                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  February 20, 2001 Session

               PHILLIP OWEN PAGE v. LUCILLE GREER PAGE

                   Direct Appeal from the Circuit Court for Shelby County
                      No. 160522       John R. McCarroll, Jr., Judge



                     No. W2000-01314-COA-R3-CV - Filed May 15, 2001


Holly Kirby Lillard, J., concurring in part and dissenting in part.

         While I concur with most of the majority decision, I must respectfully dissent from the
majority’s affirmation of the trial court’s denial of Wife’s request for alimony in futuro. This case
illustrates a classic situation with which trial courts now have difficulty dealing, in light of our
Supreme Court’s decision in Crabtree v. Crabtree, 16 S.W.3d 356 (Tenn. 2000).

       In this case, Wife was a homemaker for the last nineteen years of the parties’ twenty-five year
marriage. Husband had been employed by Helena Chemical Company for twenty-seven years and
was a National Sales Manager at the time of the divorce, making, including bonus, roughly $140,000
per year, sometimes more. Both parties were 49 years old. The divorce was awarded to Wife, based
on Husband’s inappropriate marital conduct.

        To her credit, Wife had enrolled at a local technical school to try to acquire computer skills
in order to obtain some type of employment. At trial, the testimony most favorable to Husband
regarding Wife’s prospects for employment was Husband’s own testimony, stating his opinion that
Helena Chemical Company had jobs available for which Wife could be hired at the conclusion of
her training which would pay between $25,000 and $40,000 per year.

        Under the majority Opinion, Wife receives rehabilitative alimony and alimony in solido for
a period of five years; after that, she receives nothing. Consequently, at the end of the five-year
period, if all goes according to Husband’s optimistic prediction for Wife’s future, Wife will be
earning between $25,000 and $40,000 in an entry-level job, while Husband will retain his entire
earnings, in excess of $140,000 per year.

        The Supreme Court’s decision in Crabtree appears to force the trial court to award
rehabilitative alimony, and no alimony in futuro, if rehabilitation is feasible to any degree. Crabtree
states:
                If an award of rehabilitative alimony is justified by the parties’ circumstances,
        a trial court initially should award rehabilitative alimony only. An award of
       rehabilitative alimony pursuant to Tenn. Code Ann. § 36-5-101 must be predicated
       upon a finding that the recipient can be economically rehabilitated. Once awarded,
       rehabilitative alimony may be modified if the recipient’s prospects for economic
       rehabilitation materially change. If rehabilitation is not feasible, the trial court may
       then make an award of alimony in futuro. Accordingly, a concurrent award of both
       types of alimony is inconsistent. At the time of the decree, a trial court must
       necessarily find that the recipient of alimony either can be or cannot be rehabilitated
       although that determination is subject to later modification. Allowing concurrent
       awards of alimony in futuro and rehabilitative alimony would require a trial court to
       engage in an act of clairvoyance. The trial court would not only be required to
       anticipate the duration necessary for rehabilitation but would also be required to
       anticipate the future needs of a spouse who, it has been determined can be
       rehabilitated.

Crabtree, 16 S.W.3d at 360. However, in this case, it does not take a clairvoyant to foresee that, at
the end of the five-year period, Husband will be reaping the financial rewards of the parties’ joint
investment in his twenty-seven year career as an executive, and Wife will be working in an entry-
level job earning subsistence-level compensation.

        Crabtree leaves the trial court ill-equipped to deal with this classic situation, in which one
spouse pursues a high-powered career while the other contributes to the marriage as a stay-at-home
parent and homemaker. Of course the homemaker spouse should be encouraged to rehabilitate to
the extent possible and obtain some type of employment. Rarely is such a homemaker spouse going
to be able to rehabilitate to a degree that she can support herself in a manner that bears any
resemblance to the parties’ lifestyle during the marriage. However, under Crabtree, if rehabilitation
is even minimally feasible, alimony in futuro is foreclosed.

        The Court in Crabtree states that alimony in futuro may later be awarded if it turns out that
rehabilitation “is not feasible.” Id. at 360. This is little comfort to Wife in this situation. If she
manages to overcome the obvious obstacles in the job market for a fifty-year old woman who has
been unemployed for twenty years and obtains employment paying $25,000 per year, she will be
deemed “rehabilitated,” making approximately one-sixth of Husband’s earnings, and she will never
be able to obtain alimony in futuro.

         The alimony statutes must provide a method for a trial court to make a fair alimony award
to a spouse who has been out of the workforce for many years and who can rehabilitate enough to
enter the workforce but earn at best a subsistence living, while the breadwinner spouse continues to
enjoy an affluent lifestyle. I see nothing inconsistent, in the statutes or otherwise, about awarding
both rehabilitative alimony and alimony in futuro in a situation such as this. If this is not possible,
the trial court should be permitted to award alimony in futuro which “steps down” after a reasonable
period for rehabilitation. Moreover, the term “rehabilitation” must be viewed against the background
of the parties’ standard of living prior to the divorce:



                                                  2
       We believe this means that in marriages of long duration where a spouse is
       economically disadvantaged vis-a-vis the other spouse, the parties’ standard of living
       should be the measuring stick by which and against which a court determines
       whether or not an individual can be rehabilitated. . . . . This is not to say the court
       must find that the requesting spouse can be rehabilitated to the exact standard of
       living that he or she enjoyed during the marriage. That standard of living is simply
       a measuring stick against which the rehabilitation analysis is made. In the final
       analysis, the court should determine whether the evidence preponderates that the
       requesting spouse can be restored to a standard that is reasonable when compared to
       the parties’ pre-divorce standard.

Robertson v. Robertson, 2000 WL 121314 (Tenn. Ct. App., Aug. 25, 2000) at *2 (perm. to app.
granted March 12, 2001.

        I believe that the current status of the law on this issue does a disservice to spouses who find
themselves divorced after spending many years contributing to the marriage as a stay-at-home parent
and homemaker. If the law is not clarified by our Supreme Court in a manner which permits a trial
court to reach a just result in such a situation, the problem should be remedied by our Legislature.
On this basis, I respectfully dissent.



                                                       HOLLY KIRBY LILLARD, J.




                                                   3
