                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 October 28, 2014 Session

   SHEILA CHRISTINE JONES CALLOWAY v. WILLARD RANDALL
                        CALLOWAY

                  Appeal from the Chancery Court for Roane County
                  No. 201348    Frank V. Williams, III, Chancellor


               No. E2014-00558-COA-R3-CV - Filed November 26, 2014


This appeal arises from a divorce. Sheila Christine Jones Calloway (“Wife”) sued Willard
Randall Calloway (“Husband”) for divorce in the Chancery Court for Roane County (“the
Trial Court”). The Trial Court granted Wife a divorce on the ground of adultery by Husband.
The Trial Court equally divided the parties’ marital residence but awarded Husband’s one-
half interest in the marital residence to Wife as alimony in solido. The Trial Court also
awarded Wife alimony in futuro and attorney’s fees. Husband appeals. Given the parties’
relative earning capabilities and other relevant circumstances of this case, we affirm the Trial
Court’s award to Wife of Husband’s one-half interest in the marital residence as alimony in
solido. However, once Wife was awarded Husband’s one-half interest in the marital
residence, she no longer was financially disadvantaged relative to Husband, and, therefore,
the Trial Court erred in awarding Wife alimony in futuro and attorney’s fees. We affirm, in
part, and, reverse, in part, the judgment of the Trial Court.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which JOHN W. M CC LARTY
and T HOMAS R. F RIERSON, II, JJ., joined.

Martin W. Cash, Jr., Kingston, Tennessee, for the appellant, Willard Randall Calloway.

Browder G. Williams, Kingston, Tennessee, and, Julie D. Eisenhower, Knoxville, Tennessee,
for the appellee, Sheila Christine Jones Calloway.
                                        OPINION

                                       Background

              Husband and Wife were married in July 1975. Husband and Wife had three
children during the marriage, all of whom were adults by the time of the divorce. In March
2013, Wife sued Husband for divorce in the Trial Court. Wife’s complaint alleged adultery,
inappropriate marital conduct, and irreconcilable differences as grounds against Husband for
divorce. Husband filed an answer and counter-complaint for divorce. Husband
acknowledged that he had committed adultery and eventually identified his paramour. The
parties underwent mediation to no avail. This case was tried in February 2014.

                Two witnesses testified at trial: Wife and Husband. Wife, then 58, testified
first. Wife, a schoolteacher, began teaching in 1983. Wife had obtained a bachelor’s degree,
a master’s degree, and an Ed.S. during the marriage. Husband’s level of education, by
contrast, was a high school diploma. Wife testified that she was the primary caretaker of the
children during the early years of the marriage. According to Wife, Husband had a drinking
problem during the early years of the marriage and frequently was away from home.
Husband also committed adultery during this time. Nevertheless, Wife continued in the
marriage.

               Around 1990, things began to change in the marriage. Husband quit drinking
and attended welding inspector school. Husband went to work for GUBMK, his current
employer, and the parties began to thrive financially and in other ways. Wife testified: “We
worked hard, bought a house, worked on it, raised our children, put them through college,
paid for their weddings.” Wife’s income as a teacher was $54,662 in 2012 and, including
her retirement contributions, $59,094.50 in 2013. Husband’s income was $113,740 in 2012
and $133,965.34 in 2013.

              In 2012, problems began to develop in the marriage. Rumors began to spread
of an affair Husband was having with someone at his workplace. Husband and Wife began
to grow further apart. The parties engaged in marital counseling. Around this time, Husband
opened a separate bank account. Ultimately, Husband moved out of the marital residence
and into an apartment.

              Wife testified that she had two major surgeries in the year prior to trial for
perforated ulcers. Wife’s monthly expense showed a shortfall of $317.75 per month. Wife
acknowledged at trial that she had a one-fourth interest in a 100-acre farm she had inherited
from her mother, which was still in her mother’s estate. Wife, however, received rental
income from a cell phone tower on the farm of around $200 per month which reduced her

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expense shortfall to $117.75 per month. The parties’ marital residence was appraised at the
fair market value of $410,000 with there being no debt on this property. Wife submitted an
exhibit reflecting attorney’s fees of $8,625.00.

              Husband, 59, testified. Husband testified that in 2010 he began to feel that the
parties were growing apart. Husband’s personality was more of that of a loner, whereas Wife
preferred a lot of company and family around. Husband also testified that Wife began
rebuffing his sexual advances. Husband stated that he began having an affair with a co-
worker in April 2013. Husband eventually moved in with the paramour. Husband even took
a trip to Tunica with his paramour. Regarding his health, Husband testified that he takes
medication for cholesterol, prostate problems, anxiety, and arthritis. Husband also suffers
from high blood pressure.

             Husband requested an even split of all marital property. Regarding his work,
Husband stated that his high income depended in large measure on outages which allowed
him to work overtime. Husband stated that his one year of earning $183,000, for instance,
was a once in a lifetime occurrence, and that his earnings depend heavily on outages.
Husband testified that, were he to work an ordinary 40 hour week with no overtime, he
would earn approximately two thirds of his 2013 earnings, $133,965.34. In 2013, Husband
worked 3,000 hours.

              After hearing the proof, the Trial Court made its ruling. The Trial Court
granted Wife a divorce on the ground of adultery. The Trial Court divided the marital
residence which was valued somewhere between $400,000 and $500,000 equally, but then
awarded Husband’s one-half share of the marital residence to Wife as alimony in solido. The
Trial Court noted Husband’s higher income in reaching this decision. Also, Wife desired to
remain at the marital residence. The Trial Court stated:

              And I just don’t - - I just don’t think this is a case where - - where it
       would be - - I couldn’t, in good conscience, allow the husband’s misconduct
       to uproot the wife under these circumstances and send her off to Lord knows
       where in order to find another place to live, which would then require some
       additional payment of money out of her income either for rent or for a house
       payment after having found some other place to go. I’m just not going to do
       that.

              The Trial Court also awarded Wife alimony in futuro until age 65 in the amount
of $200 per month. The Trial Court explained: “And that last figure is modifiable, and that’s
why I’m allowing it. There’s enough disparity in these parties’ income to want to make sure
that going forward that - - that I can exercise some review of that in the future, if necessary

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. . . .” The Trial Court also awarded Wife $6,000 in attorney’s fees. Overall, Wife received
around 77% of the marital estate to Husband’s 23% after the alimony in solido award of
Husband’s interest in their marital residence to Wife. In short, Wife left with somewhere
over $400,000 more of the marital estate than did Husband.

             In March 2014, the Trial Court entered an order reflecting its ruling. Husband
timely appealed.

                                          Discussion

              Although not stated exactly as such, Husband raises three issues on appeal: 1)
whether the Trial Court erred in awarding Husband’s one-half interest in the marital
residence to Wife as alimony in solido; 2) whether the Trial Court erred in awarding Wife
$200 per month as alimony in futuro until she reaches the age of 65; and, 3) whether the Trial
Court erred in awarding Wife $6,000 in attorney’s fees.

            The issues on appeal concern a Trial Court’s decision to award spousal support.
Our Supreme Court has discussed awards of spousal support as follows:

       This Court has frequently recognized that trial courts in Tennessee have broad
       discretion to determine whether spousal support is needed and, if so, to
       determine the nature, amount, and duration of the award. See Gonsewski, 350
       S.W.3d at 105; Bratton v. Bratton, 136 S.W.3d 595, 605 (Tenn. 2004); Burlew
       v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001); Crabtree v. Crabtree, 16 S.W.3d
       356, 360 (Tenn. 2000). Because a trial court's “decision regarding spousal
       support is factually driven and involves the careful balancing of many factors,”
       Gonsewski, 350 S.W.3d at 105 (footnote omitted), the role of an appellate
       court is not to second guess the trial court or to substitute its judgment for that
       of the trial court, but to determine whether the trial court abused its discretion
       in awarding, or refusing to award, spousal support. Id. “An abuse of
       discretion occurs when the trial court causes an injustice by applying an
       incorrect legal standard, reaches an illogical result, resolves the case on a
       clearly erroneous assessment of the evidence, or relies on reasoning that causes
       an injustice.” Id. (citing Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176
       (Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010)).
       In determining whether the trial court abused its discretion, an appellate court
       “should presume that the [trial court's] decision is correct and should review
       the evidence in the light most favorable to the decision.” Gonsewski, 350
       S.W.3d at 105-06; see also Tenn. R. App. P. 13(d) (“[R]eview of findings of
       fact by the trial court in civil actions shall be de novo upon the record of the

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trial court, accompanied by a presumption of the correctness of the finding [s],
unless the preponderance of the evidence is otherwise.”).

                                       ***

        Tennessee recognizes four distinct types of spousal support: (1) alimony
in futuro, (2) alimony in solido, (3) rehabilitative alimony, and (4) transitional
alimony. Tenn. Code Ann. § 36-5-121(d)(1) (2010 & Supp. 2012). Alimony
in futuro, a form of long-term support, is appropriate when the economically
disadvantaged spouse cannot achieve self-sufficiency and economic
rehabilitation is not feasible. Gonsewski, 350 S.W.3d at 107. Alimony in
solido, another form of long-term support, is typically awarded to adjust the
distribution of the marital estate and, as such, is generally not modifiable and
does not terminate upon death or remarriage. Id. at 108. By contrast,
rehabilitative alimony is short-term support that enables a disadvantaged
spouse to obtain education or training and become self-reliant following a
divorce. Id.

       Where economic rehabilitation is unnecessary, transitional alimony may
be awarded. Transitional alimony assists the disadvantaged spouse with the
“transition to the status of a single person.” Id. at 109 (internal quotation
marks omitted). Rehabilitative alimony “is designed to increase an
economically disadvantaged spouse's capacity for self-sufficiency,” whereas
“transitional alimony is designed to aid a spouse who already possesses the
capacity for self-sufficiency but needs financial assistance in adjusting to the
economic consequences of establishing and maintaining a household without
the benefit of the other spouse's income.” Id. Consequently, transitional
alimony has been described as a form of short-term “bridge-the-gap” support
designed to “smooth the transition of a spouse from married to single life.”
Engesser v. Engesser, 42 So.3d 249, 251 (Fla. Dist. Ct. App. 2010).

                                       ***

        Tennessee statutes concerning spousal support reflect a legislative
preference favoring rehabilitative or transitional alimony rather than alimony
in futuro or in solido. See Tenn. Code Ann. § 36-5-121(d)(2)-(3); Gonsewski,
350 S.W.3d at 109. Not even long-term support is a guarantee that the
recipient spouse will be able to maintain the same standard of living enjoyed
before the divorce because “two persons living separately incur more expenses
than two persons living together.” Gonsewski, 350 S.W.3d at 108 (quoting

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      Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998)). Although the
      parties' standard of living is a factor courts must consider when making
      alimony determinations, see Tenn. Code Ann. § 36-5-121(i)(9), the economic
      reality is that the parties' post-divorce assets and incomes often will not permit
      each spouse to maintain the same standard of living after the divorce that the
      couple enjoyed during the marriage. Gonsewski, 350 S.W.3d at 113.
      Decisions regarding the type, length, and amount of alimony turn upon the
      unique facts of each case and careful consideration of many factors, with two
      of the most important factors being the disadvantaged spouse's need and the
      obligor spouse's ability to pay. Id. at 109-10.

Mayfield v. Mayfield, 395 S.W.3d 108, 114-16 (Tenn. 2012).

              With respect to the award of attorney's fees in divorce cases, our Supreme
Court has stated:

              It is well-settled that an award of attorney's fees in a divorce case
      constitutes alimony in solido. The decision whether to award attorney's fees
      is within the sound discretion of the trial court. As with any alimony award,
      in deciding whether to award attorney's fees as alimony in solido, the trial
      court should consider the factors enumerated in Tennessee Code Annotated
      section 36-5-121(i). A spouse with adequate property and income is not
      entitled to an award of alimony to pay attorney's fees and expenses. Such
      awards are appropriate only when the spouse seeking them lacks sufficient
      funds to pay his or her own legal expenses or the spouse would be required to
      deplete his or her resources in order to pay them. Thus, where the spouse
      seeking such an award has demonstrated that he or she is financially unable to
      procure counsel, and where the other spouse has the ability to pay, the court
      may properly grant an award of attorney's fees as alimony.

Gonsewski v. Gonsewski, 350 S.W.3d 99, 113 (Tenn. 2011) (citations omitted).

              We refer to a number of statutory factors in determining the nature and amount
of alimony:

      (1) The relative earning capacity, obligations, needs, and financial resources
      of each party, including income from pension, profit sharing or retirement
      plans and all other sources;




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       (2) The relative education and training of each party, the ability and
       opportunity of each party to secure such education and training, and the
       necessity of a party to secure further education and training to improve such
       party's earnings capacity to a reasonable level;

       (3) The duration of the marriage;

       (4) The age and mental condition of each party;

       (5) The physical condition of each party, including, but not limited to, physical
       disability or incapacity due to a chronic debilitating disease;

       (6) The extent to which it would be undesirable for a party to seek employment
       outside the home, because such party will be custodian of a minor child of the
       marriage;

       (7) The separate assets of each party, both real and personal, tangible and
       intangible;

       (8) The provisions made with regard to the marital property, as defined in §
       36-4-121;

       (9) The standard of living of the parties established during the marriage;

       (10) The extent to which each party has made such tangible and intangible
       contributions to the marriage as monetary and homemaker contributions, and
       tangible and intangible contributions by a party to the education, training or
       increased earning power of the other party;

       (11) The relative fault of the parties, in cases where the court, in its discretion,
       deems it appropriate to do so; and

       (12) Such other factors, including the tax consequences to each party, as are
       necessary to consider the equities between the parties.

Tenn. Code Ann. § 36-5-121(i) (2014).

                We first address whether the Trial Court erred in awarding Husband’s one-half
interest in the marital residence to Wife as alimony in solido. Incidentally, the parties do not
dispute on appeal the roughly equal division of the overall marital estate itself. The Trial

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Court took note of Husband’s superior earning power relative to wife as well as Wife’s desire
to remain in the house.

               The record reflects that Wife is, in fact, disadvantaged relative to Husband in
terms of annual income. Husband has shown an ability to regularly earn in excess of
$100,000 per year, whereas Wife earns around $60,000 per year as a schoolteacher. We are
aware that Husband’s income depends in large measure on outages occurring allowing him
to work overtime and that his income fluctuates as a result. Nevertheless, even considering
the fluctuations, the evidence is clear that Husband earns much more money than Wife. In
order for Wife to preserve some degree of the lifestyle she had come to enjoy, some
accommodation was appropriate to reflect her economic disadvantage. We also are
cognizant of the some 38 year length of this marriage.

               We find that the Trial Court did not err in assigning Husband’s one-half
interest in the marital residence to Wife as alimony in solido. In reaching this conclusion,
we are guided primarily by the relative economic conditions of the parties, not Husband’s
adultery. The Trial Court’s award of alimony in solido is a reasonable one that accords with
the evidence. Given the Trial Court’s latitude in awarding spousal support, we affirm the
Trial Court as to the award of Husband’s one-half interest in the marital residence to Wife
as alimony in solido.

               We next address whether the Trial Court erred in awarding Wife $200 per
month as alimony in futuro until she reaches the age of 65. To resolve this issue, we must
assess Wife’s status once she received the award of alimony in solido. Wife was awarded
Husband’s interest in the marital residence worth a minimum of $200,000, which means she
received at least $400,000 more of the marital estate than Husband. Wife also has her
separate property interest in a 100 acre farm, and income from a cell phone tower on the
farm. Wife also has a more extensive educational background than Husband. Meanwhile,
Husband, age 59 at trial, will be hard-pressed to maintain his economic income advantage
relative to Wife as they both near retirement age. Much of Husband’s work depends on
outages, and he would have to work a large number of overtime hours to match his previous
high earnings. Husband would need to work another seven years until age 66 and earn
$60,000 more than Wife per year, after taxes, just to equalize the difference with Wife after
she received his half of the marital residence. Given Husband’s age, it is an illogical result
and contrary to the evidence to expect Husband to continue his work pace for another 30 or
20 or even 10 years. If Husband were a younger man with many more working years before
him, his greater earning capacity over those many more working years might well make Wife
economically disadvantaged compared to Husband even after the award of alimony in solido.
Such, however, is not the situation. In short, once Wife received the award of Husband’s



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one-half interest in the marital residence as alimony in solido, she no longer was
economically disadvantaged relative to Husband.

                Tennessee has shown an increasing preference for less permanent forms of
spousal support than alimony in futuro. Wife argues that, given the nature of the Trial
Court’s award, the alimony actually could be considered transitional alimony. However,
whichever way one categorizes the award, we must look principally to the disadvantaged
spouse’s need and the obligor’s ability to pay. As we have discussed, upon receiving
Husband’s one-half interest in the marital residence, Wife is no longer economically
disadvantaged compared to Husband. There is no valid economic reason to award her
additional spousal support. Husband’s conduct in this case, unsavory as some may find it,
does not erase the economic facts between the parties. We reverse the Trial Court in its
award to Wife of $200 per month until she reaches age 65, irrespective of whether one
classifies it as alimony in futuro or transitional alimony.

               The final issue we address is whether the Trial Court erred in awarding Wife
$6,000 in attorney’s fees. Our reasoning on this issue is substantially similar to ours
regarding the alimony in futuro award. Once Wife received Husband’s interest in the marital
residence as alimony in solido, she no longer was economically disadvantaged compared to
Husband. Given this record, Wife has the ability to pay her own attorney’s fees, and no
award of attorney’s fees to her as alimony in solido is appropriate. We reverse the Trial
Court in its award to Wife of $6,000 in attorney’s fees.

                In summary, we affirm the Trial Court in its award to Wife of Husband’s one-
half share of the marital residence as alimony in solido. However, upon receiving that award,
Wife no longer was economically disadvantaged compared to Husband. Therefore, we
reverse the Trial Court’s awards to Wife of alimony in futuro and attorney’s fees.

                                         Conclusion

               The judgment of the Trial Court is affirmed, in part, and, reversed, in part, and
this cause is remanded to the Trial Court for collection of the costs below. The costs on
appeal are assessed equally between the parties: one-half to the Appellant, Willard Randall
Calloway, and his surety, if any; and, one-half to the Appellee, Sheila Christine Jones
Calloway.

                                                    _________________________________
                                                    D. MICHAEL SWINEY, JUDGE




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