### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE August 23, 2002 Session

NIKKI LY NN HERRINGTO N BOWIE v. RICH ARD R OY BOWIE
Appeal from the Chancery Court for Knox County No. 132605-1 John F. Weaver, Chancellor FILED OCTOBER 29, 2002

No. E2001-02923-COA-R3-CV

Richard Roy Bowie

(“Husband”) and Nikki L ynn Herr ington Bowie (“Wife”) were divorced in 2 000

. Wife wa s a wa rd ed so le cu st od y of th e c ou pl e’ s yo ung child. Husband was granted visitation pursuant to a custody ag

reement filed March

1, 2000. The Trial Court found tha

t Wife’s mo nthly needwas $7,20 0, but that Husband w as unable

to pay this amount. The Trial Court aw arded Wife monthly child support in the amount of $1,057, an d a li mo ny in futuro of $1,500 per month. Husband appealsthe type of alimony awarded to the Wife, the Trial Court’s finding regarding the amount of Wife’s monthly

need, and the amount of alimony awarded. Wife raises an additional issue regarding whether the Trial Court erred in not awarding her attorney ’s fees. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS , J., and C HARLES D. S USANO , J R ., J., joined. James F. Logan, Jr., Cleveland, Tennessee, for the Appellant, Richard Roy Bowie. Charles H. Child, Knoxville, Tennessee, for the Appellee, Nikki L ynn Herr ington Bowie.1 For the s ake of s impli city , we us e round numbers in this Opini on whenever pos sibl e. -2- OPINION Background

This appeal involves a dispute regarding the ty pe and a mount of a

limony awarde d to Wife pursuant to a final divorce decree en tered in 2000. In 1996, after 24 y ears of marriage, the parties separated and Wife, who was not gainfully employed outside the home, filed a complaint for
s eparat e maint enance

and child

support. A

n order g ranting judgmen t by default was ente red in August of 1997, and an order of separ ation was entered in September of 1997, requiring Husba nd t o pay $1 0,000 per

month to Wife

as child s upport and spousal s upport. H usband ne

ver paid this amount.
Husband filed a c omplaint f or divorc e in 1999 a

lleging irreco ncilable

differe nces. Wife c ounters ued for divorce alleging, inter alia, adultery. At trial, Husba nd admitted to having several affairs during the course of the marriage. The Trial Court granted Wife a divorce on the ground of adultery

.

The parties have three children, only one of which was a mino

r at the time of tria

l. Wife was gr

anted sol e custody

of the mino

r child. H usb and was gran ted visitation pursuant to a custody agreement

filed March1, 2000, and ordered to pay child support in the amount of $1,057 per month. During the marriage, the parties lived in various plac es including New York, Boston, Africa, Germany , and Tennessee. They established a high standard of living that

included regular travel and the acqu isition over the years of such items as a Porsche 911, a Porsche 944, two timeshares in Florida, a

Steinway g

rand piano valued at

trial at $20,000, and at least one airplane. The majority of the moves made by the part ies appe ar to hav e been to further or facilitate Husband’s career as a doctor.

The record on appeal shows that Husband, who was 54 y ears old when the trial started, is a general surgeon with his own medical practice. Husband also receives income from two mini -stor age warehouse facilities that he owns. Evidence at trial showed that Husba

nd’s net income from his medical practice had fallen in recent ye ars from over $190,000 1 in 1996, to a pproximate

ly $29,000 in 1999. Husband attributes his declin e inincome to several factors including the sale a nd restructuring of

a hospital with which Husband was affiliated and upon which Husband depended for patients; the lack of

return on Medicare and TennCare patients due to reduced fee allowance s and increased process ing expen ses; and the fact that Xantus, a contract provider with which Husba nd had
a contract, is now defunct. Despite the gre at disparity, and

recent substantial decline, in Husband’s income over the last five or six ye ars, the

Trial Cour

t did not find Husband

willfully underemployed. The Trial Court found Husband’s income to be $7,200 per month.-3- During the 24 -year

marriage, Wife, who was 50 y ears old at the time of trial, w a s primaril y a stay-a t-home mother. She g raduate d from Emo ry and Henr

y in 1971 with a

major in music and a minor in elementary education. While at Emory and Henry, Wife re ceived several honors including being voted Miss Emory and Henry

by the administration, being voted May Queen by her fellow students, and becoming first runner- up to Miss Virginia. Evidence at trial showed that Wife also had studied opera at India na University and the

n at the Julliard School of Music, but

did notobtain a degree at

eith er institution. Wife did obtain a few vocal jobs approximately 25 y ears ago, but the evidence showed that some of these “jobs” wer e nonpaying

and that Wife did not earn enough from her

vocal job s to suppor

t herself . The Tri al Court f

ound that W

ife’s work history consisted of a position as a re ceptioni s t/switchboard operator at a floral exchange in Boston approxima

tely 20 years a

go, work with a church choir, and some ve ry limited work at Husband’ s medical office and mini-warehouses.

When dividing the marital property , the Trial Court noted that the amount awarded to Husband s lightly

exceede d that awa

rded to Wif

e and sta ted that the cour

t would take this into account when making the additiona l provisions of the divorce, such as alimony . The Trial Court found Wife’s mon

thly need to be $7,200, but also found Husband’s current income wasonly $7,200 per month. The Tr ia l C ou rt gr an te d W if e a li mo ny in futuro in the amount of $1,500 per month.

Discussion

Husband raises th

e following issue s on appe al: (1) did the Trial Court err in awarding Wife al im on y in futuro instead of rehabilitative alimony; (2) did the Trial Court err in finding Wife’s level of need w as $7,200 pe r mo nth; and (3) did the Trial Court err in requiring Husband to pay $1,500 pe r m on th in al im on y. Wife raises the additional issue of whether or not the Trial Court erred in not awarding her attorney ’s fees.

Our review i s de novo upon the record, accompanied by a presum ption of c orrect

ness of the finding s of fac t of the tr ial cour t, unless the preponderance of the evidenc e is otherwise. Tenn. Rule 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).

This Court has held:
Trial courts have broad

discreti on to determine whether spousal support is needed and, if so, its nature, amount, a nd durati on. Appellate cou rts are generally

disinclined to second-guess a trial court' s spousal support decision unless it is not supported by the evidence or

is contra ry to the publ

ic policie s reflected in the applica ble statut es.
Anderton v. Anderton , 988 S.W .2d 675, 682 (Tenn. Ct. App. 1998) (citations omitted). A trial court 's determin ation re garding spousa l support g enerally will not be altered by this Court unless the trial court abused its discretion. See Robertson v. Robertson , 76 S.W.3d 337, 342 (Te nn. 200 2). It is the roll of this Court to correct errors below and not to fine tune a trial cour t’s decision.-4- When determin

ing whe ther a sp ouse should receiv e support , how much support, and what type of alimony

is warranted, trial courts a re to consider the factors outlined in Tenn. Code Ann. § 36- 5-101(d) (1), whic h provide s:
In determining whether the gra nting of an order for pay ment of s uppo rt and maintenance to a part

y is appropr

iate, an d in deter

mining the nature , amount, l ength of term, and manner of pay ment, the court shal l conside r all rel evant fa

ctors, including : (A) The rela

tive ear ning ca pacity , obliga

tions, needs, and financialresources of each pa rt y, including income from pension, profit sharing or re tirement plans and all other
sources ; (B) The relative education and training of

each party , the ability and opportunity of eachparty

to secure such edu cation a nd training, and t

he nece ssity

of a par ty to
secure further education and training to improve such pa r ty's ea r ning capacity

to a
reasona ble level; (C) The d uration o f the mar

riage ; (D) The age a nd mental condition

of each party ; (E) The physical c ondition of each party , including, but not limited to , physical disability or incap acity

due to a chronic de

bilitating disease ; (F) The extentto whi ch it would be undesirable for a party to seek employment outside the home b ecause su ch party will be custodian of a minor child of the marriag e; (G) The separa te assetsof each

party , both rea

l and per sonal, ta

ngible a nd intangible; (H) The provision s made wit

h rega rd to the ma

rital pro perty as defined in § 36- 4-121; (I) The stand ard of liv

ing of th e partie s establis hed during the ma rriag e; (J) The extent to which each party has made such tang ible and intangib le contr

ibutions to

the marri age as moneta

ry and homemaker co ntrib ut ions, and t angible and intangible contributions by a

party to the edu cation, t

rain ing or incre ased earning power of the othe r party ; (K) The rel ative fa ult of the p arties in cases where the

court, in its discre

tion, dee ms it appropriate to do so; and ( L) Such othe

r facto rs, inclu ding the

tax conseq

uences t o each p arty , as are

necessa ry to consider the equities between the parties. Tenn. Code Ann. § 36-5-101(d)(1) (2001).

While all relevant factors must be considered when se tting the amount of

an alimony award, need and the ability to pa y are the critical factors. Anderton , 988 S.W.2d at 683. Discussing the intent behind alimony, our Supreme Court has held: "the pur pose of sp ousal supp ort is to aid the disadvantaged

spouse to become and remain self-sufficient and, whe n economic rehabilitationis not feasible, to mitigat e the harsh econ omic realit ies of divo rce." Burlew v. Burl ew , 40 S.W.3d 465, 470-7 1 (Ten n. 200 1) (qu otin g Anderton , 988 S.W.2d at 682).-5- Alth ough "the legislat

ure has demonstrated a prefere nce for an award of reha

bilitative alimony[,]" Crabtree v. Crabtree , 16 S.W.3d 356, 358 (Tenn. 2000), the relevant alimony statute, Tenn. Code Ann. § 36-5-101(d)(1), does contemplate, under the ap propr iate c ircum stanc es, a l ongtermaw ar d o f a li mo ny, or al im on y in futuro , providin g: “[w]he re ther e is such r

elative economic disad vanta ge and reha

bilitation is not feas ible in

consideration of all relevant factors, . . . then the court may g rant an order

for payment of support and ma intenance on a long-term basis . . . .” Tenn. Code Ann. § 36-5-10 1(d)(1) (2001). " [T]he purpo se of [a li mo ny in futuro ] is to provide financial support t o a spouse wh o cannot be reh abilitat ed." Burlew , 40 S.W.3d at 471.

Husba nd's issues on appeal regarding the Trial Court's award of alimony to Wife concernboththe type and the a mount of alimony. We first will consider the issue reg arding the ty pe of alimony the Trial Court awa rded to Wife.
Re ce nt ly, our

Supreme Court issued its opinion in Robertson v. Robertson regarding the is su e o f a li mo ny, in cl ud in g t he typ e o f a li mo ny. Robertson v. Robertson , 76 S.W.3d 337 (Tenn. 2002). Mr. Robertson was employe d by TVA and his aver

age y early income wa s approxima

tely $60,000. Id . at 342. Ms. Robertson had a ye ar ly inc ome of approximately $22,000. Id

. Ac co rd in gl y, the Rober

tsons had a

disparit y in incom e, although not as pronounced as the parties in this matter. Despite

t his disparity in income betwee n the husband and wife in Robertson , our Supr emeCourt held that the trial court's award of reha bilitative alimony, rather than a limon y i n futuro , to Ms. Robertson was not an abuse of discretion. Id . The Supreme Court in Robertson
rever sed th is Co ur t w hi ch fo un d M s. Ro be rt so n s ho ul d b e a wa rd ed al im on y in futuro since she "could not be re habilitat ed to a re asonable

standar d of liv ing, view ed in the context of her predivorce standard of l iving." Id . at 339. The Robertson Court stressed the importance of considering every relevant factor provided by the alimony

statute and applying

the statute's factors on a c as e- bycase basis. Id . at 341. The Court recognized the legislature's prefer

ence for rehabilitative alimony and discu ssed the purpose of rehabilitative a

limony as follow s: [R]ehabilitative alimony may assist the disadvantaged spouse in obtaining further education or training. . . . ( "Rehab ilitative a limony serves t o support a

n economi cally dependent

spouse ' through

a limi ted peri o d of re-education or retraining following divorce, thereby

creating incen

tive and o pportunit y for that s pouse

to become selfsupporting.'"). It may

also provide temporary inc ome to support the disadvantaged spouse du ring the post-divo

rce ec onomic ad

justment.

Id . at 340-41 (citations omitted).

The Robertson Court, in finding that the trial court's award of rehabilitative alimony to Ms. Robertson was not an abuse of discr etion, re viewed M s. Roberts on's wor k historyas a fulltime homemaker and part-time substitute teacher and her r ecent at tainment o f a 4-y ear deg ree in education. Id . at 342. The Court found it significant that Ms. Robertson anticipated beginning her teaching caree

r with a sa

lary of appro xim atel y $22,000 , stat ing th at "[i ]n li ght of M s. Ro berts on's-6-

coll ege ed ucation a

nd new em

ploy ment, we a

gree t hat Ms. Rob ertson, t

hough e conomica

lly disadvantaged, is capable of r ehabilitat ion." Id . at 3 43. In addition, the Court found that the “rehabilitative alimony

could ass ist Ms. Robe

rtson in obtai ning h er mas ter's degree to increase he r earning capacity

in the future.” Id

. We believe the facts of Robertson are re adily distingu ishable f rom the fa

cts of this
case. Wife's circumstances showthat, unlik e the ec onomically d

isadvant aged s pouse

in Robertson , it is highly unlikely

that she can reh abilitate

herself through further education or training . The Trial Courtfound it unlikely that Wife would be able to do any thing to appreciably

remedy her eco nomic disadvantage and that Wife’s economic reha bilitation is not feasible.

In light of Robertson , a trial court cannot rely upon just one of the fa ctors o f the alimony statute, the disparity in the parties' incomes. Id . at 340. The proof in the record in this case, however, sh ow s t ha t o th er re le va nt fa ct or s e st ab li sh Wi fe 's ne ed fo r a li mo ny in futu ro . The Tri a l Courtproperly c onsidered all of the relevant statutory factors including the relative earning capacities of the parties, the relative education and training of the parties, the long duration of the marriage, the age of the par ties, the extent to which it would be undesirable for the Wife to be employed outside the home as she is the custodian of the parties’ minor child, the standard of living established by the parties during the marriage, the Wife’s intangible c ontributions to the marriage, the re la ti ve fa ul t o f t he pa rt ie s, th e p ro vi si on s m ad e w it h r eg ar d t o t he ma ri ta l p ro pe rt y, the equities betweenthe parties, Wife’s education having been in music, and Wife’s ha ving a very

limited work history.

While we acknowledge that the leg islature has ex p ressed a preference for rehabilitative alimony in Tenn. Code Ann. § 36-5-101( d)(1), the record on appeal shows, as found by the Trial Court, that

Wife's possibilities to rehabilitate herself are limited. See Tenn. Code Ann. § 36-5-101(d)(1)(2001). The evidence cont a ined in the

record does not pr

eponder ate ag ainst this finding by t

he Trial Court. Ac cording ly, after a pply ing all relevant statutory f

actors to the facts and circumstances shown by

the rec ord, we holdthe Trial Court's award of alimony in futuro , as opposed to rehabilitative alimony, was not an a buse of discretion, and we affirm on this issue.

As far as the Husband’s issue rega rding whether the

Trial Court

erred in finding that the Wife’s level of need

was $7,200 per month, we find that the facts do not prepond erate a gainst this finding. When a

Trial Court has seen and

heard w itnesses, especia

lly w here iss ues of cr

edibility and weight of oral testimony are involved, considerable defere nce must be accorde d to th e Trial Court 's factual findings. Seals v. England/Corsair Upholstery Mfg. Co., 984 S .W.2d 912, 915 (Tenn. 1999). Since the

facts do not prepo nderate

against the Trial Court’s finding, we aff irm on this issue. We also note that while the Trial Court found Wife’s level of need to be $7,200 per month, the Trial Co ur t a wa rd ed on ly $ 1, 50 0 p er mo nt h i n a li mo ny.

We next address Husband’s issue regarding w hether the Trial Co urt erred in requiring Husbandto pay $1,500 per month in alimony . The Trial Court found Wife’s ne eds to be $7,200 per month less child support of $1,057 per month or $6,143. The T rial Court furt her found that-7-

Husband’s current monthly income of $7,200 was insuffic ient to all ow him to meet Wif

e’s nee ds. The evide nce fou nd in the rec ord be fore us does n ot pre ponde rate aga inst either of these factual finding s. After considering all relevant fa ctors and the re cord before us, we hold that the Trial Court’s award of alimony in the amount of $1,500 per month was not an abuse of discretion. Therefore, we affirm on this issue.

Fi na ll y, we address whether the Trial Court erred in refusing to grant to Wife her attorne y’ s fees. “ ‘[A]n appellate cou rt should not reverse for ‘abuse of discre tion’ a discretionary judgment of a tr ia l court un

less it af firmativ ely

appear s that the t

rial cou rt’s dec ision was a

gainst logicor reasoning, and caused an injustice or injury

to the party complaining .’” Marcus v . Marcus, 993 S.W. 2d 596 , 601 ( Tenn. 1999) (quot ing Ballard v. Herzke , 924 S.W.2d 652, 661 (Tenn. 1996)). The record does not s uppor t a fin ding t hat th e Trial Court ’s deci sion was agai nst l ogic or reason ing,
or that it caused an injustice or injury to the Wife. Therefore, we affirm on this issue as well. Wife also has requested that she be awarded he r attorney’ s fees and costs incu rred on appe al. After consideration of all re

levant f actors a nd inthe exercise of our discretion, we decline Wife’s request

. Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Courtfor such further proceedings as may be required, if any , consistent with this Opinion and for collection of the costs below. The costs on appeal are assessed ag ainst the Appellant, Richard Roy Bowie, and his surety

.

___________________________________ D. MICHAEL

SWINEY, JUDGE