IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 9, 2012 Session

BONNIE FAITH RODGERS v. THOMAS EDWARD RODGERS

Appeal from the Circuit Court for Hamilton County

No. 09D2308 L. Marie Williams, Judge

No. E2011-02190-COA-R3-CV-FILED-SEPTEMBER 10, 2012

This appeal arises from a divorce. Bonnie Faith Rodgers (“Wife”) sued her husband,

Thomas Edward Rodgers (“Husband”), for divorce in the Circuit Court for Hamilton County

(“the Trial Court”), alleging inappropriate marital conduct and irreconcilable differences.

Wife and Husband had been married for more than 40 years. Husband answered and

counterclaimed for divorce, also alleging inappropriate marital conduct. After a trial, the

Trial Court divided the marital estate and awarded Wife periodic alimony. Husband appeals,

arguing that the Trial Court erred in a host of ways, including its classification and division

of the marital estate and its award of periodic alimony to Wife. Husband also appeals the

Trial Court’s extending Wife’s Order of Protection against him for an additional five years.

Wife raises her own issue regarding the allocation of certain vehicles. We affirm the

judgment of the Trial Court in its entirety.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;

Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the Court, in which HERSCHEL P. FRANKS,

P.J., and CHARLES D. SUSANO, JR., J., joined.

Theresa L. Critchfield and Harold L. North, Jr., Chattanooga, Tennessee, for the appellant,

Thomas Edward Rodgers.

Sandra J. Bott, Chattanooga, Tennessee, for the appellee, Bonnie Faith Rodgers.
OPINION

Background

In December 2009, Wife, a registered nurse, sued Husband, a former nuclear

engineer, for divorce in the Trial Court. The parties had been married since November 1968.

In her complaint, Wife alleged inappropriate marital conduct and, in the alternative,

irreconcilable differences. Wife requested periodic alimony. Husband filed an answer and

counterclaim in December 2009. Husband denied inappropriate marital conduct but admitted

the parties had irreconcilable differences. In his counterclaim for divorce, Husband alleged,

as Wife had, inappropriate marital conduct and irreconcilable differences. Various delays

saw the trial in this case postponed until June 2011, when the trial was held over a period of

three days. We will concentrate primarily on the testimony of Wife and Husband as being

the most relevant to the issues on appeal.

Wife testified. Wife and Husband have two adult children, Eddie and Greg

Rodgers, aged 37 and 32, respectively, as of trial. Wife testified that she lived at one of the

parties’ properties (“Lake Shadows”) in Hixson, Tennessee. Wife stated that Lake Shadows

was paid for completely. Regarding her health, Wife testified that she had a hysterectomy

in 2009 and cancer of the cervix in 1997. Otherwise, Wife essentially is in good health. Wife

testified that she has a bachelor’s degree and is a registered nurse. Wife testified that most

of her work throughout the marriage was part-time. Wife stated that she also had to work

around the schedule of the children as she was raising them. Wife testified that Husband

earned around $100,000 per year before he retired. At times, Wife held two jobs. At the

time of trial, Wife was working around 16 hours per week at Consulate Health Care of

Chattanooga in a managerial position, earning $31.75 per hour. Wife’s gross monthly

income was $2,407.69, and her total stated expenses were $3,350.55. Wife hoped to retire

by February 2012. Wife had $31,000 in an IRA and $900 in a retirement account.

Additionally, Wife testified that she had $285 in her bank account and could not afford to pay

her attorney’s fees.

Wife testified regarding her marriage to Husband. Wife stated that Husband

had a violent temper and sometimes hit her. Wife testified that Husband had a gun

collection. The couple had been apart since June 2009, and Husband made no contribution

to Wife’s support during that time.

Husband was on disability as of 2005. However, a central feature of this case

involves a side business of Husband’s wherein he bought, restored, and sold cars. Wife

stated that Husband told her it was “none of [her] business what he was doing” with respect

to buying and selling cars and equipment on the computer. While Husband and the parties’

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sons were the ones predominantly engaged in the car business, Wife acknowledged that she

once made notes about vehicles that Husband bought and sold.

Wife testified that Husband’s sister, JoAnne Terwilliger, wanted Wife to have

possession of the Rodgers family ring, an heirloom. Wife wanted her sons to have the ring

to continue the tradition, and she believed the tradition would cease if Husband got the ring.

Wife also testified that Ms. Terwilliger gave Wife and Husband a number of items, such as

a refrigerator, because of a planned move of Ms. Terwilliger to the Chattanooga area that

ended up never happening. Ms. Terwilliger, who apparently suffers from ill health, did not

testify at trial. Ms. Terwilliger’s deposition, in which she describes how she left the property

in question with Husband in anticipation of the move, was entered into the record.

Wife had an Order of Protection taken out again Husband, which barred him

from communicating with Wife or possessing firearms. Husband did call Wife a year before

trial and left a message asking Wife if she really wanted to proceed with the divorce. Wife

testified that Husband called her house as recently as a few days before trial.

With regard to the issue of the Order of Protection, Barbara Mireles testified

to an affair she had with Husband. Ms. Mireles stated that Husband did, in fact, possess a

firearm. This alleged possession occurred during the period in which the Order of Protection

was in effect.

Husband testified. Husband stated that he lived in Dayton, Tennessee. With

respect to his education, Husband has an undergraduate degree in nuclear science and a

master’s in mechanical engineering “with nuclear engineering majors.” Husband related

details about his work history. In 1980, Husband entered the merchant marines. During his

five-year stint in the merchant marines, Husband was home only six to eight months each

year. In 1985, after his ship was destroyed in Egypt, Husband decided to leave the merchant

marines. From 1985 to 1989, Husband worked with the Tennessee Valley Authority, during

which time he lived at home. From 1989 until 2005, when Husband retired due to heart

problems, Husband spent considerable time going back and forth between Nevada and

Washington, D.C. as part of his work. Husband testified that his income was $1,633 per

month and his revenue shortfall was $1,309.

Husband testified regarding his buying and selling of cars. Husband stated that

he had bought and sold cars to supplement his income. From May to June 2006, Husband’s

joint account with Wife showed deposits of $89,011. This was during a time when Husband

was on disability. Husband acknowledged that he did not report his car business on the

couple’s joint income tax returns. Referring to some of the large deposits, Husband stated

that some of the money came from selling cars and others from a line of credit. Husband

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denied referring to the line of credit as a “slush fund,” but was confronted with a deposition

wherein he did use that term. Husband stated that he now was on bad terms with his sons,

and could no longer engage in the buying and selling of cars in the manner he once did. On

cross-examination, Husband acknowledged lying in a deposition when he denied being

intimate with Ms. Mireles.

In August 2011, the Trial Court entered a final decree of divorce. The final

decree of divorce incorporated a detailed memorandum opinion, which stated, inter alia:

This cause is before the Court for the divorce of the parties. The issues

before the Court are the division of assets and liabilities and an issue of

alimony. It is stipulated the divorce shall be awarded to the plaintiff wife.

This is a marriage of 42 years. The Wife was 65 at the time of trial and

will be 66 in February. The Husband was 66 at the time of trial and will be 67

in August. The Wife has a B.S. in Nursing and has been employed as a nurse.

The Husband has a Master’s in Nuclear Engineering and was employed in that

field throughout the marriage until he was awarded Social Security Disability

because of cardiac issues.

Upon hearing the testimony of the witnesses, reviewing the exhibits,

and observing the demeanor of the witnesses, the Court finds Mr. Rodgers has

little credibility. His testimony is contradicted by that of himself and others.

He was evasive in his responses.

***

There is a dispute as to Mr. Rodgers’ mother’s diamond engagement

ring. This is a ring which Mrs. Rodgers contends was given to her by her

mother-in-law. The evidence presented from Mr. Rodgers and his sister is to

the contrary. The only concept in common between the testimony of the

parties is the direct testimony of JoAnn Terwilliger that the ring was to be

“carried on through the engagement and marriage of Rodgersson traditionally,

we it had been . . . So I sent it to Tom in trust for that purpose and for that

occasion.” There was much testimony from Mr. Rodgers and his sister to the

effect the ring was not intended to be a gift for Mrs. Rodgers although she has

been wearing it for many years. Mrs. Rodgers testified the ring was sent to her

by Mrs. Terwilliger who said Mr. Rodgers’ mother would want her to have it.

Although this conversation is hearsay and accepted for credibility purposes

rather than truth, it sets the stage for the testimony of Mrs. Rodgers that she

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was proud to wear the ring and would hand it to her sons. The common

understanding of the witnesses and parties is that the ring was entrusted or

gifted to ultimately be the property of the sons. Accordingly, the Court finds

it clearly was the intention of the parties that Mrs. Rodgers had possession of

the ring for the benefit of whichever son of the Rodgers can utilize it as an

engagement/wedding. In the event the ring is not used for that purpose prior

to the death of Mrs. Rodgers, upon her death it will be held by the Rodgers’

sons for the benefit of any of their children.

***

Also at issue is whether certain items of property which were purchased

for an anticipated move of Mrs. Terwilliger to Tennessee are a part of the

marital estate. It is undisputed these items were purchased for a potential

residence of hers in Tennessee. The issue is whether they were gifted or

abandoned to the Rodgers when she decided not to move. These items include

a refrigerator and freezer which is No. 39 on the Asset and Liability

Statements and Item 45 flat screen TVS. The Court finds these items were

abandoned or gifted to the parties and are marital in nature. . . .

***

Expert testimony was presented by both parties concerning the value of

the two pieces of real estate which are Nos. 1 and 2 on the Asset and Liability

Statements. The Court finds both experts credible and the differences in the

valuation of the marital residence anticipated fluctuations based on opinion

testimony. The Court finds the marital residence to have a value of

$248,750.00. The disparity between expert opinions regarding the value of the

lake house is greater. The Court finds the lake house to have a value of

$243,000.00.

***

The HELOC will be paid by the sale of items 18-23 [six vehicles]. In

the event the HELOC is not satisfied by the sales, Husband bears the

responsibility. Also, he shall continue to pay the HELOC. Any profit after

sale of the vehicles not necessary to pay the HELOC will be divided equally.

Because Mr. Rodgers has used, and it is anticipated will continue to use, the

HELOC to make money for himself, the Court finds this division equitable,

even if not equal.

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The Court now must address the issue of alimony. In addressing the

alimony issue, the Court is guided by the common law as well as T.C.A. 36-5-

121. The Court first must analyze the need of the party seeking alimony and

the ability to pay of the person who would be the payor. The incomes of the

parties is reflected by their reportable income and income from earned income

or Social Security are somewhat comparable. The evidence must be inspected

further as the bank accounts of defendant Thomas Rodgers and his spending

habits are highly inconsistent with the amount of earned income he claims.

Likewise, there is evidence of significant income earned from the purchase and

sale of vehicles. By utilizing the HELOC, Mr. Rodgers in 2007 generated net

income in excess of $96,000.00. Additionally, while Mr. Rodgers is receiving

Social Security Disability, Mrs. Rodgers still remains employed. At the time

she is of an age to receive Social Security benefits, she will receive $1,269.00

per month. This is significantly less than half of what Mr. Rodgers receives

from Social Security per month. It is not appropriate to set alimony on

anticipated future income such as the Social Security status of Mrs. Rodgers.

The analysis must take place as of the time of trial. The enumerated expenses

of the parties are comparable.

***

Both parties are in a position where their traditional earning capacity is

not relevant because of retirement age. However, the ability of Mr. Rodgers

to earn monies buying, renovating, and selling cars must be considered. The

evidence has demonstrated that ability is substantial. Mr. Rodgers’ education

is substantially greater than that of Mrs. Rodgers. His skills remain marketable

as do those held by Mrs. Rodgers as a nurse. Further education is not a

relevant factor for consideration and neither party is likely to continue in his

or her traditional field. This is a marriage of in excess of 43 years duration.

The ages and mental condition of the parties are comparable. Mrs. Rodgers

has had physical issues in the past as has Mr. Rodgers who has been found

totally disabled by the Social Security Administration. The children of this

marriage are adults. The separate assets are not such as would contribute

significantly to income. The division of assets and liabilities is equitable and

does not yield significantly greater income to one party over the other. Both

parties have made tangible and intangible contributions to the marriage. The

Court finds the fault in this case to be primarily with Mr. Rodgers. The

evidence established he has not been a supportive and active participant in the

household at many times throughout the years and that his treatment has been

abusive. He is short-tempered and unfaithful. Perhaps the factor which

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contributed most to the demise of this marriage was his failure to recognize

any actions of his which were not in support of the marriage. There are no tax

consequences to be considered except that a portion of Mr. Rodgers’ income

is not taxable.

In considering all of the above factors, the Court ORDERS Mr. Rodgers

to provide to Mrs. Rodgers $1,000.00 per month periodic alimony beginning

the 1 day of August, 2011.

st

The Court finds it appropriate to secure the alimony to be awarded by

the $100,000.00 life insurance policy of Mr. Rodgers and he shall name Mrs.

Rodgers beneficiary on that policy. Mrs. Rodgers shall retain her life

insurance and may change the beneficiary to a person or persons other than

Mr. Rodgers. Mr. Rodgers is responsible for the premiums on both policies.

Before the Court also is the issue of whether or not attorney’s fees

should be awarded as alimony in solido. Mr. Rodgers shall pay $5,500.00 of

Mrs. Rodgers’ attorney’s fees.

Mrs. Rodgers asked for the Order of Protection to be extended. The

Court finds at least two violations of the Order of Protection have taken place

by the conduct of Mr. Rodgers in contacting Mrs. Rodgers and also by the

possession of a weapon by Mr. Rodgers. Accordingly, the Court ORDERS the

Order of Protection shall be extended until and including December 13, 2016.

The costs of this cause are taxed against Mr. Rodgers for which

execution may issue if necessary.

Both parties filed motions to alter or amend. In September 2011, the Trial

Court ruled on the parties’ motions to alter or amend. Among other things, the Trial Court

gave Husband the option of keeping a pickup truck if he paid $27,500 on the HELOC debt.

The Trial Court also delayed the start of Husband’s alimony obligations by six months.

Husband appeals.

Discussion

We restate the issues that Husband raises on appeal as follows: 1) whether the

Trial Court erred in its classification of the marital estate; 2) whether the Trial Court erred

in its division of the marital estate; 3) whether the Trial Court erred in awarding Wife

periodic alimony; 4) whether the Trial Court erred in awarding Wife attorney’s fees; and, 5)

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whether the Trial Court erred in extending the Order of Protection in favor of Wife against

Husband. Though not stated exactly as such, Wife raises the following issue on appeal:

whether the Trial Court erred in declining to award Wife the cars she requested, and, by

requiring Wife to pay part of Husband’s debt out of her share of marital property.

Our review is de novo upon the record, accompanied by a presumption of

correctness of the findings of fact of the Trial Court, unless the preponderance of the

evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.

2001). A trial court's conclusions of law are subject to a de novo review with no presumption

of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710

(Tenn. 2001). Also playing an important role in our review of the evidence is the Trial

Court’s determination that Husband “has little credibility.”

We first address whether the Trial Court erred in its classification of the marital

estate. Specifically, Husband argues that certain property–including a washer, dryer,

stainless steel refrigerator/freezer, and, a historic wedding ring–belonged, in fact, to

Husband’s sister, and could not be allocated to Wife as part of the division of the marital

estate. As our Supreme Court has explained:

Tennessee is a “dual property” state because its domestic relations law

recognizes both “marital property” and “separate property.” See generally

Tenn. Code Ann. § 36-4-121; Eldridge v. Eldridge, 137 S.W.3d 1, 12 (Tenn.

Ct. App. 2002). When a married couple seeks a divorce, the “marital

property” must be divided equitably between them, without regard to fault on

the part of either party. Tenn. Code Ann. § 36-4-121(a)(1). “Separate

property” is not part of the marital estate and is therefore not subject to

division. See Cutsinger [v. Cutsinger], 917 S.W.2d [238, 241 (Tenn. Ct. App.

1995)]. Thus, it is imperative that the parties, the trial court, or both identify

all of the assets possessed by the divorcing parties as either marital or separate

so that a proper division can be accomplished.

Snodgrass v. Snodgrass, 295 S.W.3d 240, 246 (Tenn. 2009).

As pertinent to the issue now before us, Tenn. Code Ann. § 36-4-121 provides

that “separate property” includes: “Property acquired by a spouse at any time by gift, bequest,

devise or descent; ....” Tenn. Code Ann. § 36-4-121 (b)(2)(D) (Supp. 2011).

The inquiry does not end here, however, as separate property may in certain

circumstances become marital. As our Supreme Court explained in Snodgrass:

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[S]eparate property may be deemed marital by operation of law under theories

of commingling or transmutation. Langschmidt v. Langschmidt, 81 S.W.3d

741, 747 (Tenn. 2002).

* * *

This Court addressed the related doctrines of commingling and

transmutation for the first time in Langschmidt and adopted the following

explanation:

[S]eparate property becomes marital property [by commingling]

if inextricably mingled with marital property or with the separate

property of the other spouse. If the separate property continues

to be segregated or can be traced into its product, commingling

does not occur . . . . [Transmutation] occurs when separate

property is treated in such a way as to give evidence of an

intention that it become marital property . . . . The rationale

underlying these doctrines is that dealing with property in these

ways creates a rebuttable presumption of a gift to the marital

estate. This presumption is based also upon the provision in

many marital property statutes that property acquired during the

marriage is presumed to be marital. The presumption can be

rebutted by evidence of circumstances or communications

clearly indicating an intent that the property remain separate.

81 S.W.3d at 747 (quoting 2 Homer H. Clark, The Law of Domestic Relations

in the United States § 16.2 at 185 (2d ed. 1987)).

Snodgrass, 295 S.W.3d at 247, 256.

Husband contends that the properties purchased by Ms. Terwilliger should not

be subject to division in this divorce case because they were not part of the marital estate.

The evidence in the record on appeal reflects that Husband’s sister intended to move to the

Chattanooga area but never did so. The Trial Court found that these items were either

abandoned or gifted to Husband and Wife by Ms. Terwilliger and were, therefore, part of the

marital estate.

With respect to the family heirloom ring, the Trial Court ordered that, should

neither of the parties’ sons use it for his wedding before Wife’s death, it “will be held by the

Rogers’ sons for the benefit of any of their children.” This is in keeping with the record,

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wherein it is established that the ring had remained in the Rodgers families for many decades,

and there was a wide agreement that this should continue. We find no reversible error in the

Trial Court’s classification and assignment of these various properties to Wife as we do not

find that the evidence preponderates against the Trial Court’s findings relevant to this issue.

We next address whether the Trial Court erred in its division of the marital

estate. A review of the division of marital property in this case reveals an approximately

53% to 47% allocation of marital assets, in favor of Wife. As our Supreme Court has

1

explained:

This Court gives great weight to the decisions of the trial court in

dividing marital assets and “we are disinclined to disturb the trial court’s

decision unless the distribution lacks proper evidentiary support or results in

some error of law or misapplication ofstatutory requirements and procedures.”

Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996). As such,

when dealing with the trial court’s findings of fact, we review the record de

novo with a presumption of correctness, and we must honor those findings

unless there is evidence which preponderates to the contrary. Tenn R. App. P.

13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

Because trial courts are in a far better position than this Court to observe the

demeanor of the witnesses, the weight, faith, and credit to be given witnesses’

testimony lies in the first instance with the trial court. Roberts v. Roberts, 827

S.W.2d 788, 795 (Tenn. Ct. App. 1991). Consequently, where issues of

credibility and weight of testimony are involved, this Court will accord

considerable deference to the trial court’s factual findings. In re M.L.P., 228

S.W.3d 139, 143 (Tenn. Ct. App. 2007) (citing Seals v. England/Corsair

Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)). The trial court’s

conclusions of law, however, are accorded no presumption of correctness.

Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).

* * *

In a proceeding for divorce or legal separation, the trial court is authorized,

prior to determining the support and maintenance of one party by the other, to

“equitably divide, distribute or assign the marital property between the parties

without regard to marital fault in proportions as the court deems just.” Tenn.

Code Ann. § 36-4-121(a)(1) (2005). The trial court is empowered to do what

is reasonable under the circumstances and has broad discretion in the equitable

The parties’ asset tables do not align perfectly, but are rather close.

1

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division of the marital estate. See Flannary v. Flannary, 121 S.W.3d 647, 650

(Tenn. 2003). The division of assets is not a mechanical process and trial

courts are afforded considerable discretion. Manis v. Manis, 49 S.W.3d 295,

306 (Tenn. Ct. App. 2001).

Keyt v. Keyt, 244 S.W.3d 321, 327-28 (Tenn. 2007) (footnote omitted).

Further, our Supreme Court has instructed:

[M]arital property must be divided equitably between the parties based on the

relevant factors enumerated in Tennessee Code Annotated section 36-4-121(c)

without regard to fault on the part of either party. Tenn. Code Ann. §

36-4-121(a)(1). Section 36-4-121(a)(1) requires an equitable division of

marital property, not an equal division. Robertson v. Robertson, 76 S.W.3d

337, 341 (Tenn. 2002).

Larsen-Ball v. Ball, 301 S.W.3d 228, 231 (Tenn. 2010).

Tennessee Code Annotated § 36-4-121 (c) provides:

(c) In making equitable division of marital property, the court shall consider

all relevant factors including:

(1) The duration of the marriage;

(2) The age, physical and mental health, vocational skills,

employability, earning capacity, estate, financial liabilities and financial needs

of each of the parties;

(3) The tangible or intangible contribution by one (1) party to the

education, training or increased earning power of the other party;

(4) The relative ability of each party for future acquisitions of capital

assets and income;

(5) (A) The contribution of each party to the acquisition, preservation,

appreciation, depreciation or dissipation of the marital or separate property,

including the contribution of a party to the marriage as homemaker, wage

earner or parent, with the contribution of a party as homemaker or wage earner

to be given the same weight if each party has fulfilled its role;

(B) For purposes of this subdivision (c)(5), dissipation of assets

means wasteful expenditures which reduce the marital property available for

equitable distributions and which are made for a purpose contrary to the

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marriage either before or after a complaint for divorce or legal separation has

been filed.

(6) The value of the separate property of each party;

(7) The estate of each party at the time of the marriage;

(8) The economic circumstances of each party at the time the division

of property is to become effective;

(9) The tax consequences to each party, costs associated with the

reasonably foreseeable sale of the asset, and other reasonably foreseeable

expenses associated with the asset;

(10) The amount of social security benefits available to each spouse;

and

(11) Such other factors as are necessary to consider the equities between

the parties.

Tenn. Code Ann. § 36-4-121 (c) (Supp. 2011).

Husband takes issue with three specific aspects of the division of the marital

estate: 1) the allocation of the HELOC debt to Husband; 2) allegedly allocating all of the

parties’ marital debt to Husband; and, 3) the allocation of Husband’s life insurance policy

to Wife as security for the alimony.

We note initially that, in reviewing divisions of the marital estate, we

fundamentally are interested in whether the overall marital property division is equitable and

not whether the deposition of each individual asset or debt is equitable. Here, the division

of the marital estate is relatively balanced and hews to the statutory factors. This was a long

marriage. The parties enjoyed a high standard of living throughout much of the marriage,

and both are now entering retirement age. We find no reversible error in the Trial Court’s

division of the marital estate as the evidence does not preponderate against this being an

overall equitable property division.

We next address whether the Trial Court erred in awarding Wife periodic

alimony. The Trial Court awarded Wife $1,000 per month in periodic alimony. Husband

argues that Wife should not have been awarded alimony, or, in the alternative, that this Court

should further delay the start of Husband’s alimony obligations. As pertinent to this issue,

our Supreme Court has explained:

For well over a century, Tennessee law has recognized that trial courts

should be accorded wide discretion in determining matters of spousal support.

See Robinson v. Robinson, 26 Tenn. (7 Hum.) 440, 443 (1846) (“Upon a

divorce . . . the wife is entitled to a fair portion of her husband’s estate for her

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support, and the amount thus to be appropriated is a matter within the legal

discretion of the chancellor . . . .”). This well-established principle still holds

true today, with this Court repeatedly and recently observing that trial courts

have broad discretion to determine whether spousal support is needed and, if

so, the nature, amount, and duration of the award. See, e.g., Bratton v.

Bratton, 136 S.W.3d 595, 605 (Tenn. 2004); Burlew v. Burlew, 40 S.W.3d

465, 470 (Tenn. 2001); Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn.

2000).

Equally well-established is the proposition that a trial court’s decision

regarding spousal support is factually driven and involves the careful

balancing of many factors. Kinard v. Kinard, 986 S.W.2d 220, 235 (Tenn. Ct.

App. 1998); see also Burlew, 40 S.W.3d at 470; Robertson v. Robertson, 76

S.W.3d 337, 340-41 (Tenn. 2002). As a result, “[a]ppellate courts are

generally disinclined to second-guess a trial judge’sspousalsupport decision.”

Kinard, 986 S.W.2d at 234. Rather, “[t]he role of an appellate court in

reviewing an award of spousal support is to determine whether the trial court

applied the correct legal standard and reached a decision that is not clearly

unreasonable.” Broadbent v. Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006).

Appellate courts decline to second-guess a trial court’s decision absent an

abuse of discretion. Robertson, 76 S.W.3d at 343. An abuse of discretion

occurs when the trial court causes an injustice by applying an incorrect legal

standard, reaches an illogical result, resolves the case on a clearly erroneous

assessment of the evidence, or relies on reasoning that causes an injustice.

Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011);

Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010). This standard

does not permit an appellate court to substitute its judgment for that of the trial

court, but “‘reflects an awareness that the decision being reviewed involved

a choice among several acceptable alternatives,’ and thus ‘envisions a less

rigorous review of the lower court’s decision and a decreased likelihood that

the decision will be reversed on appeal.’” Henderson, 318 S.W.3d at 335

(quoting Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)).

Consequently, when reviewing a discretionary decision by the trial court, such

as an alimony determination, the appellate court should presume that the

decision is correct and should review the evidence in the light most favorable

to the decision. Wright, 337 S.W.3d at 176; Henderson, 318 S.W.3d at 335.

* * *

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The first type of spousal support, alimony in futuro, is intended to

provide support on a long-term basis until the death or remarriage of the

recipient. Tenn. Code Ann. § 36–5–121(f)(1). This type of alimony can be

awarded where “the court finds that there is relative economic disadvantage

and that rehabilitation is not feasible.” Id. See also Burlew, 40 S.W.3d at

470–71; Riggs v. Riggs, 250 S.W.3d 453, 456 n. 2 (Tenn. Ct. App. 2007).

Alimony in futuro is appropriate when

the disadvantaged spouse is unable to achieve, with reasonable

effort, an earning capacity that will permit the 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.

Tenn. Code Ann. § 36–5–121(f)(1).

Alimony in futuro “is not, however, a guarantee that the recipient

spouse will forever be able to enjoy a lifestyle equal to that of the obligor

spouse.” Riggs, 250 S.W.3d at 456 n. 2. In many instances, the parties' assets

and incomes simply will not permit them to achieve the same standard of

living after the divorce as they enjoyed during the marriage. Robertson, 76

S.W.3d at 340. While enabling the spouse with less income “to maintain the

pre-divorce lifestyle is a laudable goal,” the reality is that “[t]wo persons living

separately incur more expensesthan two personsliving together.” Kinard, 986

S.W.2d at 234. “Thus, in most divorce cases it is unlikely that both parties will

be able to maintain their pre-divorce lifestyle. . . .” Id. It is not surprising,

therefore, that “[t]he prior concept of alimony as lifelong support enabling the

disadvantaged spouse to maintain the standard of living established during the

marriage has been superseded by the legislature's establishment of a preference

for rehabilitative alimony.” Robertson, 76 S.W.3d at 340.

Gonsewski v. Gonsewski, 350 S.W.3d 99, 105-08 (Tenn. 2011) (footnote omitted).

Additionally, we consider a number of statutory factors in determining the

nature and amount of alimony:

(1) 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;

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(2) 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 earnings capacity to a reasonable level;

(3) The duration of the marriage;

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

(5) The physical condition of each party, including, but not limited

to, physical disability or incapacity due to a chronic debilitating disease;

(6) 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;

(7) The separate assets of each party, both real and personal,

tangible and intangible;

(8) The provisions made with regard to the marital property, as

defined in § 36-4-121;

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

(10) 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;

(11) The relative fault of the parties, in cases where the court, in its

discretion, deems it appropriate to do so; and

(12) Such other factors, including the tax consequences to each party,

as are necessary to consider the equities between the parties.

Tenn. Code Ann. §36-5-121 (i) (Supp. 2011).

After a careful review of the record as a whole, and in consideration of all

applicable factors, we affirm the Trial Court’s award of periodic alimony to Wife. This was

a marriage of 42 years. Wife and Husband lived a certain high-level lifestyle. Though both

worked, it is clear from the record that Husband earned more than Wife. Wife stayed at

home and raised the couple’s children. Wife traveled to visit Husband who often was away

for months at a time. With respect to fault, the Trial Court found that Husband “has not been

a supportive and active participant in the household at many times . . .,” is “short-tempered

and unfaithful,” and “[failed] to recognize any actions of his which were not in support of

the marriage.” The evidence does not preponderate against these findings of the Trial Court.

One of the most significant facts relevant to the alimony issue is that of

Husband’s buying, restoring, and selling vehicles for a profit. The testimony reflected that

Husband earned large sums of money in this endeavor in addition to drawing Social Security

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disability checks. Husband contends that he is no longer capable of pursuing this hobby due

to, among other things, a falling out with his sons. However, the Trial Court made a very

unambiguous credibility determination regarding Husband: “[T]he Court finds Mr. Rodgers

has little credibility. His testimony is contradicted by that of himself and others. He was

evasive in his responses.” We do not disturb the credibility determination of the Trial Court

absent clear and convincing evidence to the contrary. Hughes v. Metro. Gov’t of Nashville

and Davidson County, 340 S.W.3d 352, 360 (Tenn. 2011). The evidence does not

preponderate against the Trial Court’s finding that Wife is at an economic disadvantage in

relation to Husband. We affirm the Trial Court’s award of periodic alimony to Wife.

We next address whether the Trial Court erred in awarding Wife her attorney’s

fees. An award of alimony in solido for payment of attorney’s fees should be based on the

factors set forth in Tenn. Code Ann. § 36-5-121(i), and is appropriate when the spouse

seeking attorney’s fees does not have adequate funds to pay his or her legal expenses. Yount

v. Yount, 91 S.W.3d 777, 783 (Tenn. Ct. App. 2002). Conversely, a spouse with sufficient

property or income to pay his or her attorney’s fees is not entitled to be compensated. Koja

v. Koja, 42 S.W.3d 94, 98 (Tenn. Ct. App. 2000).

We believe the facts support a finding that the Wife’s need is such that she

requires assistance with the payment of her attorney’s fees. Wife testified to her very limited

savings. On the other hand, as we have discussed, Husband, as found by the Trial Court,

retains the ability to earn large amounts of money through buying, restoring, and selling

vehicles. We affirm the Trial Court’s award of attorney’s fees to Wife.

We next address whether the Trial Court erred in extending the Order of

Protection in favor of Wife against Husband. With respect to modifications of an order of

protection, we have stated:

The period of time of the initial order of protection shall not exceed

one year. Tenn. Code Ann. § 36-3-605(b). The trial court may modify its order

of protection at any time upon motion filed by either party together with an

affidavit showing a change in circumstances sufficient to warrant the

modification. Tenn. Code Ann. § 36-3-608(b). While the order of protection

is in effect, any court of competent jurisdiction may modify the order of

protection upon proper notice to the respondent. Tenn. Code Ann. §

36-3-605(d). If, following a hearing, the respondent is found to be in violation

of the order of protection, the court may extend the order of protection up to

five (5) years. Tenn. Code Ann. § 36-3-605(d).

***

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The party seeking a modification or extension only needs to prove “the

allegation of domestic abuse, stalking or sexual assault by a preponderance of

the evidence.” See Tenn. Code Ann. § 36-3-605(b); see also Collins v.

Pharris, No. M1999-00588-COA-R3-CV, 2001 WL 219652, at * 4 (Tenn. Ct.

App. March 7, 2001).

Wadhwani v. White, No. M2005-02655-COA-R3-CV, 2007 WL 27329, at *3 (Tenn. Ct. App.

January 3, 2007)(footnote omitted), no appl. perm. appeal filed.

Husband acknowledges having called Wife and leaving her a message. This

action was in defiance of the Order of Protection. Furthermore, while Husband asserts he

only carried a “starter pistol” to protect his dog when walking it, the Trial Court had the

contrary testimony of Ms. Mireles which it could and did credit. The evidence in the record

does not preponderate against the Trial Court’s finding that Husband violated the Order of

Protection and, after a proper hearing, the Trial Court correctly extended it.

Finally, we address Wife’s issue on appeal, whether the Trial Court erred in

declining to award Wife the cars she requested and requiring Wife to pay part of what Wife

describes as Husband’s debt out of her share of marital property. As a result of the Trial

Court’s order on the parties’ motions to alter or amend, Wife’s portion of the HELOC is

$36,250.00. Wife argues that, apart from $6,600 she concedes she incurred, she should not

be liable for what she regards as primarily the financial tool of Husband. As Wife herself

admits, however, the Trial Court has wide latitude in the division of marital debts and assets.

The evidence shows that Husband used this HELOC in his buying, restoring, and selling of

cars. Clearly, this is a debt incurred during the marriage which benefitted the marriage. We

affirm the judgment of the Trial Court on this issue, and, in all respects in this appeal.

Wife requests her attorney’s fees on appeal, arguing that, as Wife defended the

extension of her Order of Protection against Husband in this appeal, she should not bear the

cost. Tenn. Code Ann. § 36-3-617 (a) (Supp. 2011). Wife also argues she should be

awarded her attorney’s fees as alimony in solido.

We agree with Wife that she is entitled to her attorney’s fees on appeal related

to her defense of the extension of the Order of Protection. As to the remainder of her

attorney’s fees on appeal, we note that Wife raised her own issue on appeal and was

unsuccessful in that portion of this appeal. We, therefore, decline to award Wife her

attorney’s fees on appeal other than those related to her defense of the extension of the Order

of Protection.

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Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the

Trial Court for collection of the costs below and for the determination and award to Wife of

reasonable attorney’s fees on appeal for defending the Trial Court’s extension of the Order

of Protection. The costs on appeal are assessed against the Appellant, Thomas Edward

Rodgers, and his surety, if any.

_________________________________

D. MICHAEL SWINEY, JUDGE

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