IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned On Brief November 26, 2002

SHIRLEY S. DANIEL v. JAMES E. DANIEL

 Appeal from the Chancery Court for Obion County

No. 22,513 William Michael Maloan, Chancellor

No. W2002-01103-COA-R3-CV - Filed July 22, 2003

This is an alimony case. At the time of the divorce, the parties had been married for almost thirtyone years. The husband was fifty-one years old, and the wife was forty-five years old. The husband

owned his own backhoe/trackhoe company. The wife was a homemaker and raised the parties’ three

children. She has a sixth-grade education and earned her GED in 1997. Since the parties’

separation, the wife had held five jobs but had not been able to maintain her employment. The

parties agreed on the division of personal and real property, but disagreed over the value of the

husband’s business property. The trial court found that the husband made it difficult to ascertain the

parties’ financial situation. The trial court also found that the wife was economically disadvantaged

and could not be rehabilitated. The wife was awarded alimony in futuro and attorney’s fees. On

appeal, the husband argues that the trial court erred in awarding the wife alimony in futuro and

attorney’s fees. We affirm, finding that the trial court did not err in concluding that the wife cannot

be rehabilitated and in awarding alimony in futuro and attorney’s fees.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and

Remanded

HOLLY M. KIRBY,J., delivered the opinion of the court, in which W. FRANK CRAWFORD, P.J., W.S.,

and ALAN E. HIGHERS, J., joined.

James H. Bradberry, Dresden, Tennessee, for appellant, James E. Daniel.

Steve Conley, Union City, Tennessee, for appellee, Shirley S. Daniel.

OPINION

Defendant/Appellant James E. Daniel (“Husband”) and Plaintiff/Appellee Shirley S. Daniel

(“Wife”) were married on March 20, 1971 and divorced on March 12, 2002. The parties have three

adult children. At the time of the divorce, Husband was fifty-one years old and Wife was forty-five

years old. 
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Husband owns his own backhoe/trackhoe company. From 1995 to 2000, Husband earned

between $50,000 and $65,000 in gross income each year. The parties separated in October 2000.

In 2001, after the parties separated, Husband reported earnings of only $38,082. During the

marriage, Wife was primarily a homemaker, raising the parties’ children. Generally, she earned less

than $10,000 per year, except in 1986 and 1987, when she earned $12,740 and $10,907 respectively.

Wife has a sixth-grade education and earned her GED in 1997. 

Wife filed for divorce on October 12, 2000, asserting that the parties had irreconcilable

differences and that Husband had engaged in inappropriate marital conduct. She sought alimony

in solido, alimony in futuro, and attorney’s fees. Husband denied that he was guilty of inappropriate

marital conduct, and denied that Wife should receive alimony or attorney’s fees. The trial court

awarded Wife temporary support in the amount of $100 per week, and ordered Husband to pay

Wife’s car note of $348.79 per month. On June 20, 2001, Husband moved to terminate spousal

support based on a downturn in his business and Wife’s ability to support herself. His motion was

denied, and the trial court ordered Wife to use reasonable efforts to become employed. Wife was

awarded a judgment for Husband’s support arrearage of $1,250.

Husband and Wife agreed on the division of their personal and real property. Husband

received a farm owned by the parties with equity of approximately $16,000, two certificates of

deposit valued at approximately $13,160, a checking account with approximately $1,000, his work

equipment, a truck with approximately $2,250 in equity, a four-wheeler, and other personal property,

including his tools. Wife received the marital residence, which had no indebtedness and was valued

at $37,500, as well as a Blazer truck with approximately $4,000 in equity, and other personal

property. 

The trial was held on March 12, 2001. Wife testified regarding her employment and living

expenses. Wife acknowledged that, since the parties’ separation in October 2000, she had held five

jobs with pay ranging from minimum wage up to $6.65 per hour, but had been unable to maintain

any of the five jobs. Wife explained that going back to work had been difficult for her emotionally,

and that she had been unable to handle the workload. Wife testified that she was depressed, had high

blood pressure, and that she had had tendinitis while recuperating from shoulder surgery. She said,

however, that she felt she was able to work forty hours a week at a minimum-wage job, which would

earn her a gross income of $953 per month. She testified that her monthly expenses totaled

$1,549.05. 

Husband also testified regarding his earnings and expenses. He asserted that while his

earnings in past years had ranged between $50,000 and $65,000, his income for 2001 was only

$32,082. He claimed that, considering certain tax deductions for that year, his actual income was

zero dollars. He acknowledged that this did not include income from certain customers who paid

him cash. He noted that one customer had paid him $1,400, and testified that there may have been

“two or three $200 jobs” in addition to the $1,400 job. Husband also acknowledged that he had

received gambling winnings of $100 or $150 on each of three or four occasions. 
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The parties disputed the amount owed on Husband’s business equipment, as well as the value

of that equipment. Husband borrowed money from a line of credit that had a $15,316.30 payoff

amount. Husband also owed $96,598.22 for various business equipment, including a trackhoe, a

tractor truck and low-boy, two additional tractors, and a dirt pan. Evidence submitted by Wife

indicated that the trackhoe had an auction value of $41,500 and a retail value of $49,750. Evidence

submitted by Husband showed a value of $35,000 for the trackhoe and $19,250 for the remaining

equipment. The record reflects that Husband owed $20,142.94 for his 1999 truck, $16,117.59 for

the farm, $6,324.34 for a four-wheeler purchased after the parties separated, and $3,901.01 for a

truck Husband purchased for his brother. Husband asserted that his brother was paying the

$3,901.01 debt on the truck.

Husband’s pre-trial affidavit asserted that Husband’s monthly expenses were $11,158.35.

$8,741.56 out of the $11,158.35 was allocated to Husband’s outstanding loans, including the work

equipment, the truck, Wife’s Blazer, the farm, the four-wheeler, and the brother’s truck. This did

not include the line of credit. On cross-examination, Husband acknowledged that, excluding the line

of credit, his monthly payments for the outstanding loans totaled $3,150.99.

Wife also sought her attorney’s fees at trial. Her attorney stated that he worked forty hours

on Wife’s case, and at $125 per hour, Wife had accumulated $5,000 in attorney’s fees. 

At the close of proof, the trial court commented that the case was difficult to evaluate because

of the “incomplete and inaccurate information which has been provided to the Court about the

parties’ financial condition.” The trial court concluded that Wife could not be rehabilitated and

awarded her alimony in futuro, stating:

The Court finds that [Wife] is economically disadvantaged in respect to her husband,

and certainly does not have the ability to earn income anywhere like her husband has

done in the past and hopefully will be able to in the future. Due to her lack of

education and transferrable job skills, she is not subject to rehabilitation within the

meaning of the statute, so this is an appropriate case for alimony in futuro which is

modifiable in the future depending on the change of circumstances. I am also taking

into consideration the fact that [Wife] is physically able work at least at a minimum

[forty] hours a week at minimum wage . . . .

The trial judge awarded Wife $500 per month alimony in futuro, but noted that Husband would no

longer be responsible for paying temporary support or Wife’s car note of $348.79 per month. 

The trial court granted Wife’s request for attorney’s fees, stating:

As I stated earlier, this is a most difficult case to evaluate because of the incomplete

and inaccurate financial condition mostly on [Husband’s] part and I am concerned

about the large amount of attorney’s fees that have been expended on the case but
1

Although the record indicates a possible discrepancy between the trial court’s oral ruling and its written order,

the parties agreed on appeal that Husband would pay the full $5,416.25 as ordered by the trial judge, unless this Court

reversed the attorney’s fees decision in its entirety.

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most of that has been spent trying to get an accurate picture of the financial condition

that [the lawyers] had to spend to try to get ready for this trial.

Based on this finding, the trial court ordered that Husband pay court costs plus attorney’s fees in the

amount of $5,415.25.1 From this order, Husband appeals.

On appeal, Husband argues that the trial court erred in awarding Wife alimony in futuro and

attorney’s fees. Because this case was heard by the trial court sitting without a jury, we review the

case de novo upon the record with a presumption of correctness of the findings of fact by the trial

court, unless the evidence preponderates against the decision of the trial court. See Tenn. R. App.

P. 13(d); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). Questions of law,

however, are reviewed de novo with no presumption of correctness. Burlew v. Burlew, 40 S.W.3d

465, 470 (Tenn. 2001) (citation omitted). An alimony award is generally not overturned on appeal

unless the award evidences an abuse of discretion. Lindsey v. Lindsey, 976 S.W.2d 175, 180 (Tenn.

Ct. App. 1997). An award of attorney’s fees is also reviewed under an abuse of discretion standard.

Langschmidt v. Langschmidt, 81 S.W.3d 741, 751 (Tenn. 2002) (citing Aaron v. Aaron, 909

S.W.2d 408, 411 (Tenn. 1995); Fox v. Fox, 657 S.W.2d 747, 749 (Tenn. 1983)). A trial court

abuses its discretion when it reaches a decision against logic that causes a harm to the complaining

party or when the trial court applies an incorrect legal standard. Eldridge v. Eldridge, 42 S.W.3d

82, 85 (Tenn. 2001) (citing State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). 

Husband first argues that the trial court erred in finding that Wife cannot be rehabilitated and

in awarding Wife $500 alimony per month in futuro. Husband asserts Wife is able to work a fortyhour work week, and therefore, can earn at least her 1986 income of $12,740. He claims that the

economic climate has rendered him unable to pay any alimony award, and argues that he is burdened

with the debts of his business equipment, line of credit, truck, farm, and four wheeler. He points out

that Wife was awarded the unencumbered marital home valued at $37,500, and therefore can provide

for herself.

Wife notes on appeal that her monthly living expenses total $1,549.05 and that even if she

is able to earn a gross monthly income of $953, she still has a considerable deficit. Wife argues that

Husband admittedly did not accurately report his income or his living expenses, and that when

accurate figures are considered, Husband has the ability to pay his alimony obligation. 

The Tennessee Legislature has clearly expressed a preference for awarding rehabilitative

alimony over other types of alimony. See Tenn. Code Ann. § 36-5-101(d)(1) (2001). Nevertheless,

while rehabilitative alimony is preferred, when rehabilitation is not feasible, the trial court may

award alimony in futuro. Id.
2

The factors enumerated in section 36-5-101(d)(1)(A)-(L) are:

(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 § 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. 

Tenn. Code Ann. § 36-5-101(d)(1)(A)-(L) (2001).

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The trial court must consider all the relevant factors set forth in section 36-5-101(d)(1)(A)-

(L) when determining what type of alimony to award and the nature and extent of that award.2

Robertson v. Robertson, 76 S.W.3d 337, 340 (Tenn. 2002). The two most important factors are the

need of the obligee spouse and the ability of the obligor spouse to pay. Id. at 342 (citation omitted).

The obligor spouse’s ability to provide support is given the same consideration as the need of the

obligee spouse. Bogan v. Bogan, 60 S.W.3d 721, 730 (Tenn. 2001). A determination of whether

rehabilitation is feasible should not rest solely on the ability of the economically disadvantaged

spouse to be placed on an equal footing with the obligor spouse, nor should it be based on the ability

of the economically disadvantaged spouse to obtain the lifestyle the parties maintained prior to the

divorce. Robertson, 76 S.W.3d at 340 (citing Crabtree v. Crabtree, 16 S.W.3d 356, 358 (Tenn.

2000)). In some circumstances, the obligee spouse may become partially self sufficient. “If the

dependent spouse achieves partial self sufficiency but demonstrates inability to achieve total self
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sufficiency, the Court may grant sufficient alimony in futuro to supplement the earning capacity of

the dependent spouse.” Loria v. Loria, 952 S.W.2d 836, 838 (Tenn. Ct. App. 1997).

In the case at bar, the trial judge determined that Wife was economically disadvantaged in

relation to Husband and that her lack of education and transferable job skills left her unable to be

rehabilitated. Although Wife is able to work full time earning just over minimum wage, her earning

capacity is such that, even though her living expenses are modest, she requires additional income to

become completely self sufficient. Wife is able to earn a gross income of $953 per month. Her

expenses, paid from net income, amount to $1,549.05. Thus, Wife’s deficit is over $596 per month

minus any applicable taxes she must pay on her $953 gross income. Clearly, the evidence supports

the trial court’s finding that Wife cannot be rehabilitated. 

The evidence also supports the trial court’s award of alimony in futuro. The evidence

indicated that Wife’s earning capacity is approximately $12,740. In contrast, prior to the parties’

separation, Husband reported annual earnings ranging between $50,000 and $65,000. While

Husband asserted that his earnings plummeted after the parties separated, he admitted that he failed

to include income from sources such as cash payments from customers and gambling winnings in

the calculation of his post-separation earnings. See Tenn. Code Ann. § 36-5-101(d)(1)(A). In the

division of marital property, Husband received the farm worth $16,000, plus certificates of deposit

and cash totaling over $14,000. See id. During most of the parties’ thirty-year marriage, Wife was

a homemaker, raising the parties’ three children. See Tenn. Code Ann. § 36-5-101(d)(1)(C), (J).

As noted above, Wife’s need is apparent considering the difference between her potential income

and her expenses. Considering all of these circumstances, we find no abuse of discretion in the trial

court’s award of alimony in futuro in the amount of $500 per month. 

Husband also argues that the trial court erred in awarding Wife $5,416.25 in attorney’s fees.

As stated above, the granting of attorney’s fees is largely at the discretion of the trial court, and the

reviewing court will not disturb that determination unless it evidences an abuse of discretion of the

trial judge. Langschmidt v. Langschmidt, 81 S.W.3d 741, 751 (Tenn. 2002) (citing Aaron v.

Aaron, 909 S.W.2d 408, 411 (Tenn. 1995); Fox v. Fox, 657 S.W.2d 747, 749 (Tenn. 1983)). We

find no abuse of discretion in the award of attorney’s fees in this case. 

Finally, Wife seeks her attorney’s fees as they relate to this appeal. This request is granted,

and the cause is remanded to the trial court for a determination of the amount of reasonable

attorney’s fees for this appeal. 

The decision of the trial court is affirmed and the cause is remanded for further proceedings

consistent with this Opinion. Costs are taxed to appellant, James E. Daniel, and his surety, for which

execution may issue, if necessary.

___________________________________ 

HOLLY M. KIRBY, J.