                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    JULY 11, 2001 Session

                       PATRICIA GORE v. GEORGE D. GORE

                Direct Appeal from the Circuit Court for Williamson County
                     No. I-99389; The Honorable Russ Heldman, Judge



                  No. M2000-02412-COA-R3-CV - Filed December 28, 2001


This appeal arises from a complaint for divorce filed by the Appellee in the Circuit Court of
Williamson County. The trial court awarded the Appellee a divorce on the grounds of inappropriate
marital conduct and adultery. The trial court divided the marital property and ordered the Appellant
to pay the Appellee alimony in futuro and child support for the parties’ two minor children. The trial
court ordered the Appellant to maintain life insurance to secure the alimony and child support
obligations. Additionally, the trial court entered a permanent injunction restraining the Appellant
from taking the children in the presence of the Appellant’s girlfriend.

         The Appellant appeals the decision of the Circuit Court of Williamson County regarding the
division of marital property, the award of alimony in futuro, the amount of child support awarded,
the amount of life insurance ordered, and the permanent injunction. For the reasons stated herein,
we affirm in part, reverse in part, and vacate in part the trial court’s decision. We remand this case
to the trial court for further proceedings consistent with this opinion.


 Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed in Part,
                    Reversed in Part, Vacated in Part and Remanded

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

Robert L. Jackson, Larry Hayes, Jr., Nashville, TN, for Appellant

Denise Andre, Franklin, TN; Thomas F. Bloom, Nashville, TN, for Appellee




                                             OPINION
                                 I. Facts and Procedural History

        The Appellant, George D. Gore (“Mr. Gore”), and the Appellee, Patricia A. Gore (“Ms.
Gore”), were married for twenty-five years. The parties had three children (“the children”) born of
the marriage, two of whom were minors at the time of the litigation which is the subject of this
appeal. In April, 1999, the parties separated after Ms. Gore discovered that Mr. Gore was having
an affair with Kim Cannon (“Ms. Cannon”).

        On July 1, 1999, Ms. Gore filed a complaint for divorce in the Circuit Court of Williamson
County, alleging inappropriate marital conduct and adultery. Ms. Gore requested that a restraining
order issue enjoining Mr. Gore from dissipating marital assets and from taking the children in the
presence of Ms. Cannon. Mr. Gore failed to file an answer to the complaint. On July 2, 1999, the
trial court granted Ms. Gore’s request for a restraining order with regard to the dissipation of assets
but denied Ms. Gore’s request for a restraining order with regard to Ms. Cannon.

        On July 28, 1999, the parties entered into an agreed order with respect to the pendente lite
issues. Pursuant to that agreed order, Ms. Gore received temporary custody of the children and
exclusive use of the marital residence. Mr. Gore received standard visitation with the children. Mr.
Gore was ordered to pay Ms. Gore $300.00 every two weeks and was ordered to maintain certain
debts of the parties. The order provided that the restraining order with regard to the dissipation of
assets was to remain in effect.

        The hearing on the complaint for divorce was held on August 9, 2000. Ms. Gore testified
that she was forty-nine years old and had a high school education. Ms. Gore testified that she
worked as a hairstylist for the first five years of the marriage but had been a homemaker for the last
twenty years of the marriage. Ms. Gore testified that she no longer had her hairstylist license and
did not want to work as a hairstylist. Ms. Gore testified that she had a medical condition during the
marriage called acoustic neuroma. Ms. Gore testified that as a result of the acoustic neuroma, she
had facial nerves cut. Ms. Gore testified that she was fully recovered from acoustic neuroma. Ms.
Gore testified that she had high blood pressure but had no health problems that prevented her from
working.

         Ms. Gore testified that after the parties separated, she took two jobs. She stated that she
worked one or two days per week at a retail store, Northern Reflections, and made $6.50 per hour.
Ms. Gore testified that she also worked part time at a bakery, Costco, and made $10.50 per hour.
She said that she worked full time hours at Costco during busy seasons but worked part time hours
during slow seasons. Ms. Gore testified that she requested to work full time at Costco but there were
no full time positions open at that time. She testified that her gross wages per month based on full
time hours and including her pay from both jobs equaled $1,928.22. She also testified that her wages
varied each month depending on the amount of hours she worked. She stated that she had the ability
to make between $17,000.00 and $20,000.00 per year. Ms. Gore testified that Costco provided
medical, dental, and eye insurance which was supposed to go into effect in October, 2000. She also
testified that she enjoyed her job at Costco.


                                                 -2-
         Mr. Gore testified that he was forty-eight years old and worked as a tool and die maker for
Saturn Corporation. He stated that he worked between forty and sixty hours per week. Mr. Gore
testified that his base salary was $52,000.00 but that he earned overtime in addition to his base
salary. He said that he was not guaranteed to have overtime hours. In 1997, Mr. Gore’s gross
income was $73,069.00. In 1998, Mr. Gore’s gross income was $75,721.00. In 1999, his gross
income was $83,664.00. Mr. Gore testified that his gross income in 2000 through July 31, 2000 was
$53,741.00. Mr. Gore agreed that his gross income through July 31, 2000 amounted to $7,677.42
in gross income per month. He stated that a portion of the gross income through July 31, 2000 was
based on working the Christmas shutdown. Mr. Gore testified that in the past five years, he had only
worked the Christmas shutdown once.

        Mr. Gore admitted that he had an affair with Ms. Cannon while he was married to Ms. Gore.
Mr. Gore testified that since July 2, 1999, he had spent approximately $2,000.00 in gambling and
gambling-related expenses such as food and transportation. Mr. Gore stated that he gambled “to
have a good time and have some fun.” Mr. Gore testified that he had reduced the amount that he was
contributing to the 401(k) retirement account. He listed on his income and expense statement that
his monthly gross income was $5,600.00 per month, but he agreed that his monthly gross income
was actually more than $5,600.00 per month.

        On August 9, 2000, the trial court entered an order granting Ms. Gore an absolute divorce
from Mr. Gore on the grounds of inappropriate marital conduct and adultery. The trial court
reserved all other matters for inclusion in the final decree of divorce entered on October 6, 2000.
The trial court stated in the final decree of divorce that all averments in Ms. Gore’s complaint were
deemed admitted for purposes of adjudication, with the exception of the claim for divorce, due to
Mr. Gore’s failure to file an answer to the complaint. The trial court found that Mr. Gore had
violated the temporary restraining order with regard to the dissipation of assets in that he used
marital assets to gamble which was not a reasonable living expense. He also found that Mr. Gore
violated the temporary restraining order with regard to the dissipation of assets in that he had reduced
the amount of money he was contributing to the 401(k) retirement account. The trial court found
that Mr. Gore had “unclean hands” in that he had failed to follow the temporary restraining order
with regard to the dissipation of assets and had given inconsistent testimony to the trial court about
his monthly income. As a result of Mr. Gore’s “unclean hands,” the court stated that it could not
consider his two proposals for division of property and assets that he submitted.




The trial court divided the marital property as follows:

                                              Ms. Gore


                                                  -3-
Item                                          Value           Debt                    Net Value
(1) Marital Residence                         $160,000.00     $35,693.42              $124,306.58
(2) Bank of America Checking Account          $200.00         n/a                     $200.00
(3) ½ Bank of America Savings Account         $50.00          n/a                     $50.00
(4) ½ Union Planters Checking Account         $300.00         n/a                     $300.00
(5) ½ Bank of America Savings Account         $2,098.50       n/a                     $2,098.50
(6) ½ UAW Credit Union                        $359.00         n/a                     $359.00
(7) ½ Bank of America CD                      $5,000.00       n/a                     $5,000.00
(8) ½ Saturn Corporation 401(k)               $80,000.00      n/a                     $80,000.00
(9) ½ General Motors Pension                  none given      n/a                     none given
                                              TOTAL FOR MS. GORE:                     $212,314.08
                                              Mr. Gore
Item                                          Value           Debt                    Net Value
(1) Boat, Trailer, and Motor                  $1,500.00       -0-                     $1,500.00
(2) Atmos Energy Stock                        $636.00         n/a                     $636.00
(3) Waterhouse Securities                     $6,333.00       n/a                     $6,333.00
(4) New York Life Insurance                   $10,459.70      n/a                     $10,459.70
(5) John Hancock Life Insurance               $1,697.50       n/a                     $1,697.50
(6) ½ Bank of America Savings Account         $50.00          n/a                     $50.00
(7) ½ Union Planters Checking Account         $300.00         n/a                     $300.00
(8) ½ Bank of America Savings Account         $2,098.50       n/a                     $2,098.50
(9) ½ UAW Credit Union                        $359.00         n/a                     $359.00
(10) ½ Bank of America CD                     $5,000.00       n/a                     $5,000.00
(11) ½ Saturn Corporation 401(k)              $80,000.00      n/a                     $80,000.00
(12) ½ General Motors Pension                 none given      n/a                     none given
                                              TOTAL FOR MR. GORE:                     $108,433.70

Additionally, the trial court ordered Mr. Gore to pay the parties’ unsecured debt in the amount of
$5,339.00. Taking into account the total ascertainable net value of marital property awarded to each
of the parties including the marital debt that Mr. Gore was ordered to pay, the percentage of the
marital property awarded to Ms. Gore was approximately sixty-seven percent, and the percentage
of the marital property awarded to Mr. Gore was approximately thirty-three percent.

        The trial court awarded custody of the children to Ms. Gore and awarded standard visitation
to Mr. Gore. Mr. Gore was also ordered to pay alimony in futuro to Ms. Gore in the amount of
$1,500.00 per month until Ms. Gore’s death or remarriage. Mr. Gore was to maintain life insurance
in the amount of $200,000.00 to secure his alimony obligation. The trial court ordered Mr. Gore to
pay child support to Ms. Gore in the amount of $1,712.00 per month. Mr. Gore was ordered to
maintain life insurance in the amount of $150,000.00 to secure his child support obligation. The trial
court entered a permanent restraining order enjoining Mr. Gore from permitting the children to have
contact with Ms. Cannon during his visitation. This appeal followed.

                                     II. Standard of Review


                                                 -4-
         The standard of review for a non-jury case is de novo upon the record. See Wright v. City
 of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of correctness as to the
 trial court’s factual findings, unless the preponderance of the evidence is otherwise. See TENN. R.
 APP . P. 13(d). For issues of law, the standard of review is de novo, with no presumption of
 correctness. See Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).


                                       III. Law and Analysis

        Mr. Gore presents the following issues for our review:

 1. Whether the trial court erred by awarding Ms. Gore sixty-seven percent of the parties’ marital
 assets;
 2. Whether the trial court erred by awarding Ms. Gore alimony in futuro in the amount of $1,500.00
 per month instead of rehabilitative alimony;
 3. Whether the trial court erred by requiring Mr. Gore to maintain $200,000.00 in life insurance to
 secure his alimony obligation;
 4. Whether the trial court erred by taking judicial notice of certain matters in this case;
 5. Whether the trial court erred by awarding Ms. Gore child support in the amount of $1,712.00 per
 month;
 6. Whether the trial court erred by requiring Mr. Gore to maintain $150,000.00 in life insurance to
 secure his child support obligation; and
 7. Whether the trial court erred by permanently enjoining Mr. Gore from taking the children in the
 presence of Ms. Cannon.
 Ms. Gore presents the following additional issues for our review:
 8. Whether Mr. Gore’s failure to file a responsive pleading constituted an admission of Ms. Gore’s
 allegations regarding the financial issues;
 9. Whether the trial court properly refused to consider Mr. Gore’s proposals as to property division
 and alimony due to Mr. Gore’s “unclean hands”; and
 10. Whether this Court should award Ms. Gore her attorney’s fees on appeal.
 We will examine each issue in turn.

                                   Division of Marital Property

         The first issue presented for our review is whether the trial court erred by awarding Ms. Gore
sixty-seven percent of the parties’ marital assets. After characterizing the parties’ assets as either
marital or separate property, the trial court will give each party their separate property and then make
an equitable division of marital assets. See Batson v. Batson, 769 S.W.2d 849, 856 (Tenn. Ct. App.
1988). An equitable division of property does not necessarily mean an equal division. See Bookout
v. Bookout, 954 S.W.2d 730, 732 (Tenn. Ct. App. 1997); Batson, 769 S.W.2d at 859. “The division
of the estate is not rendered inequitable simply because it is not mathematically equal, or because each
party did not receive a share of every item of marital property.” King v. King, 986 S.W.2d 216, 219
(Tenn. Ct. App. 1998) (citing Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn. 1996); Ellis v. Ellis, 748


                                                  -5-
S.W.2d 424, 427 (Tenn. 1988); Brown v. Brown, 913 S.W.2d 163, 168 (Tenn. Ct. App. 1994)). In
determining what constitutes an equitable division of marital assets, the court will consider the factors
listed in section 36-4-121(c) of the Tennessee Code.1 The court must make the division of marital
property without regard to marital fault. See TENN. CODE ANN . § 36-4-121(a)(1) (Supp. 2000).

        The trial court’s classification and division of marital property enjoys a presumption of
correctness and will be reversed or modified only if the evidence preponderates against the trial
court’s decision. See Lancaster v. Lancaster, 671 S.W.2d 501, 502 (Tenn. Ct. App. 1984); Hardin
v. Hardin, 689 S.W.2d 152, 154 (Tenn. Ct. App. 1983). “[T]he trial court is granted broad discretion
in adjusting and adjudicating the parties’ interest in all jointly owned property. Its decision regarding
division of the marital property is entitled to great weight on appeal.” Watters v. Watters, 959 S.W.2d
585, 590 (Tenn. Ct. App. 1997) (citing Batson, 769 S.W.2d at 859). The fairness of the property
division is judged upon its final results. See Wade v. Wade, 897 S.W.2d 702, 717 (Tenn. Ct. App.
1994) (citing Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn. Ct. App. 1990)).

       In the case at bar, Mr. Gore argues that the trial court erred in its division of marital property.
Mr. Gore suggests that this Court should divide the house and the New York Life Insurance policy
equally between the parties so that Ms. Gore would receive fifty-one percent of the marital property
and Mr. Gore would receive forty-nine percent of the marital property. Mr. Gore argues that an equal
division of the parties’ marital assets would constitute an equitable division. As stated above, an
equitable division of property does not necessarily mean an equal division. The primary difference

          1
              Section 3 6-4-121(c) provides:
                       In m aking equitable division o f marital pro perty , the co urt shall
                       con sider all relevant factors inc ludin g:
                       (1) T he duratio n of the m arriag e;
                       (2) T he ag e, physical and me ntal health, v ocational skills,
                       employability, earning capacity, estate, financial liabilities and
                       finan cial needs o f each of the parties;
                        (3) The tangible or intangible contribution by one (1) party to the
                        edu cation , training or increased earning p ow er of th e other party;
                        (4) T he relative ability of each party for fu ture acqu isitions of capital
                        assets an d incom e;
                        (5) T he co ntribu tion o f each party to the acqu isition, preserv ation,
                        appreciation or dissipation of the marital or separate property, including
                        the contribution of a party to the marriage as hom emak er, wage earner
                        or parent, with the contribution of a party as hom emak er or wage earn er
                        to be given the sam e weight if each party has fu lfilled its role;
                        (6) T he value o f the separate pro perty of each party;
                        (7) T he estate of each party at the tim e of the m arriag e;
                        (8) The economic circumstances of each party at the time the division
                        of property is to beco me effective;
                        (9) The tax consequences to each party; and
                        (10) Su ch othe r factors as are necessary to conside r the equ ities
                        between the p arties.
 T E N N . C ODE A N N . § 36 -4-1 21(c) (Su pp. 2 000 ).



                                                              -6-
between Ms. Gore receiving sixty-seven percent of the marital property and Mr. Gore receiving thirty-
three percent of the marital property is due to the award of the marital residence to Ms. Gore. The
trial court was not required to divide the equity in the marital residence. Rather, in awarding the
marital residence, the trial court had to give special consideration to Ms. Gore as the spouse having
physical custody of the children. See TENN. CODE ANN . § 36-4-121(d) (Supp. 2000).

        The trial court stated that it considered all the factors in section 36-4-121 in making an
equitable distribution of marital property. We conclude that the trial court properly considered these
factors in awarding Ms. Gore a greater share of the marital estate than Mr. Gore in this case. Mr.
Gore has greater income and earning potential than Ms. Gore, as well as a greater ability to
accumulate assets in the future. In light of the duration of the parties’ marriage, Ms. Gore’s
significant contributions to the marriage as a homemaker, and the great disparity in the parties’
earning abilities, we hold that the trial court did not abuse its discretion in awarding Ms. Gore a larger
portion of the marital assets than Mr. Gore. Under the circumstances of this case, the trial court
achieved an equitable distribution of the parties’ marital property. Accordingly, we affirm the trial
court’s award of sixty-seven percent of the marital property to Ms. Gore.

                                                        Alimony

        The second issue presented for our review is whether the trial court erred by awarding Ms.
Gore alimony in futuro in the amount of $1,500.00 per month instead of rehabilitative alimony. The
trial court has broad discretion concerning the amount, type, and duration of spousal support based
on the particular facts involved. See Watters, 959 S.W.2d 585 at 593. The trial court’s decision is
entitled to great weight on appeal and will not be disturbed absent a showing of abuse of discretion.
See id. (citing Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995); Luna v. Luna, 718 S.W.2d 673,
675 (Tenn. Ct. App. 1986)); Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996).
Accordingly, this Court is not inclined to alter a trial court’s award of alimony “unless it is not
supported by the evidence or is contrary to the public policy embodied in the applicable statutes.”
Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct. App. 1994) (citing Gilliam v. Gilliam, 776 S.W.2d
81, 86 (Tenn. Ct. App. 1988); Ingram v. Ingram, 721 S.W.2d 262, 264 (Tenn. Ct. App. 1986)).

        Whether an alimony award is appropriate is dependent on the facts and circumstances of each
case. While the alimony analysis is factually driven, the court must also balance several statutory
factors including those enumerated in section 36-5-101(d)(1) of the Tennessee Code.2 See Denton v.


         2
             Section 3 6-5-1 01(d )(1) provides:
                     It is the intent of th e gen eral assem bly th at a spo use w ho is econ om ically
                     disadvantaged, relative to the other spouse, be rehabilitated whenever
                     possible by the granting of an order for pa yme nt of rehabilitative, temporary
                     support and maintenance. Where there is such relative economic disadvantage
                     and rehabilitation is not feasib le in consideration of all relevant factors,
                     including those set out in this subsection, then the court may grant an order for
                     payment of support and maintenance on a long-term basis or until the death
                                                                                                          (con tinued...)

                                                            -7-
Denton, 902 S.W.2d 930, 932 (Tenn. Ct. App. 1995); Brown, 913 S.W.2d at 169. Although all
statutory factors listed in section 36-5-101(d)(1) are important and will be considered by the trial
court, “need and the ability to pay are the critical factors in setting the amount of an alimony award.”
Koja v. Koja, 42 S.W.3d 94, 100 (Tenn. Ct. App. 2000).

        Section 36-5-101(d)(1) reflects a preference for temporary support, or rehabilitative alimony,
as opposed to long-term support, or alimony in futuro. See TENN. CODE ANN . § 36-5-101(d)(1); see
also Wilson, 929 S.W.2d at 375. “The purpose of rehabilitative alimony is to enable the
disadvantaged spouse to acquire additional job skills, education, or training that will enable him or
her to be more self-sufficient.” Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998) (citing
Smith v. Smith, 912 S.W.2d 155, 160 (Tenn. Ct. App. 1995); Cranford v. Cranford, 772 S.W.2d 48,
51 (Tenn. Ct. App. 1989)). In contrast, the purpose of alimony in futuro is to provide support to an
economically disadvantaged spouse who is unable to achieve some degree of self-sufficiency. See
Loria v. Loria, 952 S.W.2d 836, 838 (Tenn. Ct. App. 1997). A court may grant alimony in futuro only

         2
             (...continued)
                       or remarriage of the recipient except as otherwise provided in subdivision (a)(3).
                       Rehabilitative support and maintenan ce is a separate class of spousal support
                       as distinguished from alimony in solido and periodic alimony. In determining
                       wh ether the grantin g of an order for paym ent of support and ma intenance to
                       a party is appropriate, and in determining the nature, amount, length of term,
                       and manner of payment, the court shall consider all relevant factors, including:
                       (A) The relative earning capacity, obligations, needs, and financial resources
                       of each party, including in com e from pension, p rofit sharing or retireme nt
                       plans an d all other sou rces;
                       (B) T he relative educ ation and training of each party , the ab ility and opp ortunity
                       of each party to secure suc h education and tra ining , and the necessity of a party
                       to secu re further educ ation and training to im prove su ch party’s earning capacity
                       to a rea sonable 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 employment
                       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 the marital property as defined in § 36-4-121;
                       (I) The standard of living of the parties established during the marriage;
                       (J) The extent to which each party has made such tangible and intangible contributions
                       to the ma rriage as m one tary and h om em aker con tributio ns, an d tangible and intangible
                        contributions by a party to the education, training or increased earning power of the
                        other party;
                        (K) The relative fau lt of the parties in cases w here the court, in its discretion, dee ms
                        it appropriate to do so; and
                        (L) Such other factors, including the tax consequen ces to each party, as are necessary
                        to consid er the equ ities between the parties.
 T E N N . C ODE A N N . § 36-5-101 (d)(1) (Supp. 200 0).

                                                             -8-
where rehabilitation of the economically disadvantaged spouse is not feasible. See Aaron v. Aaron,
909 S.W.2d 408, 410 (Tenn. 1995); Self v. Self, 861 S.W.2d 360, 361 (Tenn. 1993).

        In the case at bar, Mr. Gore argues that the trial court should have awarded Ms. Gore
rehabilitative alimony rather than alimony in futuro. Mr. Gore argues that Ms. Gore is gainfully
employed and has the ability to maintain a reasonable level of earnings and remain self-sufficient.
Based upon the evidence presented at trial, we conclude that an award of rehabilitative alimony is not
appropriate in this case. In consideration of the disparity in the parties’ earning capacities, Ms. Gore’s
limited earning capacity, the infeasibility of Ms. Gore’s rehabilitation, the twenty-five year duration
of the marriage, the tangible and intangible contributions that Ms. Gore made as a homemaker during
the marriage, and the fault of Mr. Gore in precipitating this action for divorce, we hold that the trial
court did not err in awarding Ms. Gore alimony in futuro. Accordingly, we affirm the trial court’s
decision awarding Ms. Gore alimony in futuro in the amount of $1,500 per month until her death or
remarriage.

                           Life Insurance to Secure Alimony Obligation

        The third issue presented for our review is whether the trial court erred by requiring Mr. Gore
to maintain $200,000.00 in life insurance to secure his alimony obligation. Mr. Gore does not dispute
that he is required to maintain life insurance to secure his alimony obligation. Rather, Mr. Gore
argues that in the event this Court modifies Mr. Gore’s alimony obligation, $200,000.00 would be
an excessive amount of life insurance for Mr. Gore to maintain. Because we decline to modify Mr.
Gore’s alimony obligation, we likewise decline to modify the amount of life insurance he must
maintain to secure his alimony obligation. Accordingly, we affirm the trial court’s order requiring
Mr. Gore to maintain $200,000.00 in life insurance to secure his alimony obligation.

                                            Judicial Notice

         The fourth issue presented for our review is whether the trial court erred by taking judicial
notice of certain matters in this case. Rule 201 of the Tennessee Rules of Evidence permits a trial
court to take judicial notice of adjudicative facts whether requested or not. See TENN. R. EVID .
201(c). A trial court may take judicial notice of only certain kinds of facts. “A judicially noticed fact
must be one not subject to reasonable dispute, in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned.” TENN. R. EVID . 201(b).

        In the case at bar, the trial court took judicial notice that “there is an implied prejudice to
people with facial disfigurements, in the workplace, though not always overtly prejudiced, those
individuals with facial disfigurements are often not accorded the same kind of treatment as people
with attractive facial features. As a result, the Court found that Ms. Gore faces an uphill battle in the
work place in attempting to have certain options available to her that she might not otherwise have.”
We find that the trial court erred by taking judicial notice that Ms. Gore’s facial disfigurement would
cause her to face an uphill battle in the workplace due to an implied prejudice to people with facial


                                                   -9-
disfigurements. This is not the kind of fact of which a court may take judicial notice. This fact is
subject to reasonable dispute in that it is neither generally known within the territorial jurisdiction of
the trial court nor capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.

        Although we find that the trial court erred by taking judicial notice, we find this error was
harmless in that it did not affect the merits of the trial court’s decision. The trial court took judicial
notice of an implied prejudice to Ms. Gore in the workplace in the context of its alimony award to Ms.
Gore. The trial court stated, however, that it also considered Ms. Gore’s age and limited capacity to
earn income comparable to Mr. Gore, Ms. Gore’s contributions as a housewife to the marital estate,
Mr. Gore’s fault, all the factors listed in section 36-5-101(d)(1), all the evidence, and the credibility
of Ms. Gore as a witness in making its award of alimony in futuro. We find that the evidence
preponderates in favor of the trial court’s award of alimony in futuro even absent the judicially
noticed fact of an implied prejudice to Ms. Gore in the workplace. Accordingly, we find that the trial
court’s error was harmless error in that it did not affect the merits of the trial court’s decision.

                                            Child Support

        The fifth issue presented for our review is whether the trial court erred by awarding Ms. Gore
child support in the amount of $1,712.00 per month. In determining child support, courts must apply
as a rebuttable presumption the Tennessee Child Support Guidelines (“the Guidelines”) promulgated
by the Tennessee Department of Human Services. See TENN. CODE ANN . § 36-5-101(e)(1) (Supp.
2000). Under the Guidelines, the amount of child support is calculated based on a percentage of the
obligor parent’s net income. See TENN. COMP. R. & REGS. ch. 1240-2-4-.03 (1994). For two minor
children, as in the case at bar, that percentage is thirty-two percent. See id. Since the Guidelines
speak in terms of percentages, the trial court is required to determine the obligor’s net income before
it can set child support. See id.

        Applying the Guidelines is straightforward when the obligor’s income is stable. It is common
for an obligor’s income to fluctuate, however, because income may include overtime pay, bonuses,
stock options, or other incentive compensation. The Guidelines require that gross income includes
all income from any source including variable income such as commissions, bonuses, overtime pay,
or dividends. See TENN. COMP. R. & REGS. r. 1240-2-4-.03(3)(a) (1994). If an obligor parent
receives overtime pay, as in the case at bar, that variable income “should be averaged and added to
the obligor’s fixed salary.” TENN. COMP. R. & REGS. r. 1240-2-4-.03(3)(b) (1994). The Guidelines
do not prescribe how variable income should be averaged for establishing current child support
obligations. For past child support obligations, however, the Guidelines do prescribe that income
should be averaged over a period of two years. See TENN. COMP. R. & REGS. r. 1240-2-4-.04(e)
(1997). Referring to this provision, the court of appeals in Brown v. Brown, No. 03A01-9812-CV-
00417, 1999 WL 552854, at *5 (Tenn. Ct. App. July 28, 1999), stated:

                While this provision does not mandate that trial courts average
                variable monthly income from the past two years to determine


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               gross income for current child support, it does reflect the legislative
               intent that when the exact amount of gross income is not known
               an average must be taken, and a period of two years is an appropriate
               time period to average that income.
Id.

        The courts must determine on a case-by-case basis the most appropriate way to average
variable income for current child support. See Hanselman v. Hanselman, No. M1998-00919-COA-
R3-CV, 2001 WL 252792, at *3 (Tenn. Ct. App. Mar. 15, 2001). In Tennessee, courts have
consistently rejected basing child support obligations on variable income averages of short duration.
See id. at *5 (rejecting a proposed several-months average in favor of a three-year average); Miglin
v. Miglin, No. 01A01-9802-CH-00080, 1999 WL 398205, at *3 (Tenn. Ct. App. June 18, 1999)
(rejecting a proposed four-month average in favor of a one-year average); Whitfield v. Whitfield, No.
03A01-9404-CV-00140, 1994 WL 465796, at *2 (Tenn. Ct. App. Aug. 30, 1994) (rejecting a five-
pay-period average in favor of a one-year average). Courts have consistently approved basing child
support obligations on variable income averages for periods of a year or longer when warranted by
the circumstances. See Alexander v. Alexander, 34 S.W.3d 456, 464-65 (Tenn. Ct. App. 2000)
(adopting a four-year average); Norton v. Norton, No. W1999-02176-COA-R3CV, 2000 WL 52819
at *7 (Tenn. Ct. App. Jan. 10, 2000) (adopting a two-year average); Smith v. Smith, No. 01A01-9705-
CH-00216, 1997 WL 672646, at *3 (Tenn. Ct. App. Oct. 29, 1997) (adopting a three-year average);
Bell v. Bell, No. 01A01-9511-CH-00493, 1996 WL 548150, at *1 (Tenn. Ct. App. Sept. 25, 1996)
(adopting a four-year average).

       In the case at bar, the trial court ordered Mr. Gore to pay child support to Ms. Gore in the
amount of $1,712.00 per month. The trial court stated that it calculated child support based on Mr.
Gore’s gross average income of $7,676.00 per month for the first seven months of the year 2000.
Because Mr. Gore’s gross income includes overtime pay, and in accordance with the courts in
Tennessee, we find that the trial court erred in averaging Mr. Gore’s gross income over a period of
only seven months. A two-year average would be a more appropriate period in the case at bar.
Accordingly, we reverse the trial court’s award of child support in the amount of $1,712.00 per month
and remand for a redetermination of child support based on an average of Mr. Gore’s overtime pay
over the two year period prior to the trial.




                      Life Insurance to Secure Child Support Obligation

       The sixth issue presented for our review is whether the trial court erred by requiring Mr. Gore
to maintain $150,000.00 in life insurance to secure his child support obligation. Mr. Gore does not
dispute that he is required to maintain life insurance to secure his child support obligation. Rather,
Mr. Gore argues that the amount of life insurance that the trial court ordered that he maintain is in
error. We agree. We reversed the amount of child support Mr. Gore was ordered to pay by the trial


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court and remanded for a redetermination of child support in accordance with this opinion. Likewise,
we must reverse the amount of life insurance Mr. Gore was ordered to maintain to secure his child
support obligation because the trial court based this determination upon the original amount of child
support that Mr. Gore was ordered to pay. Accordingly, we remand to the trial court for a
redetermination of the amount of life insurance Mr. Gore must maintain to secure his child support
obligation based upon the redetermination of child support.

                                         Restraining Order

        The seventh issue presented for our review is whether the trial court erred by permanently
enjoining Mr. Gore from taking the children in the presence of Ms. Cannon. On July 19, 2001, Mr.
Gore filed a motion in this Court to consider the post judgment fact that he had married Ms. Cannon
on June 16, 2001. At oral argument in this case, the attorney for Mr. Gore argued that the marriage
had a bearing on whether the restraining order should remain in effect. The attorney for Ms. Gore
agreed at oral argument that the children could be in the presence of Ms. Cannon now that Mr. Gore
and Ms. Cannon were married. The attorney for Ms. Gore stated that as a result of the marriage, the
restraining order was no longer an issue on appeal. Without reaching the merits of the trial court’s
decision to initially impose the restraining order, we find that the restraining order is no longer
appropriate in light of the marriage of Mr. Gore and Ms. Cannon. Accordingly, we vacate the
restraining order enjoining Mr. Gore from taking the children in the presence of Ms. Cannon.

                               Failure to File a Responsive Pleading

       The eighth issue presented for our review is whether Mr. Gore’s failure to file a responsive
pleading constituted an admission of Ms. Gore’s allegations regarding the financial issues. Because
we have resolved the financial issues without regard to Mr. Gore’s failure to file a responsive
pleading, this issue is pretermitted.

                                           Unclean Hands

       The ninth issue presented for our review is whether the trial court properly refused to consider
Mr. Gore’s proposals as to property division and alimony due to Mr. Gore’s “unclean hands.”
Because we have resolved the property division and alimony issues without regard to whether Mr.
Gore had “unclean hands,” this issue is pretermitted.


                                           Attorney’s Fees

       The final issue presented for our review is whether this Court should award Ms. Gore her
attorney’s fees on appeal. Ms. Gore argues that she lacks liquid assets to pay her attorney’s fees on
appeal and will be compelled to dissipate marital assets if this Court fails to award her attorney’s fees
on appeal. An award of attorney’s fees is “appropriate when the spouse seeking them lacks sufficient
funds to pay his or her own legal expenses or would be required to deplete his or her resources in


                                                  -12-
order to pay these expenses.” Smith v. Smith, 984 S.W.2d 606, 610 (Tenn. Ct. App. 1997) (citing
Brown v. Brown, 913 S.W.2d 163 (Tenn. Ct. App. 1994)). If a wife is financially unable to afford
counsel and the husband has the ability to pay, the court may order the husband to pay the attorney’s
fees of the wife. See Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995). Though one
spouse may receive most of the assets in a trial court’s division of property, the court may still award
attorney’s fees to allow that spouse to preserve the assets awarded. See Wilson v. Wilson, 987
S.W.2d 555, 566 (Tenn. Ct. App. 1998) (citing Lancaster v. Lancaster, 671 S.W.2d 501 (Tenn. Ct.
App. 1984)). We find that Ms. Gore does not have sufficient liquid assets to pay her attorney’s fees
on appeal and Mr. Gore has the financial ability to pay Ms. Gore’s attorney’s fees. Mr. Gore should
bear the reasonable fees of Ms. Gore’s attorney on appeal. Accordingly, we remand this issue to the
trial court to determine and award a reasonable fee for the time and expense of Ms. Gore’s attorney
on appeal. See Holt v. Holt, 995 S.W.2d 68, 78 (Tenn. 1999).

                                           IV. Conclusion

       For the foregoing reasons, the decision of the trial court is affirmed in part, reversed in part,
and vacated in part. We remand this case to the trial court for further proceedings consistent with this
opinion. Costs of this appeal are taxed against the Appellant, George D. Gore, and his surety, for
which execution may issue if necessary.




                                                               ALAN E. HIGHERS, JUDGE




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