               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               August 27, 2014 Session

         REBECCA A. DIXON TATUM V. DON BARON TATUM
                  Appeal from the Circuit Court for Bradley County
                   No. V12442 Hon. Lawrence H. Puckett, Judge




             No. E2013-02462-COA-R3-CV-FILED-OCTOBER 28, 2014


This appeal arises from a divorce action. Following a hearing, the trial court awarded a
divorce to both parties on the ground of inappropriate marital conduct. The court also
awarded transitional alimony to Wife. Wife appeals the court’s finding that she engaged in
inappropriate marital conduct, while Husband appeals the court’s award of alimony to Wife.
We affirm the decision of the trial court.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and D. M ICHAEL S WINEY, J., joined.

Alan R. Beard, Chattanooga, Tennessee, for the appellant, Rebecca A. Dixon Tatum.

Philip M. Jacobs, Cleveland, Tennessee, for the appellee, Don Baron Tatum.

                                        OPINION

                                  I. BACKGROUND

       Rebecca A. Dixon Tatum (“Wife”) married Don Baron Tatum (“Husband”) on May
28, 1988. Three children, Donielle, Caleb, and Andrea, were born of the marriage. Andrea
was the only remaining minor at the time of the divorce hearing. After approximately 24
years of marriage, Wife filed a complaint for divorce, alleging that Husband had engaged in
inappropriate marital conduct. Wife also raised the alternative grounds of adultery and
irreconcilable differences. She requested designation as the primary residential parent of
Andrea and attached a proposed parenting plan that awarded Husband 80 days of visitation.
Husband denied wrongdoing and asserted that he was entitled to a divorce based upon Wife’s
inappropriate marital conduct, namely her physical and mental abuse of him that occurred
on June 1, 2012. He also raised the alternative ground of irreconcilable differences and
requested designation as the primary residential parent of Andrea. Husband later agreed to
a parenting plan that designated Wife as the primary residential parent and provided him with
80 days of visitation.

       A hearing was held at which the parties presented exhaustive evidence on issues that
are not relevant to this appeal. As relevant to this appeal, Wife, who was 54 years old at the
time of the hearing, testified that prior to the marriage, she purchased the home that she and
Husband later shared, remodeled, and refinanced. She claimed that during the marriage, she
obtained a bachelor’s degree in 2003 and a master’s degree in 2011. She related that at
Husband’s request, she accepted student loans while pursuing her bachelor’s degree. She
explained that her scholarship covered her tuition and books but that she procured the student
loans to pay for two surgeries as a result of her diagnosis of ovarian cancer, to pay for travel
expenses to and from the school, and to pay for marital debts. She acknowledged that she
did not work while pursuing her education but that she began teaching in 2003 and had
maintained employment since that time.

       Wife testified that after she accepted employment at Polk County High School,
Husband, who was employed by Maytag at the time, learned that his pay had been cut. To
cover Husband’s loss in pay, Wife requested and obtained three supplementary positions at
the school that provided stipends. She claimed that she had since obtained a principal’s
license that would allow her to apply for employment in school administration. She asserted
that despite her qualifications, she did not wish to pursue administrative employment because
she preferred to teach.

       Wife testified that her income for 2012 was $43,469. She identified her affidavit of
income and expenses, which reflected a net monthly income of $2,738.98 and monthly
expenses of $4,638.62. She acknowledged that her expense statement included a tithe to her
church and funds to care for her two adult children, Donielle and Caleb, who were attending
college. She conceded that she had not prepared an expense statement that did not include
her adult children.

       Wife testified that Husband always had a violent temper. She described several
occasions in which Husband had physically abused her and the children throughout their 24-
year marriage. She claimed that she suspected that Husband had also been having an affair
with a woman named Ms. C.. Relative to the June 1 incident, she explained that she had
searched Husband’s telephone records and found that he had been excessively
communicating with Ms. C. for approximately one year. She related that she and the children

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confronted Husband regarding his relationship with Ms. C. and that he admitted to having
an affair with Ms. C..

       Wife testified that when she and the children returned home later that night, she asked
Husband to call Ms. C.’s husband, Mr. C., to inform him of the affair. She related that
Husband complied and called Mr. C. while she and the children were listening. After he
ended the conversation with Mr. C., Husband questioned whether she might have also had
an affair. In response, she slapped Husband, who then grabbed her around the throat and
slammed her onto the couch. As he was holding her down, he hit her repeatedly. She related
that Caleb attempted to separate them, while Donielle and Andrea called 9-1-1. She claimed
that Husband was still hitting her when the police arrived. She stated that she went to the
hospital the next morning because she was still in pain. She acknowledged that her ribs had
not been broken but asserted that she was prescribed medication for the pain.

        Donielle, Caleb, and Andrea, confirmed Wife’s testimony that on the afternoon of
June 1, Wife confronted Husband about his alleged affair with Ms. C.. Donielle and Caleb
testified that Husband admitted to the affair, while Andrea testified that Husband refused to
respond to Wife’s accusations. Donielle, Caleb, and Andrea related that they were also
present later that night when Husband called Mr. C.. They claimed that when Husband ended
the conversation with Mr. C., he questioned Wife’s faithfulness. Caleb and Andrea
acknowledged that they observed Wife hit Husband; however, Donielle asserted that she did
not see Wife hit Husband. All three claimed that Husband threw Wife onto the couch and
hit her several times. Andrea and Donielle stated that they called 9-1-1 to report Husband.
Donielle claimed that after the altercation, she observed bruising on Wife’s side and red
marks on her neck.

       Deputy Matthew Landolt with the Bradley County Sheriff’s Office testified that he
responded to a call at the Tatum residence on June 1, 2012. Upon his arrival, he found that
Husband and Wife had sustained minor injuries as a result of a domestic situation. However,
he declined to arrest either party because he could not determine the primary aggressor. He
related that Husband voluntarily left the residence while he was still present.

       Husband, who was 49 years old at the time of the hearing, conceded that he had
engaged in inappropriate marital conduct with Ms. C.. He explained that Ms. C. was a family
friend that he had reconnected with in October 2011. He denied any physical relationship
with Ms. C. but admitted that he had engaged in excessive communication with her to the
detriment of his marriage. He asserted that if given the chance, he would have ceased
communication with Ms. C. to save his marriage. However, he claimed that he was entitled
to a divorce from Wife because of her attitude toward him throughout the marriage and
because of the altercation that occurred on June 1. He claimed that she was manipulative and

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controlling throughout the marriage and that she refused to coexist with his side of the
family. He denied ever physically abusing Wife or the children at any time during the
marriage.

       Relative to the incident on June 1, Husband testified that Wife physically assaulted
him in front of the children. He recalled that she and the children confronted him with
evidence that he had been communicating with Ms. C.. He related that when she and the
children returned that night, he admitted that his behavior was inappropriate and apologized
for the excessive communication with Ms. C.. He claimed that she then accused him of
having an affair and told him that he needed to contact Mr. C.. He complied with her
demand and called Mr. C.. He asserted that after his conversation with Mr. C., Wife yelled
at him and then slapped him twice. He claimed that in response, he grabbed her and
slammed her onto the couch. He acknowledged that the couch contained a hard center
console and that Wife was likely hurt when her body hit the console. He denied ever hitting
her and claimed that when he released her, she kicked him and resumed yelling.

        Husband testified that he had obtained his bachelor’s degree in 2001 and that he
worked as an industrial engineer at Suburban Manufacturing. He related that prior to his
employment with Suburban, he had worked for Maytag for approximately 23 years. He
stated that Maytag paid for his college education through their reimbursement program and
that when he was finally hired at Suburban, his pay increased from approximately $30,000
to $50,000. He related that his current annual income was $51,200, which did not include
his approximate $5,000 yearly bonus. He explained that he was not guaranteed a bonus even
though he had received a bonus for the past three years. He identified his affidavit of income
and expenses, which reflected a net monthly income of $3,173.48. He acknowledged that
his net monthly income increased to approximately $3,415 when his yearly bonus was
considered. He claimed monthly expenses of $2,905, not including child support or
discretionary expenses. He acknowledged that he included an $800 expense for housing
even though he currently lived with his mother and stepfather and was not required to pay
rent. He stated that he anticipated securing his own residence in the future. He claimed that
based upon his income and expense statement, he did not have the present ability to remit
alimony to Wife.

       Following the presentation of the above evidence, the trial court divided the marital
assets and debts and awarded the divorce to both parties, based upon Wife’s inappropriate
marital conduct regarding her actions on June 1 and Husband’s admitted inappropriate
marital conduct regarding his excessive communication with Ms. C.. The court found that
Wife was guilty of domestic violence as evidenced by her actions on June 1 but that
Husband’s actions on that day did not rise to the level of domestic violence because he was
simply attempting to restrain Wife. The court designated Wife as the primary residential

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parent of Andrea and awarded Wife child support at the rate of $546 per month. The court
also awarded Wife transitional alimony at the rate of $500 per month for a period of 36
months, beginning on September 1, 2014, when the child reached the age of majority. This
timely appeal followed.

                                         II. ISSUES

       We restate the issue raised on appeal by Wife as follows:

       A. Whether the trial court erred in finding that Wife engaged in inappropriate
       marital conduct.

Husband also raised issues for our consideration on appeal that we restate as follows:

       B. Whether the trial court erred in awarding transitional alimony to Wife.

       C. Whether Husband is entitled to attorney fees on appeal.

                             III. STANDARD OF REVIEW

       On appeal, we review the decision of a trial court sitting without a jury de novo upon
the record, accompanied by a presumption of correctness of the trial court’s findings of fact,
unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13 (d); Bogan v.
Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court’s conclusions of law are subject to
a de novo review with no presumption of correctness. Union Carbide Corp. v. Huddleston,
854 S.W.2d 87, 91 (Tenn. 1993).

        Trial courts have broad discretion in awarding spousal support. Bratton v. Bratton,
136 S.W.3d 595, 605 (Tenn. 2004). “Accordingly, ‘[a]ppellate courts are generally
disinclined to second-guess a trial judge’s spousal support decision unless it is not supported
by the evidence or is contrary to the public policies reflected in the applicable statutes.”’
Bogan, 60 S.W.3d at 727 (quoting Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct. App.
1998)). The 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. Id. at 733. Thus, an appellate court must review a trial
court’s decision regarding alimony using the deferential abuse of discretion standard. See
Bratton, 136 S.W.3d at 605. If a discretionary decision is within a range of acceptable
alternatives, we will not substitute our judgment for that of the trial court simply because we
may have chosen a different alternative. White v. Vanderbilt Univ., 21 S.W.3d 215, 223
(Tenn. Ct. App. 1999). “Consequently, when reviewing . . . an alimony determination, the

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appellate court should presume that the decision is correct and should review the evidence
in the light most favorable to the decision.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105-06
(Tenn. 2011) (citations omitted).

                                     IV. DISCUSSION

                                              A.

        Wife argues that the trial court erred in finding that she was guilty of inappropriate
marital conduct, namely domestic violence. She asserts that the record was devoid of any
pattern of conduct or series of actions that would support the court’s finding and claims that
her behavior on June 1 was a single, isolated incident that occurred during the heat of
passion. Husband responds that the trial court did not err in finding that he had sustained his
ground for divorce. He claims that the trial court resolved any conflict in testimony in favor
of his credibility and that Wife’s claims were simply unsupported.

      In Tennessee, grounds for divorce and defenses thereto are statutory. Chastain v.
Chastain, 559 S.W.2d 933, 934 (Tenn. 1977). Tennessee Code Annotated section 36-4-
101(1)-(15) provides the grounds for divorce. The ground at issue in this case is
inappropriate marital conduct, which section 36-4-101(11) defines as:

       The husband or wife is guilty of such cruel and inhuman treatment or conduct
       towards the spouse as renders cohabitation unsafe and improper, which may
       also be referred to in pleadings as inappropriate marital conduct[.]

Therefore, “inappropriate marital conduct is established when ‘either or both of the parties
[have] engaged in a course of conduct which (1) caused pain, anguish, or distress to the other
party and (2) rendered continued cohabitation ‘improper,’ ‘unendurable,’ ‘intolerable,’ or
‘unacceptable.’” Chaffin v. Ellis, 211 S.W.3d 264, 289 (Tenn. Ct. App. 2006) (quoting
Eldridge v. Eldridge, 137 S.W.3d 1, 24 (Tenn. Ct. App. 2002)). Under section 36-4-129(b),
the trial court holds the discretion to grant a divorce to the party who was less at fault.
Whether a party should be awarded a divorce on grounds of inappropriate marital conduct
is usually determined by a trial court’s assessment of witness credibility. Chaffin, 211
S.W.3d at 289. “In a case where the resolution of the issues depends upon the truthfulness
of witnesses, the trial judge who has the opportunity to observe the witnesses in their manner
and demeanor while testifying is in a far better position than [an appellate court] to decide
those issues.” Fann v. Fann, No. W2000-02431-COA-R3-CV, 2001 WL 394858, at *2
(Tenn. Ct. App. Apr. 18, 2001).




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        In this case, the court clearly credited Husband’s testimony over the testimony
presented by Wife and the children. Wife does not deny that she hit Husband without
physical provocation or that she berated Husband and accused him of infidelity in front of
their children, one of which was still a minor, on at least two separate occasions on June 1.
While the conduct complained of occurred over the course of one day, we cannot discount
the fact that Wife unnecessarily introduced a level of physical violence into the admittedly
heated discussion. According deference to the trial court’s assessment of the witnesses’
credibility, we hold that there is enough evidence in the record to support the trial court’s
finding that Wife engaged in inappropriate marital conduct, namely domestic violence.

                                             B.

       Husband asserts that the trial court erred in setting his support obligation by failing
to consider and properly weigh the pertinent factors. He claims that Wife failed to establish
that she was in need of support. Wife responds that the trial court did not err in setting the
type, duration, and amount of spousal support.

       “Alimony” is defined, in pertinent part, by Black’s Law Dictionary, 9th ed., as

       [a] court-ordered allowance that one spouse pays to the other spouse for
       maintenance and support . . . after they are divorced. Alimony is distinct from
       a property settlement.

Tennessee recognizes four different types of alimony: rehabilitative alimony, transitional
alimony, alimony in futuro, and alimony in solido. Each type addresses a specific need. In
this case, the trial court specifically awarded transitional alimony, which may be awarded to
assist the disadvantaged spouse in adjusting to the economic consequences of the divorce.
Tenn. Code Ann. § 36-5-121(g)(1).

        In determining whether to award alimony, the court must first consider whether the
spouse seeking alimony is economically disadvantaged. Perry, 114 S.W.3d at 467. “Once
the trial court has found a party to be economically disadvantaged relative to his or her
spouse, it must determine the nature, amount, length of term, and manner of payment of the
award.” Id. at 467. In setting the type, duration, and amount of support, courts are guided
by the following list of factors:

       (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). The two most relevant factors in determining the amount
of alimony awarded are the economically disadvantaged spouse’s need and the obligor
spouse’s ability to pay. Robertson, 76 S.W.3d at 342. When considering these two factors,
the primary consideration is the disadvantaged spouse’s need. Aaron, 909 S.W.2d at 410;
Watters v. Watters, 22 S.W.3d 817, 821 (Tenn. Ct. App. 1999). Courts must also take into

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consideration the different roles a spouse may have in a marriage when considering an award
of alimony. Tenn. Code Ann. § 36-5-121(c). “There are no hard and fast rules for spousal
support decisions, and such determinations require a ‘careful balancing’ of the relevant
factors.” Miller v. Miller, No. M2002-02731-COA-R3-CV, 2003 WL 22938950, at *3
(Tenn. Ct. App. Dec. 10, 2003) (citing Anderton v. Anderton, 988 S.W.2d 675, 682-83 (Tenn.
Ct. App. 1998)).

        In this case, the trial court initially stated that Wife had failed to establish a need for
alimony after it redacted her unnecessary expenses. However, the court then retracted its
statement and held that it had failed to consider the disparity of income that necessitated an
award of spousal support. We agree with the trial court’s assessment. Moreover, at least two
of the support factors weigh in favor of granting an award to Wife. Wife was clearly capable
of maintaining employment, but Husband’s employment yielded a higher income. Tenn.
Code Ann. § 36-5-121(i)(1). The marriage was also of a long duration, namely 24 years.
Tenn. Code Ann. § 36-5-121(i)(3). The remaining factors appear equally weighted or
inapplicable. The parties did not enjoy an extravagant lifestyle or possess significant assets,
but they relied upon both incomes to maintain the household. Wife’s expenses, even after
her listed expenses related to Donielle and Caleb were redacted, established that she needed
assistance in maintaining the household. Additionally, Husband possessed the ability to pay
the amount ordered by the trial court. With these considerations in mind, we conclude that
the trial court did not abuse its discretion in awarding transitional alimony to Wife.

                                                C.

        Husband asserts that Wife’s appeal was frivolous and that he is entitled to damages
in the form of attorney fees and costs for having to defend against the appeal. Tennessee
Code Annotated section 27-1-122 provides for an award of damages, including attorney fees,
when an appeal is determined to be frivolous. To find an appeal frivolous, the appeal must
be wholly without merit and lacking in justiciable issues. See Davis v. Gulf Ins. Group, 546
S.W.2d 583, 586 (Tenn. 1977); Indus. Dev. Bd. of Tullahoma v. Hancock, 901 S.W.2d 382,
385 (Tenn. Ct. App. 1995). An appellate court’s decision on this issue is discretionary, and
this court is generally reluctant to award such damages because we do not want to discourage
legitimate appeals. Whalum v. Marshall, 224 S.W.3d 169, 180-81 (Tenn. Ct. App. 2006).
Following our review, we respectfully deny Husband’s request for attorney fees on appeal.




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                                   V. CONCLUSION

      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 taxed one-half to the appellant,
Rebecca A. Dixon Tatum, and one-half to the appellee, Don Baron Tatum.

                                          ______________________________________
                                          JOHN W. McCLARTY, JUDGE




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