                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                          Assigned on Briefs September 10, 2004

     ALICE FAY SMILEY, ET AL. v. ROBERT STEVEN SMILEY, ET AL.

                    Appeal from the Fourth Circuit Court for Davidson County
                            No. 01D-2320     Muriel Robinson, Judge



                    No. M2002-03060-COA-R3-CV - Filed February 2, 2005


Husband appeals a trial court judgment awarding permanent alimony to the Wife, asserting in the
appeal that the evidence preponderates against the judgment of the trial court. We affirm the action
of the trial court.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J., and
FRANK G. CLEMENT , JR., J., joined.

Philip E. Smith and Clark Lee Shaw, Nashville, Tennessee, for the Appellant, Robert Steven Smiley.

Thurman T. McLean, Jr., Madison, Tennessee for the Appellee, Alice Fay Smiley.

                                             OPINION

        Robert Steven Smiley and Alice Fay Smiley were married November 5, 1973, at the ages of
18 and 19 years respectively. Wife was a waitress at Shoney's restaurant at the time with a tenth-
grade education. Husband was unemployed most of the time between 1973 and 1979 during which
time the Wife primarily generated the income for the family, bore the parties' three children and was
their primary care giver. In 1979 Wife went to work for Nicholstone Bindery as a machine operator
remaining so employed until 1990. In the mid-1980s Husband started a pest control company with
his father who died in 1988. Following a dispute with his family over the pest control business,
Husband and Wife determined to start such a pest control business together. At the outset of the
business Wife continued her work with the Nicholstone Bindery, but by 1990 the pest control
business had flourished to the point that Wife became employed in the business on a full-time basis.
For the next eight years the parties continued to build on their very successful pest control business
with Husband running the field services portion of the business and Wife being the office manager.
The parties had some kind of disagreement in 1998 after which Wife continued to draw salary from
the business but did little work. From October 28, 1998, until October of 1999 she drew a salary of
$2,800 a month, then from October of 1999 to October of 2000 drew a salary of $2,900 per month,
and thereafter until October of 2001 drew a salary of $3,600 per month. During this time Husband
was drawing a much higher salary with that salary at the time of the final hearing in this case being
$11,800 per month.

        Wife filed suit for divorce on September 18, 2001, alleging inappropriate marital conduct and
asserting that all the children of the marriage were emancipated. Husband answered on October 10,
2001, denying the allegations of inappropriate marital conduct and acknowledging that none of the
children were minor children. By agreed order entered October 11, 2001, the parties agreed that
Husband would pay to Wife temporary alimony in the amount of $2,900 per month in two equal
installment of $1,450 per month on the first and fifteenth of each month beginning November 1,
2001. Immediately prior to the hearing on November 5, 2002, Husband stipulated pursuant to Tenn.
Code Ann. § 36-4-129(b) that he had committed acts of inappropriate marital conduct and that Wife
was entitled to an absolute divorce on such grounds.

        After the hearing of November 5, 2002, the trial court entered its final decree of divorce on
November 18, 2002. The court granted divorce to the Wife on grounds of inappropriate marital
conduct, divided the marital property of the parties awarding the Wife $203,500 such being one-half
of the appraised value of the pest control business known as "Steve and Sons Pest Control, Inc." No
complaint is made on appeal as to the division of marital property and the relevance of such division
is limited to the effect thereof if any on the issue of Wife's entitlement to permanent alimony and
attorney's fees. The only issue asserted on appeal is whether or not the evidence preponderates
against the award by the trial court of permanent alimony.

        In this respect the court held:

        The Court further finds, that these parties have been married for twenty-nine (29)
        years and that due to the diligence and contributions of both parties that the parties
        have built a successful business known as "Steve and Sons Pest Control, Inc". The
        Court further finds that the parties have no existing retirement accounts. The Court
        finds that the Wife is forty-eight (48) and that the Husband is forty-seven (47) years
        old. The Court further finds that the Wife has no real marketable skills and that she
        is totally dependent at this time on spousal support from the Husband. The court
        further finds that rehabilitation is not feasible and that she has the need for alimony
        in futuro and the Husband has the ability to pay alimony in futuro.

. . .

        IT IS FURTHER ORDERED that the Wife is awarded alimony in futuro in the
        amount of two-thousand nine-hundred ($2,900) dollars per month until her death or
        remarriage or pending further orders of the Honorable Court. IT IS FURTHER
        ORDERED that the alimony award shall begin on the first day of the month
        following the sale of the marital homeplace.




                                                 -2-
       About the only thing remarkable in the testimony in this case is the marked difference
between Husband's assertions in his answer deprecating the Wife's contributions to the business and
his glowing testimony on November 5th as to the value of such contributions.

       The legislature has provided the following guiding factors which the court is to apply in
awarding alimony:

                           (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;
                           (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.

See Tenn. Code Ann. § 36-5-101(d)(1) (Supp.2002).1




         1
        As a result of legislature amendments subsequent to the divorce decree, these factors are now listed in Tenn.
Code Ann. § 36-5-101(d)(1)(E)(i-xii)(Supp.2004).

                                                        -3-
      The trial court made its finding, and on appeal the burden rests on appellant to show that the
preponderance of the evidence establishes that Wife is not entitled to alimony.

       In dividing the marital property the trial court awarded the Wife something better than
$200,000 as her one-half interest in the value of the business. Aside from working at Shoney's and
on an assembly line, the 48-year-old Wife has no marketable skills. The allegations of Husband's
pleadings to the contrary not withstanding, his own testimony shows that in the years when this
business was expanding and flourishing, Wife was all but indispensable to the success of the
business. Said Husband:

               A.      She implemented herself into the job, started policy on her
                       own. I wasn't capable of doing it. I was not there. I was not
                       capable of implementing office policy in an office where I
                       wasn't gonna be at.

               Q.      Well, I mean --

               A.      I'm out in the field working and selling business and
                       collecting, you know, the services rendered, setting up
                       appointments in the field, relying on the person in my office
                       to forward the phone calls to me so I could do this. I cannot
                       be in the office when we just first started out implementing
                       policy. She did that all on her own without any of my help.
                       And she did a great job.

               Q.      Okay. That's what I was getting at. She did a great job;
                       correct?

               A.      She did a wonderful job.

               Q.      In fact, she served -- however she got there, she served as
                       office manager for Smiley -- for Steve-N-Sons; is that
                       correct?

               A.      Oh, yes, sir, absolutely.

               Q.      She was responsible, when she went to work there in 1994,
                       for getting out the billing every month, getting out the
                       invoices.

               A.      Yes, sir.

               Q.      Posting the money when it came in; is that correct?



                                                   -4-
A.   Yes, sir.

Q.   She was responsible for implementing the office policy, for
     starting new files, for doing research on customers -- and
     explain to the Court what "research" in the pest control
     business means.

A.   Well, if anybody ever had to answer a telephone for a service
     company before, you certainly don't want to talk to any of
     your customers without knowing a little bit of history about
     them. And that was one of the things that I hated mostly
     about the people that were answering the phones for me.
     They would say, "Mrs. Smith is on, you know, line 2" -- and
     I believe you used the term a while ago -- no, maybe it was
     Mr. Thompson. Anyway, you want to be aware, you want to
     be totally aware of what's going on before you go into the
     conversation.

     And, by doing that, if the customer has a history with us, you
     go to the file, and, unfortunately, you have to pull the physical
     history on 'em. There's a graph of the property if it's a termite
     contract. Or there's service tickets if it's a pest control
     contract. The type of pesticides used, the last time we were
     there, and so on and so forth.

Q.   If there was a problem with that particular property, you
     would want to know about it --

A.   Exactly.

Q.   -- in quoting a price; correct?

A.   Exactly.

Q.   And she was responsible for doing all the research?

A.   Yes.

Q.   She was responsible at Steve-N-Sons group for the employees
     in the office; correct?

A.   My Wife implemented and set up the filing system for Steve-
     N-Sons and did a -- just a magnanimous job. I couldn't have
     hired anybody to do a better job.

                               -5-
               Q.      Well, the fact of the matter is, Mr. Smiley -- and this is what
                       I'm trying to get at -- this business couldn't have grown to
                       where it was right now without Ms. Smiley; correct?

               A.      No, sir, it could not have.

        The skills that she built up by her own initiative are not necessarily marketable in the
marketplace. She helped her Husband build a substantial business and while she received a
handsome cash settlement for her part of the value of the business, the divorce leaves her with no
earned income while the Husband taking the business himself earns therefrom $11,800 per month.
This was a 29-year marriage, and Wife is now approaching 50 years of age. Husband maintains
essentially his standard of living while Wife does not. The divorce is after all the fault of the
Husband.

         While rehabilitative alimony is preferred where an economically disadvantaged spouse can
be rehabilitated, Storey v. Storey, 835 S.W.2d 593, 597 (Tenn.Ct.App. 1992); the trial court has
found that rehabilitation is not feasible in the case. Under such circumstances an award of alimony
in futuro is justified. Compare Crabtree v. Crabtree, 16 S.W.3d 356 (Tenn.Ct.App. 2000); See
Tenn. Code Ann. § 36-5-101. While the Supreme Court reversed such an award in Crabtree, the
facts of that case are in sharp contrast to the facts in the case at bar. Crabtree involved a 23-year
marriage where Wife was awarded $373,000 in marital assets and left the marriage at age 43 blessed
with a college education and licensed as a certified public accountant. The finding in Crabtree by
the trial court was that her rehabilitation was feasible. In the case at bar, we have a 48-year-old Wife
leaving the marriage with a tenth-grade education, very limited earning capacity and a finding by the
trial court that rehabilitation was not feasible.

       The evidence does not preponderate against the findings of the trial court. See Tenn.R.Civ.P.
13(d). As to the amount of alimony in futuro, the trial court awarded $2,900 per month, and the
amount of such an award is largely discretionary with the trial court. While the award in this case
is perhaps generous, it cannot be said that the trial court has abused its discretion. Hanover v.
Hanover, 775 S.W.2d 612, 617 (Tenn.Ct.App. 1989); Ingram v. Ingram, 721 S.W.2d 262, 264
(Tenn.Ct.App. 1986).

       Appellant seeks attorney's fees on appeal. As he has not prevailed on any issue on appeal or
otherwise shown himself entitled to attorney's fees, the request is without merit.

       The judgment of the trial court is in all respects affirmed with costs assessed to appellant.
The case is remanded to the trial court for such further proceedings as may be necessary.



                                                        ___________________________________
                                                        WILLIAM B. CAIN, JUDGE

                                                  -6-
