### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Novem ber 20, 200 2 Session DEBORAH BOWERS SMITH v. RILEY DEA N SMITH A Direct Appeal from the Chancery Court for G ibson County No. H4486 The Honorable George Ellis, Chancellor

No. W2002-00477-COA-R3-CV - Filed January 15, 2003

This is an appeal of a final decree of divorce and the order of the trial court on the moton to alter or am en d, in vo lv in g i ss ue s o f d iv is io n o f m ar it al pr op er ty, al im on y in futuro , contempt of court, and injunctive relief for Wife’s alleged har assment of Husband. Husband appeals . We affir m in part, reverse in part, and remand. Tenn. R. App.P. 3; Ap peal as of Rig ht; Judgment of the A ffirmed in P art, Reversed in Part, and Remanded W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in whichA LAN E. H IGHERS , J. and H OLLY K IRB Y L ILLARD , J., joined. C. Timothy

Crocker , Michael A. Carte r, Milan, For Appe

llant, Rile y D ean Smith Mary G. Middleb

rooks, Jackson, For

Appellee , Debora

h Bower s Smith OPINION Deborah Bowers Smith (“Ms. Smith,” “Appellee,” or “Wife”) and Riley D ean Smith (“Mr. Smith,” “App ella nt,” or “Husband”) were marr ied on July 24, 1977. There are two children born of the marr iage, B rentley

Dean Smith

(d/o/b January 20, 1978) an d Brooke Deanna Smith (d/o/b

July 17 , 1984). Ms. Smith filed a complaint for Absolute Divorce on February 8, 2 001, citin g irreco ncilable

differences and marital misconduct on the par

t of Mr. Smit

h. She filed an Aff

idavit in support of her Complaint on February 15, 2001. The Affidavit reads in pertinent part as f ollows: 1. That my

gross income

from my employ ment with Gibson Coun

ty School Syst

em is approximately $2,904.50 per month; net incom e is approximately $1,936.22 per month. 2. That I have no additional source s of income.-2- * * * 4. That [Mr. Sm

ith’s] gr oss income

from his employment with Jones Co mp an y, Ltd. is approximately $13,531.26 per month ($162,375.22 for yea r 2000). Attached to this Aff

idavit wa s an exhibit l

isting mon

thly household

expenses, which totaled $7,024.55. Mr. Smith filed an Ans wer and Counter-Complaint on February 23, 2001, alleging inapprop riate marital conduct on the part of Ms. Smith. The Counter- Complaint f urther s tated tha

t: 5. [Mr. Smith] avers that [Ms. Smith] is calling him at all hours of the day and night, hara ssi n g him, ma king thr eatenin g state

ments including, but not limited to, taking the parties’ minor daughter and moving out of St ate i n orde r to pr event him fr om hav ing a relation ship with his daught er and th reaten ing to kill him and herself. * * * [Mr. Smith pra ys:] That a Restra ining Or der issue , enjoinin g [Ms. Smith] , her ag ents or anyone a cting in her be

half, fr om coming

about, telep honi ng, threatening, harassing, bothering , or having any contact with[Mr. Smith], e

ither at h is reside nce or hi s workplace, except as it relates to visitatio n issues c oncerning the p arties’ minor daughter, and from removing the parties’ minor daughter from the jurisdiction of this Court, during the pendency of this cause. The chance

llor ente red a Te mporary Restrain ing Ord er on Fe bruary 23, 2001 a

nd set a hearing for March 20, 2001 to determine whether a Perma nent Injunction should be issued. On March20, 2001, a

hearing wa s h el d o n m ot io ns fo r t em po ra ry c hi ld su pp or t a nd al im on y pendente lite filed by

Ms. Smith

and on the Temporary

Restraining Order grante d to Mr. Smith. An Order was entered on April 27, 2001, which dissolved the Tempo

rary Restrain ing Ord er and or dered Mr . Smith to pa y al im on y pendente

lite to Ms. Smith in the amount of Five Hundred Dollars ($500) per month. Mr. Smith was also ordered to maintain all health insurance, marital debts, and mortga ge pay ments pending a hearing of the case. A Te

mporary Pare

nting Plan was entered on April 27, 2001, requiring Mr. Smith to p ay

Nine Hund

red Dolla rs ($900) per month

in child su

pport. On April 24, 2 001, Ms. Smit h filed a Motion for

Provision o f Vehicl e, which states in pertine nt part:-3- 1. That Def

endant, R iley Dean Smi th, was p roviding [Ms. Smith] witha 2000 Volvo and pay ing the l ease pa

yme nts on said vehicle by Court Order. 2. That [Ms. Smith] was involved in a motor vehicle accident, which totaled the Volvo. 3. That [Mr . S mith] has refused to provide [Ms. Smith] with a comparable vehicle. THEREFORE, [Ms. Smith] moves this Honorable Court as follows: 1. That [Mr. Smith] be required to provide [Ms . Smith] with a vehicle comparable to a 2000 Volvo. On May 18, 2001, a

status hearing was held. An Order wa s entered onMay 31, 2001, which granted Mr. Smith’s Inter

locutory Appea

l, set Ms. Smith’s Motion for Provision of Vehicle for hearing on June 12, 2001 and set the matter for trial on August 15, 2001 due to the failure of mediation attempts. Ms. Smith fil ed a Motio n for Civil Contempt a

gain s t Mr. Smith on June 7, 2001, allegi ng, inter alia , that he had failed to provide her with a means of transpor tation and that he had failed to pay

a cellular telephone bill. On August 10, 2001, Mr. Smith filed a Petition for Restraining Order and Permanent Injunction, alleging that, since the Tempora ry Restrain ing Ord er had be en dissolv ed, Ms. Smith had continue d to hara ss and thr eaten him. The non-jury trial was he ld on August 15, 2001. Prio r to trial, the parties s tipulated

to grounds of adultery on the part of Mr. Smith. On Se ptember 28, 2001, M s. Smith filed a Motion for Restr aining O rder, which rea

ds in pert inent par t as follow s: The Plaintiff, Deborah Bowers Smith, moves this Court for a Restrain ing Orde r. In

support of

said Motion , the Plain

tiff woul d show as f ollows: 1. That Plain

tiff is inf

ormed, a nd therefore believes, th at th e Defend ant, Riley

Dean Smith , has bee n termina

ted from h

is em pl oym en t w it h T he Jo ne s C om pa ny. 2. That Plaintiff is informed, and the

refore believe s, that Defendant now has in his p ossession all liquid ass ets from his retirement fund wi th Th e J on es Co mp an y.-4- 3. That Plain

tiff is informed , and ther

efore b elieves , that Defendant received a substantial sever a nce package upon his termination of employ ment. Chancellor

Ellis issued a temporary Restra ining Order on September 28, 200 1, pend ing a hearing on Ms. Smith’s Motion. A hearing was held on October 22, 2001. An Order for Absolute Divorce was ente red on No vember 2 1, 2001. Th e Order reads in pertine nt part a s follows: ...Aft er statemen

t of couns el, testim

ony of cert ain witne sses, submission of certain exhibits, and upon the entire record, the Court issued its r

uling, a s follows: * * * The Court find s there isa grea t disparit y in the incomes o f the par

ties, withMr. Smith’s income for the last three y ears being $151,670.28, $188,800.65, and $162,375.22, and that for the first seven months of this year his income

has been $127,990.40. Deborah BowersSmith’s income as a teacher is $34,854. The Court finds that the parties have $407,056 in debt and that $336,000 of this is in rea l estate, leaving a consumer debt in the amount of $71,056. The Court finds that Deborah Bowers Smith as of this y ear make s about 16 percent of the income of Riley Dean Smith, and ther

efore, she shall

be order ed to pay the

debt to UP Bank in the amount of $2,000, a debt to David Bow er s in the amount of $5,225, and a

Mastercard bill in the amount of approximately $1,150, $1,100 to Summit Vacuum and $1,000 to Service Merchandise. R iley Dean Smith

is order ed to pay the rema ining ma rital deb ts a s listed on th

e exhibits. * * * As to th e q ue st io n o f a li mo ny in futuro , the Court fi nds t hat the standardof livi n g enjoy ed by the Smiths was a g ood one, above average, and that Riley Dean Smith’s actions, ashe stipulated to, has [sic] c aused the rupture of this marriage. And to f orce Debor a h BowersSmithto a lower standard of living because of the inf idelity of Riley Dean Smith would not be consisten t with th e laws of the Stateof Tennessee, and, th er efor e, al im on y in futuro is ordered to be paid by Riley Dean Smith i n th e amount o f $3,000 p er month to Deborah Bowers Smith until her death or remarr iage.-5- * * * The Court fur

ther find s that Riley

Dean Smith

was in co nte mpt of Courtby not rep lacing

the leas ed vehic le that wa s wreck ed, but, however, he did pro vide Deb orah Bo wers Smith witha vehicle, and the Court is going to tax attorney ’s fee s and costs for this matter as the only sanction that’s br ought a gainst Ri ley

Dean Smith * * * IT I S THEREFORE ORDERED: * * * 3. That Husband shall receive the real prope rty located a

t 168 Pleasant Hill Ro ad, Humbolt, G

ibson Count

y, Tennesse e...one -half ( 1⁄2) of Jones Retirement Account ($144,407.36); one-half (1⁄2) of Phantom Stock ($109,158.50)... 4. That Wife shall be awarded...one-half (1⁄2) of Jones Retirement Account($144,407.3 6); one-half (1⁄2) of Pha ntom Stoc k ($109,158.50)...2000 Dodge automobile... * * * 10. That Hu sb an d s ha ll pa y to Wi fe as al im on y in futuro the sum of $3,000 per

month, beginning September 1, 2001, and the first day of eachmonth thereafter. Said alimony sha ll be p ayable until the remarriage or dea

th of Wife. * * * 13. That Husband shall pay a s al im on y in solido , the sum of $7,988.09 towardWife’s attorney fees, to Wife’s attorney of record, Middlebrooks & Gray , P.A.... On Novemb er 21, 20 01, Mr. Smit h filed a Motion to Al

ter or Am end the Judg

ment. Mr. S mith also filed a Moti on for Clari ficat ion co ncerni ng his abili ty to use h is sev erance p ackage from Jones to pay expenses. On December 6, 2001, Ms. Smith also filed a Motion to Alter orAmend, wh ich rea ds in pertine nt part a s follows:-6- 3. That Wife was awarded one-half (1⁄2) of the Phantom Fund with a value of $109,158.50. Husband lost the Phantom Fund when he was terminatedfor wilf

ul miscond

uct from h

is employ

ment wit h Th e Jones Company. Theref

ore, Wife ’s one-h alf (1⁄2) o f this fund should be taken from

Husband’s one-half (1⁄2) of the Jones Retirement Fund. Following a hearing on all motions on December 11, 2001, the cha ncellor entered

an Order Februa ry 8, 2002, which rea

ds in pert inent par t as follow s: ORDERED: 1. Th at th e D ef

en da nt ’s [R il ey Dean Smith’s] Motion to Alter or Amend is denied. * * * 3. That the Plaintiff’s [DeborahBower s Smith’s]...Motion to Alter or Amend regarding the loss of the Phantom stock is g ranted. Plaintiff shall be awarded the sum of $109,158.50 from the Defendant’s one-half (1⁄2) of The Jones Ret irem ent Fund

in order to compensate her for the loss of one-half (1⁄2) of the Phantom stock. 4. That the M otion f

or an award of additional fees and costs in the amount of $3 ,2 11 .3 5 i s g ra nt ed . D ef en da nt sh al l p ay a s a li mo ny in solido , said sum to Plaintiff’s attorney of record , Middlebr

ooks & Gray, P.A.... 5. That the Plaintiff’s Motion for Discretionary Costs is grant ed i n the amount of

$665.95 for court reporter fees. De fendant shall pay as alimony i n solido said sum to Plaintiff’s attorney of record, Middlebrooks & Gray , P.A. A Qualifie d Domestic

Relations Order

was entered on February 19, 2002. Mr. Smith filed Notice of Appeal on February 21, 2002. Pe

nding a ppeal and pursuan

t to Tenn. R

. App. P 62.03, Mr. Smithfiled a Motion andMemorandum of Law to Stay Execution of Qualified Domestic Relations Order on March 13, 2002. The Motion to Stay Execution of Qualified Domestic Relations was hea rd on April 4, 2002. The Motion was denied by Order entered on May

1, 2002. Mr. Smith appeals, raising four issues for our review a s stated in his brief: I. Th e t ri al co ur t e rr ed by f aili ng to equitably divide the marital propert y a nd marita l debts.-7- II. Th e t ri al co ur t e rr ed in it s a wa rd of al im on y in futuro

. II I. The trial court err

ed by holding Defendant

Riley Dean Smith

in contempt for not providing Deborah Bow ers Smith with a compara ble vehicle to replace the vehicle she intentionally wrecked. IV. The trial cou

rt erre d by

failing to perma nently enjoin Wife from harassing Husband.

The trial c

ourt err ed by failing t

o equitably divide the m

arital pr operty a nd marit al debts. As part of his compensation package fr om The Jones Company, Mr. Smith owned phantom stock, which was valued at $218,0000 at the time of trial but was unvested. I n addition to the phantom stock, Mr. Smith had a retirement plan with Jones, which was vested. The chancellor’s initial order divided both the value of Mr. Smith’s retirement ac count and the phantom stock evenly. F ollowing this initial division of property, Jones terminated Mr. Smith’s employment for ca

use. Because it was not vested, the phantom stock evapor ated upon Mr. Smith’s termination. Both parties filed motions to alter or amend, which were he ard on December 11, 2001. Following that hearing, the chanc ellor awarded Ms. Smith $109,158.50 from Mr. Smith’s onehalf of The Jones Company retire ment account to compensate her for the loss of the value of the phantom st

ock. Consequently , Mr. Smith k ept $35,248.86 of h

is Jones Retir

ement Pla n, while Ms. Smith received $253,565.86. Before addressing Mr. Smith’s arg ument, we note that, although there is a presumption that marital property is owned equally, there is no presumption that marital property should be divided equally. Bookout v. Bookout , 954 S.W.2d 730, 731 (Tenn. Ct. App. 1997). Thus, an equitable division of the marital property need not be an equal division of property

. Id. A trial court is afforded wide discretion when dividing the mar ital property, and its distribution will be given “great weig

ht” on appeal. Ford v. Ford , 952 S.W.2d 824, 825 (Tenn. Ct. App. 1997). Guidelines for the equitable division of marital property are set forth in T.C.A. § 36-4-121 (Supp. 2002), wh

ich provi des, in re

levant pa rt: (a)(1) In all actions for divorce or legal separation, the court having jurisdiction thereof

may , upon re quest

of either party , and prior to any determination as to whether it is appropriate to order the support and maintenance of one (1 ) party by t he other , equitab ly d

ivide, dis tribute or assign the marital property betwe e n the par

ties without rega

rd to marital f ault in pro

portions a s the cour

t deems jus t. * * *-8- (c) In making equitable

division of

marital p roperty , the cour

t shall consi der all releva nt fact ors in cludi ng: (1) The duration of the marriage ; (2) The age, phy sical and mental health, vocational ski lls , em pl oya bi li ty, earning capac i ty, estate, financial liabilities and financi al needsof each

of the pa rties; (3) The tan gibl e or intangible contribution by one (1) party

to the ed uc at io n, tr ai ni ng or in cr ea se d e ar ni ng po we r o f t he ot he r p ar ty; (4) The relative ability of

each pa rty for future acquisitions of capital assets and income; (5) The contribution of each party to the acquisition, preservation, appreciation, depreciation or dissipation of the marit al or sep arate property, inc luding the contribution of a party to the marriage as homemaker, wage earner or pa rent, with the contribution of a party as homemaker or wage ea rner to be given the same weig ht if each party has fulf

illed its role; (6 ) T he va lu e o f t he se pa ra te pr op er ty o f e ac h p ar ty; (7) The estate of each party at the time of the marriage; (8) The economic

circumst ances of each pa rty at the time the division of property is to bec ome effective; (9) The tax consequences to each par t y, costs associated with the reasona bly foreseeable sale of the asset , and other re asonably forese eable e

xpenses as sociate d with the a sset; (10) The amount of social security benefit s availa

ble to each spouse; and (11) Such other f

a ctors as are necessary

to consider the equities betwee n the par ties. Mr. Smith argues that the trial court considered Mr. Smith’s marital fault in dividing the stock and retirement plan, thus violating T.C.A. § 36-4-121 (a)(1) . Before addressing Mr. Smith’s issue, we first note that T.C.A. § 36-4-121 (a)(1) only forbids consideration of marital fault, that is the fault that led to the dissolution of the marriage. However, the re is nothing in the langua ge of th e statute to indica te that the court ma y not conside

r other ty pes of fa ult in its-9-

division of property. I

n fact, T.C.A.§ 36-4-121(c)(5) specifica lly allows a court to consider the contribu tion a par ty h as made t

o the dissip ation of ma

rital pro perty . We now tur

n to the record in this case , which r

eads in r elevant part: THE COURT: ...the fact that Mr. Smith’s inappropriate behavior at work with the same woman who caused this divorce, or about the samewoman, certai nly works at an i nequi table disad vanta ge to Mrs. Smith, so I’ m going to gra nt that the value of the phantom fund be deducte d from the

retirem ent. * * * MS. MIDDL

EBROOKS [counsel for Ms. Smith]: They’ve frozen the retirement fund. THE COURT: It has not been distributed? MS. MIDDL

EBROOKS: No, sir. THE COURT: As far as th at, the [$]10 9,000 will g o to Mrs. Smit h to make up the loss due to his inappropriate behavior. * * * MR. CROCKER [counsel for Mr. Smith]: Your Honor, please, the award by the Court effectively giving her cre dit for the phantom stock, one half of th at? THE COURT: The Court gaveher one half, and your client–the Court is ruling that he had

given her one ha

lf, and it was lost only because of your client’s beha

vior since the divorce. So yes, sir, that’s what the Court has ruled. * * * MR. CR OCKER : The Cour t has rule d that the

net eff ect of th at is going to be that Mrs. Smith has a retirement of [$]253,000–
THE COURT: No. The net effect is that the Court is ruling that Mrs. Smith shall get the same amount she got the day of the divorce, and it’s Mr. Smith’s conduct that has brought us to this point
. * * *1 For clarifi cation, we qu ickly no te that we are not

addressi ng newly discover ed evidence i n thi s case. Here, the fa ct at issue, M r. Smith ’s loss of em ploym ent with J one s, actually c ame into be ing after the hearin g. Ne wly disco vered evide nce, o n the o ther ha nd, is that evidence w hich i s in e xist ence atthe time of t rial but i s not as certai ned at that time

. -10-

MR. CROCKER: B ut the net effect of the bottom line is that she’s going to end up with about [$]300,000 in retirement, and he’s going to end up with [$] 35,000 a pproximate ly, and I would re spectfully submit that that’s not an equitable division. THE COURT: Well, what aboutyour client’s conduct? That’s where we are. That’s why we

had the divorce; that’s why you’re ba ck to da y. If th ere’s a ny r eason, it ’s due to y

our clie nt’s cond uct. Although phrases such as “because of your client’s be

havior since the divorce” point to a type of fa ult that the court may consider in dividing the marital assets, the majority of the relevant passages cited above indicate that it is marital fault that is the gravamen of the trial court’s decision. Because we find that the tr ial court’s division of the phantom stock was based upon consideration of Mr. Smith’s marital fault, and that such consideration was in direct violation of T.C.A. § 36-4-121 (a)(1), we must hold that the division constitutes an abuse of discretion. However, even if we are mistake n that the chancellor’s decision was based upon Mr. Smith’s marital fault as opposed to his fault in losing his job, we would nonetheless conclude that t he evi dence t hat cam e into exis tence a fter t he tri al is n ot to be con sider ed when decid ing a Tenn. R. Civ. P. 59 motion. 1 The purpose of a Tenn. R. Civ. P. 59 post-trial motion is to prevent unnecessary

appeals by g

iving the trial court the opportunity to correct errors which occur be fore the entry of a

judgment. In Chadwell v. Knox County, 980 S.W.2d 378 (Tenn. Ct. App. 1998), the Court s aid:

The motion to alter or amend allows the trial court to correct any error as to the law or facts that may have arisen as a result of the court ove rlooking or failing to con sider mat ters. Id. at 383. The final decree entered a fter the evidentiary

hearing awarded one- half of the phantom stock to each of the parties. The decision conforme d to the mandate of T.C.A. § 36-4- 121(b)( 3)(C), th at the pr

operty divided be

“valued as of a da

te as nea r as rea sonably

possible to the final divorce hearing date.” In this case, there a

re no allegations of error in the Chance llor’s initial dealing with the facts presented at the hearing . Rather, Ms. Smith’s Motion to Alter or Amend concerning the-11-

Phantom stock is predicated upon a fact that came into existence after the hearing, to wit Mr. Smith’s termination from Jones, which fact shall not be considered in altering or amending the original Order of November 21, 2001. The November 21, 2001 Order awarded one-half of the Phantom stock and one-half of the Jones Retirement Account to each party , and awarded Ms. Smith the entire Horace Mann Annuity and the entire TCRS Account. From the evidence presented at the Aug ust 15, 2001 hearing and from the rec ord up to a

nd including that d ate, we find that t

his was an

equitabl e division of the property. Ha ving stated supra that Mr. Smi th’s loss of

employ ment and/ or his fault in th at termin ation is a p ost-hea ring fa ct, which should not b e conside

red on a Tenn. R. App. P. 59 motion, we must reverse the February 8, 2002 order so that the division of retirement accounts is in line with the original Order of November 21, 2001. T o affirm the February 8, 2002 Order of the trial court, would be to award Ms. Smith the following in terms of division of the retirem ent acc ounts: $253,565.86 = Ms. Smith’s award of one-half the Jones Retirement Plan ($144,407.36) + $109,158.50 of Mr. Smith’s half of the Jones Retirement Account to compensate Ms. Smith for the loss of the Phantom stock. $32,636.3 0 = Total H orace M ann Annui ty $30,223.12 = Total TCRS Account Ms. Smith’s Total = $316,425.28 Mr. Smith’s share of the retirement accounts would be $35,238.86, which is his half of the Jones Retirement Fund minus $109,158.50 to compensate Ms. Smith for the loss of the Phantom stock. In sh ort, Ms. Smit

h would receive a

lmost nine ( 9) times th

e amount M

r. Smith re ceives in division of the retirement funds. Since the November 21, 2002 Order g ave Ms. Smith only 1.25 times the amount Mr. Smith received in division of retirement funds, we find the Februar y 8, 2002 division inequitable, particularly in light of the fact that Ms. Smith has been awarded $3 ,0 00 pe r m on th in al im on y in futuro , and that Mr. Smith has been awarded the bulk of the ma ri ta l d eb ts . T he tr ia l c ou rt er re d i n a me nd in g t he di vi si on of ma ri ta l p ro pe rt y. The trial court erred in its award of alimony in futuro Guidelines for the determination of alimony are set forth in T.C.A. § 36-5-101(d), which reads in pertine nt part a s follows: (d)(1) It is the intent of t he general as sembly

that a spouse who is economical lydis advantaged, relative to the other spouse, be-12- reha b ilitated whenever possible by granting of an order f

or the p ayment of rehabilitative, temporary support and maintenance

. Where there i s such relative economic disadvantage a nd rehab ilitatio n is not feasible in consideration of all relevant factor s, including

those set out in this subsection , then the court may g rant an order for payment of support and maintenance on a long-term ba sis or until death or rem arriage of the recipie nt except a s otherwi se provid ed in subdivision (a)(3). Rehabilitative sup port and maintena nce is a separ ateclass of

spousal su

pport as d

istinguis hed from

alimony in solido and peri odic alimony. I n determining whether the granting of an order f

or pay ment of su

pport and

maintena

nce to a p arty

is appropriate, and in determining the nature, amo unt, leng th of term , and manner o f pay

ment, the cour

t shall con sider all

releva nt facto rs, inclu ding: (A) Th e relative earning capa city, obligations, needs, and financial r esources of each

party , includin g income from pen sion, prof

it sharing or retir ement pla ns and all other sou rces; (B) The relative education and training of ea ch pa rt y, the ability and opportuni ty of each pa rty to secure such education and training, a nd the necessity o f a part

y to secure further educati on and tra

ining to improve s uch part

y’ s earnin g capa

city 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 physical c ondition of each party , including, but not limited to, physical disability or incap acity

due to a chronic debilitating disease; (F) Th e e xt en t t o w hi ch it wo ul d b e u nd es ir ab le fo r a pa rt y t o s eek employment

outside the home be cause su ch party will be custodian of a minor child of the marriage; (G) The separate assets of each party , both real and persona l, tangi ble and intangible; (H) The prov is ions made with regard to the marital property as defined in § 36-4-121; (I) The standard of living of the parties establishe d durin g the marriage;-13- (J) The exten t to wh ich each party has made such tangible and intangi ble contr ibut ions to th e marri age as monetary a nd homemaker contribu tions, and tangible and intangible contributions by a party to the education, training or increased e arning power of the other pa rt y; (K) The relative fault of the parties in cases whe re the court, in it s discretion, deems it appropriate to do so; and (L) Such other factors, including tax consequences to each party, as are nec essary

to conside

r the equ ities betw een the p arties. Although the law clearly

favors rehabilitative alimony , we recognize that a trial court has wide discretion in determining whether an awa rd of alimony should be re habilitative or in futuro

. Appellate review of findings of fact by the trial court ar e de novo upon the record accompanied by a presumption of the c orrectness of the findings. See Tenn. R. App. P. 13(d). See also Hanover v. Hanover , 775 S.W.2d 612, 617 (Tenn. Ct. App.1989) (holding that the amount of alimony awarde d is larg ely

a matter left to the

discreti on of the t

rial cou rt, and th e appell ate courts will not interfere except in the case of an abuse of discretion). The trial court is required to consider the factors, supra , set forth at Tenn.Code Ann. §36-5-101(d)(1)(A)- (L). In itsOrder f

or Absolu te Divorc e, the tr

ial cour t ordere d Mr. Smith to

pay Ms. Smith $3 ,0 00 pe r m on th in al im on y in futuro . The trial court’s decision was based upon its finding that there is a great disparity

in the incomes of the parties, with Ms. Smith making about 16% of Mr. Smit h’s sa lary. The t rial c ourt a lso n oted t hat th e Ms. S mith enjoyed a h igh st andard of liv ing, which should not be disturbed because of Mr. Smith’s infidelity . We find ample evidence in the record to support

the trial court’s finding s. In

addition, the trial

court not ed in its Or

der that it had revi ewed the

entire r ecord in this matte

r. The re cord indi cates th at Mr. Smith and Ms. Smit

h were married for twenty-four ye ars. Ms. Smith is forty-three y ears old. She has a Master’s Degree, and is e

mployed as a sc

hool teac her. Add itionally , there i s testimony that Ms. Smit

h suffers from a genetic hea rt condition, spastic colon, and migraine headache s. Because of her profession, which is woefully underpaid, her age, her education, her health, her standard of living, and the disparity be tween the parties’ respective ear ning potentials, we hold that the award of al im on y in futurowas pre dicated upon a finding tha

t Ms. Smith ca

nnot be ec onomically rehabilitated. T.C.A. § 36-5-101(d)(1). A review of the entire record indicates that the trial court di d n ot ab us e i ts di sc re ti on in aw ar di ng al im on y in futuroin the amount of $3,000 per month.

The trial c

ourt err ed by holding D efendant Riley Dean Sm ith in contem

pt for not pr

oviding Debo rah Bowers S mith with a com

parable ve

hicle to r eplace t he vehicle she intent

ionally wrec

ked. During the marriage, the pa rties leased a 2000 Volvo automobile for Ms. Smith’s use. The vehicle leased for $700 per month. On Marc h 24, 2001, Ms. Smith was involved in a one-2 Mr. Smith al leges that Ms. Smith i ntentionall y wrecke d the vehi cle. However, up on review of the enti re reco rd, we do n ot find b y a pre pon dera nce o f the evid ence that the ac ciden t was inten tional. -14- vehicle accident, which totaled the Volvo. 2 On April 24, 2001, wife filed a Motion for Provision of Vehicle, requesting a vehicle c omparable to the 2000 Volvo. The trial court entered an Order on April 27, 2001 on several temporary issues. Husband was ordered to “maintain all of the health in surance , all of the marital d ebts and t he mortg age pa

yme nts pending hear

ing on thi s case.”The tria

l court’sOrder ma

kes no referenc e to Ms. Smith Motion for

Provision o f Vehicl e and does not order Mr. Smith to procure a comparable ve hicle for Ms. Smith. Ms. Smith argued that the lease on the vehicle should be included in the term “marital debts.” Wh

ile we ag ree tha t the $700 p er month le ase amou nt should ha

ve been included in marital debts, we note that that particular debt was paid when the insura nce company

covered the loss of the

Volvo. Sinc e that mar

ital debt w as paid, M

r. Smith ha

d no furth er oblig ations to maintain it. And since the court never issued a mandate that Mr. Smith was to purchase another Volvo, Mr . Smith can

not be hel d in conte

mpt for fa ilure to do

so. I n fact, w e find tha

t Mr. Smith did more than the court required when he g ave Ms. Smith use of his daughter’s vehicle and purchased a used Mazda for his daughter to replace the vehicle given to Ms. Smith. For the f orego ing rea sons, we r

everse the Orde r of the tr ial cour t finding Mr. Smith in contempt and the punishment therefor.

The trial court erred by failing to permanently enjoin Wife

from har

assing Husband. On February

23, 2001, the trial court issued a Temporary Restraining Order, which enjoined Ms. Smith from harassing Mr. Smith. This order was dissolved on April 27, 2001 at which time the court noted that there was a mutual restraining order in the parenting plan that would app ly to

both part ies. In histestimony , Mr. Smith a lleged that Ms. Smit

h made ha

rassing phone ca ll to his home and work. From our review of the record, we find that Mr. Smith has now obtained an unlisted te

lephone n umber and that he i s no long er emplo ye d by Jones. The se changes, in conjunction with the mutual restraining order in the parenting plan, render this issue moot and, theref ore, without merit. In sum, the order of the trial c ourt amending the division of marital property is reversed, and the final decree of the court, a s to the division of marital property and the award of alimony in futuro, is affirmed. The order of the trial court holding appellant in contempt of court and the punishment therefor is reversed. The order of the trial court deny

ing injunctive relief to appellant is affirmed. The case is remanded to the trial cour t for such further proceedings a s may be necessa ry . Costs of th

e appea l are as sessed one-half

to appell ant, Riley

Dean Smith , and his surety, and one -half to appellee, Deborah Bowe rs Smith.-15- ____________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, WESTERN SECTION