                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                September 16, 2008 Session

DIANE MARIE DEPIETTO GUILIANO v. ANTHONY PHILIP GUILIANO

                   Direct Appeal from the Circuit Court for Shelby County
                       No. CT-003282-06     Robert L. Childers, Judge



                   No. W2007-02752-COA-R3-CV - Filed October 15, 2008


This appeal arises from a divorce action. The trial court found both parties guilty of inappropriate
conduct and declared them divorced pursuant to Tennessee Code Annotated § 36-4-129. The trial
court awarded 55 percent of the marital property to Wife and 45 percent to Husband; ordered the
marital residence sold and awarded the equity to Wife; awarded Wife alimony in futuro in the
amount of $4,000 per month; ordered Husband to pay for Wife’s COBRA benefits and uninsured
medical costs exceeding $45.00 until the benefits expire; and ordered each party to pay their own
attorney’s fees. Wife appeals. We modify the trial court’s order with respect to life insurance and
alimony as provided herein. The trial court’s order is otherwise affirmed. This matter is remanded
for further proceedings, if necessary, and entry of an order consistent with this Opinion.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S., and
HOLLY M. KIRBY , J., joined.

David E. Caywood and Lucie Brackin, Memphis, Tennessee, for the appellant, Diane Maire Depietto
Guiliano.

Adam Noah Cohen and Mitchell D. Moskovitz, Memphis, Tennessee, for the appellee, Anthony
Philip Guiliano.

                                            OPINION

                                           Background

       The parties to this divorce action, Diane Marie Depietto Guiliano, (Ms. Guiliano) and
Anthony Philip Guiliano (Mr. Guiliano) were married in 1976. At the time of trial, Mr. Guiliano was
56 years of age and Ms. Guiliano was 55 years of age. The parties have two adult children, and Ms.
Guiliano has not worked outside the home since their first child was born. In 2003, Ms. Guiliano
was diagnosed with Chronic Leukemia, which is now in remission. The parties appear to agree that
this was not a happy marriage for a long time, and they separated in June 2006 after Ms. Guiliano
discovered Mr. Guiliano was having an extramarital affair, an affair which Mr. Guiliano does not
deny.

        Ms. Guiliano filed a complaint for divorce in the Circuit Court for Shelby County on June
27, 2006. In her complaint, Ms. Guiliano alleged inappropriate marital conduct and irreconcilable
differences as grounds for divorce. Mr. Guiliano answered in July 2007, admitting to irreconcilable
differences and that he had been guilty of inappropriate marital conduct, but denying that his
inappropriate conduct was the cause of the “dissolution” of the parties’ marriage. In January 2007,
the parties entered a consent order providing that Mr. Guiliano would pay temporary support in the
amount of $9,000 per month to Ms. Guiliano. The consent order provided that Ms. Guiliano would
pay the expenses for the parties’ marital residence and condominiums in Florida and car payments
and insurances, including insurance for Mr. Guiliano and the parties’ daughter. The agreement
required Mr. Guiliano to borrow from his life insurance policies to pay the balance of $5,648 on Ms.
Guiliano’s credit card, and required him to pay medical co-payments exceeding $30.00. In March
2007, Mr. Guiliano filed an emergency petition for the sale of the parties’ marital residence in
Germantown. In his petition, Mr. Guiliano asserted the parties were “approaching a financial crisis;”
that the parties’ Germantown home had a fair market value of approximately $900,000; that Ms.
Guiliano had acknowledged that she had no desire to remain in the home; and that it was no longer
practical for her to reside alone in a 6,400 square foot home. In May 2007, the trial court ordered
the matter held in abeyance pending final disposition of the cause in July 2007.

         The matter was heard by the trial court in July 2007. In August 2007, the trial court entered
a final decree of divorce incorporating the transcript containing its findings of fact and conclusions
of law. In the final decree, the trial court found both parties had been guilty of inappropriate marital
conduct and declared them divorced pursuant to Tennessee Code Annotated § 36-4-129. The court
divided the marital property and awarded the net proceeds from the pending sale of the parties’
marital home to Ms. Guiliano. Mr. Guiliano was ordered to pay Ms. Guiliano alimony in futuro in
the amount of $4,000 per month. The trial court ordered Mr. Guiliano to pay for COBRA insurance
coverage for Ms. Guiliano for as long as such coverage was available. It also ordered Mr. Guiliano
to pay for Ms. Guiliano’s medical and dental co-payments exceeding $45.00, and for prescriptions
not covered by insurance during the period in which COBRA coverage was available. The trial court
ordered that Ms. Guiliano would be solely responsible for her medical insurance and costs upon the
expiration of COBRA benefits. Each party was ordered to pay their own attorney’s fees. In
September 2007, Ms. Guiliano filed a Tennessee Rules of Civil Procedure rule 59 motion to alter
or amend the judgment to address two outstanding medical bills. The parties entered a consent order
on the motion in November 2007. The trial court entered final judgment in the matter on November
19, 2007, and Ms. Guiliano filed a timely notice of appeal to this Court.


                                       Issues Presented
       Ms. Guiliano raises the following issues, as we succinctly reword them, for our review:


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        (1)     Whether the trial court erred by not awarding Ms. Guiliano alimony in futuro
                in the amount of $8,000 per month.

        (2)     Whether the trial court erred by not ordering Mr. Guiliano to pay for health
                insurance for Ms. Guiliano upon the expiration of COBRA benefits.

        (3)     Whether the trial court erred by not ordering Mr. Guiliano to pay for Ms.
                Guiliano’s uninsured health and dental expenses.

        (4)     Whether the trial court erred by not ordering Mr. Guiliano to provide life
                insurance to secure his alimony obligations.

        (5)     Whether the trial court erred by not ordering Mr. Guiliano to pay Ms.
                Guiliano’s attorney’s fees.

        (6)     Whether the trial court erred in awarding a divorce to both parties rather than
                to Ms. Guiliano on grounds of inappropriate marital conduct.

                                          Standard of Review

        We review the trial court’s findings of fact with a presumption of correctness unless the
evidence preponderates otherwise. Tenn. R. App. P. 13(d). Thus, we may not reverse the trial court’s
factual findings unless they are contrary to the preponderance of the evidence. We review the trial
court’s conclusions on matters of law de novo, with no presumption of correctness. Tenn. R. App.
P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). However, if the trial court fails to
make findings of fact, our review is de novo with no presumption of correctness. Archer v. Archer,
907 S.W.2d 412, 416 (Tenn. Ct. App.1995). We review a trial court’s determinations on matters of
witness credibility with great deference and will not re-evaluate a trial judge’s credibility
determinations unless they are contradicted by clear and convincing evidence. Wells v. Tenn. Bd.
of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).

                                           Award of Divorce

        We first address Ms. Guiliano’s assertion that the trial court erred by declaring the parties
divorced pursuant to Tennessee Code Annotated § 36-4-129 and by not awarding her an absolute
divorce on the grounds of inappropriate marital conduct. This Court previously has engaged in a
lengthy discussion of the social developments that precipitated the enactment of section 36-4-129.
See Earls v. Earls, 42 S.W.3d 877, 881-83 (Tenn. Ct. App.2000). We see no reason to repeat that
discussion here, other than to note that the section gives the trial courts the ability to declare parties
divorced when it is clear that the conduct of one or both of the parties “makes continued cohabitation
unacceptable” without assigning fault to one party. Id. at 883. In this case, the trial court found that,
although Mr. Guiliano’s admitted extramarital affair was inappropriate and precipitated the filing
of the complaint by Ms. Guiliano, both parties had engaged in inappropriate conduct throughout the


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marriage. Upon review of the record and the briefs submitted by both parties, it is clear that this was
an unhappy marriage and that both parties contributed substantially to its demise. We cannot say the
evidence preponderates against the trial court’s finding that both parties had engaged in conduct
rendering continued cohabitation unacceptable. We affirm on this issue.

                                              Alimony

       We next turn to Ms. Guiliano’s assertion that the trial court erred in failing to award her
alimony in futuro in the amount of $8,000 per month. In her brief to this Court, Ms. Guiliano
devotes a considerable portion of her argument to discussing the various types of alimony and to
demonstrating that alimony in futuro is warranted in this case. However, we observe that Mr.
Guiliano has not objected to an award of alimony in futuro. Thus, we turn to whether the record
demonstrates that the trial court erred in awarding alimony in futuro in the amount of $4,000 per
month.

        Without citing to the record, Ms. Guiliano asserts that Mr. Guiliano’s annual gross salary is
approximately $250,000 per year. Her argument, as we understand it, is that Mr. Guiliano earns
approximately $125,000 per year from Crown Labs, a bonus of $30,000 per year, and an additional
$100,000 per year as a partner with APG Marketing International, LLC (“APG”). Ms. Guiliano
asserts Mr. Guiliano’s income from APG is demonstrated by its partnership income tax returns for
2003, 2004, and 2005. She further asserts that Mr. Guiliano’s ability to pay alimony in the amount
of $8,000 per month is demonstrated by his ability to pay temporary alimony in the amount of $9,000
per month while this matter was being litigated.

        Mr. Guiliano, on the other hand, asserts he began working with Crown Labs in 2005, after
the failure of APG. He asserts that when he began working at Crown Labs, APG was grossing
$4,000 per month from one client, and that he had to pay all business expenses from this amount.
He argues that Ms. Guiliano has unrealistically added his income from APG for the years 2003 and
2004, prior to his employment with Crown Labs, to his post 2005 salary at Crown Labs. He further
asserts that although he was paying $9,000 in temporary support while this matter was being
litigated, this amount provided for the parties’ joint expenses, including the martial home and
investment property in Florida which were included in the property division. He further asserts he
was living rent-free in his employer’s basement, and that many of the expenses paid for out of the
temporary support amount are now his sole responsibility.

        It is well-settled that the appropriateness of an award of alimony depends on the facts and
circumstances of each case, with the need of the recipient spouse and the obligor spouse’s ability to
pay being the primary considerations. E.g., Burlew v. Burlew, 40 S.W.3d 465, 472 (Tenn. 2001).
When determining the type and amount of an alimony award, the court must balance several
statutory factors, including those enumerated in section 36-5-121 of the Tennessee Code. The type
and amount of an alimony award are largely within the discretion of the trial court. Burlew, 40
S.W.3d at 470. This Court is not inclined to alter a trial court’s award of alimony absent a finding
of an abuse of discretion. Id.


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        Upon review of the record, we note that the trial court made well-considered findings in this
case based on the evidence presented at trial and in light of the applicable statutory factors. The trial
court found that Mr. Guiliano has an earning capacity of approximately $175,000 per year, and that
Ms. Guiliano has an earning capacity of approximately $25,000 to $40,000 per year. We cannot say
the evidence preponderates against the trial court’s findings, particularly with respect to Mr.
Guiliano’s income in light of the tax returns contained in the record. We affirm except as otherwise
modified below.

                             Health Insurance and Medical Expenses

         We next turn to Ms. Guiliano’s assertion that the trial court erred by failing to order Mr.
Guiliano to provide Ms. Guiliano with health insurance after the expiration of COBRA benefits and
to pay for all of Ms. Guiliano’s uninsured medical and dental expenses. As noted above, the trial
court ordered Mr. Guiliano to pay for COBRA benefits for as long as they are available to Ms.
Guiliano, and to pay Ms. Guiliano’s uninsured medical expenses exceeding $45 during this period.
 In the argument section of her brief to this Court, Ms. Guiliano asserts, in essence, that despite the
property division awarding her 55 percent of the parties’ property, including liquid assets in the
amount of approximately $600,000, and the award of $4,000 per month in alimony, it is unfair to
expect her to pay for an undetermined amount of uninsured medical expenses in light of the fact that
she suffers from chronic Leukemia. Ms. Guiliano fails to cite to any law, however, to support her
proposition that she may be awarded an indefinite sum to pay for an indefinite and indiscernible
amount of medical expenses. She further fails to cite to any evidence in the record which would
demonstrate that she is insurable in light of her medical condition, or that would indicate the likely
cost of such insurance.

        The Tennessee Code provides that the physical condition of the parties, including a chronic
debilitating disease, is one of the many factors to be considered by the court in determining whether
an award of alimony is appropriate and, if so, the nature, amount, and duration of the award. Tenn.
Code Ann. § 36-5-121(i)(5)(2005). The Code further provides that the court may direct a party to
pay the health insurance premiums for the other party “in whole or in part, for such duration as the
court deems appropriate.” Tenn. Code Ann. § 36-5-121(j)(2005). An order requiring one party to
pay the health insurance premiums of the other is regarded as an award of alimony and is subject to
the provisions contained in section 36-5-121(a). See Dospil v. Dospil, No. M2006-01596-COA-
R3-CV, 2007 WL 3332849, at *8 (Tenn. Ct. App. Nov. 8, 2007) (no perm. app. filed). Section 36-5-
121(a), in relevant part, authorizes the court to award alimony in a definite amount which that court
may fix in “monthly, semimonthly, or weekly installments, or otherwise, as the circumstances may
warrant.” Tenn. Code Ann. § 36-5-121(a)(2005). It further authorizes the court to enforce the award
“by any appropriate process of the court having jurisdiction.” Id.

        We are not insensitive to the fact that Ms. Guiliano’s unfortunate medical condition presents
physical, emotional, and financial challenges, and likely will affect her ability to work. We also are
not insensitive, however, to the fact that, as Ms. Guiliano acknowledged at oral argument, she may
be uninsurable and her future medical expenses are inestimable. As we recently noted in Dospil v.


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Dospil, the court may order an obligor spouse to obtain and pay the fixed premiums for health
insurance for the recipient spouse. However, if the obligor spouse is unable to provide insurance
because the recipient spouse proves uninsurable, an order requiring the obligor spouse to pay the
recipient’s indefinite medical expenses exceeds the penalty authority provided in section 36-5-
121(a). Dospil, 2007 WL 3332849, at *8. Additionally, because the award of health insurance
premiums is an award of alimony, the award must be considered under the overall penumbra of need
and ability to pay.

       Upon consideration of the entire record in this case, including Ms. Guiliano’s need and Mr.
Guiliano’s ability to pay, we believe an award to Ms. Guiliano of an amount equal to the current cost
of COBRA benefits upon the expiration of those benefits is warranted. Thus, we modify the alimony
award to Ms. Guiliano to provide for an increase in alimony in an amount equal to the current cost
of COBRA benefits upon the expiration of those benefits. We remand for a determination of that
amount and for an order reflecting this modification.

                                           Life Insurance

         Ms. Guiliano asserts the trial court erred in failing to order Mr. Guiliano to obtain life
insurance to secure his alimony obligation. In his brief to this Court, Mr. Guiliano states that he does
not object to insuring his alimony obligation with a policy of life insurance, but that Ms. Guiliano
has failed to specify how much insurance she is requesting. Accordingly, we remand the matter to
the trial court for a determination of an appropriate amount of life insurance to be obtained by Mr.
Guiliano to secure his alimony obligation.

                                     Award of Attorney’s Fees

        We finally turn to Ms. Guiliano’s assertion that the trial court erred by ordering each party
to pay their own attorney’s fees. An award of attorney’s fees in a divorce case is treated as an award
of alimony. Sullivan v. Sullivan, 107 S.W.3d 507, 512 (Tenn. Ct. App. 2002) (citations omitted).
When determining whether an award of attorney’s fees is appropriate, the trial court must consider
the statutory factors used when considering an alimony request, but need is the primary factor. Id.
An award of attorney’s fees is appropriate when one spouse is disadvantaged and does not have
sufficient resources with which to pay those fees. Id. at 513. The questions of whether to award
attorney’s fees, and the amount thereof, are left largely within the discretion of the trial court. Id.
In light of the property division and alimony award in this case, we are satisfied that Ms. Guiliano
has sufficient resources with which to pay her attorney’s fee. We affirm. Ms. Guiliano’s request for
attorney’s fees on appeal are denied.

                                             Conclusion

        We affirm the trial court’s order declaring the parties divorced pursuant to Tennessee Code
Annotated § 36-4-129. We modify the award of alimony so as to award Ms. Guiliano alimony in
futuro in the amount of $4,000 per month until the expiration of COBRA benefits currently provided


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by Mr. Guiliano, and alimony in futuro in the amount of $4,000 plus an amount equal to the present
cost of COBRA benefits thereafter. Mr. Guiliano consents to securing life insurance to secure his
alimony obligation, thus it is unnecessary for us to address whether the trial court erred by failing
to order him to do so. We affirm the trial court’s determination that each party shall pay his/her
attorney’s fees. We remand this matter to the trial court for further proceedings, if necessary, to
determine an appropriate amount of life insurance to be obtained by Mr. Guiliano, and for entry of
an order consistent with this Opinion. Ms. Guiliano’s request for attorney’s fees on appeal is denied.
Costs of this appeal are taxed one half to the Appellee, Anthony Philip Guiliano, and one-half to the
Appellant, Diane Marie Depietto Guiliano, and her surety, for which execution may issue if
necessary.


                                                       ___________________________________
                                                       DAVID R. FARMER, JUDGE




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