# FILED

December 7, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ DENNIS T. CROUSE, Appellant, Vs. C.A. No. 02A01-9712-CV-00312 Shelby Law No. 151303 CHARLANE ALLEN CROUSE, Appellee.

__________________________________________________ __________________________ FROM THE SHELBY COUN TY CIRCUIT COURT THE HONORABLE KAY S. ROBILIO, JUDGE

Richard F. Vaughn o

f Memphis For Appellant Daniel Loyd Taylo

r, John N. Bean of M

emphis For Appellee

AFFIRMED AS MODIFIED AND RE MANDED Opinion filed:

W. FRANK CRAWFORD ,

PRESIDING JUDGE, W.S.

CONCUR: DAVID R. FARMER,

JUDGE F. LLOYD TATUM, SENIOR JUDGE

T his dispute concerns an award of alimony and attorney’s fees. Appellant, Dennis T. Crouse (Husband), appeals from the trial court’s order granting alimony in futuro and attorney’s fees to Appellee, Charlane Allen Crouse (Wife).1 It is also important t o note that Husband

also worked various jo

bs to support his family while pursuing his e

ducation except

for a few year

s when he was in me

dical school. 2 The parties married on August 21, 1971 in Lewis County, New York. A daughter was born of this marriage in 1972, but she is no longer a minor and does not residewith either party. After the marriage, Husband and Wife fi rst lived in Ne w York where they both worked in a bowling pin factory. Due to H usband’s subsequent military career, the parties moved to San Antonio, Texas in 1973 and then to Houston, Texas. Upon completing his milita ry career, Husbandobtained a Bachelor of Science degree from the University of Hous ton while Wife workedas a clerk in a fa bric store. The parties then m oved to Galveston,

Texas to enable Husbandto attend medical school. While Husband attended medical school, Wife worked as a part-time clerk in a grocery store

and as a part-time

secretary in

the pathology department at the university, eventually quitting the job at the grocery store in order to work full time in the pathology department. After Husband obtained his medical degree in 1982 and complete

d his residency in 1985, the parties moved from Galveston to Birmingham, Alabama to allow Husban d to participate in a

fellowship progra

m. At this time, Wife worked as an administrative secretary in addition to providing sewing services from the parties’ home. Wife stopped working outside of the home

in 1989 in orderto pursue her sew ing business. In 1993, the parties move d to Memphis, Tennessee to enable Husband to take a position at the University of Tennessee. 1 On February 13, 1996, Husband filed acomplaint for divo rce alleging irr

econcilable differences and inappropria te ma rital conduct on the part of Wife. Wife filed an answer admitting irreconcilable

differences w

hile denying guilt of

inappropriate

mari tal conduct, and filed a counter-complaint alleging inappropriate marital conduct on Husband’s part. On March 24, 1997, the trial court entered a decree granting absolute divorce pursuant to T.C.A. § 36-4-129 which incorporated the parties’ stipulated property settlement while reserving the issues of spousal support

and attorney’s fees. On November 17, 1997, the trial court entered a final decree of divorce awarding Wife alimony in futuro in t he amount of $3,800.00 per month for fortyeight months, and thereafter

in the amount of $2,900.00 per month. The trial court also ordered Husbandto pay Wife’s attorney’s fees and litigation expen s es in the amount of $8,750.00. Husband subseque

ntly brought this app

eal. On appeal, Husband presents the following issues for our review:3 (1) Wheth er the tr

ial court erred in awarding Wife alimony in futuro rather than rehabilitative alimony. (2) Whether the tria

l court erred in a

warding Wife’s a

tt o rney’s fees and litigation expenses in the amount of $8,750.00. Since the trial cou rt heard this case sitting without a jury, we review the case de novo upon the record with

a presumption of correctness of the findings of f

act by the trial co

urt. Unless the evidence pr

eponderates ag

ainst these findings, we

must affirm,absent error of law. T.R.A.P. 13(d). Alimony Husbandasserts that th

e trial c ourt should have granted Wife rehabilitative alimony rather than granting her alimony in futuro . Husband contend s that this isa

classic case for an award of rehabilitativ

e a limony in that Wife is in her mid-forties, in good health, had the opportunity

during the marriage to pursue further education

and training, is currently pursuing

a degree in special education, a nd that he supported Wife’s decision to pursue her degree and does not object

to paying rehabilitative alimony until she secures her master’s degree. He further assertsthat rehabilitative alimony is proper in that fault was not a f actor in the divorce, the parties didnot enjoy a lavish lifestyle, Wife received an adequate amount in the agreed division of property, and that it is uncertain what her needs will be once she completes her education. On the other hand, Wife

assertsthat the grant of alimony in futuro was warranted by the circumstances and that

the award

was fair and equ

itable. She conten

ds that she contrib

uted to her family by working outside the h om e in several posit ions in addition to ca

ring for their daughter and the household w

hich in turn allowe

d Husband to

pursue his educational e

ndeavors. Fu rthermore, Wife asserts that she is not capable of rehabilitation given her age and lack o f experience, and that the award of alimony in futuro will allow her to more closely approach her former economic position she enjoyed while married. Finally, Wife contends that Husband has the ability to pay the amount ordered by the trial court and that her needs also support the amount awarded. In Tennessee, there is a preference for rehabilitative alimony. Aaron v. Aaron , 909 S.W.2d 408, 410 (Tenn. 199 5). Our Supreme Co

urt, in discussing rehabilitative alimony, stated in Self v. Self

, 861 S.W.2d 360 (Tenn. 1993): [T.C.A. § 36-5-101(d)(1 )] reflects an obvious legislative4 policy that, if pos sible , the dependency of one ex-spouse on the other be eliminated and both parties be relieved of the impediments

incident to the disso

lv ed marriage, and that an exspouse be adjudged

permanently dependent upon the other only when the court granting th e divorce finds th at economic rehabilitation is not feasible and long-term support is necessary. Id. at 361. “However, rehabilitative alimony is offered as an alternative to alimony in futuro , notas a replacement.” Ford v. Ford , 952 S.W.2d 824, 827 (Tenn. App. 1996). T.C.A. § 36-5- 101(d)(1) still permits the courts to aw a rd long-term suppo rt if it appears th

at rehabilitation

is notfeasible. Id. “Accordingly, our domestic relations laws governing the payment of alimony still acknowledge

s that: ‘The husband, having enter ed one of the stron gest most fundamental relationship known to the law, must cont inue tobear its fina ncia l burden where he can reasonably

do so and where it is necessary in order

to prevent a relatively greater hardship to the wife.’” Id. (quoting H. Clark, The Law of Domestic Relations in the United States § 17.5 at 255 (2nd ed. 1987)). T.C.A. § 36-5-101(

d)(1) (Supp. 1998)

provides: (d)(1) It is the intentof the general assembly that a spouse who is econo micall y disadvantaged, relative to the other spouse, be rehabilitatedwhenever pos sible by the granting of an order for payment of rehabilitat iv e, temporary support and maintenance. Where th e re is such relative economic disadvantage and rehabilitation is not feasible in consideration of all relevant factors, including those set out in this subsection, then the court may grant an order for payment of support and maintenance on a long-term basis or until

th e death or remarriage of the recipient except a s otherwi se provided in subdivision (a)(3). Rehabilitative support and maintenance

is a separate class of spousal support as distinguished from alimony in solid o and periodic ali

mo ny. In determining whether the gra nti n g of an order for payment of support and maintenance to a party is app rop riate, and in determining the nature, amount, length of term, and manner of payment, the court shall consider all relevant factors, including: (A) The relative ea rning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or

retirement plans

and all other sour

ces; (B) The relative education and trainingof each party, the ability andopportunity of eac

h party to secure

su ch educa tion and training, and the necessity of a party to secure further education andtraining to improve such party’s earning ca pacity to a reasonable leve

l; (C) The duration of the marriage; (D) The age and mental condition of each party;5 (E) The physical condition of each party, including, but not limited to, physic al disability or incap acity due to a chr

onic debilitating disease; (F) The extent to

which it would be undesirable for a party to seek employment

outside the home because such party will be custodian of a minor child of the marriage; (G) The separate assets of each party, both real an d persona l, tangible and intangible; (H) The provisions made with r egard tothe marital property as defined in § 36-4-121; (I) The standard of living of thepa rties established during the marriage; (J) The extent to whic

h each party has

made su ch tangib le and intangible contributions to the

marriage as m

on etary and homemaker

contr ibutions, and tangib

le and intangib

l e contributions by a party to the education, training or in creased earning power of the other party; (K) The relative fault of the parties in caseswhere the court, in its discretion, deems it appropriate to do so; and (L) Such other factors, including the tax consequ ence s to each party, as are nec essary to consider the equities between the parties. “The amount of alimony to be al lowed in any c ase is a matter for the discretion of the tri al courtin view of the particular circumstances.” Ingram v. Ingram , 721 S.W.2d 262, 264 (Tenn. App. 1986). In determining the amount of alimony, “the real need of the spouse seeking the support is the single most important factor. In addition to the need of the disadvantaged sp ouse, the courts most often consider the ability of the obligor spouse to provide suppo rt. ” Cranford v. Cranford

, 772 S.W.2d 48, 50 (Tenn. App. 1989) (citations omitted). “Wh il e alimony is not intended to provide a former spous e with relati ve financial ease, we stress that alimony should be awarded in such a way thatthe spouses approach equity.” Aaron , 909 S.W.2d at 411. Husband is

in his mid-forties and is a neonatologist at the University of Tennessee and the University of Tennessee Medical Group. Husband’s income has continuedto increase over the years. In 1996, Husband had an income of approximately $150,000.00. Wife is also in her mid-forties. After the divorce, Wife began to pursue a Bachelor of Ar

ts degree with a ma

jor in special education. Wifecurrently is a full-time student and works part time as a student assistant at five dollars per hour.

It is estimated that it will take Wife three to four years to complete her6

Bachelor of Arts degree. Wife then plans to pursue her master’s degree in special education which she estimates will take approximately one and one-half to two years to complete. Wife will be fifty or fifty-one years of age upon completion of her education. At the time of the divor

ce, the parties a

greed on a division

of property . As a r esult of such agreement, eac

h party receive

d assets from var

ious retirement an d investment plans. Furthermore, Wife received the marital residence which, at the time of the divorce

, was worth approximately

$200,000.00 but which had only approximately $30,000.00 in equity. The total amount each party

received as a r

esult of the prope

rty division was approximately $114,000.00. During the proceedings

belo w, ea ch party filed a Rule 14 Affidavit of Income and Expenses. Husband’s affidavit reve als a gross monthly salar

y of $10,869.92 and

a net monthly salary of $7,713.67. Husban d’s affidavit further reveals that his monthly expenses for the support of Wife to be $4,0

91.03 which, acc

ording to his affidavit, results in a monthly deficit of $487.75 after payment of his monthly expen se s. At the time of the hearing below, Husband admitted that a change in circumstances reduced his monthl y deficit to

approximately $36.00. On the other hand, W

ife’s affidavit

reveals a gross m

onthly income of $53 0.00 and a net month ly income of $397.10. H er affidavit further reveals $5,164.47 in total monthly expenses which results in a monthly deficit of $4,767.37. With the foregoing, we believe the trial court correctly determined that Wife should be awarded alimony in futuro . Wife is economically disadvantaged to Husband. The record reveals that Husband has a

greater earning capacity, superior education,and better job training than Wife. Wifealso substantially contributed to her family and household in a number of ways which allowed Husband to achieve his superior education and earning capacity. This was a twenty-six year marriage. During this marriage, Husband has been building

a career outside

the home while Wif

e has, for the most part, worked within the home such that she has no college de

gree and only limite

d outside-work ex

perience. Wife

worked se

vera l different jobs, pro vided for th

e care of the parties’ daughter and household, and freely moved several times to support and contribute to Husband’s career. Wife sacrificed her career to

follow Husband around the country in furtherance of his career. The record further

reveals that Wife is in need of some support and that Husband has the ability to pay. It is unlikely that Wife will ever be able to approach the level of income which7

Husbandis able to enjoy. Thus, given due consideration to all relevant fa ctors, we ar e of the opinion that the alimony in futuro awarded to Wife is necessary for

her to continue to m

aintain

a reasonable standard of living which is at least somewhat com parable to

that which she experienced before the divorce. We therefore believe the trial court’s grant of $3,800.00 per month as alimony in futuro for forty-eight

months to be correct

given that this will allow Wife to complete her education. However, we find the grant of $2,900.00 per month as alimony in futuro to be excessive. While we agree that granting alimony in futuro rather than reh abilitative alimony

was correct in

this aspect, we believe

that Wife’s award should be reduced to $2,000.00 per month as alimony in futuro and that such be terminated upon the death or remarriage of Wife. As this Court stated in Lancaster v. Lancaster , 671 S.W.2d 501 (Tenn. App. 1981):

Alimony is not and never ha s been intended by

our legislature to be punitive. Nor do we be lieve i t was intended simply as an award for virtue. It is

not designed to

serve as an annuity for the wife; or as Professor Clark has stated “[t]he purpose of alimony is to care for the wife’s needs after divorce, not to provide her with a life-time profit-sharing plan.” Id. at 503 (citations omitted). It is unclear

what Wife’s needs will be upon completion of her education. However, it is clear t hat Wife will then have the means and ability to support herself somewhat

. Furthermore, Wife received a reasonable amount of assets from

the property division. Given the foregoing, the award of $2,900.00 per month as alimony in futuro was excessive a nd should be reduced to $2,000.00 per mon

th as alim

ony in futuro . This amount should be more than sufficient to support her onc

e she has acquir

ed her educatio

n. However, this is

not to say that circumstances may change which maywarrant an increase or decrease in the amount of alimony. Attorney’s Fees As previously me ntioned, Husband a lso contests the tri

al court’ s order granting $8,750.0 0 in attorney’s fee

s and litigatio

n e xpenses to Wife. Husband contends that the trial court erred in granting fees considering the assets Wife received in the division of property and the lack

of liquid assets on his part. To the c ontra ry, Wife assert s that she does not ha

ve the resource

s to pay attorney’s fees given the fact that she is a full-time student and is only working part time. Furthermore, Wife contends that the parties received the same amount in the property

division8

andthat the majority of her portion was in the form of equity i n the marital residence and retirement

accounts. Wife a

lso requests that this Court award her attorney’s fees incurred on this appeal. A ttorney f

ee awards are treated as alimony. Gilliam v. Gilliam , 776 S.W.2d 81, 86 (Tenn. App. 1988). In determining whether to award attorney’s fees, the trial court should again consider the relevant factors in T.C.A. § 36-5-101(d)(1). Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn. App. 19 92). Where the w

ife demonstrates

that she is financ

ially unable to afford counsel,

and where the hu

sband has the abili

ty to pay, the court may properly order the husband to pay the wife’s attorney’s fees. Id. ; Harwell v. Harwell , 612 S.W.2d 182, 185 (Tenn. App. 1980). Furthermore, the award of attorney’s fees is within the sound discretion of the trial court, and unless the evidence preponderates against the award, it will not be disturbed on appeal. Lyon v. Lyon , 765 S.W.2d 759, 762-63 (Tenn. App. 1988). In the case sub judice, we cannot say that the evidence prepo nderates against the trial court’s finding that Wife is en titled to attorn ey’s fees. Given the status of the parties and the division of property, Wife does not have the resources or ab

ility to pay these

fees while Husband readily has the ability to pay such. However, we believe that the respective parties should bear the expense of th

eir own attorney ’s fees for this a ppeal. Accordingly, the decree of the trial court is modified to reduce the award of $2,900.00 per month as alimony i n futuro to an award of $2,000.00 per month as alimony in futuro to terminate upon the death or remarriage of Wife. As modified, the decree is affirmed, and th e

case is remanded for such further proceedings as are necessary. Costs of the appeal a re assessed against the Appellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ DAVID R. FARMER,

JUDGE

____________________________________ F. LLOYD TATUM, SENIOR JUDGE