### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
SANDRA DIANE MOORE v. DANNY MICHAEL MOORE
An Appeal from the Chancery Court for Crockett County No. 7229; The Honorable George R. Ellis, Chancellor

No. W1998-00379-COA-R3-CV - Decided June 1, 2000

This appeal arises from

an action for divo

rce filed by plai

ntiff-Wife in the

Crockett County Chancery Cour t. Following defendant-Husband’s answer and counter-complaint for divorce, the part ie s entered into a consent order for support and other relief. The court entered an order granting divorce andapproving the parties’ agreement. Subsequently, the court entered an order awarding Wife alimony in futuro anda significant amount of the marital assets. The court also found that stock in
a corporation was

a marital asset a

nd included the stoc

k in Husband’s awa

rd of marit

al assets. Husbandappealsboththe award of alimony and the court’s characterization of the corporation stock as a marital asse

t. Tenn.R.App.P. Rule 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed in Part, Reversed in Part and Remanded

H IGHERS , J., delivered the opinion of the court, in which C RAWFORD , P.J., W.S., and F ARMER , J., joined.

J ames F. Butler, SPRAGINS, BARNETT, COBB & BUTLER, Jackson, for Appellant, Dan n y Michael Moore L. L. Harrell, Jr., HARRELL & HARRELL, Trenton, for Appellee, Sandra Diane Moore

OPINION Danny Michael Moore (“ Husband”) appeals from the trial court’s award of alimony and division of marital assets in this divorce action. On appeal, Husband asserts that the trial court erred in awarding alimony in futuro to Sandra Diane Moore (“Wife”). In addition, Husband claims the trial court erred in incl uding stock in a corpora tion as part of mar

ital assets subjec

t to equitable division. For the following re ason, the decision

of the trial court

is affirmed in part

and reversed in part and remanded.

Facts and Procedural History1 This agreement included provisions f or temporary alimony and child support as well as pr

oviding for pa

yment of outstan ding bills.

2 The Interi

m order adopted most of the provi sions set fort h in the par

ties’ agreement

of January 10,

1997. The order also granted th e parties an absolute o r “dual-fa ult” divor ce pursu ant to Ten n. Code Ann. § 36-4-1 29(b).

3 The order en tered on Au gust 4, 1998, w as the last in a series of orders clarifying the division of assets.

4 At the time of the d ivorce and div ision of property a ll of the parties’ children we re adults.
2 The parties had b

een married for

approximately twe

nty-six years when Wife filed a

divorce action on December 11, 1996, alleging ina ppropriate marit

al conduct and irr

econcilable dif

ferences. Husbandfiled an answer

and counter-complaint for divorce, alleging irreconcilable differences and inappropriate

marital conduct by Wife. On January 10, 1997, the parties entered into a consent order for support and other relief. 1 Husband subsequently amended h is cou nter-complaint to allege adultery by Wife. On September 8, 1997, the court entered an Interim Order GrantingDivorce and Approving Agreement of parties. 2 On August 4, 1998, the court entered an order on the remaining issues. 3 Pursuant to th

is ord er, Wife was awarded alimony in futuro of one thousand dollars per month. In addition, Wife was awarded marital assets incl uding the parties’ residence, shop, and rental property. Husband’s marital property award included stock in hi

s business as well

as another corporation. Husband appeals based on the facts as set forth below.

From all accounts, the

parties’ marriage was very turbulent. Both parties committed adultery andHusband was physic ally and verbally

abusive to Wife and the parties’ children. 4 For instance, Husbandstruck Wife with a chain, injuring her arm, and kicked the parties’ daughter in the stomach. After Wife filed

for divorce, Husband accosted her in her yard, spraying her with weed-killer and threatening her.

For the majority of the marriage, Wife was a homemaker, staying at home with the parties’ four children. Wife has only a tenth grade education although she did earn a GED. Wife has worked intermittently

throughout the cou

rse of the marria

ge. At various time

s Wife worked as

a substitute teacher, a secretary, a restauranteur, and a convenience store clerk. At the present, Wife is earning minimum wage as a

convenience store clerk. According to Wife, her monthly expenses at the time of divorce totaled around seventeen hundred dollars a month.

While married, Hus band worked at several different j obs before forming a corporation known
as Moore Pumps. Wife provide d some of the start-

up capital for this

corporation, as well as working as a secretary there on occasion. At the time of the divorce, Husband was paid approxim

atelytwo thousand five hundred dollars a month by Moore Pumps. Moore Pumps has assets of aroundthirtyfive thousand dollars. In addition, the company generates about fourteen thousand dollars worth of income per month.

In 1994, Husband decided to form another corporation, known as T-MAC Metals, in

order3

to purchase scrap metal. The corporation was named after the parties adult children: Tonya, Michael, Anthony, and Clint. The child ren were named

as sha reholders, directors, and officers of the corporation. Ea

ch child owns twenty-five

percent of the c

orporation. While

the parties’ provided initial capital of five thousand dollars secured by notes from the children, neither Husband nor Wife was listed on the corporate charter or corporate tax returns. In addition, neither Husband nor Wife received a pro

fit or distribution f

rom T-MAC.

T-MAC corporation bought a parcel of land inside Madison County that was to be usedfor Moore Pumps. According to Wife, she thought that the land was purchased by Moore Pumps. Wife testifie d t hat neither she nor children knew that T-MAC owned the property until the court proceedings.At

trial, however, one of the parties’ children testified that Wife was aware that TMAC, rather than Moore Pumps, purc hase d the land. Although the current valu

e of the land is disputed; estimates at trial put the value at between one hundred and fifteen an d one hu ndred and twenty-five thous

and dollars.

At trial, the ownership of

T-MAC metals was ho

tly contested. Ac

cording to

Wife, T-MAC
was essentially a straw-man corporation used

by Husband to

further the busin

ess of Moore Pumps. Wife testified that this w as necessary be

cause businesse

s would not sell the ma

terial to Moor e Pumps because it

was a competitor. Wife asked that T-MACbe classified as a marital asset subject to equitable division

by the court. Husba

nd testified that T-

MAC was not a

marital asset, but

rather a distinct business entity owned by the parties’ children. By order entere

d on December 15 , 1998, the court a warded Wife al

imony in futuro of one thousand dollars a month. In addition, the court held that T-MAC was a marital asset and took its worth into consideration when dividing the assets. Wife was awarded the marital home, the shop, anda rental house owned by the parties. Husband’s award of marital assets included the stock and land owned by T-MAC as w ell as the stock an

d assets o f Moor e Pumps. Husband ap peals.

On appeal, Husband

assertsthat the trial court erred in classifying T-MAC as a marital asset andincluding it in his award. Husband also asserts that the trial court erred in awardi ng Wife ali mony in fut uro. In addition, Husband asserts that the trial court erred in awarding all of the parties’ real property to Wife. Analysis

Pursuant to Rule 13 of the Ten

nessee Rules of Ap

pellate procedure, the standard of review is de novo upon the record, with a presumption o

f the correctne

ss of the finding of the trial judge. As such, we find it appropriate to note that trial courts have

broad discretion

in dividing the marital estate and making an award of alimonyupon divorce. Loyd v. Loyd , 860 S.W.2d 409, 411 (Tenn. Ct. App.1993); Lancaster v. Lancaster , 671 S.W.2d 501, 502 (Tenn. Ct. App.1984). In a non-jury
case such as this one, we may reverse the trial court only if the evidence preponderates against the finding of the trial judge. See Rule 13(d) T ENN . R. A PP . P. A. Alimony Award5 Tenn. Code Ann. § 36-5-101(d)(1) provides in relevant part: It i

s the intent of the general asse mbly that a spouse who is economicall y disadvanta

ged, rela tive to the other s

pouse, be reha

bilit ated whenever pos sible by t he granting of an order for payment of rehabil

itati ve, temporary s

upport and maint

enance. Where t

here is s uch relat ive
econo mic disadvanta

ge and rehabil

itati on is not feasibl e in consi

deration of

all rel evant fact

ors, inc luding thos e set out in this subsection, then the court may grant an order

for payment of support and maintenance on a long-ter m basis or until the death or

remarriage of

the recipie

nt except as otherwise provided in subdivisi on (a)(3). Rehabilitative support and maintenance is a sepa rate class of spous al support as dist inguished f

rom alimony in sol

ido and periodi

c alimony. In determining whether the gr anting of an order for payment of support and maintenance to a par ty is appropriat

e, and in determining the nature, amoun t, length of term, and manner o f paymen t, the court shall consider all relevan t factors, including:

(A) The relat

ive earni ng capacity,

obligati ons, needs,

and fi nanc

ial res our ces of e ach par ty, inc lud ing inc ome from pen sion, profit sharing or retirem ent plans and all othe r sources;

(B) The relative educati on and training of each party, the a bility and o pportun ity of each party to secure such education

and tra ining, and t he ne cessit y of a party to sec ure fu rther educ ation and t rainin g to im prov e suc h par ty's earning capacity to a reasona ble level;

(C) The duration of the marriage; (D) The age and mental condition of each part y; (E) The physical condition of each part y, including , but not lim ited to, phy sical disability o r incapac ity due to a chronic debilit

ating disease; (F) The extent to w hich it wo uld be u ndesirab le for a party to seek employment outsi de the home because such party will be cust

odian of a minor child of the marri age; (G) The separate asset

s of each party, both r

eal and personal, t

angible and intangible ; (H) The provisi

ons made with regar

d to the mari

tal proper

ty as defi

ned in § 36-4-121; (I) The standard of li

ving of the parties

established duri

ng the marriage; (J) The ex tent to wh ich each p arty has m ade such tangible an d intangib le contri butions to the marriage as monetary and ho mem aker con tributions, an d tangible and intangibl e contribut

ions by a part

y to the educa

tion, t raining
4 Husbandasserts that the trial court erred or abu sed its di scretion in making an award of alimony in futuro of one thousand dollars a month to Wife until her death or remarriage. Husband claims that both the amount of alimony andthe periodover which it is to be paid are excessive. For the following reasons, we find that the trial court did not err in this award.

The trial court has broad discre ti on both in determini ng whether to awa

rd alimony and in determining the amount

and duration of any alimony award. Te nn. Code Ann. § 36-5 -101; Young
v. Young , 971 S.W.2d 386, 390 (Tenn. Ct. App. 1997) citing Aaron v. Aaron , 909 S.W.2d 408, 410 (Tenn.1995); Self v. Self , 861 S.W.2d 360, 361 (Tenn.1993); Brown v. Brown , 913 S.W.2d 163, 169 (Tenn. Ct. App.199

4); Loyd v. Loyd , 860 S.W.2d 409, 412 (Tenn. Ct .App.1993); Houghland
v. Houghland , 844 S.W.2d 619, 621 (Tenn. Ct. App.199 2); Ingram v. Ingram , 721 S.W.2d 262, 264 (Tenn. Ct. App.1986); Lancaster v. Lancaster , 671 S.W.2d 50 1, 50 3 (Tenn. Ct. App.1984); Newberry v. Newberry , 493 S.W.2d 99, 102 (Tenn. Ct. App.1973). Generally, the appellate court will not alter a trial court's award of alimonyunless the award is not supported by the evidence or is contrary to the public policy embodied in the appl icable stat utes. Brown , 913 S.W.2d at 169; Gilliam v. Gilliam , 776 S.W.2d 81, 86 (Tenn. Ct. App.1988); Ingram v. Ingram , 721 S.W.2d 262, 264 (Tenn. Ct. App.1986).

The decision to award

alimony is factually driven and requires a balancing of the factors set forth in Tenn. Code Ann. § 36-5-101(d)(1). 5 Denton v. Denton , 902 S.W.2d 930, 932 (Tenn. Ct.or increas ed earning power of

the other party; (K) The relat

ive fault of the parties

in cases where the court

, in it s discre tion, dee ms it appropr

iate t o do so; and (L) Such other factors, including the tax conse quences to each party, as are neces sary to consider the equities between the p arties.

5 App.1995); Loyd , 860 S.W.2d at 412 . Co urts have previou sly determined tha

t the two most important factors considered when deciding a proper award of alimony are the need of

the spouse to whom alimony is awarded and the ability of theother to pay. Aaron , 909 S.W.2d at 410; Kincaid
v. Kincaid , 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995); Smith v. Smith , 912 S.W.2d 155, 159 (Tenn. Ct. App.1995); McCarty v. McCart y , 863 S.W.2d 716, 720

(Tenn. Ct. App.199

2); Loyd , 860 S.W.2d at 412; Gilliam , 776 S.W.2d at 86; Lancaste r, 671 S.W.2d at 503 ; Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. Ct. App.1989). In addition, the fault of a spouse in causing thedivorce is considered in the alimony award determination. Tenn. Code Ann. § 36-5-101(d)(1 )(K); Aaron , 909 S. W.2d at 410 -11; Gilliam , 776 S.W.2d at 86. U nder the statute,

alimony in futuro is appropriate whe

re there is rela

tive economic

disadvantage and rehabilitation of the disadvantaged party is not feasible. Self , 861 S.W.2d at 361.

The facts and circumstances in the case at bar fully support the trial court’s award of alimony in futuro to Wife. The majority of Wife’s married life has been spent as stay-at-home mother and homemaker. She has only a basic education and lim

ited wo rk experience

, neither of whic

h will provide much help in today’ s competitive work place. On th

e other hand, Husband owns and operates his own business and ha s a h igher earning ca pacity than Wife . In addition, while both parties’ admit to past infidelities, the evidence at trial supported Wife’s contention that Husband was physically

and mentally abusive. Husband’s behavior was certainly a contributing factor in causing the divorce.

Under the standard set forth above, we find that the tri a l court did not err in awarding alimony in futuro to Wife. The finding of the trial court on this issue is affirmed.
B. T-MAC Metals and Real Estate Husband also contends that the trial court erred in classifying T-MAC Metals as a marital asset and in includ

ing that asset in Hus

band’s property

award. Husband a

sserts that T-MAC is owned wholly by the

parties’ childre

n and is therefor

e not a marital ass

et subject to equita

ble division. Based on the following, we find that the trial court erred in including T-MAC in the marital asset division.

The court below found that T-MAC was controlled by Husband and was therefore a marital asset. We disagree. While Husband certainly had considerable

influence over T

-MAC’s operation

s, he had no ownership rights. Ownership of T-MAC’s assets remained wi th the parties’ children.6 While the corporati

on itsel f is not a marital

asset, the five thousand doll

ar note se

curing the pa

rties ’ loan of capital is a m arital asset.
6 Indeed, the evidence presented in the court below fully supports Husband’s contention that T-MAC is nota marital asset. Although Husband may have provided the parties’ children with the idea and investmentcapital, the corporation itself was not owned by the parties. All stock is owned by the parties’ children. No distr ib utio ns or profits have been paid to the parties since the corporation’s inception. Husband is neither a shareholder, a director, nor an officer of T-MAC. T-MAC’s tax returns, phone listing, and bank account are all separate

from those of Moor

e Pumps. The prope

rty was deeded to T-MAC and the affidavit of consideration was signed by Michael Moore, an officer of T-MAC. Accordingly, neither T-MAC stock nor the land owned by the corporation are marital assets subject to equitable division. 6

B ased on the aforementioned facts, the evidence on this issue preponderates against the finding of the trial judge. Therefore, the trial court’s holding on this issue is reversed. Accordingly,
we find i t unnecessary to address Husband’s remaining issue regarding Wife’s award of rea l pro perty. T he trial court’s division of marital assets must be redetermined without including TMAC. Therefore, this cause is remanded for further proceedings consistent with this holding.
Conclusion

Basedon the foregoing, the judgement of the trial court is hereby affirmed in part, reversed in part, and remanded. Costs on appeal are taxed to the appellant, Danny Michael Moore, for

which execution may issue if necessary.