FILED

December 5, 1995

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION

AT JACKSON

_______________________________________________________

)

LEA ANNE JOHNSON, ) Shelby County Circuit Court

) No. 142054 R.D. 

 Plaintiff/Counter-Defendant/Appellee. )

)

VS. ) C.A. No. 02A01-9408-CV-00183

)

BRETT PAUL JOHNSON, )

)

 Defendant/Counter-Plaintiff/Appellant. )

)

______________________________________________________________________________

From the Circuit Court of Shelby County at Memphis.

Honorable George H. Brown, Jr., Judge 

David E. Caywood,

Marc E. Reisman,

CAUSEY, CAYWOOD, TAYLOR & McMANUS, Memphis, Tennessee 

Attorney for Defendant/Counter-Plaintiff/Appellant.

Joe M. Duncan,

BURCH, PORTER & JOHNSON, Memphis, Tennessee

Attorney for Plaintiff/Counter-Defendant/Appellee.

OPINION FILED:

AFFIRMED

FARMER, J.

CRAWFORD, P.J., W.S. : (Concurs)

McLEMORE, Sp. J. : (Concurs)
1At the time of trial, approximately $3,000 of Wife's student loan debt had been paid by

the parties, leaving a balance of $22,000.

In this divorce action, Brett Paul Johnson (Husband) has appealed the trial court's

ruling that Husband was not entitled to rehabilitative alimony and attorney fees from Lea Anne

Johnson (Wife).

The parties were married in Chattanooga, in 1984. At the time of their marriage,

Wife was in high school and Husband was working as a furniture salesman and was enrolled in his

first year of college. The parties had a son in 1985. The added expense of the child forced Husband

to obtain a second job with United Parcel Service.

 

Wife completed her high school education and in 1987 began a pre-pharmacy

curriculum at Chattanooga State Technical Community College. The parties agreed sometime prior

to Wife's entering college that Husband would work full time to support the family and Wife would

go to school. There is a discrepancy concerning the parties' original agreement. Husband alleges

that the parties agreed that after Wife completed her education, Husband would go back to college

for his education while Wife worked. Wife, on the other hand, avers that there was never a "set

plan" regarding Husband's future education.

Wife excelled in her studies at Chattanooga State and received several scholarships

and grants which, together with Husband's contributions, helped fund her undergraduate education.

In the fall of 1988, the family moved to Memphis so Wife could attend the University of Tennessee

College of Pharmacy.

While she attended school, Husband sold furniture. He contributed to the family

income by regularly working 55 to 60 hours a week. Additionally, Wife borrowed approximately

$25,000 in student loans which, according to her testimony, went toward tuition and living

expenses.1 Wife also worked during her summer vacations and contributed these earnings to their

joint account.

The parties began to discuss moving to Colorado immediately after Wife's graduation
from pharmacy school in June, 1992. Over three consecutive summers, they toured Colorado,

looking for a town which suited them both. However, in late 1991, Wife informed Husband of her

desire to take part in a clinical residency, which would last for an additional twelve months following

graduation. Husband did not originally approve of Wife's plan, but acquiesced when Wife convinced

him that her participation in the residency would inure to the family's benefit. He agreed to continue

selling furniture during her one year residency. In the summer of 1992, prior to beginning her

residency, Wife informed Husband that she was not willing to move to Colorado as there were no

acceptable positions as a clinical pharmacist available to her there.

Sometime later in 1992, the marriage began to deteriorate. Wife testified that

Husband became violent and suicidal. Finally, in January 1993, Wife moved out of the marital

residence. She decided the following month that the marriage was irreconcilable. Wife further

testified that in March 1993, she began to have intimate relations with a neurosurgeon, whom she

had met during her clinical residency.

Wife filed for divorce in April 1993, two months prior to the conclusion of her

residency. Husband filed a counter-complaint, alleging grounds of adultery, inappropriate marital

conduct, and irreconcilable differences.

Husband stipulated that Wife should have custody of the minor child. Additionally,

the parties were able to reach an agreement regarding Husband's visitation rights and child support

liability. Consequently, the only issues before the trial court were the equitable division of the

marital estate and Husband's request for alimony and attorney fees.

 At the time of trial, Husband was twenty-eight years old and Wife was twenty-six.

The child was eight. Wife was a pharmacist at St. Jude Children's Research Hospital in Memphis,

earning a base salary of $43,000 per year. Husband was earning approximately $35,000 per year

from his job as a furniture salesman. The parties had $15,950 of marital assets and an outstanding

debt of $38,000, $22,000 of which was accumulated funding Wife's education.

 

At trial, Husband testified that he had decided to return to school and become a
2The trial court deviated from the amount of child support suggested by the Department

of Human Services Child Support Guidelines due to the fact that the child had liberal visitation

with Father and spent a significant deal of time in Father's care. In its Final Decree, the trial

court states: "This Court has deviated from Child Support Guidelines because of the time the

minor child is spending with [Husband]."

dentist. Husband further testified that obtaining a dental license would require two years of

academic studies at the University of Memphis followed by four years in dental school. However,

he estimated it could take him approximately five years to complete his undergraduate degree since

he would have to work part-time to pay his living expenses. At trial, Husband asked that he be

awarded rehabilitative alimony to enable him to pursue his educational goals and attain a level of

education commensurate with Wife's.

The trial court awarded Husband a divorce on grounds of inappropriate marital

conduct. In its equitable division of the marital estate, the court awarded Wife a 1991 Jeep

Wrangler, which had an estimated value of $9,000. The unpaid balance on the note was $6,000. The

remainder of the marital estate was awarded to Husband. Husband left the marriage with

approximately $100 of debt while Wife left with $38,000 in debt. 

The trial court ordered Husband to pay Wife $250 per month child support pursuant

to the parties' stipulated agreement concerning child support and visitation.2

 However, the trial court

ordered that the child support should be abated "beginning with the first month in which [Husband]

becomes enrolled in a institution of higher learning and shall continue to be abated until [Husband]

completes his college education or the expiration of five years from the date of this Final Decree of

Divorce, whichever event first occurs." The court found that Husband was not entitled to alimony,

and ordered each party to pay their respective attorney fees.

Husband presents two issues for our review:

1. Did the trial court err in refusing to award [Husband]

rehabilitative alimony notwithstanding the fact that the court found

[Husband] had deferred his education and worked extremely hard for

many years supporting the family while [Wife] studied to become a

clinical pharmacist?

2. Did the trial court err in refusing to award [Husband] an

attorney fee in this case?
3Wife has not raised the deviation from the guidelines as an issue on appeal.

Trial courts are entitled to broad discretion in adjudicating the rights of parties in a

divorce case. Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn. 1983); Harrington v. Harrington, 798

S.W.2d 244, 245 (Tenn. App. 1990). Decisions based upon this discretion are entitled to great

weight. Kelly v. Kelly, 679 S.W.2d 458, 460 (Tenn. App. 1984); Edwards v. Edwards, 501 S.W.2d

283, 288 (Tenn. App. 1973). Findings of fact by the trial court are reviewed de novo upon the record

with a presumption of correctness, unless the preponderance of the evidence is otherwise. Rule

13(d) T.R.A.P.

We do not believe that the trial court erred when it refused to grant Husband

rehabilitative alimony in the instant case. Husband argues that the trial court erred when it refused

to award rehabilitative alimony after the court found this to be a proper case for alimony and that

Husband had deferred his education so that Wife could pursue hers. To support his argument,

Husband relies on the trial judge's oral statement at trial that "legally this is a case for some

alimony." However, in its written decree, the court chose not to award any alimony to Husband. It

is well established that we do not review the trial court's oral statements, unless incorporated in a

decree, but are only to review the court's order and judgments for that is how a court speaks. Shelby

v. Shelby, 696 S.W.2d 360, 361 (Tenn. App. 1985); Sparkle Laundry & Cleaners, Inc. v. Kelton,

595 S.W.2d 88, 93 (Tenn. App. 1979).

Although the trial court, in its final decree, did not find that this was a case where

rehabilitative alimony was due, the court did find that the proof substantiated Husband's entitlement

to complete his college education and obtain an undergraduate degree. Consequently, the trial judge

ordered that Husband's child support obligations be abated while he pursues his undergraduate

degree.3 Additionally, in order to assist Husband in obtaining his degree, the trial judge awarded the

majority of marital assets to Husband and ordered Wife to pay the $22,000 in student loans and the

$18,000 in various other debts incurred by the parties during the course of their marriage.

Husband argues that the trial court's ruling is inequitable and urges this Court to
instruct the trial court to award rehabilitative alimony to Husband in addition to the abatement of

Husband's child support and the court's order that Wife pay virtually all marital debts. T.C.A. §

36-5-101(d), which allows a court to award rehabilitative alimony after making certain

considerations, reads as follows:

(d)(1) It is the intent of the general assembly that a spouse

who is economically disadvantaged, relative to the other spouse, be

rehabilitated whenever possible by the granting of an order for

payment of rehabilitative, temporary support and maintenance.

Where there is such relative economicdisadvantage and rehabilitation

is not feasible in consideration of all relevant factors, including those

set out in this subsection, then the court may grant an order for

payment of support and maintenance on a long-term basis or until the

death or remarriage of the recipient except as otherwise provided in

subdivision (a)(3). Rehabilitative support and maintenance is a

separate class of spousal support as distinguished from alimony in

solido and periodic alimony. In determining whether the granting of

an order for payment of support and maintenance to a party is

appropriate, and in determining the nature, amount, length of term,

and manner of payment, the court shall consider all relevant factors,

including:

(A) The relative earning capacity, obligations, needs, and

financial resources of each party, including income from pension,

profit sharing or retirement plans and all other sources;

(B) The relative education and training of each party, the

ability and opportunity of each party to secure such education and

training, and the necessity of a party to secure further education and

training to improve such party's earning capacity to a reasonable

level;

(C) The duration of the marriage;

(D) The age and mental condition of each party;

(E) The physical condition of each party, including, but not

limited to, physical disability or incapacity due to a chronic

debilitating disease;

(F) The extent to which it would be undesirable for a party to

seek employment outside the home because such party will be

custodian of a minor child of the marriage;

(G) The separate assets of each party, both real and personal,

tangible and intangible;

(H) The provisions made with regard to the marital property

as defined in Sec. 36-4-121;

(I) The standard of living of the parties established during the

marriage;

(J) The extent to which each party has made such tangible and

intangible contributions to the marriage as monetary and homemaker

contributions, and tangible and intangible contributions by a party to
the education, training or increased earning power of the other party;

(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, including the tax consequences to each

party, as are necessary to consider the equities between the parties. 

The two most important factors enumerated in T.C.A. § 36-5-101(d) are need and

ability to pay. Lancaster v. Lancaster, 671 S.W.2d 501, 503 (Tenn. App. 1984). Wife made a base

pay of $43,000 per year. Husband earned $35,000 per year. Wife also has the opportunity to

increase her earnings by working overtime, which she testified is necessary to pay the bills.

However, Wife was obligated to pay $38,000 in debt. 

The trial court determined that the most practical way to assist Husband in obtaining

his education would be to abate Husband's child support payments while Husband pursued his

undergraduate degree. On the facts of this case, where parties' earning capacities are not

substantially disproportionate and where Wife has the burden of satisfying the entirety of the marital

debt, we are not convinced that the trial court abused its discretion when it fashioned such an award.

Arguably, the relief given Husband by the trial court, up to 5 years abatement of child support

payments, is tantamount to rehabilitative alimony. The result is the same as if Husband were

required to pay child support while continuing his education and Wife were required to pay him

rehabilitative alimony during the same period. Therefore, we decline to find the trial court in error

in failing to award Husband rehabilitative alimony.

As to Husband's second issue, the award of attorney's fees in divorce proceedings is

within the discretion of the trial court. Batson v. Batson, 769 S.W.2d 849, 862 (Tenn. App. 1988);

Fox v. Fox, 657 S.W.2d 747, 749 (Tenn. 1983); Hardin v. Hardin, 689 S.W.2d 152, 154 (Tenn.

App. 1983). Attorney's fees are often taxed to the obligor spouse when the spouse receiving alimony

is without sufficient funds to pay for legal representation. Cranford v. Cranford, 772 S.W.2d 48,

52 (Tenn. App. 1989). The evidence does not preponderate against the trial court's ruling when there

was no proof that Husband was unable to pay the costs of his legal representation. Consequently,

we defer to the trial court's ruling.
The judgment of the trial court is affirmed. Costs of this appeal are taxed to

Appellant for which execution may issue if necessary.

________________________________

FARMER, J.

______________________________

CRAWFORD, P.J., W.S. (Concurs)

______________________________

McLEMORE, Sp. J. (Concurs)