# FILED July 10, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT NASHVILLE

_______________________________________________________ ) STEPHEN EARL CRABTRE E , ) Davidson County Circuit Court

) No. 96D-2149 Plaintiff/Counter-

Defendant/Appe

llant. ) ) VS. ) C.A. No. 01A01-9710-CV-00576 ) NANCY CHOPPI

N CRABTREE , ) ) Defendant/Counter-Plaintiff/Appellee. ) )

______________________________________________________________________________ From the Circuit Court of Davidson County at Nashville. Honorable Muriel Robinson, Judge
Michael W. Binkley , Nashville, Tennessee. Attorney fo

r Plaintiff/Counter

-Defendant/App

ellant. Edward M. Yarbrough , HOLLINS, WAGSTER & YARBROUGH, P.C., Nashville, Tenne ssee. Attorney for Defendant/Counter-Plaintiff/Appellee.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. HIGHERS, J. : (Concurs) LILLARD, J. : (Concurs)The parties to this divor ce case, Stephe

n Earl Cr abtree (Husband) an d Nancy Chop pin Crabtree (Wife), were ma rried for appro

ximately 23 years. The trial

court entered a final decree of divorce in July 1997. Husband has appealed from the decree, citing error in the trial court’s decision to award alimony

in futuro and attorney’s fees to Wife. Wife has raised an additional issue regarding child support. Upon review of the record, we affirm as to the awards of al imo ny in futuro andattorney’s fees

to Wife and find it necessary to remand this cause to the trial court regarding the award of child support. We set forth our reasons below.

The parties married in Au gust 1974 when Husband was 21 years old and Wife 20. Two children were born of the marriage: Elizabeth Lee, born October 24, 1978 and Jennifer Lynn, born August 26, 1981. L

ee, an adult at the

time of trial, is a

student at Georgetown University. Ly nn
was 16 years old

at the time of trial

and a student at Ha

rpeth Hall,a private sch ool for girls in Nashville. Hus ban d agr eed a t tr ial to c ont inu e payi ng the tuition expenses of his minor daughter until graduation, although this was not made part of the final decree.

Husbandis a co llege gr aduate with a degree in business administration. He has workedas a stockbroker

for J. C. Bradford

and Company t

he past f ourteen ye

ars and became a partner in 1992. His earnings with the company are derived fr om commissio ns and partnersh ip distributions. His total annual earnings for years 1991 - 1996 were $230,943, $387,073, $353,225, $254,437, $400,864 and $417,034, respective ly. Husband i

ndicated a net mon

thly in co me of $13,582.71, including his par tne rship distribution, which he receives in a lump sum amount each January fo llowing the year in which it is earned. Wife is a certified public accountant. Afte r receiving her

accounting degree in 1975, she began working with the accounting firm of Ernst and Whi nne y. She left there in 1977 after the couple’s decision to begin a family. She did continue her accounting practice, working out of the marital home. Her annual gross earnings in 1996 we re $41,200 based on a 30 hour work week servicing approximately 100 clients and six or seven aud it clients.

Husband file d for divorce in July 1996 alleging i

rreconcilable

differences a

nd seeking jointcustody of the children. He later amended his complaint to alle

ge inappropria

te marital conduct
as a ground for divorce. In January 1997, he filed a motion for default judgment asserting that Wife1 The record indicates that the marital residence was valued at approximately $395,000. At the time of trial

, the parties’ mor

tgage on the ma

rital home consiste

d of a balloon note

due in 1999 in an amount over $200,000. At trial, the court indicated that its decision to award Wife the marital residence was conditional upon refinancing of the present mortgag e to a conventional type mortgage so as to fit within the financial means of Wife. The re cord further reflects that the debt (in the approximate amount of $255,000) was refinanced with Wife obtaining a 30 year conventional mortgage with monthly pay ments of $2,280.
2 The record indicates that the only marital debt of the parties consisted of the mortg age on the marital residence, the Visa debt and the parties’ tax liability. hadfailed to respond

to his complaint and

amended complain

t. In Februa

ry, Wife ans

w e red the complaint and filed a counterclaim for divorce alleging inappropriate marital conduct, adultery and irreconcilable

differences. She sought sole custody of the minor child, child support, alimony and attorney’s fees. Husband’s answer admits adultery
.

The final decree a

wards t he divo rce to Wife on grounds of inappropriate marital conduct. Husband’s co mplaint insofa r as the granting of the divorce was dismissed. The parties
were awarded joint custody of the min or ch ild wit h Wi fe re cei vin g pri mar y phys ica l cu sto dy. Husbandwas ordered

to pay child support in the amount of $1,312 per month. Wife was awarded the marital residence, with a determined equity of $145,223, “subject to the refinanc ing of t h e mortgages done thereon recently.” 1 Wife was awarded additional marital property totaling approximately

$228,000. Husband was awarded marital property totaling approximately $465,000. Husbandwas ordered to pa y Wife reha

bilitative alimony

in the amount of $1,7

00 per month

for five y ears and the reaf ter ali mon y in futuro in the amount of $1,200 per month until her de ath o r
remarr iage. The decree recognizes the parties’ tax liability for 1996 in the amount of $4 0,198 o f which the court ordered Husband to pay two-thirds and Wife the remaining one-third. Finally, the
cou rt o rder ed H usb and to p ay $7 ,50 0 ofWif e’s att orn ey’s fees as ad dit ion al a lim ony.

Husbandfiled a motion to alter or amend the decree to hold Wife responsible for the parties’ joint Visa credit card debt, which the court failed to address, and to eliminate the award of alimony in futuro to Wife and award Wife rehabilitative alimony only in the amount of $2,000 per month for a period of three to five years. The court he ld Wife responsible for $13,622.23 of theVisa debt, which totaled approximately $15,000, 2 but declined to alter the award of alimony.

Husband raises th

e following issue

s on appeal:I. Whether t h e trial court abused its discretion in ordering ali mon y in futuro under the facts of this case. II. Whether the trial c

ourt abused its

discretion in

ordering the husbandto pay

Wife’s attorney’s fees in the amount of $7,500 where Wife’s actions prolonged the litigation, whe r e the wife has a significant

earning capacity, and where the wife receive d $70,000 in liquid assets in the property division.

Wife raises the fo

llowing additiona

l issues:

I. Whether the amount

of child support set by the trial court is in compliance with the child support guidelines promulgated by the Department

of Human Services pursuant to Section 36-5-101 ( E)(2) Tenn. Code Ann
. II. Whe the r th e cou rt o f app eal s sh oul d aw ard N ancy C ho ppin Crabtree her a

ttorney’s f

ees incurred on

appeal.

We first address whe

ther it was erro r fo r th e tr ial cou rt t o aw ard a lim ony in futuro to Wife. Husband asse

rts tha t th is w as er ror whe re t he fa cts est abl ish tha t Wi fe i s he alt hy, 43 years oldand a certified

public accounta

nt earning over

$40,000 on a part-

time basis. He maintains that Wife is capable of earning, at a minimum, $60,000 to $70,000 ann uall y if she would accept more clients and work full-time. He testified that he had several clients who have the same skills as Wife who earn more money. He stated, “[s]he’s got a ver

y large ta x base and she take

s a lot of time

off.

. . . She has turneddown business over the last few years, so I think she is ca pable of earning more.” Husbandfurther contend s that Wife underc

harges her pr

esent clients and submits that she could possibly earn in excess of $ 100,000 a ye ar if working on

a full-time

basis andcharging mar

ket rates.

Husbandnotes the public policy in this state favoring “economic rehabilitation of the disadvantaged

spouse following

divorce.” He co

rrectly c ites Self v. Self

, 8 61 S.W.2d 360 (Tenn. 1993) for the following proposition:

[T.C.A. § 36-5-101(d)] reflects an obvious legislative policy that, if possible, the dependency of one ex-spouse on the o ther be eliminated and both parties be relieved of theimpediments incident to the dissolved marriage, and that an e x-spouse be adjudged permanently

dependent upon the other only when the court granting the divorce finds that economic rehabilitation is not feasible and longter m su ppo rt i s ne cess ary.

Self , 861 S.W.2d at 361. Husb and beli eve s Wife’s “financial rehabilitation is both feasible and virtually certain.”

Husbandalso contends that the trial court’s award discourages Wife from achieving full rehabilitation and disregards the legislature’s preference for short-term tempor

ary suppor

t. He insists that

Wife’s full economic rehabilitation is feasible in a three year period and that an a ward of alimony for

this length of time

is appropriate

under the facts. Although Husband recognizes the disparity in the parties’ ac

tual earnings, h

e insists that the dis

parity is not s

o great w ith respectto their earning capacities. Wife counters that Husband’s present income

is more than twelve times that of hers; t hat although H usband agreed at trial to continue paying the educ ational expenses of the minor chil d, h e is presently under no court order to do so; that since she was awarde d the marital
res idence and accompanying indebtedness, the assets distributed to Husband are more liquid i n nature, and, finally, that she is still responsible for maintaining the marital resid ence for the be

nefit of the parties’ minor daughter.

It is well established that

the trial court ha

s broad discretio

n in deciding whe

ther to award alimony

. The decision is fa

ctually driven and requires a balancing of those factors

listed in T.C.A. § 36-5-101(d). The most significant factors are need and the ability to pay
. Loyd v. Loyd , 860 S.W.2d 409, 412 (Tenn. App. 1993). Wife requested alimony in the amount of $7,000 per month basedon a need of

$9,000 per month. Of that figure, $1,000 was designated as school expenses for the minor child. Wife argues that her needs will be $6,500 per month after this chi ld leaves f

or college. Wife also listed a monthly mortgage pay ment of $3,070 which, as heretofore indicated, has been redu ced t o $2 ,28 0 th rou gh re fin anci ng. H usb and ide nti fie d mo nth ly expenses of ap proximately $15,700 on his income and e xpense statement. His brief

indicates that after modifications are made thereto as a result of the divorce decree, his monthly expenses are approximately $9,500. The record reflects that for the past two years Husband’s net monthly income has been approximately $20,000. Husbandadmitted at trial that his estimated ne t monthly income of $13,582.71 is “contrary to the last several years.” Clearly , Husband’s ability to pay is not in question.Although we believe Husba nd correct in his p

osition that dispari

ty in actual income is insufficient, in

and of itself, to overcome the legislative preference for rehabilitation, we find the facts under

the present case to support the trial court’s award of alimony, both rehabilitative and in futuro
. Even if accepting Husband’s assertion as true that Wife can

earn in excess of $100,000 per year if working full-time and c harging mark et rates, Husban

d’s income and ea

rning capacity

still greatly exceeds that of Wife. The award of rehabilitative alimony will assist Wife in realizing her full economic

potential; however, it will not place her anywhere near an equal footing with Husband nor will she be able

to continue living in the manner in which she had become accustomed during this twenty-three year

marriage. The awar d ofali mon y in futuro will further assist her in this regard andprovide her

with “closing in” money. See Aaron v. Aaron , 909 S.W.2d 408, 411 (Tenn. 1995).

We recognize that the facts in Aaron are somewhat differen t than our own in that there the wife was a homemaker, had never worked outside the home and did not po ssess a col lege degree. Aaron , 909 S.W.2d at 411. We nonetheless agree with Aaron , that “[w]hile alimony is not intendedto provide a former spouse with relative financial ease, . . . alimony shou

ld be awarded in such a way that the spouses approach equity.” Id
. In finding an aw ard o f al imo ny in futuro to the wife appropriate, the Aaron court stated, “[w]hile this will not put her in the same position she was prior to the divorce, it w

ill provide her with ‘closing in’ money; that is, she will be enabled to more closely approach her former economic position.” Id
. Aaron also noted that the party obtaining the divorce should not be left in a worse financial situation than he or she had before the opposite party’s misconduct

brought about the divorce. Id . at 410-11. Consequ ently , we affirm the trial court’s award of alimony to Wife.

We next address whether the trial court erred in awarding Wife a portion of her attorney’sfees which the record indicates exceed $12,000. Husband maintains that the trial court erred in awarding Wife $

7,500 of this amount s

ince she was awa

rded approximatel

y $70,000 in liquid assets, her actions prolonged the lit igat ion and she is c apab le o f ear nin g a su bst ant ial sal ary. Husbandargues that Wife failed to answe r writte n discovery, to produce certain documents for
se ve ral months and also init ially failed t o respond t o the compl aint for th e divorce nec essitatin g a motion for default

judgment. He further asserts that her requests during settlement negotiations were unreasonable. The record, however,indicates that the trial court found “[b]oth of these parties [tobe] totally unreasonable” in terms of settlement. We infer from the trial court’s award that the court didnot find Wife’s actions regarding the legal proceedings below to have c onstituted an intentional failure on her part to cooperate and t hat litigious tact

ics were not emplo

yed. We conc

ur in this finding. The trial court is afforded wide discretion in dete

rmining whether

one spouse

should pay for the other’s legal expenses incurre d as a resul t of divorce litigation. Loyd , 860 S.W.2d at 413. Based on the record before us, including the financial circumstances of the parties, we conclude that the trial court wa

s correct in awa

rding Wife these

fees.

Wife raises the issue of whether the tr ial court erred

in its award of child support. She assertsthat

the award fails t

o comply with the child support guidelines and that the trial court failed to make any w

ritten finding re

garding devia

tion. T.C.A. § 36-5- 101(e)(1) prov ides as follows:

In making its determinationconcerning the amount of support of any minor child or children of the parties, the court shall apply as a rebuttable

presumption the child support guid elines as provide

d in this subsection. If the

court finds that evidence is sufficient to rebut this presumption, the c

ourt shall make a w

ritten finding tha

t t h e application of the child support guidelines wo u ld be unjust or inappropriate

in that particular case, in or der to provide for the best interest of the child(ren) or the equity between the parties. Findings that the application of the guidelines would be unjust or in appropriate shallstate the amount of support that would have been ordered under the child support guidelines and a justification for the variance form the guidelines.

The trial court ordered H

usband to pay

$1,312 per month in

child support. The record does not indicate that the trial court made a ny written f

inding regar

ding its deviation from the child support guidelines which we think exists considering the amount of Husband’s net monthly incom

e
as reflected in the

record. Husban

d asserts that his

child support obligation under the guide lines is $2,268 monthly based on an actual net monthly income of $10,800. He contends that the trial court awarded only $1,312

in child support because at trial he voluntarily assumed the obligation of the minor ch ild’s educat ional expenses which amount to over $1,000 per month. Thus, Husband contends that his total child support obligation is above the guidelines.

T he parties agree that the final decree does not require Husband to pay the minor3 Husband states in his brief that he was willing to make the child’s private school tuition

a part of the decree but that Wife did not insist upon such. Husband’s counsel, in opening statement, inform

ed the court as fo

llows: [Husband] has offered and will make a part of this decree that he continue to pay for his young

est daughter’s

Harpeth Hall tuiti

on expenses each y

ear. His child support will be $1,312 under the guidelines and then with the tuition expense that he will guarantee to be bound by that is well above the guidelines. Based on the record, we question the accuracy of counsel’s proposed application of the guidelines. child’s e ducational expense s. 3 We therefore believe it necessary to remand this cause to the tria l court with the instruction

to either apply

th e ch ild suppo rt guidelin es or to mak e written fi ndings regarding any deviati

on therefrom. I

n its discretion, the

trial c ourt may amen d the final decre e to include the specific requirement that Husband provide for his minor child’s educational expen ses.

Wife has requested an awa rd of her att

orney ’s fees in

curred in this appea

l. We believe she is entitled to suc h an award and th

erefore rema

nd this cause to th

e tri al court to additionally

determine the amount of attorney’s fees reasonably incurred by

Wife on this appeal and to make an appropriate award.

The judgment of the trial court is affirmed as to

the awards of alimony and attorney ’s fees. This cause is remanded to the trial court for further consideration of the child support award withthe i nstruction tha t the child support guidelines be applied or that written findings be made regarding any deviation. The court is additionally instructed to make an award of atto

rney’s fe es to Wife that were reasonably incurred in this appeal. Costs are assessed against Husband, for which
exe cut ion may i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.

______________________________ HIGHERS, J. (Conc

urs)

______________________________ LILL ARD, J. (Concurs)