               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                               March 10, 2015 Session

        KERRIE JANEL WADE v. VERNON FRANKLIN WADE, JR.

             Direct Appeal from the Chancery Court for Benton County
                       No. 2613    Paul G. Summers, Judge


                No. W2014-01098-COA-R3-CV – Filed April 28, 2015



BRANDON O. GIBSON, J., concurring in part, and dissenting in part.

       I concur in the majority‟s decision regarding the Father‟s designation as primary
residential parent.

       However, I must respectfully dissent in the majority‟s determination regarding
rehabilitative and/or transitional alimony, given the wide discretion trial courts have in
determining matters of spousal support. Gonsewski v. Gonsewski, 350 S.W.3d 99, 105
(Tenn. 2011). A trial court‟s decision regarding spousal support is also factually driven
and necessarily involves the careful balancing of many factors. Id. As the Gonsewski
court stated:

      “[t]he role of an appellate court in reviewing an award of spousal support
      is to determine whether the trial court applied the correct legal standard
      and reached a decision that is not clearly unreasonable.” Broadbent v.
      Broadbent, 211 S.W.3d 216, 220 (Tenn.2006). Appellate courts decline to
      second-guess a trial court‟s decision absent an abuse of discretion.
      Robertson [v. Robertson, 76 S.W.3d 337, 343 (Tenn. 2002)]. 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. 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).
      This standard does not permit an appellate court to substitute its judgment
      for that of the trial court, but “„reflects an awareness that the decision
      being reviewed involved a choice among several acceptable alternatives,‟
      and thus „envisions a less rigorous review of the lower court's decision and
      a decreased likelihood that the decision will be reversed on appeal.‟”
       Henderson, 318 S.W.3d at 335 (quoting Lee Medical, Inc. v. Beecher, 312
       S.W.3d 515, 524 (Tenn.2010)). Consequently, when reviewing a
       discretionary decision by the trial court, such as an alimony determination,
       the appellate court should presume that the decision is correct and should
       review the evidence in the light most favorable to the decision. Wright,
       337 S.W.3d at 176; Henderson, 318 S.W.3d at 335.

Gonsewski, 350 S.W.3d at 105-106.

       I recognize that there is a significant income disparity between Father and Mother
and that Mother committed many years to full-time child rearing and home schooling.
These are both important factors for the trial court to examine. Tennessee Code
Annotated Section 36-5-121(i) enumerates twelve factors a trial court must consider, and
the record reflects that the trial court in this case did consider those factors. While each
factor should be considered, “the two that are considered the most important are the
disadvantaged spouse‟s need and the obligor spouse‟s ability to pay.” Gonsewski, 350
S.W.3d at 110 (quoting Riggs v. Riggs, 250 S.W.3d 453, 457 (Tenn. Ct. App. 2007)). The
record in this case indicates that the Father‟s expenses exceed his income, and Mother did
very little to challenge those expenses at trial. The trial court was well within its
discretion to determine that “Father‟s inability to pay alimony is obvious.”

       If I were permitted to substitute my judgment for that of the trial court, I may have
reached a different conclusion than the judge in this case. However, the directives to this
Court are clear, and since the trial court‟s decision reflects a “choice among several
acceptable alternatives,” I do not believe the trial court abused its discretion and would
therefore affirm the trial court‟s ruling on spousal support.




                                                 _________________________________
                                                 BRANDON O. GIBSON, JUDGE




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