# FILED September 22, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE DEBORAH LOIS OAKS ) ) Plaintiff/Appellee ) Appeal No. ) 01-A-01-9901-CH-00046 v. ) ) Williams on Coun ty Chanc ery CLIFTON EDWARD O

AKS ) No. 24516

) Defendant/Appel

lant )

) COURT OF APPEALS OF TENNESSEE APPEAL FROM THE CHAN CERY COURT FOR WILLIAMSON COUNTY
THE HONORABLE RUSS HELDMAN PRESIDING

ROBERT TODD JACKSON 222 SECOND AVENUE NORTH SUITE 419 NASHVILL

E, TENNES SEE 37201 ATTORNEY FOR DEFENDANT/APPELLANT

J. RUSSELL PARKES 102 WEST 7 TH STREET POST OFFICE

BOX 692 COLUMBIA,

TENNESSE

E 38402 ATTORNEY FOR PLAINTIFF/APPELLEE

AFFIRMED AS MODIFIED AN D REMANDED PATRICIA J. COTTRELL, JUDGE CONCUR: CANTRELL , P. J. CAIN, J.2 

## OPINION This appeal involves the di vision of property at the

dissolution of a fifteen year marriage. Mr. Oaks appeals the div ision of marital proper

ty, the award of rehabilitative

alimony and the award of Ms. Oa ks’s attorney fees.

He asks for costs and attorney fees on appeal. Ms. Oa

ks appeals the court’s

failure to divide Mr. Oaks’s pension and also seeks attorney fees on appeal. We affirm the trial court’s order as m

odified. I. The parties separated after fifteen years of marriage
. They had no children together. Mr. Oaks was the primary breadwi

nne r, earning approximate ly $60,000 per year at the time of the divorce, having worked for one employer throughout

the marriage. Ms. Oaks worked at cleri ca l jobs for most of the marriage, but

atmost earned $20,000 per year. The parties moved several times because of Mr. Oaks’s work. Ms. Oaks left her jobs and re

tirement plans each time the parties moved.Ms. Oaks is 47 years old, is cu rrently unemployed,

and has no retirement

plan. Mr. Oaks is 51 years old and has three re tirement plans which together, when c

omputed in 1998, would p rovide him more than $2,900 per month upon his retirem ent. A ccording to the parti es’ stipulations and documentation

from the U.S. Railroad Retirement Fund, the Tier I plan, worth $1,391 per month, is not subject to division, but the Tier II plan, worth $654.78 per month, and the CSX

Pension Plan, wor

th $960 per month, are subj ect to division. Ms. Oaks moved from

the home in February 1997 and f iled for divorce on alternat e grounds of irreconcilable differences and inap propriate marital conduct
. Mr. Oaks filed an answ

er and count

erclai m alleging irreconcilable differences and inappropriate mar

ital conduct on the par

t of Ms. Oaks. A few m

onths after1 § 36-4-121. Equita ble division, distrib

ution or assignme

nt of marital prope

rty (a)(1) In all actions for divorce or separate support and maintenance, the court having jurisdiction thereof may, upon request of either party , and prior to any

determination as t

o whether it is appropriate to order the support and maintenance of one (1)part y b y the other, equitably divid e, distribute or assign the marital property between the parties without reg ard to marital fault in p

roportions as the c

ourt deems just.
3 the separation, Ms. O

aks began a relationship with anot her man. Prior t o the divorce, Ms. Oaks moved into the other ma n’s house. Mr. O aks subsequently amended his complaint to alleg e adultery. The court found that Ms. Oaks did not have grounds for divor ce. The divorce was awarded to Mr. Oaks on groun

ds of Ms. Oaks’s post-se

paration adultery. Th e court divided the assets of the parties . The household items we r e awardedaccording to the par ties’ own plan. T

he court then awarde

d Mr. Oaks propertythat the parties val ued a t $ 76,762.67, subtrac ting a debt owed to his employerfrom the total value. The court awarded Ms. Oa

ks property valued by the parties at

$112,000. Ms. Oa

ks was then ordered

to pay the credit ca

rd debts, totaling $18,454.90.Mr. Oaks was a warded his pensions in

their entirety. II. We first consider the d

ivision of marital pr

operty. The

trial court has wi

de discretion in dividing the marital estate upon divorce. Tenn. R. App. P. 13(d);

see Loyd v. Loyd , 86 0 S.W. 2d 409, 411 (Tenn. A pp. 1993). Our re

view of fin dings of fact is de novo upon the record, with a presumption of corre ctnes s unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). M r. Oaks first argues

that the trial court

failed to make an e

qu itabl e divisionof the marital as sets pursuant to Tenn. Code Ann. § 36-4-121(1996). 1 Ms. Oaks argues that the trial court should have aw arded her a p ortion of Mr. Oaks’s pensions in addition to the o ther marital property she received. It is not disputed that, if the pensions are not included in the calcu

lation,2 The parties dispute the percentages

of the property

, other than the re

tirement benefit

s, that the court awarded to each of them. By Mr. Oaks’ s calculation, the court awarded Ms. Oaks 59% of the marital property. Ms. O aks claims that the $18,454.90 in marital debt the court assigned to her should be tak

en intoconsideration whencomparing the a wards to the parti

es. When the debt is subtracte d from her awar

d, Ms. Oaks argues, the award to her is closer to 55% than to 59%. Since a divis ion of property

need not be equal in order to b e equitable, thes

e percentages

are provided mer

ely to show th

e parties’ positio

ns.
3 § 36-4-121(c) In making equitable division of marital property , the court sh all consider all relevan t factors in cluding: (1) The duration of the marriage; (2) The age, phy

sical and mental h

ealth, vocationa

l skills, employ

abil ity, e arning capacity, estate, financi

al liabilities and f

inancial needs of

each of the par

ties; ( 3) The tangible or intangible contribution by one (1) party to the education, t

rainin g or i ncre ased earn ing p owe r ofthe oth er pa rty; (4) The relative ability of

each party for future

acquisitions of capital assets and income; (5) Th e contribution of e ach party t

o the acquisition, p

reservation, ap

preciatio n o r dissipation of the marital or separate property, including the contribution of a pa r ty to the marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earner to be given the same weight if eac h party has fulfilled its role; (6) The val ue o f th e sep arat e pro pert y of ea ch p art y; (7) The estate of each party at the time of the marria ge; (8) The economic circumstances of each party at the

time the division of p

roperty is to become effective; (9) The tax consequences to each party; and (10) Such other f

actors as are ne

cessary to consider the equ

ities between the

parties.

4 the court awardedMs. Oaks more of the marital proper

ty than Mr. Oaks. 2 When the pensions are in cluded in the calcula tion, however, it

is clear that Mr.Oaks
was awarded the major portion of the couple’s assets. We are of the opinion

that the equities of the case

dictate that Ms. Oaks should have a part of the pensions as well as her award of the o ther property. In awarding

marital property, the court must make an “equitable division” of property. Tenn. Code Ann. § 36-4-121(a). Eq uitable is not necessarily equa l, however, and the courtmust co nsider several factors 3 in determining an equitable division of the

marital property. Tenn. Code Ann. § 36-4-121(c); see Barnhill v. Barnhil

l , 826 S.W.2d 443, 449 (Ten n. App. 1991). After a fifte en year marr iage, Ms. Oaks is 47 years old and has never earned more than $20,000 per year . There is no evide nce that she will be

able to earn a higher sala

ry in the future. S he left several j o bs and retirement pl ans4 Documentation from the Railroad R etirem ent Board indica tes Ms. Oaks is elig

ible for a di vor ced s pou se b enef it o f $6 95 p er m ont h wh ich wil l no t re duc e Mr . Oa ks’ s an nui ty. 5 to move with Mr. Oaks as he pursued his car eer. Mr. Oaks , on the other hand, currently ea rns app roximately $60,000 pe r year and has gener

ous retirement plans. Given the length of

the marriage, Ms. Oaks’s lower earning capacity, her contributions as a homemaker, and her inability to vest in a retirement system due to t he coupl e’s moves, we fi nd that the court err

ed in not dividing the pensions. Ms. Oaks testifie d that Mr. Oaks be

gan contributing to the p

lans after the marriage. Any

increase in pension

plans during the marriage, whether vested
or unvested, is marital property. See Cohen v. Co hen , 937 S.W.2d 823, 828 (Tenn. 1996); Tenn. Code Ann. § 36-4-121(b)(1)(A); see also Umstot v. Umstot , 968 S.W.2d 819, 822 (

Tenn. App. 1997) (affirming the tr ial court’s awar

d o f husband’s pension monies accr ued before the mar

riage to husband and div

iding the monie s accrued after the marri age). Ms. Oaks

has demonstrated tha

t the pensionfunds, other than the Tier I benefits, are ma

rital property and su

bject to division. Accordingly, after considering the equities in the case, particular l y the parties’ earning capacities and Ms. Oaks’s lack of any retirement

plan, 4 we order thatone of Mr. Oak s’s retirem ent plans, the CSX Pension Plan, be divided equally between the

parties. The va

lue to be divided should

be the plan’s value
as of the date of the divorce, or as near that date as possible. Mr. Oaks’s Tier I benefits are not divisible, and we affirm the trialcourt’s award of the Tier II plan benefits to Mr. Oaks. The order of the trial court that the CSX Pensi

on Plan be awardedsolely to Mr. Oaks is modified t

o a ward half to Ms. Oaks. The trial courtis directed to

determine the proper procedure requiredfor the division of5 Tenn. Code Ann. § 36-5 -101(d)(1) ... In determi ning whether t he granting of an

order for payment of

support and maintenance to a party is appropriate, and in determining the nature, amount, length of term, an d mann er of payment, the court shall consider all relevant factors, in cluding: (A) The relative earning capacity, obliga tions, need s, an d financial resources of each part y, including income from pension, profit sharing or retirement plans and all other source

s; (B) The relative edu

cation and traini

ng of each par

ty, the abilit

y and opportunity

of each party to secure such e

ducation and trai

ning, and th

e nec essity of a party to secure f urther education and tra

ining to improve su

ch party's earning capa

city to a re

asonable level; (C) The duration of the marriage; (D) T he ag e and men tal con dit ion of ea ch p art y; (E) The physica

l c ondit ion of each party, including, but not limited to, physical disability or incapacity due to a chronic de bilitating disease; (F) The extent to which i

twould be undesirable for a party to seek employ ment outside the home because such party will be custodian of a minor child of the marriag e; (G) The separa

te assets of eac

h party, both

real and personal, tangible and intangible; (H) The provisions made with regard to the marital property as defined in § 36-4-121; (I) The standard of living of the parties established during the marr iage; (J) The extent to

which each part

y has made su

ch tangible

and intangible contributions to the marriage as monetary and homemaker contributions, and

tangible and inta

ngible contributions by a party to the education, training or increased earning power of t he o the r par ty; (K) The relative fault of

the parties in cases where the court, in its discretion, deems it appropriate to do so; and (L) Such other

factors, includi

ng the tax consequ

ences to each party, as are necessary to consider the eq

uities between the

parties. 6 the pension plan, and to is sue an appropriate o rder to accomplish s

uch division. The remainder of

the trial court’s a

ward of marital property is affirm ed. III. We next consider whether the trial court erred in its a ward of rehabilit

ative alim ony. A trial court has broad discretion in determining whether to award alimony. See Loyd , 860 S.W.2d at 412. The de cision is factually dr iven and requir es a balancing of the factors listed in the statute. 5 Id. Of these factor s, need and the abilit y to pay are the most cr itical. Id. The trial court awar de d Ms. Oaks $500 per month for three years as rehabilitative

alimony. Mr. Oa

ks argues that Ms. Oaks should not get any alimony at all. Mr. Oa

ks contends that because Ms. Oaks did not use the word “rehabilitative” in her request for alimony, he was prejudiced by the omission. He claims, also, tha

t Ms. Oaks’s “fa

ult,” the po st-s eparation adultery , should have precluded an award of alimony. He argues, further, that Ms. Oaks does not7

need the alimony because of her minimal living expen ses at the time of the divorce and her aw

ard of marital pro

perty. Tennessee law provide s f or three types o

f alimony: ( 1) rehabilitative alimony, which provides modifiable, temporary support for a peri o d of adjustment

sufficient to

enable a dependent s

pouse to become parti

ally or totally self-sufficient ; ( 2 ) periodic alim ony or alimo

ny in futuro, a continuing, but modifiable, support obligat i on to an economically disadvantag ed spouse; and (3) alimony in solido , an unmodifiab le lump sum

award which may

be paid over time. Tenn. Code Ann. § 36-5-101(d)(1); see Loria v. Loria , 952 S.W.2d 836, 838 (Tenn. App. 1997). The legislature’s stated preference is f

or rehabilitative alimony whenever possible. Tenn. Code Ann. § 36-5-101(d)(1). A finding that rehabilitation

is "not feasible" is r

equired before an a

ward of alimony in futuro is appropriate. Id. ; see also Loria , 952 S.W.2d at 84 0. Mr. Oaks argues that the award was improper because it was not
s pecifically

requested. The a

limony was, indeed,

requested in Ms. Oaks’ s complaint, “Plaintiff is in ne ed of spousal support,

bot h temporary and permanent

and/or in solido ” and

the prayer for

relief, “that Plaintiff be awarded temporary and permanent alimony, al imony i n solido ...” and in her attorney’s opening stateme nt, “W e have a request fo r alimony ... .” Mr. Oaks was on notice, from the initial com plaint for divorce,

that Ms. Oaks

sought alimony. He coul d not h ave been prejudice d by her failure to sa

y the magic word, “rehabilitative,” since rehabilitative alimony is favored. The deter mination of whether to a w ard any type of alimo ny must be made afte

r consideration of th

e
ec onomic d isparity between the parties and the statutory factors listed above, regardlessof the type of alimony awarded
. Tenn. Code Ann.§ 36-5- 101(d)(1)(A) - (L). We fail to see how Mr. Oaks could have been prejudiced by8

an award of reha

bilitative alimony ra

ther than in futuro or in solido alimony. Mr. Oaks’s argument that Ms. Oaks’s fault should have precl ud ed an alimony award is also

without merit.

In awarding alim

ony to a party , the court
mus t co nsider the many

factors enume

rated above. Te

nn. Code Ann. § 36- 5- 121(d)(1). The predominant factors to consider, howev er, are the spouse's need, and the obligor spou se's ability to pay. See Loyd , 860 S.W.2d at 41 2. While“the relative fault of the parties” is one of the factors the court may consider i n awarding alimony, the court h

as the dis cretion to consider fault as it “deems
a ppropriate

to do so.” Tenn. Code Ann . § 36-5-101(d)(1)(K). Here, t he court
was well aware of Ms. O aks’s post-separat ion adultery, having g

ranted the divorce on those grounds, but, in its discreti on, did not consider her f ault sufficient to refu se alimony. Mr. Oaks contends that Ms. Oaks had no need for alimony, that her l

iving
e xpenses were minimal because sh e was living with ano ther man. Ms. Oa k s testified that she had been unem ployed since an indust

ry lay off and then had surgery. She planned to retu r n to work after re

covery from surger

y. She also anticipate d havin g her own home and ca r, and needing money

to make those payments. She testified further that she would pref

er not to remain depe

ndent
on another person but ha

d little choice in vie

w of her current financia

l situation. Whileliving with a third pe rson establishes a re

buttable presumption t

hat the recipient does not need alim

ony und er Tenn. Code Ann. § 36-5-101(a)(3)(A), thatsection deals with a

lim ony in futu ro specifically. See Isbill v. Isbil l , 816 S.W.2d 735, 738 (Tenn. 1991). Ms . Oaks wants to become self-sust

aining. The purposeof rehabilitative

alimony, as opposed to

alimony in solido or

alimony in futuro , is “to provide a temporary income during a peri od of adjustment” and

to allow the “dependent spouse to become pa rtially or totally self-sufficient.”9

Loria , 952 S.W.2d at 83 8. Considering

particularly Ms. Oaks’s need and Mr. Oaks’s ability to pa y,
we find no error in the court’s award of rehabilitative alimony to Ms. Oaks. We affirm the trial

court’s alimony aw

ard. IV. We next consider wheth

er the trial court

erred in ordering M

r. Oaks to pay Ms. Oaks’s attorney f

ees of $6,017.65 as additional alimony in solido
. Mr. Oaks argues, again, that Ms. Oaks’s fault should have been taken into acco

unt in setting the award of

attorney fees. H

e further argues t

hat Ms. Oaks has the ability to pay her att

orney from her prop

erty award. Ms. Oaks claims that sh e should not be require

d to defray he

r legal expenses by spending the assets that will provide he

r with a source of income in the future. She a

gain points to Mr. Oa

ks’s greater ear

ning capacity. For the reasons stated above, we affirm the aw ard of atto rney fees as alimony in solido to Ms. Oaks. V. The order of the trial court is affirmed as modified. This case is remanded to the trial court for en

try of an order

accomplishing th

e division of the pension plan and such other proceedings as may be necessary. The costs of this appeal are taxed to Mr. O

aks.

_________________ _____ _________

_ PATRICIA J. COTTRELL, JUDGE CONCUR:

____________________________ BEN H. CANTRELL, P . J., M. S.

____________________________ WILLIAM B. CAIN, JUDGE