                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                           Assigned on Briefs January 28, 2005

             THERESA ANN WALTON v. STEVEN RAY WALTON

                 An Appeal from the Chancery Court for Hardeman County
                       No. 13244 Dewey Whitenton, Chancellor



                   No. W2004-02474-COA-R3-CV - Filed August 10, 2005


This is an appeal of a modification of alimony. The parties were divorced in February 2003. In the
decree, the trial court awarded the wife rehabilitative alimony for eighteen months, but reserved
jurisdiction to evaluate and review the award at the end of the eighteen-month period based on
competent medical proof, noting that the wife was expected to pursue disability benefits during that
time. During the interim, the wife’s second application for Social Security disability benefits was
denied on the grounds that she had not worked long enough to qualify for such benefits. Over a year
after entry of the divorce decree, the wife filed a motion for the trial court to review the alimony
award. The trial court conducted a hearing and the wife entered into evidence medical proof that she
could not be rehabilitated. The trial court did not require the wife to show a material change in
circumstances, explaining that it had mistakenly classified the original award as being
“rehabilitative.” Therefore, based on the additional proof, the trial court reduced the monthly
amount and designated the award as alimony in futuro. The husband now appeals, arguing that the
wife was required to show a substantial and material change in circumstances to warrant a
modification of the original rehabilitative alimony award. We affirm, finding that the trial court
retained jurisdiction to hear the medical proof and did not err in changing the award to alimony in
futuro.

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

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

Charles M. Cary, Bolivar, Tennessee, for the appellant, Steven Ray Walton.

T. Tarry Beasley, II, Memphis, Tennessee, for the appellee, Theresa Ann Walton.
                                            OPINION

       Plaintiff/Appellee Theresa Ann Walton (“Wife”) and Defendant/Appellant Steven Ray
Walton (“Husband”) were married for twenty-nine (29) years. In April 1993, during the marriage,
Wife suffered a left-hemisphere stroke which adversely affected her speech and cognitive abilities.

       On November 17, 2000, Wife filed a petition for divorce in the trial court, and Husband filed
a counterclaim for divorce. In April 2002, Wife’s application for Social Security disability benefits
was denied, on the basis that she had not worked long enough to qualify for such benefits. On
January 22, 2003, the case went to trial. The appellate record does not include a transcript of those
proceedings.

       On February 12, 2003, the trial court entered an order entitled “Final Decree of Divorce.”
The order declared the parties divorced, divided their personal property, and awarded Wife a portion
of Husband’s Federal Express Corporation retirement savings plan. It also included the following
provision regarding alimony:

       IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that
       [Wife] is awarded rehabilitative alimony of $2,000.00 per month for a period of 18
       months beginning February 1, 2003, which shall be paid directly to [Wife], with an
       evaluation and review of the rehabilitative alimony by the Court based on competent
       medical proof at the end of that time.

       If prior to that time [Wife] is awarded disability benefits by the Social Security
       Administration, which the Court expects her to vigorously pursue then the monthly
       amount awarded by the Social Security Administration is to be deducted from the
       monthly rehabilitative alimony.

Thus, the trial court awarded Wife rehabilitative alimony in the amount of $2,000 per month, which
award was to be evaluated after eighteen (18) months “based on competent medical proof at the end
of that time.” The trial court emphasized its expectation that Wife would “vigorously pursue” Social
Security disability benefits during the interim.

        Over one year later, on February 25, 2004, Wife filed a motion entitled “Plaintiff’s Motion
to Review Previous Ruling Pursuant to Instruction of Court & for Clarification of Award.” The
motion requested “a review of [the trial court’s] previous ruling as to the award of rehabilitative
alimony pursuant to the Final Decree of Divorce entered on February 12, 2003.” On March 31,
2004, Husband filed a response to Wife’s motion, arguing that the trial court had no jurisdiction to
extend or modify the alimony award set out in the decree of divorce, absent an unforeseen material
change in circumstances. Because there had been no such change in circumstances since the trial
in this case, Husband argued, the trial court could not extend or modify the initial award of
rehabilitative alimony.



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        On April 5, 2004, the trial court held a hearing on Wife’s motion. The appellate record also
does not include a transcript of that hearing. On April 20, 2004, the trial court entered an order
continuing its consideration of Wife’s motion until June 1, 2004. The order stated that Wife’s
“motion to continue the rehabilitative alimony after July 2004 and to reduce the rehabilitative
alimony to $572.00 per month effective July 2004 shall be continued until June 1, 2004 at which
time [Wife] shall submit competent medical proof and proof of her denial of Social Security
Disability Benefits.” Also on April 20, 2004, Wife received a denial of her second application for
Social Security disability benefits; as with the first one, this denial was on the basis that she had not
worked long enough to qualify. The denial letter specifically stated that the Social Security
Administration did not determine whether Wife was disabled. On June 3, 2004, the trial court
entered an order continuing the June 1, 2004 hearing until August 23, 2004.

        On August 23, 2004, the trial court held a hearing. No witnesses testified at the hearing.
Wife argued that she was unable to work and that Husband should be required to pay alimony in
futuro in the amount of $550 per month.1 In support of her claim, Wife submitted the deposition
testimony of Vickie R. Brewer, a psychologist (“Dr. Brewer”). Counsel for Husband argued that the
trial court was without jurisdiction to extend or modify the rehabilitative alimony award in any
respect unless Wife could show a material change in circumstances that was unknown or
unforeseeable at the time the divorce case was tried on January 22, 2003, citing Perry v. Perry, 114
S.W.3d 465 (Tenn. 2003). He further argued that, because Wife’s impairments flowed from the
stroke she suffered in 1993, her resulting disability was foreseeable when the divorce case was tried
in January 2003. Therefore, he claimed, Wife could not show an unforeseeable change in
circumstances that would warrant the modification in alimony Wife had requested.

        The trial court heard the arguments of counsel and then took a recess to read and consider
Dr. Brewer’s deposition and Wife’s medical proof. Dr. Brewer evaluated Wife on May 14, 2004,
and submitted a written report of her evaluation, which was attached as an exhibit to her deposition.
Also attached as an exhibit to Dr. Brewer’s deposition was a vocational assessment done on March
2, 2004 by Dr. Greg Cates, a vocational expert, and two evaluations by Dr. Michael Whelan, a
psychologist, performed on January 11, 2003 and February 22, 2003.

        The reports indicate that Wife was born in 1954, and was approximately 50 years old on the
date of the hearing in the trial court below. She dropped out of school in the eleventh grade because
of pregnancy, and has two grown children. During the marriage, she was a housewife and did not
work outside the home. In April 1993, for no apparent reason, Wife suddenly began to talk
unintelligibly. Eventually, tests were performed which showed she had suffered a stroke which
affected the portion of the brain that controls expressive language, receptive language, mathematical
calculations, right/left orientation, the ability to organize thoughts and plan ahead, and memory.
Because of Wife’s difficulty in expressing herself and in understanding Dr. Brewer’s questions, Dr.
Brewer obtained her history from Wife’s sister-in-law, who brought her to see Dr. Brewer.


         1
           At the hearing, W ife’s attorney told the trial court that W ife expected to qualify for SSI benefits, but in order
to do so, she could have no more than $550 per month in income from any other source.

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          In her evaluation, Dr. Brewer found that Wife’s language was very disfluent; she spoke with
a monotone voice, used few words, and had great difficulty finding the correct word to use. She used
nonsense words, such as calling a calendar a cantaloupe. She was unable to repeat three words that
had been given to her to recall. When asked to write a sentence, Wife was confused and repeatedly
asked Dr. Brewer, “What is a sentence?” She wrote a word or two, but was unable to write a
sentence. She suffered from some dementia, and was unable to perform simple tasks, such as
pointing to a yellow square among objects of different colors and shapes. Overall, Dr. Brewer found
Wife to be severely and permanently impaired, to a reasonable degree of medical certainty. Wife’s
prognosis was poor, with the likelihood that her condition would worsen. Since Dr. Brewer did not
evaluate Wife until May 2004, she was unable to state what changes had occurred in Wife since the
trial in January 22, 2003. In her report, Dr. Brewer stated that a person’s improvement from a stroke
usually continues up to about one year, and that “[l]ittle or no improvement is typically seen after
that period of time.”

        After reviewing the medical proof, the trial court was persuaded that Wife could not be
rehabilitated and that she was entitled to $550 per month in alimony in futuro. The trial court
explained that it had made a “mistake” in initially calling the alimony awarded to Wife
“rehabilitative” alimony:

               The Court may have been in error in calling the alimony rehabilitative in the
       decree that was entered after the hearing on January 22, 2003. The Court said, quote,
       “rehabilitative” end quote, for 18 months with an evaluation and review based on
       competent medical proof.
               It is apparent now, based upon the medical proof before the Court, that Ms.
       Walton is not going to improve, and that her condition is such that she will not ever
       be better, but will continue to get worse over time; and that the symptoms of
       dementia will become more apparent over time.
               The Court finds that it cannot terminate alimony. The equities and justice of
       the situation compel the Court to order that she continue to receive $550 per month
       alimony, regardless of the technical term that is used to describe it. The mistake of
       the Court in calling it rehabilitative should not be used to punish Mrs. Walton for
       denying to her the spousal support that she should receive.

On September 13, 2004, the trial court entered an order incorporating its oral ruling. From this
order, Husband now appeals.

        On appeal, Husband makes the same argument he made in the trial court, that the trial court
was without jurisdiction to modify the rehabilitative alimony provision in the final decree of divorce,
absent a material change of circumstances that was unknown or unforeseeable at the time of the trial
in the divorce action. A trial court’s decision to modify its original alimony award is reviewed for
an abuse of discretion. Perry, 114 S.W.3d at 466-67. Such discretion is abused when the trial court
“applie[s] an incorrect legal standard, or reache[s] a decision which is against logic or reasoning that
cause[s] an injustice to the party complaining.” Id. at 467 (quotations omitted). The trial court’s


                                                  -4-
findings of fact are presumed to be correct, unless the evidence preponderates otherwise.
Conclusions of law, however, such as whether the trial court applied the correct legal standard, are
reviewed de novo, with no presumption of correctness.                 Id.; Kilby v. Kilby, No.
03A01-9712-CH-00549, 1999 WL 76065, at *2-*3 (Tenn. Ct. App. Jan. 28, 1999).

         In support of his position, Husband relies on Perry v. Perry, supra. In Perry, the trial court
entered a final decree of divorce on November 16, 1998. The decree included a provision that the
husband was to pay the wife rehabilitative alimony of $700 per month through December 31, 2000.
The trial court expressly designated the award as “temporary,” and ordered the parties to return to
court prior to December 31, 2000, to allow the court to determine whether the alimony award should
be continued. The trial court listed a number of factors that would be considered in making that
determination, including the wife’s needs, whether she had returned to school, her grades, and other
relevant factors. Perry, 114 S.W.3d at 466. Two years later, on November 3, 2000, the wife filed
a petition to modify the final decree to continue the alimony payments. On December 20, 2000, the
husband filed a petition requesting termination of the alimony previously ordered, reasoning that he
had completed his obligation set out in the original order to pay alimony through December 31,
2000. After a hearing on the matter, the trial court entered an order continuing the wife’s award of
rehabilitative alimony for three additional years but reducing the amount of the monthly payments.
Id. Since the original award had been termed “temporary,” the trial court did not require that the
wife show a material change in circumstances since the date of the original decree. The husband
appealed that determination, and the court of appeals affirmed the trial court in a split decision. See
Perry v. Perry, No. W2001-01350-COA-R3-CV, 2002 WL 1751407 (Tenn. Ct. App. Mar. 21, 2002),
rev’d, 114 S.W.3d 465 (Tenn. 2003).

        The husband appealed to the Tennessee Supreme Court, which reversed the decision of the
court of appeals. Perry, 114 S.W.3d at 469. The Supreme Court recognized that, in its original
divorce decree, the trial court had designated the alimony provision as “temporary,” and had ordered
the parties to return to court before the end of the two-year period. The Court noted that this “novel
approach” to deciding the duration of such an award was contrived because of the trial judge’s
uncertainty about the wife’s stated intent to return to school. The Supreme Court held, however, that
regardless of whether the initial rehabilitative alimony award is designated as “temporary” or “final,”
Tennessee Code Annotated § 36-5-101(d)(2) requires “a showing of substantial and material change
in circumstances” in order to modify any award of rehabilitative alimony. That statute provides:

       . . . An award of rehabilitative, temporary support and maintenance shall remain in
       the court's control for the duration of such award, and may be increased, decreased,
       terminated, extended, or otherwise modified, upon a showing of substantial and
       material change in circumstances.

Tenn. Code Ann. § 36-5-101(d)(2) (2001) (emphasis added). The Supreme Court determined that
rehabilitative alimony is, by definition, “temporary and open-ended.” Perry, 114 S.W.3d at 468.
Thus, the trial court’s attempt to reserve jurisdiction over the award for a finite period of time did



                                                 -5-
not affect the statutory requirement that a change in circumstances be shown in order to modify the
award. The Court explained:

                We decline to hold that the “temporary” nature of the trial court’s award of
        rehabilitative alimony requires less than a finding of a substantial and material
        change in circumstances. All awards of rehabilitative alimony are, by definition,
        temporary and open-ended. These awards provide alimony for a limited period of
        time and are subject to modification. Tennessee Code Annotated section 36-5-
        101(d)(2) specifically states that the award remains in the control of the trial court for
        its duration. An award of rehabilitative alimony that attempts to reserve the right to
        modify the award is an award that may be “increased, decreased, terminated,
        extended, or otherwise modified.” Tenn. Code Ann. § 36-5-101(d)(2) (1996 & Supp.
        2000). Any such modification requires a “substantial and material change in
        circumstances.”

Id. Accordingly, the Court remanded the case to the trial court for further proceedings.

        Relying on Perry, Husband argues that the trial court did not have jurisdiction to correct its
“mistake” and convert the award of rehabilitative alimony to an award of alimony in futuro, absent
a showing of an unforeseen change in circumstances. Even if Wife’s condition has worsened since
the trial on January 22, 2003, Husband argues, any deterioration was foreseeable and would not
constitute a material change in circumstances. In the absence of a substantial and material change
in circumstances, he maintains, the trial court was without authority to extend alimony past the
eighteen-month period set forth in the final decree of divorce.

       Wife argues that the trial court’s use of the term “rehabilitative” alimony in the January 22,
2003 order was “unfortunate,” but contends that the trial court retained the jurisdiction to continue
or change the nature of the award under the circumstances of this case. Wife contends that the
undisputed proof shows that she is permanently disabled and cannot be rehabilitated, and shows that
she was disabled at the time of the January 2003 trial.

        The appellate record in this case is sparse indeed. As noted above, we have no transcript of
any proceedings prior to the August 23, 2004 hearing. In addition, in designating the record on
appeal, the parties included no portion of the technical record prior to the February 12, 2003 order.
Thus, we do not even have the parties’ original complaint for divorce in the record on appeal.

        Husband appears to contend that the February 12, 2003 order was a final order, and that if
Wife disagreed with the characterization of the alimony award as “rehabilitative,” she should have
appealed at that point. Indeed, the order is titled “Final Decree of Divorce.” Clearly, however, the
trial court did not view it as a final order, and believed that it had retained jurisdiction to hear proof




                                                   -6-
regarding Wife’s medical condition and to award alimony in futuro.2 Without the pleadings, and in
particular the complaint and any counterclaim, it is difficult for this Court to know what the claims
were and whether all claims were disposed of in the order, making it a final and appealable order.
“When the record is incomplete, or does not contain the proceeding relevant to an issue . . . this
Court must conclusively presume that the ruling of the trial court was correct in all particulars.”
State v. Gibson, 973 S.W.2d 231, 244 (Tenn. Crim. App. 1997); see also Humphrey v. Humphrey,
No. 01-A01-9802-CV-0010, 1999 WL 42318, at *2 (Tenn. Ct. App. July 1, 1999); Varcarella v.
Varcarella, 49 S.W.3d 307, 315 (Tenn. Ct. App. 2001).

         More importantly, the language used in the final decree of divorce indicates that the trial
court had not closed the proof on Wife’s condition and had not yet determined the nature of the
alimony to be awarded.3 In Perry, the trial court clearly had heard all of the proof on whether the
wife was capable of being rehabilitated and had in fact determined that she could be rehabilitated
at the time it entered the order. The trial court indicated that, at the end of the two-year period of
rehabilitative alimony, it would hear proof on circumstances since the original decree, such as the
wife’s return to school and her progress and grades at school, to determine whether the rehabilitative
alimony should be continued for a longer period of time. Perry, 114 S.W.3d at 466. Under these
circumstances, where the trial court makes a finding of fact that a spouse is capable of being
rehabilitated, the Perry Court held that the award could not be extended or modified absent a
substantial and material change in circumstances. Id. at 468.

        In contrast, in the case at bar, the trial court did not indicate that it would hear proof on what
had transpired since the February 2003 order. Rather, the February 12, 2003 order shows that the
trial court had not heard all of the proof needed to make a determination on Wife’s ability to be
rehabilitated. The order states that it expected to hear “competent medical proof” at the end of the
eighteen-month period. Moreover, although the order uses the term “rehabilitative” alimony, the
order indicates that the trial court in fact considered Wife to be disabled and unable to work. The
trial court’s order states that it “expects [Wife] to vigorously pursue” Social Security disability
benefits; the court presumably would not urge Wife to apply for such benefits if it did not believe
her to be disabled. It is unclear whether the trial court chose to wait a period of time before hearing
the medical proof in order to see if Wife would be able to secure disability benefits or for another
reason. Regardless, in contrast to Perry, it is clear that the language in the February 12, 2003 order
does not reflect a finding that Wife was capable of being rehabilitated or that the trial court had even
purported to resolve that issue.




         2
           Although it is not often done, the trial court may, in its discretion, declare the parties divorced and reserve the
issue of alimony to be decided at a later time. See Robinette v. Robinette, 726 S.W .2d 524, 525 (Tenn. Ct. App. 1986).
It has been recognized, however, that reserving the issue of alimony should be done “sparingly” and only “in unique
factual situations.” See Perry, 2002 W L 1751407, at *6 (Farmer, J., concurring in part and dissenting in part).

         3
         Though it cannot be determined without a transcript of the prior proceedings, it seems that no medical proof
was presented prior to the entry of the final decree regarding whether W ife could be rehabilitated.

                                                             -7-
         Therefore, the trial court retained jurisdiction to hear the medical proof on Wife’s condition
at a later date and make a determination on whether Wife was capable of being rehabilitated after
considering that proof. The trial court did so, concluded that the proof overwhelmingly established
that Wife could not be gainfully employed, and awarded a modest amount of alimony in futuro. In
this situation, then, the trial court’s February 12, 2003 order was not final as to the alimony award,
because the issue of whether Wife was capable of being rehabilitated had not actually been
adjudicated. Thus, unlike Perry, Wife was not required to show a material change in circumstances
in order to obtain alimony in futuro. Therefore, Husband’s argument that the trial court was without
authority to award alimony in futuro must be rejected.

        The medical proof finally supports the trial court’s determination that Wife’s circumstances
merit an award of alimony in futuro. Husband does not appeal the amount of the award. Therefore,
we affirm the trial court’s award of alimony in futuro.

       The decision of the trial court is affirmed. Costs on appeal are to be taxed to Appellant
Steven Ray Walton and his surety, for which execution may issue, if necessary.




                                                       ___________________________________
                                                       HOLLY M. KIRBY, JUDGE




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