# FILED Ap ril 4, 1996 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT KNOXV

ILLE

_______________________________________________________ ) CAROL LOUISE KEPLER, ) Knox County Fourth Circuit Court ) No. 64111 Plaintiff/Appellee. ) ) VS. ) C. A. No.03A01-9508-CV-00248 ) SCOTT JAMES KEPLER, ) ) Defend ant/Appe

llant. ) )

______________________________________________________________________________ From the Circuit Court of Knox County at Knoxville. Honorable Bill Swann, Judge
Sarah Swanson Hig gins , ESHBAUGH, SIMPSON AND VARNER, Knoxville, Tennessee Attorney for Def endant/A ppellant
.
Jerrold L. Becker , Samu el W. Brown , LOCKRI DGE, BECKER & VAL ONE, P.C., Knoxville, Tennessee Attorney for Plaintiff/Appe llee.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J.
CRAWFORD, P.J., W.S. : (Concur s) HIGHERS, J. : (Concur s)2 This divorce l itigation invo lves t he dis solu tion of the twent y-one year marr iage betweenAppellan

t, Scott Jame s Kepler

(Husband) and Ap

pellee, Carol L

ouise Kepler (Wife). T

heir union produced two children, ages 17 and 14 at the time of trial. The final divorce decree g ranted
an absolute

divorce and cust ody of the children to Wife. Husband now appeals from the decree, challengingthe trial court’s valuation of the marital residence, award of rehabilitative alimony and attorney’sfees to Wife and failure to establish an “ascerta inable standar d” by whi ch to measure Wife’s progress towards completion of her educ ational goals. For reasons to be discussed, we affirm the trial court.

Husband s tates the issues on a

ppeal asfollows:

I. Did the trial court err in [its] valuation of the marital residence and the amount of equity contained therein? II. Did th e trial court err in the amount and duration of alimony required to be

paid by the Appellant to the Appellee given the dispro port ionally larg e amount of marital debt awarded to the Appellan t, his substantial chi ld s upport obligation, the significant amount of marital assets awarded to the Appellee and the Appellee’s voluntar y unemploy

ment? III. Did the trial court

err in order[ing] the Appellant to pay ninety

percent (90%) of the Appellee’s$4,815.25 attorney fees giventhe extent o f the mar ital debt and alimony the Appellant wa s ordered to pay for

the be nefit of the Appellee and the substantial monetary asse

ts awarded to the Appellee? IV. D id the tria

l court e rr in fai ling to se

t a n ascert ainable standard by whic

h the Appellee’s progress towards completion of her educational goals can be measured?
Husband’s first issue concerns the trial court’s valuation of the marital residence and the amount of equity there in. The court valued the residence at $180,000 with an equity of $68,000, which was divided equally be tween the parties. The

trial cou rt hear d from bot

h parties regarding the home’s va

lue. Wife t

estified as follow s:
Q.
. . . . Your house at Chevy L ane . . . y ou have b een livin g there for six y ears; is t hat corr ect? A. Yes. Q. You have an oppo rtun ity - - this3 is the Lovell Hills area?

A. Yes, it is. Q. I

want you to assume

a willing buye

r and a willing seller, neither

under the compulsio n to buy

or sell, based upon your knowledge of the house and knowledg e of the neighborhood, do you have an opinion as to what the f air-mar ket value of that house is? A. As far as I know, I know our neighb ors sold their house a few y e ars back, may be two yea

rs ago for $176,000, I think, and our h ouse has a lit tle more square footage, so I am assuming it would be $180,000, $182,000 maybe
.

. . . . Q. And so as of the time of the Rul e 10, your statement is that the equity

in the hous e was $68 ,000; is tha t corre ct? A. Yes, it is.

Husband testified:
Q. Have you looked into the value of the homes

in the L ovell Hillsarea in

which the

marital r esidenc e is? A. Yes, I have. Q. And given a fair-market v alue, again, as Mr. Becker said to your wife, a will ing buye r, a willing seller neither under any compulsion to buy

or sell, what would be your estimation of fair-market value of the house?

A. Well, based on the transactions that I have seen have happened in the area -- in f act , t here is o ne listing

that is in the paper y es te rd ay - - the houses in that development are essentia lly th e s ame, and that house sold for $227,000. You know, I’ve estimat ed this at $200,000, and I think that is very reasonable.
No other testimony on the issue was pr esented.

It is Husband’s position that the trial court erred in choosing Wife’s valuation, who “merely guessed,” over Husband’s valuation w hich was b ased on his examination of the selling prices of comparable homes in the neighborhood and c alculated in a “business-l ik e method.” Husbandasserts t

hat the pr eponder ance of the evide

nce rev eals th e hom e’s proper valuation at $200,000 and that the trial court’s finding otherwise effectively awa rds Wife an additional $20,000.4 The trial court’s finding s of fac t come to this Cour

t with a pr esumption

of corr ectness and we are to affirm, absent an err or of l aw, unle ss the evide nce pre pondera tes aga inst those finding s. Rule 13(d) T.R.A.P. ; See e.g. , Howard G. Lewis Constr. Co. v. Lee , 830 S.W.2d 60, 69 (Tenn. App. 1991 ). The tr ial cour t, when pr

esented with these

conflicting tes timo nie s, chose t o resolve such in favor of the wife. Clearly there was evidence before the trial court

on which t

o base such a finding. Furthermore, the record does not support Husband’s assertion that Wife’s valuation
was mere guess work. According to her testimony, which the trial court ac credited, it was based on her knowledge of the sales price of he r neighb or’s home, with

a little le ss square

footag e. I

n this respec t, Husband’s opinion is no different as his valuation was based on the s ale of a co mparabl e home in the area. We cannot say that the evidencepreponderates agains t the t rial c ourt’ s find ings in this reg ard. Hus band’s f irst issue is without me

rit.

Husband’s next issue c oncernsthe trial court’saward o f rehab ilitative a limony to Wife. He does not dispute Wife’s need for support, but only questions the amount and duration of the award. At the time

of trial, Wife was 4 3 ye ars old a nd Husband, 44. Wife ’s testimo ny r eveals that during the marriage, she was the primary caretaker of the children and house hold; she did not work outside the home except for a brief period

when she did some clerical work part-time. Wife began attending college in September 1993 prior to the c ouple’s separation. She is currently wor king towards an associate degree in nursing and would like to continue her studies to become a registere d
nurse. She estimated a total of four y ears to obtain h e r nursing degree; howev er, she m

ust first complete some developmental courses that she began taking her first y

ear. She currently

takes two
courses per seme ste r but wou ld like to increase to three. She listed her monthly expenses at approximately $4,000.

Wife stated a need

for rehabilitative alimony “ for [her] education and also to support her eldest daughter, soon gradua ting from high school and desiring to attend college.” Wife stated that sh e could work for minimum wage, but did not think “it would be worth it.” Moreover, she stated that she did not have the time to work, especially w hen increasing her class load. She believes she can obtain her associates degr ee in another y ear and a half.5 Husbandcurrently w orks, as he did throughout the marriage , as a nuclear engineer. He earns $90,000 annually , with a net monthly income of ap proximatel y $5,600. H e listed hi s monthly expenses at

approximately $6,600. He testified that he ha s been financi ally assisted b y hi s parentsto accou

nt for the differe nce. Hus band plan s to assist b oth childr en with the ir col lege educati ons. Husband admittedWife was the primary care giver of the

children during the marriage
.
The tria l court a warded rehabil itative a limony as follow s:
(a) For so long as [Wife] continu es her colle ge education in aco ntinuous orderly manner , and for a total period of five (5) yea

rs, [Wife] shall receive the amount of Two Thousand Five Hundred($2,500) Dollars per month for a per iod of thirty-six (36) months on or beforethe first day of each month. Thereafter, [Wife] shallreceive support during the f ourth year

in the sum of Two Thousand ($2,000) Dollars p er month f or 12 month s; and during the fifth year, [Wife] shall receive th e sum of One Thousand Five Hundred ($1,500) Dollars p er month f or 12 month s. (b) In the e v ent that [Wife] no longer pursues her colle ge education in a continuous, orderly manner at any time during the first thirt y -s ix (3 6) mo nt hs of he r r ec ei vi ng re ha bi li ta ti ve al im on y, then the amount of

[Husband’s] obligation will be reduced to the sum of Two Thousand ($2,000) Dollars per month for the next twelve (12) months; and thereafter reduced to the sum of O ne Thousand Five Hundred($1,500) Dollars per month for the next twelve (12) months until the [Husband’s] two (2) year support oblig ation has expired.

Hu sba nd contendsthat in mak ing the a ward, th e trial c ourt fail ed to appr opriately consider the two most important factors in granting an awar d of alimony: need and the ab il it y to pa y. He states tha

t the tr ial judge failed to consider Wife’s ability to support he rself and Husband’s inability in light of the marital debt and a ssets awarded him.

In making the award, the trial cou rt expre ssly found Wife’s plan for he r education “sound,” while ac

knowledg ing that such a “h

eavy” reque st

would “p lace quite a crimp on the husband for three years, of $2,500 per year spousal support for 36 months.” The court continued:

The spousal su

pport is re

habilitat ive. I t will come

to an en d. It does not last forever. I t will be a heavy bur

den for the hu sband in the shor

t-term. T

welve fa ctors ar e given judges t o consider. The Court has considered all 12 but in particular factors1 Husband’s award of one-half equity in the marital home included interest thereon. The court delayed payment by Wife for 36 months, treating such as an incident of rehabilitative alimony. 6

one, two, three, six, seven, eight, nine, and 11 , . . . . Th e relative earning capacity

far dispara te favoring the husband; the needs of the parties far disparate the wife has more. She has the children a fter all
. She has the need for the education. The rela tive education is far disparate. It is a long marriag e. It is undesirable for the wife to seek mini mum-w age employment outside the home while study ing and while pro viding th

e hands- on care

for her two daug hters. The separa

te assets are not significant. We consider, of course, w hat was done . . . und er eq uitab le dis tribu

tion. We consider the fact the parties had a co mfor table sta ndard of living in the same -- to the extent p ossib le sho

uld be cont inue d. We

consider to some extent relative fault in this stipulated divorce.

As to the marital property division, the trial court divided equa

lly between the parties certain pension a

nd retire ment acc ounts, tota

ling app roxim at ely $148,000. 1 The cou ple’s savin gs account of approximately $1,500 and ce rtain shares of stock, valued by the parties between $4,000 and $13,000 , were also divided equally . As to marital debt, Husband was ordered to pay ce rtai n credit card ac counts totaling approximately $5,000. The parties were equally responsible for another Visa account t otaling approxima

tely $6,000, a

ccording to Husb and. Wife was held

solely responsible for the mortgage on the mar ital home, a $300 Service Merchandise debt and a $4 5 0 veterinarian

bill. Wife w as also r

esponsibl e for the

$10,000 note on the v ehicle she was awarded
as he r s ep ar at e p ro pe rt y.

Husbandis correct that need and ability to pay are

the cornerstones for making an award of alimony. See e.g., Loyd v. Loyd , 860 S.W.2d 409, 412 (Tenn. App. 1993). The record certain ly establishes Wife’s need, which as heretofore noted, is not denied by Husband. The duration of the awa rd as det ermined by t he trial c ourt nec essarily

takes into

account the time frame for Wife to obta in he r edu cati onal

degree. We do not find the lengt h of the a ward ina ppropria te or an a buse of the tr ial co urt’s discr etion . As to the am ount , we agr ee with t he trial c ourt that f or a while Husbandwill be heavily burdened. However , conside ring Husband’s annual salary and present earning capaci

ty, plus the a

mount of ma

rital ass ets (and

debt) aw arded him, as well as all othe r relevant factors, we cannot say

it is too hea

vy a load to be ar for th

e short te rm. We also note that the7

couple ’s eldest child rea

ched the age of majority in Dece mber 1994

and thus, H

usband’schild support obligation should be reduced accordingly. We find no error in the trial court’s award of rehabilitative alimony, neither as to amount or duration.

Husbandnext questions the trial court’s award to Wife of ninety percent (90%) of her atto rney’s fee s, or $4,3 33.73. The trial cou rt’s judg ment allow s Husband

to pay such amou

nt in monthly incre ments of no less than $100. The awarding of attorney ’s fees is within the sound discretion of the trial court. Loyd , 860 S.W.2d at 413. In making its decision, the trial cour t considered, in ter alia , th e parties’ statements of liquid assets. These reveal that Husband ha s approxima

tely $3,200 more in liquid assets. This coupled with the foregoing facts outlined above , leads us to conclude that the trial court did not abuse its discretion in awarding ninety percent (90%) of Wi fe ’s at to rn ey’ s fee s a s a dd it io na l a li mo ny.

Husband’s final issue concerns the trialcourt’s alleged error in failing to establish an “ascer tainable standard” by

which Wife’s progression toward her educa tional degree can be measured. Hu sb an d a rg ue s t ha t t he tr ia l c ou rt fa il ed to de fi ne th e p hr as e “ or de rl y manner” a nd contends that it can be argued that Wife’s current class load of one or two courses per semester does notconstitute an orderly pr ogression towards graduation. The record does not indicate that Husband moved the court to amend the jud gment . Rule 59.04 T.R.C.P. We, therefore, consider this issue waived. Further, counsel advised this Court at oral argume ntthat there is pending in thetrial court a p et it io n f

il ed by H us ba nd to mo di fy a li mo ny.

It accordingly

results that the judg ment of t he trial c ourt is af firmed a nd this ca use remanded for any

further proceedings nece ssary and c onsistentwith this opinion. Costs are taxed to8

Sc ot t J am es Ke pl er , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

__________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIGHERS, J. (Concurs)_