                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 March 11, 2014 Session

        DAVID ALLAN FOGLE, SR. V. MARDONNA SHAWN FOGLE

                Appeal from the Chancery Court for Sullivan County
             No. K0037938(M) Hon. John S. McLellan, III, Chancellor




                 No. E2013-00997-COA-R3-CV-FILED-MAY 22, 2014


In this divorce action, the trial court granted Wife a divorce, divided the marital assets, and
awarded Wife alimony of $700 per month for 48 months. Wife appeals. We modify the trial
court’s judgment to reflect an award of periodic alimony in the amount of $1,000 per month.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                       Affirmed as Modified; 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 T HOMAS R. F RIERSON, II, J., joined.

R. Wayne Culbertson, Kingsport, Tennessee, for the appellant, Mardonna Shawn Fogle.

Keith A. Hopson and Daniel B. Minor, Kingsport, Tennessee, for the appellee, David Allan
Fogle, Sr.

                                         OPINION

                                    I. BACKGROUND

        David Allan Fogle, Sr. (“Husband”) and Mardonna Shawn Fogle (“Wife”) were
married on August 2, 1980. Two children were born of the marriage and have since attained
the age of majority. Husband supported the family from income he received while working
as a glass technician at a local glass plant, while Wife maintained the home and cared for the
children. In October 2011, Husband sought a divorce after more than 30 years of marriage.
Wife responded by filing a counter-complaint for divorce in which she requested spousal
support.
       Despite the length of the marriage, Husband and Wife (collectively “the Parties”) had
not accumulated any significant assets or property by the time of divorce. The Parties each
submitted a statement of income and expenses. Husband initially reported a monthly income
of $3,059.52 per month and expenses of $2,537.50 per month, while Wife initially reported
a monthly income of $464.10 per month and expenses of $1,705.38. During the pendency
of the hearing, the court awarded Wife spousal support in the amount of $950 per month.
A hearing was held before the court at which Husband and Wife testified.

       Husband, who was 52 years old at the time of trial, testified that he had just recently
received his graduate equivalency diploma. He was currently employed at AGC, North
America Glass Plant, where he had worked for the past 28 years. He acknowledged that his
gross yearly income was in excess of $50,000. He claimed that he had not been on vacation
in approximately 20 years and that he worked a “seven day swing shift” that required him to
work either 12 hours during the day or 12 hours at night. He claimed that his net monthly
income had increased to $3,672.87 but that his monthly expenses remained $2,537.50,
leaving a surplus of approximately $1,135.37, which did not include his current spousal
support obligation of $950. He claimed that he received assistance from his mother and
brother in order to survive on his current income and that he could not continue to support
Wife at the rate of $950 per month. He acknowledged that his monthly expenses had
increased as a result of his purchase of a Mercedes with an accompanying monthly car
payment in excess of $400.

       Husband testified that he filed for divorce because he believed they “just couldn’t get
along” and were “arguing all the time on just anything that comes up.” He recalled that Wife
obtained her graduate equivalency diploma but had never pursued further education. He
conceded that he and Wife agreed that she would raise the children while he worked and that
she was successful in her endeavor of raising the children. He related that at one time, Wife
worked as a cosmetologist but that she eventually quit and returned to her position as a full-
time homemaker. He acknowledged that since their separation, Wife had secured
employment at a shoe store and was only able to earn minimum wage to support herself.

        Wife confirmed that she obtained her graduate equivalency diploma and cosmetology
license and that she worked as a cosmetologist for awhile. She stated that her cosmetology
endeavor was not very profitable and that she had not maintained her license. She testified
that her family was her career while she was married to Husband and that after the
separation, she procured a job at Houser Shoes, where she earned approximately $464 per
month. She acknowledged that she had been fired for tardiness but claimed that her boss
really fired her because she had “caught him in a lie.” She stated that her search for a new
job was unsuccessful and that she had not completed the paperwork for unemployment
compensation because she did not have internet access.

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        Wife testified that Husband left her after a fight concerning telephone numbers that
she found on his phone. She recalled that Husband continued to pay the bills while she
remained in the house that she had shared with Husband. She related that the house was
owned by Husband’s mother. She stated that she sought spousal support from the court after
she left the house and Husband ceased providing voluntary support. Wife acknowledged her
prior testimony that she did not have any monetary funds following the divorce, despite
Husband’s earlier contention that she had received $6000 from his mother when she left the
house. She conceded that she had received approximately $650 when she vacated the house
because she left the appliances.

       Wife asserted that she still sought reconciliation with Husband but that Husband had
refused her attempts to reconcile. She related that she sought treatment for depression
following the separation. She claimed that she was unable to support herself and that unlike
Husband, she could not receive assistance from family members. She asserted that she could
not cut expenses beyond what she had already budgeted and that even with her meager
expenses, she could not afford her apartment, could not adequately feed herself or her two
dogs, and could not afford to repair her vehicle, which did not have headlights and appeared
to need additional work.

       Helen Lane, Husband’s mother, testified that she had sold her house to the Parties.
She related that they had fallen behind on the payments and that she eventually began
foreclosure proceedings after Husband left and Wife failed to remit any payments for “over
a year.” She stated that she and Wife came to an agreement in which she would pay her
$5000 to vacate the premises and $1000 if Wife left the appliances. She related that after
Wife signed a quitclaim deed, she gave the money to Steve Fogle, who then paid Wife on
September 7, 2011. Mr. Fogle confirmed Ms. Lane’s testimony.

        Following the hearing, the trial court granted Wife’s request for divorce, divided the
marital assets, and awarded Wife alimony of $700 per month for 48 months pursuant to the
factors set forth in Tennessee Code Annotated section 36-5-121(i). Following the denial of
post-trial motions, this timely appeal followed.

                                         II. ISSUE

       We consolidate and restate the issue raised on appeal as follows:

       Whether the trial court abused its discretion by only awarding spousal support
       in the amount of $700 per month for 48 months.




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                             III. STANDARD OF REVIEW

       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 v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001) (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).


                                     IV. DISCUSSION


       “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.
Rehabilitative alimony is temporary support intended to assist the economically
disadvantaged spouse in obtaining the education or training necessary to allow him or her to
achieve a reasonable standard of living in comparison to the standard of living maintained
by the parties during the marriage or to the post-divorce standard of living available to the
other spouse. Tenn. Code Ann. § 36-5-121(e)(1). Where rehabilitation is not necessary,
transitional alimony 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). Alimony in
futuro and alimony in solido are long-term forms of spousal support. Tenn. Code Ann. § 36-
5-121(f)(1), (h)(1). Alimony in futuro is typically awarded when a spouse is economically
disadvantaged, but rehabilitation is not feasible, meaning that the disadvantaged spouse
cannot achieve an earning capacity that will allow him or her to maintain an appropriate


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standard of living. Tenn. Code Ann. § 36-5-121(f)(1). This type of alimony is awarded on
a “long term basis or until death or remarriage of the recipient” spouse. Id. Alimony in
solido, on the other hand, is a lump sum award of alimony, but it may be paid in installments
over a specific period of time. Tenn. Code Ann. § 36-5-121(h)(1). Courts typically award
this type of alimony to adjust the division of marital property. Burlew v. Burlew, 40 S.W.3d
465, 471 (Tenn. 2001). Alimony in solido may also be awarded to assist the disadvantaged
spouse in paying attorney’s fees. Koja v. Koja, 42 S.W.3d 94, 98 (Tenn. Ct. App. 2000).


        “The statutory framework for spousal support reflects a legislative preference favoring
short-term spousal support over long-term spousal support, with the aim being to rehabilitate
a spouse who is economically disadvantaged relative to the other spouse and achieve self-
sufficiency where possible.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 109 (Tenn. 2011)
(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)). “While this statutory preference does not entirely
displace long-term spousal support, alimony in futuro should be awarded only when the court
finds that economic rehabilitation is not feasible and long-term support is necessary.” Id.
(citing Bratton, 136 S.W.3d at 605; Robertson v. Robertson, 76 S.W.3d 337, 341-42 (Tenn.
2002)).


        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;


       (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;


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      (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). In addition to the factors found in Tennessee Code
Annotated section 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


                                              -6-
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)).


        Wife asserts that the trial court erred in setting Husband’s support obligation by failing
to consider and properly weigh the pertinent factors. She also contends that the court erred
by setting a time limitation on the obligation after specifically finding that she was incapable
of ever achieving economic rehabilitation without assistance. Husband responds that the trial
court did not err in setting the type, duration, and amount of spousal support. We agree with
Wife’s assertion.


       When considering the support factors, a number of the factors weigh in favor of
granting a substantial award to Wife. Wife was clearly capable of maintaining minimum-
wage employment, but she lacked an earning capacity that was comparable to Husband’s
long-term employment in a stable field. Tenn. Code Ann. § 36-5-121(i)(1). The marriage
was of a long duration, namely 32 years. Tenn. Code Ann. § 36-5-121(i)(3). Wife also made
substantial contributions to the marriage as a homemaker for the duration of the marriage.
Tenn. Code Ann. § 36-5-121(i)(10). The remaining factors appear equally weighted or
inapplicable. Indeed, the Parties did not enjoy an extravagant lifestyle or possess significant
assets. However, the record reflects that Wife was economically disadvantaged and in need
of support. Wife testified that she was on the verge of losing her apartment, could not
adequately feed herself, and that she could not afford to pay for necessary car repairs. While
Husband’s education was comparable to Wife’s, he had thrived in long-term employment,
thereby providing him with the ability to support Wife.


        Likewise, the record reflects that Wife was incapable of economic rehabilitation and
that an award of transitional alimony would have been inappropriate when the record lacked
evidence that Wife had the capacity for self-sufficiency. Wife simply lacked the experience
and skills necessary to maintain a household without the benefit of long-term support. With
these considerations in mind, we conclude that the trial court abused its discretion in
awarding Wife $700 for a period of 48 months. We hold that Wife was entitled to an award
of periodic alimony in the amount of $1000 per month until her death or remarriage.
Accordingly, we modify the trial court’s award of alimony and award Wife periodic alimony
in the amount of $1000 per month. In so concluding, we remind the Parties that awards of
alimony in futuro “remain in the court’s control for the duration of such award, and may be

                                               -7-
increased, decreased, terminated, extended, or otherwise modified, upon a showing of
substantial and material change in circumstances.” Tenn. Code Ann. § 36-5-121(f)(2)(A);
see also Bowman v. Bowman, 836 S.W.2d 563, 568 (Tenn. Ct. App. 1991).


                                   V. CONCLUSION


       The judgment of the trial court is modified to award wife periodic alimony in the
amount of $1,000 per month. This case is remanded to the trial court pursuant to applicable
law for enforcement of the court’s judgment and for the collection of costs assessed below.
Costs of the appeal are taxed to the appellee, David Allan Fogle, Sr.




                                          ______________________________________
                                          JOHN W. McCLARTY, JUDGE




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