                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                        October 16, 2002 Session

                 HELEN LOUISE HALL v. JAMES WILLIAM HALL

                  A Direct Appeal from the Chancery Court for Tipton County
                  No. 17,456  The Honorable Martha B. Brasfield, Chancellor



                     No. W2002-00786-COA-R3-CV - Filed November 19, 2002


        Plaintiff-wife sued defendant husband for a divorce on the grounds of inappropriate marital
conduct and irreconcilable differences. After a nonjury trial, a divorce was awarded to wife and she
was awarded alimony in futuro and part of her attorney fees. Husband has appealed the award of in
futuro alimony. We affirm.


  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed and
                                        Remanded

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY KIRBY LILLARD, J., joined.

Walter Bailey, Memphis, For Appellant, James William Hall

Paul E. Lewis, Millington, For Appellee, Helen Louise Hall

                                                    OPINION

        Plaintiff, Helen Louise Hall (Wife), sued defendant, James William Hall (Husband), for
divorce on the grounds of irreconcilable differences and inappropriate marital conduct. Husband
filed an answer denying the material allegations of the complaint. A nonjury trial was held on
November 29, 2001. The parties have stipulated that the statement of the evidence1 prepared by
defendant’s counsel contains “all of the evidence offered or introduced on the trial of this case, and
all objections, rulings, orders and all other proceedings of this trial.” The statement of the evidence
was approved by the trial court, and we quote the relevant part thereof at length:




         1
          The do cument was titled Defend ant’s Narrative B ill of Exceptions” regarding the evidence, under Rule 24,
Appellate Rules of Procedure. We will refer to it only as the statement of the evidence.
       The Plaintiff, Helen Louise Hall, and the Defendant, James
William Hall, married in 1982, and had one child born during the
marriage who had become 18 years of age at the time of the
November 29, 2001 trial date.

       The parties owned real estate that was purchased in 1985 for
$25,000.00, and served as the marital residence, and at the time of the
hearing herein had a depreciated value of $20,000.00, with need of
some repair. It has an equity value of $6,000.00.

      The marriage of the parties lasted until sometime in 1998
when the Defendant left the Plaintiff at the marital residence in
Tennessee, and resumed living with his previous wife in the State of
Arkansas.

        After the Defendant left the Plaintiff, he entered into a consent
order to pay child support in the amount of $643 monthly in June of
1999. The Plaintiff testified that Defendant failed to contribute other
than the child support to the household expenses and though
employed, she had to borrow money from her sister, and was unable
to make the mortgage payments since she could not rely on
contributions from the Defendant any longer. She testified that she
went into Chapter 13 of the United States Bankruptcy Act and is
currently paying her monthly mortgage payments and other debts
through the bankruptcy plan which will terminate some time in April
of 2002.

       The Plaintiff testified that she has been employed at Turner
Dairy since 1995, and earns approximately $1,850 per month from
which she nets $750 after the deductions from the Chapter 13 plan of
the Bankruptcy Act. Her employment at Turner Dairy primarily
consists of loading dairy products on the delivery trucks and includes
items up to 60 pounds.

        Plaintiff is now 52 years of age, finished the ninth grade, and
constantly held odd jobs in her work history until she was employed
by Turner Dairy in 1995. She is in good health except for a problem
she occasionally has with a knot on her foot. She has health
insurance at her employment, and participates in a 401-K retirement
benefit program which is valued at $1,000.00. Her assets include a
1993 Mitsubishi automobile valued at approximately $2,000.00 with
a debt remaining on it of $2,935.00 and household goods she valued
at $500. The Plaintiff admitted that she went to Tunica, Mississippi,


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               and gambled at casinos approximately three times per month and won
               $16,000.00.

                       The Defendant stipulated to the ground of inappropriate
               marital conduct and admitted leaving the Plaintiff in 1998 to return
               to his former wife.

                      The Defendant testified that he is 57 years old, has worked at
               Wire and Iron Works, Inc. in Memphis, Tennessee, and earns
               approximately $1,100 weekly for a 40 hour week. After deductions,
               he receives a net pay of $729.83. Defendant has no retirement or
               pension plan with his company and owns no real or personal property
               of value except a 1979 El Camino automobile.

                      The Defendant has experienced some health problems, and in
               January of 2001 suffered a heart attack, and was hospitalized for
               approximately seven days, and lost approximately two weeks from
               his employment. He also had a second heart attack in October of
               2001, which required a second hospital confinement of four days and
               some time off from work. Although he has health insurance at his
               employment, he incurred for his medical treatment a debt of $2,500
               over the amount of his insurance coverage which is outstanding.

                      The parties agreed that the Plaintiff would be awarded the
               house, and she would pay the house notes and hold the Defendant
               harmless regarding any loans. They further agreed that the Defendant
               should retain $2,000 that he has in his personal savings.

               ******************************************************

                       Both parties testified that their Affidavit of Income and
               Expense was correct, except that the Defendant’s medical expenses
               are ongoing, and the twenty-five hundred dollars ($2,500) per month
               figure that he showed for medical expenses was inaccurate, but that
               amount was simply owed for his latest medical treatment. He does
               not have twenty five hundred dollars ($2,500) in medical expenses
               each month, and in fact is covered by medical insurance.


        By final decree of divorce entered March 21, 2002, plaintiff was granted an absolute divorce
on the grounds of inappropriate marital conduct, and the decree further provides:




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               IT FURTHER APPEARS that the Plaintiff is in need of alimony in
               futuro and that the Plaintiff is not capable of being economically
               rehabilitated based on her age, education and work experience.

               ******************************************************

               That the Defendant shall pay to the Plaintiff the sum of thirteen
               hundred dollars ($1,300) per month as and for alimony in futuro for
               the sum of five months with the first payment being due on December
               1, 2001, and the first day of each consecutive month for 5 consecutive
               months.

               IT IS FURTHER ORDERED that the Defendant shall pay the sum
               of nine hundred dollars ($900) per month as and for alimony in futuro
               beginning on May 1, 2002, and the first day of each consecutive
               month until further modified by the Court.

               IT IS FURTHER ORDERED that the Defendant shall pay the sum
               of seventeen hundred and fifty dollars ($1,750) as a partial attorney’s
               fee award as attorney’s fee for the Plaintiff, and that this amount is
               hereby reduced to judgment for which execution issue.

       Defendant appeals and presents the following issues for review.

               1.      Whether the trial court erred in awarding the Plaintiff
                       alimony.

               2.      Whether the trial court erred in awarding the Plaintiff alimony
                       in futuro.

       We will consider the issues together.

       Guidelines for the determination of alimony are set forth in T.C.A. § 36-5-101(d) (Supp.
1997). The trial court is afforded wide discretion concerning the award of alimony, and an appellate
court should reverse the trial court’s findings only in instances in which this discretion “has
manifestly been abused.” Hanover v. Hanover, 775 S.W.2d 612, 617 (Tenn. Ct. App. 1989); Ford
v. Ford, 952 S.W.2d 824, 827 (Tenn. Ct. App. 1996).

       Section 36-5-101(d)(1) provides a list of factors that must be considered by a court in
determining whether to award rehabilitative support and maintenance to an economically
disadvantaged spouse. Although no single factor is necessarily controlling, consideration of “all
relevant factors” is mandatory. Under T.C.A. § 36-5-101(d)(1), relevant factors include:



                                                -4-
               (A) 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;

               (B) 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 earning capacity to a reasonable level;

               (C) The duration of the marriage;

               (D) The age and mental condition of each party;

               (E) The physical condition of each party, including, but not limited to,
               physical disability or incapacity due to a chronic debilitating disease;

               (F) 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;

               (G) The separate assets of each party, both real and personal, tangible
               and intangible;

               (H) The provisions made with regard to the marital property as
               defined in § 36-4-121;

               (I) The standard of living of the parties established during the
               marriage;

               (J) 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;

               (K) The relative fault of the parties in cases where the court, in its
               discretion, deems it appropriate to do so; and

               (L) Such other factors, including the tax consequences to each party,
               as are necessary to consider the equities between the parties.


        Defendant first presents for review the issue of whether the chancellor erred in awarding
Plaintiff alimony. The basis for this issue is Defendant’s assertion that the record on appeal does not


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support the chancellor’s finding that Plaintiff is economically disadvantaged pursuant to the factors
set forth in T.C.A. § 36-5-101(d)(1).

       In the concluding paragraph of his appellate brief, and in his opening statement to this court
during oral argument, Defendant’s counsel rephrased the primary issue in this case as a question of
whether the trial court failed to properly apply the factors set forth in § 36-5-101(d)(1). For the
reasons that follow, we reject Defendant’s assertion that the evidence in the record does not support
an award of alimony or, in the alternative, that the chancellor failed to properly apply the § 36-5-
101(d)(1) factors.

       Defendant’s contention that the record does not support an award of alimony is based on his
individual analysis of each § 36-5-101(d)(1) factor. While Defendant’s analysis contains a certain
degree of merit, we are not convinced that the chancellor abused her discretion in granting Plaintiff
alimony. In his brief to this court, Defendant disputes the chancellor’s analysis, or alleged lack of
analysis, of the § 36-5-101(d)(1) factors by highlighting several facts that Defendant interprets as
weighing against an award of alimony.

        Defendant supports his assertion that Plaintiff was not economically disadvantaged by
pointing to the fact that Plaintiff had a retirement savings account, was awarded essentially all of the
marital property, including the marital home and her automobile, and possessed $16,000.00 in
gambling winnings – a fact that Defendant contends the trial court failed to consider. Defendant
further asserts that the trial court miscalculated Plaintiff’s monthly expenses, reasoning that the
record indicates that Plaintiff nets $754.00 per month “after most of her major debts have been
deducted from her paycheck pursuant to the Chapter 13 plan.”

        In addition to the trial court’s alleged failure to consider Plaintiff’s gambling earnings as part
of her separate assets, Defendant also contends that the trial court “made no findings” with regard
to Plaintiff’s tangible and intangible contributions to the marriage, or the potential tax consequences
of the alimony award. Defendant reasons that, “in the absence of any such evidence” with regard
to these factors, § 36-5-101(d)(1)(J) and § 36-5-101(d)(1)(L) do not support the court’s award of
alimony.

          However, looking at the evidence contained in the statement of the evidence and the
chancellor’s findings in her Final Decree of Divorce, we do not conclude that the trial court
committed an abuse of discretion. The most critical factors in awarding alimony are need and the
ability to pay. Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995) (citing Loyd v. Loyd,
860 S.W.2d 409, 412 (Tenn. Ct. App. 1993); Lancaster v. Lancaster, 671 S.W.2d 501, 503 (Tenn.
Ct. App. 1984); Aleshire v. Aleshire, 642 S.W.2d 729, 733 (Tenn. Ct. App. 1981)). From our
reading of the evidence, we find support for the chancellor’s conclusion that Plaintiff is economically
disadvantaged, and the implication that Plaintiff has demonstrated need and Defendant is financially
capable of providing maintenance. Although Defendant disputes the trial court’s calculation of
Plaintiff’s monthly expenses, it is undisputed that Defendant’s monthly net income far exceeds that
of Plaintiff. Further, the evidence indicates that Plaintiff was forced into Chapter 13 bankruptcy as


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a result of her inability to make mortgage payments and keep up with other monthly expenses.
Additionally, there is no evidence in the record to indicate that Plaintiff is capable of securing better
employment in her current condition or successfully completing training or adult education courses
that would allow her to earn a more lucrative income in the future.

        As for Defendant’s assertion that the trial court failed to properly apply the factors of § 36-5-
101(d)(1) to the case at bar, we need only quote from the chancellor’s Final Decree of Divorce to
refute this argument.

                IT FURTHER APPEARS that the Court has taken into
                consideration the factors contained in T.C.A. § 36-5-101, and
                specifically finds that all of these factors, with the exception of (F),
                indicate that the Plaintiff is economically disadvantaged and not
                subject to economic rehabilitation.

                IT FURTHER APPEARS that the Plaintiff has a ninth-grade
                education and is 52 years of age and has consistently held odd jobs
                during the marriage until she began work for Turner Dairies in 1995.
                While she has minor health problems, she does have health insurance
                at her employment. At Turner Dairies, she acts as a laborer and loads
                trucks with various dairy products in the approximate weight of 60
                pounds per case and does this from 3 a.m. to 11 a.m. each day. The
                Court specifically finds that the Plaintiff is economically
                disadvantaged and is not capable of being economically rehabilitated.
                Pursuant to the affidavits filed by the Parties, the Plaintiff has
                expenses of approximately two thousand dollars ($2,000) per month
                and nets seven hundred fifty-four dollars per month after deductions
                for bankruptcy, car payments and other debts. The Court further finds
                that the Plaintiff should not decrease her standard of living as the
                result of the misconduct of the Defendant.

                IT FURTHER APPEARS that the Defendant is 57 years of age and
                is employed as a shop foreman at Memphis Wire and Iron Works,
                Inc., and has been since 1985 and earns approximately fifty-three
                thousand, six hundred fifty-nine dollars ($53,659) per year with his
                current monthly gross to be approximately four thousand, seven
                hundred sixty-six dollars ($4,766) per month. The Defendant has a
                tenth grade education and has transferrable job skills, and pursuant to
                the affidavit filed by the Defendant, the Defendant has a current
                monthly gross of approximately four thousand six hundred and sixty-
                six dollars ($4,666) with monthly expenses of sixteen hundred fifty-
                three dollars ($1,653).



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        In her final decree, the chancellor specifically cites to § 36-5-101(d)(1) and proceeds to
address several facts that contributed or weighed in her decision to award alimony. From the passage
cited above, it is obvious that the chancellor considered the age, education, income, earning capacity,
expenses, and current employment of each party. Although the chancellor does not provide a
detailed analysis of every § 36-5-101(d)(1) factor, we find that she presents an adequate comparison
of the parties’ economic and occupational positions, so as to justify a finding that Plaintiff was
economically disadvantaged and therefore deserving of an award of alimony.

        Defendant’s second issue on appeal is whether the trial court erred in awarding Plaintiff
alimony in futuro. Defendant argues that even if the trial court’s finding that Plaintiff was entitled
to an award of alimony was correct, Plaintiff is entitled only to rehabilitative alimony as opposed to
long-term support. T.C.A. § 36-5-101(d)(1) sets forth the guidelines for determining whether
rehabilitative alimony should be granted over an award for long-term spousal maintenance.

               It is the intent of the general assembly that a spouse who is
               economically disadvantaged, relative to the other spouse, be
               rehabilitated whenever possible by the granting of an order for
               payment of rehabilitative, temporary support and maintenance.
               Where there is such relative economic disadvantage and rehabilitation
               is not feasible in consideration of all relevant factors, including those
               set out in this subsection, then the court may grant an order for
               payment of support and maintenance on a long-term basis or until the
               death or remarriage of the recipient except as otherwise provided in
               subdivision (a)(3). Rehabilitative support and maintenance is a
               separate class of spousal support as distinguished from alimony in
               solido and periodic alimony.

        The trial court should only grant alimony in futuro when rehabilitation is not feasible.
Storey v. Storey, 835 S.W.2d 593, 597 (Tenn. Ct. App. 1992). Thus, there must be a threshold
determination by the trial judge that, considering all relevant factors, rehabilitation of the
economically disadvantaged spouse is not feasible. Id. In her Final Decree of Divorce, the
chancellor concluded that, after considering all of the factors set forth in T.C.A. § 36-5-101(d)(1),
“with the exception of (F),” the Plaintiff was economically disadvantaged and ultimately not subject
to economic rehabilitation.

        In his brief, defendant likens Plaintiff to the plaintiff-wife in Kincaid v. Kincaid, 912 S.W.2d
140 (Tenn. Ct. App. 1995). In Kincaid, this court modified the trial court’s award of alimony in
futuro to an award of rehabilitative alimony based on our finding that the wife was a candidate for
rehabilitation because of her previous employment experience and the availability of adult education
courses that would allow wife to overcome the obstacles standing between her and a higher paying
job. Id. at 144. Defendant notes that, similar to the wife in Kincaid, plaintiff is a middle-aged
woman of limited education. He further asserts that our holding in Kincaid on the issue of



                                                  -8-
rehabilitative alimony supports a conclusion that plaintiff could be economically rehabilitated
through further education or job training.

        We reject defendant’s assertion, finding that Plaintiff is distinctly different from the plaintiff-
wife in Kincaid. Despite similarities in age and education, there are not enough shared variables to
equate the respective plaintiffs. Prior to and during part of her marriage, the Kincaid wife enjoyed
a “successful career handling claims for various insurance companies.” Id. According to the
opinion, the plaintiff-wife received promotions, raises, and monthly honors during her employment.
Id. Despite her past professional success, plaintiff-wife felt that she was no longer qualified for
many jobs due to her lack of computer skills. Id. We determined that adult education courses in
computer literacy would “help her overcome this hurdle.” Id.

         In the case at bar, there is no indication in the record that Plaintiff is a candidate for continued
education or training, or that such education or training would even be relevant or available. Plaintiff
is a 52 year-old woman with a ninth-grade education, who has worked exclusively as a laborer with
Turner Dairy since 1995. Defendant has offered no evidence that Plaintiff is qualified for any job
above that of a laborer, or that Plaintiff could be qualified for a higher position with increased
education. Rather, the record provides that Plaintiff has worked in the same or similar job for the
past seven years. With regard to Plaintiff’s work performance, there is no evidence to suggest that
Plaintiff has received any promotions, unscheduled raises, or monthly honors during the course of
her employment with Turner Dairy. We, therefore, cannot agree with defendant’s reliance upon
Kincaid as precedent demanding an award of rehabilitative alimony rather than alimony in futuro.

       Applying the factors set forth in T.C.A. § 36-5-101(d)(1), we agree with the chancellor’s
finding that “the Plaintiff is not capable of being economically rehabilitated based on her age,
education and work experience.”

        Several other § 36-5-101(d)(1) factors weigh in support of an award of permanent alimony.
The record indicates that Plaintiff was forced to file for Chapter 13 bankruptcy in order to satisfy her
monthly mortgage payments. In addition to her mortgage debts, the chancellor found that Plaintiff
has monthly expenses of approximately $2,000.00. These expenses far exceed Plaintiff’s monthly
net income, even after “deductions for bankruptcy, car payments, and other debts.” Further, despite
Plaintiff’s testimony that she won $16,000.00 in gambling earnings, there is no evidence that she still
possesses any portion of her winnings. Of some importance is the fact that Defendant admitted to
abandoning his marriage to Plaintiff to return to his former wife in Arkansas.

        Although some of the § 36-5-101(d)(1) factors, when applied to the case at bar, could be
interpreted as weighing in favor of an award of rehabilitative alimony, we find that the chancellor’s
discretionary decision was not “based on a misapplication of the controlling legal principles or on
a clearly erroneous assessment of the evidence.” Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 709
(Tenn. Ct. App. 1999). Further, we determine that the trial court's decision was not against logic or
reasoning, and did not cause an injustice or injury to the complaining party. Marcus v. Marcus, 993



                                                    -9-
S.W.2d 596, 601 (Tenn. 1999); Douglas v. Estate of Robertson, 876 S.W.2d 95, 97 (Tenn. 1994).
From the facts provided in the record, we find no abuse of discretion by the trial court.
        Accordingly, the decree of the trial court is affirmed and the case is remanded to the trial
court for such further proceedings as may be necessary. Costs of the appeal are assessed against the
appellant, James William Hall, and his surety.



                                              __________________________________________
                                              W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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