### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE June 27, 200 2 Session RITA JO FINDLEY JONES v. CLINTON GA RLAND JONES Appeal from the Probate & Family Court for Cumberland County

No. 13319 Steven C. Douglas, Judge FILED AUGUST 15, 2002 No. E2001-03112-COA-R3-CV

In this divorce case, the issue s raised on appea l all pert ain to the trial court’s alimony award. That court awarded Rita Jo Findley Jones (“Wife”) alimon y of $75 6 per month “until the death or remarriage

of [Wife] or

un til such time as the court modifies its order in this regard.” Clinton Garland Jones (“Husband”) appea ls, contending that Wife is not entit led to alim

ony; that, if she is entitled to spousal support, she should be awarded rehabilitative alimony rather than a limony in futuro ; and that, in any eve nt, $756 pe

r month “isexcessive.” We modify the trial court’s awa rd of alimony. As modified, it is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate and Family Court

Affirmed as Modified; Case Remanded C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined. Vivian E. Warner, Crossville, and Alliso n M. Barker, Crossville, for the appellant, Clinton Garland Jones. James S. Smith, Jr., Ro ckwood, f or the ap pellee, Rita Jo Findl ey Jones. OPINION I. The parties were married on November 17, 1990. Wife had been married on three pr evious occasio ns; this was Husband’s second marriage. No children we re born to this union. Wife’s daughter by a previous marriage and the daughter’s two children lived with the parties for a per iod of time during their marriage. The parties separated on June 8, 2000. Wife remained in the former marital reside nce. It is locatedon 5 1⁄2 acre s of land. Husband m oved into a trailer. On May 9, 2001, Wife sued Husband-2-

for divorce, alleging inappropriate marital conduct. Following a hearing on October 12, 2001, the trial court rendered its opinion from the bench. The court gr anted W ife a divorce on the ground alleged ; divided th

e partie s’ prope

rty and de bts, as had been agreed to by the parties; and a warded Wife alimony in futuro of $756 per month. The judgment of divorce incorpor ates a transcript of the trial court’s oral opinion. The judgment was entered November 28, 2001. II. Our standar d of revi ew is de novo on the recor d of the proceedings below. Tenn. R. App. P. 13(d). The record comes to us with a presumption that the trial court’s f actual findings are correct. Id . We must h onor this p resumptio n unless the evid enc e preponderates against the trial court’s factual determinations. Id

. III. We are asked to review the nature, dura tion, and amount of the trial court’s alimony award. We do so mindful of the well-established principle that a trial court has wide discretion on the subject of alimony. Robertson v. Robertson , 76 S.W.3d 337, 342 (Tenn. 2002). “‘As a general matter, we are disinclined to alter a trial court’s spousal support decision unless the court ma nifestly abusedits discretion.’” Id . (quoting Goodman v. Goodman , 8 S.W.3d 28 9, 293 (Tenn. Ct. App. 1999)). Whether, and to wha t extent, Wife is entitled to spousal support are issues that require us to focus on the relevant

portions of T.C.A. § 36-5-101 (2001). As the Supreme Court has pointed out on numerous occasions, that statute expresses a clear preference for re

h abilitative alimony “whenever

possible.” T.C.A. § 36-5-101(d)(1) (“It is the intent of the genera l assembly that

a spouse who is econom

ically disadvan taged, r elative t o the othe r spouse, be reha

bilitated wheneve r possible by the granting of an order for payment of re habilitative, temporary support and maintenance.”). See Crabtree v. Crabtree , 16 S.W.3d 356, 358 (Tenn. 2000) (“...the legislature has demonstrat ed a preference

for a n award of rehabilitative alimony to rehabilitate an economically disadvantaged spouse.”). See also Robertson , 76 S.W.3d at 340 (“The prior concept of alimony as lifelong support enabling the disadvan

taged spo use to maintain the standard of living established during the marriage has been superseded

by the legislature’s establishment of a preferenc e for rehabilitative alimony.”) As wit h all issue s pertain ing to alimo ny, “a tr

ial cour t has wide

discreti on in dete

rmin in g whether an awa rd o f alimony should be rehabilitative or in futuro.” Crabtree , 16 S.W.3d at 360. Since this determination pertains to “whether the granting of an order f or payment of support and maintenance to a part

y is appro priate”and, if

so, the “n ature” of such a payment, all relevant factors including those set forth in T.C.A. § 36-5-101(d)(1)(A)-(L) must be c onsidered. Crabtr ee , 16 S.W.3d at 358; Robertson , 76 S.W.3d at 341.1 In re Marriage of Grauer , 478 N.W.2d 83, 85 (Iowa C t. Ap p. 199 1) (“R eha bilitative alim ony serve s to

support an economica ll y dependent spouse ‘thr ough a li mited pe riod of re-educat ion or ret

raini ng following divorce, thereby creat

ing incent ive and opportunity for that spouse to become self -supporti ng.’”) -3- The concept of rehabilitation and the legislature’s prefe rence for rehabilitative alimony, “whenever

possible,” have been addressed by the Supreme C ourt in several contexts. In the Crabtree case, the Supreme Court stated the following:

In Self [ v. Self , 861 S.W.2d 360 (Tenn. 1993)], we held that § 36-5- 101 reflects an

obvious legislative policy to eliminate the dependency of one ex-spouse upon the other and to relieve the par ties of “impediments incident to the dissolved marriage.” Id

. at 361. Id. at 359. The Supreme

Court has also referred to “the legislative purpose of encouraging divorced spouses to become self-sufficient.” Id . at 360. In the rec ent case of Robertson v. Robertson , 76 S.W.3d 337 (Ten n. 2002), the Supre

me Courtrefer

red to an opinion of

the Iowa Court of A

ppeals, 1 in pointing ou t that “rehabilitative alimony may assist

the disadvantaged spouse in obtaining further education or training.” Id . at 340. It is clear from

the Robertson opinion, however , that re habilitat ive alimon

y may also

be appro priate where f urther e ducation

or training are not implicated by the fa cts: [Rehabilitative alimony] may a lso provide t emporar y income t

o support the disadvantaged spouse during the post- divorce economic adjustmen

t. Id

. at 341

. See also Isbell v. Isbell , 816 S.W.2d 735, 739 (Tenn. 1991) (“The concept of rehabilitation in [T.C.A. § 36-5-10 1] is the im proveme nt of one’ s presen

t and futu re capa city to function independ

ently in so ciety.” ); Loria v. L oria , 952 S.W.2d 836, 838 (Tenn. Ct. App. 1997) (describing rehabilitative alimony as “temporary income duringa per iod of adjustment and effort of the dependent spouse to become partially or totally self sufficient.” ) “If an award of rehabilitative alimony is justified by the parties’ circumstances, a trial court initially shou ld award rehabilitative alimony only.” Crabtree , 16 S.W.3d at 360. If, on the other hand, the court finds that economic rehabilitation is “not feasible in consideration o f all re levant factors,” it “may grant an order for payment of support and maintenance on a long-term basis or u ntil the death or remarriage of the recipient....” T.C.A. § 36-5-101(d)(1). See also Crabtree , 16 S.W.3d at 359. In the final analysis, a trial court’s reasoned application of all relevant f actors will guide the court in deciding whether spousal support should be awarded and, if so, “the nat ure, amount, lengt

h of term, and manner of payment.” T.C.A. § 36-5-101(d)( 1). “As with any award of spousal su

pport, the two most important factors considered are the need of the disadva ntagedspouse and the obligor spouse’s ability to pay.” Robertson , 76 S.W.3d at 342.2 Her employm ent st arted s ome five years before the part ies’ marriage. -4- IV. Against the following background, we now proceed to review the evidence touching upon the trial court’s decision to grant Wife alimony in futuro of $756 per month. Wife is a security officer at Roane State Community College, a position she has he

ld since 1985. 2 Her gross salary in 2001 from this employment was projected to be $23,265. In add ition, she was on tra ck to earn g ross wages of $2,600 in the same year from a par t-time job cleaning an office on Sundays. She quit her part-time job on September 10, 2001, approximately a month before the final he aring below. She ba sed her d ecision to quit on her

doctor’ s stateme

nt that she

“would benefit from a reduced workload.” Her doctor testified by deposition that she was suffering from stress due to her “marital situation.” He opined that “it made sense to me to take the extra job out of the equation since I was unable to take the marital situation out of the equation.” The trial court found that Wife was physically ab le to workthe extr a job. It f ound that h

er net wa ges per m onth from both jobs was $1,744. The court also found tha t Husban d’s average annual gross wages for the years 1999-2001 was $55,112. A payroll document in the record reflects that Husband’s average net wages per month for the 8 1⁄2 months through September 16, 2001, with overtime, were $3,866. Withoutove rtime, his av erage net wages per month were $2,356. The evidence does not prepond erate against th

ese dete rmination s with res p ect to t he parties’ wages. See T.C.A. § 36-5- 101(d)(1)(A). Wife is vested in

the retir ement pla n of the Te

nnessee Consolidat

ed Retire ment Syste

m. She is eligible t

o retire July 27 , 2008, with a monthly retirement of $660. If she works to age 65, her monthlyretirement is $808. Husband is vested in the retirement plan of the National Asbestos Workers Pension Fund. It is not clear from the record when he is first eligible to retire, but the trial court noted that

“he’s got eleven good years in front of him.” Per the parties’ agreement, each w as awarded his/her individual retirement. See T.C.A. § 36-5-101(d)(1)(A). Wife submitted an affidavit of expenses reflecting total monthly expenses of $2,652.40. The trial judge concluded that there was, in his words, “a little bit of inflation in [her] expenses.” However, he noted tha

t the aff idavit fa ils to reflect “trips they used to make and don’t make now.” He pegged her expenses at $2,500. He arr ived at the monthly alimony figure of $756 by deducting her projected monthly net income of $1,744 from $2,500. The evidence preponderates that W ife’s affida

vit was more than a “little bit” inflated. Her can celed checks, analyse s prepar

ed by Husb and’s co

unsel, and a rigor

ous and su ccessf

ul cross

examination of Wife cast significant doubt on the

credibi lity of the

amounts of the following claimed monthly ex

penses:-5-3 Th is would reduce Wife’s proj ected expenses to $1, 987.40. A tri p and vacation al lowance of $1 50 p er m onth

– i.e. , $1, 800 per yea r – would i ncreas e thi s t o $2,137. 40. -6- Food $ 400 Clothes and accessories 100 Home maintenance & upkeep 200 Ground maintenance 100 Personal hygiene p

roducts 150 Medical and pharmaceutical (after insurance) 175 Car maintenance 100 Monthly gas 140 $1,365 The true total expenses for these items would appear to be more in the range of $700. 3 We conclude that the evidence pre ponderates against the trial court’s finding that Wife’s monthlyneeds amount to $2 ,500. We find that even after making an allowance for trips and vacatio ns, Wife’s monthly expenses would approximate $2,137. It should also be pointed out that Wife’s estimat ed ex penses include a house pay ment of $644.27. Thi s is based on the par

ties’ mortgage which carries an interest rate of 10.95%

. The trial court took judicial notice of the fact that mortgage rates have dro

pped. In view of th

is drop in r

ates, the re is every reason to believe that Wife could refinance the mortgage on the former mar ital re sidence

and ther eby redu ce her m

onthly payment. Husband’ s estimate d monthly e xpenses o f $1,637 w ere not s eriously questione d at trial

. See T.C.A. § 36-5-101(d)(1)(A). Prior to the parties’ marriage, Wife rec eivedan assoc iate’s degree in criminal justice from Roane State Commu

nity Colleg e. Husba

nd comple

ted high sc

hool. There isno proof in the record that either p arty would benef

it from further education or training. See T.C.A. § 36-5-101(d)(1)(B). The parties were married some nine and a half years before their sepa ration on June 8, 2000. See T.C.A. § 36-5-101(d)(1)(C). At the time of the hearing below, both of the parties were 53 years of age. See T.C.A. § 36-5-101(d)(1) (D). While e ach of the parties testified as to some physical infirmitie s, there was no proof that any o f their me dical pr oblems wou

ld impact t

heir abi lity to earn a living. See T.C.A. § 36 -5-101( d)(1)(E). Facto r (F) with resp ect to minor children is not implicated by the facts of this case. The trial cou

rt appro ved the pa

rties’ pr operty settlement. As noted earlier, Wife remained in the former marital residence. She receiv ed it

in the divo

rce subj ect to the

mortgage indebted ness. Pictures in the record reflect an attractive house with a creek running through the property, which, as previously noted, is some 5 1⁄2 acres in size. T h e proper ty is very

nicely la ndscape d with4 Husband adm itt ed pushing Wife in Januar y, 2000, causi ng her to fal l over a coff ee tabl e. 5 Wh en the parties married, Wife was living in a trail er. -7- numerous plantings . Each pa rty was bu rdened with his/her individual debts. Wife claimed m onthly paymentson these d

ebts of $2 00 in her a

ffidavit of income an d expenses. The proof reflects that some of these

debts will be paid within a two-year time frame. See T.C.A. § 36-5-101(d)(1)(G) & (H). Th ere is no evide nce in the

record suggestin g that the

standar d of living

of the pa rti es

– especia lly Wife – will be significantly impacted by t he parties’ divorce. See T.C.A. § 36-5- 101(d)(1)(I). There is also no evidence that either party made a disproportionate contribution to the marriage. In fact, the court did not mention contributions in his opinion. Each of the parties had completedtheir education and established their current employ ment prior to their marriage. See T.C.A. § 36-5-101(d)(1)(J). The trial court granted Wife the divorc e “based on the admitted inappropriate marital conduct of [ Husband] .” 4 However, the court made no refe rence to the parties’ relative fault in connection withthe alimony award. See T.C.A. § 36 -5-101( d)(1)( K). The t rial cou rt did not m

ent ion any factors not specifically mentioned in T.C.A. § 36-5-101(d)(1 )(A)- (K). See T.C.A. § 36-5- 101(d)(1)(L). V. We disagre e with Hus band’s c ontention that wife

is not entit

led to any

ali mony. The evidence does not pr

eponder ate aga inst a find

ing that W

ife has need of so me alimony for some period of time and that Husband has the ability to pay some alimony. We do find that the evidence preponderates aga inst the trial court’s implicit finding that Wife cannot be reha bilitated . She has a

n associa te’s deg ree; ha s b een employed in the same job since 1985; has the demonstrated ability to earn approximately $1, 744 net inc ome per m onth; is in relative ly good health as she approac hes her m id 50's; is e

ntitled to a

vested pe nsion star ting as ea rly as her age 62; and has an attractive, well-ma intained, seven-room residence on a relatively large tract of land, which also houses a garage and bar n. 5 We find that wife can be economically rehabilitated with some assistance from Husband. We modify the trial court’s award of alimony to change it from an in futuro award to an award of rehabilitative alimony of $500 per month for four years. We f i nd that suc

h an awa rd will en able Wife “to beco me partia

lly or totally self sufficient.” See Loria , 952 S.W.2d at 838. There is every reason to believ e that Wif e will be a

ble “to f unction in depende

ntly in society.” Isbell , 816 S.W.2d at 739. This award

is in keeping with “the le gislative purpose o f encour

aging divo

rced spo uses to become self-sufficient.” Crabtree , 16 S.W.3d at 360.6 Th is is the t otal of t he $500 per month r ehabil it ati ve al imony payments for t he peri od October , 2001, through August, 2002, incl usive. -8- The modification of the trial court’s award of alimony is effective October 1, 2001, th

e startdate of the tri al court ’s alimony award o f $756. Hu sband will be entitled to a cre dit

against this new obligation for all alimony payments made by him to Wife on or after October 1, 2001. VI. The trial cou

rt’s a limony award is modified as set forth in this opinion. As modified, the alimony award

is affir med. This c ase is remande d for the entry of an order specifying the pa

yments made by Husband on and a fter Oc tober 1, 2 001, and s etting for th the amount by whic

h the paym

ents made by Husband on and after October 1, 2001, exceed $5,500. 6 To the ex tent H usb and has overpai d his alimony

obligati on – as est ablished by this opinion – he will not owe Wife any paymentsuntil he has recouped th e overpa yment to be

credite d to him at th

e rate of $500 per month. Costs on ap

peal ar e taxed t o Rita Jo Find

ley Jones

.

_______________________________ CHARLES D. SUSANO, JR., JUDGE