### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 1999 Session
RICHARD HAROLD DEMPSEY v. SANDRA MUSCAT DEMP SEY
Appeal from the Circuit Court for Williamson County No. 97555 Henry Denmark Bell, Judge

No. M1998-00972-COA-R3-CV - Filed July 21, 2000

This appeal inv olves the award of alimony and the division of one particular piece of marital property at the dissolution of a nineteen year marriage. Mr. Dempsey appeals the award of alimony in futuro rather than rehabilitative alimony, the amount of alimonyas beyond his ability to pay, and the a ward of a tax refund for the year of the divorce to Ms. Dempsey. We modify the awar d of alimony in futuroto an award of rehabilitative alimony and affirm the distribution of mar ital property. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as Modified and Remanded

P ATRICIA J. C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILLIAM B. C AIN , J., joined.
James L. Curtis, Nashville, Tennessee, for the appellant, Richard Harold Dempsey.
Edward P. Silva, Franklin, Tennessee, for the appellee, Sandra Muscat Dempsey.

OPINION

This appeal involves the award of alimony and the division of one particular piece of marital proper ty at the dissolution of a nineteen year marriage. Mr. Dempsey (“Husband”) appea ls th e award of alimony in futurorather than rehabilitative alimony and the award of the entire tax refund to Ms. Dempsey (“Wife”). For the following reasons we affirm the trial court’s order as modified.

I.

At the time of the divorce, the parties’ two children were thirteen and sixteen y ears old. Husband, 41, was the primar y breadwinner, e

arning between $

45,000 and $65,000

depending on his overtime and bonuses. Wife, 38, did not work outside the home for most of themarriage, but had begun to work part-time in the last few years, earning between $7.00 and $8 .00 per hour. Wife-2-

testifi ed that she would like to go to school, but couldn’t afford it. Wife and the childr e n accompanied

Husband to Tennessee in 1994 when he moved from Michigan to work for Saturn. The parties purchased a fou

r bedroom house in

Franklin, valued b

y them at the time

of trial at $190,000, butencumbered

by two mortgages totaling $104,709. At the time of the divorce, theparties were living in separate parts of the marital home, but Husban d planned to get an apartment after the property was divided.

The parties filed sep

arate petitions for divor

ce, each alleg

ing irreconcila

ble differences and inappropriate

marital conduct. At trial, Wife moved to include adultery as grounds for divorce. The court consolidated the cases, heard the evidence and g ranted Wife a divorce on grounds of Husband’s post-separation adultery. The court awarded sole custody of the children to Wifewith standardvisitation to Husband. The court ordered Husband to pay $780 per month aschild support. The court then ordered Husband to pay Wife $700 per month as alimony in futuro , continuing “until the death or remarriage of Mrs. Dempsey.”

The court equall y divided the stock, savings bonds and ve sted retirement b

enefits accumulated

during the marriage. The marital home was ordered to be re tai ned by the parties as “tenants in common in equal shares subject to wife’s right of exclusive occupancy until the parties’ younger child attains the age of majority [or] wife remarrie s, whichever first occurs.” Wife was made responsible for the first mortgage, as well as the taxes and insurance. Husband was ordered to make “such payments on the second mortgage debt as necessary to prevent foreclosure.”

Husbandretained his truck, valued at $9,000, and Wife retained her car, valued at $500. Husbandwas ordered to pay all marital debts, except the first mortgage. He was also ordered to pay $2,500 toward Wife’s attorney fees. The court awarded Wife the 1997 tax ref und of $3,448 “to be utilized in purchasing a substitute vehicle for Mrs. Dempsey.”

II.

Husbandappeals the award of alimony and the award of the entire tax refund to Wife. Our review is de novo and the record before us is accompanied by a presumption of correctness which
we must honor unless we find that the evidence preponderates against the trial court's findings of fact. See Tenn. R. App. P. 13(d ); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court has wide discretion in the matters under review, alimony and the division of marital property. See Harrington v. Harrington, 798 S.W.2d 244, 245 (Tenn. Ct. App. 1990).
III. The Alimony Award

Husbandfirst challenges the award of alimony in futuroand argues that the trial court erred in fail ing to consider whether Wife could be rehabilitated in light of the legislative preference for rehabilitative alimony codified in Tenn. Code Ann. § 36-5-101(d)(1) (1996). He also argues that the trial court erred in c

onsidering only Wif

e’s need for ali

mony, but not his abili

ty to pay. Wife poin

ts to Husband’s fault a

nd responds that, a

s the innocent sp

ouse, she should

not be left in a wor

se1 Tenn. Code Ann. § 36 -5-101(d)(1) st

ates:

It is the intent of the general assembly that a spouse who i s econo mically disadvantaged, relative to the other spouse, be rehabilitated whenever possible by the granting of an o rder for payment of rehabilitative, temporary support and maintenance. Where

there is relative economic disadvantage and rehabilitation is not feasible in consideration o

f allfactors, including those set out in this subsection, the court may grant an orde

r for payment of s

upport 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 s upport as distinguished from alimony in solido and periodic alimony. . . .

-3- financial position than she enjoyed during the marriage.
A. The Type of Alimony

Tennessee law provides for three types of spousal support: (1) rehabilitative alimony, which provides modifiable, temporary support for a period of adjustment sufficient to enable a dependent spouse to become partia

lly or to tally self-sufficient; (2) periodic alimony or alimony in futuro , a continuing, but modifiable, sup port obliga tion to an economically disadvantaged spouse; and (3) alimony in solido , an unmodifiable lump sum award which may be paid over time. See Tenn. Code Ann. § 36-5-101(d)(1 ) (Supp. 1999); see also Loria v. Lori a , 952 S.W.2d 836, 838 (Tenn. Ct. App. 1997). The legislature’s stated pre ference is for rehabilitative alimony whenever possible. 1 See Tenn. Code Ann. § 36-5-101(d)(1).

Our Supreme Court has addressed the statutes on alimony a number of times, most recent

ly stating:

In Self, we held that § 36-5-101 reflects an obvious legislative policy to eliminate the dependency of one ex-spous e upon the other and to relieve the parties of “impediments

incident to the disso

lved marriage.”

Accordingly, ali

mony in futuro should be awarded only

when the trial court finds that “economic rehabilitation is not feasible and long-term support is necessary.”

Crabtree v. Crabtree , 16 S.W.3d 356, 359 (Tenn. 2000) (quoting Self v. Self , 861 S.W.2d 360, 361 (Tenn. 1993) (citations omitted).
Thus, one task of

a t rial court in deciding what type of spousal support, if any , should be awarded is to determine whether rehabilitation of the economically

disadvantaged spouse is feasible. The question raised in this case, however, is the proper measure of econ omic rehabilitation to be used in determining if the disadvantaged spouse’s attainment of

that level is feas

ible. The issue is squarely presented

herein. In making his

argument that Wife can be rehabilitated, Husband points-4-

to the trial court’s remark, “I think she certainly is not unrehabilitatable.” Th at remark, h owever, must be considered in its context. At that point in the trial,

the court was con

sidering the disp

arity in the parties’ earning capacities. The court said,

...where you

had a disparity in income, which you’ve g ot here, assuming she sta ys at seven an hour, wh

ich I th ink for the foreseeable future you can’t conc lude anything else, although I

think she certain

ly isnot unrehabilitata

ble to get better status than that, but in any ev ent, he’s – if she makes $7.00 an hour and he makes his base and nothing else, there’s still a big disparity.

The court’s remark about Wife’s possible rehabilitation clearly meant that he thought it

was possible that Wife could earn more than she was making at the time, not thatshe could earn a salary comparable

to Husband’s. Wife, still young and having a desire to go back to school, can likely earn
more than she was making at the time of the divorce. The level of her potential earnin

gs is less clear, and there is no indication that she could be rehabilitated to earn a salary comparable to the $45,000 to $60,000 that Husband earned at the time of the divorce. Wife did not work out side the home during most o f

the almost nineteen year marriage, while Husband’s earnings reflect his work experience gained during that time.

Consideration of

the economic level to be used to determine feasibility of rehabilitation has notbeen squarely addressed in most instances. Instructive, however, are st

atements by

our courts on the goals of r

ehabilitative supp

ort.

The concept of reha

bilitation in

ordinary usage “involves the process of rest oring an individual . . . to a useful and constructive pl ace i n society through some form of vocational . . . retraining o r through relief, financial aid, or other recons tructive measure.” Webster’s Third New International Di ctio nary 1949 (1961). In legal pa rlance and in connection with

ali mony, rehabilitation “c ontemplates sums necessary to assist a divorced p erson in rega ining a useful and constructive role in society through vocational or therapeutic training
or retraining and for the further purpose of preventing financ ial hardship on society or individual during t he rehabilitative process.” Black’s Law Dictionary 1157 (5 th ed. 1979). Both definitions contemplate

the enhancement of an individual’s capacity to function independently

and with economic

security in society. Likewise, the statute in question expresses the General Assembly’s intent that the economically

disadvantaged spouse be rehabilitated whenever possible and provides guidelines for the co urt to consider when “determining the nature, amount, length of term, and manner of payment.” Th e concept of rehabil itation in the statut

e is the improvement

of one’s present and fut ure capacity to function independently in society.2 By statute, courts a

re also directed to consider as a relevant factor the “standard of living of the parties established during the marriage.” Tenn. Cod e Ann. §36-5-101( d)(1)(I). T

hat factor is most often applied in determination of the amount of support, but the statut e authorizes its consideration in determination of the nature of support.
-5- Isbell v. Isbell, 816 S.W.2d 735, 738-39 (Tenn. 1991) (emphasis added). Rehabilitative alimony has also been described

as providing “a

temporary

income during a period of adjustment and effort of the dependent spouse to become partially or totally self-sufficient.” Loria, 952 S.W.2d at 838.

The statute establishing the legislative preference for rehabilitative support does not define reha b ilitation and gives little guidance regarding the level of rehabilitation which should be considered

in determining whether

rehabilitation is feasible. However, the legislature has directed that “indetermining whether the granting of an order for payment of support and maintenance to a party is appropriate, and

in determining th

e nature, amount,

length of term, a

nd manner of pay

ment, the court s hall consi der all rele vant factor s, includi ng:

(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 o

f a party to

secure further

education and tra

ining to improve such part

y’s earning capacit

y to a reasonable le

vel; Tenn. Code Ann. § 36-5-101(d)(1) (emphasis added).
Thus, a court

should determine whether it is feasible for a disadvantaged spouse to improve his or her earning capacity to a “reasonable level.” Whether that “reasonable level” is related to the standardof living prior to the divorceor to the other spouse’s earning capacity is not well-settled. 2 In some cas es, the cou rts hav e con sid ered the app rop ria ten ess of al imo ny in futurowhere the disadvantaged

spouse was not capable of rehabilitation such that his or her earning capacity w

ould be comparable to the other spouse’s or could support a standard of living approaching that enjoyed during the marriage. For example, in Lon g v. Long , 968 S.W. 2d 292 (Tenn. Ct. App. 1997), this court affi rme d th e tr ial cou rt’ s aw ard o f al imo ny in futuroon t he basis of a twenty-seven yea r marriage, during which the husband was “building a career outside the home,” the wife’s lack of a college education and

ve ry limited work experience outside the home, and the wife’s medical problems. Long , 968 S.W.2d at 294. The court further found:

The record clearly shows that the wife is a disadvantaged

spouse and that rehabilitative a

limony is not feasible because of her lack of work experience and her medical problems. It is unlikely that she w ill
ever be able to approach the level of income which her hus band is able to enj oy. We a re of the opi nio n th at t he al imo ny in futuro awarded to Ms. Long is necessary for her to continue to maintain a reasonable

standard of living

which is at least som ewhat comparable to that which s

he experi

enced befo

re the bre

akup of h e r-6- marriage. Thus, we reject the husband’s challenge to the trial court’s
awar d of ali mon y in futuro

. Id

. at 295 (emphasis a

dded); see also Elkins v. Elkins , No. 03A01- 9812-CH-004 15, 1999 WL 1076940 at *3 (Tenn. Ct. App. Nov. 30, 1999) (perm. app. denied July 10, 2000)
. Analogously, o ur Supreme Court has directed that, “While alimony is not intended to provi d e a former spouse with relative financial ease, we stress that alimony should be awarded in such a way that the spouses approach equity .” Aaron v. Aaron , 909 S.W.2d 408, 411 ( Tenn. 1995) (emph

asis added), see also Tenn. Code Ann. § 36-5-101(d)(1) (directing that the court consider the recipient spouse’s economic disadvantage “relative to the other spouse”).

There are also a number

of cases finding

rehabilitation to b

e feasible or not feasible without express discussion of the le vel of economic r

ehabilitation that

the disadvantag

ed sp ouse wa s expected to achieve. See, e.g. Goodman v. Goodman , 8 S.W.3d 2 89, 293 (Tenn. Ct. App. 1999) (rehabilitation not feasible); Anderton v. Anderton , 988 S.W.2d 675, 682-83 (Tenn. Ct. App. 1998) (rehabilitation feasible); Kin caid v. Kincaid , 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995) (rehabilitation feasible); see also Janet L. Richards, Richards on Tennessee Family L aw § 12-4(a) (Supp. 2000) (questioning whether the Loria meant “not qualifying for welfare” or “a c omparison betweenthe relative economic positions of the parties” when it discussed “self sufficiency” for the depe ndent s pouse). In a recent opinion, however, the Supreme Court has addressed the topic of rehabilitative alimony and, although not addr

essing the spec

ific issue u nder discussion, provided guidanceapplicable herein. In Crabtree , the C our t va cat ed an awar d of ali mon y in futuroin conjunction with an award of rehabilitative alimony. See Crabtree , 16 S.W.3d at 361. In reviewing this court’s ruling in the case, the Supreme Court stated:

In this case, the Court of Appeals recognized that the award of rehabilitative alimony would assist Ms. Crabtre

e in realizing he

r full economic

potential. The intermediate appellate court, however, was concerned that rehabilitative alimony would:

notplace her anywhere

near an equal footing with Husband nor will she be able to continue living in the manner in which sh e had become accustomed

during this twenty-three ye ar marriage. Th e award of alimony in futurowill further assis t her in this regard and provide her with “closing in” money.

The court cited Aaron v. Aaron , 909 S. W. 2 d 408, 411 (Tenn. 1995), in support of its conclusion.

We believe that the Court of Appeals’ reliance on Aaron was misplaced. In Aaron this Cou rt a ward ed al imo ny in futuroto a homemaker with a high school education who had never

worked outside the

home. ThisCourt noted that although the award would “not put her in

the same position in which she

was prior to the div

orce, it will3 The trial court awar ded rehabil

itative a limony in the amount of $1700 per month for five yearsto b e fol low ed b y ali mon y in futuroin the amount of $120 0 per month

until the wife’s death or remarriage.

4 The court noted that a

rehabilitative alimony award remains in the court’s jurisdiction and
can be modified “if the recipient’s prospects for economic rehabilitation ma terially change” and noting tha t al imo ny in futuromay be awarded if rehabilitation is not feasible. Crabtree , 16 S.W.3d at 360.

-7- provide her with ‘closing in’ money; that is she will be enabled to more c losel y approach her former economic position.” Aaron , 909 S.W.2d at 411. This statement , however, was intended neither to provide a new standard for awarding alimony nor to suggest that every spouse should be entitled to be placed i n t he same financial condition oc cupied p rior to the divorce. Aaron merely acknowledged that, where rehabilitation is not

fe asible, an awar d of ali mon y in futurowill not always be suffic ient to place a disadvantaged spouse in the financial position occupied predivorce.

Id. at 359-60.

In its primary holding in Crabtree , the Supreme Court held that a concu

rrent award of

both alimony in futuroand rehabilitative alimony 3 is inconsistent, stressing that the trial court must make an initial award of one or the other, 4 based upon the par ties’ circumstan

ces.
At the time of the decree, a trial court mus t n ecessarily find that the recipient of alimony eith er can be or cannot be reh abilitated althoug

h that determinati

on is subject to later modification. Allowing concurrent awards of alimony in futuro and rehabilitative alimony would require a trial court to engage in anact of clairvoyance. The trial court would n

ot onlybe requi red to anticipate the duration necessary for rehabilitation but w ould also be required to antic ipate the future

needs of a spouse who, it has been determined, can be rehabilitated.

Id . at 360.

While declaring that a court must at the time of the initial setting of spousal support determine if an economically disadvantaged spouse can be rehabilitated, the Court did not dire ctly addressthe measure a trial court must use in making that determina tion (e.g., able to

maintain oneself at least minim

a lly or able to maintain a standard of living roughly comparable to the predivorce standard or

that enjoyed by the non-disadvantaged spouse.) However, the Court’s review of the feasibility of rehabilitation by Ms. Crabtree provides some insight into that question.

The Court approved the trial court’s recognition that Ms. Crab tree’s rehabilitation was-8-

feasible. Ms. Crabtree w as a 43 year o ld college gradua te who was a cer

tified public acc

ountant. After working for

a large accounting firm for two yearsafter graduati on, she left to star

t a family and had worked only pa

rt-time du ring most of the marriage, presumably in order to devote more time to the household and the children. It was estimated that

her earning ca

pacity if she work

ed fulltime would be between $65,000 and $100,000annually, and the court noted that her youngest child’s graduation from high school would diminish Ms. Crabtree’s need to work part- time. The Court specifically

noted that, “there has been no testimonythat Ms. Crabtree will need further tr

aining to ‘improve [her] earning capacity to a reasonable level,’” Id. at 360 (citing Tenn. Code Ann. §36-5- 101(d)(1)(B)). Mr. Crabtree’s income as a stockbroker had varied in the six years prior to divorce, withthe last five years ranging from $254,437 to $417,034. The Court reversed the award of alimony in futuroand affirmed the award of rehabilitative alimony for five years, but increased

the amount of the rehabilitative a

limony to “assist Ms. Cr

abtree in making t

he transition from

part-time to full-time employment before her alimony is scheduled to end.” Id . at 361.

The trial court here

in made no explicit finding as to the feasibility of Wife’s rehabilitation in its award of alimony. Based upon the court’s comments quoted above, however, we believe that implicit in t he co urt’s holding is a finding that rehabilitation of Wife to a level of self-sufficiency that “approaches equity” with Husband’s economic position is not feasible. The trial court's failure to make a specific finding regarding that issue does not preclude our review. See, e.g., Crabtree , 16 S.W.3d at 360 ; Storey v. Storey , 835 S.W.2d 593, 597 (Tenn. Ct. App.1992).
Wife, at thirty-eight years old, had a high school education. At the time of the divorce, the parties’ two children were thirteen and sixte en years old. Wif

e did not work outsid

e the home until shortly before the divor

ce, and then wor

ked part-time

for $7.00 to $8.00 p

er hour. She clai

med to have no skills other than

those needed in her

current job in foo

d services, but sa

id she was a “peop

le person” and “good on the phone.” She was in good health and s tate d that she would like to go to school, but couldn’t afford it. Her stated intent was to work full-time once school started in the fall.

Husbandat forty-o ne y ears old, also had a high school education. He earned in excess of $60,000 the t hree ye ars preceding the divorce. At the time of the trial, in July 1998, Husband’s earnings for that year were projected at about $45,000. The decrease in salary wasexplained as an involuntary reduction in overtime.

As in Aaron and Long, but unlike the disadvantaged spouse in Crabtree , Wife’s earning potential is limited by her lack of higher education and her lack of significant experience. Neither her health nor

her age would prevent her from becoming more self-sufficient through either full-time work and the experience gained thereby or through further education or training. At the time of the divorce, Husband and Wife, although posses sing similar educational backg rounds, had very different earni ng capacit

ies because Husband had been “building a career outside the home” for nineteen yea rs while Wife had contributed to the marriage by taking care of the household and the children. The holding in Crabtree indicates that this differential is not relevant to the question of the feasibility of5 The Supreme Court apparently did not consider the difference betwee n the husband’s recent income ($362,500 avera

ge over past

5 years) and the estimated potential income of the wife ($65,000

- $100 ,000) in determining whether Ms. Crabtree was rehabilitatable, instead stating that she was capable of improving her earning capacity to “a reasonable leve l.” We not e however, that M s. Crabtree practiced her profession, albeit on a part-time basis, throughout her marriag e.

6 Since the statute frames the question as whether the spous e can improve his

or her earning capacity to a “reasonable

level,” we think th

e parties’ expec

tations that both wou

ld sh are i n the financial benefits of one spouse building a career, just as both share in the benefits of other contributions to the family, are relevant to the determination of what constitutes a “reasonable” level of income.
-9- rehabilitation, 5 at least at the time of the initial determination of whether rehabilitation is feasible. 6

Based upon the statutory preference for rehabilitative alimony and the manner in which the Supreme Court applied that preference in Cra btree , we ar e of the opinion that an award of rehabilitative alimony, rather than alimony in futurois appropriate in this case. We cannot presume that it is not feasible that Wife, with training and/or work e xpe rience, can improve her earning capacity to a“reasonable level.” Her age, health, and desire to work full-time and/or go to school are factors supporting the feasibility of rehabilitation.

As the Supreme Court

noted in Crabtree , an award of rehabilitative alimony remains “in the
co urt’s con trol for the duration of such award, and may be increased, decreased, terminate d, extended, or otherwise modif ied, upon a showing

of subst a ntial and materia l change in circumstances.” Crabtree , 16 S.W.3d at 359 (quoting Tenn. Code Ann. 

### § 36-5-101(d )(2)) . The Supreme Court stated, “at t

he time of the dec

ree, a trial cou

rt must necessarily

find that the recipient of the alimony either canbe or cannot be rehabilitated although that determination is subject to latermodification .” Id. at 3 60 (emphasis added). We take this language to me

an that if circumstances d

evelop that Wife

is unable during the duration of the rehabilitative alimony award to increase her e a rning potential to a reasonable level, the court could then revisit the issue of whether rehabilitation was, in fact, feasible. See Loria , 952 S.W.2d at 840.
Accordingly, the award of alimony in futurois vacated, and Wife is awarded rehabilitative alimony for six years fr

om the date of the f

in al decree of

divorce. By the end of that time, the youngest child will have attained majority, and Wife will have had time to pursue add it ional education and/or to establish a full-time work h

istory. This

award of rehabilitative alimony requires Wife to attempt to increase her earning potential during its duration. At the same time, however, she will also need to increase her actual earnings in order to maintai

n a standard of liv

ing close to

that she enjoyed at the time of the divorce. As we discuss below, we recognize that the parties can not maintain two separate households on the same income they used to support one.7 The factors the court must consider in setting the alimony obligation are:

(A) The relative earning capacity, obligations, needs, and financial resources of each party, including income f

rom pension, profi

t sharing or retir

ement plans and al

l other sources; (B) The relative education and training of each pa rty, the ab ility and opportunity of each party to secure such e

ducation and trai

ning, and the nece

ssity of a party to secure

further education and training to impr

ove such party's e

arning capacity

to a reasonable l

evel; (C) The duration o

f 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 incap

acity due to a chr

onic debilitating di

sease; (F) The extent to which it would be undesirable for a party to seek employment outside the home be

cause such part

y will be custodian o

f a minor child of th

e 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 standar

d of living of the pa

rties established

during the marria

ge; (J) The extent to w

hich each party

has made such tan

gible and intangibl

e contributions to the marriage a s monetary and home

maker contributio

ns, and tangible a

nd intangible contributions by a p

arty to the educa

tion, training or inc

reased earning

power of the othe

r 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.

-10- B. Husbandalso challenges the amount of the alimony award, arguing that the court considered Wife’s need but did not consider his ability to pay in setting the amount. A court must consider several factors in setting the amount and manner of payment of any spousal support awarded. 7 See Tenn. Code Ann. § 36-5-1 01(d). “The rea l need of the sp

ouse seeking support is t

he single most import ant factor .” Aaron , 909 S.W.2d at 410; see also Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. Ct. App. 1989). In addition to the disadvantaged spouse’s need, “courts most often consider the ability of the obligo

r spouse to provide support.” Aaron , 909 S.W.2d at 410; Cranford, 772 S.W.2d at 50.

Wife’s Income and Expense statement indicated that her monthly expenses were $2,160.53. Her monthly income

from her part-ti

me employment avera

ged almost $600. The

court ordered c

hild support at $780 per month. The money Wife needed to maint ain the s ame standard of living as before the divorce was, then, approximately $780 per month. The court awarded her $700 per month as alimony. It seems clear, then, that the court considered

Wife’s need and her standard of living at the time of the divorce in m aking its award a

nd provided alimony

sufficient for he

r to8 In defending the a mount of t he award (as well as its nature), Wife, citing the trial court’s finding that “wife would n ot be seeking a div

orce, but for hus

b an d’s adultery,” relies upon the principle, reaffirmed in Long v. Long , that an innocent spouse should not be left in aworse financial condition than that he or she had “before the opposite party’s misconduct brought about the divorce.” Long , 968 S.W.2d at 294 (quoting Aaron , 909 S.W.2d at 410-11) (citation omitted). To the extent that Husband was at fault in the divor ce, the court ha

s discretion to pro

vide “closing in”

money to Wife. The purpose of the award of alimony is to approach equity between the spouses, however, not to punish Husband for his post-separation adultery. See Duncan v. Duncan , 686 S.W.2d 568, 572 (Tenn. Ct. App. 198

4); Lancaster v. Lancaster , 671 S.W.2d 501, 503 (Tenn. Ct. App. 1984). Our holding herein is not inco nsistent with the principles espoused by Wife, especially in view of the limited resources available.

9 In addition, the record indicates Husband’s annual income exceeded $60,000 in each of the years 1995, 1996, and 1997. The decrease is attributed to the lost opportunity forovertime work. Husband will continue to receive certain performance bonuses and, in fact, received such bonuses during the first six months of the year of the divorce. Those bonuses were included in the figures used to estimate his divorce-year income at $45,000. Thus, his average gross income for the year of the divorce (as projected) and the three preceding yea rs was more than $58,000 per year. Considering Husband’s income based on the average i

ncome for those

four years, as the trial court implicitly did in setting alimony, Husband’s gross in come on his Income and Expense Statement is understated by $19,749 ($1645 per month). We do not base our decision on an average income, but base it on the projected annual salary in the year of divorce, $45,000.

-11- maintain that lifestyle. 8

Husband’s Inc ome and Expense Stateme nt indicates that his monthly expenses, not including alimony, exceed his monthly income by $850. In o

ther words, Husba

nd argues that he

is unable to support himself, pay child support, and pay the debts assigned to him even if he were required to pay
no alimony. A review of Husband’s expenses reveals his inclusion of expenses that ended shortly after the conclusion of t

he trial, howeve

r. His child support obligation for the older child was to end shortly after this case was appealed, and the expenses for younger child’s bedroom furniture required only three more monthly payments at the time

of the trial. In ad

dit ion, his responsibility for the parties’ join credit card

debt of $800 is a tem

porary obligati

on. When those

three expenses are subtracted from his total, Husband’s expenses will decrease by approximately $355 per month.

Husband’s expenses, with the above ment ioned obligations subtracted, still exceed his stated income. However, Husband’s figures are based on a gross semi-monthly income figure whi c h calculates to $38,251 per year, in spite of the fact that his earn ing s statement for January through June of 1998 r eflect a figur e which would result in projected annual gross income of $45,487.20. Using this amount, Husband’s income is understated by $600 per month. 9

We also notice from our co mparison of the pa rties’ statements

that Wife’s state

d monthly-12-

expenses for

h erself and the tw

o children were

$2,160 while Husba

nd’s expenses, w

hen child support is subtracted, are $2,360. Wife’s expenses include the first mortgage on the marital home in the amount of $819 per month; Husband claims rent expenses of $800 per

month and testified that no suitable housing w

as available for

less than that amou

nt.

This case presents a

situation not uncommo

n upon the dissolu

tio n of a marriage: two households cannot be maintained as cheaply as one. This co urt has previously addressed th e economic situation which often results from divorce:

Two persons living separately incur more expenses than twopersons living together. Thus, in most divorce ca

ses it is unlikely tha

t both parties will be able to mai ntain their pre-divor

ce lifestyle

once the proceedings are concluded. While enabling the economically

disadvantaged spouse to maintain the p re-divorce l ifestyle is a lauda ble goal, we have realistically recognized that in most divorce cases, the courts must be satisfied with awarding “closing in money” – that is awarding the spouse sufficient funds to return as closely as is economically possible to the pre-divorce lifestyle.

Kinard v. Kinard

, 986 S.W.2d 220, 234-35 (Tenn. Ct. App. 1998) (citations omitted).
Unfortunately, these two people c annot both live the s

ame lifestyle sep

arately as they d

id together on the same, or similar, income. Where, as here, the level of income has been reduced fr om that enjoyed during the

marriage, the pr

oblem is exacerb

ated. Neither pa

rty will be able

to maintain the lifestyle

enjoyed before the divorce, which does not appear t

o have been extr

avagant. Both will be required to

live on less than they pr eviously had and/o

r to increase the

ir income in order

to maintain their pre-divor

ce lifestyle. Bec

ause we have fe

lt compelled to modify the alimony award to rehabilitative alimony for a period of six years, Wife must use that six years to become more selfsufficient or increase her earning p otent ial. Wife’s statement of income and expenses does not include any expenses for further education or

training, but also d

oes not include ad

ditional income from full-time, as opposed to part-time, employment.

The trial court and thi

s court must

deal with the parties’ financial situations as they are, not
as we would

hope them to be. Wife clearly needs support and needs an amount sufficient to ena

ble her to increase her earning potential. Considering Husband’s understating o f income, the elimin ation of some expenses shortly after trial, and the level of Husband’s expenses in

comparison to those of Wife and children, we find that Husband does have the abi

lity to pay alimony. That ability to pay, however, is limited by his income , which has been a

dversely affec

ted by his employer’s reduction in overtime. Having considered all of the factors established in Tenn. Code Ann. § 36-5-101(d), we
are of the opinion that the award of alimony should be m odified. Th erefore, we award Wife rehabilitative alimony in the amount of $700 per month for twenty-four months af ter th e final judgment awarding the divorce and $500 per month for forty-eight months thereafter.-13- IV
. The Tax Refund

Husbandalso appeals the trial court’s award of the entire 1997 tax refund, $3,448, to Wife. As salary ea

rned and refund

ed to the parties during the marriage, the tax refund is marital

property and subject to

equitable division. See Tenn. Code Ann. § 36-4-121(b)(1)(A). Husband argues that the distribution of the tax refund was inequitable because it was achieved almost ex clusively thr ough his efforts, as Wife admitted that the refund represented as little as $100 of her funds

. Husband does not dispute the remainder of the tri al c our t’s dis tri but ion of m ari tal pro pert y.

Husbandrelies on Kelly

v. Kelly , 679 S.W.2d 458 (Tenn. Ct. App. 1984) for the proposition that marital property

is presumed to be e

qually owne

d until p roven otherwise. See Kelly , 679 S.W.2d at 462. Seemingly , Husband would ha

ve th e trial court consider each piece of marital pr operty “equally ow

ned” and conside

r each party ’s contributions to t hat piece of prop

erty, rath e r than considering the marital property as a whole when making the division of property.

The appellate

court in Kelly

did state, “in order to make an equitable distr

ibution of jointly ownedmarital property

, it should be presumed that o

wnership is equal until proven otherwise.” See Kelly , 679 S.W.2d at 462. This case is easily distinguishable, however, because the trial court in that case, with no findings of

fact to explain

such an award, ordered that the husband receive 90% of the marital property. The award was vacated and remanded for further findings of fact. See Kelly , 679 S.W.2d at 462. At no point did the appellate court in Kelly direct th at each piece of property be considered

separately

and divided in

proportion to each party’s contribution. While the trial court must consider all of th

e marital proper

ty when maki

ng the division of p

roperty, th

e courtis not required to award each party an interest in each piece of marital property. See Tho mpson v
. Thompson , 797 S.W.2d 599, 604 (Tenn. Ct. App. 1990). Unless

the facts requir

e otherwise, cou

rts generally judge the fairn

ess of a property

division by the

fin al result. See id. As noted above, Husband did not

challenge the final result in the distribution of marital property. The one half of the tax refund which Husband claims shou ld have been awarded to him amounts to $1,724. Comparing that figure to the total amounts distributed, we find nothing inequitable in the trial court’s award.
Furthermore, we note the trial court’s statement that the refund was awarded to Wife “to be used in purchasing a

substitute vehicle

. . .” Before the parties’ marital difficulties, Wife had a new leasedvehicle. Upon expiration of the lease, and after their difficulties began, Husband returned the
new leased vehicle and, for $500, purchased Wife a 1984 Skylark with more than 100,000 miles on it. Husband continued to drive his $9,000 truck. Considering Wife’s earlier vehicle and the vehicle Husband had at the

time of trial,

and considering the overall fairness of the distribution of marital property, we find no error in awarding Wife the tax refund to use in the pur chase of a vehicle.-14- V.

The order of the trial court is affirmed as modified. This case is remanded to the trial court for such proceedings as may be necessary. The costs of this appeal are t

axed equally

to the parties.

___________________________________ PATRICIA J. COTTRELL, JUDGE