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# FILED January 28, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

_____________________________________________________________________________ JAMES A. TURNER, Davidson Circuit No. 95D-2811 C.A. No. 01A01-9704-CV-00188 Plaintiff, Hon. Muriel Robinson, Judge v. LINDA M. TURNER, Defendant. DOT DOBBINS, Nashville, Attorney for Plaintiff. PHILIP W. DUER, Na

shville, Attorney f

or Defendant. MODIFIED IN PART AND AF FIRMED IN PART Opinion Filed:

____________________________________________________________________________ TOMLIN, Sr. J. James A. Turner (“husband”) filed suit for divorce against Linda M. Turner (“wife”) in the Circuit Court of Davidson County. Wife filed an answer and a counterclaim. Following a hearing, the trial court declared both parties divorced pursuant to T.C.A. § 36-4-129. In addition to making
a division of property the court awarded wife alimony in futuroin the amount of $350 per month until the marital home

was sold and $650 per mo nth thereafter

. The sole issue on a

ppeal is whether or not the trial cou rt erred in awarding wife alimony in futurorather than rehabilitative alimony. For the reasons hereinafter stated, we are of the opinion that the alim

ony awarded shou

ld have been reha

bilitative in natur

e, and hereby mod

ify and affirm. Relevant facts are not in d

ispute. At the time

of divorce, husband and wife wereeach fortyone years of age. They had been married twenty-three years and had two adult children. Husband had received some c

ollege training. A

t the time of the divo

rce he was work

in g as a co mputer analyst for Deloitte and Touche, with a gross annual income of approximately

$65,000. The wife had also taken a few college courses and at the time of the divorce was employed at two jobs, one
as a full-time receptionist and one as a part-time cashier. Wife’s gross income from both jobs was approximately

$23 , 000 per year. Her other employment experience included work as an educational assistant, a library aide, and as a teacher at a day care ce nter. Wife testif

ied regarding the co st of various educ ational courses t

hat would help her

increase2

he r earning potentia

l in her current r

eceptionist’s job.

The cost for these

class es wer e approximately

$100 per month. If she obtained a degree at a local junior college wife testified that the cost would be approximately $10,000. Our scope of review

is de novo upon the record i n the trial court. F

indings of fact co

me to this court with a presumption of cor r ectness, which we must affirm unless the evidence preponderates against these findings. Rule 13(d) T.R.A.P. T.C.A. § 36-5-101(d)(1) (1996 & Supp. 1997) sets fo rthwhat type of alimony should be awarded by the courts of this state. The courts of this state have interpreted this section as creating
a legislative preference for rehabilitative alimony over alimony in futurowhenever possible. See Storey v. Storey , 835 S.W.2d 593, 597 (Tenn. App. 1992). After reviewing this record, we are of the opinion that justice would be better served by the awarding of rehabilitative alimony to wife rather than alimony in futuro , but with some modifi cation as to amount

. Wife is in her early forties, with many productive years ahead of her prior to retir

ement. While she has limited work experience, there are no barriers to interfere with her training such as extensive debt or minor children. We note that the trial court did not award wife any alimony for
e ducation al purposes because of the substantial proceeds that she would receive from the distribution of marital property. Nonetheless, wife should not have to deplete her assets in order to further her career. Wife testified that she could pursue a degree a nd still keep her full-time employment

by replacing the time she spent each week on her part-time job with a

15 hour course load at a local college. According to her testimony, this would

permit her to obtai

n her degree in a minimum of two years. However, in orde r to do this she would have sacrifice a portion of her income in order to accomplish this goal. On the other hand, wife’s testimony in the form of her statement of income and expenses shows a net loss of $974 per month. In awarding wife rehabilitative alimony rather than alimony in futuro, nonetheless this court feels that the financia

l trauma of being r

elegated to a sing

le person, and being self-supported, should be buffered somewhat. Accordingly, we modify the trial court’s award of alimony in futuro to an award of rehabilitative alimony, establishing the amount of $850 per mont h for si x years. The trial court’s judg

ment is otherwise in

all other aspects affirme

d. Costs in this cause

on appeal, are taxed one-half to husband and one-half to wife for which execution may issue if nece ssary.3 ______________________ __________________

_ TOMLIN, SR. J.

________________________________________ CRAWFORD, P. J. W. S. (C ONCURS )

________________________________________ FARMER, J. (C ONCURS )