1 Ten n. R. Ct. App . 10 states:
Th is Co urt, with the c onc urren ce of a ll judge s partic ipating in the cas e, may affirm, rev erse o r mo dify the act ions of t

he tria l cou rt bymemorandu m opini on when a formal opi nion woul d h ave no preceden tial

value. When a case is decided by memo randum opinion it shallbe design ate d “MEMORANDU M OPIN IO N,” shall not be published, and shall not be cited or relied on for any reason i n any un relat ed case. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE January 9, 2003 Se ssion RANDY J. OVERSTREET v. REB ECCA D. OVERSTREET

Appeal from the Circuit Court for Davidson County No. 01D-1938 Marietta Shipley, Judge

No. M2002-01178-COA-R3-CV - Filed June 3, 2003

In this divorce Husband appeals the ty pe and amount of alimony awarde d Wife at the end of a twenty-three

year ma rriage. Because

the evidence does not preponderate agains t t he trial court’s findi ngs and the tr

ial cour t acted within its disc

retion in applying releva nt lega l principl es, we a

ffirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Second Circuit Court Affirmed and Remanded
P AT RICIA J. C OTT RELL , J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., M.S., and W IL LI AM B. C AIN , J., joined. Vicky V. Klein, Madison, Tennessee, for the appell ant, Rand y J. Ov erstree

t. D. Scott Parsley, Joshua G. Strickland, Nashville, Tennessee , fo r the appe llee, Rebecca D. Overstr eet. MEMORAN DUM OP

INION 1
The parties were married for twenty -three y ears. They

stipulated grounds for di vorce and were declared divorced pursuan t to Tenn . Code Ann. § 36-4-129. They also agreed to an equal distribution of property, a nd the trial court approved that agree ment. The trial court awarded Wife ali mony in f

uturo of $100 per week. The only issue in this appeal by Husband is the natur e and am ou nt of

al im on y.2 Th e facto rs the co urt mus t consid er in setting the alimo ny ob ligation a re: (A) The rel ati ve earnin g capac it y, obli gati ons, needs and financial resources of each party, including incom e from pens ion, pr ofit sharin g or re tireme nt plan s and all other sourc es; (B) The relat ive educat ion and t

raini ng of eac h part y, the ab ility and o ppo rtunity of ea ch pa rty to secure such e duc ation a nd train ing, and the nec essity of a party to secure f urther education and trai ning to imp rove such p arty’s earn ing cap acity to a r easo nab le level; (C) T he du ration o f the ma rriage; (D) Th e age and m ental co ndition of eac h par ty; (E) The physica l condition of each party, including, but not limited to, phys ical disa bility or inc apa city due to a chr onic debil itat ing di sease; (F) The extent to which it would be undesirable for a part y t o s eek empl oyme nt out si de t he h ome bec ause su ch pa rty will be cu stodia n of a m inor ch ild of the marria ge; (G) Th e sep arate a ssets of ea ch pa rty, both real an d pe rsona l, tangible and in tangib le; (H) Th e pro visions m ade with rega rd to th e ma rital pro perty a s define d in §§ 36-4 -121 ; (I) T he stand ard o f living of the p arties esta blished during the ma rriage; (J) Th e exten t to which each party ha s mad e such tangib le and in tangib le con tribution s to the marriage as monetary and h ome mak er co ntributio ns, and tangib le and intangib le con tribution s by a p arty to the edu cation , training o r increa sed e arning pow er of the other p arty; (K) The rel ati ve f

ault of the pa rties in cas es whe re the c ourt, in its discre tion, de ems it ap pro priate to do so; and (L) Such other factors, including the t ax consequence s to each party , as ar e necess ary t o considerthe equ ities betw een the parties

. Tenn. Cod e Ann. § 36-5-101(d)(1 ). -2- Trial courts have broad discretion to determine whether spousal su

pport is needed and, if so, its nature, amount and duration. Burlew v. Burlew , 40 S.W.3d 465, 470 (Tenn. 2001 ). Ap pellate courts are ge

nerally disinclined to second-guess a trial court’s spousal su pport decision unle ss it is notsupported by the evide nce or is contrary

to public policies reflected in applicable statutes. Bogan v. Bogan , 60 S.W.3d 721, 733 (Tenn. 2001). Our role is to determinewhether the awa rd reflects a proper application of the relevant legal principles a nd that it is not clearly unrea sonable. Id . 6 0 S.W.3d at 733. When the trial court has set f orth its fa ctual findings in t

he reco rd, we will presume the correctness of those findings so long as the evidenc e does not prepond erate against them. Tenn. R. App. P. 13( d); Bogan , 60 S.W.3d a t 733; Crabtree v. Crabtree , 16 S.W.3d 356, 360 (Tenn.2000).
Pursuant to Tenn. Code Ann. § 36-5-101 (a )(1), c ourts hav e discre tion to ord

er “suita ble support and maintenance of either spouse by the other spouse . . . accor

ding to th e nature of the ca se andthe circumstances of the parties. . . .” There are no hard and fast rules for spousal support decisio n s, such determinations require a careful ba lancing of the relevant factors, and the determinations hinge onthe unique facts of each case. Robertson v. Robertson , 76 S.W.3d 337, 338 (Tenn. 2002). In determining whe ther to award support

and the nature, amount and length of such support, the court

is to consid

er all re levant f actors, including those enumerated in Tenn. Code Ann. § 36-5-101(d)(1). 2 Among the facto

rs to be c onsidered by

the cour ts in making

spousal su

pport decisions, the two considered

to be th e most important are the disadvantaged spouse’s need and the obligor-3-

spouse’s ability to pay

. Robertson , 76 S.W.3d a t 342; Bogan, 60 S.W.3d at 730. The statutory factors to be considered include the relative earning capacity , obligations, needs, and financial resources of each party ; the relative education and training of ea ch party; the

ability and oppor

tunity andnecessity o f each p arty to secur e such ed ucation a nd training in orde

r to improve such party’ s earning capaci

ty to a reaso nable level; andthe asse ts of eac h party , whethe

r they be separ ate asse ts or marital property

awarded in the divorce. Tenn. Code Ann. § 36-5-101( d)(1). There can be no dispu

te that Wif

e is economically disadva ntaged, the first requirement for an award of alimony . Tenn. Code Ann. § 36-5-101. Both parties have a high school education and bothhave worked throughout the marriage. At the time of the divorce, Wife was 46 and Husband was 4 2. Wife ha s perfor

med mostly

factor y w ork and a

t the time o f the divo

rce wa s working

at a book bindery for $9.00 pe

r hour. A comparison of

the parties’ income over the past six y ears shows that Husbandhas routinely made a pproximately twice as much as Wife. At the time of the divorce his income was $43,000 and hers was $19,200. I t is unlikely her income w ill rise signi ficantly throu gh promotion. Wife’s work experience, age, and education do not suggest a strong likelihood she can change careers to one more lucrative or with gre a ter opportunities for higher eventual earning s. The evidence does not preponderate ag ainst the trial court’s finding that Husband has the greater ability

to earn income. Husbandas se rt s t ha t a li mo ny in futurois not appr opriate . It isaccura

te that wher

e econo mic disad vanta ge exists, the legislature has expressed a prefer ence fo r rehab ilit ative alim ony over l ongterm, op en -e nd ed al im on y in futuro . Tenn. Code Ann. § 36-5-10 1(d)(1) ; Robertson , 76 S.W.3d at 339-40; Burlew , 40 S.W.3d a t 470; Crabtree , 16 S.W.3d at 358. The purpose of an award of rehabilitative alimony is to en courage divorced spouses to become self-sufficient. Robertson, 76 S.W.3d at 339-40; Burlew , 40 S.W.3d at 471, Crabtree , 16 S.W.3d at 360. Rehabilitative alimony is appropriate where

the spouse is economically disadva ntaged, but

where r ehabilita tion is possi

ble by the grant of “rehabilitative, temporary support and maintenance.” Tenn. Code Ann . § 36-5

- 101(d)(1). Such support may assist the disadvantag ed spouse i n ob taining further education or training or may

also prov ide tempo rary income to support

the disad vantag ed spouse

during the postdivorce economic adjustment. Robertson , 76 S.W.3d at 340-41.
In determining whether

a disadva ntaged spouse ca n be reha bilitated withshort-te

rm suppor

t, the court is to consider “every relevant factor.” Id. 76 S.W.3d at 340. Neither the standard of living the parties enjoyed during the marriage nor the income or earning potential of the other spouse ca n be used as the sole or determinative factor. Id .; Crabtree , 16 S.W.3d at 359. Where, consider

ing all th e relev ant fac tors, re

habilitat ion is not possible, the courts should notrefra in from aw arding

long-te rm suppor

t when tha

t support isappropr

iate unde r the stat u tor y factor s. Robertson , 76 S.W.3d at 341-42. The statutory pre ference for rehabilitative support does notentirely displace

other forms of support. Id .; Anderton v. Anderton , 988 S.W.2d 675, 682 (Tenn. Ct. App. 1998). The support statute itself provides for thegrant o f an awa rd of s uppor t on a l ongtermbasis “where there i s such relat ive eco nomi c disa dvant age and reha bilitation is not fea sible in consideration of all relevant factors.” Tenn. Code Ann. § 36-5- 101(d)(1). The purpose of alimony-4-

in futuro is to provide financial support to a spouse who cannot be rehabilitated. Burlew , 40 S.W.3d at 470-71. Alth ough the trial court did not make a specific finding that economic rehabilitation of Wife is not feasible, the facts support such a finding. Ba sed upon her earnings and her stated expenses, Wife was not se

lf-suff icient at the time of

the divor ce. The re is no evidence

in the re cord to indicate that rehabilitative alimony for a short period of time would enable Wife to increa se her earning capaci ty signi ficant ly enough to become economically self-sufficient. Therefore, we conclude that re ha bi li ta ti ve al im on y is no t r eq ui re d a nd th at al im on y in futurois appropriate. Husbandalso asserts the amount of alimony is excessive; that the court awarded more

than Wife’s expense statement showed she needed; and the amount is greater than he ca n pay based on his own inc ome and e

xpense sta

tement. Wife’s statement shows expenses of $2,000 per month, with net take home pay of $1,400. Husband’s statement

includes a monthly income amount lower than his income for the prior yea r. He testified he had voluntarily taken a job with reduced earnings but reduced hours to allow more time for responsibilities related to the part i es’ adult daughter who lived with him. She was employed, but did not drive. His statement also includes $336 in monthly expenses related to the daughter, including food, clothing, recreation, and health insurance. Having fully reviewed the record , we conc lude that the evide

nce doe s not prep onderat e ag ai ns t t he tr ia l c ou rt ’s de te rm in at io n o f W ife’ s n ee d a nd hu sb an d’ s a bi li ty t o p ay. We affirm the trial court’s award of alimony . Costs of this appeal are taxed to the appella nt, Randy J. Overstr

eet.

____________________________________ PATRICIA J. COTTREL L, JUDGE