                    IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT JACKSON
                 ______________________________________________             FILED
DENNIS T. CROUSE,
                                                                            December 7, 1998
       Appellant,
                                                                            Cecil Crowson, Jr.
                                                                            Appellate C ourt Clerk
Vs.                                                  C.A. No. 02A01-9712-CV-00312
                                                     Shelby Law No. 151303
CHARLANE ALLEN CROUSE,

      Appellee.
____________________________________________________________________________

                    FROM THE SHELBY COUNTY CIRCUIT COURT
                     THE HONORABLE KAY S. ROBILIO, JUDGE




                               Richard F. Vaughn of Memphis
                                       For Appellant

                       Daniel Loyd Taylor, John N. Bean of Memphis
                                      For Appellee




                     AFFIRMED AS MODIFIED AND REMANDED

                                        Opinion filed:




                                                             W. FRANK CRAWFORD,
                                                             PRESIDING JUDGE, W.S.


CONCUR:

DAVID R. FARMER, JUDGE

F. LLOYD TATUM, SENIOR JUDGE


       This dispute concerns an award of alimony and attorney’s fees. Appellant, Dennis T.

Crouse (Husband), appeals from the trial court’s order granting alimony in futuro and attorney’s

fees to Appellee, Charlane Allen Crouse (Wife).
       The parties married on August 21, 1971 in Lewis County, New York. A daughter was

born of this marriage in 1972, but she is no longer a minor and does not reside with either party.

After the marriage, Husband and Wife first lived in New York where they both worked in a

bowling pin factory. Due to Husband’s subsequent military career, the parties moved to San

Antonio, Texas in 1973 and then to Houston, Texas. Upon completing his military career,

Husband obtained a Bachelor of Science degree from the University of Houston while Wife

worked as a clerk in a fabric store. The parties then moved to Galveston, Texas to enable

Husband to attend medical school. While Husband attended medical school, Wife worked as a

part-time clerk in a grocery store and as a part-time secretary in the pathology department at the

university, eventually quitting the job at the grocery store in order to work full time in the

pathology department. After Husband obtained his medical degree in 1982 and completed his

residency in 1985, the parties moved from Galveston to Birmingham, Alabama to allow Husband

to participate in a fellowship program. At this time, Wife worked as an administrative secretary

in addition to providing sewing services from the parties’ home. Wife stopped working outside

of the home in 1989 in order to pursue her sewing business. In 1993, the parties moved to

Memphis, Tennessee to enable Husband to take a position at the University of Tennessee.1

       On February 13, 1996, Husband filed a complaint for divorce alleging irreconcilable

differences and inappropriate marital conduct on the part of Wife. Wife filed an answer

admitting irreconcilable differences while denying guilt of inappropriate marital conduct, and

filed a counter-complaint alleging inappropriate marital conduct on Husband’s part. On March

24, 1997, the trial court entered a decree granting absolute divorce pursuant to T.C.A. § 36-4-129

which incorporated the parties’ stipulated property settlement while reserving the issues of

spousal support and attorney’s fees. On November 17, 1997, the trial court entered a final decree

of divorce awarding Wife alimony in futuro in the amount of $3,800.00 per month for forty-

eight months, and thereafter in the amount of $2,900.00 per month. The trial court also ordered

Husband to pay Wife’s attorney’s fees and litigation expenses in the amount of $8,750.00.

Husband subsequently brought this appeal.

       On appeal, Husband presents the following issues for our review:


       1
        It is also important to note that Husband also worked various jobs to support his family
while pursuing his education except for a few years when he was in medical school.

                                                2
               (1) Whether the trial court erred in awarding Wife alimony in
               futuro rather than rehabilitative alimony.

               (2) Whether the trial court erred in awarding Wife’s attorney’s
               fees and litigation expenses in the amount of $8,750.00.

       Since the trial court heard this case sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the trial court.

Unless the evidence preponderates against these findings, we must affirm, absent error of law.

T.R.A.P. 13(d).

                                            Alimony

       Husband asserts that the trial court should have granted Wife rehabilitative alimony

rather than granting her alimony in futuro. Husband contends that this is a classic case for an

award of rehabilitative alimony in that Wife is in her mid-forties, in good health, had the

opportunity during the marriage to pursue further education and training, is currently pursuing

a degree in special education, and that he supported Wife’s decision to pursue her degree and

does not object to paying rehabilitative alimony until she secures her master’s degree. He further

asserts that rehabilitative alimony is proper in that fault was not a factor in the divorce, the

parties did not enjoy a lavish lifestyle, Wife received an adequate amount in the agreed division

of property, and that it is uncertain what her needs will be once she completes her education.

       On the other hand, Wife asserts that the grant of alimony in futuro was warranted by the

circumstances and that the award was fair and equitable. She contends that she contributed to

her family by working outside the home in several positions in addition to caring for their

daughter and the household which in turn allowed Husband to pursue his educational endeavors.

Furthermore, Wife asserts that she is not capable of rehabilitation given her age and lack of

experience, and that the award of alimony in futuro will allow her to more closely approach her

former economic position she enjoyed while married. Finally, Wife contends that Husband has

the ability to pay the amount ordered by the trial court and that her needs also support the amount

awarded.

       In Tennessee, there is a preference for rehabilitative alimony. Aaron v. Aaron, 909

S.W.2d 408, 410 (Tenn. 1995). Our Supreme Court, in discussing rehabilitative alimony, stated

in Self v. Self, 861 S.W.2d 360 (Tenn. 1993):

                       [T.C.A. § 36-5-101(d)(1)] reflects an obvious legislative


                                                3
               policy that, if possible, the dependency of one ex-spouse on the
               other be eliminated and both parties be relieved of the
               impediments incident to the dissolved marriage, and that an ex-
               spouse be adjudged permanently dependent upon the other only
               when the court granting the divorce finds that economic
               rehabilitation is not feasible and long-term support is necessary.

Id. at 361. “However, rehabilitative alimony is offered as an alternative to alimony in futuro,

not as a replacement.” Ford v. Ford, 952 S.W.2d 824, 827 (Tenn. App. 1996). T.C.A. § 36-5-

101(d)(1) still permits the courts to award long-term support if it appears that rehabilitation is

not feasible. Id. “Accordingly, our domestic relations laws governing the payment of alimony

still acknowledges that:

               ‘The husband, having entered one of the strongest most
               fundamental relationship known to the law, must continue to bear
               its financial burden where he can reasonably do so and where it
               is necessary in order to prevent a relatively greater hardship to the
               wife.’”

Id. (quoting H. Clark, The Law of Domestic Relations in the United States § 17.5 at 255 (2nd

ed. 1987)).

       T.C.A. § 36-5-101(d)(1) (Supp. 1998) provides:

               (d)(1) It is the intent of the general assembly that a spouse who is
               economically disadvantaged, relative to the other spouse, be
               rehabilitated whenever possible by the granting of an order for
               payment of rehabilitative, temporary support and maintenance.
               Where there is such relative economic disadvantage and
               rehabilitation is not feasible 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 or remarriage of the recipient
               except as otherwise provided in subdivision (a)(3). Rehabilitative
               support and maintenance is a separate class of spousal support as
               distinguished from alimony in solido and periodic alimony. In
               determining whether the granting of an order for payment of
               support and maintenance 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 income from pension,
               profit sharing or retirement plans and all other sources;

               (B) 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 earning capacity to a
               reasonable level;

               (C) The duration of the marriage;

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


                                                4
               (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 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;

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

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

       “The amount of alimony to be allowed in any case is a matter for the discretion of the

trial court in view of the particular circumstances.” Ingram v. Ingram, 721 S.W.2d 262, 264

(Tenn. App. 1986). In determining the amount of alimony, “the real need of the spouse seeking

the support is the single most important factor. In addition to the need of the disadvantaged

spouse, the courts most often consider the ability of the obligor spouse to provide support.”

Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. App. 1989) (citations omitted). “While

alimony is not intended to provide a former spouse with relative financial ease, we stress that

alimony should be awarded in such a way that the spouses approach equity.” Aaron, 909

S.W.2d at 411.

       Husband is in his mid-forties and is a neonatologist at the University of Tennessee and

the University of Tennessee Medical Group. Husband’s income has continued to increase over

the years. In 1996, Husband had an income of approximately $150,000.00. Wife is also in her

mid-forties. After the divorce, Wife began to pursue a Bachelor of Arts degree with a major in

special education. Wife currently is a full-time student and works part time as a student assistant

at five dollars per hour. It is estimated that it will take Wife three to four years to complete her


                                                   5
Bachelor of Arts degree. Wife then plans to pursue her master’s degree in special education

which she estimates will take approximately one and one-half to two years to complete. Wife

will be fifty or fifty-one years of age upon completion of her education.

       At the time of the divorce, the parties agreed on a division of property. As a result of

such agreement, each party received assets from various retirement and investment plans.

Furthermore, Wife received the marital residence which, at the time of the divorce, was worth

approximately $200,000.00 but which had only approximately $30,000.00 in equity. The total

amount each party received as a result of the property division was approximately $114,000.00.

       During the proceedings below, each party filed a Rule 14 Affidavit of Income and

Expenses. Husband’s affidavit reveals a gross monthly salary of $10,869.92 and a net monthly

salary of $7,713.67. Husband’s affidavit further reveals that his monthly expenses for the

support of Wife to be $4,091.03 which, according to his affidavit, results in a monthly deficit of

$487.75 after payment of his monthly expenses. At the time of the hearing below, Husband

admitted that a change in circumstances reduced his monthly deficit to approximately $36.00.

On the other hand, Wife’s affidavit reveals a gross monthly income of $530.00 and a net monthly

income of $397.10. Her affidavit further reveals $5,164.47 in total monthly expenses which

results in a monthly deficit of $4,767.37.

       With the foregoing, we believe the trial court correctly determined that Wife should be

awarded alimony in futuro. Wife is economically disadvantaged to Husband. The record

reveals that Husband has a greater earning capacity, superior education, and better job training

than Wife. Wife also substantially contributed to her family and household in a number of ways

which allowed Husband to achieve his superior education and earning capacity.

       This was a twenty-six year marriage. During this marriage, Husband has been building

a career outside the home while Wife has, for the most part, worked within the home such that

she has no college degree and only limited outside-work experience. Wife worked several

different jobs, provided for the care of the parties’ daughter and household, and freely moved

several times to support and contribute to Husband’s career. Wife sacrificed her career to follow

Husband around the country in furtherance of his career.

       The record further reveals that Wife is in need of some support and that Husband has the

ability to pay. It is unlikely that Wife will ever be able to approach the level of income which


                                                6
Husband is able to enjoy. Thus, given due consideration to all relevant factors, we are of the

opinion that the alimony in futuro awarded to Wife is necessary for her to continue to maintain

a reasonable standard of living which is at least somewhat comparable to that which she

experienced before the divorce.

       We therefore believe the trial court’s grant of $3,800.00 per month as alimony in futuro

for forty-eight months to be correct given that this will allow Wife to complete her education.

However, we find the grant of $2,900.00 per month as alimony in futuro to be excessive. While

we agree that granting alimony in futuro rather than rehabilitative alimony was correct in this

aspect, we believe that Wife’s award should be reduced to $2,000.00 per month as alimony in

futuro and that such be terminated upon the death or remarriage of Wife. As this Court stated

in Lancaster v. Lancaster, 671 S.W.2d 501 (Tenn. App. 1981):

               Alimony is not and never has been intended by our legislature to
               be punitive. Nor do we believe it was intended simply as an
               award for virtue. It is not designed to serve as an annuity for the
               wife; or as Professor Clark has stated “[t]he purpose of alimony
               is to care for the wife’s needs after divorce, not to provide her
               with a life-time profit-sharing plan.”

Id. at 503 (citations omitted).

       It is unclear what Wife’s needs will be upon completion of her education. However, it

is clear that Wife will then have the means and ability to support herself somewhat.

Furthermore, Wife received a reasonable amount of assets from the property division. Given the

foregoing, the award of $2,900.00 per month as alimony in futuro was excessive and should be

reduced to $2,000.00 per month as alimony in futuro. This amount should be more than

sufficient to support her once she has acquired her education. However, this is not to say that

circumstances may change which may warrant an increase or decrease in the amount of alimony.

                                       Attorney’s Fees

       As previously mentioned, Husband also contests the trial court’s order granting $8,750.00

in attorney’s fees and litigation expenses to Wife. Husband contends that the trial court erred

in granting fees considering the assets Wife received in the division of property and the lack of

liquid assets on his part. To the contrary, Wife asserts that she does not have the resources to

pay attorney’s fees given the fact that she is a full-time student and is only working part time.

Furthermore, Wife contends that the parties received the same amount in the property division



                                               7
and that the majority of her portion was in the form of equity in the marital residence and

retirement accounts. Wife also requests that this Court award her attorney’s fees incurred on this

appeal.

          Attorney fee awards are treated as alimony. Gilliam v. Gilliam, 776 S.W.2d 81, 86

(Tenn. App. 1988). In determining whether to award attorney’s fees, the trial court should again

consider the relevant factors in T.C.A. § 36-5-101(d)(1). Houghland v. Houghland, 844 S.W.2d

619, 623 (Tenn. App. 1992). Where the wife demonstrates that she is financially unable to

afford counsel, and where the husband has the ability to pay, the court may properly order the

husband to pay the wife’s attorney’s fees. Id.; Harwell v. Harwell, 612 S.W.2d 182, 185 (Tenn.

App. 1980). Furthermore, the award of attorney’s fees is within the sound discretion of the trial

court, and unless the evidence preponderates against the award, it will not be disturbed on

appeal. Lyon v. Lyon, 765 S.W.2d 759, 762-63 (Tenn. App. 1988).

          In the case sub judice, we cannot say that the evidence preponderates against the trial

court’s finding that Wife is entitled to attorney’s fees. Given the status of the parties and the

division of property, Wife does not have the resources or ability to pay these fees while Husband

readily has the ability to pay such. However, we believe that the respective parties should bear

the expense of their own attorney’s fees for this appeal.

          Accordingly, the decree of the trial court is modified to reduce the award of $2,900.00

per month as alimony in futuro to an award of $2,000.00 per month as alimony in futuro to

terminate upon the death or remarriage of Wife. As modified, the decree is affirmed, and the

case is remanded for such further proceedings as are necessary. Costs of the appeal are assessed

against the Appellant.

                                                       _________________________________
                                                       W. FRANK CRAWFORD,
                                                       PRESIDING JUDGE, W.S.

CONCUR:


____________________________________
DAVID R. FARMER, JUDGE

____________________________________
F. LLOYD TATUM, SENIOR JUDGE




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