                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 JANUARY 23, 2002 Session

         WILLIAM HARWELL PERRY v. RICKI C. CHILDS PERRY

                  Direct Appeal from the Chancery Court for Tipton County
                  No. 16, 505; The Honorable Martha Brasfield, Chancellor



                    No. W2001-01350-COA-R3-CV - Filed March 21, 2002


DAVID R. FARMER , J., concurring in part and dissenting in part.

        I concur with the majority’s decision regarding the award of attorney’s fees in this case, but
respectfully dissent from the holding that “it is not necessary to show a substantial and material
change in circumstances to modify a temporary, open-ended award of rehabilitative alimony.” This
holding allows a trial court to modify an award of alimony by simply reserving that right in the
divorce decree, thereby circumventing the legislative mandate that awards of alimony may be
modified only upon a showing of substantial and material change in circumstances.

         The legislature has expressed an intent that, whenever possible, an economically
disadvantaged spouse should be rehabilitated by an award of temporary support and maintenance.
Crabtree v. Crabtree, 16 S.W.3d 356, 358 (Tenn. 2000); Tenn. Code Ann. § 36-5-101(d)(1) (2001).
Rehabilitative alimony is “a separate class of spousal support as distinguished from alimony in solido
and periodic alimony.” Tenn. Code Ann. § 36-5-101(d)(1) (2001). The award “remain[s] in the
court’s control for the duration of such award, and may be . . . modified, upon a showing of
substantial and material change in circumstances.” Tenn. Code Ann. § 36-5-101(d)(2) (2001). Thus
an award of rehabilitative alimony is always a temporary award. In that it is subject to modification,
it is always somewhat “open-ended.” However, the legislature has expressed an intent that such
“open-endedness” is not without limits. A showing of material and substantial change in
circumstances is required to modify an award of rehabilitative alimony.

         When called upon to interpret a statute, as we are here, this Court’s primary objective is to
effectuate the purpose of the legislature. Lipscomb v. Doe, 32 S.W.3d 840, 844 (Tenn. 2000).
Insofar as possible, the intent of the legislature should be determined by the natural and ordinary
meaning of the words used in the statute, and not by a construction that is forced or which limits or
extends the meaning. Id. Likewise, the Court must seek to ascertain the intended scope of the
statute, neither extending nor restricting that intended by the legislature. State v. Morrow, – S.W.3d
– , 2002 WL 27513, at *2 (Tenn. Jan. 11, 2002) (citing State v. Sliger, 846 S.W.2d 262, 263 (Tenn.
1993)). Our interpretation must not render any part of the statute “inoperative, superfluous, void or
insignificant.” Id. (quoting Tidwell v. Collins, 522 S.W.2d 674, 676-77 (Tenn. 1975)). Rather, we
construe statutory provisions within the context of the entire statute, giving effect to its over-arching
purpose. Merrimack Mut. Fire Ins. Co. v. Batts, 59 S.W.3d 142, 151 (Tenn. Ct. App. 2001).

        The purpose of rehabilitative alimony is to provide an economically disadvantaged spouse
temporary support for a period of time so that he/she may become self-sufficient. Loria v. Loria,
952 S.W.2d 836, 838 (Tenn. Ct. App. 1997). It is also designed to encourage the recipient spouse
to become and then remain self-sufficient. Burlew v. Burlew, 40 S.W.3d 465, 470-71 (Tenn. 2001).
A trial court’s award of rehabilitative alimony is based on a finding that the economically
disadvantaged spouse can be economically rehabilitated. Crabtree v. Crabtree, 16 S.W.3d 356, 360
(Tenn. 2000). The award “may be modified if the recipient’s prospects for economic rehabilitation
materially change.” Crabtree, 16 S.W.2d at 360. In this case, the trial court determined that Ms.
Perry could be economically rehabilitated, and awarded rehabilitative alimony while reserving the
right to modify that award at a later date. An award of rehabilitative alimony, however, remains
within the jurisdiction of the court and is subject to modification for the duration of the period of the
award. Id.; Tenn. Code Ann. § 36-5-101(d)(2) (2001). However, any subsequent modification must
be predicated on a showing of material and substantial change in circumstance. Id.

        I do not believe the legislature intended to permit the courts to adopt a “wait and see”
approach in awarding rehabilitative alimony. The statute provides guidelines for use by the courts
in determining the amount and duration of rehabilitative awards. See Tenn. Code Ann. § 36-5-
101(d)(1) (2001). Once the trial court has determined that economic rehabilitation is feasible, it must
apply these guidelines to determine the appropriate amount and duration of the award. Loria, 952
S.W.2d at 837. If the recipient spouse does not attempt to become self-sufficient, the court may
reduce or terminate the rehabilitative award. Id. at 838. If the recipient can show that economic
rehabilitation has not been possible, or that it has been only partially possible, the trial court may
then award alimony in futuro. Crabtree, 16 S.W.3d at 360; Loria, 952 S.W.2d at 838. However,
the burden is on the recipient spouse to prove that rehabilitation has not been possible and that
alimony in futuro is needed. Tenn. Code Ann. § 36-5-101(d)(2) (2001); Crabtree, 16 S.W.3d at 359.
The court also may modify the original award of rehabilitative alimony upon a showing of material
and substantial change in circumstance. See Tenn. Code Ann. § 36-5-101(d)(2) (2001). When
determining whether a modification of an alimony award is justified, the court must give equal
weight to the need of the recipient spouse and the ability of the obligor spouse to pay. Bogan v.
Bogan, 60 S.W.3d 721, 730 (Tenn. 2001).

        In Robinette v. Robinette, 726 S.W.2d 524, 525 (Tenn. Ct. App. 1986), this Court adopted
the majority rule from other jurisdictions permitting the trial court “to reserve the issue of alimony
when proper at the time of granting the divorce.” Such a reservation, however, is to be used only
“when proper.” Id. As an exception to the general rule, it should be sparingly used in unique factual
situations. See, eg., Lawson v. Lawson, No. 03A01-9709-CH-00406, 1998 Tenn. App. LEXIS 339,
at *6 (Tenn. Ct. App. May 20, 1998). It should be noted, moreover, that Robinette addressed a
determination of whether alimony should be awarded at all. Robinette provided an exception to the
rule that if no alimony was awarded at the time of the final decree, it could not be subsequently
awarded. Robinette, 726 S.W.2d at 525. Under Robinette, if a trial court determines that alimony


                                                  -2-
is not needed at the time of the divorce, but that it may become necessary in light of the facts as they
exist at the time of the divorce, it may, in its sound discretion, reserve the issue of alimony while
granting an absolute divorce. Id.

        The legislature and the courts have expressed a public policy in favor of the finality of
divorce issues. See, eg., Waddey v. Waddey, 6 S.W.3d 230, 234 (Tenn. 1999). I agree that in rare
cases it may be prudent or necessary to reserve the determination of whether alimony should be
awarded while granting a final divorce. Such instances should be limited, however, to extenuating
factual situations. In the present case, the trial court did not reserve the issue of whether to award
alimony. It awarded rehabilitative alimony and reserved jurisdiction to modify that award. As noted,
continuing jurisdiction over the award during its pendency is provided by statute. However, the
statute does not permit the trial court to modify an award which has not been appealed simply by
reserving that right. If such were the case, the trail court could reserve the right to modify an award
for any reason. This circumvents the legislative intent expressed by the statute.

        The legislature and the courts have recognized that there may be significant changes in
circumstances which warrant the modification of an alimony award. See generally, Bogan v.
Bogan, 60 S.W.3d 721 (Tenn. 2001). The legislature has expressed that these changes must be both
material and substantial. This Court and the Tennessee Supreme Court have interpreted the
legislative intent of the statute to reflect a policy that a final decree of divorce should settle the legal
issues between the parties with a high degree of finality. See Waddey, 6 S.W.3d at 234 (quoting
Harshfield v. Harshfield, 842 P.2d 535, 539 (Wyo. 1992), for the proposition that otherwise, “the
finality of divorce would be illusory.”). Issues of modification, therefore, are subject to a factually
driven material and substantial change test. Bogan, 60 S.W.3d at 727. The exception provided by
Robinette is consistent with the recognition that the Code provides “the trial court elasticity of action
necessary to meet the equities of the case.” Waddey, 6 S.W.3d at 233 (quoting Rogers v. Rogers,
795 S.W.2d 667, 668 (Tenn. 1990)). This elasticity, however, is limited by express provisions in
the Code, such as that requiring a showing of a substantial and material change in circumstance
which justifies the modification of an alimony award. Such limitations on the Court’s ability to
modify awards of alimony specifically are noted by this Court in Loria and the Supreme Court in
Crabtree. In Loria, we stated, “the Court retains the authority to make appropriate adjustments in
keeping with changing circumstances and developments.” Loria v. Loria, 952 S.W.2d 836, 838
(Tenn. Ct. App. 1997)(emphasis added). In Crabtree, the Supreme Court noted, “rehabilitative
alimony may be modified if the recipient’s prospects for economic rehabilitation materially
change.” Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000)(emphasis added). I therefore respectfully
disagree with my colleagues that “it is not necessary to show a substantial and material change in
circumstances to modify a temporary, open-ended award of rehabilitative alimony.” Accordingly,
I must dissent from the majority to this extent.



                                                          ______________________________________
                                                          DAVID R. FARMER, JUDGE


                                                    -3-
