                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 November 17, 2004 Session

                          AMY OWENS v. RONNIE OWENS

                  Direct Appeal from the Chancery Court for Obion County
                     No. 23,754    William Michael Maloan, Chancellor



                   No. W2003-03077-COA-R3-CV - Filed January 21, 2005


This is a divorce action. The trial court designated Wife as the primary residential parent of the
parties’ minor child and awarded Husband visitation. It also awarded wife alimony of $415 per
month for 16 years. Husband appeals. We affirm designation of Wife as the primary residential
parent and the award of visitation to Husband. We modify the alimony award to an award of
rehabilitative alimony of $415 per month for a period of five years.

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

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

W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for the appellant, Ronnie Owens.

David L. Hamblen, Union City, Tennessee, for the appellee, Amy Owens.

                                            OPINION

        The parties to this divorce action, Amy Owens (Ms. Owens) and Ronald (“Ronnie”) Owens
(Mr. Owens) were married in August 1990. One child was born of this marriage in January 2001.
The parties disagree as to when they began to experience marital difficulties. However, it appears
that disagreements over religion were a primary source of difficulty. Ms. Owens submits she is a
life-long Pentecostal and “decided to renew her commitment to the Pentecostal faith [and] to practice
more strict compliance with that faith.” The parties separated on July 1, 2002, and Ms. Owens filed
for legal separation on July 17, 2002. In her petition, Ms. Owen cited inappropriate marital conduct
as grounds for separation and prayed for alimony and to be designated primary residential parent of
the parties’ minor child. Mr. Owens answered and counter-complained for divorce in August 2002.
Mr. Owens prayed for a divorce based on irreconcilable difference or by stipulation and further
prayed to be designated as the primary residential parent.
         On August 14, 2002, the trial court entered an order finding no need to determine temporary
custody and granting the parties equal custodial time with their minor child. The matter was heard
in February 2003, and on April 14, 2003, the court entered a final order of divorce and parenting
plan. The trial court designated Ms. Owens as primary residential parent and awarded Mr. Owens
visitation beginning on Wednesday evening at 6:00 and continuing through Sunday evening at 6:00
every other week. The trial court entered a permanent parenting plan and awarded the parties
alternating holidays. Mr. Owens was additionally awarded two weeks visitation during the summer.
Child support was set at the statutory amount. The trial court awarded the parties’ marital home to
Ms. Owens. It further ordered Mr. Owens to pay, as alimony, the monthly house payment of $415
on the marital residence until the child turns 18 years of age. Mr. Owens filed a timely notice of
Appeal to this Court.

                                          Issues Presented

       Mr. Owens raises the following issues, as we re-state them, for our review:

       (1)     Whether the trial court erred in its award of alimony.

       (2)     Whether the trial court erred in determining child custody and the parenting
               plan.

                                         Standard of Review

         We review the trial court's findings of fact de novo with a presumption of correctness. Tenn.
R. App. P. 13(d); Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000). We may not reverse the
trial court's factual findings unless they are contrary to the preponderance of the evidence. Id. Our
review of the trial court's conclusions on matters of law is de novo with no presumption of
correctness. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000). Because it is in the best position
to assess witnesses, we afford the trial court considerable deference on matters of witness credibility.
See Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.1999). Thus, we will not reverse
the trial court’s findings insofar as they are based on issues of witness credibility in the absence of
clear and convincing evidence to the contrary. Sullivan v. Sullivan, 107 S.W.3d 507, 510 (Tenn. Ct.
App. 2002). Likewise, we review the trial court's determination of child custody under an abuse of
discretion standard, affording the trial court great deference. Herrera v. Herrera, 944 S.W.2d 379,
385 (Tenn. Ct. App.1996).

                                         Award of Alimony

        The trial court awarded Ms. Owens alimony of $415 per month, an amount equal to the
amount of the payment on the parties’ marital home, until the parties’ minor child reaches the age
of 18 or until Ms. Owens remarries or any other appropriate change of circumstances which would
require modification of the award. Mr. Owens argues the award of alimony is excessive and that it
was not designated as any particular type of alimony.


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        When determining whether an award of alimony is appropriate, courts must consider the
statutory factors set out in Tennessee Code Annotated § 36-5-101(d). We historically have
considered the need of the spouse seeking support and the ability of the other spouse to provide such
support to be the most important factors. E.g., Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001).
We review an award of alimony under an abuse of discretion standard. Herrera, 944 S.W.2d at 385.
If a discretionary decision is within a range of acceptable alternatives, appellate courts will not
substitute their decision for that of the trial court simply because the appellate court would have
chosen a different alternative. White v. Vanderbilt University, 21 S.W.3d 215, 223 (Tenn. Ct.
App.1999).

         As Mr. Owens submits, the trial court did not label the award of alimony as any particular
type. Upon review of the record, we agree that an award of alimony in futuro is not appropriate in
this case. At the time of the trial of this matter, Mr. Owens was 34 years of age and earned $3,700
per month in net income as an engineer. Ms. Owens was 32 years of age at the time of trial, holds
an associate degree, and is a certified X-ray technician and architectural draftsperson, although she
has never worked as a draftsperson. Ms. Owens returned to work on a part-time basis when the
parties’ child was seven or eight months of age, and works between 24 and 30 hours a week as an
x-ray technician at an hourly wage of $12. Thus, Ms. Owens wages amount to $288 to $360 per
week, or $1,152 to $1,440 per month. Additionally, Ms. Owens testified that she intends to return
to full-time employment. There is nothing in the record to suggest that Ms. Owens is unable to
achieve economic self-sufficiency or needs alimony in futuro.

        The legislature has clearly stated a preference for rehabilitative alimony designed to enable
an economically disadvantaged spouse to attain economic self-sufficiency. Tenn. Code Ann. § 36-5-
101(d)(1); Crabtree v. Crabtree, 16 S.W.3d, 356, 358 (Tenn. 2000). Further, although a disparity
in income between the parties is a factor in determining whether a spouse is economically
disadvantaged, it is not the sole factor in determining whether rehabilitation is feasible. Avery v.
Avery, No. M2000-00889-COA-R3-CV, 2001 WL 775604, at *17 (Tenn. Ct. App. July 11, 2001)(no
perm. app. filed). Moreover, in light of the legislative preference for rehabilitative alimony, a trial
court’s award of other types of alimony based solely on income disparity rather than on a
determination that the disadvantaged spouse could not be rehabilitated was outside the scope of the
trial court’s discretion under the Tennessee Code as it existed when this matter was heard. Id. at n.
26 (citing Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000)); State ex rel. Vaughn v.
Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000).

        The legislature recently amended the Tennessee Code and added transitional alimony as a
specific type of alimony. Tenn. Code Ann. § 36-5-101(d)(1)(D)(Supp. 2003). Transitional alimony
may be “awarded when the court finds that 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, such as a petition for an order
of protection.” Id. Prior to this statutory amendment, the courts awarded rehabilitative alimony in
order to ease a disadvantaged spouse’s transition to economic self-sufficiency where such self-



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sufficiency was possible without additional education, training, or rehabilitation. Crabtree, 16
S.W.3d at 360-61; Avery, 2001 WL 775604, at *18.

        The trial court heard the matter now before us prior to the effective date of the amendment
adding transitional alimony to the list of the types of alimony specifically recognized by the
legislature. Although alimony in futuro is not warranted in this case, we believe an alimony award
designed to ease Ms. Owens’ transition to economic self-sufficiency is appropriate. We accordingly
modify the trial court’s award and award Ms. Owens rehabilitative alimony of $415 per month for
a period of five years.

                               Child Custody and the Parenting Plan

        Mr. Owens submits the trial court erred in determining child custody and the parenting plan.
He contends the trial court considered evidence not in the record to make its determination and that
the court did not base its determination on the statutory factors. Mr. Owens submits that the
temporary order of August 2002 should be reinstated, and that the parties should have equal custody.
We review the trial court's determination of child custody under an abuse of discretion standard,
affording the trial court great deference. Herrera v. Herrera, 944 S.W.2d 379, 385 (Tenn. Ct.
App.1996). This Court will not interfere with the trial court's determination absent a palpable abuse
of discretion or unless the judgment is against the great weight of the evidence. Id. at 386. This
deferential review is premised on the assumption that the trial court first considered the best interests
of the child in making the custody determination and did not act arbitrarily. Id. In making a custody
determination, the trial court must engage in a comparative fitness analysis of the parents. Gaskill
v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App.1996). In so doing, it must consider the factors
outlined by the legislature as codified at Tenn. Code Ann. § 36-6-106. Id. Custody determinations
are thus based on a combination of subtle factors, and require a factually based inquiry. Id. The trial
court is in the best position to weigh the facts presented to it, and to assess the credibility of the
parties. Id. Similarly, the details of visitation arrangements are within the discretion of the trial
court. Hogue v. Hogue, 147 S.W.3d 245, 251 (Tenn. Ct. App. 2004). Although the trial court’s
discretion is not without limit and its determinations must be based on the evidence and appropriate
legal principles, we will not disturb the trial court’s determinations absent an abuse of discretion.
Id.

       Upon review of the record in this case, we cannot say the trial court abused its discretion in
determining Ms. Owens should be the primary residential parent and in setting visitation. We
accordingly affirm.

                                               Holding

        We affirm the judgment of the trial court designating Ms. Owens as the primary residential
parent of the parties’ minor child and awarding Mr. Owens visitation. We modify the alimony award
to an award of rehabilitative alimony of $415 per month for five years. This cause is remanded for
entry of judgment consistent with this opinion. Costs of this appeal are taxed one-half to the


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Appellee, Amy Owens, and one-half the Appellant, Ronald Owens, and his surety, for which
execution may issue if necessary.



                                                ___________________________________
                                                DAVID R. FARMER, JUDGE




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