                                                                                           10/19/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  May 30, 2018 Session

             DANIEL JAMES FINSTAD V. JESSICA ANN CALFEE FINSTAD
                Appeal from the Chancery Court for Anderson County
                 No. 15CH7494      M. Nichole Cantrell, Chancellor
                           ___________________________________

                             No. E2017-01554-COA-R3-CV
                           ___________________________________

In this action for divorce, alimony was the only remaining issue at trial. After the hearing,
the trial court entered a final decree of divorce declaring that wife is an economically
disadvantaged spouse pursuant to Tenn. Code Ann. § 36-5-121(f) and that husband is
able to pay her alimony. The court held that there was no proof that wife was
underemployed and no proof she could be rehabilitated; it therefore awarded wife
alimony in futuro. We hold that the trial court abused its discretion in awarding wife
alimony in futuro. We modify the trial court’s judgment so as to provide wife transitional
alimony. As modified, the judgment of the trial court is affirmed. We remand this case to
the trial court with instructions.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                Modified in Part; Case Remanded with Instructions

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J. and JOHN W. MCCLARTY, J., joined.

Andrew Pate, Knoxville, Tennessee, for the appellant, Daniel James Finstad.

Kevin C. Angel, Clinton, Tennessee, for the appellee, Jessica Ann Calfee Finstad.

                                        OPINION

                                             I.

       The parties were married on March 23, 2003. They have three children together.
On February 23, 2015, wife filed for legal separation; included in that filing was an
agreed permanent parenting plan and a marital dissolution agreement signed by both
parties. The agreed permanent parenting plan was approved and signed by the trial court.
On September 18, 2015, and, significantly, prior to the court entering an order on the
legal separation, husband filed for divorce raising the issue of alimony.

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       Wife requested that the court award her alimony as follows – $905 per month for
five years and $600 per month thereafter until husband retires or dies, or wife dies or
remarries. She supported her claim for alimony in futuro by referring to the unexecuted
marital dissolution agreement attached to her February 23, 2015 petition for legal
separation. In relevant part, the agreement provides, in the language of the document, that
husband would pay

              Three Hundred Dollars ($300.00) per month alimony during
              the Legal Separation; after the divorce the Defendant will pay
              Nine Hundred Five Dollars ($905.00) per month alimony for
              a 5 year period; and thereafter Defendant will pay Six
              Hundred ($600.00) per month until he retires.

Wife testified that husband is currently paying her the $300 in monthly spousal support.

        At trial, wife and husband both testified regarding their monthly expenses. Wife
testified that the affidavit she presented to the court accurately reflected what she
“currently” has in the way of monthly expenses and income. She testified that her income
is derived from the operation of an in-home daycare that she runs in the evenings, and
that she also works at Bojangle’s every other week. She testified that these positions
produce $1,100 a month in income. Wife testified that, during her marriage, she had
previously managed a United Parcel Service store. She testified that the UPS position
allowed her to work full-time hours, even on the weeks when she had her children; she
testified that they were “gracious enough to let me off to be able to pick [my children] up
from school.”

       She testified that husband is paying her motor vehicle payment, her motor vehicle
insurance, and that he is maintaining and paying her health insurance through his
employment. He is also paying her $1,001 in child support each month. When testifying
regarding her current work schedule, wife testified that at Bojangle’s she “could work
more hours, and I plan to when the school year starts back up. Bojangle’s will put me on
the schedule while the kids are in school but it will not interfere with my ability to pick
them up.”

       Wife testified that she had been living at her current residence for two years, and
that she shared expenses with a roommate for about nine months. She testified that the
house she lives in is owned by her parents and that she is living rent-free. She testified
that the $950 per month in rent she listed as an expense on her affidavit was an amount
that she alleges her parents aspire to obtain – not a number she ever actually paid.
Similarly, she listed expenses for water and electricity ($130), and gas ($50), but these
expenses were also being paid by her parents. She listed her total monthly expenses as
$3,122 – this sum includes the $950 and $180 she testified that she did not actually have

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to pay each month. She listed her net monthly income as $900; her affidavit did not
reflect the $1001 in child support she received each month, the $300 she receives each
month in spousal support, the $516.32 in car payment and car insurance that were being
paid for her, did not reflect any assistance from her parents that she testified she receives,
and did not reflect that her health insurance was being paid for her.

       Husband’s affidavit of monthly income and expenses showed a net monthly
income of $5,351.78 and monthly expenses of $6,311. Reflected in husband’s affidavit
were the $1,001 in child support and the $300 in spousal support he was paying to wife
each month; the car payment, car insurance, and health insurance he was paying for the
wife’s benefit were also reflected in his affidavit.

       Husband testified that he had previously been inadvertently paying wife $1,300 a
month in child support, and that he overpaid about $4,000; he did not request
reimbursement for the overpayment. As noted above, husband testified that he was
paying wife $300 a month in pre-divorce spousal support, and that he was paying
$516.32 a month for her car payment and car insurance. Husband testified that he was
paying for and maintaining wife’s health insurance. He testified that in the three years
since they have been separated he has paid her $69,423.52. He testified that the total
support he currently provides to wife reduces his take-home pay by almost 50 percent.
Husband testified that, at the time of trial, wife was thirty-nine years old, and that she
does not suffer from any debilitating physical or mental illness that would prevent her
from maintaining a full-time job. He testified that, during their marriage, they lived a
modest lifestyle.

       Husband testified that his mortgage increased from $600 to $1,200, because he
sold his previous home and moved into a larger one to accommodate his fiancée, her
children, and his own children. He testified that he changed residences after the
mediation between husband and wife had concluded, because he thought that the matter
was also concluded. He testified that he and his fiancée pay their own bills and that the
affidavit he submitted covered only his own expenses and income. Husband estimated
that his fiancée contributes about $200 to the mortgage per month; he testified that they
share a bank account, and that he pays all of their utilities.

       In addition to the $69,423.52 husband already paid to wife, husband testified that
he was willing to continue to provide support for wife as she transitioned out of the
marriage. He testified that he was willing to pay a combined total of five years of
alimony. He testified he would continue to pay wife’s car payment and insurance until
the remaining $18,000 on the loan is paid off in 42 months. He testified he would
maintain her health insurance through his employment for an additional two years
following the divorce to give her time to obtain her own.



                                             -3-
        On July 14, 2017, a final decree of divorce was entered by the trial court. Therein
the court granted husband and wife the divorce. It affirmed the permanent parenting plan
in full, and affirmed the marital dissolution agreement, as it related to the terms regarding
division of marital assets and debt. It incorporated both into its final order by reference.
The court determined that all of wife’s sworn expenses were valid and that she was an
economically disadvantaged spouse. It held that husband could afford to pay wife
alimony. The court stated that the husband and wife had contemplated a long-term
alimony award for wife in their previous agreements, and it decided to award wife
alimony in futuro. It required husband to pay wife $905 a month in alimony for a period
of 42 months and $600 per month thereafter, and to continue to pay wife’s motor vehicle
payment and motor vehicle insurance.

                                             II.

      Husband argues on appeal that the trial court abused its discretion in determining
the amount and duration of alimony it awarded to wife.


                                            III.

        Appellate courts decline to second-guess a trial court’s decision regarding spousal
support absent an abuse of discretion. Gonsewski v. Gonsewski, 350 S.W.3d 99, 108
(Tenn. 2011) (citations omitted). This is because the decision to award spousal support is
factually driven and involves the careful balancing of many factors. Id. However, 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, it abuses its discretion, and a reversal of its
decision is warranted. Id.

       “The statutory framework for spousal support reflects a legislative preference
favoring short-term spousal support over long-term spousal support.” Id. (citing Tenn.
Code Ann § 36–5–121(d)(2)–(3); Bratton, 136 S.W.3d at 605; Perry v. Perry, 114
S.W.3d 465, 467 (Tenn. 2003)). “Alimony in futuro should be awarded only when the
court finds that economic rehabilitation is not feasible and long-term support is
necessary.” Gonsewski v. Gonsewski, 350 S.W.3d at 109. Alimony in futuro, as stated by
our Supreme Court:

              is intended to provide support on a long-term basis until the
              death or remarriage of the recipient. Tenn. Code Ann. § 36–
              5–121(f)(1). This type of alimony can be awarded where “the
              court finds that there is relative economic disadvantage and
              that rehabilitation is not feasible.” Id. See also Burlew, 40


                                             -4-
             S.W.3d at 470–71; Riggs v. Riggs, 250 S.W.3d 453, 456 n. 2
             (Tenn. Ct. App. 2007). Alimony in futuro is appropriate when

                    the disadvantaged spouse is unable to achieve,
                    with reasonable effort, an earning capacity that
                    will permit the spouse's standard of living after
                    the divorce to be reasonably comparable to the
                    standard of living enjoyed during the marriage,
                    or to the post-divorce standard of
                    living expected to be available to the other
                    spouse.

             Tenn. Code Ann. § 36–5–121(f)(1).

             Alimony in futuro “is not, however, a guarantee that the
             recipient spouse will forever be able to enjoy a lifestyle equal
             to that of the obligor spouse.” Riggs, 250 S.W.3d at 456 n.
             2. In many instances, the parties' assets and incomes simply
             will not permit them to achieve the same standard of living
             after the divorce as they enjoyed during the
             marriage. Robertson, 76 S.W.3d at 340. While enabling the
             spouse with less income “to maintain the pre-divorce lifestyle
             is a laudable goal,” the reality is that “[t]wo persons living
             separately incur more expenses than two persons living
             together.” Kinard, 986 S.W.2d at 234. “Thus, in most divorce
             cases it is unlikely that both parties will be able to maintain
             their pre-divorce lifestyle....” Id. It is not surprising, therefore,
             that “[t]he prior concept of alimony as lifelong support
             enabling the disadvantaged spouse to maintain the standard of
             living established during the marriage has been superseded by
             the legislature's establishment of a preference for
             rehabilitative alimony.” Robertson, 76 S.W.3d at 340.

Gonsewski v. Gonsewski, 350 S.W.3d 99, 108 (Tenn. 2011).

       Instead of alimony in futuro, courts may award a spouse transitional alimony.
Transitional alimony is appropriate when a court finds that rehabilitation is not required
but that the economically disadvantaged spouse needs financial assistance in adjusting to
the economic consequences of the divorce. Id. at 109. A marital dissolution agreement
between parties serves as “merely evidential in value and may be followed by the Court
in its award of alimony.” See Osborne v. Osborne, 197 S.W.2d 234 (Tenn. Ct. App.
1946).


                                              -5-
                                           IV.

                                            A.

       After a thorough review of the record and reviewing the evidence in the light most
favorable to the trial court’s decision, we conclude that the trial court abused its
discretion in awarding alimony in futuro to the wife. As elaborated on below, the court’s
findings that there were both no proof that wife is underemployed and that there was no
testimony or proof offered by the husband that the wife can be rehabilitated, is simply not
supported by the record. Therefore, the trial court abused its discretion, because it based
its decision on a clearly erroneous assessment of the evidence. See Gonsewski v.
Gonsewski, 350 S.W.3d at 105.

       The trial court held that the affidavits of the parties supported a long-term award
of alimony for the wife, because she is an “economically disadvantaged spouse pursuant
to T.C.A. § 36-5-121(f).” It held that:

             an award of alimony in futuro is appropriate in this case,
             taking in consideration the agreement of the parties, the needs
             of the Defendant, the ability to pay of the Plaintiff, as well as
             the factors listed in T.C.A. §36-5-11(i) (sic). The relative
             earning capacity of the Plaintiff is significantly higher than
             that of the Defendant. The Defendant is in need of assistance
             long-term in order to meet her monthly obligations. The
             Plaintiff has a higher degree of education than that of the
             Defendant. There was no proof offered to the court to show
             that Defendant has the ability or opportunity to secure
             education or training to improve her earning capacity,
             pursuant to T.C.A. §36-5-111(i)(2) (sic).


                                     *      *       *


             [wife’s] previous employment at United Parcel Service during
             the marriage was at a rate of pay similar or less than what her
             current income (sic). Thus there is no proof before this court
             that the [wife] is underemployed.



                                            -6-
Contrary to the trial court’s holding, wife testified to her underemployment both in terms
of the position she holds and the amount of hours she is working. She testified she is
currently employed at Bojangle’s and that she derives an additional source of income in
the evenings from the residence in which she lives for free. She testified that she only
worked every other week at Bojangle’s, that she could be working more hours, that she
had the capacity to work more hours, and that she intended to work more hours once the
school year started:

              I could take on more hours, and I plan to when the school
              year starts back up. Bojangle’s will put me on the schedule
              while the kids are in school, but it will not interfere with my
              ability to pick them up.

In addition, she testified that she previously managed a UPS store; she did not testify that
she currently holds a management position. Therefore, testimony was elicited from wife
indicating that she is not working as often as she is able, and that her work experience
includes the skills and experience necessary to manage a store. Her managerial
experience and ability to increase her current work hours demonstrates that wife can
improve her “earning capacity to a reasonable level” without additional training. See
Tenn. Code Ann. § 36-5-121(i)(2) (2018).

        Wife has three children, and she shares custody with father. The parties’ children
were born in 2001, 2005, and 2008; they are all therefore school-aged. Importantly, we
note that wife testified that working more hours would not interfere with her ability to
care for her children. See Tenn. Code Ann. § 36-5-121(i)(6). The record also does not
indicate that wife is physically or mentally unable to continue to work, to progress to a
full-time schedule, or even obtain a new position if she desires. See Tenn. Code Ann. §
36-5-121(i)(4-5). She was also the relatively young age of thirty-nine at the time of the
divorce filing in 2015. See Tenn. Code Ann. § 36-5-121(i)(4).

        Based on the foregoing, a review of the relevant factors enumerated in Tenn. Code
Ann. § 36-5-121(i) and of the record does not support the trial court’s decision that a
long-term award of alimony to wife is necessary. We hold that wife’s ability to be self-
sufficient is not only feasible but likely. Accordingly, the court abused its discretion in
awarding wife alimony in futuro. We reverse the trial court’s July 14, 2017 final decree
of divorce to the extent it awards wife alimony in futuro.

                                            B.

        Having reached the above conclusion, we nonetheless find that an award of
transitional alimony would be proper. As noted elsewhere in this opinion, the statutory
framework permits an award of transitional alimony when the court finds that


                                            -7-
rehabilitation is not necessary, but that the spouse may need aid in the transition to the
status of a single person. See Tenn. Code Ann. § 36-5-121.

        While concluding that wife is able to be self-sufficient, we acknowledge that she
has likely come to rely upon husband’s substantial contributions in several areas of her
life. We are not inclined to end those immediately. Therefore, we direct that the trial
court enter an order awarding wife transitional alimony in the amount of $600 per month
for a period of five years, or until husband dies, or wife dies or remarries, whichever
comes first. The trial court is directed to ascertain, for how many months, husband has
already been paying wife alimony in any form. The total of those months will be
deducted from the 60 months and husband will pay his obligation to wife for spousal
support for the remaining months. The trial court is also directed to order husband to
continue to pay wife’s motor vehicle loan and her motor vehicle insurance, in addition to
and independent of the $600 per month previously ordered, until the loan on the motor
vehicle is extinguished or until husband dies, or wife dies or remarries, whichever comes
first. This opinion is in no way to be interpreted as disturbing any permanent parenting
plan agreement or any child support payment.

                                            V.

       The judgment of the trial court is modified, and, as such, is affirmed. This case is
remanded to the trial court with instructions. Costs on appeal and at the trial court level
are taxed to the appellee, Jessica Ann Calfee Finstad.




                                                   _______________________________
                                                   CHARLES D. SUSANO, JR., JUDGE




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