# FILED
March 12, 1997 Cecil W. Crowson Ap pellate Cou rt 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 AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEA L FROM TH

E CHANCER

Y COURT OF

WILLIAMSON

COUNTY AT FRAN KLIN, TEN

NESSEE
HONORABLE C ORNELIA A.CLARK, C HANCELLOR

Mark W. Henderson P.O. Box 8822 Gallatin, TN 37066 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT William Carter Conway 236 Court Square Franklin, TN 37064 ATTORNEY FOR DEFENDANT/APPEL LEE 

### MODIFIED AND

REMANDED

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR: SAMUEL L . LEWIS, JUDGE WILL IAM 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 a re the ability of the wife to w ork, her

needs, a nd the ability

of the husband to sup

ply her nee ds.
At the time of the divorce, each of the parties wa s 56 years old; they had been married for 35 yea rs and separated for 2-1/2 y ears; and their children were adults. The husba nd received a monthly

retirement of $2,442.10 and earned $2,499.40 per month from his pre sent employment. The wife

was a homemaker during the marria ge and worked only

at brief interva ls. She cla

ims disability f

or work. The par

ties owne d two resi dences, four veh icles, and other personalty

which were divided to their satisfaction.
As pertinent to this appeal, the divorce decree pr ovided:

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

2. Husband w as order ed to pay alimony in futuro of $3,000 .00 per month until wife’s d eath, re marriage or modif

ication o r termina tion by the Court.

3. Wife was awarded one-half of husband’ s pension.-3- 4. Wi fe wa s a wa rd ed on e- ha lf of hu sb an d’ s i nt er es t i n t he st oc k i n h is co mp an y.
On appeal, the husband insists that the award of periodic alimony was inconsistent with T.C.A . § 36-5-1 01(d)(1 ) which st ates: It is th

e intent o f the ge

neral a ssembly

that a spouse who is economically disadva

ntaged, relative to the other spouse, be rehabilitated whenever possible by the granting of an order

for payment of re

habilitative, temporary suppor t and maintenance. Where the

re is such relativ e econo mic disadv antage and rehabilitation is not feasible in consideration of all relevant factors, in cl ud in g t ho se se t o ut in th is su bs ec ti on , t he n t he co ur t m ay grant an order for pay

ment of support and maintenance on a long-te rm basis or

until the de ath or re

marriage of the r

ecipien texcept as otherwise provided in subdivision (a)(3). Rehabilitative suppo

rt and ma

intenanc e is a sep arate c lass of sp ousal support as distinguished from alimony in solido and per iodic alimony. I

n determining whether the gra nting of an order for payment of support and ma intenance to a party

is appropriate, and in determining the nature, amount, length of ter m, and manner of pay

ment, the court shall consider all relevant factors, inclu ding: (A) The relative earning c apacity, oblig ations, needs, and fina ncial re sourcesof each

party , including income

from pension, p

rofit sha ring or retirem ent plansand all ot

her sour ces; (B) The relative education and tra ining 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 ed uc at io n a nd tr ai ni ng to im pr ov e s uc h p ar ty’ s e ar ni ng ca pa ci ty to a rea sonable l evel; (C) The duration of the marriage; (D ) T he ag e a nd me nt al co nd it io n o f e ac h p ar ty; (E) The phy sical co ndition of

each pa rty , 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 pa rt y to se ek em pl oym en t o ut si de th e h om e b ec au se su ch pa rt y will be custodian of a minor child of the marriage. (G) The separate assets of ea ch party, both re al and personal, tangible and intangible; (H) The provision s made wit

h rega rd to the ma

rital property a s defined in Sec. 36-4-121; (I) The standar

d of living of the parties established during the marriage.-4- (J) The extent to which each party has made such tangibl e and inta

ngible c ontributions to the ma rriag e as monetary and home

maker contributions, and tangible and intangible contributions by a party to the educ ation, training or in cr ea se d e ar ni ng po we r o f t he ot he r p ar ty; (K) The relative fault of the parties in ca ses 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 a

re necessary

to consider the equities between the parties. (2) An award of rehabilitative, temporarysupport and maintenance shall remain in the court’s control for the dura tion of such award, and may

be increased, decreased, terminated, extended, or other

wise modif

ied, upon a showing

of substa ntial and mate rial cha nge in c ircumsta

nces. Re habilitat ive suppor

t and maintenance shall terminate upon the death of the recipient. Such support and maintenance shall also terminate upon the death of the pay or unless otherwise specifically stated. The recipient of the support and maintenance shall have the bur den of proving that all reasonable effor ts at rehabilitation have been made and have be en unsuc cessful
. Alimony in futuro is a designation of alimony paid periodica lly , as distinguished from alimony in solido which is paid in a single lump sumof cash or property . Alimony in futuro, or period ic alimon y issubject to the continuing c ontrol of the Tria l Court, whereas a

limony in solido or lump sum alimony is gene rally consider ed a fina l judgme nt, ordina rily unchang eable by t he court after e xpiration of

the time f

or appea l.
Alimony in futuro may

be made subject to limitations or condit ions, but it n

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

a specie s of alimon

y in futuro. I t is paid pe

riodica lly a nd remains su bjec t to the control of the court. It dis tinguish ing cha racter istic is the purpose f or which it is awarded, which is to provide

a tempor ary income during a peri od of adjustment and effort of the dependent spouseto become partially or totally self sufficient. Dur ing this period, the Court ret ains th e authority to make appropriate adjustments in keeping with chang ing c ircumstances and developm ents.-5- If a d ep en de nt sp ou se do es no t s at is fa ct or il y strive for self sufficiency , the Court may withdraw part or

all of the support a llocated to financ e rehab ilitation. If th e dependant spous e demonstrates complete inability to achiev e even partial self sufficiency , the Court may g rant alimony in futuro to provide for the ne eds of the dependent spouse.

If the depe ndent spou se achie

ves pa rtial self suffic iency but demons trates in ability 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

foreg oing must

be admini ste red w ithin the capability of the supporting spouse

to provide

the need ed suppor t.

In the present case, the first factual question to be answe red is, what arethe needs of the dependent

spouse? Other than fixing the amount of the alimony, the Trial cour t expres se d no finding as to the a

mount of th

e wife’ s needs.

On May 2, 1995, the wife signed a statemen t reflec ti ng 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

_______ _______ Mortga ge Note

_______ _______ Hospital

_______ _______ MasterCard

_______ _______ Sub Total

_______ _______-6- Total Monthly Pay

out $720.00 On July 24, 1995, the wife signed a statemen t reflecting needs of $3,1 53.00 per month consi stin g of the follo wing:

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/Da y care Telephone 95.00 Life I nsurance 50.00 Groceries & Eating Out 450.00 Property I nsurance Cable 22.00 Hospital Insurance

- Husband t o p a y 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 Au to 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 Mortga ge Note $_______ $ 555.00 Ma st er Ca rd - $ 5, 13 0 ( Wi fe is as ki ng th at hu sb an d p ay) Vanderbilt Medical Clinic (approximately $600 -wife has given bills to husband.) Sub total $_______ $ 555.00

Total Monthly Pay

out $3,153.00
The latter st

ateme nt ack nowledged receipt of $1,207.38 per month from husba nd’s retirem ent. Thus, the net needs of the wife reflected by the latter statement were $3,153.00 minus $1,207.38 , or $1,94 5.62. Mor eover, t he mortg age pa

yme nt would terminate upon sale of the home w hich 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 saleof the homes would be approxima tely $90,000.00, the pri ce of a m odest home or the source of approximately $500.00 per month income.-7- It appears from the latter stat eme nt of the wife that h er need s are ap

proximatel

y $2,000.00 per month.

As to the ability of the husband to pay , the Trial Court made no specif ic finding . On July 25, 1995, the hu sband signed a stat ement reflec ting m onth ly incom e (incl udin g reti rement) of $3,70 6.90. A tot al of $ 3,493 .08 ex pense s were l isted , incl udin g:

REGUL AR MONTHL

Y EXPENSES : A. Gene ral Expens es: 1. Rent or mortgage, including taxes and insuranc e TN Home Apartment Cott age $553.42 $435.00 $138.66 2. Utilities: Water TN/Ap t/Co ttage ; Gas 0/$100.00

Electric $100/100/3 5 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. In stallment

contracts and mont

hly pay ments: Personal loans ____

_______; Auto $ 375 Household ins. on cottage $27.00 Other Furniture pay

ment $333.00 for 6 months Total I nstallmen t Contrac ts $ 735.00

TN Apt Cott age General Expense Total $653.42 $575.00 $203.66 B. Ot he r E xp en se s ( mo nt hl y) Mys elf Children 1. Food $600.00 2. Clothing 50.00 3. Med ical, Denta l & Drugs 200.00 4. Laundry

& Cleaning 35.00 5. Re cr ea ti on (s pe ci fy) 100.00 6. School expenses 0 7. Babysitting

/other child care 0 8. Beauty

or Barber Shop 10.00 9. Ot he r ( Sp ec if

y) 10. Other

- Cable 30.00 11. Other Sub Totals

TOTAL $ 1,025 Expense $ 3,493.08

(M on th ly)-8- The items of

rent on three r

esidenc es are not reaso nable. T he item of automobile

expense should be covered by

husband’s admitted “monthly expense check.” With adustments forthe
unreasonable

items, the state ment reflects $3,706.90 income and approximately $1,700 per month expense, which leaves the ability to pay $2,000.00 per month.

Ac co rd in gl y, the alimony in futuro for the f irst 36 months should be reduced to $2,000.00 per month. Thisalimony

is to be co nsidere d “reha bilitative ” in the se

nse that it is intended to provide for the wife during which she is expected to make a reasonable effor

t to b ecome se

lf
sus taini ng. The award is “temporary ” in the sense that it will not continue beyond 36 month s unless the Trial Court finds, upon further application and hearing , that, af

ter rea sonable e

fforts to becom e self

sust ainin g, the wife has been unable to do so and th at a cont

inuation o f period

ic alimony in some amount is necessary and proper.

The judgment of the Trial Court is modified to grant the w i fe periodic alimony of $2,000.00 pe r month for 36 months, and to reserve the jurisdiction to extend, modify or terminate alimony ac cording to the circumstances demonstrated to the Tr ial Court.

In its discretion, this Court assesses the costs of this appe al aga in st the husband. The
cause is remanded to the Trial Court for entry of judgment consistent with this opinion and for further appropr iate pro ceeding s.



### MODIFIED AND

REMANDED

___________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR:

_____________________________ SAMUEL L . LEWIS, JUDGE-9-

_____________________________ WILL IAM C. KOCH, JR., JUDGE