FILED

March 12, 1997

Cecil W. Crowson

Appellate Court Clerk

CHARLES LORIA, )

)

Plaintiff/Appellant, )

) Franklin Chancery

) No. 22182

VS. )

) Appeal No.

) 01-A-01-9609-CH-00441

FLORENCE M. LORIA, )

)

Defendant/Appellee. )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT OF WILLIAMSON COUNTY

AT FRANKLIN, TENNESSEE

HONORABLE CORNELIA A. CLARK, CHANCELLOR

Mark W. Henderson

P.O. Box 8822

Gallatin, TN 37066

ATTORNEY FOR PLAINTIFF/APPELLANT

William Carter Conway

236 Court Square

Franklin, TN 37064

ATTORNEY FOR DEFENDANT/APPELLEE

MODIFIED AND REMANDED

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

SAMUEL L. LEWIS, JUDGE

WILLIAM C. KOCH, JR., JUDGE
-2-

CHARLES LORIA, )

)

Plaintiff/Appellant, )

) Franklin Chancery

) No. 22182

VS. )

) Appeal No.

) 01-A-01-9609-CH-00441

FLORENCE M. LORIA, )

)

Defendant/Appellee. )

O P I N I O N

In this appeal by the husband from a divorce decree, the only issue is the award of

alimony in futuro rather than rehabilitative alimony. Subordinate issues are the ability of the

wife to work, her needs, and the ability of the husband to supply her needs.

At the time of the divorce, each of the parties was 56 years old; they had been married

for 35 years and separated for 2-1/2 years; and their children were adults. The husband

received a monthly retirement of $2,442.10 and earned $2,499.40 per month from his present

employment. The wife was a homemaker during the marriage and worked only at brief

intervals. She claims disability for work. The parties owned two residences, four vehicles,

and other personalty which were divided to their satisfaction.

As pertinent to this appeal, the divorce decree provided:

1. The parties were declared to be divorced pursuant to T.C.A. § 36-4-129. (No

fault determined.)

2. Husband was ordered to pay alimony in futuro of $3,000.00 per month until

wife’s death, remarriage or modification or termination by the Court.

3. Wife was awarded one-half of husband’s pension.
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4. Wife was awarded one-half of husband’s interest in the stock in his company.

On appeal, the husband insists that the award of periodic alimony was inconsistent

with T.C.A. § 36-5-101(d)(1) which states:

 It is the intent of the general assembly that a spouse who is

economically disadvantaged, relative to the other spouse, be 

rehabilitated whenever possible by the granting of an order for 

payment of rehabilitative, temporary support and maintenance. 

Where there is such relative economic disadvantage and rehabilitation is not feasible in consideration of all relevant factors, 

including those set out in this subsection, then the court may 

grant an order for payment of support and maintenance on a 

long-term basis or until the death or remarriage of the recipient 

except as otherwise provided in subdivision (a)(3). Rehabilitative support and maintenance is a separate class of spousal 

support as distinguished from alimony in solido and periodic 

alimony. In determining whether the granting of an order for 

payment of support and maintenance to a party is appropriate, 

and in determining the nature, amount, length of term, and 

manner of payment, the court shall consider all relevant factors, 

including:

(A) The relative earning capacity, obligations, needs, 

and financial resources of each party, including income from 

pension, profit sharing or retirement plans and all other sources;

(B) The relative education and training of each party, 

the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further 

education and training to improve such party’s earning capacity 

to a reasonable level; 

(C) The duration of the marriage;

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

(E) The physical condition of each party, including, but 

not limited to, physical disability or incapacity due to a chronic 

debilitating disease.

(F) The extent to which it would be undesirable for a 

party to seek employment outside the home because such party 

will be custodian of a minor child of the marriage.

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

personal, tangible and intangible;

(H) The provisions made with regard to the marital 

property as defined in Sec. 36-4-121;

(I) The standard of living of the parties established 

during the marriage. 
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(J) The extent to which each party has made such 

tangible and intangible contributions to the marriage as 

monetary and homemaker contributions, and tangible and 

intangible contributions by a party to the education, training or 

increased earning power of the other party;

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

in its discretion, deems it appropriate to do so; and

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

party, as are necessary to consider the equities between the 

parties.

(2) An award of rehabilitative, temporary support and maintenance shall remain in the court’s control for the duration of 

such award, and may be increased, decreased, terminated, 

extended, or otherwise modified, upon a showing of substantial 

and material change in circumstances. Rehabilitative support 

and maintenance shall terminate upon the death of the recipient. 

Such support and maintenance shall also terminate upon the 

death of the payor unless otherwise specifically stated. The 

recipient of the support and maintenance shall have the burden 

of proving that all reasonable efforts at rehabilitation have been 

made and have been unsuccessful.

Alimony in futuro is a designation of alimony paid periodically, as distinguished from

alimony in solido which is paid in a single lump sum of cash or property. Alimony in futuro, or

periodic alimony is subject to the continuing control of the Trial Court, whereas alimony in

solido or lump sum alimony is generally considered a final judgment, ordinarily unchangeable

by the court after expiration of the time for appeal.

Alimony in futuro may be made subject to limitations or conditions, but it nevertheless

remains subject to the control of the court. In this respect, rehabilitative alimony may be

considered a species of alimony in futuro. It is paid periodically and remains subject to the

control of the court. It distinguishing characteristic is the purpose for which it is awarded, which

is to provide a temporary income during a period of adjustment and effort of the dependent

spouse to become partially or totally self sufficient. During this period, the Court retains the

authority to make appropriate adjustments in keeping with changing circumstances and

developments.
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If a dependent spouse does not satisfactorily strive for self sufficiency, the Court may

withdraw part or all of the support allocated to finance rehabilitation. If the dependant spouse

demonstrates complete inability to achieve even partial self sufficiency, the Court may grant

alimony in futuro to provide for the needs of the dependent spouse.

If the dependent spouse achieves partial self sufficiency but demonstrates inability to

achieve total self sufficiency, the Court may grant sufficient alimony in futuro to supplement the

earning capacity of the dependent spouse.

Of course, all of the foregoing must be administered within the capability of the

supporting spouse to provide the needed support.

In the present case, the first factual question to be answered is, what are the needs of the

dependent spouse? Other than fixing the amount of the alimony, the Trial court expressed no

finding as to the amount of the wife’s needs.

On May 2, 1995, the wife signed a statement reflecting a need for $720.00 per month.

The items listed thereon were:

Groceries $ 250.00 Laundry $ 10.00

Clothing 75.00 Dry Cleaning 20.00

Gasoline 80.00 Haircuts/Hair care 25.00

Gifts 25.00 Entertainment 100.00

Miscellaneous

75.00

Church Contribution 50.00

Books & Magazines 10.00

Sub Total $720.00

Installment debts not included in above schedule: Unpaid Monthly

Balance Payments

Furniture $______ $______

Car Note _______ _______

Appliances _______ _______

Mortgage Note _______ _______

Hospital _______ _______

MasterCard _______ _______

Sub Total _______ _______
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Total Monthly Payout $720.00

On July 24, 1995, the wife signed a statement reflecting needs of $3,153.00 per month

consisting of the following:

Rent $ Laundry $10.00

Gas Heat 75.00 Dry Cleaning 20.00

Electric Bill 130.00 Haircuts/Hair care 45.00

Water 47.00 Babysitter/Day care 

Telephone 95.00 Life Insurance 50.00

Groceries & Eating Out 450.00 Property Insurance

Cable 22.00 HospitalInsurance - Husband to pay

Recreation 104.00 Doctors 75.00

Clothing 125.00 Dentists 35.00

Auto Insurance 75.00 Drugs & Health Supplies 30.00

Gasoline 120.00 Entertainment 

Other Auto Expense 50.00 Miscellaneous

100.00

Home Maintenance and Church Contribution 30.00

 Furniture Replacement 230.00 Books & Magazines 20.00

Gifts 80.00 Pest Control/Trash Pickup 50.00

Taxes on Alimony 400.00 Pet Expenses 30.00

Vacation & Travel 100.00

Sub Total $2,598.00

Unpaid Monthly

Installment debts not included in above schedule: Balance Payments

Mortgage Note $_______ $ 555.00

MasterCard - $5,130 (Wife is asking that husband pay)

Vanderbilt Medical Clinic (approximately $600 - wife

has given bills to husband.)

Sub total $_______ $ 555.00

 Total Monthly Payout $3,153.00

The latter statement acknowledged receipt of $1,207.38 per month from husband’s

retirement. Thus, the net needs of the wife reflected by the latter statement were $3,153.00

minus $1,207.38, or $1,945.62. Moreover, the mortgage payment would terminate upon sale of

the home which would create a need to purchase another home or pay rent. The value of the

equity in the two homes was stipulated to be $185,000, so that the wife’s expectation from the

sale of the homes would be approximately $90,000.00, the price of a modest home or the source

of approximately $500.00 per month income.
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It appears from the latter statement of the wife that her needs are approximately

$2,000.00 per month. 

As to the ability of the husband to pay, the Trial Court made no specific finding. On July

25, 1995, the husband signed a statement reflecting monthly income (including retirement) of

$3,706.90. A total of $3,493.08 expenses were listed, including:

REGULAR MONTHLY EXPENSES:

A. General Expenses:

 1. Rent or mortgage, including taxes and insurance

TN Home Apartment Cottage

 $553.42 $435.00 $138.66

 2. Utilities: Water TN/Apt/Cottage; Gas 0/$100.00

 Electric $100/100/35 Tel $40/30 

Total Utilities $140.00 + $75

 3. Car operation (gas, oil, repair, ins.) $ 216.00

 4. Insurance (life and other) for Christine & Candice $ 85.00

 5. Installment contracts and monthly payments:

 Personal loans ___________; Auto $ 375 

 Household ins. on cottage $27.00 Other 

 Furniture payment $333.00 for 6 months

Total Installment Contracts $ 735.00

 TN Apt Cottage

General Expense Total $653.42 $575.00 $203.66

B. Other Expenses (monthly) Myself Children

 1. Food $600.00

 2. Clothing 50.00

 3. Medical, Dental & Drugs 200.00

 4. Laundry & Cleaning 35.00

 5. Recreation (specify) 100.00

 6. School expenses 0

 7. Babysitting/other child care 0

 8. Beauty or Barber Shop 10.00

 9. Other (Specify)

 10. Other - Cable 30.00

 11. Other

 Sub Totals

 TOTAL $ 1,025 Expense $ 3,493.08

(Monthly)
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The items of rent on three residences are not reasonable. The item of automobile expense

should be covered by husband’s admitted “monthly expense check.” With adustments for the

unreasonable items, the statement reflects $3,706.90 income and approximately $1,700 per

month expense, which leaves the ability to pay $2,000.00 per month.

Accordingly, the alimony in futuro for the first 36 months should be reduced to $2,000.00

per month. This alimony is to be considered “rehabilitative” in the sense that it is intended to

provide for the wife during which she is expected to make a reasonable effort to become self

sustaining. The award is “temporary” in the sense that it will not continue beyond 36 months

unless the Trial Court finds, upon further application and hearing, that, after reasonable efforts

to become self sustaining, the wife has been unable to do so and that a continuation of periodic

alimony in some amount is necessary and proper.

The judgment of the Trial Court is modified to grant the wife periodic alimony of

$2,000.00 per month for 36 months, and to reserve the jurisdiction to extend, modify or

terminate alimony according to the circumstances demonstrated to the Trial Court. 

In its discretion, this Court assesses the costs of this appeal against the husband. The

cause is remanded to the Trial Court for entry of judgment consistent with this opinion and for

further appropriate proceedings.

MODIFIED AND REMANDED

___________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

_____________________________

SAMUEL L. LEWIS, JUDGE
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_____________________________

WILLIAM C. KOCH, JR., JUDGE