# FILED
June 8, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) JUDITH ANN WARREN TAYLOR , ) Shelby Law No.

) 1050984 R.D. Plaintiff/Appellee. ) ) VS. ) C.A. No. 02A01-9706-CV-00112 ) MICHAEL RAYMOND TA YLOR , )

) Defendant/Appe

llant. ) )

______________________________________________________________________________ From the Circuit Co

urt of Shelby

County at Memp

his. Honorable Janice M. Holder, Judge

Marti L. Kaufman , MONROE, KAUFMAN & McGHEE, Memphis, Tennessee Attorney fo

r Defendant/App

ellant.
Stevan L. Black , Kimberly Harris Jordan , BLACK, BOBANGO & MORGAN, P.C., Memphis, Tennessee Attorney for Plaintiff/Appellee.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) HIGHERS, J. : (Concurs)JudithAnn Taylor (“Wife”) filed a complaint for divorce against Michael

Raymond Taylor (“Husband”) an

d also sought an in

ju nction prohibiting Husband from dissipating marital assets. Husband fil

ed an answer and counter-complaint for divorce. The trial court granted Wife the divorce on the grounds of inappropriate marital conduct and awarded her r ehab ili tat ive ali mon y, partial attorney fees, and 60% of the marital assets. Husband appeals and raises the following issues: whether the trial court erred (1) in awarding Wife rehabilitative alimony of $1,300 per month for 60 months; (2) in ordering Husband to pay $20,000 as ali mon y in solido for Wife’s attorney fees; (3) in ordering Husband to pay a portion of Wife’s health insurance coverage; (4

) inrequiring Husband to maintain a life insurance policy which exceeds the total amount of child suppor t o wed; and (5) in dividing the marital property of the parties. Wife submits the additional issue of whether she is due attorney fees on appeal. For the reasons stated be low, we find n o er ror and affirm the trial court’s judgmen

t in all respects.

The parties were married in July, 1978 and s

eparated in

January, 1996. At the time of the trial below, Husband was approximately 41 year s old and Wife was approximately 38 years old. The parties have two children who are now approximately 16 and 13 yea rs of age. The trial court awarded custody of both children to Wife.

Husbandhas a Bachelor’s Degree in Business

Administration fro

m Oklahoma State Uni vers ity. At the time of the divorce, Husband was the Regional Director of Business Development for APS with a salary of Seventy-Seven Thousa nd Six Hundred Dollars ($77,600) per year. Husband hadearned more substan tial compensation in re cent year s, including appr

oximately $160,000 in 1989, $100,506 in

1993, and $133,685 in 1994. Much of Husband’s compensation was in the form of bonuses, the last of which was in March, 1996 for $17,500. Husband testified the company he work ed for w as bought out and that he had to change positions to keep his job. As a result of the change of position, Husband claims he is no longer entitled to any bonuses.

Wife attended Oklahoma State University for a y ear and a half, but does not have a college degree. Wife’s work experi ence during the

parties’ marria

ge is varied. Before the birth of the parties’ first c

hild, Wife worked f

ull-time as a

receptionist. After the birth of the children, Wifeworkedas a fill-in receptionist for a medical clinic where she earned $10 per hour. After the parties’ separation, Wife took a job working 16 hours a week at $6.00 per

hour as a file clerk at Federated Insurance Company. Wife testified that she did not seek a full-time position because she felt it was necessary to keep the children’s lives as stable as possible during the divor ce.

I. Rehabilitative A

limony

Husbandchallenges the trial court’s award of $1,300 per month in re habilitative alimony to Wife. It is well established that the appellate courts should give much deference to the trial court’s award of alimony. Jones v. Jones, 784 S.W.2d 349, 352 (Tenn. Ct. App. 1989). Nevertheless,

our review is de novo with a presumption of correctness for the factual findings of the trial court. Tenn.R.App.P. Rule 13(d).

Our legislature has clearly established a prefer ence f or rehabilit

ative alimony. T.C.A. § 36-5-101(d) (1) (Supp. 1997). Our courts have affirmed this legislative policy by awarding rehabilitative alimony whenever feasible. Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995), Self
v. Self, 861 S.W.2d 360, 361 (Tenn. 1993), Storey v. Storey, 835 S.W.2d 593, 597 (Tenn. Ct. App. 1992). The factors the c

ourt uses to deter

mine whether reh

abilitative alimony

is proper in

a given set of circumstan

ces are expounde

d in the statute as f

ollows:
(A) The relative ea

rning capacity

, obligatio

ns, needs, and financial resources of each party, includ in g income from pension, profit sharing o

r retirement pla

ns and all other sou

rces; (B) The relative education and training of each pa rty, th e ability and opportunity of e ach p arty to secure such education and training, and the

necessity of a party

to secure further education and training to improve such party's earning capac ity to a reasonable level; (C) The duration of the marriage; (D) T he ag e and men tal con dit ion of ea ch p art y; (E) The physical co

ndition of each pa

rty, includi

ng, but n o t limited to, physical

disability or

incapacity

due to a chronic debilitating disease; (F) The extent to which it would be undesir able for a party

to seek emplo ym ent outside the 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, ta

ngible and intangible; (H) The provision

s made with rega

rd to the marital pr

operty as defined in § 36-4-121;(I) The standard of living of the parties established during the marriage; (J) The extent to which each party has made such tangible and intangible contribut ions to th e marriage as monetary and homemaker contributions,

and tan gibl e and int angi ble con tri but ion s by a party to the education, training or increased earning pow er of the oth er pa rty; (K) The relative fault of

the parties in ca

ses where the co

urt, in its discretion, deems it appropriate to do so; and (L) Such other factors, including the tax consequences to each party, as a

re necessary

to consider the eq

uities between the

parties.

Tenn. Code Ann. § 36-5-101(d)(1)(A)-(L) (Supp. 1997).

Our review of the record convinces us the trial court properly considered

these factors in its award of rehabilitative alimony. Husband’s main contention with the trial court’s award is that the monthly amount he

must pay is too high given the relative financial position of the two parties. However, it is clear that Husband’s current earning capa

city and ove

rallfinancial position is much better than that of Wife. Even after furthering her education and increasing her marketable

skills, Wife will be at a significant economic disadvantage compared to Husband. Weighing this fact or withthe other

factors to be considered, we cannot say the trial court erred in awarding rehabilitative alimony in the amount of $1,300 per month for 60 months.
II. Attorney Fees

Husbandchallenges the trial court’s award of $20,000 ali mon y in solido to wife for attorney fees. The decision to award attorney fees

to a party in a divorce proceeding is within the sound discretion of the trial court and will not be disturbed on appeal except upon a clear showing of abuse of that discretion. Aaron, 909 S.W.2d at 411, accord Storey, 835 S.W.2d at 597.

Husband primarily contends that Wife was awarded suf

ficient assets

to pay her own attorney fees. The

trial cou rt award ed Wife 60% of the mar ital asse ts totaling

approxi mat ely $132,000. The trial court awarded Husband 40% of the assets totaling approximately $88,000. The trial court also allo

c ated to Husband all of the marital debts which totaled up to $31,000, not including Wife’s attorney fee award. The most significant d

ebt was a note

to Husband’s grandfatherwhich Husband valued at $21,200 and Wife valued at $10,000. The differen ce intheir respective valuations is due to a dispute as to whether Husband’s grandfather had agreed to re duce the note to include principal only.

In her r uli ng, t he t ria l ju dge s aid , “I a m no t on e to awar d at tor ney’s fees unn eces sar ily; I’m not one to award la

rge amounts of a

ttorney’s f

ees generally

. . . . In this

case, however, I can’t subscribe to that theory, . . .” We further note that the trial judge also considered the fa ct that Husbandhad used some of the marital assets to pay his individual attorney fees. This issue will be more fully d

eveloped later i

n this opinion. Given the circumstances which precipitated the award of attorney fees, we ca

nnot say th

e trial court abu

sed its discretion i

n awarding Wife

$20,000 in attorney fees.
III. Health Insurance Coverage

Husband’s third issue is whether the tri al c our t er red i n or deri ng Hu sba nd t o pa y a portion of Wife’s he

alth insurance c

overage. T.C.A. § 36-5-101(f)( 1) reads as follo ws:

The court may direct the acquisition or maintenanceof health insurance covering each child of the marriage and may order either party to pay all, or

each party

to pay a pro

rata sh are of, the health carecosts not paid by insurance proceeds. The court may also direct a party to pay the premiums for insurance insur ing the health care cos ts o f th e ot her p art y.

The statute gives the trial court broad discretion in determining whether to require one party to pay the entire health insurance premiums of the oth er pa rty. In this partic ular case, the tr

ial judge only required Husband to pay one half of Wife’s insurance premium. We find no err or.

IV. Life Insurance Coverage

Husbandalleges the trial court erred in requiring Husband to maintain a life insurance policy which exceeds the

total amount of chil

d support owed. Husband was ordered to pay $1,481per

month in child support until the youngest child, age 11 at the time of trial, reaches the age of 18. Husbandargues that the total amount of child support due, i.e., $124,404, is well below the $300,000
am ount of life in surance the tria l court forced hi

m to maintain to insur

e the payme

nt of his child support obligation.

The applicable s

tatute is T.C.A. § 36

-5-101(g) whic

h reads:

The co urt may direct either or both parties to designate the other party and the children of themarriage as beneficiaries under any existing policies insuring the life of either party and maintenance of existing policies insuring the life of either party, or the

purchase and maintenance of l

ife insurance a

nd designation of

beneficiaries
.

Husbanddoes not cite us to any supporting authori ty for hi s contention. We read nothing in the statute and find nothing i

n the case law which forces the trial court to limit the amount of Husband’s life insurance to the amount of child supp o rt ordered by the court. The court directed that the children were to be the irrevocable beneficiaries of this policy. The refore, contrary to Husband’s assertions, the de

athof Husband befor

e the expiration of

this policy wo

uld result in no windf

all to Wife.
V. The Division of Marital Property

“Trial courts have broa

d discretion in divid

ing the marital e

state in a div orce case. Accordingly, their decisions are entitled to grea t weight on appeal, and

are presumed to be

correct unless the evidence preponderates otherwise.” Mondelli v. Howard, 780 S.W.2d 769, 772 (Tenn. Ct. App. 1989) (citations omitted).

Husba n d challenges the

trial court’s 60/4

0 division of assets . Husband’s first subissue under

this category is that he alleges the trial court’s division was in reality 64.22% to Wife and35.77% to him. Husband’s calculation is inc orrect because

it fails to account

for approximately $30,000 he received from one-half of the sale of the marital residence. Once that amount is added to both Husband’s and Wife’s total assets, the percentage is very close to a 60/40 divi sion . Our courts have clearly stated that Tenn. Code Ann. § 36-4-121 (1996), the statute which authorizes thedivision of marital assets, does not require t he division of property to be equal in order to be equitable. Ellis v. Ellis, 748 S.W.2d 424, 427 (Tenn. 1988). This first subissue is without merit.

Husband’s second subissu e involves the trial cou rt’s allocation of 100% of the marital debt to Husband. Our co

urt in Mondelli, supra , spoke at length about the factors which aid the trial court in the allocation of marital debt. The court said:

Courts should apportion marital debts equitably in much the sameway that they div

ide marital asset

s. When practicab

le, the debts should follow the assets they purchased. Co urts shou ld consider the following factors when they divide marital debts: (1) which party incurred the debt and the debt’s purpose, (2) which party benefitted from incurring the debt, and ( 3) which party

is best able to assu

me and repay

the debt.

Mondelli , 780 S.W.2d at 773 (citations omitted). Furthermore, the Mondelli court refused to adopt
a “mechanical approach” which would require the trial court’s distribution of debt to mirror the same percentage the court used in the distribution of assets. Id
.

The record reveals that the trial court wa s thoroughl y familiar with the principles which guide the allocation of mari tal debts . From our revie w, it appears the

trial court prope

rly allocated the debts to Husband. The largest marita l debt, a note to

Husband’s grandfather, was for the benefit of both parties. However, given the dispute over the value of t he no te and Husband’s higher earning capacity, it was prope r for the trial court to assign this debt to Husband.

Husbandalso raises the issue that the trial court primarily used Wife’s valuation of marital assets instead of utilizing his valuation. The underlying issue here is one of credibility. The trial court obviously found Wife to be the more credible witness and we think the record s

upports this finding. Furthermore, the trial cour t has broad discretion in matters of credibility with which appellate court s are hesitant to interfere. Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996).

Husband’s third subi ssue charges the trial j udge wit h improperly consideringHusband’s use of a marital asset to pay personal debts. The asset at issue is an investment account which held approximately $63,000 at one time. The trial court ordered these funds to be deposited by Husband into a jointchecking account to ensure that the funds would not be dissipated prior to trial. Inst ead, Hus ban d de pos ite d th e fun ds i nto an i ndi vid ual chec kin g acc oun t in his nam e on ly. With the court’s permission, Husband spent a portion of these funds to retire a second mortgage on the marital residenc

e and to pay joint credit card debt. However, approximately $4,000 of the funds
were used to pay Husband’s individual attorney fees and the remaining balance was also depleted prior to trial.

The trial court heard testimony from Husband as to why he had disobeyed the cour t’s order by placing the funds

into an individual account rather than a joint account. Part of Husband’s justification related to his comp liance with confl

icting or confus

in g ins tructions from thecourtappoin ted Divorce Referee. After weighing all the evidence, the trial judg e elected not to fi n d Husband in c ontempt. However, the trial judge did consider the dissipation of this marital as se t when allocating the m

arital assets and

the marital debt.

In our view, this was within the trial court’s discretion and the

issue is without meri

t.
VI. Attorney Fees on Appeal

Wife requests the court award her reasonable

attorney fees on appeal. While Wife
was successful in defending each issue Husband raised on appeal, we do not feel that an award of attorney fees is warranted under the circumstances. Costs in this cause on appeal a re taxed to Hus ban d fo r wh ich exe cut ion may i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIGHERS, J. (Conc

urs)