                     IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT NASHVILLE
                  ______________________________________________

JIMMIE WAYNE WIGGINTON,                               Stewart Chancery No. 95-7-154
                                                      The Honorable Allen W. Wallace,
       Plaintiff-Appellant,                           Judge
                                                      C.A. No. 01A01-9704-CH-00163

Vs.                                                   AFFIRMED AND REMANDED

NELLIE FAYE WIGGINTON,                        Gregory D. Smith of Clarksville
                                                    For Appellant
       Defendant-Appellee.
                                          Clifford K. McGown, Jr. of Waverly
                                          For Appellee
____________________________________________________________________________

                              MEMORANDUM OPINION1
                                                                              FILED
___________________________________________________________________________
                                                                    December 31, 1997
CRAWFORD, J.
                                                                     Cecil W. Crowson
                                                                   Appellate Court Clerk
      This is a divorce case. Jimmie Wayne Wigginton appeals the order of the trial court

awarding wife alimony in the amount of $1,000 per month for approximately ten years and

$10,000 in attorney fees.

       In September 1995, after nearly twenty-three years of marriage, Appellant, Jimmie

Wigginton, filed for an absolute divorce from his wife on the grounds of irreconcilable

differences and inappropriate marital conduct. Nellie Wigginton’s motion for temporary support

and possession of the marital home was granted pending the outcome of the suit. Mrs. Wigginton

filed an answer admitting that the parties had irreconcilable differences but denying that she was

guilty of inappropriate marital conduct. She also filed a counter-complaint seeking a divorce

from bed and board. Mrs. Wigginton later sought a temporary restraining order prohibiting Mr.

Wigginton from squandering the parties’ assets through stock purchases and conveyances to

third parties. Pursuant to Mrs. Wigginton’s motion to amend her counter-complaint, an agreed

order was entered permitting her to amend her counter-complaint to add the ground of adultery

and request an absolute divorce from Mr. Wigginton. After a hearing in which Mr. Wigginton

admitted his adultery, his complaint for divorce was stricken. The parties stipulated that Mrs.


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         Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the
concurrence of all judges participating in the case, may affirm, reverse or modify the actions
of the trial court by memorandum opinion when a formal opinion would have no precedential
value. When a case is decided by memorandum opinion it shall be designated
"MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for
any reason in a subsequent unrelated case.
Wigginton was entitled to a divorce on the ground of adultery, and an absolute divorce was

granted on October 21, 1996.

       In addition to dividing the marital property, the divorce decree ordered Mr. Wigginton

to pay $1,000 per month in alimony until Mrs. Wigginton reached age 65 (approximately ten

years), as well as $10,000 toward Mrs. Wigginton’s attorney’s fees. Mr. Wigginton appeals the

judgment of the trial court asserting that the award of alimony was excessive and the award of

attorney fees was unjustified and/or excessive.

       Since this case was tried by the court 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).

       The factors used to determine the proper amount of maintenance and support are found

in T.C.A. § 36-5-101 (d)(1) (1996) which 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;

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


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                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 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 courts generally set the amount of support based on the needs of the innocent spouse

and the ability of the obligor spouse to pay. “If one spouse is economically disadvantaged

compared to the other, the courts are generally inclined to provide some type of support.”

Batson v. Batson, 769 S.W.2d 849, 861 (Tenn. App. 1988). Although there is a legislative

preference for providing only rehabilitative alimony, it is appropriate to award alimony in futuro

if rehabilitation is not feasible. T.C.A. § 36-5-101(d)(1) (1996); Self v. Self, 861 S.W.2d 360,

361 (Tenn. 1993).

        The trial court correctly determined that Mrs. Wigginton should be awarded alimony in

futuro until she reaches retirement age. The transcript of the divorce hearing indicates that the

trial court thoughtfully considered all relevant factors before making the alimony award. Factors

of particular note include: the length of the marriage; the fact that all fault was attributed to Mr.

Wigginton; that Mrs. Wigginton was underemployed because she sacrificed her career to follow

her husband around the country in furtherance of his career; and the probability that given Mrs.

Wigginton’s age and work experience, rehabilitation is not likely. The amount of the award is

reasonable under the facts and circumstances and will not be disturbed.

        Mr. Wigginton also appeals the award of $10,000 toward Mrs. Wigginton’s attorney fees


                                                  3
asserting that the award is unjustified and/or excessive. Attorney fee awards are treated as

alimony. In determining whether to award attorney fees, the trial court should again consider

the relevant factors in T.C.A. § 36-5-101(d)(1). Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn.

App. 1995). These awards are within the sound discretion of the trial court, and unless the

evidence preponderates against the award, it will not be disturbed on appeal. Id.

       Furthermore, the record indicates that extra fees were incurred to compel discovery and

because Mrs. Wigginton was forced to seek a restraining order to prevent Mr. Wigginton from

squandering marital assets. The evidence does not preponderate against the award of attorney

fees in this case and we find no abuse of discretion.

       The judgment of the trial court is affirmed, and the case is remanded for such further

proceedings as may be necessary. Costs of the appeal are assessed against the appellant.

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

CONCUR:

____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
HEWITT P. TOMLIN, JR.
SENIOR JUDGE




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