### IN THE SUPREME COURT OF TENNESS EE AT JACKSON April 8, 2003 Session WILLIAM HARWELL PERRY v. RI CKI C. CHILDS PERRY

Appeal by P

ermis sion from

the Court

of Appeals Chancery Court for Tipton County No. 16,505 Martha B. Brasfield, Chancellor

No. W2001-01350-SC-R11-CV - Filed August 27, 2003

We granted this appeal to d etermin e t he co rr ec t s ta nd ar d t o b e a pp li ed in mo di fyi ng a t em po ra ry, open-ended

award of reh a bilitative

alimony . We hold tha

t a substa ntial and materia l chang e in circumstances must be sho wn inorder to extend, or otherwise modify , such an award. Therefore, we revers e the judg

ment of the

Court of A

ppeals, a nd we re mand the c aseto the trial court for further proceedings consistent with this opinion. Tenn. R. App.P. 11 Appe al by Per mission; Judgment

of the Cour

t of Appeals R

eversed; Case Rem

anded
J ANICE M. H OLDER , J., delivered the opinion of the court, in which F RANK F. D ROWOT A , III, C.J., and E. R IL EY A NDERSON , A DOLPHO A. B IRCH , J R ., and W IL LI AM M. B ARKER , JJ., joined.
J. Th om as Ca ld we ll , R ip le y, T en ne ss ee , f or th e A pp el la nt , W il li am Ha rw el l P er ry. Julie D. Byr d a nd Ti na Lum Pe rr us qu ia , B ar tl et t, Te nn es se e, fo r t he Ap pe ll ee , R ic ki C. Ch il ds Pe rr y. OPINION
Factua l Background William Har wel l P err y and Ri cki C. Ch il ds P err y were di vor ced on N ove mb er 1 6, 1 998 . In its Final Decree of

Divorce , the Chancery

Court of T

ipton County

ordere d Mr. Perr

y to pay Ms. Perry rehabilitative a

limony in the amount of $700 per month through December 31, 2000. The trial court di d n ot ma ke th e a wa rd fi na l, ho we ve r, bu t e xp re ss ly d es ig na te d i t a s “ te mp or ar y” andordered the parties t

o return to court pr

ior to Dec ember 31 , 2000, to a llow the c ourt to determine whether the alimony award s hould be c ontinued. In itsfinal decree, the trial court listed a number of factors that it would consider in determining whether rehabilitative alimony would be continued, including Ms. Perry’sneeds, her retu

rn to scho ol, her pr

ogressmade at school, her grades, and any other r

elevant factor s.-2-

On N ovember 3, 20 00, Ms. Perry filed a pe tition to modify the final decree to continue al i mony payments. On Dec ember 20, 2000, Mr. Perry filed a petition requesting a termination of rehabilitative alimony. A hea ring was held on the petitions on March 1, 2001.
At the hear ing, Ms. Perry

testifie d that she

was fort y- seven y ears old andhad graduated from high school. She worked as a seamstress and earnedan annual income of $21,736. During the summer of 1999, Ms. Perry beg an attending community college classes to earn an

associate’s degree in engineering drafting . She testified that she had a 3.2 grade point

average and would complete the progra m i n five yea

rs if she maintained her current course load. Her affidavit of income and expenses reflected expenses of $2,154.25 per month.
Mr. Perry testifie d that he w as also f orty -seven y

ears old and a hig h sc hool graduate. He earned an annual income of $ 38,000 in 2000 as a dock worker and a part-time eme rgency medical technic ian. For

the past th

ree y ears, he hadbeen living in a th irty -foot ca

mper-tr ailer and kept his personal property

in a rented space. On December 4, 2000, he sustained a leg injury

and received workers’ compensation benefits until late Februar y, 2001.
On May 11, 2001, t

he trial c ourt ente

red an or der cont inuing Ms

. Perry’s a

limony. Apply

ing the factors enumerated in its final decree, the cou rt award ed her three additional years of rehabilitative alimon y: $550 per m onth from January 1, 2001, until June 30, 2002, and $400 per month from July 1, 2002, until December 31, 2003. A majority of the Court of Appealsaffirmed the tria l court’sjudgmen

t. The major

ity h eld that Ms. Perry’s re

habilitative alimony

award could beextended without proof of a substantial and material change in circumstances since the trial court’s alimony award was not final but temporary andopen-ended. Judg e David R. Far mer fil ed a sep ara te d is sen ti ng o pi ni on. In his o pini on, J udge Farmer stated that regardless of the natur e o f the award, Tennessee Code Annotated section 36-5-101(d)(2) requires a showing of a substantial and materia l change in circumstances to modify a rehabilitative alimony a ward.
We granted review to determine the c orrect standard to be applied in modify ing the tria l co ur t’ s t em po ra ry, op en -e nd ed aw ar d o f r eh ab il it at iv e a li mo ny. Standard of Review
Becau se modification of a spousal support award is factually driven, a trial court’s decision to modify its award is given wide latitude within the trial court’s rang e of discretion. See Watters v. Watters , 22 S.W.3d 817, 821 (Tenn. Ct. App. 1999). A trial court abuses its discretion only w hen it “‘applie[s] an incorrect

legal standard, or reache [s] a decision which is against logic or reasoning that cause[s] an injustice to the party c omplaining.’” Eldri dge v. E ldrid ge , 42 S.W.3d 82, 85 (Tenn. 2001) (quot ing State v. Shirley , 6 S.W.3d 243, 247 (Tenn. 1999)). We shall pre sumethe corr

ectness of the trial court’s factual findings so long as the e vidence does not

preponderate against them. See Tenn. R. App. P. 13 (d); Crabtree v. Crabtree , 16 S.W.3d 356, 3 60 (T enn. 2000). However, we1 The following factors are enumerated in Tennessee Cod e Annotated section 36-5-101(d)(1): (A) The relative e arning capa city, oblig ations, n eed s, and fina ncial re sourc es of ea ch pa rty, including incom e from pe nsion, profit sharing or retirem ent plans and all other sources; (B) The relati ve educati on and trai ning of each party, the ability and opp ortun ity of eac h par ty to secure such education and traini ng, and the neces sit y of a part y t o secu re f

urther e ducat ion and training to impro ve suc h par ty’s earning capa city to a re ason able le vel; (C) The duration of the marriage; (D) Th e age and m ental co ndition of eac h par ty; (E) The physica l cond ition of e ach p arty, includ ing, but n ot limit ed to, physica l disab ility or incapaci ty due to a chronic debili tati ng disea se; (F) The ext ent to wh ich it woul d be undes irable f or a party to s eek empl oyment outs ide th e home because su ch party will be custodi an of a mi nor chil d of the marriag e; (G) The separate as sets of each par ty, both realand personal , tan gible and int angibl e; (H) The provi sion s made w it h reg ard t o the mari tal propert y as defi ned i n § 36-4- 121; (I) The standard of liv ing of

the part ies es tabli shed duri ng the mar riage; (J) The extent to which e ach p arty has m ade such tan gib le and inta ngible contributi ons to the marriage as mo neta ry a nd hom ema ker co ntributio ns, and tangib le and intangib le co ntributi ons by a pa rty to t he educ ati on, t

rai nin g or i ncrea sed ea rni ng power of t he ot he r party; (K) The relative fault of the parties in cases where t he co urt, in its discre tion, de ems it appropriate to do so; and (L) Such other factors, incl uding t he tax c onsequences to each par ty, as are n ecessar y to cons ider the equities between the parties.
Tenn. Cod e Ann. § 36-5-101(d)(1 ) (1996 & Supp. 2000 ). -3- review the trial cou rt’s c onclusions of law under a de novo standard with no presumption of correctness. See Burlew v. Burlew , 40 S.W.3d 465, 470 (Tenn. 2001). Analysis Under Tennessee Code Annotated section 36-5-101(d)(1) , a court may awa rd alimony to an economic ally

disadvan taged s pouse. Once the tr ia l cou rt has found a par ty to be econ omically disadvantaged

relative to his or her spouse, it must determine the nature, amount, length of term, and manner of payment of the

award. See Tenn. Co de A nn. § 36 -5- 101 (d) (1) (19 96 & Su pp. 200 0). In making these de

terminat ions, cour ts must consider “all relevant factors,” including those set outin the statute. 1 Id. The two most important factors considered are the need of t he disadv antaged spouse andthe obligor spouse’s ab il ity to pay

. See Robertson v. Robertson , 76 S.W.3d 337, 342 (Tenn. 2002). The statute also indicates the General Assembly ’s preference for aw arding rehabilitative alimony rather than alimony

in solido or pe ri od ic al im on y. See Tenn. Code Ann. § 36-5-101(d)(1) (1996 & Supp. 2000).
In awarding Ms. Perry re

habilitative alimony

in the amount of $700 per month, the trial court considered

the preference for re

habi litative a

lim ony as well as Ms. Perr y’s need a

nd Mr. Perry’s ability to pay. Howe

ver, the trial court used a somewhat novel approach to decide the duration of the award. Becau se the tri al court was unsur

e of Ms. Pe

rry ’s stated

in tent to retu rn to scho ol, it2 W hen a court awards rehabilit ative ali mony under T ennessee C ode A nnotated sec tion 36-5-10 1(d)(1 ), it must

con sid er the li sted factors to determine the amount of time i t will take to rehabili tate the economicallydisadvantage d spouse. See Tenn. Code Ann. § 36-5- 101(d)( 1) (1996 & Supp. 200 0); Burlew v. Burlew , 40 S.W.3d 465, 470 -71 (Tenn. 2001) (stati ng that t

he purpose of rehabilitative alimony i s to “aid the disad vantag ed sp ouse to be com e and rema in self- (con tinued ...) -4- awarded her two yea

rs of support as a “temporary ” award. T h e partie s were o rdered to return to court before the end of the two-y ear per iod. The tri al judge

would the

n review certain factor s to determine w hether the award should be continued. These fa ctors included Ms. Perry ’s needs, her return to school, he

r progr ess made at school , her g

rades, a nd any other re levant f actors. Neither pa rt y a ppealed these provisions of the trial court’s Final Decr ee of Divorce. Ac co rd in gl y, the propr

iety of the temporary

award is not properly

before us. The present case ar ises from Mr. Perry’s a

ppeal of the trial court’s May 11, 2001 order, which extended the decree’s initial alimony awar d. We must there

fore de termine t he standa rd to be a pplied in extending , or other

wise mo di fyi ng , t he tr ia l c ou rt ’s te mp or ar y, o pe n- en de d a wa rd of re ha bi li ta ti ve al im on y. TennesseeCode A nnot ated s ectio n 36-5 -101( d)(2) p rovid es the stand ard for modi fying a rehabilitative a

limony award. This statu

te provid es, An award of

rehabilitative, temporary

support andmaintena

nce shall remain in the court’s control for the duration of such award, and may b e increased, decreased, ter minated, extended, or otherw ise modified , upon a showing of

substantial and materia

l chang e in circumstance s. Tenn. Code Ann. § 36-5-101(d)(2) (1996 & Supp. 2000). T ennessee Code Annotated section 36-5-101(d)(2) places limita t ions on a court’s ability to extend, or otherwise modify , its initial rehabilitative alimony award. I n particular, it requires the court to make a

finding that a substantial andmateria

l chang e incircumst

ances e xists before the court may modify the awar

d. In determining whether a substant ial and mater ial change in ci rcumstan ces exists, a trial c ourt must ta ke into consideration the same factors that it considered in arriving at its initial alimony award, including the factors en umerat ed in Tennessee Code Annotated section 36-5-101(d)( 1). See Watters v. Watters , 22 S.W.3d 817, 821 (Tenn. Ct. App. 1999).
We decline to hold that the “temporary” nature o f the tria l c ourt’s award of rehabilitative alimony requ ir es less tha

n a finding of a su

bstantial and mate

rial cha nge in c ircumsta

nces. All awards of reha

bilitative alimony are, by definitio n, tempor ary and ope n-ended. These awards provide alimony for a limited per io d of time and are subject to modification. Tennessee Code Annotatedsection 36-5-101(d)(2) specifically state s that the award remains in thecontrol of the trial court for its duration. An awar

d of reha bilitative alimony that atte mpts to reserve the right to modify the award isan awar

d that m a y be

“incre ased, decreased, termina ted, extended, or o therwise modified.” Tenn. Code Ann. § 36-5-101(d)(2) (1996 & Supp. 2 000). Any such modifica tion requires a “substantial and material change in cir cumstances.” We express no opinion, however, as to th e p ro pr ie ty o f t he tr ia l c ou rt ’s or ig in al aw ar d o f r eh ab il it at iv e a li mo ny. 22 (.. .cont inu ed) suffi cient”). A “temporary” award may r un af oul of Tenness ee Code Annot ated section 36- 5-101(d) (1) i f the dur ati on of the award bears lit

tle relat ionshi p to the fact ors set forth in t

he sta tut e. -5- We hold that the standardfor modifying an award of rehabilitative alimony , which is set out in Tennessee Code Annotated section 36-5-101(d)(2) , applies to the trial cou rt’s alimony a

ward in this case. We

theref ore remand the c ase to the trial cou rt to determine whether a substantial and material change in circumstance s has been shown. Conclusion
We hold that a substantial andmateria l chang e in circumstance s must be shown in ord er to extend, or other

wisemodify, the trial court’stemporary, ope n-ended alimony a

ward. Therefore, we revers e the judgment of the Court of Appeals, and we rema nd the case to the trial court fo r p roceed ings consiste

nt with this o

pinion. Cos ts of this a

ppeal ar e taxed to th

e appell ee, Rick

i C

. Ch il ds Pe rr y, a nd he r s ur et y, f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

___________________________________ JANICE M. HOL DER, JUSTI

CE