# FILED
December 5, 1995 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) 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, ) ) Defend ant/Counte

r-Plainti ff/Appe

llant. ) )

______________________________________________________________________________ From the Circuit Cou

rt of Shel by C ounty

at Memphis
. Honorable George H. Brown, Jr., Judge
David E. Caywood , Marc E. Reisman , CAUSEY, CAYWOOD, TAYLOR & McMANU S, Memphis, Tennessee Attorney for Def endant/Co

unter-Pl aintiff/

Appellan t.

Joe M. Duncan , BURCH, PORTER & JOHNSON, Memphis, Tennessee Attorney for Plaintiff/Counter- Defendant/Appellee.

OPINI ON FIL

ED: AFFI RMED FARMER, J.
CRAWFORD, P.J., W.S. : (Concur s) McLEMORE, Sp. J. : (Concur s)1 At 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 divo rce act ion, Brett P aul J ohnso n (Hus band) has ap pealed the tr ial co urt's ruling that Husband was no t entitled to rehabilitative alimony and attorne y fees f rom 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 furnitu re sale sman and w as enrolled in his first ye ar of co llege. The par

ties 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 beg an 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 andWife would go to scho ol. There is a discrepancy concerning the parties' or iginal agreement. Husband a lleges that the parties agreed that

after W ife com plete d her ed ucati on, Hu sband would go back t o coll ege f or his education while Wife worked. Wife, on the other hand, avers that there was ne ver a " se t plan" regarding

Husband's future education.

Wife excelled in her studies at Cha ttano oga State and received several scholarships andgrants which, together with Husband' s contributions, helped fund her undergraduate educa

tion. In the fall of 19 88, the fa

mily moved to Me

mphis so Wife

could att end the U niversity of Tennessee Co ll eg e o f P ha rm ac y.

While s he attended scho ol, Husba nd sold fur

niture. He contri

buted to th

e family income by

regula rly working 55 to 60 hours a week. Additiona lly, Wife borr

owed app roximately $25,000 in student loans whi ch, ac cording to her testimony , went toward tuition and living expenses. 1 Wife also w orked du ring he r summer v acation s and con tributed t hese ea rnings t o their joint acc ount.

The parties began to disc uss moving to Colorado immediately afte r Wife's graduationfrom

pharmacy

school in June, 1992 . Over thre e consecutive summers, they toured Colorado, looking for a town which su ited them b oth. Howe

ver, 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 a p proveof Wife's plan, but acquiesced when Wife convinced him that her particip ation in the

residency would inure to th e fami ly's benefit. He agreed to continue sell ing furn iture during her one y ear residency . In the summer of 1992, prior to beg inning her residency , Wife informed Husband that she was notwilling to move to Colorado as there were no acceptable positions as a clinical pharmacist available to he r there.

Sometime

later in 199 2, the ma

rriage began to de

teriorate. Wife testified that Husbandbecame violent and suicidal. Fin ally, in January 1993, Wife moved out of the marital residence. She decided the following month that the marriage was irreconcilable. Wife fur ther testified that

in March 1993, she

began to have in

timate re lations with a neurosurgeon, whom she ha d m et du ri ng he r c li ni ca l r es id en cy.

Wife filed for di vorce in April 1993, two months prior to the conclusion of her
re si de nc y. Husband f

iled a counter-c omplaint, alleging gr ounds of a

dultery , inappro

priate marital conduct, and irreconcila

ble diffe rences .

Husbandstipulated that Wife should have custody of th e m in or ch il d. Ad di ti on al ly, the parties were able to reach a n agreement reg arding Husband' s visitatio n rightsand child support li ab il it y. C on se qu en tl y, the only issues before the trial court were the equitable division of the marital e state an d Husband 's request for a limony and attor ney fees.

At the time of trial, Husband was twenty -eight y ears old and Wife was twe nty-s ix. The child was eight. Wife was a pha rmacist a t St. Jude Childre

n's Rese arch Ho spital in Me mphis,
earn ing a base

salary of $43,000 pe

r year . Husband was earning approximately $35,000 per yea

r 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 ret urn to sch ool and become a2 The trial court deviated from the amount of child support sugg ested by the De partment of Human Services Child Support Guidelines due to the fact that the child had liberal visitation with Father and spent a significant dea l of time in Father's care. I n 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 w oul d requir e two yea

rs of academ ic studies at the University of Memphis followed by four years in de

ntal school. However, he estimate d it

could tak e him appr

oximately five y ears to complete his undergraduate deg ree 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 a ttain a l evel of educati on commen surate with Wife' s.

The trial court awar ded Hus band a divorce on grounds of inappropria te marital conduct. In its equ itable div is ion 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 ma

rital est ate was a

warded 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 part ies' stip ulated a greem ent conc erning

child support andvisitation. 2 However, the trial court ordered that the child support

should be abated "beginning with the f irst month in which [Husband] becomes enrolle d in a instit ution of hi gher le arning

and shall continue to be aba ted until [Husband] completes his co llege education or the expiration of fiveyears f rom the date of this Final Decree of Divorce, whichever event first occurs." The court found that

Hu sb an d w as no t e nt it le d t o a li mo ny, and orde red eac h party to pay their re spective

attorne y f ees.
Husband presents two issues for our review:

1. Did the trial court err in refusing to awar d [Husband] rehabilitative alimony notwi thstand ing the fact that the court found [Husband] had deferred his education and work ed extreme

ly hard for many years suppor

ting the family while [Wife] studied to become a clinical pharmacist? 2. Did the trial court err in refusing to awar d [Husb and] a

n attorney fee in this case?3 Wife has n ot raised the devia tion from t

he guid elines a s an issue

on appea l. 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 g reat 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 witha presumption of correctness, unless the prep on deranc e of the e vidence is otherwise. Rule 13(d) T. R.A.P.

We do not believe that the tri al court erre d when it refused to grant Husband rehabilitative alimony in the instant case. Husband argues that the trial court erred when it refused to award r

ehabilita tive alimo ny after

the cou rt found this to be a proper case for alimony and that Husbandhad deferred his education so that Wife could pursue her s. To support his arg ument, Husb andrelies on the trial judge's oral statement a t trial that "legally

this is a case for s om e alimony." However, in its written decree, the court chose not to awa rd a ny al im ony t o Hu sba nd. It i s well established that we do not review the trial court's ora l statements, unless inc orporated in a decree, but are o nly

to review the cou

rt's or der and j udgmen

ts for that is how a court

speaks. Shelby
v. Shelby , 696 S.W.2d 3 60, 361 (Tenn. App. 1985); Sparkle Laundry & Cleaners, Inc. v. Kelton , 595 S.W.2d 88, 93 (Tenn. App. 1979).

Alth ough the trial

court, in its final d

ecree , did not find that thiswas a ca se wher e rehabilitative alimony was due, the c ourt did find that the proof substantiated Husband's entitlement to complete his college education and ob tain a n unde rgradua te degre e. Con seque ntly, th e tria l jud ge ordered that Husband's chi ld support obligat ions be ab ated whil e he purs ues his und ergra duate degree. 3 Additionally, in order to assist Husband in obtaining his deg ree, the tr ial j udge 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 mar riage.

Husbandargue s th at t he trial c ourt's r uling is in

equitabl e and urges this Cour t toinstruc t the trial court to award rehabilitative alimony to Husband in addition to the abatement of Husba nd's ch il d s up po rt an d t he co ur t' s o rd er th at Wi fe pa y v irtually all marital debts. T.C.A. § 36-5-101(d), which allows a court to award reh abilitativ e alimony after ma

king ce rtain consider ations, r eads as f ollows:
(d)(1) It is the intent of the general as s embly that a spouse who is economically disadvanta ged, relative

t o the other spouse, be rehabilitatedwhenever possible by the granting of an order for payment of r eh abilitative, temporary suppor t and maintenance. Where there is s uch rela

tiv e economic disadvan

ta ge and rehabilitation is not feas ible in

considerationof all re

levant f actors, including

those set out in t his sub section, then the court may grant an order for payment of support

and maintenance on a

long-term basis or until the death or remarr iage of the rec ipient exce

pt as othe rwise provided in subdivision (a)(3). Rehabilitative supp ort and maintena nce is a separa te class of spousal supp ort a s distinguished fr om alimony

in solido and peri odic alimony. I n determining whether the granting of an order f

or pay ment of su

pport and

maintena

nce to a p arty

is appropriate, and in determining the nature, amount, leng th of term , andmanner o f pay

ment, the court sha ll consider all relevant

factor s, inclu ding: (A) The rela

ti ve e arning capacity , obligations, needs, and f inancial resourc es of ea

ch party , including income from pen sio n , profit sha ring or retirem ent plansand all ot

her sour ces; (B) The relative educa

tion an d training of each party , the ability and oppor

tunity of each party to secur e such ed ucati on an d training, and thenecessity of a party to secur

e further education and training to improve such party' s earning capacity to a r eas onable level; (C) The duration of the marriage; (D ) T he ag e a nd me nt al co nd it io n o f e ac h p ar ty; (E) Th e p hys ical con dition of each party , including, but not limited to, phy sical disa bility or incap acity

due to a chronic debilitating disease; (F) The extent to which it would be undesira ble for a party to seek e mp loyment outside the home beca use such party will be custodian of a minor child of the marriage; (G) The separate assets of ea ch pa rt y, both rea

l and per sonal, tangible and intangible; (H) The provision s made wit

h rega rd to the ma

rital pro perty as defined in Sec. 36-4-121; (I) The standard of living of the parties established during the marriage; (J) The extent to which eachparty has made such tangible and intangi ble contr ibut ions to th e marri age as monetary a nd homemaker contribu tions, andtangibl e and inta ngible c ontributio ns by

a party tothe education, training or increased earning po we r o f t he ot he r p ar ty; (K) The relative fault of theparties in cases w here the court, in its discretion, deems it appropriate to do so; and (L) Such other factors, including the tax consequences to ea ch pa rt y, as ar e nec essary to conside r 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 pa y of $43,000 per y

ear. Hu sband ea

rned $35 ,000 per

ye ar. Wife a

lso has the

opportuni

ty to increa se her earning s by worki ng over time, whic

h she test

ified is necessar

y 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 pay ments while Husba nd purs ued his
u nderg raduate degree. On the

facts of this case , where

parties' earning capaci ties a re no t substantia lly dispropor

tionate and where Wife has the

burden of satisfying

the entirety of the

marital debt, we are not convinced that the trial cou rt abuse d its discretion when it fashioned such an award. Ar gu ab ly, the relief given Husband by the trial court, up to 5 years abatement of child support pay me nts, is tantamount to rehabilitative alimony. The re sult 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 fa il in g t o a wa rd Hu sb an d r eh ab il it at iv e a li mo ny.

As to Hus band's secon d iss ue, th e award of att orney's fee s in d ivorc e proce edings 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. 1 983); Hardin v. Ha rdin , 689 S.W.2d 152, 154 (Tenn. App. 1983). Attorney 's fee s are of ten taxed to

the oblig or spouse

when the spouse receiving alimony is without sufficient funds to pay for le gal representation. Cranford v . Cranford, 772 S.W.2d 48, 52 (Tenn. App. 1989). The evidence does not preponderate against the trial cour t's ruling when

there was no proof

that Husband was unable to pay the co st s o f h is le ga l r ep re se nt at io n. Co ns eq ue nt ly, we defe r to th e tria l cour t's rul ing.The judgment of the trial cour t is affirmed. Costs of t his appea l are taxe d to Ap pe ll an t f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ McLE MORE, Sp. J. ( Concurs)