IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

January 19, 2006 Session

DONNA MARIE TAIT v. WILLIAM FRANK TAIT

Direct Appeal from the Chancery Court for Shelby County

No. 03-0362-1 Walter L. Evans, Chancellor

No. W2005-00976-COA-R3-CV - Filed May 18, 2006

Donna Marie Tait (“Wife”) filed for divorce from William Frank Tait (“Husband”) citing grounds

of inappropriate marital conduct. The parties entered into a Permanent Parenting Plan and a Property

Settlement Agreement, but reserved the issue of alimony for trial. After hearing the evidence, the

trial court found that Wife was not in need of additional alimony support from Husband, despite

Husband’s ability to pay. Wife appeals. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; and

Remanded

DAVID R. FARMER,J., delivered the opinion of the court, in which ALAN E. HIGHERS,J. and HOLLY

M. KIRBY, J., joined.

Mitchell D. Moskovitz, Adam N. Cohen, Memphis, Tennessee, for the Appellant, Donna Marie Tait.

Darrell D. Blanton, Memphis, Tennessee, for the Appellee, William Frank Tait.

OPINION

Factual Background and Procedural History

Donna Marie Tait (“Wife”) and William Frank Tait (“Husband”) were married on March

1, 1986. Throughout the marriage, Husband worked as an insurance agent, earning 

approximately $415,569 to $511,595 per year from 2000 until Husband’s subsequent retirement.

Wife is a high school graduate who stayed at home during the marriage and cared for the parties’

home and children. Wife asserts that later in the marriage, she sought to continue her education,

but Husband rejected this notion and insisted that Wife remain a stay-at-home mother. 

Wife initially filed for divorce citing the grounds of irreconcilable differences. However,

Wife later amended her divorce petition to cite the grounds of inappropriate marital conduct

against Husband. Specifically, Wife asserted that Husband was having an extra-marital affair–a
On September 20, 2005, Husband filed a Motion to Consider Post-Judgment Facts which stated: 1

1. At the time of the Trial in this matter, the Appellant (Wife) was receiving a pension benefit

of Two Thousand Three Hundred Eighty Dollars ($2,380) per month.

2. Subsequent to the Trial, and during the pendency of this appeal, Appellant began receiving

pension benefits of Five Thousand Eighty Two Dollars ($5,082) per month.

3. It was contemplated by the parties that this increase would take place as evidenced

throughout the record.

Husband’s motion was granted by this Court on October 11, 2005. It is undisputed that Husband is retired. 

In her reply brief, Wife revised her monthly expenses for a new total of $6,952.39. 2

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fact that Husband did not deny. As a result, the trial court granted Wife a divorce based upon

inappropriate marital conduct by Husband. At trial, the court approved the parties’ Settlement

Agreement as to Division of Property, whereby Wife received fifty-five percent of the marital

estate. Wife’s portion of the marital estate totaled approximately $976,793, with $524,888 of the

total being in the form of a retirement account. Wife also received $149,083 in cash, which

represented half of an investment account the parties had set aside for the children’s education

and had agreed to not include in the marital estate. Wife further received an income from

Husband’s pension in the amount of $2,380 per month, which would increase to $5,082 at

Husband’s retirement. At the time of trial, Husband testified that he planned to retire in 2006, at

which time he would earn approximately $10,000 per month in pension benefits.1

In presenting evidence on alimony, Wife asserted that her personal expenses totaled

$7,344.52 per month. These expenses were apart from those incurred by her children, where 2

were covered by child support payments that Wife would receive from Husband under the

parties’ Permanent Parenting Plan. Wife further testified that her income consisted of the $2,380

per month gross she would receive from Husband’s pension, which would increase to $5,082 per

month at Husband’s retirement. Wife presented further evidence that she suffers from lupus,

which causes her considerable joint pains, eye problems, and numbness in her hands. Wife also

testified that she has developed arthritis in her hands, knees, and feet; and suffers from both high

blood pressure and high cholesterol. 

In addition to Wife’s proof, the trial court also heard expert testimony from Gordon

Thompson, a certified public accountant, who testified that despite income from child support,

pension benefits, and social security, Wife would have an annual deficit for the rest of her life
According to Mr. Thompson’s testimony, Wife had approximately $378,858 in “working capital”, which 3

represented Wife’s investable assets she received in the division of marital property, not including her $524,888

retirement account or the $149,000 she received for the children’s education account. 

Mr. Thompson’s calculated that Wife had approximately $378,858 in liquid “working capital.” However, at

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trial the Chancellor noted that the Mr. Thompson’ projections did not consider any separate property of the parties in

calculating income and expenses. Furthermore, the record shows that Mr. Thompson’s calculations also fail to consider

any potential earnings by Wife.

In his brief, Husband asserts that Wife has approximately $524,000 in liquid assets. Husband obtained this 5

amount by adding the liquid portion of Wife’s share of the marital estate (approximately $375,000) with Wife’s portion

of the children’s education fund ($149,000). 

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and would ultimately expend all of her liquid “working capital” by age seventy-five. However, 3 4

at that time, Mr. Thompson testified that Wife would have approximately $3,200,000 in her

retirement account as well as income of $5,080 per month from Husband’s pension. In addition

to Mr. Thompson’s testimony, Husband also asserted that Wife’s income statement did not

include money she could earn from working and also did not include interest income Husband

alleges Wife could earn if she were to invest her liquid assets at a 5.5 percent rate of return. 5

At the conclusion of the proof, the Chancellor made extensive findings, which are as

follows:

Each of these parties have submitted affidavits of income and expenses that

have been examined and cross-examined, both of which the Court feels to be

somewhat inflated. The Court has considered the testimony of Mr. Thompson, and

the reasonableness to be given to his testimony.

The Court has considered the testimony of both [Wife] and [Husband] and

the arguments of their counsel. In determining whether the granting of an order for

alimony or payment of support and maintenance to a party is appropriate, the Court

considers, among other things, the requested nature, amount, length of term, and the

manner of the proposed payment of alimony.

The Court considers the relative earning capacity of the parties, their

respective obligations, their needs, and the financial resources that each one has,

including income from all sources, including pension, profit sharing, retirement, or

other sources.

The Court also considers the relative education and training of each party, the

ability and opportunity of each to secure further education and training, and the

necessity of a party to secure further education and training to improve such party’s

earning capacity to a reasonable level.

The Court also considers the duration of the marriage, the age and mental

condition of the parties, the physical condition of each party, including any disability

or incapacity due to a chronic, debilitating disease which, in this case, it appears as

though [Wife] suffers from lupus and arthritis and high blood pressure, like so many
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others do. [Husband] suffers stress and over-exhaustion and has sought psychological

and, I believe, psychiatric treatment to stabilize his situation.

The Court also considers the extent to which it would be undesirable for the

disadvantaged party to seek employment outside the home.

The Court also considers whether there are minor children in the home. In

this case, I believe one is 16 and one is 17.

The Court considers the separate assets of each party, both real and personal,

tangible and intangible, and also, of course, the relative fault of the parties. Alimony

would not be appropriate if the party seeking alimony is guilty of inappropriate

marital conduct, which does not appear to be the situation in this case. . . .

And, of course, the Court can consider any other relative facts that may exist

in the award of alimony. [Wife’s counsel] is relying upon Tennessee Code, section

36-5-101 to argue that his client is in need of a transitional alimony, and that

[Husband] should pay the same. Certain things are uncontroverted and without

dispute that the marital property of the parties has been divided 55 percent to [Wife]

and 45 percent to [Husband], and that award has been agreed to without regard to any

separately accumulated assets of either party. It also appears that, based upon the

agreed-to values and amounts, [Wife] is receiving what amounts to approximately

$180,000 more in marital property than is [Husband], and $90,000 more than what

she normally would have received if this Court had allocated the property one half

to one half.

It appears that [Husband] has been in the insurance business for 11 years

before the marriage, and has built up certain good will and that he built during the

marriage, but based upon the testimony, it appears as though the accumulation of the

substantial assets occurred during the marriage, which was the product, or the fruits

of the labor, that he had developed for the 11 years prior thereto.

It also appears that if [Husband] retires in ‘05 or ‘06, that [Wife] will be

receiving in retirement payments approximately $5,082 dollars [per month], and

[Husband] will be receiving approximately $10,000 per month in retirement. The

amount that [Wife] will be receiving will be in addition to the $1,000,000 that she

received as part of the Marital Dissolution Agreement, and the $10,000 a month that

[Husband] will be receiving will be in addition to mostly the real estate, which he

retained as a result of the settlement, in addition to the assumption of the debt on that

real estate.

After considering all of the factors and the disparity in the division of marital

assets between the parties, the Court is of the opinion that [Wife] does not satisfy the

requirements of this Court to convince the Court that she is in need of any additional

alimony support in order to maintain an appropriate standard of living consistent with

that which she enjoyed during the marriage. [Husband] probably could pay some

alimony, but the Court cannot find that [Wife] is in need of the receipt of any

alimony, considering the amount and the liquidity of the marital property that she

received, in addition to the additional retirement that will be forthcoming to her, for
The portion of section 36-5-101 dealing with alimony awards, as amended effective July 1, 2005, is currently 6

codified at Tenn. Code Ann. § 36-5-121 (2005). However, since the trial court decided this case before the current

amendment, we review this matter under the version of the statute in effect at the time of the Final Divorce Decree

rendered on October 25, 2004.

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life, upon [Husband]’s retirement. And for that reason the request for alimony is

denied. 

Wife appeals.

Issues Presented

 Whether the trial court erred in failing to award Wife alimony.

Standard of Review

We review the trial court's findings of fact de novo, with a presumption of correctness.

Tenn. R. App. P. 13(d) (2005); Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000). We will

not reverse the trial court=s factual findings unless they are contrary to the preponderance of the

evidence. Id. Insofar as the trial court=s determinations are based on its assessment of witness

credibility, appellate courts will not reevaluate that assessment absent evidence of clear and

convincing evidence to the contrary. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

Our review of the trial court=s conclusions on matters of law, however, is de novo with no

presumption of correctness. Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn. 2005). We likewise

review the trial court=s application of law to the facts de novo, with no presumption of

correctness. State v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005).

We review an award of alimony under an abuse of discretion standard. Herrera v.

Herrera, 944 S.W.2d 379, 385 (Tenn. Ct. App. 1996). If a discretionary decision is within a

range of acceptable alternatives, appellate courts will not substitute their decision for that of the

trial court simply because the appellate court would have chosen a different alternative. White v.

Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App.1999).

Analysis

In determining the appropriateness of an award of alimony, courts must consider the

statutory factors set out in Tenn. Code Ann. § 36-5-101(d) (Supp. 2004). This section provides: 6

(E) In determining whether the granting of an order for payment of

support and maintenance to a party is appropriate, and in determining the nature,

amount, length of term, and manner of payment, the court shall consider all

relevant factors, including:
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(i) The relative earning capacity, obligations, needs, and financial

resources of each party including income from pension, profit sharing or

retirement plans and all other sources;

(ii) The relative education and training of each party, the ability and

opportunity of each party to secure such education and training, and the necessity

of a party to secure further education and training to improve such party’s earning

capacity to a reasonable level;

(iii) The duration of the marriage;

(iv) The age and mental condition of each party;

(v) The physical condition of each party, including, but not limited to,

physical disability or incapacity due to a chronic debilitating disease;

(vi) 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;

(vii) The separate assets of each party, both real and personal, tangible and

intangible;

(viii) The provisions made with regard to marital property as defined in §

36-4-121;

(ix) The standard of living of the parties established during the marriage;

(x) The extent to which each party has made such tangible and intangible

contributions to the marriage as monetary and homemaker contributions, and

tangible and intangible contributions by a party to the education, training or

increased earning power of the other party;

(xi) The relative fault of the parties in cases where the court, in its

discretion, deems it appropriate to do so; and 

(xii) Such other factors, including the tax consequences to each party, as

are necessary to consider the equities between the parties.

Tenn. Code Ann. § 36-5-101(d)(1)(E) (Supp. 2004). 

In applying section 36-5-101(d), Tennessee courts consider the most important factors to

be the need of the spouse seeking support and the ability of the other spouse to pay. Burlew v.

Burlew, 40 S.W.3d 465, 470 (Tenn. 2001). Should a court find that a spouse is not

“economically disadvantaged” or in need of additional support, then “that spouse is not entitled

to support and our inquiry goes no further.” Echols v. Echols, No. E1999-00619-COA-R3-CV,

2000 WL 688589, at *7 (Tenn. Ct. App. May 30, 2000), perm. app. denied (Tenn. Jan. 8, 2001);

see Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995) (stating that “‘the real need of the spouse

seeking the support is the single most important factor’” when determining whether to award

alimony). In determining what constitutes need, the Tennessee General Assembly states in

section 36-5-101(d)(1)(B) and (C) of the Tennessee Code that the need of a disadvantaged

spouse, and the ability of such a spouse to be rehabilitated, should be determined in relation to

the marital standard of living, whereby “the economically disadvantaged spouse’s standard of

living after the divorce should be reasonably comparable to the standard of living enjoyed during
Currently codified at Tenn. Code Ann. § 36-5-121(c)(2) and (d)(2) (2006). 7

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the marriage or to the post-divorce standard of living expected to be available to the other spouse,

considering the relevant statutory factors and the equities between the parties.” Tenn. Code Ann.

§ 36-5-101(d)(1)(B) and (C) (Supp. 2004).7

In the case at bar, Wife asserts that the trial court erred when it found that she did not

need additional support from Husband to maintain a standard of living analogous to that which

she enjoyed during the marriage, despite the fact that Husband had the ability to pay. We

disagree. As previously noted in the facts section of this opinion, the trial court in this case

considered the many statutory factors set forth under section 36-5-101(d) of the Tennessee Code

in determining whether Wife was entitled to an alimony award. Specifically, the trial court

considered the duration of the marriage, the age and mental condition of the parties, the extent to

which it would be undesirable for the disadvantaged party to seek employment outside the home,

the separate assets of each party, the relative fault of the parties, and the division of marital

property. Most importantly, however, the court looked at Wife’s needs and her financial

resources to satisfy those needs. In doing so, the court found that Wife had sufficient funds to

maintain a standard of living consistent with what she enjoyed during the marriage, and thus had

no need of support from Husband. After a careful review of the record, we find that the facts in

this case fail to preponderate against this finding. 

The record shows that at trial Wife asserted personal expenses totaling $7,344.52 per

month, a figure which, based upon the evidence presented at trial, the court found to be

somewhat inflated. In determining whether Wife had sufficient means to pay her expenses, the

trial court considered the fact that Wife received nearly $1,000,000 in assets as part of the Marital

Dissolution Agreement, $524,888 of which was in the form of a retirement account. The Court

further considered the disparity of the division of marital assets, whereby Wife received

$180,000 more than Husband, and $90,000 more than what she would have normally received

had the trial court allocated the property one half to one half. Besides Wife’s share of the marital

property, the trial court also considered the fact that Wife would receive $2,380 per month from

Husband’s pension plan until Husband’s retirement, at which time this amount would raise to

$5,082 per month. 

In addition to hearing evidence concerning Wife’s share of the marital estate and

husband’s pension, the trial court also heard expert testimony from Mr. Thompson, a certified

public accountant. Mr. Thompson testified that, based upon Wife’s income from child support,

pension, and future social security payments, Wife would have to exhaust $378,858 of the liquid

assets from her share of the marital estate over a twenty-four to twenty-five year period in order

to meet her monthly expenses. However, Mr. Thompson also testified that by the time Wife’s

liquid assets were exhausted, Wife would be seventy-five years old and have approximately

$3,200,000 in her retirement account, along with her pension and social security benefits. Based

upon all of these factors, the trial court determined that Wife failed to demonstrate a need for
This total does not include the $149,000 awarded to wife in exchange for her agreement to pay for half of the 8

two minor children’s college expenses. 

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additional support in order to maintain a lifestyle commensurate with the marital standard of

living. We affirm.

Despite the trial court’s finding that Wife has no need for alimony support in order to

achieve a standard of living analogous to that she enjoyed during the marriage, Wife nonetheless

asserts that she is entitled to support because 1) Husband was at fault for breaking up the

marriage, 2) Wife should not be required to deplete all of her “capital assets” in order to support

her needs, and 3) Wife is incapable of rehabilitation. Based upon the facts in this case, we find

each of these assertions without merit. In relation to Wife’s claim that she is entitled to alimony

due to Husband’s fault, this Court has recently noted that

[i]t is well settled that while fault is a factor to be considered, it must not be applied

in a punitive manner against a guilty party in determining the award of alimony.

[Gilliam v. Gilliam, 776 S.W.2d 81 (Tenn. Ct. App. 1988)]; Fisher v. Fisher, 648

S.W.2d 244, 246 (Tenn. 1983). In [Duncan v. Duncan, 686 S.W.2d 568 (Tenn. Ct.

App. 1984)], this Court specifically rejected the notion of “punitive alimony”, [sic]

noting that while alimony may be reduced due to a spouse’s misconduct, unneeded

alimonymay not be added to punish a guilty spouse. Id. [at 571-72]. We have stated

“alimony is not and never has been intended by our legislature to be punitive.

(citations omitted). Nor do we believe it was intended simply as an award of virtue.”

Lancaster v. Lancaster, 671 S.W.2d 501, 503 (Tenn. Ct. App. 1984).

Wilder v. Wilder, 66 S.W.3d 892, 895 (Tenn. Ct. App. 2002). In the case at bar, the trial court

found that Wife needed no additional support in order to maintain a lifestyle commensurate with

what she enjoyed during the marriage. As a result, we find that any award of alimony based upon

Husband’s fault would be purely punitive in nature and thus not allowed under Tennessee law.

We next address Wife’s contention that she “should not be required to deplete her assets

to support herself after the divorce.” As previously noted, Mr. Thompson testified at trial that

Wife would have to expend all of her “liquid working capital” (which Mr. Thompson valued at

$378,858) over a twenty-four to twenty-five year period in order to meet her needs. However, at 8

this time, Mr. Thompson calculated that Wife will be receiving $5,082 in payments from

Husband’s pension, approximately $1,144 per month in Social Security Benefits, and will have

approximately $3,200,000 in her retirement account. Based upon these figures, we find that

Wife will hardly be required to expend an unreasonable amount of her assets in order to provide

her own support, and certainly will not jeopardize her future financial security.

Finally, we address Wife’s assertion that she is entitled to alimony due to her alleged

inability to be rehabilitated. As set forth in section 36-5-101(d)(1)(C),
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[t]o be rehabilitated means to achieve, with reasonable effort, an earning capacity that

will permit the economically disadvantaged spouse’s standard of living after the

divorce to be reasonably comparable to the standard of living enjoyed during the

marriage, or to the post-divorce standard of living expected to be available to the

other spouse, considering the relevant statutory factors and the equities between the

parties.

Tenn. Code Ann. § 36-5-101(d)(1)(C) (Supp. 2004). As already discussed in this case, the trial

court found that Wife will have sufficient income and assets to maintain a lifestyle comparable to

what she enjoyed during the marriage. From the record, it appears that this holding was based

solely upon Wife’s share of the marital property as well as her income from Husband’s pension

plan and future Social Security benefits Wife will receive at retirement age. Nowhere in the

record does the trial court impute income to Wife which could be earned from Wife’s own

employment. Furthermore, although Wife testified that she suffered from lupus, arthritis, and

various other ailments, no testimony, expert or lay, was presented to prove that Wife was

incapable of working and earning income in addition to that she is already receiving. In fact, at

the hearing on Wife’s Motion to Alter and Amend, Wife’s counsel acknowledged that Wife had

no disabilities or bodily deficiencies which prohibited her from securing employment if she

chose to. Based upon the following facts, we find that rehabilitation is unnecessary in order for

Wife to maintain an appropriate standard of living.

Conclusion

After a careful review of the record in this case, we find that the facts fail to preponderate

against the trial court’s factual finding that Wife was in no need of additional support from

Husband. As a result, we find that the trial court did not abuse its discretion in failing to award

Wife alimony and therefore affirm. Costs of this appeal are taxed to Appellant Donna Marie

Tait, and her surety, for which execution may issue if necessary.

____________________________________ 

DAVID R. FARMER, JUDGE