthly expenses by
      about $1,6011.52, which leaves him with more disposable income, per
      month, than the wife?

                               II. STANDARD OF REVIEW

      Our standard of review of an award of alimony was set forth by the Tennessee
Supreme Court in Gonsewski v. Gonsewski:

      [A] trial court‘s decision regarding spousal support is factually driven and
      involves the careful balancing of many factors. Kinard v. Kinard, 986
      S.W.2d 220, 235 (Tenn. Ct. App. 1998); see also Burlew [v. Burlew], 40
      S.W.3d [465] at 470 [(Tenn. 2001)]; Robertson v. Robertson, 76 S.W.3d
      337, 340–41 (Tenn. 2002). As a result, ―[a]ppellate courts are generally
      disinclined to second-guess a trial judge‘s spousal support decision.‖
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      Kinard, 986 S.W.2d at 234. Rather, ―[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.‖ Broadbent v. Broadbent, 211 S.W.3d 216, 220
      (Tenn.2006). Appellate courts decline to second-guess a trial court‘s
      decision absent an abuse of discretion. Robertson, 76 S.W.3d at 343. An
      abuse of discretion occurs when the trial court 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. 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, but ―‗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.‘‖ Henderson, 318 S.W.3d at 335 (quoting Lee Medical,
      Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.2010)). Consequently, when
      reviewing a discretionary decision by the trial court, such as an alimony
      determination, the appellate court should presume that the decision is
      correct and should review the evidence in the light most favorable to the
      decision. Wright, 337 S.W.3d at 176; Henderson, 318 S.W.3d at 335.

350 S.W.3d 99, 105-06 (Tenn. 2011)(footnote omitted).

                                      III. ANALYSIS

       Tennessee recognizes four distinct types of spousal support: (1) alimony in futuro,
(2) alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony. Tenn. Code
Ann. § 36-5-121(d)(1). Alimony in futuro, a form of long-term support, is appropriate
when the economically disadvantaged spouse cannot achieve self-sufficiency and
economic rehabilitation is not feasible. Gonsewski, 350 S.W.3d at 107. Alimony in
solido is also ―a form of long-term support,‖ id. at 108, and ―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). Rehabilitative alimony is
―a separate class of spousal support,‖ Tenn. Code Ann. § 36–5–121(e)(1), the purpose of
which is ―to assist an economically disadvantaged spouse in acquiring additional
education or training which will enable the spouse to achieve a standard of living
comparable to the standard of living that existed during the marriage or the post-divorce
standard of living expected to be available to the other spouse.‖ Gonsewski, 350 S.W.3d
at 108. Finally, transitional alimony may be awarded ―when the court finds that
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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.‖ Tenn. Code Ann. § 36-5-121(g)(1).

      In this case, the court awarded alimony in futuro, which is ―a payment of support
and maintenance on a long term basis or until death or remarriage of the recipient.‖
Tenn. Code Ann. § 36-5-121(f)(1). An award of this type of alimony is permissible:

      . . . 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.

Id. ―[T]here is a statutory bias toward awarding transitional or rehabilitative alimony
over alimony in solido or in futuro. While this statutory preference does not entirely
displace long-term spousal support, alimony in futuro should be awarded only when the
court finds that economic rehabilitation is not feasible and long-term support is
necessary.‖ Gonsewski, 350 S.W.3d at 109 (citing Bratton v. Bratton, 136 S.W.3d 595,
605 (Tenn. 2004); Robertson v. Robertson, 76 S.W.3d 337, 341–42 (Tenn. 2002)).

      In determining whether to award spousal support, the trial court is required to
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;
      (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;
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       (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). ―While a trial court should consider all the relevant
factors under the circumstances, the two most important factors to be considered are the
need of the economically disadvantaged spouse and the obligor spouse‘s ability to pay.‖
Small v. Small, No. M2009-00248-COA-R3-CV, 2010 WL 334637, at *3 (Tenn. Ct. App.
Jan. 28, 2010) (citing Riggs v. Riggs, 250 S.W.3d 453, 457 (Tenn. Ct. App. 2007)). Of
these two factors, ―the primary consideration is the disadvantaged spouse‘s need.‖ Id.

       In the memorandum opinion, the court stated that it ―g[ave] weight‖ to six of the
statutory factors, specifically to factors (1), (2), (3), (8), (9), and (10) in awarding the
alimony. The court made the following findings in that regard:

       1. The parties were married on March 12, 1988 and separated after almost
       twenty-six years, on January 3, 2014.

       2. The Wife is 52 years old and the Husband is 53 years old. Both parties
       are in relatively good health.

       3. The Wife has a doctorate in nursing practice. When the parties married,
       Wife held a bachelor‘s degree and obtained her master‘s degree and
       doctorate during the course of the marriage. The wife‘s career has been
       marked by steady advancement . . . Her current salary from this
       employment is approximately $112,000 annually. . . . In addition, Wife has
       historically supplemented her income with outside professional
       employment. These amounts range from approximately $5,000 to $12,000
       per year. The Court finds that while the method of income supplementation
       may vary, it is most probable that Wife will continue to supplement her
       income on a regular basis.
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4. The Husband did not complete his high school education but did pass the
General Educational Development (GED) test. After serving four years in
the United States Navy, the Husband began working in the concrete
industry where he has remained for most of his working career. His most
recent pay history reveals that he earned approximately $67,000 in 2014 —
just over half of Wife‘s historical earnings. The court finds the testimony of
Chris Tuck, Sales Manager at Husband‘s employer credible. Husband
works in a family held concrete business and his opportunities for
advancement are limited.

5. The parties lived beyond their means, though not extravagantly, during
their marriage. Despite the fact that the parties‘ combined gross incomes
exceeded $150,000 annually the parties were using cash advance/payday
loan companies to make ends meet. The parties were living paycheck to
paycheck. Both parties agreed that they communicated poorly with respect
to financial affairs.

6. Both parties contributed to the marriage by working outside the home
and parenting the parties‘ two minor children. It is just as clear, however,
that the contributions of the parties were significantly different. As is the
case with many marriages, one spouse‘s career overshadowed the other.
The parties chose to move from Atlanta (the city where they were married)
to Hendersonville because Wife obtained a job at Nashville Memorial
Hospital. The evidence at trial established that Wife had clear career goals
and pursued those goals with the assistance of Husband. That assistance
took various forms: increased childcare responsibility, homemaking
activities, and employment concessions. In short the parties[‘] mutual
understanding — both explicit and implicit — was that the Wife‘s career
would take precedence over that of Husband.

7. Since the parties‘ separation, the Wife has enjoyed a higher standard of
living than Husband. The Husband has been living in a two-bedroom
apartment, while the Wife has rented a four-bedroom home. A comparison
of the parties‘ income and expense statements also reveals that the Wife has
significantly greater resources to meet her monthly needs. While Father‘s
income is not insignificant, he has been unable to amass any significant
savings for retirement, unlike Wife.

***
       Given the disparity in earning capabilities between the Husband and
                                      6
       the Wife, the Court finds that the Husband is at an economic disadvantage
       and has a need for alimony. The Wife has the ability to pay alimony. The
       Court takes the allocation of marital property and debt into account in
       making the following award of alimony.

       Wife challenges the award of alimony in futuro as having no ―factual basis . . .
other than the fact that there was a disparity of earnings between the parties.‖ Husband
contends that due to his age, lack of education beyond a GED, and no potential for
advancement in the concrete industry, ―it is clear that . . . Husband cannot be rehabilitated
and the Trial Court did not abuse its discretion in awarding Husband alimony in futuro in
the amount of $1,450 a month.‖

       We have determined that the trial court has not made adequate findings relative to
the determination that Husband has a need for alimony and that Wife has the ability to
pay; that rehabilitative, transitional, or other short-term alimony is not feasible; or that
Husband required long-term support. Moreover, we fail to see the factual basis of an
award of $1,450 per month when Husband‘s testimony did not account for an excess of
approximately $1,300 per month, and Wife‘s testimony showed an excess of
approximately $400. In the absence of such findings, we are unable to afford the trial
court‘s decision the deference normally afforded to such decisions.

        For the foregoing reasons, we vacate the award of $1,450 per month in alimony in
futuro and remand for reconsideration of the type, duration and amount of alimony, if
any, to be awarded. The trial court should make factual findings as to Husband‘s need
for alimony and Wife‘s ability to pay; mindful of the ―statutory bias toward awarding
transitional or rehabilitative alimony over alimony in solido or in futuro,‖ Gonsewski, 350
S.W.3d at 109, the court should make findings as to whether rehabilitation of Husband is
feasible, and if not, whether an award of transitional alimony is appropriate; if the court
finds that transitional alimony is not appropriate, the court should then consider the
nature and duration of long-term support. We leave to the court‘s discretion whether the
parties should be permitted to introduce additional proof relative to these matters in light
of the passage of time since entry of the decree and our disposition of this appeal.

       Wife also appeals the requirement that she maintain an insurance policy to secure
the alimony award; we vacate this requirement, as well.




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                                  IV. CONCLUSION

      For the foregoing reasons, the judgment of the circuit court awarding alimony is
vacated and the case is remanded for further proceedings consistent with this opinion.




                                              RICHARD H. DINKINS, JUDGE




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