1 According to information contained in the record, the child is no l onger a minor, having

turned eighteen on November 2, 1999.



### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

VENESSA LYNN TOTTY v. MICHAEL ALAN TOTTY

An Appeal from the Circuit Court for Shelby County No. 157141-5 R.D.; The Honorable Kay S. Robilio, Judge,

No. W1999-02426-COA-R3-CV - Decided May 2, 2000

This appeal involves a dispute r eg arding a final d ecree of divorc

e entered in the Sh

elby County Circuit Court. The Husband appeals the trial court’s order claiming error in several aspects of the decision, including the determination as to his alimony obligation.
Tenn.R.App.P. 3; Appeal as of right; Judgm en t of the Circuit Court Modified in Part; Vacated in Part and Affirmed in Part

H IGHERS , J., delivered the opinion of the court, in which C RAWFOR D , P.J., W.S., joined, and F ARMER , J., concurred separately.

Vickie Hardy Jon

es, Memphis, for A

ppellant, Michae

l Alan Totty

Carol Smith Katz, KATZ MA LLORY & MILLER,

Memphis, for Appe

llee, Venessa Lynn Totty

OPINION

Michael Totty appeals from a final decree of divorce entered in the Circuit Court of Shelby Cou nty. For the reasons stated herein, we modify the trial court decision in part, vacate the decision in part, and affi

rm in all other res

pects.
Facts and Procedural History
Michael Alan Totty (“Husband”) and Venessa L ynn Totty (“Wife”) were ma rried in 1979. The parties had one child during the marriage who was fifteen years old at the time this action arose. 1 Wife filed a complaint for divorce on October 9, 1997, alleging irreconcilable diffe re nces and Husband’s inappropriate marital conduct as grounds for the divorce. Husband filed an answer and counter-complaint in which he sought a divorce on the same grounds alleged by Wife.2 The bankruptcies discharged ap proximately

sixty nine thous

and dollars ($69,

000) in credit card debt.

2 The facts most

relevant to the present appeal pertain to the financial position of the respective parties. Wife is a high school graduate and attended one semester of nursing school. She holds a license to sell several types of insurance and, at the time these proceedings arose, was employed as

an insurance sales agent with Ron Meador Insurance. In this position, Wif e is basic ally selfemployed. She deducts her business expenses from her gross income and pays both employee and employer taxes. For 1998, Wife ea rned eight thous

and one hundred d

ollars ($8,100) in

her capacity

as an insurance agent. Husband, on the ot her hand, obtaine d a GED before e

ntering the Mar

ines. His formal education was supplemented by mechanical training he received in the Marines. He is currently emp loye d by a concrete cuttingcompany and earns forty five thousand dollars ($45,000) per year. During their marriage, the pa rties amassed a

sizable debt which ultimately le d them to file separate Chapte

r 7 bankruptcies. 2

The trial court

entered the final decree

of divorce on December 4, 1998. The trial court’s order provided for the f

ollowing: 1) Wife was aw arded an absolute divorce on the grounds of inappropriate

marital conduct, 2) the parties were awarded joint custody of their c hild with Husband having primary physical

custody, 3) the parties, along with their child, were ordered to a ttend family counseling to be paid for on a pro rata basis, 4) Wife was ordered to pay twenty one perce

nt (21%) of her net income as child support, 5) the parties were ordered to pay various health care expenses for the minor child o n a pro rata basis, 6) Wife was awarded nine hundred dollars ($900.00) per month as al imo ny in futuro , said sum to be inc rease d to one thousand two hundred dollars ($1,200.00) per month when the parties’ son graduated from high school or turned eighteen (18) years ol d, and 7) Husband was ordered to pay three thousand five hundre d dollars ($3,500.0 0) a s alimony in solido to pay Wife’s attorney fees

.

Law and Analysis

We begin our analysis by noting tha t this case, and the relations hip between the pa

rties, can be described as acrimonious, at best. The record indicates that the trial court

entertained numerous factual allegations and disputes. Rule 13(d) of the Tennessee Rules of Appellate Procedure governs
our review of the tri

al court’s factu

al determinatio

ns. Accor dingly, we will presume that the trial court’ s findings of fact are correct, “unless the preponderance of the evidence is otherwise. ” T.R.A.P. 13(d).

Husbandargues that the tr ial cou rt e rred in: 1) aw ardi ng al imo ny in futuro , 2) the amount awarded as alimony, 3) the basis for calculating Wife’ s child support obligation, 4) requiring the parties to pay uninsured medical expenses on a pro rata basis, 5) requiring the parties, including the child, to attend family

counselin g, 6) aw ardi ng W ife $3, 500 .00 as al imo ny in solido for payment of her attorney fees, and 7) declining to award Husband attorney f ees expended in seeking child support3 T he reco rd in this case has been supplemented with a subsequent order of the trial court

which amended

certain provisions of the final divorce decree. Pertinent to the present appeal, that order provided that: 1) Wif

e was required t

o pay $225.0

0 per month in chil

d support and 2) Wife would be responsible for one-third (1/3) of all uninsured medical expens e s with Husband being responsible

for the remaining two-thirds (2/3). This subsequ ent orde r cures the objections of Husbandinsofar as it sets a definite obligation as to child support and uninsured medical expenses. Therefore, we

do not address thos

e issues.

4 The $900 figure that also a ppears in the record is the amo unt of alimony

Wife was to receive until the parties minor child graduated from high school.

5 T.C.A. § 36-5-101(

d)(1) provides:

(d)(1) It is theintent of

the general a

ssembly that a

spouse who is econ

omically disadvantaged, relative to the other spouse, be rehabilitated whenever possible by the granting of an order for payment of r ehabilitative, temporary support and maintenance. Where there is such rel

ative economic di

sadvantage an

d rehabilitation is not feasib le in consideration of all relevant factors, including those set out in this subsection, then the court may g

rant an order fo

r payment of

support and mainte

nance on a long

-term basis

or until the death or remarriage of the recipient exc

ept as otherwise p

rovided in

subdivision (a)(3). Rehabilitative support and maintenanc e is a separate class of spousal support as distinguished from alimony in solido and periodic alimony. I n determining whether the granting of an order

for paymen

t of support and mai

ntenance to a pa

rty is appropriate, and in determining the nature, amount, length of term, and manner of pa

yment, the c

ourt shall consider al l relevant f actors, in cluding:

(A) The relative

earning capa

city, oblig

ations, needs, an

d financial resources of each party, including income fr om pension, profit sharing or retirement plans

and all other sour

ces; (B) The relative education and training of each party , the ability and

3 from Wife. We will consider each of these issues in turn. 3

I. Alimony In his first issue, Husband appeals the trial court’s awar d of ali mon y in futuroin the amount of one thousand two hundred dollars ($1,200.00) per month. 4 In cases suc h as the present,

we are generally disinclined to second-guess a trial court's spousal support decision unless it is not supportedby the evidence or is contrary to the public policies reflected in the ap plica ble statutes. See Brown v. Brown , 913 S.W.2d 163, 169 (Tenn. Ct. App.1994); Ingram v. Ingram , 721 S.W.2d 262, 264 (Tenn. Ct. App.1986).
The Tennessee Legislature has expressed a p r efer ence for reha bil ita tiv e al imo ny. Spe cif ica lly, T.C.A. § 36-5-101(d)(1) 5 refle cts a p reference for temporary, reha bilitative spousalopportunity of each party to secur e such education and training, and the necessity of a party to secur e further education and training to improve such party's e arning capac

ity to a rea

sonable level; (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 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 re al and personal, tangible and intangible; (H) The provisions made with regard to the marital property as de fined in § 36-4-121; (I) The standard of living of the parties established during the marr iage; (J) The extent to which e ach party h

as ma de such tangible and inta ngible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or inc reas ed ea rni ng po wer o f th e ot her p art y; (K) The relative

fault of the parti

es in cases wher

e 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 necessa

ry to conside

r the equities betw

een the parties.

4 support, as opposed to long-term support. See Herrera v. Herrera , 944 S.W.2d 379, 387 (Tenn. Ct. App. 1996) ; Wilson v. Moore , 929 S.W.2d 367, 375 (Tenn. Ct. App. 1996). The purpose of rehabilitative support is to e nable the disadva ntaged spouse to

acquire addition

al job skills, education, or training that will enable him or her to be more self-sufficient. See Smith v. Smith , 912 S.W.2d 155, 160 (Tenn. Ct. A pp. 1995); Cranford v. Cranford , 772 S.W.2d 48, 51 (Tenn. Ct. App. 1989). This type of

temporary support is advantageous because it allows the parties actually

to close the rel ations hip . In c ont ras t, a lim ony in futurois long-term spousal support meant to provide financial assistance to a disadvantaged spouse who is un ab le to achieve some degree of sel f-s uff ici ency. See Loria v. L oria , 952 S.W.2d 836 , 838 (Tenn. Ct . App. 1997). This type of support has the obv ious disad vantage of creating a continuing re lationship betwee

n divorced partie

s.

Husbandpoints out that, in the present case , the trial court expressly found that Wife was capable of being rehab

ilitated. He arg

ues that this

is the threshold question in determining whether alimony in futurois proper. In response, Wife does not really take issue with the question of whether

s he is capa ble of being re habilitated. Rathe

r, she argues t

hat there are tw

o considerations i

n determining whether anaward of ali mon y in futurois proper: 1) whe ther there is rel

ative economic disadvantage and, if so, 2) whether rehabilitation is feasible.6 Although agreeing that Wife was capable

of being rehabilitated, the trial court, in awarding alimony in futurostated, “a source of funds to be utilize

d by Plaintiff

to further her e

ducation is

not available.”

7 Wife argues that she will have to obtain “long term vocational training in a new field of endeavor in order to achieve an income level to support herself to a

level relative to her standard of living.” However, both parties will have to learn to adjust to a different standard of living. The parties enjoyed a s

tandard of living

which was be yond their means, as exemplified by their individual bankruptcies which were filed during the course of these proceedings. For Wife, the tangible eff ect of this will be her need to

improve her earning capacity. Rehabilitative alimony will allow her the time to do so. Moreover, rehabilitativealimony will allow Wife to become self-sufficient, thereby

5 Whil e recogn izing the legislative preference for rehabilitative alimony, the Tennessee Supreme Court has noted that a c o urt may gr ant ali mon y in futurowhere rehabilitation is not feasible. Aaron v. Aaron , 909 S.W.2d 408, 410 (T enn. 1995); Self v. Self

, 861 S.W.2d 360, 361 (Tenn. 1993); See also Tenn. Code Ann. § 36-5-101(d)(1). There is no doubt that Wife is economically

disadvantaged as compared to Husband. There also seems to be no dispute

that Wife is capable

of being rehabilitated. Therefore, the dispositive que stio n is whether it is feasible for Wife to be rehabilitated. T h e trial court adopted the position, which Wife now advances, that rehabilitation is not feasible be cause there is no

t a source of fund

s available that w

ould allow her to seek additiona l educatio n or traini ng. 6 We do not, however, be lieve thisto be the case and, therefore, fin d th e awa rd o f al imo ny in futuroto be erroneous.

While we re

cognize the weight that is due thetrial court’s alim ony determi

nation, we also recogni ze the need to uphold the legislative prefe ren ce regarding

alimony awa

rds and the public policies that this preference promotes. Lon g-t erm spousal support is only appropriate where the disadvantaged

spouse is unable to achievesomedegree of self-sufficiency. See Loria , 952 S.W.2d at 838. We do not believe that to be the situation in the present case.

Our review of

the record, as well as a balancing of the factors contained in T.C.A.§ 36-5- 101(d) leads us to

conclude that rehabilitative alimony is warranted. At 38 y ears old, Wife is not limited by her age. Additionally , neither her health nor her emotional state prevents her from sustaining gainful employment. There are no minor children, so

her ability t

o work outside the h

ome is not hindered. Wife relies upon Ford v. Ford , 952 S.W.2d 824 (Ten n. Ct . App. 1996) to support her contention that the facts of thepres ent case sup por t th e awa rd o f al imo ny in futuro . However, Wife has attended nursing school, and she holds licenses to sell, and has been selling, insurance

. This is contrary

to the facts in Ford , in which Ms. Ford had no formal training or skills and had never held a job other than as a part-time office clerk.

Cer tai nly, rehabilitation will require Wife to make changes in her lif e and lifestyle. However, rehabilitative alimony will allow her s ome fin ancial stability while she underta

kes to make those changes. In short, we believe that rehabilitative alimony, in a sufficient amount for a sufficient periodof time, will allow Wife to meet her financial obligation while striving for sel f-s uff ici ency. 7sev ering the ties between the parties. In light of the animosity that exists, we consider this to be a

desirable result and absolut

ely in line wi

th the goal the le

gislatu re contempl ated when expressing a pre fere nce f or r ehab ili tat ive ali mon y.

6 While there is no exact f

ormula for determining the app rop ria te d urat ion for reha bil ita tiv e al imo ny,
we must endeavor to strike a balance between the interests of both parties. In that reg ard, we believe forty-eight

(48) months is a suf

ficient period of

time to allow Wif e to imp rov e her earn ing c apac ity. This length of time w ill provide her with some measure of financial security, while allowing the parties to move on with their individual lives.
Having determined that the facts of this case warrant an award of rehabilitative alimony, we turn our att ention to the amount

of the award. “T

he amount of alimon

y to be allow

ed in any ca

se is a matt er for the discretion of t he trial court in view of the particular circumst ances." Ingram v

. Ingram
, 721 S.W.2d 262, 264 (Te nn. Ct. App.198 6). As stated by our supreme court in Aaron v. Aaron
, 909 S.W.2d 408 (Tenn. 1995), the real need of the spouse seekin

g the support is the

single most important factor. In addition to the n eed of t he disadvantaged spouse, the courts most often consider the ability of

the obligor spous

e to provide support. See Cranford v. Cranford , 772 S.W.2d 48, 50 (Tenn. Ct. App.1989).

In the present case

, the trial court ob

viously consi

dered all the relevant factors in determining the amo unt of al imo ny, and we will not disturb the court’s determination. The award of $1,200 per month serves as a balance between the needs of Wife and the ability of Husband to pay. The refore, in accordance with the foregoing discussion, we modify the award of

ali mon y in futuro to an award of rehabilitative alimony in the amount of $1,200 per month for a period of 48 months.

II. Family Counseling The trial court’s decree provided that “the parties and the minor ch ild shallattend family counseling...to

improve the communication between the parties.” Husband argues that this aspect of the decree exceeded the trial court’s authority. Wife, on the o ther hand, a rgu es that the trial court’s authority

to order counseli

ng derives fro

m the state’s role

as parens patrie

.
T.C.A. § 36-6-101(e)(1) provides some guidance on the present issue. That sectio

n states: In an acti on for dissolution of marriage involving minor children, or in a post-judgment

proceeding involving minor children, if the court finds, on a case by

case basis, that it would be in the best interest of the minor children, thecourt may

on its own motion, or on the motion of either party, order the parties, excluding the minor children, to attend an educational seminar concerning the ef fects of t he dissolution of marriage on the children. The

program may

be divided into sess

ions, which in the aggregate shall not exceed four (4) hours in duration. The program sha ll be ed ucat ion al i n na tur e and not des igne d fo r in div idu al t hera py.
Under the aforementioned statute, a trial court may order the parties, excluding the minor children, to attend an educa

tional seminar con

cerning the ef

fects of the dissolution of the marriage on the8 That section prov ides:
The plaintiff spouse may

recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other s pouse reaso nable atto rney fees incurr ed in enforc ing any decree for alimony

and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the chang e of custody of any child, or children, of the p

arties, both upon th

e original divor

ce hearing an

d at any subs

equent hearing, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court

.
7 children. However, that se ction is inapplicab

le to the present c

ase for severa

l r easons. Fi rst, the counseling in the present case appears to have been ordered for therapeutic re ason s rather than educational reasons and, contrary to the statute, included the minor child. Second, T.C.A. § 36-6- 101(e)(1) contemplates sessi ons of limited durat ion, specifically

no more than four (

4) hours in duration. In the pr

esent case, no time limitation was imposed or, it appears, even contemplated. Fin all y, and perhaps most im portantly, T .C.A. § 36-6-101(e )(1) only applies where a

minor child

is invol ved. In the present case , the parties’ child has reached the age of majority, thereby rendering T.C.A. § 36-6-101(e)( 1) completely inapplicable. Simil

arly, we f ind the authority

cited by Wife

to be irrelevant to the present issue. Hence, we can discern no basis justifying the trial court’s decision

on this issue. Accordingly, we vacate that part of the final divorce decree which ordered the parties to attend family counseling.

III. Attorney’s Fees The final issue raised in this appeal relates to attorney fees. Husband alleges that t he trial court erred in: 1) awarding Wife $3, 500 as al imo ny in solido for payment of her attorney f ees and 2) declining to award him his attorney fees incurred in seeking child support from Wife.

The decision to award attorney's fees lies within the sound discretion of the trial judge, see Aaron v. Aaron , 909 S.W.2d 408, 411 (Tenn. 1995), and this court will not interfere with the trial judge's decision unless the evidence preponderates against it. See Batson v. Ba t son , 769 S.W.2d 849, 862 (Tenn. Ct. App. 1988). A party is entitled to attorney's fees when he or she lacks sufficie nt funds to pay his or her legal expenses or would find it nece

ssary to deplete other assets to do so. See Brownv. Brown
, 913 S.W.2d 163, 170 (Tenn. Ct. App.1994); Kincaid v. Kinca id , 912 S.W.2d 140, 144 (Tenn. Ct. App.1995). The record indicates that the amount the trial court awarded was substantially

less than the total amount of attorney fees owed by Wife. Considering the relative financial position of the parties, we do not believe the evidence to preponderate against the trial court decis ion awar din g Wi fe $3 ,50 0 as ali mon y in solido and we, therefore, reject the argument that i t should be disturbed.

Husbandalso claims that the trial court erred in failing to award him attorney fees incurr ed in seeking a change of custody and child support. He c

ites to T.C.A. § 36-5-103(a)(2)(c) in support of his claim that he was entitled to recov er his attorney

fees. 8 However, that statutory authority is(Emphasis added)

8

permissive, as indicated

by its use of t

he word “may.” Moreover, the statute clearly

states that the award is within the discretion of the trial court. Once again considering all relevant facts, including the financial disparity between the parties, we find no abuse of that discre tion in the present case.

Conclusion For the foregoing reasons, we modify the trial court

decision relating to the alimony award. Add iti ona lly, we vacate the order of the trial court requiring the parties to attend family counsel ing. In all other respects, we affirm the trial court decision. Costs of this appeal are taxed to Husband
, Michael Alan Totty, for which execution may issue if nec essary.