                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                              December 13, 2012 Session

         LINDA ALEXANDER OWENS v. JAMES EMERY OWENS

                 Appeal from the Circuit Court for Davidson County
                       No. 03D535     Philip E. Smith, Judge


                 No. M2012-01186-COA-R3-CV - Filed July 30, 2013


Wife was awarded rehabilitative alimony in 2004 that was to terminate in 2012. In 2009
Wife filed a petition to increase the duration and amount of her alimony, or, in the
alternative, for an award of alimony in futuro. The trial court found Wife was in need of
support, but it denied Wife’s petition, finding Wife had not used all reasonable efforts to
rehabilitate herself. On appeal we find Wife’s inability to be rehabilitated as that term has
been defined by the legislature warrants a modification of Wife’s alimony award. We
reverse the trial court’s judgment denying Wife’s petition for alimony and conclude Wife is
entitled to alimony in futuro but in a lesser amount. We affirm the trial court’s judgment
denying Wife’s request for attorney’s fees.

Tenn. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in Part
                               and Affirmed in Part

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which A NDY D.
B ENNETT and R ICHARD H. D INKINS, JJ., joined.

Sarah Richter Perky, Nashville, Tennessee, for the appellant, Linda Alexander Owens.

Roger Alan Maness, Clarksville, Tennessee, for the appellee, James Emery Owens.

                                        OPINION

                                     I. B ACKGROUND

       Linda Alexander Owens (“Wife”) and James Emery Owens (“Husband”) had been
married for about twenty-five years when they were divorced in 2004. The trial court divided
the marital property and awarded Wife rehabilitative alimony. On appeal this court altered
the division of marital property and increased both the amount and duration of rehabilitative
alimony to $3,000 per month beginning in May 2007 and ordered Husband to continue
making these payments through November 2012. This court also awarded Wife the
attorney’s fees she incurred at trial. Owens v. Owens, 241 S.W.3d 478 (Tenn. Ct. App.
2007).

       Wife filed a petition in October 2009 seeking an increase of her alimony payments in
both amount and duration, or, in the alternative, alimony in futuro. Wife also sought an
award of her attorney’s fees. Wife alleged she has been unsuccessful in her endeavors to
earn a living by selling real estate or working as a yoga instructor. Wife stated she has had
to borrow money from her mother, withdraw money from her individual retirement account,
and increase her credit card debt to pay her bills. Wife alleged that Husband has had fewer
expenses and more disposable income since the parties were divorced and has the ability both
to increase her alimony payments and continue the payments beyond November 2012.

        The trial court conducted a trial over a course of 4 days in 2011. By the time of trial
Wife was 62 years old. Wife presented testimony of the steps she has taken to become
successful as a real estate agent. She testified that she attended over 170 hours of real estate
classes, advertised in local publications, sent out mass mailings, pursued referrals, printed
and distributed business cards, and made presentations to potential new clients. Despite her
efforts, Wife has not been able to earn enough money to support herself as a real estate agent.
The economic situation in the country dramatically reduced the sales of homes.

        In addition to working as an agent, Wife took steps following the parties’ divorce to
become certified as a yoga instructor. She spent approximately $20,000 renovating her pool
house to turn it into a yoga studio in an effort to appeal to those looking for a unique yoga
experience. Wife testified that with the downturn in the economy she has not been able to
make as much money as she had hoped teaching yoga classes and is unable to support herself
in this way.

       Starting in 2010 Wife decided to rent her pool house out for $700 per month. This
arrangement was working well until Wife’s mother, who is in her 80s, fell and was unable
to move into an assisted living facility. Wife testified that her mother needs ongoing care and
cannot afford to hire someone to care for her at her house. To accommodate her mother,
Wife has asked her renter to move out so she could move her mother into the pool house
where Wife can care for and transport her mother to places she needs to go.

       During the trial Wife introduced an Income and Expense Statement in which she
claimed she has monthly expenses of $8,876. In her petition Wife had stated her personal
monthly expenses were approximately $5,700. Wife was unable to explain how her expenses
increased over $3,000 from the time she filed her petition in 2009 to the time of trial in

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2011.1 Wife had been awarded the marital home as part of the parties’ divorce in 2004, and
there is currently no mortgage on Wife’s house. In addition, Wife owns her car free and
clear.

      The trial court issued a Memorandum and Order in May 2012 denying Wife any relief.
The court wrote:

                Ms. Owens, as the recipient of the rehabilitative alimony, has the
        burden of proving by a preponderance of the evidence that all reasonable
        efforts at rehabilitation have been made and have been unsuccessful.

                                                   .....

                Based on the proof presented and the fact the Court can give very little
        weight to the testimony of Ms. Owens, this Court cannot find that Ms. Owens
        established by a preponderance of the evidence that she has made “all
        reasonable efforts at rehabilitation” in her endeavor to become a successful
        real estate agent or broker.

               Additionally, . . . the Court also finds that Ms. Owens did not make “all
        reasonable efforts at rehabilitation” by opening a yoga studio or by becoming
        a yoga instructor.

               The Court recognizes the harsh effect this ruling will have on Ms.
        Owens. Ms. Owens is 62 years old. She has limited job skills. Ms. Owens
        will be completely dependent on the income she can generate or on the
        generosity of her mother.

               While the Court concedes the harshness of this ruling, the Court must
        defer to the legislature and the language used in the statute. The Court,
        unfortunately, has no other choice in its ruling based on the facts submitted.

                                                   .....




        1
         The trial court stated that it “questions Ms. Owens’ veracity for truthfulness in regard to her claim
to need $8,876.00 per month for expenses. Ms. Owens is claiming she needs this amount despite the fact
that she no longer has a mortgage payment and her car is now paid off.”


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              The Court will note that it made no finding above regarding the need
       of Ms. Owens. As gratis dicta, the Court will find that there is a continuing
       need on Ms. Owens’ part for the alimony. . . .

       Wife appeals the trial court’s denial of her request for a modification of her alimony
and the denial of her request for attorney’s fees.

                               II. M ODIFICATION OF A LIMONY

       Pursuant to this court’s earlier decision, Wife was awarded rehabilitative alimony of
$3000 per month from May of 2007 through November of 2012. Rehabilitative alimony is
a “separate class of spousal support,” Tenn. Code Ann. §36-5-121(e)(1), and its purpose is
to provide an economically disadvantaged spouse support for a period of time to enable her
or him to become and remain self-sufficient. Sullivan, 107 S.W.3d at 511 (citing Loria v.
Loria, 952 S.W.2d 836, 838 (Tenn. Ct. App. 1997)). “Rehabilitative alimony is intended to
promote the self-sufficiency of the disadvantaged spouse by allowing him/her to acquire
additional job skills, education, or training.” Sullivan, 107 S.W.3d at 511 (citing Kinard, 986
S.W.2d at 234).

       In the matter before us, Wife sought an extension of the duration and an increase of
the amount of her rehabilitative alimony or a conversion of it to alimony in futuro. That
request is governed by the statute pertaining to rehabilitative alimony which provides, in
pertinent part:

       An award of rehabilitative alimony shall remain in the court’s control for the
       duration of such award, and may be increased, decreased, terminated,
       extended, or otherwise modified, upon a showing of a substantial and material
       change in circumstances. For rehabilitative alimony to be extended beyond the
       term initially established by the court, or to be increased in amount, or both,
       the recipient of the rehabilitative alimony shall have the burden of proving that
       all reasonable efforts at rehabilitation have been made and have been
       unsuccessful.

Tenn. Code Ann. § 36-5-121(e)(2) (emphasis added).

        In determining how to measure a former spouse’s economic rehabilitation, or its
feasibility, it is important to note that the legislature has supplied the definition the courts are
to use:



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       To be rehabilitated means to achieve, with reasonable effort, earning capacity
       that will permit the economically disadvantaged 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, considering the relevant statutory factors and the
       equities between the parties.

      The Tennessee Supreme Court has addressed modifications to awards of rehabilitative
alimony, holding:

       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.

Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000) (emphasis added). According to the
statutory definition, the question becomes whether Wife can generate enough income to
provide a pre-divorce standard of living or one comparable to Husband’s.

       The Supreme Court has explained that in a modification of alimony proceeding, a
change in circumstances is “material” when the change occurred after alimony was initially
awarded and was not anticipated when the marital property was divided, and a change is
“substantial” when it affects either the obligee’s need for support or the obligor’s ability to
pay. Bogan, 60 S.W.3d at 728 (citing Watters v. Watters, 22 S.W.3d 817, 821 (Tenn. Ct.
App. 1999) and Bowman v. Bowman, 836 S.W.2d 563, 568 (Tenn. Ct. App. 1991)).

        The trial court herein found that Wife has limited job skills and that she has a
continuing need for alimony. We find that the record supports these findings. In our earlier
opinion in this case, we made some findings that are relevant to the considerations before us
now. We found that Wife was economically disadvantaged after comparing Husband’s
successful career and likelihood of continuing to earn a significant income to Wife’s
situation:

       At the time of the trial in this case, both Ms. Owens and Mr. Owens were in
       their mid-fifties. Despite his failure to complete college, Mr. Owens had
       become a successful real estate broker and investor. He was earning between
       $12,000 and $13,000 per month, although the portion of his income based on
       commissions fluctuated. . . .



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        While Ms. Owens had a teaching certificate, she had not been actively
        employed since 1980. She had also obtained a real estate agent’s license in
        1978 and an associates degree in computer data entry in the 1980s. Even
        though this education and training went largely unused during the marriage,
        Ms. Owens had reacquired her real estate license and planned to make a career
        as a real estate agent. By the time of trial, Ms. Owens had not been working as
        a real estate agent long enough to determine whether she would be able to
        support herself in this line of work. . . .

        Ms. Owens spent most of the last twenty-five years as a homemaker and
        parent. Her efforts enabled Mr. Owens to gain experience and to grow his real
        estate and investment businesses. At the same time, Ms. Owens’s decision to
        stay at home eventually rendered her training and experience obsolete. By the
        time of the divorce hearing, Mr. Owens had an established career, while Ms.
        Owens faced an uncertain financial future. She had started on a new career
        as a realtor—one which will necessarily be short-lived because Ms. Owens
        faces retirement within ten years or so. Because of her employment history,
        Ms. Owens will receive far lower Social Security benefits than Mr. Owens
        expects to receive.

Owens v. Owens, 241 S.W.3d at 494-95 (emphasis added).

        Wife’s training, job skills, and opportunities for employment have not improved since
the earlier opinion. She attempted to make a living as a real estate agent, but was
unsuccessful. She testified to the various efforts she made to develop that business. Starting
out at her age is difficult enough, and the recession greatly impacted her opportunities.2

       In any event, the circumstances before us present a situation in which conversion of
rehabilitative alimony to alimony in futuro is appropriate.3 We find Wife’s inability to be
rehabilitated to the standard defined the statute constitutes a substantial and material change
of circumstances warranting a modification of the alimony.

        Once an obligee spouse has shown a substantial and material change of circumstances


        2
        It appears to us that the trial court considered some of Wife’s expenditures in her effort to open a
yoga studio were not necessarily reasonable.
        3
         In the case before us, Wife asked in her petition for alimony in futuro as an alternative to an
extension and increase in rehabilitative alimony. The record does not indicate that the trial court considered
awarding Wife alimony in futuro.

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warranting a modification of an alimony award, the court should consider the relevant factors
set forth in Tenn. Code Ann. § 36-5-121(i) to determine the appropriate amount of
modification. Bogan, 60 S.W.3d at 730. The two most important factors to consider when
initially making or modifying an award of alimony are the need of the disadvantaged spouse
and the obligor spouse’s ability to pay.” Bratton v. Bratton, 136 S.W.3d 595, 604 (Tenn.
2004); Bogan, 60 S.W.3d at 730; Oakes v. Oakes, 235 S.W.3d 152, 160 (Tenn. Ct. App.
2007).

        Wife is currently in her mid-60s and has not been able to become self-sufficient as a
real estate agent, as she had planned. Wife presented testimony of her need for support and
the trial court found that she had a need for continuing support.

       We agree with the trial court’s finding that Wife needs continuing support and
conclude that alimony in futuro is appropriate in this case. See Tenn. Code Ann. § 36-5-
121(d)(3) (where there is relative economic disadvantage and rehabilitation is not feasible,
the court may grant an order for payment of support and maintenance on a long-term basis);
see also Tenn. Code Ann. § 36-5-121(d)(4) (award of alimony in futuro may be made instead
of rehabilitative alimony where rehabilitation is not feasible). The record reveals that
Husband’s income, while not the same year to year, has increased since the parties were
divorced in 2004 and that he has fewer expenses now than he did then. The trial court
concluded Husband has the ability to continue paying the amount of rehabilitative alimony
previously ordered, and Husband does not contest this finding.4

       In her petition Wife alleged she had monthly expenses of $5,700. At trial Wife
submitted an Income and Expense Statement indicating she has monthly expenses of $8,876.
Wife was unable to justify all of the expenses in the statement and the trial court
“question[ed] Ms. Owens’ veracity for truthfulness in regard to her claim to need $8,876.00
per month for expenses.”

        Wife testified that she and her mother own various parcels of residential real estate
that produce, or are capable of producing, rental income. When the parties’ marital property
was divided as part of their divorce, Ms. Owens was awarded an interest in the Ragghianti-
Owens Partnership that was valued in 2004 at $167,450. The record suggests that this
partnership owns residential real estate that produces, or is capable of producing, rental
income. At the time of trial there were no mortgages on Wife’s house or car. Wife testified
she intends to move her mother’s things out of the house her mother was living in before
moving into Wife’s pool house and that she will be able to rent her mother’s house out once


        4
        Husband introduced evidence of some health issues, but he continues to work five or more days each
week, and his income level does not appear to have suffered as a result of his health.

                                                   -7-
it is empty.




        Considering the totality of the circumstances, we conclude Wife is entitled to alimony
in futuro payments of $2,000 per month beginning in December of 2012, the month after her
rehabilitative alimony award terminated.

       While Tenn. Code Ann. § 36–5–121(d)(2) reflects a statutory preference favoring
rehabilitative spousal support and transitional spousal support over long-term periodic
spousal support, Bratton v. Bratton, 136 S.W.3d at 605; Perry v. Perry, 114 S.W.3d 465, 467
(Tenn. 2003), this statutory preference does not entirely displace the other forms of spousal
support when the facts of the case warrant long-term or more open-ended support. Aaron v.
Aaron, 909 S.W.2d 408, 410 (Tenn.1995).

                                     III. Attorney’s Fees

        We turn now to the issue of attorney’s fees. The trial court ordered that each party is
responsible for his or her own attorney’s fees. Wife contends she is entitled to her attorney’s
fees incurred both at trial and on appeal. Tennessee follows the American rule providing that
litigants are responsible for their own attorney’s fees absent a statute or agreement between
the parties providing otherwise. State v. Brown Williamson Tobacco Corp., 18 S.W.3d 186,
194 (Tenn. 2000).

       Wife relies on Tenn. Code Ann. §§ 36-5-101 and 36-5-103(c) as support for her
request. Reasonable fees may be awarded pursuant to § 36-5-103(c) in actions to enforce a
decree for alimony, which has been interpreted as including the situation where an alimony
recipient is forced to defend an action to reduce or terminate that alimony. Evans v. Evans,
2004 WL 1882586, at *13 (Tenn. Ct. App. Aug. 23, 2004). In addition, a court may award
a former spouse attorney’s fees as alimony in solido pursuant to § 36-5-101 in a modification
or alimony proceeding. See Evans, 2004 WL 1882586, at *15 (“ample authority exists to
authorize a court to award fees in a modification proceeding on the same basis, and according
to the same principles, as a fee award is made in the divorce proceeding and initial award
under Tenn. Code Ann. § 36-5-101”).

        An award of attorney’s fees is within the sound discretion of the trial court, regardless
of the legal authority for the award, and will not be reversed on appeal if that discretion is
not abused. Yount v. Yount, 91 S.W.3d 777, 783 (Tenn. Ct. App. 2002); Evans, 2004 WL
1882586, at *17 (Tenn. Ct. App. Aug. 23, 2004). A trial court abuses its discretion when it
applies an incorrect legal standard, or reaches a decision that is not logical, bases its decision

                                               -8-
on a clearly erroneous assessment of the evidence, or uses reasoning that causes an injustice
to the complaining party. Bailey v. Blount Cnty. Bd. of Educ., 303 S.W.3d 216, 237 (Tenn.
2010) (citing State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008)).




        An award of fees should be “just and equitable under the facts of the case.” Sherrod
v. Wix, 849 S.W.2d 780, 785 (Tenn. Ct. App. 1992). Considering the record as a whole in
this case, we find the trial court did not abuse its discretion in denying Wife her attorney’s
fees at trial.

       Wife also seeks her attorney’s fees on appeal pursuant to the same statutory authority.
“Whether to award attorney’s fees on appeal is a matter within the sole discretion of this
Court.” Hill v. Hill, 2007 WL 4404097, at *6 (Tenn. Ct. App. Dec. 17, 2007) (citing Archer
v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995)). In determining whether an award
of fees on appeal is appropriate, we consider “the ability of the requesting party to pay the
accrued fees, the requesting party’s success in the appeal, whether the requesting party
sought the appeal in good faith, and any other equitable factor that need be considered.” Hill,
2007 WL 4404097, at *6 (citing Dulin v. Dulin, 2003 WL 22071454, at *10 (Tenn. Ct. App.
Sept. 3, 2003)).

        We grant Wife an award of the attorney’s fees she has incurred on appeal. We remand
to the trial court for a determination of the amount of the award.

                                      IV. C ONCLUSION

       For the reasons stated above, we reverse the trial court’s judgment denying Wife’s
motion to extend her alimony and hold that she is entitled to alimony in futuro in the amount
of $2,000 per month beginning in December 2012. We affirm the trial court’s judgment
denying Wife her attorney’s fees incurred at trial, but grant Wife’s request for attorney’s fees
incurred on appeal. Costs of this appeal are taxed to the appellee, James Emery Owens.




                                                           ____________________________
                                                           PATRICIA J. COTTRELL, JUDGE




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