                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               September 22, 2010 Session

               CLARENCE E. MILLER v. MARIAN N. MILLER

                Appeal from the Chancery Court for Anderson County
                 No. 08CH8438      William E. Lantrip, Chancellor


            No. E2010-00492-COA-R3-CV - FILED NOVEMBER 9, 2010


Husband filed for divorce after twenty-five years of marriage alleging inappropriate marital
conduct as grounds for divorce. Wife filed a counter-claim for divorce also alleging
inappropriate marital conduct. After a bench trial, the court found that the parties had lived
separately for at least 10 years; awarded a divorce to Husband; and awarded alimony in
futuro to Wife. Wife appeals challenging the trial court’s award of a divorce to Husband, the
division of the marital property, and the award of alimony. Upon review of the record, we
affirm.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                            Affirmed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and D. M ICHAEL S WINEY, J., joined.

Daniel Kidd, Knoxville, Tennessee, for the appellant, Marian N. Miller.

Jodi Loden, Clinton, Tennessee, for the appellee, Clarence E. Miller.

                                         OPINION

                             I. FACTUAL BACKGROUND

       Clarence E. Miller (“Husband”) married Marian N. Miller (“Wife”) in 1984. At the
time of the marriage, Husband was 61 and a retired employee from Union Carbide and the
Navy National Guard, and Wife was 50 and she worked various jobs as a nurse and security
guard throughout the marriage.

       Husband owned a home located at 122 Valley Lane, Clinton, Tennessee, during the
marriage. In 1997, Wife inherited a house located at 311 Murray Drive, Knoxville,
Tennessee. At trial, there was testimony that the parties had lived separately for at least 10
to 12 years.

        Late in the marriage, Husband initiated various cases for his exposure to asbestos and
other carcinogens during his employment with the Navy and the Department of Energy.
Husband applied for benefits under the Department of Energy Employee Occupational Illness
Compensation Program (EEOICP); filed two workers’ compensation claims; and filed a joint
claim in a class action lawsuit against asbestos manufacturers. Wife was named as a party
on the class action lawsuit concerning the asbestos litigation. Periodically, settlement checks
from the asbestos litigation were tendered in both Husband’s and Wife’s names. In April
2008, Husband’s EEOICP claim was approved and he received $150,000 as a settlement.

       Shortly after receiving the EEOICP settlement, Husband filed a complaint for divorce
against Wife alleging inappropriate marital conduct. Wife responded by filing a counter-
claim for divorce, a motion for a restraining order to prevent Husband from dissipating the
EEOICP settlement and proceeds from the workers’ compensation claims, and a motion for
pendente lite alimony. The trial court granted the restraining order concerning the proceeds
from the workers’ compensation claims and denied the restraining order regarding the
EEOICP settlement.

        During the divorce litigation, there was controversy concerning the scheduling of the
motion for temporary alimony. Wife’s counsel claims that he scheduled the hearing for the
motion and sent notice of the date to Husband’s counsel after opposing counsel failed to
respond to his letter. In the letter, Wife’s counsel asked for opposing counsel’s availability
for a hearing date. Husband’s counsel eventually responded, albeit late, and Wife’s counsel
never replied to her available dates. The Chancellor’s secretary eventually called Wife’s
counsel and urged him to talk with opposing counsel to decide upon a mutually agreeable
date. After failing to come to an agreeable date, the Chancellor’s secretary called and
informed Wife’s counsel that the hearing was removed from the docket per the Chancellor’s
order. This incident prompted Wife’s counsel to file a motion for recusal claiming that the
Chancellor could not be an impartial adjudicator. After a hearing on the motion for recusal,
the trial court denied the motion.

       Thereafter, the motion for temporary alimony was heard and the trial court awarded
$200 per month in temporary alimony to Wife. After an unsuccessful attempt at mediation,
a bench trial began on November 9, 2009. At trial, the parties disputed the classification of
the EEOICP settlement as Husband’s separate property and whether the parties lived
separately for at least 10 years. The trial court eventually awarded a divorce to Husband;
divided the marital property, permitting Husband to keep the settlements related to his

                                              -2-
injuries; and awarded $250 per month in alimony in futuro to Wife. This appeal followed.

                                        II. ISSUES

       Wife raises the following issues for review, which we restate:

       1. Whether the trial court erred in denying Wife’s motion for recusal.

       2. Whether the trial court erred in awarding a divorce to Husband.

       3. Whether the division of the marital property was equitable.

       4. Whether the trial court erred in determining the award of alimony to Wife.

                             III. STANDARD OF REVIEW

       On appeal, we review the decision of a trial court sitting without a jury de novo upon
the record, accompanied by a presumption of correctness of the trial court’s findings of fact,
unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v.
Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court’s conclusions of law are subject to
a de novo review with no presumption of correctness. Union Carbide Corp. v. Huddleston,
854 S.W.2d 87, 91 (Tenn. 1993).

                                    IV. DISCUSSION

                                    Motion for Recusal

        Wife contends that the trial court should have granted her motion for recusal because
there was a reasonable basis to question the trial court’s impartiality. Wife claims that the
Chancellor’s secretary acted improperly when setting the date for a hearing concerning
alimony and acted as intermediary for Husband’s counsel. Wife’s counsel attempted to set
the hearing for alimony by giving notice to opposing counsel. Initially, Wife’s counsel sent
a letter to Husband’s counsel in an attempt to schedule the hearing by agreement. After
Wife’s counsel did not receive a reply from Husband’s counsel, he set the hearing and sent
notice of the hearing to Husband’s counsel. Huband’s counsel objected because she did
respond to the request via email, and she informed the Chancellor’s secretary of the problem.
At the hearing, the trial court found that Wife’s counsel had a “dispute” with his scheduler
and opposing counsel and that did not warrant recusal.

       Under Supreme Court Rule 10, Canon 3(E)(1), “[a] judge shall disqualify himself or

                                             -3-
herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”
Tenn. Sup. Ct. R. 10, Canon 3 E(1). A trial court should grant a recusal motion when “the
judge has any doubt as to his or her ability to preside impartially in the case” or “ ‘when a
person of ordinary prudence in the judge’s position, knowing all of the facts known to the
judge, would find a reasonable basis for questioning the judge’s impartiality.’ ” Davis v.
Liberty Mut. Ins. Co., 38 S.W.3d 560, 564-65 (Tenn. 2001) (quoting Alley v. State, 882
S.W.2d 810, 820 (Tenn. Crim. App. 1994)). Therefore, even if a judge believes that he or
she can be fair and impartial, the judge should grant the motion for recusal when “ ‘the
judge’s impartiality might be reasonably questioned’ ” because “the appearance of bias is as
injurious to the integrity of the judicial system as actual bias.” Id. (quoting Tenn. Sup. Ct.
R. 10, Canon 3(E)(1)); see also Bean v. Bailey, 280 S.W.3d 798, 805 (Tenn. 2009).

        It is within the trial judge’s discretion to grant a motion for recusal. Bd. of Prof’l
Responsiblity of Sup. Ct. of Tenn. v. Slavin, 145 S.W.3d 538, 546 (Tenn. 2004). We will not
reverse such a decision “unless a clear abuse appears on the face of the record.” Davis, 38
S.W.3d at 564. A trial court abuses its discretion when it applies “an incorrect legal
standard” or reaches “a decision which is illogical or unreasonable and causes an injustice
to the party complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006).

       Having carefully reviewed the record, it does not appear that there was a reasonable
basis to question the Chancellor’s impartiality. Wife’s counsel’s dispute concerning the
scheduling of the motion and how the Chancellor applied the local rules of practice does not
create an appearance of bias. We fail to find any abuse of discretion in the trial court’s
decision to deny the motion for recusal.

                                          Divorce

      Wife challenges the trial court’s award of a divorce to Husband. She claims there was
ample evidence to support a finding that Husband engaged in inappropriate marital conduct;
Wife contends that the trial court should have granted a divorce to her or to both parties.

      In Tennessee, grounds for divorce and defenses thereto are statutory. Chastain v.
Chastain, 559 S.W.2d 933, 934 (Tenn. 1977). Tenn. Code Ann. § 36-4-101 (1) - (15) (2010)
provides the grounds for divorce. The ground at issue in this case is inappropriate marital
conduct, which Tenn. Code Ann. § 36-4-101(11) defines as:

       The husband or wife is guilty of such cruel and inhuman treatment or conduct
       towards the spouse as renders cohabitation unsafe and improper, which may
       also be referred to in pleadings as inappropriate marital conduct[.]



                                             -4-
Therefore, inappropriate marital conduct is established when “either or both of the parties
[have] engaged in a course of conduct which (1) caused pain, anguish, or distress to the other
party and (2) rendered continued cohabitation ‘improper,’ ‘unendurable,’ ‘intolerable,’ or
‘unacceptable.’ ” Chaffin v. Ellis, 211 S.W.3d 264, 289 (Tenn. Ct. App. 2006) (citing
Eldridge v. Eldridge, 137 S.W.3d 1, 24 (Tenn. Ct. App. 2002)). Under Tenn. Code Ann. §
36-4-129(b), the trial court holds the discretion to grant a divorce to the party who was less
at fault.

       In the case at bar, both Husband and Wife asserted that the other party was guilty of
inappropriate marital conduct. At trial, Wife testified that Husband engaged in inappropriate
conduct with two other women. She also rebuffed Husband’s testimony that the couple lived
separately for such an extended period of time. She testified:

       I lived with my husband until I was served divorce papers, the whole 25 years.
       It’s preposterous to hear what I’m hearing over there. We have been from the
       east coast to the west coast.

Nevertheless, Wife’s testimony was rebutted by her employment records listing her separate
residence as her address and the testimony of her neighbor, John Carpenter. Mr. Carpenter
testified that he lived on the property adjoining Wife’s property for 23 years and that he
consistently saw her and her car in the driveway for the past 10 years. As a result, the trial
court found that Wife’s testimony concerning Husband’s inappropriate conduct with other
women was unsupported by the evidence and that it constituted grounds for divorce because
Wife falsely accused Husband. Further, the trial court found by Wife’s own admission, Wife
took and pawned one of Husband’s gun. These findings coupled with the parties’ separate
living arrangement amounted to inappropriate marital conduct by Wife and warranted the
award of a divorce to Husband.

        Whether a party should be awarded a divorce on grounds of inappropriate marital
conduct is usually determined by a trial court’s assessment of witness credibility. Chaffin,
211 S.W.3d at 289. “In a case where the resolution of the issues depends upon the
truthfulness of witnesses, the trial judge who has the opportunity to observe the witnesses in
their manner and demeanor while testifying is in a far better position than this Court to
decide those issues.” Fann v. Fann, No. W2000-02431-COA-R3-CV, 2001 WL 394858, at
*2 (Tenn. Ct. App. W.S., Apr. 18, 2001). Affording deference to the trial court’s assessment
of the witnesses’ credibility, we find that there is enough evidence in the record to support
the trial court’s findings and affirm the decision to award the divorce to Husband.

                              Division of the Marital Property



                                             -5-
        Wife takes issue with the trial court’s division of the marital estate. Wife argues that
the trial court awarded her far less than Husband, and she claims the trial court should have
given greater weight to the factors listed in Tenn. Code Ann. § 36-4-121(c).

      Because Tennessee is a “dual property” state, a trial court must identify all of the assets
possessed by the divorcing parties as either separate property or marital property before
equitably dividing the marital estate. See generally Tenn. Code Ann. § 36-4-121(a)(1)
(2010); see Snodgrass v. Snodgrass, 295 S.W.3d 240, 246 (Tenn. 2009). Separate property
is not subject to division. See Cutsinger v. Cutsinger, 917 S.W.2d 238, 241 (Tenn. Ct. App.
1995). In contrast, Tenn. Code Ann. § 36-4-121(c) outlines the relevant factors that a court
must consider when equitably dividing the marital property without regard to fault on the part
of either party. Tenn. Code Ann. § 36-4-121(a)(1). An equitable division of marital property
is not necessarily an equal division, and § 36-4-121(a)(1) only requires an equitable division.
See Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn. 2002).

        In the instant case, the trial court found that the parties had lived separately for about
10 to 12 years prior to the Husband’s filing for divorce and that the parties maintained
separate finances throughout that period of time. Due to the parties living separate lives for
such an extended period of time, the trial court awarded each party the property in his or her
possession at the time of the division. The trial court awarded and classified the following
as Husband’s separate property: (1) the home and property located at 122 Valley Lane,
Clinton, Tennessee; (2) the EEOICPA compensation award; (3) the two workers’
compensation claims; and (4) the asbestos lawsuit settlement award. The trial court awarded
and classified the following as Wife’s separate property: (1) the home and property located
at 311 Murray Drive, Knoxville, Tennessee; and (2) the property located in Wartburg,
Tennessee. The trial court justified classifying the various monetary settlement awards as
Husband’s separate property because those claims and related injuries arose prior to the
marriage. Even though Wife’s name appeared as a party to the asbestos lawsuit, the trial
court found that it was a claim “based upon personal injuries that [Husband incurred] during
his Navy career and his employment at Union Carbide.” In dividing the marital estate, the
trial court also noted the difference in the relative debts the parties stipulated. In the parties’
joint stipulations on real estate and assets, Husband assumed responsibility for a combined
credit card debt of approximately $17,737.34 that was incurred during the marriage. Wife
assumed a credit card debt of approximately $115, a home equity loan on her home with a
balance of approximately $44,000, and a personal loan in the amount of $1,500.

      This court will not disturb the trial court’s division of the marital estate “unless the
distribution lacks proper evidentiary support or results from an error of law or a
misapplication of statutory requirements or procedures.” Thompson v. Thompson, 797
S.W.2d 599, 604 (Tenn. Ct. App. 1990); see also Manis v. Manis, 49 S.W.3d 295, 306 (Tenn.

                                                -6-
Ct. App. 2001) (explaining that the appellate courts “ordinarily defer to the trial judge’s
decision unless it is inconsistent with the factors in Tenn. Code Ann. § 36-4-121(c) or is not
supported by a preponderance of the evidence.”). Therefore, “a trial court’s division of the
marital estate is entitled to great weight on appeal and should be presumed to be proper
unless the evidence preponderates otherwise.” Batson v. Batson, 769 S.W.2d 849, 859
(Tenn. Ct. App. 1988) (citations omitted).

      Contrary to the Wife’s contentions, the factors of Tenn. Code Ann. § 36-4-121(c)
guided the trial court’s distribution of the marital estate. Specifically, the trial court
considered the value of each party’s separate property, see Tenn. Code Ann. § 36-4-121(c)(6)
and the economic circumstances of each party, see Tenn. Code Ann. § 36-4-121(c)(8).
Because Husband’s entitlement to those monetary settlements arose prior to the marriage, see
Tenn. Code Ann. § 36-4-121(b)(2)(A)1 and constitute awards for future medical expenses
and pain and suffering, see Tenn. Code Ann. § 36-4-121(b)(2)(E), the trial court properly
classified and awarded such property to Husband. Having reviewed the record, we do not
find that the evidence preponderates against the trial court’s division of the marital estate.
Accordingly, we affirm.

                                                   Alimony

        Wife contends that the trial court should have awarded a lump sum of alimony or
alimony in solido to her based on the allocation of the parties’ marital debts and the division
of marital property. Specifically, Wife contends that the trial court did not consider her need
when awarding alimony, and she argues that at the very least, the alimony should terminate
at her death and not upon Husband’s death.



       1
           Tenn. Code Ann. § 36-4-121(b)(2) (2010) defines “separate property” as:

              (A) All real and personal property owned by a spouse before marriage, including,
              but not limited to, assets held in individual retirement accounts (IRAs) as that term
              is defined in the Internal Revenue Code of 1986, compiled in 26 U.S.C., as
              amended;
              (B) Property acquired in exchange for property acquired before the marriage;
              (C) Income from and appreciation of property owned by a spouse before marriage
              except when characterized as marital property under subdivision (b)(1);
              (D) Property acquired by a spouse at any time by gift, bequest, devise or descent;
              (E) Pain and suffering awards, victim of crime compensation awards, future
              medical expenses, and future lost wages; and
              (F) Property acquired by a spouse after an order of legal separation where the court
              has made a final disposition of property.


                                                      -7-
      Tennessee law recognizes several separate classes of alimony or spousal support. See
Tenn. Code Ann. § 36-5-121(d)(1) (2010); Riggs v. Riggs, 250 S.W.3d 453, 456 (Tenn. Ct.
App. 2007). The decision to award alimony is within the discretion of the trial court. Id. at
456-57. The unique circumstances of each case guide the decision to award alimony, and the
need of the recipient spouse and the obligor spouse’s ability to pay are the two most
important considerations. Robertson, 76 S.W.3d at 342. After the trial court determines that
spousal support is appropriate, the court then weighs the relevant statutory factors in Tenn.
Code Ann. § 36-5-121(i) in determining the nature, amount, and period of time of the award.2
We review a trial court’s award of alimony under the abuse of discretion standard. See
Burlew v. Burlew, 40 S.W.3d 465, 472 (Tenn. 2001). This court will not substitute its
judgment for that of the trial court simply because we may have chosen a different alternative
when a discretionary decision falls within a range of acceptable alternatives. E.g., Gleaves



       2
         Tenn. Code Ann. § 36-5-121(i) (2010) provides the following relevant factors for a court to
consider:

               (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.

                                                   -8-
v. Gleaves, No. M2007-01820-COA-R3-CV, 2008 WL 4922533, at *7 (Tenn. Ct. App. M.S.,
Nov. 13, 2008) (citations omitted).

       In this case, we do not find that the trial court abused its discretion in its award of
alimony to Wife. In the final divorce decree, the trial court considered both Wife’s need for
further support and Husband’s ability to pay. Specifically, regarding Wife’s need and the
relevant statutory factors, the trial court found:

       In going over the question of alimony, the Court notes that this has been a
       marriage, even though it may have been an unusual marriage, it has been a
       marriage of 25 years. The nature of their relationship, and especially the
       defacto separation between the parties since the late 1990s, Mrs. Miller’s
       [Wife’s] work history and her need for assistance, her age and her testimony
       considering her physical condition. . .[.]

        After noting the circumstances of this case, the trial court awarded alimony in futuro
in the amount of $250 per month. Wife contends that this award is not enough; she argues
that she is entitled to more due to her monthly needs and Husband has the ability to pay
because of his available cash assets totaling $88,000. Nonetheless, as this court has
previously observed, “[l]ong-term spousal support is intended to provide long-term support
to an economically disadvantaged spouse who is unable to be rehabilitated. It is not,
however, a guarantee that the recipient spouse will forever be able to enjoy a lifestyle equal
to that of the obligor spouse.” Riggs, 250 S.W.3d at 456, f.n. 2 (supporting citations
omitted). Here, the trial court’s determination concerning the type and amount of the
alimony award was based on the relevant statutory factors and the facts of this case. From
our review of the record, we do not find a clear abuse of discretion and affirm the award of
alimony in futuro to Wife.

                                    V. CONCLUSION

        The judgment of the trial court is affirmed in its entirety. Costs of this appeal are
taxed to the appellant, Marian N. Miller. This cause is remanded, pursuant to applicable law,
for the collection of costs assessed below.




                                                   _________________________________
                                                   JOHN W. McCLARTY, JUDGE



                                             -9-
