### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE February 2001 S ession

JAMES THOMAS

FRAYSIER v. KAREN KAY SINGLETON FRAY SIER

Appeal from the Chancery Court for Washington County

No. 7142 Jean A. Stanley, Judge FILED FEBRUARY 27, 2001
No. E2000-02485-COA-R3-CV

James Thomas Fraysier (“Husband”) filed a complaint

seeking a divorce from Karen Kay Sing leton Fraysier (“Wife”) on the grounds of inappropriate marital conduct or, in the alte rnative, irreconcilable

differences. Wife filed an answer and counterclaim seeking a divorce o n the sam e grounds. The parties agreed upon the distribution of the marital assets, which was approved

by the Trial Court. The two issues to be deci ded at trial were who should be granted the divorce and whether Wife was entitled to alimony. The Trial Court determined that Husband was entitled to a divorce on the basis of inappropriate marital conduct and that Wife was entitled to rehab ilitative alimony in the amount of $600.00 per month for a period of 48 months or until further order of the court. Both part

ies appeal the Tr

ial Court’s deter

mination with reg

ard to alimony . We affirm. Tenn. R. App. P. 3 Appeal As Of Right; Judgment of the Chanc

ery Court Affirm

ed; Case Remand

ed.
D. M ICHAEL S WINEY , J. , delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and C HARLES D. S USANO , J R ., J., joined. Nat H. Thomas, Kingsport, Tennessee, for the Appellant, James Thomas Fray sier. R. Wayne Culbertson, Kingsport, Tennessee, for the Appellee, Kare n Kay Singleton Fraysie

r.-2- OPINION Background
After twenty-eight year

s of marriage, on October 15, 1999, James Thomas Fraysier (“Husband”) filed a complaint seeking a d ivorce on the basis of inappropriate marital conduct or, in the alternative, irreconcilable differences. Karen Kay Singleton Fraysier (“Wife”) filed an answer and countercla

im seeking a divor

ce on the same g

rounds.
At the time of trial,

Wife was forty-nine year s old. She had been a certified licensed practical nurse and also ha d held a certific

ation in “x-ray.” She worked as a nurse for twenty-seven years.At her last nursing job, she earned approximately $9.50 per hour. While practicing a s a nurse, Wife became addicted to drugs. She admitted taking drugs and sy ringes from wo rk and in

jecting the drugs while at home. She would then return the used syringes to work in an attempt to cover up her actions. She created

fictitious patient names to cover up the disappearance of the drugs. Wife took a leave of absence

from work in 1999 because her employer was about to discover the missing drugs. When she returned from the leave of absence, sh e again start ed stealin g drugs and syring es. This time, her employ

er discovered th

e missing drugs.

Wife eventually

plead guilty

to several counts of forgery and was plac

ed on two y ears of probatio n. She also surren

dered her cer

tification as a licensedpractical nurse and x-ray technician. These actions of Wife formed

the basis of Husband’s request for, and the Trial Court’s granting of, a divorce on the grounds of inappropriate marital conduct.
Wife is currently employed as

a greeter at Wa

l-Mart and is ear

ning approximatel

y $5.88 per hour. While she has completed a drug rehabilitation program, Wife testified that she did notwant to return to the nursing field after completing probation because of the resulting temptation that may arise from being around drugs. She adm itted that this was a voluntary reduction in her wages and that she could earn as much as $10.00 per hour if she returned to the nursing field in the fu ture. She has made no attempt to secure a higher paying job since becoming employed

at Wal

Mart and has indicated her intent to stay at that job. Wife testified that

she has a bulging disk in her back for which she is treated by an orthopedist, b ut this does n ot prevent h er from work ing. Otherwise, her health is fair. Her gross monthly earning s from her job at Wal-Mart are $940.80. Husband is fifty

-one year s old and is employed at Tennessee Eastman Company as a machine operator earning approximately $18.00 per hour. He has been e mployed at Tennessee Eastman Company for tw enty-six years. H e has a high school education. Husband’s gr oss earnings for 1999 were $43,103.90. His gross monthly earnings at the time of trial wer e $3,745.28.
The parties reached an agreement on the division of the marital property, which was approved by

the Trial Court. The marital property was divided equally , with eachparty receiving slightly more than $240,000

in assets. Husband received $15,085.69 from the savings and checking accounts, and Wife receive d $21,458.81. Husba

nd received $197 ,905.95 from his re tireme n t and stock ownership plans at

Tennessee Eastman Company, with Wife receiving $92,000.00 from these-3-

sameplans. Wife received the $5,354.33 in her retirement plan. The marital residence, valued at $115,000.00, was awarded to Wife . Wife is al so responsible for the remaining seven years of mortgage payments of

$262.13 per month. Wife and the parties’ two grown sons live at the marital residence. One of her sons ha s been payi

ng the electric

bill in exchange f

or li ving at the house. There are no minor children.

The first issue decided by the Trial Courtwas which party was entitled to a divorce. The Trial Court concluded that because of Wife’s drug addiction and criminal activity, Husband was entitled to a divorce. Wife’s counterclaim for divorce was dismissed. Neither pa r ty appeals that determination.
The seco n d issue decided by the Trial Court wa

s whether Wife wa

s entitled to alimony and, if so, the amount and whether she should be awarded rehabilitative

alimony or alimony in futuro . Both parties fil ed fina ncial statements w ith the Trial Court s

etting forth the

ir monthly income and expenses. Wife l

iste d mon thly expenses of $1,909.13. Of that amount, she listed a $100.00 monthly expense for upkeep on her house, but admitted that since the separation there has been only one suc

h expense totaling

$69.00. She also ha

d an “entertainm

ent” expense of

$50.00 per month and admitted that one $25.00 ite m (car tags) wa

s a yearly expense and not a monthly expense. She also included $50.00 per month as “Christmas Extra Expense” to buy Christmas presents. Wife had a monthly expense of $70.00 toward court costs associated with the criminal action. Wife’s net income per month was listed as $750.00.

Husband’s fina nc ial statement show ed a net monthly

income of $2,976.7 1. His monthly expenses are $1,820.87 after considering items which Wife will be responsible for paying pursuant to the terms of the property settlement, such as the mortgage on the home.
After reviewing Wife’s statement of income and expenses, the Trial Court concluded that Wife could live on “

probably ha

lf” of what was sh

own in the statemen

t. To do this, she wou

ld needto pay off some of the debt such as the remaining mortg

age and automob

ile payment

and adjust her lifestyle to conform to her lower pay ing job at Wal-Mart. Along this line, theTrial Court stated:
The problem isMrs. Fraysier thinks she’s rehabilitated to where she wants to be, she likes Wal-Mart, she wants to work at the Wal-Mart. If she’s happ y and content and that’s going to keep her happy and keep her off drugs, stay at the Wal-Mart , I’ve got no problem with that. Now on the other hand, I’m not going to make Mr. Fray sier pay the difference in her lifestyle for the rest of her life . . . .
The Trial Court conclu

ded that Wife was no

t entitled to a lim ony in futuro , but was entitled to rehabilitative a

limony in the a

mount of $600.00 per

month for 48 months.-4- Discussion
On Appeal, Husband c laims that Wife is not e ntitled to any

alimony. Wife

claims tha t sh e sh oul d ha ve b een a ward ed al imo ny in futuroas opposed to rehabilitative alimony.

Our review is de novo with apresumption of cor rectness of the factual findings of the trial court, unless a preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Brooks v. Brooks , 992 S.W.2d 403, 404 (Tenn. 1999). Trial courts havebroad discretion to determine whether spousal support isneeded and, if so, its nature, amount, and duration. Kinard v. Kinard , 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998); Garfinkel v. Garfinkel , 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996). “Appellate

courts are generally disinclined to second-guess a trial judge ’s spousal support decision unless it is not supported by the evidence or

is contrary

to the publi c policies refl ected in the applicable statutes.” Kinard , 986 S.W.2d at 234.

Determinations concerning the amount and duration of

alimony are factually driven an d require a balancing of the various factors contained in Tenn. Code Ann. § 36-5-101(d )(1)

. Herrera v. Herre

ra , 944 S.W.2d 379, 387-88 (Tenn. Ct. App. 1996). These factors include: (A) The relative earning capacity, obliga tions, needs, and financial resources of each part y, 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 eachparty to s ecure su ch education and training, and the

necessity o

f a party to secure further education an d tr aining to improve such party’s earning capac ity to a reasonable leve

l; (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 physical condition of e a ch party, including, but not limited to, physical disability or incapacity due to a chronic de bilitating disease; (F) The exte nt to which it would be undesirable for a party to seek employ ment outside the home because s uch party will be custodian of a minor child of the marriage; (G) The separate a

ssets of each party, both real and personal, tangible and intangible; (H) The provisions mad

e wit h regard to the martial property as defined in § 36-4- 121;-5-

(I) The standard of living of the parties established during the marr iage; (J) The extent to which ea ch party ha s made such tang

ible and intangib

le contributions to the marriage as moneta

ry and homemaker contrib utions, and tangi

ble and intangible contributions by a party to the education, training or increased earning pow er of the oth er pa rty; (K) The relative fa

ult of the parties in

cases where the

court, in its discre

tion, deems it appropriate to do so; and (L) Such other factors, including the tax consequences to each party, as are necessary to consider the eq

uities between the

parties.
The statute also provid

es that it is the inten

t of the genera

l as sembly that an economically

disadvantaged spouse be rehab i litated whenever possible with the payment of temporary

support and maintenance. When this is not feasible after considering all relevant facto

rs, then the court may

award support an

d maintenance on

a long term basis , or alimony in futuro . Tenn. Code Ann. § 36-5-101(d)(1). The preference for rehabilitative alimony over ali mon y in futuro was set forth by our Supreme Court in Self v. Self , 861 S.W.2d 360, 361 (Tenn. 1993): [Tenn. Code Ann. § 36-5-101(d)(1)] reflects an obvious legislative policy that, if possible, the dependency of one ex-spouse on the other be eliminated and bot

h parties be relie

ved of the impedime

nts incident to the dissolved marriage, and that an ex-spouse

be adjudged permanently dependent

upon the other only when the court granting the divorce finds th

at economic rehabilit ation is no t feasible a nd longter m su ppo rt i s ne cess ary. It i s clear from the opinion in Self tha t a t ria l co urt sho uld gran t al imo ny in futuroonly whe n rehabilitation is not feasible and such long term support is necessary. See also Storey v. Storey , 835 S.W.2d 593, 597 (Tenn. Ct. A pp. 1992). The trial c ourt must, therefo

re, make a thres

hold determination that, considering all relevant factors, re habil itation of the economically disadvantaged spouse is not feasible. Kincaid v. Kincaid , 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995).
After review of the record, we find no error in the Trial Court’s awar di ng of rehabilitative alimony in the amount of $600.00 per month for a pe riod of 48 months. We a

gree with the Trial C ourt’s conclusion that Wife is in need o

f rehabilitative

alimony and t

hat this is not a n appropriate

case for ali mon y in futuro . The Trial Court also correctly noted that Wife may needto adjust her lifestyle. While Wife is to be commended on successfully completing a drug rehabilitation program and remaining drug-free, Husband shoul d not have to be responsible forever for the difference

in lifestyle that will result from the lower wages Wife will earn at Wal-Mart. The rehabilitative alimony awarde d to Wife wi ll allow he r to pay off the m ortgage on the house. She also will be able to pay off the remaining debt on her automobile. The combined total of the amount-6-

owedon the house and au tomobile awarded

to Wife was just u

nder $9,00 0.00 at the time of tr ial. The monthly payments for these two items are $2 62.13 and 126.00, respectively. The alimony awarded totals $28,800.00 over a

four year period. This is

more than suffic

ient to eliminate the

se two debts entirely

and to allow Wife to

make payments on other monthly expenses as well during the 48 month period. Thi s alimony awa

rd also provides W

ife f our years i

n which to rehabil

itate further her life, includin

g her work life . How Wife uses th ese four years

is her choice and her responsibility.
Nat ural ly, two persons living separately incur more expenses than two persons living together. “Thus, in most divorc e cases it is unlike

ly that both pa

rties will be able t

o maintain their pre-divorcelifestyle once the proceedings are conclude d.” Kinard , 986 S.W.2d at 234. When the amount of rehabilitative alimony awa rded is considere

d along with all the

factors contain

ed in Tenn. Code Ann. § 36-5-101(d)(1), such as the division of the marital pro

perty and th

e relative fault

of the parties, it is clear that the Trial Court properly weighed all relevant factors in reaching its conclusion. The decision of the Trial Court is affirmed.
Conclusion
The judgment of

the Trial Court is a

ffirmed, and this

matter is remanded for further proceedings as may be required, if any , consistent with this Opinion, and for the collection of costs below. Costs of this appeal are taxed one-half to James Thomas Fraysier and one-half to Kar en Kay Singleton Fraysier and their sureties.

_______________ ___________

___________

_ D. MICHAEL SWINEY, JUDGE