# F I L E D

Jul y 1, 1998 C eci l W
. C r o w son A ppel l a t e C our t C l e r k GRETCHEN HART, ) Davidson Circuit ) No. 92D-2792 Plaintiff/Appellant, ) ) VS. ) ) RONALD RICK HART, ) Appeal No. ) 01A01-9707-CV-00344 Defendant/Appellee. )

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE APPEAL FROM THE CIRC UIT COURT OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE HONORABLE MURIEL ROBIN SON, JUDGE
J. Russell Heldman, #9989 320 Main Street, Suite 101 Franklin, Tennessee 37064 John J. Hollins, #2452 HOLLINS, WAGSTER

& YARBROUGH, P.C. Suite 2210, SunTrust Center 424 Church Street Nashville, Tennessee 37219 ATTORNEYS FOR PLAINTIFF/APPELLANT James G. Martin, III, #3083 FARRIS, WARFIELD & KANADAY, PLC Eighteenth Floor, SunTrust Center 424 Church Street Nashville, Tennessee 37219 ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED WITHOUT PR EJUDICE, REMANDED

HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

CONCUR: WILLIAM C. KOCH, JR., JUDGE WILLIAM B. CAIN, JUDGE-2-

GRETCHEN HART, ) Davidson Circuit ) No. 92D-2792 Plaintiff/Appellant, ) ) VS. ) ) RONALD RICK HART, ) Appeal No. ) 01A01-9707-CV-00344 Defendant/Appellee. )



## O P I N I O N

This is a post-divorce decree proceeding to adjust the amount of periodic alimony. The wife has appealed from the judgment of the Trial Court increasing the alimony from $1,000 per month to $1,350 per month.
The divorce decree, entered on May 12, 1994 stated:

The Court has reviewed all the eviden ce an d finds that from the proof, Mr

. Hart has the less

er degree of fa

ult in the disruption of the marital relationship and that Mrs. Hart’s actions constitute inappropriate marital conduct to the extent that this Court is convinced she is the party wit h the greater amount of fault in the disruption of this marriage. Therefore, the Court hereby awards an absolute divorce to the husband pursuant to T.C.A. 36-4 -129. The wife’s compl aint as it pertains to the granting of a decree to her is dismissed.
The wife received custody of the two children, who were approaching majority, and child support of $2,000 per month. Wh en the older child reached 18, chi

ld support was red

uced to $1,700, of

which the wife received $1,425 and $275 was placed in a fund for the education of the younger

child. On May 30, 19

97, the younger ch

ildreached majority, and child support and a $303 Social Security allotment terminated.

The wife received

the marital home su

bject to a mortgage payable at $965 per month, and certain other a

ssets.-3- The divorce decree also provided:

It is further ORDERED, ADJUDG ED, and DECREED that Mr. Hart shall pay to Mrs. Hart, because of her health pr oblems, inability to work a full time job, and needtherefor, alimony in futurountil her death or remarriage, or until the death of Mr. Har t, whichever shou ld occur first, in the amount

of One Thousand Dollars ($1,000) per month. The first payment shall be made on the first day of the month following t he close of the sale of the property at 4210 Estes Road. At the time the parties’ oldest child becomes emanci pate d, the alimony payment will be adjusted according to needat that time along with the child support adjustment
.

It does not appear that the $1,000 monthly alimony was modified prior to the filing of the present petition on May 7, 1997. As stated above, in response to the petition theTrial Court increased the alimony to $1,350 per month, and the wife appealed.
The wife presents the following issues for review: I. Whether

the Trial Court erred in awar ding the plaintiff an increase

of alimo ny of only $350 per m onth, and should have awarded her an

increase of at l

east $2,000 per month for a total of $3,000 per month in alimony. II. Whether

the Trial Court erre d in awarding Ms. Hart attorney’s fees of only $1,200. III. Whether

the Court of Appeals

should award Ms. Hart her attorney’s f

ees incurred on

appeal.
The husband adds a

fourth issue as fo

llows: 4. If this Court should determine that the trial court erred, whether

this Court should remand the case so that she may undergo i ndependent eval uations because

though Ms. Hart claims to be totally disabled, there is ample evidence to the contrary, inc luding ad missions by her attor ney and experts that she can work. The statutory provisions for spousal and child support have been combined and elaborated to form a long and detailed compendium of considerations including § 36-5- 101(a)(2)(A)

as follows: (2)(A) Cou rts having jurisdiction of the subje

c t matter and of

the parties are her

eby expressly au

thorized to provide for the future support of a s pou se and of the-4- children, in proper

cases, by fixing some definite amount or amounts to be p aid in monthly, semimonthl y, or weekly installments,or otherwise, as circumstances may w arra nt, andsuch awards, if not paid, may be e nfor ced by any appropriate

process of

the court having jurisdiction thereof, including levy of execution. Subsection (d)(1)

of the same code s

ection provides: It is the intent of the g

eneral assembly

that a spous e who is economically dis advanta g ed, relative to the other spouse, be rehabilitated whenever possible by the granting of an order for payment of rehabilitative, temporary support and ma i ntenance. Where there is s uch relative ec

onomic disadvantage and re habilitation is not f easible 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 bas

is or until the death or remar

r iage of the reci

pient except as ot

herwise pr ovided in subdivision (a)( 3). Rehabilitative

support an d maintenance is a separate class of spousal support as distinguished from alim

o ny in solido and periodic alimony. In determining whether

the granting of an order

for payment of support and maintena nce to a party is appro priate, and in determining the nature, am ount , length of term, and manner of payment, the cour

t shall consider all rele

vant factors, including: (A) The relative earnin g capacity, obliga

tions, n eeds, and financial resources of each party, includi ng incom e from pension, profit

sharing or retire

ment plans and all

other sources; (B) The relative education and training of each party, the ability and oppo rtunity of each party to secure such education and training, and the necessity of a party to secure further e ducation and training to improve such party’s earning capacity to a re

asonable level; (C ) The duration of the marriage; (D) The age and mental condition of each party; (E) The physical conditio n of each party, including, but not limited to, physical disability or incap acity due to a chronic debilitating disease; (F) The extent to which it woul d be undesirable for a party to seek employment ou tside th e home because such party will be custodian of a minor child of the marriage. (G) The separate assets of each party, both real and personal, tangible and intangible; (H) The pr ovisions made with regard to the marital property as defined in § 36-4-121;-5- (I) The standard of liv ing of the parties established during the marriage; (J) The extent of whicheach party has made such t angible and intangible con

tributions to the mar

ria ge a s mo netar y and homemaker contributions, and tangible and intangible contrib

utions by a party to

the education, training or increased earning power of the other party. (K) The relative fault of the parties in cases where the court, in

its discretion, deems it appropriate to do so; and (L) Such other fac to rs, including the tax consequences to eachparty, as are necessary to consider the equities between

the parties.
The amount of alimony, or changes ther eof rests primar

ily within the sound discretion of the Trial Court which will not be disturbed on appeal in the absence of a palpable error

in the exercise of that discretion. Harrington v. Harrington , Tenn. App. 1990, 798 S.W.2d244; Kelly v. Kelly , Tenn. App. 1984, 679 S.W.2d 458.

The primary basis of the wife’s request for increased alimony is the termination of the child support and Social Security allotment due to the majority of the children. It was e vidently intendedthat the child support and alimony would e

nable the wife to m

aintain the marita

l home for herself and children during their minority. Jones v. Jones , Tenn. App. 1983, 659 S.W.2d 23. She now insists that it is

appropriate that she continue to maintain the same accommodations for the children now that they have beco me adul ts. This Court canno t agree, for to do

so would require the husband to support the children indefinitely into their adulthood.

It is true that the termination of part of her income will reduce the ability of the wife to maintain the marital home in its pre-divorce state, but this is a necessary res ult of the divorce which was granted to th

e husband becau se the fault of the wife was greater than that of the husband. If the separate estate of the wife does not provide themeans of maintaining the home, it will be necessa

ry for the wife to

move to a residenc

e that she is

financially able

to maintain.-6- The wife insists that, because her disability, has increased, her ability to earn an income has decreased. However, the wife has not worked since the divorce. The refore, her continued disability does not constitute grounds for increased alimony.
The wife admits that she has some ability to do some work. The husband sought, and the Trial Court re

fused, an indepe

ndent medical eva

luation of the wife ’s ability to work. T his is the subject of the

husband’s issue sta

ted above. This Cou

rt agrees that thi

s is a proper case for independent

evaluation by medi

cal and employmen

t experts.

The in crease in al imony ordered by the Trial Court is justified by the evidence. Any additional increase m

us t be justified by additional evidence of increased expenses of the wife and evidence of her

disability to earn p

art of her expen

ses.

The wife assertsthat the amount of legal fees allowed by the Trial Court was inadequate. Such fees are subject to the same discretion of

the Trial Judge as alimony. No misuse of such discretion is found.

In view of the disposition of this appeal, the allowance of fees for prosecuting the appeal is not deemed appropriate.

The judgment of

the Trial Court is a

ffirmed without pr

ejudice to further application for increase in alimo

ny and proceedin

gs thereon. Costs of

this appeal are a

ssessed against

the appellant. The cause is remanded to the Trial Court for further appropriate proceedings.-7- AFFIRMED WITHOUT PR EJUDICE, REMANDED

_________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDLE SE CTIO N

CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ WILLIAM B. CAIN, JUDGE