### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE JULY 11 , 2001 Ses sion
PATRICIA GORE v. GEORGE D. GORE
Direct Appeal from the Circuit Court for Williamson County No. I-99389; The Honorable Russ Heldman, Judge

No. M2000-02412-COA-R3-CV - Filed Decem ber 28, 2001

This appeal arises from a complaint for divorce f iled by the Ap pellee in the Circuit Court of Williamson County. The trial court aw arded the Appellee a divorce on the gro unds of ina

ppropria te marital conduct and adultery . The trial court divided the marital property and ordered

the Appellant to pay the Appellee alimony in futuro and child support f or the pa rties’ two minor children. The trial court ordered the Appellan t to maintain life insurance to secure the alimony and child support obligat ions. Additionally, the trial court enter ed a permanent injunction restraining the Appellant from taking the children in the presence of the Appellant’s girlfriend.

The Appellant appeals the decision of the Cir cuit Court of Williamso n County

regarding the division of marital property , the award of alimony in futuro, the amount of child support awarded, the amount of life insurance ordered, and the permanent injunction. For the reasons stated herein,
we affirm in part, r

everse in part, and vacate in part the trial court’s decision. We remand this case to the trial court for further proceeding s consistent with this opinion.

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

Reversed in Part, Vacated in Part and Remanded

A LAN E. H IGHERS , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., and D AVID R. F ARMER , J., joined. Robert L. Jackson, Larry Hayes, Jr., Nashville, TN, for Appellant Denise Andre, Franklin, TN; Thomas F. Bloom, Nashville, TN, for Appellee

OPINION-2- I. Facts and Procedural History

The Appellant, Geo rg e D. Gore (“Mr. Go

re”), a nd the App ellee, Pa

tricia A . Gore ( “Ms. Gore”), were married for twenty-five ye ars. The parties had three children (“ the children”) born of the marriag e, two of

whom wer

e minors at the time of the litigati on which i s the subject of this appeal. In April, 1999, the parties sepa rated after Ms. Gore discovered that Mr. Gore was having an affair with Kim Cannon (“Ms. Cannon”).

On July 1 , 1999, Ms. Gore filed a complaint for divorce in the Circuit Court of Williamson Co un ty, alleging inappropriate marital conduct and adultery. Ms. Gor

e requested that a restraining order issue enjoining Mr. Gore from dissipating marital assets and fr om taking the childre

n in the presenceof Ms. Cannon. Mr. Gore fa iled to file an answer to the complaint. On July 2, 1999, the trial court granted Ms. Gore’s reque st for a restraining order with reg ardto the dissi pation of assets but denied Ms. Gore’s request for a restra ining order with regard to Ms. Cannon.

On July 28, 1999, the parties entered into an agreed order with respect to the p endente lite issues. Purs uant to that ag reed order, Ms. Gore rece ived temporary

custody of the childre

n and exclusive use of the marital residence. Mr. Gore rece ived standard visitation with the children. Mr. Gore was order ed to pa y M s. Gore $ 300.00 ev ery two week s and wasordere d to mainta in certa in debts of the parties. The order provided that the restraining order with reg ard to the dissipation of assets was to remain in effect.

The hearing on the complaint for divorce was held on August 9, 2000. Ms. Gore testified that she was f

orty -nine y

ears old and had a

high school educa

tion. Ms. Gore testified that she workedas a hair sty list

for the first five y ears of themarriage but had b een a ho memaker for the la st twenty y ears of the marriage. Ms. Gor e testified that she no longer had her hairstylist license a

nd didnot want

to work as a hairstylist. Ms. Gore testified that she had a medical condition during the marri age called acoustic neuroma. Ms. Gore testified that as a result of the acoustic neuroma, she hadfacial nerves cut. Ms. Gore testified that she was fully recovered from acoustic neuroma . Ms. Gore testified that she h ad high blood pre ssure but

had no he alth prob lems that prevented her from working.

Ms. Gore t estifi ed that after the parties separated, she took two jobs. She stated that she workedone or two da ys per week at a retail store, Norther n Reflections, and made $6.50 per hour. Ms. Gore testified that she also worked part time at a baker y, Costco, and made $10.50 pe r hour. She said that she worked full time hours at Costco during busy se asons but worked part time hours during slow seas ons. Ms. Go re testif ied that sh e reque sted to work full time at Costco but there were
no full time p ositions op en at tha t time. She t

estified that her gross wagesper month

based on full time hours and including her pay from both jobs equaled $1,928.22. She also testified that her wages variedeach month depending on the amount of hours she worked. She stated that shehad the a bility to make between $17,000.00 and $20 ,000. 00 per yea r. Ms. Gore testified that Costco provided medical, dental, a

nd eye insura

nce whic h was supp osed to g o into eff ect in October, 2000. She a

lso testified that she enjoyed he r job at Costco.-3-

Mr. Gore testified

that he was forty -eight y ears old and worked as a tool and die maker for Saturn Corporation. He stated that he worked between for ty and sixty

hours per we ek. Mr . Gore testified that his base salary was $52,000.00 but that he earned overtime i n addition t o his base
sa la ry. He said that he was not guaranteed to ha v e ov ertime ho

urs. I n 1997, Mr . Gore’ s gross income was $73,069 .00. In 19 98, Mr. Go re’s g ross inco me was $7 5,721.00. In 19 99, his g ross income was $83,6 64.00. Mr . Gore te stified th at his gr oss income

in 2000 t hrough July 31, 2000 was $53,741.0 0. Mr. Gor

e agreed that hi s gross income th rough July

31, 2000 amounted to $7,677.42 in gross income per month. He stated that a portion of the gro ss in come t hrough July 31, 2000 was basedon working the Christmas shutdown. Mr. Gore testified that in the pas t five y

ears, he had only worked the Christmas shutdown once.

Mr. Gore admittedthat he ha d an aff air with Ms. Cannon while he was married to Ms. Gore. Mr. Gore testified that since July 2, 1999, he had spe nt approximately $2,000.00 in gambling a nd gambling-related

expenses such as food and transportation. Mr. Gore stat ed tha t he gam

bled “to have a good t

ime and ha

ve some fun.” Mr. Gore testified that he had reduced the amount that he was contributing to the 401(k) retirement account. He listed on his income and expense statement that his monthly

gross income wa s $5,600.0 0 per mont h, but he a

greed that his mon

thly gross income was actually mor

e than $5,600.00 per month.

On August 9, 2000, the trial court entered an order granting Ms. Gore a n absolute divorce from Mr. Gore on the ground s of inapprop riate marital conduct and adultery . The trial court reserved a ll other ma

tters for inclusion in the final decree of divorce e ntered on October 6, 2000. The trial cou

rt stated in the fina

l decre e of divor

ce that a ll averme nts in Ms. Gore’s complaint were deemed admitted for

purposes of adjudi cation, with the exce ption of the claim f

or divorc e, due to Mr. Gore’s failure to file an answer to t he c omplaint. The trial court found that Mr. Gore had violated the temporary

restraining order with reg ard to the dissipation o f assets in that he used marital assets to gamble which was not a reasona ble living expense. He also found that Mr. Gore violated the tempo

rary restraining ord

er with regard to the dissipation of assets in that he had reduced the amount of

money he was c ontributing to the 4 01(k) re tirement accoun t. The tri al c ourt fou nd that Mr. Gore had “unclean hands” in that he ha d failed to follow the temporary restraining order withregard to the dissipation of assets and had given inconsistent testimony to the trial court about his monthly income. As a result of Mr. G ore’s “uncl ean hands,” the court stated that it could not consider his two proposals for division of property and assets that he submitted.

The tria l court div

ided the marital pr

operty as follow s:
Ms. Gore-4-

Item Value Debt Net Value (1) Marital Residence $160,000.00 $35,693.42 $124,306.58 (2) Bank of America Checking Account $200.00 n/a $200.00 (3) 1⁄2 Bank of America Savings A ccount $50.00 n/a $50.00 (4) 1⁄2 Union Planters Checking Account $300.00 n/a $300.00 (5) 1⁄2 Bank of America Savings A ccount $2,098.50 n/a $2,098.50 (6) 1⁄2 UAW Credit Union $359.00 n/a $359.00 (7) 1⁄2 Ba nk of Ame

rica CD $5,000.00 n/a $5,000.00 (8) 1⁄2 Saturn Corporation 401(k) $80,000.00 n/a $80,000.00 (9) 1⁄2 General Motors Pension none given n/a none given TOTAL FOR MS. GORE: $212,314.08 Mr. Gore Item Value Debt Net Value (1) Boat, Trailer, and Motor $1,500.00 -0- $1,500.00 (2) Atmos Energy

Stock $636.00 n/a $636.00 (3) Waterhouse Securities $6,333.00 n/a $6,333.00 (4) New York Life

Insurance $10,459.70 n/a $10,459.70 (5) John Hancock Life I

nsurance $1,697.50 n/a $1,697.50 (6) 1⁄2 Bank of America Savings A ccount $50.00 n/a $50.00 (7) 1⁄2 Union Planters Checking Account $300.00 n/a $300.00 (8) 1⁄2 Bank of America Savings A ccount $2,098.50 n/a $2,098.50 (9) 1⁄2 UAW Credit Union $359.00 n/a $359.00 (10) 1⁄2 B ank of Am

erica CD $5,000.00 n/a $5,000.00 (11) 1⁄2 Saturn Corporation 401(k) $80,000.00 n/a $80,000.00 (12) 1⁄2 General Motors Pension none given n/a none given TOTAL FOR MR. GORE: $108,433.70

Ad di ti on al ly, the trial court ordered Mr. Gore to pay the parties’ uns ecu red debt in the amount of $5,339.00. Taking

into acc ount the total asce rtainab le net

value of marital property

awarded to each of the part ies includ ing the marital de

bt that Mr. Gore wa s ordered t o pay, the per centage of the marital property a

warded to Ms. Gore was appro xim ately six ty-seven percen t, and the pe rcenta ge of the ma rital pro perty awarded to Mr. Go

re was a pproximate

ly th irty -three percen t.
The trial court awarded custody of the children to Ms. Gore and awarded standa rd visitation to Mr . Gore . Mr. Gore was also ordered to pay alimony in futuro to Ms. Gore in the amount of $1,500.00 per

month until Ms. Gore’s death or remarriage. Mr. G ore was to maintain life insurance in the amount of $200,000.00 to secure his alimony obligation. The tria

l court or dered Mr . Gore to pay child support to Ms. Gore in the amount of $ 1,712.00 p er mo nth. Mr. Gore wasordere d to maintain life insurance in the amount of $150,000.00 to secure his child support obligation. The trial court entered a permanent restraining order e njoining Mr. Gore from permitting the children to have contact with Ms. Cannon during his visitation. This appeal followed.
II. Standard of Review-5-

The standardof revie

w for a n on-jury

case is de novo upon the record. See Wright v. City of Knoxville , 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of correctness as to the trial court’s factual findings, unless the preponder ance of the evidence is otherwise. See T ENN

. R. A PP

. P. 13(d). F

or issuesof law, th

e standa rd of review is de novo , with no presum ption o f correctness. See Ridings v. Ralph M. Parsons Co. , 914 S.W.2d 79, 80 (Tenn. 1996).

III. Law and Analysis Mr. Gore presents the following issues for our re view:

1. Whether th

e trial c ourt err

ed by awarding Ms. Gore sixty-seven perc ent of the parties’ marital assets; 2. Whether

the trial court erred by

awarding Ms. Gore alimony in futuro in the amount of $1,500.00 pe r m on th in st ea d o f r eh ab il it at iv e a li mo ny; 3. Whether the trial court erred by requiring Mr. Gore to maintain $200,000.00 in life ins urance

to secure his alimony oblig ation; 4. Whether the trial court erred by taking judicial notice of certain matters in this case; 5. Whether the trial court erred by awarding Ms. Gore child support in the amount of $1,712.00 per month; 6. Whether the trial court erred by requiring Mr. Gore to maintain $150,000.00 in life ins urance

to secure his child support obligation; and 7. Whether the trial court erred by permanently e

njoining Mr. Gore from taking the children in the presence of Ms. Cannon. Ms. Gore presents the following additional issues for our revie w: 8. Whether Mr. Gore’s failure to file a responsive pleading constituted an admission of Ms. Gore’s allega tions reg arding

the fina ncial issu es; 9. Whether the trial court properly refused to consider Mr. Gore’s proposals as to property division and alimony due to Mr. Gore ’s “unclean hands”; and 10. Whethe

r this Cour

t should aw ard Ms. Gore her attorne y’ s fees on

appeal. We will examine each issue in turn. Division of Marital Property

The first issue presented

for our review is whether the trial court erred by awar ding Ms. Gore sixty-seven

percent of the par

tie s’ marital assets. After character izing the parties’ assets as either marital or separate property , the trial court will give each party their sepa

rate property

and then make
an equitable division of marital assets. See Batson v. Batson , 769 S.W.2d 849, 856 (Tenn. Ct. App. 1988). An equitable division of property does not necessarily

mean an equal division. See Bookout
v. Bookout , 954 S.W.2d 7 30, 732 (Tenn. Ct. Ap p. 1997); Batson , 769 S.W.2d at 859. “The division of the esta te is not re ndered inequitab le simply because it is not math

ematica lly e qual, or b ecause

each party did not receive a share of every item of marital property .” King v. King , 986 S.W.2d 216, 219 (Tenn. Ct. A pp. 19 98) (ci ting Cohen v. Cohen , 937 S.W.2d 82 3, 832 (Te nn. 1996) ; Ellis v. Elli s , 7481 Sec tion 3 6-4 -12 1(c) pro vide s: In m akin g eq uitab le div ision o f m arital pro perty , the co urt sh all
con sider a ll releva nt fac tors inc ludin g: (1) T he d uratio n of the m arriag e; (2) T he ag e, ph ysica l and me ntal h ealth, v oca tiona l skills, employabil it y, ear

ning ca pacit

y, es tat e, f

inanci al l iabi li ti es and finan cial ne eds o f each of the parties ; (3) The tangibl e or int angible contributi on by one (1) party to t he edu cation , trainin g or incre ased earn ing p ow er of th e oth er pa rty; (4) T he re lative a bility o f each party for fu ture a cqu isitions o f cap ital assets an d inc om e; (5) T he co ntribu tion o f each party to the a cqu isition, p reserv ation , appreci ati on or di ssi pati on of t he marit al or separ ate propert

y, i ncludi ng the contribution of a party to the marriage as hom emak er, wage earner or parent, with the contribution of a party as hom emak er or wage earn er to be give n the sam e w eigh t if each party has fu lfilled its role ; (6) T he v alue o f the se para te pro perty of ea ch p arty; (7) T he es tate of e ach party at the tim e of th e m arriag e; (8) The e conomic ci rcumsta nces of each party at

the t ime the divi sion of p rop erty is to beco me effec tive; (9) The t ax conse quences to ea ch part y; and (10) Su ch othe r factors as are n ecessary to conside r the equ ities betw een the p arties. T ENN

. C ODE A NN . § 36 -4-1 21( c) (Su pp. 2 000 ).

-6- S.W.2d 424, 427 (Tenn. 198 8); Brownv. Brown , 913 S.W.2d 163, 168 (Tenn. Ct. App. 1994)). In determining what constitutes an equitable division of marital assets, the court will consider the factors listed in section 36-4-121(c) of the Tennessee Code. 1 The court must make the division of marital property without reg ard to marital fault. See T ENN

. C ODE A NN . § 36-4-121(a)(1) (Supp. 2000).

The tr ia l c ou rt ’s cl as si fi ca ti on an d d iv is io n o f m ar it al pr op er ty enjoys a presumption of
correctness and will be rev ersed or modified only if the evidence preponderates ag ainst the trial court’s decision. See Lancaster v. L ancaster , 671 S.W.2d 501, 502 (Ten n. Ct. App. 1984); Hardin
v. Hardin , 689 S.W.2d 152, 1 54 (Tenn . Ct. App. 1983). “[T]he trial court is granted broad discretion in adjusting

and adjud

icating the part ies’ inte rest in all jointly owned

property. I

ts decision regarding division of

the marit al prope rty is entitled to great weight on appeal.” Watters v. Watters , 959 S.W.2d 585, 590 (T enn. C t. App . 1997 ) (cit ing Batson , 769 S.W.2d at 859). The fair ness of the proper

ty division is judged upon its final results. See Wade v. Wade , 897 S.W.2d 702, 717 (Tenn. Ct. App. 1994) (citi ng Thompson v. Thompson , 797 S.W.2d 599, 604 (Tenn. Ct. App. 1990)).

In the case

at bar, Mr. Gore argues tha t the tr ia l c ou rt er re d i n i ts di vi si on of ma ri ta l p ro pe rt y. Mr. Gore suggests that this Court should divide the house and the New York Life I nsurance policy equally between the parties so that Ms. Gore would re ceive f

ifty -one per

cent of t he marita l proper ty andMr. Gore would receive forty-nine percent of the marital property

. Mr. Gore argues that an equal division of

the parties’ marital assets would constitute an equitable division. As stated above, a n equitabl e division of property doesnotnecessarily mean an equal division. The primary difference2 Section 3 6-5-1 01(d )(1) pro vides: It is the inte nt of th e gen eral ass em bly th at a spo use w ho is e con om ically disadvantaged, relat

ive to t he other spouse, be rehabil itat ed whenever possible by the granting of an order for pa yme nt of rehabilitat ive, temporary support and maint enance. Where the re i s suc h rel ati ve economic di sadvant age and re habilitation is not feasib le in consid eration of a ll relevant factors, including those set out in this s ubsection, then the court may grant an order for payment of s upport a nd mainte nance on a l ong-te rm basi s or unt il the de ath (con tinue d...)
-7- betweenMs. Gore receiving sixty -seven perce nt of th e m ar it al pr op er ty a nd Mr . G or e r ec ei vi ng th ir tythree percen

t of the ma

rital pro perty is due to the awar

d of the ma

rital r e sidence to Ms. Gore. The trial court was not required to divide the equity in the marital residence. Rather, in awarding the marital residen

ce, the t rial cou rt had to g

ive spec ial consid

eration to Ms. Gore as the spouse having physical custody

of the children. See

T ENN

. C ODE A NN . § 36-4-121(d) (Supp. 2000).

The trial court stated that it considered all the factors in section 36-4- 121 in maki n g an equitabl e distribution of marital property . We conclude that the trial court pr operly consider ed these factors in award

ing Ms . Gore a greater share of the marital estate than Mr. Gore in this case. Mr. Gore has greater i ncom e and ea rning potential th an Ms. Gor e, as well as a g

reater ability to accumul ateassets in the future. In light of the duration of

the par ties’ marriage, Ms. Gore’s significant

contributions to the marriag e as a homema ker, and the gre at dispar

ity in the par

ties’ earning abilities , we hold t hat the tr ial cour t did not abuse its discre tion in awarding Ms. Gore a larg er portion of the marital asset s than Mr. Gore. Under the circumstances of this ca se, the trial court
ac hi ev ed an eq ui ta bl e d is tr ib ut io n o f t he pa rt ie s’ ma ri ta l p ro pe rt y. A cc or di ng ly, we affirm thetrial court’s award of sixty-se

ven percent of the marital property to Ms. Gore. Alimony

The se co nd is su e p re se nt ed fo r o ur re vi ew is wh et he r t he tr ia l c ou rt er re d b y awardin g Ms

. Gore alimony in futuro in the amount of $1,500.00 per month instead of rehabilitative alimony . The trial court has broad discretion concerning the amount, type, and dura tion of spousal support based on the particular facts involved. See Watters , 959 S.W.2d 5 85 at 593. The tria l court’sdecision

is entitled to great weight on appeal a nd will not be disturbe d absent a showing of abuse of discretion. See id. (citi ng Aaron v. Aaron , 909 S.W.2d 408, 410 (Ten n. 1995); Luna v. L

una , 718 S.W.2d 673, 675 (Tenn. Ct . App. 198 6)); Wi lson v. Moore , 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996). Ac co rd in gl y, this Court is not inclined to alter a trial court’s award of alimony “unless it is not supported by the evidenc e or is contrary to the public policy embodied in the applica b le statutes.” Brownv. Brown , 913 S.W.2d 163, 1 69 (Te nn. C t. App . 1994 ) (cit ing Gilliam v. Gilliam , 776 S.W.2d 81, 86 (Te

nn. Ct. App . 1988); Ingram v. I ngram , 721 S.W.2d 262, 264 (Tenn. Ct. App. 1986)).

Whether an alimony

award is appropriate is dependent on the facts and circumstances of each
case. While the a

limony analy si s is factually driven, the court must also balance several statutory factors including

those enumerated in section 36-5-101(d)(1) of the Tennessee Code. 2 See Denton v.2 (.. .continued) or remarriage of the recipient except as otherwise provided in subdivision (a)(3). Rehabilitative support and maintenan ce is a separate cl ass of spousal support as di sti nguishe d from al imony in s oli do and peri odic a li mony. In det ermini ng wh ether the g rantin g of an o rder for p aym ent o f sup por t and ma inten anc e to a p ar t y i s ap pr op ri at e, an d i n d et er mi ni ng t he na t ur e, amo un t , l en gth o f t er m, and manner of pa yment, t he court shal l cons ider

allrel evant fact ors, incl uding: (A) The relat ive earni ng capacity, obligat ions, needs , and fi nancial r esources of ea ch p arty, in clud ing in com e from pen sion, p rofit sh aring or retire me nt plans an d all other sou rces; (B) T he re lative e duc ation and trainin g of each party , the ab ility and opp ortu nity of ea ch p arty to secu re suc h ed uca tion a nd tra ining , and the n ecess ity of a party to secu re fur ther e duc ation and trainin g to im pro ve su ch p arty’s earn ing c apa city to a rea son able le vel; (C) The duration of t

he marriage; (D) The age a nd mental condit ion of each par

ty; (E) The physical conditi on of each party, includi ng, but not l imited t o, physical disabi lit y or incapaci ty due to a chroni c debili tati ng disease; (F) The e xtent

to whic h it

would be undes irable f or a party t o seek e mployment outside t he home because such party willbe custodia n of a minor child of the marriage; (G) The separate asset s of each part y, both realand personal, tangibl e and intangi ble; (H) The provi sions made with r egard t o the mari tal propert y as def ined i n § 36-4-121; (I) The st andard of li ving of the part ies es tabli shed during the marri age; (J) The ext ent t o which eac h part y has made s uch ta ngibl e and i ntangi ble c ontri buti ons to the ma rriage as m one tary a nd h om em ake r con tributio ns, an d tan gible and intan gible contr ibut ions by a part y to t he educat

ion, tra ini ng or i ncreas ed earni ng power of t he other part y; (K) T he relative fau lt of the parties in cases w here the c ourt, in its discretion, dee ms it appropri ate to do s o; and (L) Such other factors, including the tax consequen ces to each party, as are necessary to consid er the equ ities between the parties. T ENN

. C ODE A NN . § 36-5-101 (d)(1) (Supp. 200 0).
-8- Denton, 902 S.W.2d 93 0, 932 (Te nn. Ct. App . 1995); Brown , 913 S.W.2d at 169. Alth ough al l statutory factor s listed in s ection 36 -5-101( d)(1) a re import ant and w ill be consi dered by the trial court, “need and the ability to pay are the critical factors in setting the amount of an alimony award.” Koja v. Ko

ja , 42 S.W.3d 94, 100 (Tenn. Ct. App. 2000).

Section 36-5-101(d)(1) reflects a pre ference for temporary

su pp or t, or re ha bi li ta ti ve al im on y, as opposed to long-term support, or alimony in futuro. See T ENN

. C ODE A NN . § 36-5-1 01(d)(1 ); see also Wilson , 929 S.W.2d a t 375. “The purpose

of reha bilit ative a limony is to enable the disadvan taged s pouse to

acquire additional job skills, education, or training that will enable him or her to be more self-sufficient.” Kinardv. Kinard , 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998) (citing Smithv. Smith , 912 S.W.2d 155, 160 (Tenn. Ct. A pp. 1995) ; Cranford

v. Cranford , 772 S.W.2d 48, 51 (Tenn. Ct. App. 1989)). In contrast, the purpose of alimony in futuro is to provide support to an economically disadva

ntaged spouse who is unable to achieve some degree of self-sufficiency. See Lori a v. Lor ia , 952 S.W.2d 836, 838 (Tenn. Ct. App. 1997). A court may g rant alimony in futuro only-9-

where rehabilitation of the economically disadvantaged spouse is not feasible. See Aaron v. Aaron , 909 S.W.2d 40 8, 410 (Te nn. 1995) ; Self v. Self, 861 S.W.2d 360, 361 (Tenn. 1993).

In the ca se at bar , Mr. Gor e argues that the

trial cou rt should h ave awa

rded Ms. Gor e rehabilitative alimony

rather than alimo ny in futuro. Mr. Gore argue s that Ms. Gore is gainf ully employed and has the ability to maintain a re asonable level of e arnin gs and r emain self-suff

icient. Based upon the evidence presented at trial, we conc lude that an award of rehabilitative alimony

is not appropr iatein this case. In consideration of the disparity in the parties’ earning capacities, Ms. Gore’s limited earning

capaci ty, the infe asibility

of Ms. Gore’s rehabilitation, the twenty-five year dur ation of the marriage, the tangible a nd intangible contributions that Ms. Gore made as a homemaker during the marriage, and the fault of Mr. Gore in precipitating this action for divorce, we hold thatthe trial court did not err in awarding Ms. Gore alimony in futuro. Accordingly , we affi rm the t rial court’s decision awarding Ms. Gore alimony in futuro in the amount of $1,500 per month until her death or remarriage. Life Insurance to Secure Alimony Obligation

The third issue presented for our review is whether the tr ial court erred by

requiring Mr. Gore to maintain $200,000.00 in life insurance to secure his alimony obligat ion. Mr. Gore doesnot dispute that he is required to maintain life insurance to secure his alimony obligation. R ather, Mr. Gore argues th at in th e e ve nt th is Co ur t m od if ie s M r. Go re ’s al im on y obligat io n, $200,000.00 would be
an excessive amount of life insurance for Mr. Gore to maintain. Because we decline to modify Mr. Gore’s alimony obligation, we likewise decline to m odify the amoun

t of life insuranc e he must maintain to secure his alimony oblig ation. Accordingly , we affirm the trial court’s order requiring Mr. Gore to maintain $200,000.00 in life insurance to secure his alimony obligation.
Judicial Notice

The fourt h issue presented for our review is whether the trial court erred by

taking judicial notice of certain matters in this case. Rule 201 of the Tennessee Rules of Ev idence p ermit s a trial court to take ju dicial no tice of a djudicat i ve fact s wheth er requested or not. See T ENN

. R. E VID

. 201(c). A trial court may ta ke judicial notice of only c ertain kinds of facts. “A judicially

noticed fact must be one not subject to reasona ble dispute, in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accura

te and ready

determination by re sort to sources whose accuracy cannot reasonably

be questioned.” T ENN

. R. E VID . 201(b).

In the case at bar, the trial court took judicial notice that “there is an implied prejud ice t o people with facial disfigurements, in the workplace, t hou gh not a

lway s overtly

prejudic ed, those individua ls with facial disfigurements are often not ac c orded the same kind of trea tment as people withattract

ive fac ial feat

ures. Asa

result, th e Court fo und that Ms . Gore f

aces an uphill batt

le inthe work place in attempting to hav e certa

in options a

vailable to her that she might not otherwise have.” We find that the trial court erred by taking judicial notice that Ms. Gore’s facialdisfigu rement w ould cause he r to face a n uphill ba

ttle in the workplace due to an implied prejudice to people with facia l-10-

disfigu rements. This is not the kind of fa ct of whic

h a court may take judi cial notic e. This fa ct is subject to reasonable dispute in that it is neither gener ally known within the territorial jurisdiction of the trial court nor capable of accur ate and ready determination by re sort to sources whose accuracy cannot reasonably

be questioned.

Alth ough we find that the trial court erred by taking judicial notice, we find this erro r was harmlessin that it did not affect the merits of the trial court’s decision. The trial court took judicial notice of an impli ed preju dice to Ms . Gore in the work place in the conte xt of its alimo ny a

ward to Ms

. Gore. The trial court stated, however, that it also consider

ed Ms. Gor

e’s ag e and limit

ed capa city to
earnincome c omparab le to Mr. Gore, Ms. Gore’s contributions as a housewife to the marital estate, Mr. Gore’s fault, all the factors listed in section 36-5-101 (d)(1) , all the e vidence , and the c

redibilit y of Ms. Gore as a witness in making its awar d of alimon

y in futuro. We find that the evidence preponderates in favor of the tri al court ’s awar d of alimon

y in futuro even abse

nt the judicially noticedfact

of an implied prejudice to Ms. Gore in the workplace. Acc ordingly, we find that the trial court’s error was harmless error in that it did not affect the merits of the trial court’s decision. Child Support

The fifth issue presented for our review is whether the trial court erred by awar ding Ms. Gore child sup por t i n t he a mo unt of $ 1,7 12. 00 p er m ont h. In determin ing chil d support, courts mu st apply
as a rebutt able pre sumption the

Tenness ee Child

Support Guidelines (“the Guidelines”) promulgated by the Tennessee Department of Human Services. SeeT ENN

. C ODE A NN . § 36-5-101(e)(1) (Supp. 2000). Under the Guidelines, the a mount of child suppor

t is calcul ated b ased o n a perc entage of the obligor parent’s net income. See T ENN

. C OMP

. R. & R EGS . ch. 1240-2-4-.03 (1994). For two minor children, as in the case at bar, that percentage is thirty-two perc ent. See id. Since the Guidelines speak in terms of percentages, the trial cour t is required to determine the obligor’s net income before it can set child support. See id. Applying the Guidelines is straightforward when the obligor ’s income is stable. It is common for an obligor’s income to fluctuate, however, because income may include o vertime

pay , bonuses , stock options, or other incentive compensation. The Guidelines require that gr oss income

includes all income f

rom any source including

variabl e income

such as c ommissions, bonuses, ov er ti me pa y, or dividen ds

. See T ENN

. C OMP

. R. & R EGS . r. 1240-2-4-.03(3)(a) (1994). I f an obligor parent receiv es overt

ime pay , as in the

case at bar, tha t variab le income

“should be

averaged and a

dded to the obligor’s fixed salary .” T ENN

. C OMP

. R. & R EGS

. r. 1240-2-4-.03(3)(b) (1994). The Guidelines do not prescribe how variabl e income should be averaged for establishing current child support obligat ions. Fo r pas t child sup

port oblig ations, ho wever, the Guide lines do pr

escribe that inco me should be av er ag ed ov er a p er io d o f t wo ye ars. See T ENN

. C OMP

. R. & R EGS . r. 1240-2-4-.04(e) (1997). Referr

ing to thi s provisio n, the cou rt of app eals in Brown v. Brown , No. 03A01-9812-CV00417, 1999 WL 552854, at *5 (Tenn. Ct. App. July 28, 1999) , stated:

While this provision does not mandate that trial courts average variable monthly income f rom the past two yea

rs to determine-11- gross income for current child support, it does ref lect the legislative intent that when the exact amount of gross income is not known an average must be taken, a nd a period of two y ears is an appropriate time period to average that income. Id.

The court s must d eterm ine on a case- by-case ba sis t he mos t appr opria te way to av erage variabl e income for current child support. See Hanselmanv. Hanselman , No. M1998-00919-COAR3-CV, 2001 WL 252792, at *3 (Tenn. Ct. App. Mar. 15, 2001). In Tennessee , courts have consiste ntly rejected basing child support obligations on variable income averag es of short duration. See id. at *5 (rejecting a proposed several-months average in fa vor of a three- ye ar aver

age); Miglin
v. Miglin , No. 01A01-9802-CH-00080, 1999 WL 398205, at *3 (Tenn. Ct. App. June 18, 1999) (rejecting a proposed four-month average in favor of a one-y

ear average) ; Whitfield v. Whitfield , No. 03A01-9404-CV-00140, 1994 WL 465796, at *2 (Te nn. C t. App . Aug. 30, 1994) (rejecting a fivepay-per iod average in favor of

a one-ye ar average). Courts have consiste ntly approve d basing

child support obligations on variable income averag es for periods of a year or longer when warranted by the circumstances. See Alexander v. Alexander , 34 S .W.3d 456, 464-65 (Tenn. Ct. App. 2000) (adopting a four-y ear average) ; Norton v. Norton , No. W1999-02176-COA-R3CV, 2000 WL 52819 at *7 (Tenn. Ct. App. Jan. 10, 200 0) (adopting a tw o-y ear ave rage) ; Smith v. Smith , No. 01A01-9705- CH-00216, 1997 WL 672646, at *3 (Tenn. Ct. App. Oct. 29, 1997) (adopting a three-y ear average) ; Bell v. Bell , No. 01A01-9511-CH-00493, 1996 WL 548150, at *1 (Tenn. Ct. App. Sept. 25, 1996) (adopting a four-y

ear average)

. In the case at

b ar, the trial court ordered Mr. Gore to pa y child support to Ms. Gore in the amount of $1,712.00 per month. The trial court stated that it calculated child support based on Mr. Gore’s gross average inc om e of $ 7,676.00 per month for the first seven months of the year 2000. Becau se Mr. Gore ’s gros s income in cludes ov erti me pay, and in ac cordanc e with the courts in Tennessee, we find that the trial court erred in averaging Mr. Gore’s gross income over a pe riod of onl y seven mo nths. A two-year average would be a more appropriate period in the case at bar. Ac co rd in gl y, we reverse the trial court’s awa rd of child support in the amount of $1,712.00 per month andremand for

a redetermination of child support based on an avera ge of Mr. Gore’s overtime pay over the two ye ar period prior to the trial.

Life Insurance to Secure Child Support Obligation

The sixth issue presented for our review is whether the trial court er redby requiring

Mr. Gore to maintain $150,000.00 in life insurance to secure his child support obligation. Mr. Gore does not dispute that he is required to maintain life insurance to secure his child support obligation. Rather, Mr. Gore argues that the amount of life insuranc e that the

trial cou rt order ed that he maintain i s in
error. We agree. We reversed the a mount of child support Mr. Gore was ordered to pay by the trial-12-

court and rema nded for a redet erminati on of chil d support in accor dance with this opinion. Likewise,
we must reverse the amount of life insurance Mr. Gore was ordere d to mainta

in to secure

his child support obligation because the trial court based this determination upon the o

rigina l amount of

child supp ort that Mr. Gore wasordere d to pay . Accor dingly , we rema

nd to the tr

ial c ourt for a redetermination of the amount of life insurance Mr. Gore must maintain to secure his child support obligation based upon the redetermination of child support. Restraining Order

The seventh issue presented for our review is whethe r the trial cour

t e rr ed by permane

ntly enjoining Mr. Gore from taking the children in the presence of Ms. Cannon. On July 19, 2001, Mr. Gore filed a motion in this Co urt to con sider the

post judgment fact that he had married Ms. Cannon
on June 16, 2001. At oral argument in this case, the attorney for Mr. Gore argued that

the ma rriage hada bearing on whether the re straining order should rem ain in effect. The attorney for Ms. Gore agreed at oral argument that the children could be in the presenc e of Ms. Cannon now that Mr. Gore andMs. Cannon were married. The attorney for Ms. Gore stated that as a result of the marriage, the restraining order was no longer an issue on appeal. Without reaching the merits of the trial court’s decision to initially impose the restraining orde r, we find that the restraining order is no long er appropr iatein light of the marriage of Mr. Gore and Ms. Cannon. Ac cordingly , we v acate the restraining order enjoining Mr. Gor e from taking the children in the presence of Ms. Cannon.

Failure to File a Responsive Plea

ding

The eighth issue presented for our review is whether Mr. Gore’s failure to file a responsive pleading constituted an admission of Ms. Gore’s allegations regarding the fina ncial issu es. Bec ause we have resolved the finan cial issues without regard to Mr. Gore’s failure to file a responsive pleading, this issue is pretermitted.

Unclean Ha nds

The ninth issue presented for our review is whether the trial c ourt properly r efused to consider Mr. Gor e’s proposals as to property division and alimony due to Mr. Gore’s “ unclean hands.” Becaus e we have resolved the property division and alimony issues without regar d to whether Mr

. Gore had “unclean hands,” this issue is pretermitted.

Attorney’s Fees

The final issue pres ented for our review is whether this Court should award Ms. Gore her attorney’sfees on appeal. Ms. Gore arg ues that she lack s liquid

assets to pay her

attorney’s f

ees on appeal andwill be co mpelled to dissipate marital a ssets if

this Court fails to award her attorney ’s fees
on appeal. An award of attorney ’s fees is “appropriate when the spouse see king them lacks sufficient funds to pay his or her own legal expe nses o r would be require d to deple

te his or her resources in-13-

order to pay these ex

penses.” Smit h v. Smith , 984 S.W.2d 606, 610 (Tenn. Ct. App. 1997) (citing Brown v. Brown , 913 S.W.2d 163 (Tenn. Ct. App. 19 94)). I f a wife is financ ially

unable to afford counsel and the husband has the ability to pa y, the court

may order

the husband to pay

the attorney’ s fees of the wife. See Kincaid v . Kincaid , 912 S.W.2d 1 40, 144 (Tenn. Ct. App. 1995). Though one spouse may receiv e most of th

e assetsin a trial

court’sdivision of

propert y, t he court may still award attorney’sfees to allow that spouse to p reserv e th e assets awarded. See Wilson v. Wilson , 987 S.W.2d 555, 5 66 (Te nn. C t. App . 1998 ) (cit ing Lancaster v. Lancaster , 671 S.W.2d 501 (Tenn. Ct. App. 1984)). We find that Ms. Gore does not ha

ve suffi cient liqu

idassets to pay her

attorney’s f

ees on appeal and Mr. Gore

has the financi al ability

to pay Ms. Gore ’s attorn

ey ’s fees . Mr. Gor

e should bear the reasonable fees of Ms. Gore’sattorney on appe al. Accordingly , we remand this issue to the trial court to determine and award a reasonable fee for

the time and expense of Ms. Gore’s attorney on appeal. See Holt v . Holt , 995 S.W.2d 68, 78 (Tenn. 1999).
IV. Conclusion

For the foregoingreasons, the decision of thetrial cou rt is aff irmed in pa

rt, reve rsed in pa rt, andvacated in part. We remand this case to the trial court for fur ther p roceed ings consiste nt with this opinion. Costs of this appea l are t axed aga inst the Appellant, George D. Gore, and his sure ty, for which exe cution ma

y is sue if necessary.

ALAN E. HIGHERS, JUDGE