### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVI LLE Se pte m be r 15, 200 5 S es sio n

DONIT A DALE DOWDE N v. RONALD J . FEIB US

Appeal f romthe Circ uit Court for Ham ilton Coun ty No. 02-D- 1607 Jacqueline E. S chulten, Jud ge

No. E2004-02751-COA- R3-CV - F ILED JANUARY 18, 2006

After fourtee n y ear s of m arriag e, Donita Dale D owden ( “Wife”) sued Ronald J . Fe ibus (“Husba nd”) for a d i v o rc e. After trial, the Tria l Court entere d its Final Dec ree , inte r a lia , awa rding Wife a divorce , dividing the pa

rties’ marital property , and orde ring Husband to pay Wife alimony in futuro of $1,000 per month. Husband appeals cla iming that the Trial Court erre d in awar ding Wife a limony in futuro instead of r ehabilitat i v e alimony , in awar ding Wife 50% of Husband’ s fede ral pe nsion when a portion of that pension wa s earned prior to the m ar ri age , and in di viding a n awa rd that Husband re ceive d from a pe rsonal injury lawsuit. We affirm.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Ci r c uit

Co ur t A ffirm e d; Case Re m anded

D. M I CH A EL S WI NEY , J ., delivere d the opinion of the court, in which H ER SCH EL P. F RAN KS , P.J ., and S HAR ON G. LEE , J ., joined.

Ron a ld J. B e rk e , Ch a tta no og a , T e nn e sse e fo r the Ap pe lla nt, Ron a ld J. F e ibu s.

Br uce C. B ailey , Chattanoog a, Te nnessee for the A ppellee, D onita Dale D owden.-2- OP IN ION

Bac kgr ound

Husband a nd Wife were marrie d on October 29, 1987. I n Aug ust of

2002, Wife sued Husband for

divorce claiming , among other things, that she was entitled to a divorce on the g rounds of e ith e r i na

pp ro pr ia te mari ta l c on du c t or ir re c on c ila ble dif ferences

. Th e ca se wa s trie d in la te Marc h and ea

rly April of 2004.
At the time of trial, Husba nd was 56 y ear s old a nd Wife was 43 y ear s old. Husband is a n attorney who cur

rently holds a position as an United States Administrative L aw Judge . Wife is a leg al sec reta

ry . After they wer e mar

ried, the pa

rties lived i n Ge o rgia fr om 1987 until 1991. When they

left Ge org ia, the parties moved to Miami, Florida so Husba nd could adva nce his c are er and g o into pa

rtnership with a nother attorney

. The parties lived in Mia mi f or appr ox imately

a y ear and a ha lf and then move d to O rlando, Florida wher e they lived from 1992 until 2001. I n 2001, the parties moved to Chattanooga , Tenne ssee so Husband could become an adminis trative law judge

.

Wife testified that she wa s working for a temp service and Husba nd was a n attorney when they

met. Wife holds a Bache lor of Scienc e deg ree in business from the Univer sityof Mississ ippi and worke d as a secr etary and as a n office manag er during the marria g e. Wife testified that in Georg ia, she wor

ked as a secr etary and eve ntually

beca me an of

fice manag er and wa s earning $4 0, 00 0. Wif

e te sti fi e d s he wo rk e d a s a se c re tary a ndma de $3 5, 00 0 w he n th e y li ved in Mia mi. Wife testified that prior to moving to Chattanoog a, she worked as the secr etary to the president of
a re a l e state fi rm a nd te sti fi e d: “ I wa s makin g in the low fi ft ie s a s my ba se sa la ry a ndwi th o ve rt ime one y ear , the y ear

befor e we left I

think I made f ifty -seve n or fifty -eig ht.” After the parties moved to C ha tta no og a , Wif

e fo un d a job a t the Hu ma ne Soc ie ty a ndwo rk e d th e re fr om A pr il o f 2 00 2 u nti l Aug ust of 2002, when she left Husband. Wife te stified that she m ade $10 an hour working 20 to 32 hours a we ek at the H umane Society . After she filed for divorce , Wife obtained a job at America n Bic y cle Gr oup as the sec reta ry to the president and made $45,000 a y ear . Howeve r, Wife claimed that she quit her job at Americ an Bicy cle Group prior to trial due to a hostile work environme nt. At the time of trial, Wife wa s working as a le g al sec reta ry for a law firm. She testified that she ea rns $3 3, 00 0 p e r y e ar at he r c ur re nt j ob wi th a n o pp ortun ity fo r o ve rt ime . Wif

e introd uce d a n I nc ome a ndExpe ns e Sta te me nt tha t sh ow e d th a t he r m on thl y ne t inc ome tot a ls $2 ,2 30 .6 1 a ndhe r m on thl y expenses total $3,915.54, resulting in a shortfall of $1,684.93 pe r month.
Wife also testified that during the m ar riag e, she w ould give Husband a set amount of money eac h month toward the household expenses. Wife admitted that during Husband’s c are er as an attorney , the amount of income the parties reported to the I RS was approxi mately the same f or Hu sb a nda s it

wa s f or Wif e . Wif e te sti fi e d th a t w he n th e pa rt ie s moved fro m Orla nd o to Chattanoog a and she obtained a job a t the Humane Socie ty ,-3-

[Husband] wanted me to ge t a job that made more money so I could start contr ibuting
mon e y to the ho us e ho ld, bu t ou r a g re e me nt w he n w e c a me he re wa s th a t - - at f ir st it wa s I did n’ t hav e to wo rk a t all. Th e n it wa s I wo uldwo rk

pa rt -t ime a ndpo ssi bly g o t o s c h o o l b e c a u s e I h a d w a n t e d t o g o t o l a w s c h o o l f o r ye ar s a n d h e h a d a l w a ys said no, that we didn’t ha ve the time or didn’t have the money , that I neede d to work.

And s ince our

circ umstances we re c hang ing this wa s g oing to be an opportunity

wher e I could proba

bly do that. But whe n we came [ to Chattanoog a] he
s a idn o , th a t I

c o u ld n ’ t [ g o to la w s c h o o l]

. She further

stated: “I had discussed g oing to law school from time to time with [ Husband] and he said that when w e bec ame more financ ially stable I could go t o law school a nd work pa rt-time.” Whe n Wif

e wa s q ue sti on e d ab ou t ste ps sh e ha s ta ke n to wa rda c hie vin g he r s ta te d g oa l of g oin g to la w s c ho ol, Wif

e te sti fi e d:

I have been a nervous wr eck sinc e I left my husband and I ’ve just bee n try ing to g et a job and g et my

life settled. The re’ s no way that I could handle g oing to law school rig ht now. May

be af ter I g et this divorce I ’ll finally be able to go.

Wif e te sti fi e d th a t sh e a ndHu sb a ndwe re se pa rate d in 19 97 fo r a

c ou ple of mon ths

. Wif e a dmi tte d th a t du ri ng thi s se pa ratio n, she met ano the r m a n a ndha d a re la tio ns hip wi th h im. Wife testified that she lef

t Husband ag ain on Aug ust 5, 2002, and admitt ed that almost a y ear later, sh e be g a n a re lat ionsh ip w ith a no the r m a n. Wif e a dmi tte d th a t sh e ha d s e xua l r e la tio ns wi th this
man. Reg arding her r easons f or lea ving H usband, Wife testified:
[Husband] demande d that I vacuum the house every day , that I clea n the base boards
on ce a week, that I

clea n the air ve nts once a wee k, that I

clea n the blinds once a
we e k, that I

c ha ng e the lin e ns on ou r b e d tw ic e a we e k, that I c oo k e ve ry

da y , th a t I
scr ub the ba thr oo ms o nc e a we e k a ndif

I did n’ t do it t o h is s ta nd ard s h e wo uld ridicule me, te ll me that I was a worthless pi ec e o f - - h e would tell me that I was stupid, that Iwas no g ood.

An d he wo uld do wh a t I c a ll the wh ite g lov e te st a ndhe wo uldwa lk
a lon g the fu rn itu re a ndru b h is f ing e r a c ro ss i t a nd if he fo un d d us t he wo uldc ome afte r me a nd back me ag ainst a wall scre aming and y elling at me like a drill serg eant wi th h is a rm s u p s o I

c ou ldn ’t e sc ape a nd te lli ng me ho w s tup id a ndwo rthle ss I wa s.
Wife testified that beha vior such as she described would happen “almost all the time ... almost on a daily basis.”-4- Wife further

testified that in 1998, Wife’s 13 y ear o l d cousi n Hea ther c ame to live with the parties. Heather lived with the parties until she wa s 17 y ear s old and during that time, Wi fe and Husba nd acte d as He ather ’s p ar en t s . At trial, Wife alleg ed that Husba nd’s beha vior toward Hea ther was inappropria te. Wife testified that Husband allowed Hea ther to see him when he was nake d, bu t th a t Wif

e wa s una wa

re that this wa s hap pe nin g un til dis c ov e ry wa s c on du c te d d ur ing thi s la ws uit . Wif

e te sti fi e d th a t sh e a lso le arn e d th a t H us ba ndhad sh own Heat her a ph oto of him se lf
nake d. Wif

e a lso te sti fi e d th a t w he n H e a the r w a s 1 6, Hu sb a nd too k he r to a g y ne c olo g ist

to o bta in birth control pills, but that Wife was unawa re of this until later. Wife c laims that in J uly of 2002, sh e a sk e d H us ba ndwh y

he wa s g oin g int o 17 y e ar old He a the r’ s be dr oo m in the mid dle of the nig ht,
a nd he tol d he r he wa s g oin g in to c omf ort He a the r. Wif

e te sti fi e d th a t sh e he lpe d mo ve He a the r t o Mississ ippi to li ve with other f amily members shortly befor e W ife left Husband. Wife testified that she has not maintained c ontact with Heather since Hea ther moved to Mississippi.

Wife also claims t h at s h e discovere d pictures of naked c hildren on Husband’ s comp u t er b efor e the pa

rties moved to Chattanoog a. Wife testified that she did nothing afte r dis c ov e ri ng the se pic tur e s.

Hea ther L y nn Chandler, who was 18 y ear s old at the time of trial, testified. He ather testified that she a ttends colleg e and lives in a n apartment during the school y ear

. Hea ther testified that during the summer, she stay s with Husband. Heather testified that she ha s a debit ca rd that has
ov e rd ra ft pr ote c tio n fr om Hu sb a nd ’s a c c ou nt an d tha t Hus ba nd so me tim e s all ow s her to d ri ve his
car and kee p it for a nig ht or two.

He a the r test if

ie d th a t w hil e sh e liv e d w ith the pa rt ie s, Hu sb a ndso me tim e s w ou ld come into her

bedroom in the middle of the nig ht. Heathe r denie d that Husband ha d conver sations with her a

bout sex when he ca me to her r oom at night, but admitted that she ha d told W ife that Husband would c ome to her r oom at night and talk to he r about sex. Heather admitted that Husband has had c onversa tions with her about masturbation. He ather testified that Husband never touched h e r i n ap p r o p r i a t e l y.

Hea ther testified tha t Husband did not like her to wea r t hong underw ear

“bec ause I had a skirt fo r s chool and he thought that it would - - y ou know, obviously if the wind blew or something ....” Hea ther testified that Husband asked her a couple of times if she wa s wea ring thong underw ear

.
He a the r t e sti fi e d tha t whil e sh e liv e d w ith the pa rt ie s, sh e wo uldso me tim e s g o in to the ba thr oo m w hil e Hu sb a ndwa s ta kin g a sh ow e r t o ta lk t o h im. He a the r tes ti fi ed tha t th e g la ss sh ow e r w ou ld b e “ ste a my ” so sh e c ou ld n ot s e e him . H e a the r a dmi tte d th a t she so me tim e s wa s in the ba thr oo m a ft e r Hu sb a nd turne d of f the wa te r in the sh ow e r bu t st a te d “ the re ’s a lw a y s tw o to we ls drape d rig ht here (indicating ), t hat’s where he hang s them, and so eve n if he’s standing rig ht there this is bl ocked a nd I

can’ t see a ny thing ther e. So when he would pull of f the towel I

wouldn’t eve r see a ny thing. This is all fog g ed up.” H eathe r testified t h at eve n though she was in the ba throom while he showe red, she never saw Husba nd naked.-5- He a the r t e sti fi e d th a t w he n s he wa s 1 7 y e ars oldand st ill liv ing wi th the pa rt ie s, Hu sb a ndsh ow e d h e r a

ph oto of him se lf nake d. However , Heat he r s tate d th a t H us ba nd“ ha d h is thumb over the pa

rt wher e he w as nake d and I saw his fa ce a nd his toes and leg s and arms.” Heather testified that just prior to Husband showing her the photo, she had been on the bathroom floor “doing my toenails” a nd Husband ha d “re cently g otten out of the shower .”

He a the r t e sti fi e d th a t in Janu ary of 20 03 , Hus ba nd sta rt e d visi tin g he r i n M iss iss ipp i. Hea ther a lso testified that she went on a trip to New Yor

k with Husband duri n g h er brea k from school in the fall of 2003. D uring that trip, Hea ther a nd Husband stay ed tog ether in a sing le hotel room with two separ ate be ds. Hea ther testified tha t Husband purc hased a promise ring for he r beca use she pr omised to be abstinent.

Husband test ified re g arding allowing Hea ther to be in the bathroom while he showere d. He state d:

You ca n see a

body is in there, but I

don’t think that’s rea lly

the point .... The point is, an older per son who is y our par ent per son, it’s just not a shame ful thing. It’s not se x ual. I t’s not obsc ene. I t’s not pornog raphic . I t takes a sick mind to turn that into it, and I ’m just not going to play that g ame. I

don’t know if she c o u l d see throug h the g lass or not and I don’t ca re.
And I didn’t g o to her. I never left m y bathroom. Idon’t walk a round the house naked. I

sleep without clothes. I

g o to my bathroom. I dress. I leave . I
ne ve r - - u nle ss the ho us e is o n f ir e or a n e me rg e nc y

in the mid dle of

the nig ht, be c a us e I sle e p n a ke d, I

woul d no t be seen n a ke d o uts ide of my bathr oo m. A ndif Hea ther fe lt c omfortable, for whateve r rea son, coming in talking, sticking her he ad in, whateve r, I ’m fine with it. And s he did it when [W ife] was in the shower . She didit w he n I

wa s in the sh ow e r. I

do n’ t se e it a s b e ing a ny

big thi ng . I

do n’ t g e t it

. When asked a

bout showing H eathe r a na ked photog raph of

himself, Husband testified:

Hea ther wa s on the floor doing something a nd she starte d picking on me. I think I might have stepped on sca le to look at my weig ht. And s he said, y ou’re buff. And I said, buff like g ood? No. B uff like ba ld, u gl y and fat. And, y ou know, she wa s pic kin g on me . A nd , I

sa id, I us e d to be be tte r l oo kin g

. An d s he sa id, I do ub t it . So I jus t g ot the ide a in my he a d to g o g e t thi s pic tur e , wh ic h I re a lly lik e of me a t a tim e when I was rea lly happy , and when (sic) and g ot the picture, w hich I knew she had
se e n b e c aus e sh e ’dbe e n thr ou g h all my stu ff be fo re

. An d I c ov e re d the low e r h a lf of the pic tur e a ndI

sa id, that’ s th e fa c e of

a han ds ome, y ou ng ma n. Yo u p ro ba bly don’t see it, but that’s wha t I used to look like.

Husband further stated: “ I don’t flaunt nudity

in front of the c hild. I t’s not important to me.”-6- As for the alleg ations reg arding h i s v i sits to Heather’ s room at nig ht, Husband te sti fi e d:

I w o u ldh e ar

h e r c r y in g

. Sh e w o u ld ju s t c r y in c o n s o la b ly

. H e r r o o m w a s r ig h t n e xt to where I sat and watched TV

. And I ’d g o in and I would say , is there a ny thing I can do? Can y o u te ll me ab o u t i t? Sh e ’ s to o y o u n g a n d s h e ju s t c o u ld n ’ t e xp la in how bad she f elt. So I would just lay d o wn o n t h e b ed nex t to her and hold he r hands sometimes and just talk and then she would f all aslee p. Sometimes Ifell aslee p.
Husband a lso testified:

I g ot s ome inf

or ma tio n o n ma stu rbati on be c a us e , y ou kn ow - - I me a n, I c e rt a inl y rela te to y o u ng men and masturbation and I didn’t know for sur e if that wa s something tha t would be totally appropriate for wo m en. Iasked my wife a nd she wasn’t ter ribly informative. So I

g ot some inform at i o n and Ibroac hed the subjec t be c a us e I fe lt l ike He a the r w a s a

lit tle re pr e sse d s e xua lly . I do n’ t th ink

sh e wa s so much re presse d as she just didn’t want to talk about it.

When asked a

bout taking H eathe r to see a g y necolog ist, Husband testified “since I did n’ t ha ve a

wo ma n to ta lk t o h e r a

bo ut it, I c a lle d the do c tor that sh e ha d b e e n s e e ing . T he sa me one, I think, that [ Wife] s aw a t one time.”

Hu sb a ndte sti fi e d th a t th e fi rs t ti me he he ardWif e me nti on that sh e wa nte d to g o to la w s c ho ol w a s in Ma

rc h o f 2 00 2. He te sti fi e d:

She an n o u n ce d i t o ne day actua lly , just talked to me in talking. She wa s having trouble getting a job and she had turne d down a job at B rac h beca use the pe ople wer e no t up to h e r sta nd ard s. B ra c h Ca nd y . A ndI wa s v e ry fr us tr a te d a ndsh e sa id, we ll, y ou kn ow , I

thi nk I wa nt t o g o to la w s c ho ol, a ndI sa id, we ll , whe n d id tha t c ome up? And s he said, well, I ’ve alway s thought about it, but I just didn’t know if it was the rig ht time or whateve r. I don’t know. And I said, well, this isn’t - - what’ s y our pla n? S he sai d, well, I

wa nte d to g o to the Un ive rs ity of Mis sis sip pi. I

sa id, we ll, would y ou live with y our mother? She said, no. I want to live in my

own home. I
sa id, we ll, ho w d o I

fi t in to a ll o f tha t? Are y ou g oin g to g o a wa y fo r thr e e y e ars ? I said, do y ou have a ny idea what it costs? She said, no. I said, well, i t would be at least $15,000 a y ear

to do tha t for thre e y ear s. I said, would y ou live there ? She said, y es. I said, well, I

don’t understa nd how that fits into our relationship. And she sa id, well, I want to look into it, and I said, fine.
And sometime shortly

there afte r, she c ame on a

ri d e w it h me to Rome, Geor g ia w h e r e w e o f

f ic iate h e ar in g s , o n e o f o u r r e mo te s it e s , a n d s h e w e n t to the library and I ’m g iven t o understand - - she told me that she tr ied to take a L -SAT ... or something off the c omputer and she didn’t like the test very much. And I

never-7-

hear d anything more about i t after that. That’s a ll I

know....She just said she didn’t like the t est. I don’t reme mber the exact words, but my impression was that it was not a test that she enjoy ed taking

. Husband testified tha t he cur rently makes a n an n u a l g r o s s s alary of $114,934 per

y ear

. Husband a lso testified that prior to the marriag e, he w orked f or t h e fe d er al gover nment for approximately fourtee n months. Husband testified that during the marria g e, when he was wor king
as an attorney , he wa s making “[ f] o rt y , 5 0,000 a y ear , plus I was a ble to pay

life, hea lth, and disabilityout of the partnership. So about 60 to 70,000 a y ear .”

Husband testified tha t when the pa rties fi rs t m ar ri ed, they

lived in a house that he
ow ne d. Hu sb a nd te sti fi e d tha t eve ry ho us e the y pu rc ha se d s inc e he so ld tha t ho us e ha s b e e n jo int ly owned. How ever , Husband testified tha t he “would point out that in every instance, I

informed he r very clea rly that the first $50,000 of e quity was my money

. That was never not said.” Wife disputes t h a tH u s b a n d e v e r

t o l d h e r w h e n t h e y p u r c h a s e d h o u s e s t h a th e g o tt o k e e p $ 5 0 , 0 0 0 o f t h e e q u i t y. During the marr iag e, Husba nd was involved in a n automobile acc ident that resulted in a lawsuit. I n 1998, Husband rece ived an awa rd of $135,000 for pain and suffe ring as a r esult of thi s su it. Hu sb a ndte sti fi e d th a t he us e d th is m on e y to r e du c e the mortg a g e on the pa rt ie s’ ho us e in Or la nd o, wh e re the y

we reliv ing a t th e tim e . H us ba ndstate d: “ I ha d a lw a y s k e pt o ur

a sse ts s e pa

rate
a ndI tol d [Wif e ] I wa s re du c ing [the mortg a g e ] to re lie ve the bu rd e n on our fi na nc e s. So i t w a s to be min e if

a ndwh e n w e so ld the ho us e .” Wif e dis pu te s th a t H us ba nde ve r t oldhe r this

. On May 19, 2004, the Trial Court e ntere d its F inal Dec ree incorporating by ref ere nce the Trial Court’s memor andum opinio n

. T he F inal Dec ree , int e r a lia , a wa rd e d Wif e a n a bs olu te divorce from Husba nd; ordere d Husband to pay Wife alimony

in futuro of $1,000 per month; and divided the parties’ assets a nd liabiliti es. I n it s memorandum opinion, the Trial Court found a nd held, int e r a lia :

Du ri ng the c ou rs e of

the marria g e , th e pa

rt ie s li ve d in se ve ra l di ff

e re nt c iti e s, including Mia mi, Orlando, Alpher etta, GA, a nd Chattan o o ga. Eac h of the moves was to further the H usband’s c are er a s an attorne y

.
* * *
Wife’s hig hest ea

rning s were $35-40, 0 0 0

. W ife ha d rec ently left a job making $45,000 a y ear at Americ an B icy cle due to what she termed sexual hara ssment on the job. Wi fe was employ ed brie fly at a lesse r paying job be fore being
e m p l o ye d a tt h e t i m e o f

t h e t r i a l a s a

l e g a l s e c r e t ar y e ar n i n g $ 3 5 , 0 0 0 a n n u a l l y. Wife compla in s o f

H u s b an d ’s ridiculing , scre aming and ber ating of her . Wife complains of his requir ement that s h e vacuum the house e very day , that she cle an baseboa rds, blinds and baths at lea st once a wee k, and in g ener al “made her life-8-

miserable” . Wife admits to at least one af fair during th e m ar ri age

. The pa rties separ ated f

or the fina l time in August of 2002.
Approxim ately

six y ear s ag o, the Wife’s second cousin came to live w ith the parties a s a foster

child. The pa

rties ra ised that chil d as their own. A n enormous amount of testimony

was pr o ff

er ed on whether

the now adult foster

daug hter is or was be ing moleste d by

Husband. Whether tha t ha ppened or not, is not a decision that needs to be rea ched by this Court. Appar ently , it was the intent of [W ife] to prove this as one of the basses of his ina ppropriate marital conduc t. Howeve r, the re cord was rep l et e with ot her pr oof docume nting that [Wi fe] is entitled to a divorce. [Husband] did not counter-sue for divorc e.

* * *

Husband a sserts that the $50,000 equity he re ceive d from his pre- marital home (whic h sold after

the marria g e) is his sepa

rate property , as is the $135,000 he put into one of th e mar ital homes, from a pe rsonal injury lawsuit. The Court dis a g re e s. Th e Cou rt

sp e c if ic a lly fi nd s th a t th e mon ie s w hic h th e Hu sb a ndpu t in to the pa rt ie s’ ho me s o ve r the y e ars , we re c o- min g le d a nd the mon e y tr a ns mut e d in to marital asse ts. All of the home[s] purcha sed by the parties during the marriag e we re in j oin t na me s.

* * *

Gi ve n a ll the abo ve fa c tor s, the Cou rt div ide s th e pr op e rt y

of the pa rt ie s a s f oll ow s:
AS S ETS : HUS BAND W I FE

* * *

1⁄2 of the house e quity $130,500.00 $130,500.00

* * *

1⁄2 of Admi nistrative L aw J udg e Value unknown Value unknow n Gover nment Pension through the date of this Final Dec ree

* * *

TOTAL $210,974.50 $203,398.50

* * *W e n ot e, howev er , t hat W i fe t es t i f i ed t o hav i ng m ade $ 57 , 00 0 or $58 , 00 0 i n t he y ear bef ore t he part i es mo ved 1
f rom Flori d a t o T enness ee. T hi s d o es not negat e t he T rial C o urt ’ s f i nd i ng as t o W i fe’ s need ba sed up o n her cur rent
e a rn ing c a p a c ity.
-9- AL I MONY

Wif e ha s re qu e ste d pe ri od ic a lim on y

. Hu sb a ndte sti fi e d h e ha s r e sid ua l pa in in h is n e c k r

un nin g do wnhis ri g ht a

rm du e to a n o ld a

uto mob ile a c c ide nt, he ha s a lso had his thyroid remove d and has de veloped double vision. An Optometrist testified
on his be half, Dr. J oe Dzik, who opined that [Husband] may have a ny wher e fr om one to thr e e y e ars to w or

k b e fo re he wo uldbe un able to r e a d th e a mou nt o f d oc ume nts that he nee ds to read f

or his job as an Admi n i s t ra t i ve L aw Judge . The Court finds that th e Wif

e is in ne e d of pe ri od ic a lim on y du e to the fo llo wi ng fa c tor s p ur su a nt t o T.C.A. § 36-5-101: 1) the duration of the ma rriag e; 2) the standar d of living of the parties e stablished d u ri ng the marriag e; 3) the va rious earning c apac ities of the parties; 4) the rela tive education and training of the pa rties; 5) the re lative fault of the pa rt ie s.

Hu sb a nd e arn s app ro xima te ly $1 14 ,0 00 .0 0 a

y e ar, Wif e e arn s a pp ro xima te ly $35,000 a y ear

. The hig hest wag es she e ver e arne d in her life w ere $45,000 a y ear

. 1 Wife is in need of pe riodic alimony . The Court will awa rd her t h e am o unt of $1,000.00 per month as pe riodic alimony , revie wable by this Court if the need arises du e to Wi fe ’s ne e ds a nd

Hu sb a nd ’s abil ity

to p a y a ndhis he a lth iss ue s.

Hu sb a ndapp e a ls t o th is C ou rt

.

Discussion

Alth o u gh n o ts t at ed ex ac t l y as s u ch , Hu s b an d ra i s es t h re e i s s u es on appe al: 1) whe ther the Trial Court er

red in a war ding a limonyin futuro instead of r ehabilitative alimony ; 2) whethe r the Trial Court er

red in a war ding Wife one -half of Husband’s f eder al pension whe n part of this pension
was e arne d prior to the mar riag e; and, 3) whether

the Trial Co u rt er re d in awar ding a division of Husband’s 1998 pe rsonal injury awa rd.

Ou r re vie w i s de novo up on the re c or d, a c c omp a nie d b y a pr e su mpt ion of

c or re c tne ss of the finding s of fa ct of the trial court, unless the preponde ranc e of the evidenc e is otherwise. Te nn. R. A pp . P. 13 (d ); Bogan v. Bogan , 60 S.W .3d 721, 727 (Tenn. 2001). A trial court's c onclusions of law ar e subjec t to a de novo revie w with no presumption of cor rec tness. S. Constructors, Inc. v. Loudon Count

y Bd. of Educ. , 58 S.W .3d 706, 710 (Tenn. 2001)

.W e d isc u ss a n d a p p ly t h e ve rs io n o f T e n n . C o d e A n n . § 3 6 -5 -1 0 1 in e ff e c t at the ti m e o f t h is d ivo rc e

. 2

-10- We first addre ss whether the Trial Court err ed in awa rding alimony

in futuro instead of re habilitative alimony

. Be cause the amount of alimony to be awa rded, if a ny , is within t he sound dis c re tio n o f the tr ia l cou rt in lig ht of the pa rt ic ula r ci rc ums ta nc e s o f the c a se , a pp e lla te c ou rt s w ill not a lter such awa

rds absent an abuse of discretion. Lindsey v. Lindsey , 976 S.W .2d 175, 180 (Tenn. Ct. App. 1997). Our Supreme Court discussed the a buse of discr etion standard in Eldridge v. Eldridge , s t at i n g:

Un de r the abu se of

dis c re tio n s ta nd ard , a

tr ia l c ou rt ’s ru lin g “ wi ll b e up he ld so long a s rea sonable minds can disag ree as to [the] pr opriety of the de cision made.” A trial court abuses it s discretion only when it “a

pplie[s] an incor

rec t leg al standar d,
or re ache [s] a dec ision which is ag ainst logic or re asoning that cause [s] an injustice to the party co m p l ai n i ng .” The abuse of discretion standa

rd does not permit the
app e lla te c ou rt

to s ub sti tut e its jud g me nt f or that of the tr ia l c ou rt

. Eldridge v. Eldridge , 42 S.W .3d 82, 85 (Tenn. 2001) (citations omitted).

Ap pe lla te c ou rt s o rd ina

ri ly pe rm it d isc re tio na

ry de c isi on s to sta nd wh e n r e a so na ble judicial minds can differ

conce rning their soundness. Ove rstreet v. Shoney’ s, Inc. , 4 S.W .3d 694, 70 9 ( Te nn . Ct . A pp . 1 99 9) . A tr ia l c ou rt ’s dis c re tio na ry de c isi on mus t ta

ke int o a c c ou nt a

pp lic able law and be consistent with the fac ts be fore the court. Id . When review ing a discretionary

decision by the trial court, the “appe llate courts should beg in w ith the pr esumption that the decision is corr ect and should revie w the evide nce in the lig ht most favorable to the decision.” Id

.

As pe rt ine nt t o H us ba nd ’s fi rs t is su e , T e nn . Co de An n. § 3 6- 5- 10 1 pr ov ide s: 2
[W ]here one ( 1) spous e suffers economic detriment for the benef it of the marr iag e, the g ener al assembly finds that the economica lly disadvantag ed spouse’ s standard of living af ter the divorc e s h o u l d be re asonably compar able to the standa rd of living enjoy ed during the marr iag e or to the post-divorc e st andar d of l iving e x pecte d to be
av a il ab le to th e o th e r s p o u s e , c o n s id e r in g th e r e le v a n t s ta tu to r y f a c to r s a nd the
e qu iti e s b e tw e e n th e pa

rt ie s. (C ) It is the int e nt of the g e ne ra l a sse mbl y that a sp ou se wh o is e c on omi c a lly disadvantag ed re lative to the other spouse , be rehabilitated whenever possible by the g ranting of an or der f or payment of re habilitative, temporar y s u p p o rt and maintenanc e. To be reha bilitat ed m ea n s to achieve , with rea sonable e ffort, an
earning c apac ity that will permit the economica lly disadvantag ed spouse’ s standard of living a fter the divorce to be re asonably comp ar ab le to the standar d of living enjoy ed during the marriag e, or to the pos t-divorce standard of living expected to be available to the other spouse, c onsidering t h e relevant statutory fac tors and the equit ie s b e tw e e n th e p ar ti e s

. Wh e r e th e r e is r e lati v e e c o n o mi c d is a d v a n ta g e and-11-

re ha bil ita tio n is no t f

e a sib le in c on sid e ratio n of al l re le va nt fa c tor s, inc lud ing tho se set out in this subsection (d), the court may g rant a n order

for pa y ment of support and maintenanc e on a long -term b as i s o r until the death or re marria g e of the rec ipient except as o t h erwise provided in subdivision (a)(3) . An awa rd of pe riodic alimony may be made ei t h er i n addition to a reha bilitation award, whe re a spouse may

be parti a ll y r e h ab il it a te d a s d e f in e d in th is s u b d iv is io n ( d ) ( 1 ) ( C) , o r in s te a d o f a reha bilitation aw a

r d , w h e r e r e h a

b ilitation is not feasible. When a ppropriate , the court may also awa rd transitional alimony

as provided in subdivision (d)(1) (D).

* * *
(D) T ransitional alimony

means a sum of money pay able by one (1) pa rty to, or on beha l f o f, the other pa rty for a deter minate per iod of time....Transitional alimony is awar ded whe n the court finds that reha bilitation i s not nece ssary , but the
e c on omi c a lly

dis a dv a nta g e d s po us e ne e ds a ssi sta nc e to adju st to th e e c on omi c conseque nces of

a divorc e, leg al sepa

ration or other

p ro ce eding wher e spousal support may

be aw arde d, such as a

petition for an or der of

protec tion.
Tenn. Code Ann. § 36- 5-101(d) (1) ( Supp. 2004).

Th e fa c tor s to be c on sid e re d in d e c idi ng wh e the r t o a wa rda lim on y

are c on ta ine d in Tenn. Code Ann. § 36- 5-101(d) (1)( E) and inc lude:

(i) The re l ati ve ea

rning capa city , obliga tions, needs, and f inancial
resour ces of eac h party including inc ome from pe nsion, profit sharing
or re tir e me nt p la ns a nda ll o the r s ou rc e s; (ii) The r elative e ducation and training of eac h party , the ability and opportunity

of ea ch party

to secure such education and tra ining, a nd the ne c e ssi ty

of a pa rt y to s e c ur e fu rthe r e du c a tio n a ndtr a ini ng to imp ro ve su c h p art y ' s e arn ing c apa c ity to a re a so na ble le ve l;
(iii) The duration of the marr iag e; ( i v ) T h e a g e a n d m e n t a l c o n d i t i o n o f e a c h p ar t y; (v) The phy sical conditi on of ea ch party , including, but not limited to, phy sical disability

or inca pacity due to a c hronic de bilitating disease;
(vi) The extent to which it would be undesira ble for a party to seek employ ment ou t s ide the home be cause such party will be custodian of a minor c hild of the marr iag e;-12- (v ii) Th e se pa

rate a sse ts o f e a c h p art y , b oth re a l a ndpe rsona l, tang ible and intang ible;
(viii) T h e p r o v is io n s ma d e w ith r e g ar d to th e ma r it a l p r o p e r ty

as define d in § 36-4-121;
(ix ) The sta ndard of

l i v i n g o f t he parties established during the marria g e; (x) The extent to which eac h party has made such tang ible and intang ible contributions to the marria g e as monetary and homemake r c on tr ibu tio ns , a ndta ng ibl e a ndint a ng ibl e c on tr ibu tio ns by a pa rt y to t h e e d u c a t i o n , t r a i n i n g o r

i n c r e a s e d e ar n i n g p o w e r

o f t h e o t h e r p ar t y; (xi) Th e r e l a t i v e f

a u l t o f t h e p ar t i e s i n c a s e s w h e r e t h e c o u r t , in i ts discretion, dee ms it appropriate to do so; and
(xi i) Such other f

actor s, including the tax conseq u en ce s to eac h pa rt y , a s a re ne c e ssa

ry to c on sid e r the e qu iti e s b e tw e e n th e pa rt ie s. Tenn. Code Ann. § 36- 5-101(d) (1)( E) (Supp. 2004).

As this Court dis cussed in Dube v . Dube :
Whil e all relevant factors must be considered when s etting the amount of an
a li mo n y a w ar d , n e e d a n d th e ab il it y to p a y ar e th e c r it ic a l f a ctors. R obertson , 76 S.W .3d at 342. Discussing the i ntent behind alim ony , our Supreme Court ha s held: "the purpose of

spousal support is to aid the disadvantag ed sp o u s e t o b ecome and
re ma in se lf

-s uf fi c ie nt an d, wh e n ec on omi c re ha bil ita tio n is not fe a sib le , to mit ig a te th e hars h econo mi c real it ies of d iv orce ." Burlew v. Burlew , 40 S.W .3d 465, 470-71 (T en n

. 2 0 0 1 ) ( q u o t i n g Anderton , 988 S.W .2d at 682).

Although " the leg islature has demonstrated a pref ere nce f or an a war d of r ehab il it ati ve al im on y [ ,] " Crabtree v. Crabtree , 16 S.W .3d 356, 358 (Tenn. 2000) , the re levant alimony

statute, Tenn. Code A nn. § 36-5-101( d)(1) , does conte mplate,
u n d e r t h e ap p r o p r i a t e c i r c u m s t a n c e s , a l o n g

- t e r m a w ar d o f

a l i m o n y, o r

a l i m o n y in fut uro , providing : “[w] here there is such rela tive economic disa dvantag e and reha bilitation i s not feasible in consideration of all releva nt fac tors, . . . then the court may grant a n or de r fo r pa y me nt of su pp ort a nd ma int e na nc e on a lon g -t e rm ba sis

.

. . . ” T e n n

. C o d e A n n

. § 3 6

- 5

- 1 0 1 ( d ) ( 1 )

. " [ T ] h e p u rp o s e o f [ a l i m o n y in f

utu ro ] is to p r o v i de fi nan cia l s up po rtto a sp ou se w ho cann ot be re hab il it ate d. " B u r le w , 40 S.W .3d at 471.-13-

Dube v . Dube , 104 S.W .3d 863, 869 (Tenn. Ct. App. 2002).

Husband a

rg ues, in p ar t , that Wife is capable of re habilitation, and, there fore , the Tr ia l Co urt sh ou ld h a ve a wa rd e d r e ha bil ita tiv e a lim on y , n ot a lim on y in f utu ro

. Hu sb a ndba se s h is
arg ume nt, in l arg e pa

rt , o n th e fa c t th a t Wif

e te sti fi e d th a t sh e wan ted to att e ndla w s c ho ol. Th is evidenc e, howe ver, is insuffic ient to prove that Wife is ca pable of reha bilitation. The fact that a n individual, such as Wife, states that she would like to be a lawy er, or a doctor, or a teac her, or

a PGA tour play er, or

any such prof

ess i o n i s , i n an d of itself, no proof that that individual has the
c apa bil iti e s to do so . Wh ile th e des ir e to b e su c h a pr of e ssi on a l is a

ne c e ssa ry re qu ir e me nt t o achie ving tha t goa l, it is by no means the sole require ment. Her e, no proof was introduced tha t Wi fe
wa s c apa ble of g e tti ng int o la w s c ho ol o r o f c omp le tin g the c ur ri c ulu m.
We believe that r easona

ble m inds could di sag ree as to the propr iety of the de cision made by the Trial C o u rt t o aw ard alimonyin futuro, the very essenc e of a

discretionary

decision. Th e e vid e nc e in the re c or d b e fo re us sh ow s tha t Wife su ff e re d ec on omi c de tr ime nt fo r the be ne fi t of the mar

riag e as she left numerous jobs so that Wife and Husband could move to some place new to enable H usband to adva nce his c are er. The evidenc e shows, as f ound by the Trial Court, tha t Wi fe has nee d and Husband has the ability to pay

. We ha ve thoroug hly revie wed the r ecor d and ca nnot
s a y t h a tt h e e v i d e n c e p r e p o n d e r a t e s a g a i n s tt h e T r i a l C o u r t ’ s f i n d i n g s r e l a t i v e t o t h e i s s u e o f a l i m o n y. I n addition, the Trial Court consider ed the r eleva nt statutory fac tors. Given thi s , we will not substitut e our judgme nt f

or that of the Trial Court, a nd we find no abuse of discretion in the aw ard of alimony

in futuro. We, there fore , aff irm the alimony

awa rd.

We next consider w hether the Trial Court erre d in awar ding Wife one -half of Hu sb a nd ’s fe de ra l pe ns ion wh e n p art of thi s p e ns ion wa s e arn e d p ri or to the marria g e . Courts m us t l o o k t o T e n n

. C o d e A n n

. § 3 6

- 4

- 1 2 1 w h e n d e t e r m i n i n g h o w t o d i s t r i b u t e p r o p e r t y i n a d i v o r c e

. In pe rt ine nt p art , T e nn . Co de An n. § 3 6- 4- 12 1 p ro vid e s: (a) (1) I n all actions for divorce or leg al separ ation, the court h av i n g jurisdiction the re of ma y , u po n r e qu e st o f e ith e r p arty , and pr ior to a ny de te rm inatio n a s to whether it is appropriate to order the support and maintenanc e of one (1) pa rty by the other, e quitably

divide, distribute or assign the marital property betwee n the parties wi tho ut r e g ardto m a

ri ta l f a ult in p ro po rt ion s a s th e c ou rt de e ms j us t.

* * *
(b) F or purpose s of this chapter : (1 )( A) “ Ma

ri ta l pr op e rt y ” me a ns a ll re a l and pe rs on a l pro pe rt y , b oth ta ng ibl e an d i n t an gi b l e, ac q u i re d b y ei t h er o r b o t h s p o u s es d u ri n g t h e c o u rs e o f t h e m ar ri age up to the date of

the final divorc e hea

ring

. . .
* * *-14- (2 ) “ Se pa rate pr op e rt y ” me a ns : (A) A ll r e a l a n d p e r s o n a l p r o p e r ty o w n e d b y

a s p o u s e b e fore marria g e,...

* * *
Tenn. Code Ann. § 36- 4-121 (Supp. 2004).

I n an ac tion for divorce , a Tria l Court may “equitably

divide, distribute or assig n” only the marital property , not se parate property

. That portion of Husband’s fede ral pe nsion earne d prior to the mar

riag e constitutes his separ ate pr operty

. Husband c ontends that the Tria l Court divided his entire fede ral pe nsion incl u ding that portion earned pre -maritally . As we r ead the Trial C o u rt ’s M em orandum Opinion, the Tr ial Cou rt a wa rd e d e a c h p art y

“ 1⁄2 o f A dmi nis tr a tiv e L a w Jud g e Go ve rn me nt P e ns ion thr ou g h the da te of t h i s Final De cre e.” H usband bec ame a n administrative law judg e af ter the pa rties married, but befor e Wife filed for divorce

. As such, the Trial Court distributed onlythat portion of Husband’ s fede ral pe nsion earne d from the da te Husband be came an administrative law judge to the date that the Trial Court g rante d the d ivorce . Thus, the Trial Court did not awa rd Wife any

portion of Hu sb a nd ’s fe de ra l pe ns ion e arn e d p ri or to the marria g e . I f the re shou ld be a ny a mbi g uit y

a s to exactly what the Trial Court held on this, we specifica lly find and hold that the Trial Court aw arde d Wife only

one-ha lf of that portion of Husba nd’s fe dera l p en s i o n earned fr om the date Husba nd beca me an a dminist rative la w judge to the date of the divorce decr ee. We f ind no err or in the Tria l Court’s awa

rd to Wife o f o n e-half of that portion of H usband’s fe dera l pension earned during the marria g e. Finally , we c onsider whe ther the Trial Court erre d in distrib u ting a s part of the marital property Husband’s 1998 pe rsonal injury awa rd. I n pertinent pa

rt, T en n

. Code Ann. § 36-4- 121 provides that sepa

rate property

includes “[p]ain and suffering a war ds ....” Tenn. Code Ann. § 36-4- 12 1( b) (2 )( E) (S up p. 20 04 ). Ho we ve r, ou r S up re me Cou rt dis c us se d th e c on c e pts of mari ta l pr op e rt y and sepa rate property

in Langschmidt

v. L a n g s chmidt

and noted that in addition to the statutory pr ov isi on s c on ta ined i n Ten n. Cod e An n. § 3 6- 4- 12 1( b) , T e nn e sse e int e rm e diate app e lla te c ou rt s h a v e r e c o g n i z e d t w o m e t h o d s b y w h i c h s e p ar a t e p r o p e r t y m a y b e c o n v e r t e d i n t o m ar i t a l p r o p e r t y. Langschmidt v. Langschmidt , 81 S.W .3d 741, 747 (Tenn. 2002) . These two me thods are commingling and transmutation, which the Supreme Court noted have been de scribed by this Court
a s f oll ow s: [S]ep arate prope rt y be c ome s ma

ri ta l pr op e rt y

[by c omm ing lin g ] if ine xtri c ably

min g le d w ith mari ta l pr op e rt y or wi th the se pa

rate property of the other spouse. I f the separ ate pr operty continues to be seg reg ated or

can be trac ed into its product, commingl i n g does not-15- oc c ur

.. .. [Tr a ns mut a tio n] occ ur s whe n s e pa rate pr op e rt y

is t re a te d in such a w ay

as to g ive evidence of an int ention that it become marital property .... The rationale unde rl y i n g these doc trines is that dealing with property

in these wa y s cre ates a re buttable pre sumption of a g ift to the marital estate . This presumpt i o n is based also upon the provision in many

marital prope rty

statutes t h at property

acquir ed during the m arriag e is presumed to be mar ital. The pre sumption can be re bu tte d b y

e vid e nc e of

c ir c ums ta nc e s o r c omm un ic a tio ns c le arl y indicating an intent that the prope rty rema in separate. Langschmidt , 81 S.W .3d at 747 (c itations omi tted).

Th e e vid e nc e sh ow s th a t du ri ng themar ri a g e Hu sb a ndwa s in vo lve d in a n auto mob ile
a c c ide nt tha t r e su lte d in a

la ws uit a nd that in 19 98 , Hu sb a ndre c e ive d a n a wa rdof $1 35 ,0 00 fo r p a in
a ndsu ff e ri ng a s a re su lt of thi s suit

. Th e e vid e nc e fu rthe r sho ws that H us ba ndus e d th is m on e y to
re du c e the mortg a g e on the pa rt ie s’ ho us e in Or la nd o, wh e re the y we re liv ing a t the tim e . T he ho us e in Orlando wa s owned jointly by Husband a nd Wife. Thus, a presumption was raised that Husband either commingle d the pain and suff ering awa rd with the marital f

unds invested in the marital home, or transmutted the pa in and suffe ring awa rd into marital prope rty

by us i n g i t to pay

down the mortg ag e on the marital property

.

Al tho ug h H us ba ndte sti fi e d that he tol d Wif e that th e pa in a ndsu ff

e ri ng a wa rdwo uld
rema in his separa te prope rty , Wife strenuously denied this a ssertion. “When a trial court ha s seen and hea rd witnesses, e specia lly

wher e issues of cre dibilit y and weig ht of oral testimony are involved, considera ble def ere nce must be a ccor ded to the trial c ourt' s fac tual finding s.” Seals v. England/Corsai r Upholstery Mfg. Co. , 9 8 4 S

. W

. 2 d 9 1 2 , 9 1 5 (T en n

. 1 9 9 9 ) ( q u o t i n g Colli ns v. Howmet Corp. , 970 S.W .2d 941, 943 (Tenn.1998) ). The Trial Court spe cifica lly found “t h at the monies which the Husba nd put into the parties’ homes ove r the y ear s, were co-ming led and the
mon e y tr a ns mut e d int o mari ta l a sse ts. ” Cle arl y , the Tr ia l Co urt f ou ndWif e mor e c re dib le on thi s issue.

Husband did not rebut the presumption that, many y ear s ag o, the pain and suff ering
a wa rde ith e r w a s in e xtri c ab l y

c omm ing le d o r h a d b e c ome tr a ns mut e d f ro m hi s se pa

rate pr op e rt y

int o m ar i t al p ro p er t y

. W e d o n o tfi n d t h e e v i d en ce t o p r e p o n d er at e a gai n s tt h e T ri al C o u rt ’s fi n d i n gs rele vant to this iss ue. As such, we hold that the Trial Court did not err in dividing what onc e wa s the pain and suf

fering a war d as marital pr operty when it divided the equity in t h e parties’ marital home.-16- Conclusion

The judg ment of t he Trial Court is aff irmed, and this cause is rema nded to t he Tria l Cou rt fo r c oll e c tio n o f th e cos ts b e low . T he c os ts o n a pp e a l are a sse sse d a g a ins t th e Ap pe lla nt, Ronald J . Fe ibus, and his surety

.

___________________________________ D. MI CHAEL

SW I NEY, JUDGE