### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 8, 2003 Se ssion LORRAINE M. MILLER v. BRUC E L. MILLER Appeal from the Chancery Court for Williamson County No. 28653 R. E. Lee Davies, Chancellor

No. M2002-02731-COA-R3-CV - Filed December 10, 2003

The trial court

awarded a divorce to a sixty -four year old woma

n with multiple health problems, and ordered her former husband to pay he r $ 70 0 p er mo nt h a s a li mo ny in futuro

. The husband argues on appeal that the trial court erred, beca use the wife was cap able o f work ing, and was t herefo re only entitled t o rehabilitative a

limony . We affir

m the tria l court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
P ATR ICIA J. C OTT RELL , J., delivered the opinion of the court, in which William C. Koch, Jr., P.J., M.S., and F RANK G. C LEMENT , J R ., J., joined. Ernest W. Williams; Anna E. Freeman, Franklin, Tennessee, for the appellant, Bruce L . Miller. Helen Sfikas Roger s; Lana L. L enning ton, Nash

ville, Te nnessee , for the

appelle e, Lo

rraine M. Miller. OPINION I. The Facts
Bruceand Lorraine

Miller first married in 1984. They subsequently divorced, but married again on July 29, 1991. There were no children from

either of these marriages, but L orraine Miller hada daughter and

two gra ndchildr en as the result of a still ea rlier ma rriag e. Ms. Mi ller is seven years olde

r than Mr. Miller. At the time of the 1991 marriage, Bruce Miller was unemploy ed, having been laid off from his job at General Motors. Shortly ther eafter, Lorr

aine M iller, who was working for Saturn Corporation, helped her husband find a job there too. In 19 94, the pa rties bou ght a

house in Spring Hill. The wife used $11,564 from an inheritance to cover the closing costs. With the agreement of-2-

her husband, she retired from Saturn in 1999 at the ag e of 62, a nd bega n collec ting soc ial secu

rity retirement benefits. Her monthly check at the time of trial was $573. The part ies apparently

got along fairly

well during the first few y ears of their s econ d marriage. But with the passage of time, Bruce Miller began fee ling discontented, and started to take notes as to things that bothered him abou t his wife. Mos t of these complain

ts had to do

with his wife’s purchas i ng habits, including buy ing “nonessentials” without checking with him first, and spending too much money on prese nts for her grandchildren. Ms. Miller admitted at trial th at a

lot of what she bought was probably unnecessary . The proof also showed that Mr. Miller himself spent signif ican tsums of money

on his own interests , including extensi ve monthly purchas es of com

ic books and

videotap es. In March of

2001, L orraine Miller mov ed out of t

he marita l home with

the in t ention of separating from her

husband, and went to New York where she could be closer to her sisters. She testified that she had also hoped that after shemoved, Mr. Miller would realize he missed her and ask her to come back. The parties agreed to divide some of their ma rital property a

t the time of the

ir separation. Among other things, they refinanced the marital home in order to extract the equity from it. Ms. Miller signed a quitclaim deed as part of the refinancing process. The r efinancing gener

ated $6 4, 39 3 i n c as h, wh ic h t he pa rt ie s d iv id ed eq ua ll y. About a month after

his wife l eft, Mr. Miller co ntacted Patricia Tinapple , a forme

r classma te who lived in Arizona . He flew

out to Arizona to see her, and they began an intimate relationship. He subsequently returned to Arizona on a frequent basis and paid for Ms. Tinapp le to fly

to Tennesseeto see h im. On one trip to Arizona, Mr. Miller spent $1,700 on a wedding ring. He testified that the ring was not for Ms. Tinapple, but for himself. When Lorraine Miller returned to Tennessee, she quickly discovered that she and her husband would

not be getting together ag ain. He remained in the mar

ital home, and she mo ved into government-subsidized

housing. Although the low rent of $162 pe

r month all owed Ms. Miller to stretch her soci al secur

ity check, her inco me was sti ll far fr om adequa

te for he r needs. By

the time of trial, she had completely de pleted the $32,000 she had received from the re financing of the marital home. On April 4, 2002, Lorraine Miller filed a B ill for Legal Separ ation on the ground of inapprop riate marital conduct. She asked the court to divide the marital property, a nd to award her al im on y, reasonable attorney fees, and discretionary

costs. The husband filed an Answer a nd Counterc laim

for Abso lute Divor

ce. He d id not state any g

rounds for divorce, but denied that he was guilty of inappropriate conduct. He also asked the cour t to deny his wife’s request for alimony and attorne y f ees.-3- II. Divorce Proceedings The hearing

was cond

ucted on S eptemb er 17, 20 02, and began with the wife’s attorney asking the court t o amend her complaint to make it one for absolute divorce ra ther than for separation. At the time of trial, Lorraine Miller wa s sixty-four y ears old, and Bruce Miller wa s f iftyseve n . Much of Mr. Miller’s testimony had to do with financial and property matters. His tax returns showed an income from Saturn of $45,665 in 1998, $56,434 in 1999, $60,000 in 2000, and $56, 520 in 2001. He had a vested pension from General Motors that entitled him to $1341 per month at the time

of his re tirement

. His Saturn 401(k) Individual Retirement Account ha d a value of $74,090.
In contrast, Lorraine Miller ha d no significant

income after her retirement from Saturn, a nd her retirem ent acc ount only

had a va lue of $15 ,110. Ms. Miller als o testifie d as to a long history of health problemsshe has suffer

ed, inclu ding a f

ailed stomach stap ling, pa ncreat itis, hy pothy roidism, andirritabl e bowel syndrome. Be cause of these problems, she testified that it would be difficult for her to hold down a

job. She sta

ted, howe ver, tha t she would

like to do v olunteer

work at a hospital. At the conclusion of the proof, the trial court announced its decision from the bench. The decision w as memorialized in the Final Decree of October 3, 2002. The court granted the wife ’ s motion to amend her Complaint, and awarded her a divorce on the ground

of adultery. Mr . Miller was allowed to keep the marital home, and made solely r esponsible for the mortgage. Both parties were awarded their own bank a ccounts andtheir own

retirem ent and pe

nsion bene

fits, except that Mr. Miller’s401(k) a

ccount w as to be divided equally be tween the parties, by

a Qualified

Domestic Re la ti on s O rd er if

ne ce ss ar y. Finally , the judg e found th at the wif e was in need of su

pport, and that

she was not capab le of economic rehabilitation because of her age and h er phy sical co ndition. Th e judge accord ingly ordered the husband t o pay $700 a m on th as al im on y in futuro . He also awarded the wife her attorney fees, in the amount of $8,000. This appeal followed. III. Alimony Mr. Miller contends on appeal that the trial court err ed in aw ar di ng hi s w ife a li mo ny in futuro

. He assert s she does no t need support because her expenses are low. He also notes the express legislative preference for rehabilitative alimony, a nd argues that h is for mer wi fe sho uld go to work to satisfy her unme t needs. He conclude s that her eco nomic situa tion warr ants at mos t a temporary a

ward of rehabilitative alimony , in an amount less than $700 per month. Alimony or spous al support is authorized by statute, Tenn. Code Ann. § 36-5- 101(a)(1), which gives courts discretion to order “ suitable s upport and maintenance of either spouse by the other spouse . . . according to the nature of the ca se and the

circumst ances of the part ies. . . .” There are no hardand fast rules for spousal support decisions, and such determinations require a “careful balan cing” of the relevant factors. Anderton v. Anderton , 988 S.W.2d 675, 682-83 (Tenn. Ct. App.1 The factors the cour t must consider

in se tti ng the a limony obligat ion are: (A) The relative earning capacity, obligations, needs and fin ancial resources of each party, including income from pen sion, profit sharing or retireme nt plans and all other so urces; (B) Th e relative educ ation a nd train ing of ea ch pa rty, t he abi lity and o ppo rtunity of ea ch pa rty to secure such education and traini ng, and the necessit y of a party to secure further educati on and training to imp rove such p arty’s earn ing cap acity to a r easo nab le level; (C) The durati on of th e marria ge; (D) Th e age and m ental co ndition of eac h par ty; (E) Th e phys ical co ndition of eac h par ty, incl uding, but not limi ted to, physi cal disab ility or incap acity due to a chr onic debil itat ing di sease; (F) The ext ent to wh ich it woul d be undes ira bl e f or a part y t o se ek e mplo ymen t ou ts 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 asset s of each party , both r eal and pers onal, t angibl e and int angibl e; (H) The prov isi ons made wit h reg ard t o the mari tal propert y as defi ned i n § 36-4- 121; (I) The st andard of l ivi ng of t he parti es est ablis hed during the marriage; (J) Th e exten t to which each party has m ade such tan gible and intangible contributions t o 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) Th e relative fault of the parti es in cases where t he court, in i ts discret

ion, deem s it app rop riate 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 equities between the parties.
Tenn. Cod e Ann. § 36-5-101(d)(1 ). -4- 1998). In de

termining whether to award support and the nature, amount and leng th of such supp ort, the court is to consider

all relevant factors, including those enumera ted in Tenn. Code Ann. § 36-5- 101(d)(1). 1
Decisions regarding the entitlement to spousal support, as well asthe amount and duration of spousal support, hinge on the unique facts of each c ase, and the court mus t weigh and bala nce all relevant factors. Robertson v. Robertson , 76 S.W.3d 337, 338 (Tenn. 200 2). Among these fa ctors, the two considered to be the m ost importa nt are the disadvantaged spouse’s need and the obligor spouse’s ability to pay

. Robertson , 76 S.W.3d at 34 2; Bogan v. Bogan , 60 S.W.3d 721, 730 (Tenn. 2001); Manis v. M

anis , 49 S.W.3d 29 5, 304 (Te nn. Ct. App . 2001); Anderton 988 S.W

. 2d at 682 (Tenn. Ct. App.1998). Of these two factors, the disadva nta ged spouse’s ne ed is the th reshold consideration, and the ne xt consider

ation is the abilit

y of the oblig or spouse

to provide

support.-5-

Aaron v. Aaron , 909 S.W.2d 408, 410 (Tenn. 1995) (quoting Cranford v . Cranford , 772 S.W.2d 48, 50) (Tenn. Ct. App. 1989)). The concept of rel ative economic disadvantage incorporate s the pr in ci pl es of

ne ed an d a bi li ty t o p ay. Among the statutory

factors to be considered in deciding whe ther to award alimony

are: the relative earning capac ity, obl iga tions, needs, and financial resources of ea ch party; the r

elative education and training of each party ; the ability and opportunity and necessity of

each party

to secure such education and training in order to improve such party’ s earning capacity to areasona

ble level; andthe assets of each party , whether they be separate assets or marital property awarded in the divorce. Tenn. Code Ann. § 36-5-101(d)(1). These f ac tors are relevant to the determinations of re la ti ve ec on om ic di sa dv an ta ge as we ll as ne ed an d a bi li ty t o p ay. Where relative

economic

disadvan tage e xists, the legislature has expressed a prefer ence for rehabilitative alimony

over long -term, open-en de d a li mo ny in futuro . Tenn. Code Ann. § 36-5- 101(d)( 1); Robertson , 76 S.W.3d a t 339-40; Burlew v. Burlew , 40 S.W.3d 465, 470 (Tenn. 2001); Crabtree v. Crabtree , 16 S.W.3d 356, 358 (Tenn. 2000). The purpose of an award of re habilitative alimony is to encourage a

divorced spouse to become self-sufficient. Robertson, 76 S.W.3d at 339- 40; Burlew , 40 S.W.3d a

t 471; Crabtree , 16 S.W.3d at 360. Reha bilitative alimony is approp riate where the spouse is eco nomica lly disadvantag ed, but where rehabilitation is possible by the grant of “reha bilitative, temporary

support and maintenance,” Tenn. Code Ann. § 36-5-101(d) (1), or where it is needed to provide tem porary inc o me to suppo

rt the disa

dvantag ed spouse

during the postdivorce economic adjustment. Robertson , 76 S.W.3d at 340-41.
In determining whether a disadvantag edspouse ca n be reha bilitated with short-term sup

port, the court is to

consider “every

relevant factor.” Id. at 340. Neither the standard of living the parties enjoyed during the marriage nor the income or earning potential of the other spouse can be used as the sole or determinative factor. Id .; Crabtree , 16 S.W.3d at 359. Where, considering all the relevant factor s, rehab ilitation isnot possibl e, the co urts shoul d not refr

ainfrom awarding long-term support when that support is appropriate under the statutory factor s. Robertson , 76 S.W.3d at 341- 42. The sta

tu tory prefe

rence for rehabilitative support does not entirely displace other forms of support. Id .; Anderton , 988 S.W.2d at 682. The support statute itself provides for the grant of an award of support on a l on g-term basis “where there is such relative economic disadvantage a nd rehabilitation is not fea sible in considera tion of all

releva nt facto rs. ” Tenn. Code Ann. § 36-5- 101(d)(1). The purp ose of al im on y in futurois to provide financial support to a spouse who cannot be rehabilitated. Burlew , 40 S.W.3d at 470-71.
In this case, Mr. Miller does not dispute that his former wife is economically disadvantaged relative to his own situation. The record shows that the wife’s current income from

Social Sec

urity is only $573 per month, or $6,876 per y ear. In contra st, Mr. Miller earns well over $50,000 per year, more than seven time s as much. At age 57, he ca n continue

to work a nd gene rate a good income for a number of

years. When he

finally retires, he

will receive a $1341 per

month pension check from General Motors, a s well as So cial Security . He also has time to

make add itional co ntribution s to his2 The trial court made i t cl ear th at i t expect ed Ms. Miller t o work at l east part ti me. -6- 401(k) that he will not have to share with his former wife. He lives in a thre e-bedr oom house, while she is in a one-bedroom government-subsidized apartment.
BruceMiller dis putes the trial c ourt’s fi ndin g that the wife “... was not capable of rehabilitation based on

her ag e, the fa

ct that she had previously retired and her prior job history.” The C ourt found that “while the Wife might be able to work part-time or for a few ho urs t o supplement

her income, that she could not support herself.” 2 When the trial court has set f orth its factual finding s in the record, we will presume the correctness of those findings so long as the evidence does not pr

eponder ateagains t them. Te

nn. R. App. P. 13(d); Bogan v. Bogan , 60 S.W.3d 721, 733 (Tenn. 200 1); Crabtree , 16 S.W.3d at 360. Based on our r eview of

the rec ord, we c onclude t hat the evidence

does not pr

eponder ate agains tthe trial court’s finding. To find otherwis e, we would have t o turn a blind eye to the r

ealities of the modern workplace in order to find that a sixty-four y

ear old woman who is not in the best of health , and who possesses limited skills, would be able to re-enter the workforce after an absence of a number of y ears, and

obtain a job that

pays her a

living wage. Under the circ umstances present in this case, we agree with the trial cour t that the wife is not capable of rehabilitation.
In addition, trial courts ha

ve broad discreti on to dete

rmine whe

ther spou sal suppor

t is needed and, if so, its nature, amount and duration. Burlew , 40 S.W.3d at 470. Ap pellate c ourts ar

e gene rally disinclined to second- guess a trial cou rt’s spou sal suppor

t decision unless it is not supported by the evidence or is contrary

to public policies reflected in applicable statutes. Bogan , 60 S.W.3d at 733; Kinard v. Kinard

, 986 S.W.2d 220, 23 4 (Tenn . Ct. App. 1998). Our role is to determine whether the award reflects a proper a pplication of the r elevant legal p rinciple s and that

it is not cle arly unreasonable. Bogan , 60 S.W.3d at 733. While the retirement and other assets awarded to Ms. Miller mig ht provide her with a cushion, she would

be requi red to de plete tho se asset s in order to maintain herself . In a ddition, ju st as the economic factors justify the sup port awa rded, so d o the othe r relev ant fac tors such

as Ms. Mi ll er ’s su bs ta nt ia l c on tr ib ut io n t o t he ma rr ia ge . W e a ff ir m t he tr ia l c ou rt ’s aw ar d o f a li mo ny. IV. Attorney Fees
Mr. Miller also argues tha t the trial court should not have ordered him to pay his wife’s attorney fees, because

th e p ro pe rt y di vi si on le ft he r w it h e no ug h c as h t o p ay h er ow n a tt or ne y. While our opinions may have sometimes see med to imply that an

award o f attorne

y f ees in a d ivorce c ase is only appropriate

when the division of

marital property ha s left one of the parties without sufficient funds to pay such fees, we believe it is more correct to say that an award

of attor ney fee s can be appropriate when the

obligee spouse does not ha

ve suffi cient fu

nds to pay

the attor ney fees and to meet his or her needs. See Koja v. Koja , 42 S.W.3d 94, 100 (Tenn. C t. App. 200 0); K inard , 986 S.W.2d at 23 6; Franklin v. Franklin , 746 S.W.2d 715, 719 (Tenn. Ct. App. 1987).-7-

Hi st or ic al ly, an awa

rd of attorney’s f

ees in divorce cases was based on the theor y that the wife was entitledto an award o f attorne y’ s fees because, w

here the husband p

rovided t he only financial support to the family, the awa rd of attorn

ey ’s feesin divorce

cases a llowed the

wife ac cess to the court system. I

n more recent years, it has become well settled that an award of attorney ’s fees in divorce cases is considered alimony or spo us al su pp or t, ge ne ra ll y ch ar ac te ri ze d a s a li mo ny in solido

. Yount v. Yount , 91 S.W.3d 777, 783 (Tenn. Ct. App. 2002); Miller v. Miller , 81 S.W.3d 771, 775 (Tenn. Ct. App. 2001); Wilder v. W ilder , 66 S.W.3d 892, 894 (Tenn. Ct. App. 2001). A number of cases cite as the basis for attorney ’s fees as an award of alimony Tenn . Code Ann. § 36-5- 101(a)(1), which authorizes courts to order “suitable support and maintenance of either spouse by the o ther spouse . . . according to the nature of the case and the circumstances of the pa rties. . . . ” See, e.g. , Mitts v. M

itts , 39 S.W.3d 142, 147 (Tenn. Ct . App. 200 0); Smithv. Smith , 912 S.W.2d 155, 160-61 (Tenn. Ct. Ap

p. 1995); Gilliam v. Gilliam , 776 S.W.2d 81, 86 (Tenn. Ct. App. 1988).
Becau se attorney’s f

ees are considered alimony or spousal support, an award of such fee s is subject to the same factors that must beconsidered in the award of any other type of a

limony. Yount , 91 S.W.3d at 78 3; Lindsey v. Lindsey , 976 S.W.2d 175, 181 (Tenn. Ct. App. 1997). Therefore, the statutory factors listedin Tenn. Code Ann. § 36-5-101(d)(1) are to be c onsidered in a determination of whether to award atto r ney’s fees. Langschmidt v. Langschmidt , 81 S.W.3d 741, 751 (Tenn. 2000); Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995). As with other

forms of s pousal sup

port, th e nee d of the spouse requesting the award of attorney’sfees is th

e single most important

factor , and the o

bligor s pouse’s a

bility to pay is also an importantconsideration. Miller , 81 S.W.3d at 775; Hazard v. Hazard, 833 S.W.2d 911, 917 (Tenn. Ct. App. 19 91). Cour

ts have he ld that in determining whether to award attorne y’s fee s as spousal support, the most important factors are the real need of the disadvantaged spouse, a demonstrated financial inability

to obtain c ounsel, a

nd the ability

of the obl igor spo use to pa y. Wilder , 66 S.W.3d at 895; Cranford, 772 S.W.2d at 50. In a recent opinion, the Supreme Court reaffirmed the holding in Fox v. Fox , 657 S.W.2d 747, 749 (Tenn. 1983), that an award of attorney ’s fees “is conditioned upon a lack of resources to prosecute or defend a suit in good faith . . .” and that such an a ward is to ensure access to the courts. Langschmidt , 81 S.W.3d at 751.
An award of attorney ’s fees as alimony is consideredto be within the sound discretion of the tr ial court Miller , 81 S.W.3d at 776; Loyd v. Loyd , 860 S.W.2d 409, 413 (Tenn. Ct. App. 1993)

. Co ns eq ue nt ly, such an award will not be reversed on appeal if that discretion is not abused. Yount , 91 S.W.3d at 783; Garfinkle v. Garfink

le , 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996); Lyon v. Lyon , 765 S.W. 2d 759 , 762- 63 (Te nn. C t. App . 1988 ). Alt hough other standar ds of review have been expressed in some cases, the Ten nes see Supreme Court has made it clear that “[t]he allowance of attorney’sfees is largely

in the discretion of the trial court, and the appellate court will not interfere except upon a clear showing of abuse of that discr etion.” Aaron , 909 S.W.2d at 411 (citi ng S torey v. Storey , 835 S.W.2d 593, 597 (Tenn. Ct. App. 1992) and Crouch v. Crouch , 53 Tenn. App. 594, 606, 385 S.W.2d 288, 293 (Tenn. Ct. App. 1964)).-8-

Under the abuse of discretion

standard, a

trial court’s ruling “will be upheld so long as reasonable minds can disagree as to the propriety of

the decision made.” A trial court abuses it s discre

tion only when it “a

pplie s an incorr ect legal standard, or reaches a decision

which is against logic or reasoning or that causes an injustic e to the party complain

ing.” T he abuse of discr etion standard doe s n o t permit the appella te court to substitut

e its judgment for t

hat of the trial cou rt. Eldridge v. Eldridge , 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted).
In the present case, Ms. Miller obviously does not have enough monthly income to pay the fees. Conseque

ntly , she woul d have to

signific antly

deplete the asse ts that she was awarded in order to pa y $ 8,000 in a

ttorney fees. We

do not beli eve the t

rial cou rt abuse d its discr

etion whe

n it protected her assets by or

dering Mr. Miller

to be responsible for those fees. Consequently , we affirm that award.
Ms. Miller also arg

ues that w e should a

ward he r the atto rney fees she has incur

red in responding to Mr. Miller’s appeal. We believe her arg ument is well-taken, since the same reasoning that supports the award of attorney fees at trial remains applicab le, and since s he would not have incurred those

fees if Mr. Miller

had not chosen to appeal the alimony award. We therefore order Mr. Miller to pay his former wife’s attorney fees onappeal after the trial court determines the c orrect amount. V. The judgment of

the trial court is affirmed. This cause is remanded to the Chancery

Court of Williamson County

for fur ther pro ceeding s consistent with this opi nion, including a determination of the attor ney fees on a ppeal tha t Mr. Mille

r should be obligated

to pay. The costs on appe al are taxed to the appellant, Bruce L. Miller.

___________________________________ PATRICIA J. COTTREL L, JUDGE