### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Assigned O n Brief N ovembe r 26, 2002 SHIRLEY S. DA NIEL v. JAMES E. D ANIEL 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 div orce, th

e partie s had bee

n marrie d for almo st

th ir tyone years. The

husband was fifty- one yea rs old, and the wife was forty -five ye ars old. The husband ownedhis own ba

ckhoe/tr ackhoe company . The wif

e was a homemake

r and ra ised the p arties’ three ch ildren. She has a sixth-grade education and earned her GED in 1997. Since the parties ’ separation, the wife

had held f

ive jobs bu

t had not been ab le to maintain her employment. The parties agreed on the division of personal and re al property, b ut dis agreed 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 andco ul d n ot be re ha bi li ta te d. Th e w ife w as aw ar de d a li mo ny in f uturo and attorney’s f

ees. On a ppeal, th e h us ba nd ar gu es th at th e t ri al co ur t e rr ed in aw ar di ng th e w ife a li mo ny in fu turo an d attorney’sfees. We affirm, finding that the trial court did not err in c oncluding that the wife cannot be re ha bi li ta te d a nd in aw ar di ng al im on y in futuro and attor ney ’s fees

. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cha

ncery Court Affirm

ed and Remanded H OLLY M. K IRBY , J., delivered the opinion of the cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined. James H. B radber

ry , Dresde

n, Tenne ssee, fo

r appell ant, James E . Daniel. Steve Conl ey , Union City , Tennes see, for appelle e, Shirle

y S. D aniel. 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 childre n. At the time of the divorce, Husband was fifty -one yea rs old and Wife was forty- five years old.-2-

Hu sband owns his own backhoe/trackhoe company . From 1995 to 2000, Husband earn e d be tween $50,000 and $65,000 in gross income each y ear. The parties separated in October 2000. In 2001, after the parties separated, Husband r eported ear

nings of only $38,082. During the marriage, Wife was primarily a home maker, raising the parties’ children. Ge ne ra ll y, she ear ned less than $10,000 per yea

r, except in 1986 and 1987, when she earned $1 2, 74 0 a nd $1 0, 90 7 r es pe ct iv el y. Wife has a sixth-grade education and earned her GED in 1997. Wife filed for divorce on October 12, 2000, asserting that the parties ha d irr econcil able differences and that Husband had engaged in inappropriate marital conduct. She sought alimony in solido , a li mo ny in futuro , and attor ney ’s fees . Husband

denied th at he wa s guilty

of inappr opriate marital conduct, and denied that Wife should rece iv e alimony or attorne y’s fee s. The trial court awarded Wif e tempora ry 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 t o terminate spousal support based on a downturn in his business and Wife’s ability to support herself. His motion was denied, and the tr

ial cour t ordered Wife to use

reasona ble eff orts to become employed. Wife was awarded a judgment for Husband’ s support arrearage of $1,250. Husbandand Wife agreed on the division of their personal and r eal pro pert y. Husband received a farm o wned by

the part i e s with equity of approximately $16,000, two certificates of deposit valued a t approxima

tely $13,160, a

checking acc ount with

approximately $1,000, his work equipmen t, a tr uc k w it h a pp ro xi ma te ly $ 2, 25 0 i n e qu it y, a fo ur -w he el er , a nd ot he r p er so na l p ro pe rt y, including his tools. Wife received the maritalresidence, which had no indebtedness and was va lued at $37,500, as well as a Blazer truck with approximately $4,000 in equity, an d other per sonal property. The trial was held on March 12, 2001. Wife testified regar ding her employ

ment andliving expenses. Wife acknowledged that, since the parties’ se paration in October 2000, she had held five jobs with pay ranging from minimum wage up to $6.65 per hour, but h ad been

unable to maintain any of the five jobs. Wife explained that going back to work

ha d b ee n d if

fi cu lt fo r h er em ot io na ll y, andthat she had been unable to handle the workload. Wife testified that she wa s depressed, had hi gh blood pressure, and that shehadhad tendinitis while recuperating from shoulder surg ery. She said, however, that she felt she w as able t o work fo rty hours a w eek at a

minimum-wa

ge job, which wou

ld earnher a gross income of $953 per month. She testified that he r m on th ly expenses totaled $1,549.05. Husbandalso testified regardi ng h is earnings and e xpenses. H e asser

ted that w

hile his earnin gs in past y

ears ha d rang ed between $50,00 0 and $65, 000, his inc ome for 2 001 was on ly $32,082. He claimed

that, considering certain tax deductions for that y ear, his actual income was zero dollars. He acknowl edged that this di d not inclu de income from ce rtain cu stomers w

ho paid him cash. He noted tha t one cust omer had paid him $1,400, andtestified that there may have been “two o r three $200 jobs” in addition to the $1,400 job. Husband also acknowledged that he h a d received gambling winning s of $100 or $150 on each of three or four oc casions.-3-

The parties disputed the amount owed on Husband’s business equipment, as well as the value of that equipment . Husb and borrowed money from a line of credit that had a $15,316.30 pay off amount. Husband also owed $96,598.22 for various business equipment, including a trac khoe, a tractor truck and low-boy , two ad ditional tractors, and a dirt pan. Evidence submitted by Wife indicatedthat 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 equipmen t. 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 separ ated, and $ 3,901. 01 for a t ruck Husband purchased for his brother. Husband asser ted that his brother wa s paying th e $3,901.01 debt on the truck. Husband’s pre-tri al affid avit asse rted tha t Husband ’s monthly

expense s we re $11,158.35. $8,741.56 outof the $11,158.35 was allocated to Husband’s outstanding loans, including the work equipmen t, the truck, Wife’s Blazer, the farm, the four-wheeler, and the br other’struck. Th

is did notinclude the line of credit. On cross-examination, Husband acknowledged that, excluding the line of credit, his monthly pay ments 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 acc umulated $5,000 in attorney’s f ees. At the close of proof, the trialcourt commented that the case was difficul t to evalu ate bec ause of the “incomplete and inaccurate information which ha s been provided to the Court about the parties’ financial condition.” The trial court concluded that Wife cou ld not be rehabilitated and aw ar de d h er al im on y in futuro , stat ing: The Court finds that [Wife] is economically disadvantaged in re spect to her husband, andcertainly doe s not have the ability to ear n income anywhe

re like her husband has d one in the pas t and hopefully will be able to in the f uture. Due to her lack of education and transferrable job skills, she is not subject to rehabilitation within the meaning of the sta tute, so th is is an appropriate case for al im on y in futuro which is modifiabl e in the future depending on the chang e of circumstances. I am also taking into consideration the fact tha t [Wife] is phy sically

able wor k at leas tat a minimum [forty] hours a week at minimum wag e . . . . The tr ia l j ud ge aw ar de d W ife $ 50 0 p er mo nt h a li mo ny in futuro , but noted that Husband would no longer be responsible for pay ing temporary

support or Wife’s car note of $348.79 per month. The tr ial co urt gra nted W ife’s reques t for a ttorn ey’s fees, stati ng: As I stated earlier, this is a mos t difficult case to evaluat e becau se of the

incomple te and inaccurate financial condition mostly on [Husband’s] part and I am con cerne d about the large amount of attorney’ s fees th at have been expended on the case but1 Although the record indicates a possibl e discr epancy between the tri al court’s oral ruli ng and its wri tten order,

the parti es agreed on appeal that H usba nd wo uld pay the ful l $5,416.25 as ordered by the tri al judge, unless this Court rever sed the attorne y’s fees de cision in its entirety. -4- most of that has beenspent trying to g et an accurate picture of the f inancial condition that [the la

wy ers] had to

spend to tr

y to get re ady for this tr ial. Based on this finding, the trial court ordere d that Husb and pay court co sts plus att

orney ’s feesin the amount of $5,415.25. 1 From thisorder, H usband a ppeals. On appeal, Husband argues that the trial c ourt erred in awarding

Wi fe al im on y in futuroand attorney’sfees. Because this case wa s heard by the trial cou rt sitting without a jury, we re

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

the trial court, unless the evidence preponderatesagainst 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) (c itation omitted). An alimony award isgenerally

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. Lang

schmid t , 81 S .W.3 d 741, 751 (T enn. 2 002) ( citi ng Aaron v. Aaron , 909 S.W.2d 4 08, 411 (Tenn. 1995 ); Fox v. Fox , 657 S.W.2d 747, 749 (Tenn. 1983)). A trial co ur t abuses its discre

tion when it reaches a decision aga

inst logic that causes a harm to the complaining party or when t

he trial c ourt appl

ies an inc orrect

l e gal standard. Eldridge v. Eldridge , 42 S.W.3d 82, 85 (Tenn . 2001 ) (cit ing State v. Shirley , 6 S.W.3d 243, 247 (Tenn. 1999)). Husbandfirst argues that the trial court erredin finding that Wife cannot berehabilitated and in awarding Wife$500 alimony per month in futuro . H us ba nd as se rt s W ife i s a bl e t o w or k a fo rt yhour work week, and therefore, c an earn at least her 1986 income of $12, 740. He c laim s that the economic climate has rendered him unable to pay any alimony

award, and argues that he is burdened withthe debtsof his business equipment, line of credit, truck, farm, and four whee ler. He points out that Wife was awarded the unencumbered ma rital home valued at $37,500, and therefore ca n provide for herself. Wife noteson appea

l 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 arg ues that Husbandadmittedly did not accurately report his income or his living expenses, and that when accurate figures a

re considered, Husband has the ability to pay his alimony

obligation. The Tennessee Leg

islature has clearly e

xpressed a preference for a warding rehabilitative alimony over other type s of alimony. See Tenn. Code Ann. § 36- 5-101(d) (1) (200 1). Neve rtheless , whil e rehabilitative a

limony is prefe rred, when reha

bilitation is not fea sible, the

trial cou rt m a y aw ar d a li mo ny in futuro. Id.2 The factors enumerat ed in sec tion 36- 5-101(d)(1)(A)- (L) are: (A) The relative earni ng capacit y, obl igat ions, needs, a nd fin ancial resources of each party, including incom e from pens ion, pr ofit sharin g or re tireme nt plan s and all other sourc es; (B) The relat ive educat ion and t

raini ng of each party , th e abilit y and o ppo rtunity of ea ch pa rty to secure such education and traini ng, and the necessit y of a party to secure further educati on and training to imp rove such p arty’s earn ing cap acity to a r easo nab le level; (C) T he du ration o f the ma rriage; (D) Th e age and m ental co ndition of eac h par ty; (E) Th e phys ical co ndition of eac h par ty, incl uding, but not limi ted to, physi cal disab ility or incap acity due to a ch ronic deb ilitating disea se; (F) Th e exten t to which it would be un desira ble fo r a pa rty t o se ek e mplo ymen t ou ts ide th e home bec ause su ch pa rty will be cu stodia n of a m inor ch ild of the marria ge; (G) Th e sep arate a ssets of ea ch pa rty, both real an d pe rsona l, tangible and in tangib le; (H) Th e pro visions m ade with rega rd to th e ma rital pro perty a s define d in § 3 6-4-1 21; (I) T he stand ard o f living of the p arties esta blished during the ma rriage; (J) The extent to whic h eac h par ty has made such tangible and intangi ble contributions to the marriage as monetary and h ome mak er co ntributio ns, and tangib le and intangib le con tribution s by a p arty to the edu cation , training o r increa sed e arning pow er of the other p arty; (K) The relat ive f

ault of th e parti es in cases whe re t he c ourt , i n i ts dis cre ti on, deems it appr opr iate to do so; and (L) Such other

fact ors, i ncludi ng the t ax consequence s to each party , as are necessary t o consider the equ ities betw een the parties

. Tenn. Cod e Ann. § 36-5-101(d)(1 )(A)-(L) (2001). -5- The trial court must consider all the relevant factors set

forth in section 36-5-101(d)(1)(A)- (L) when determining what ty pe o f alim ony to award a nd the nature and extent of that award. 2 Robertson v. Robertson , 76 S.W.3d 337, 340 (Tenn. 2002). Thetwo most important factors are the needof th e o bl ig ee sp ou se an d t he ab il it y of th e o bl ig or sp ou se to pa y. Id. at 342 (citation omitted). Th e obligor spouse’s ability to provide support is give n 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 feasib le should not rest solely on the ability of the economically

disadvantaged spouse to be plac ed on an equal foot ing with t he oblig or spouse , nor should it be ba sed on the ability of the economically disadva ntaged spouse to obtain the lifesty le the parties maintained

prior to the divorce. Robertson , 76 S.W.3d at 34 0 (cit ing Crabtree v. Crabtree , 16 S.W.3d 356, 358 (Tenn. 2000)). In some circumstances, the oblig ee spous e may become partially

self sufficient. “If the dependent

spouse a chieves partial self suffic iency but demons trates in ability to achieve total se

lf-6-

su ff ic ie nc y, the Court may g

rant sufficient alimony in futuro to supplement the earning capacity of the dependent spouse.” Loria v. L oria , 952 S.W.2d 836, 838 (Tenn. Ct. App. 1997). In the cas e at bar , the t rial j udge determined that Wife was eco nomically disadvan taged in relation to Husband and that her lack of education and transf erabl e job skil ls left her unable to be rehabilitated. Although Wife is able to work full time earning just over minimum wage, her earning capaci ty is such that, even though her livingexpenses are mode st, she requires a dditional income to become completely self suff

ici ent. Wife is able to earn a gross income of $953 per month. He r expenses, paid fro m net

income, a

mount to $1, 549.05. Th

us, Wife’s deficit is over $596 per month minus any applica

ble taxes she must pay on her $953 g ross income. Clearly, the evidenc e support s the trial court’s finding that Wife cannot be rehabilitated. The evidence also supports the trial court’s awar d o f a li mo ny in futuro . The evidence indicatedthat Wife’ s earning capa city is approxima

tely $12,740. I

n contra st, prior t

o the par ties’ separation, Husband r

eported annual e arnin gs ranging between $50,00 0 and $65, 000. While Husbandasserted that his earnings plummeted after the pa rties separated, he admitted that he failed to include income from sources such as cash pay ments fromcustomer s and ga mbling winnings in the calcula

tion of hispost-sep aration earning s. See Tenn. Code Ann. § 36-5-101(d)(1)(A). I n the division of marita

l proper ty, Husband r

eceive d the far

m worth $16,000, plus certificates of deposit andcash totaling over

$14,000. See id. During most of the parties’ thirty -year marriage, Wife was a home maker, 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 bet ween he r potentia l income andher expen ses. Considering all of these circumstances, we find no a buse of discretionin the trial co ur t’ s a wa rd of

al im on y in futuroin the amount of $500 per month. Husbandalso argues that the trial court erred i n award ing Wife $5,416.25 in attorne

y’ s fees. As stated above, the granting of a ttorney’s fees is la

rgely 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.3 d 741, 751 (T enn. 2 002) ( citi ng Aaron v. Aaron , 909 S.W.2d 4 08, 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. Fi na ll y, Wife seeks her attorney ’s fees as they relate t o this appe al. This r

equest is granted, andthe cause is remanded to the tri al court fo r a dete rmination of the am

ount of re asonable attorney’s f

ees for this appeal. The decision

of the tri al court

is affirmed

and th e cause is rem anded for fur ther p roceed ings consistent with this Opinion. Costs are taxed to appellant, James E. Daniel, and his surety, f or which ex ec ut io n m ay i ss ue , i f n ec es sa ry.

___________________________________ HOL LY M. K IR BY, J.