### IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE STEPHEN EARL CRABTREE v . NANCY CHOPPIN CRA BTREE Appeal by Permission from the Circuit Court for Davidson County

No. 96D-2149 Muriel Robinson, Judge

No. M1997-00262-SC-R11-CV Decided April 24, 2000

FOR PUBLICATION

We granted this

appeal to address whether a trial court may order concurrent or successive awards of alimony in futuro and rehabilitative alimony in the initial decree of divorce. We hold that the trial court erred in awarding alimony in futuro following a period of rehabilitative alimony. We modify the award

of alimony in this case to a single award of rehabilitative alimony in the amount of $2,500 per month for a period of five years. As provided by stat ute, the trial court will retain jurisdiction for the duration of the rehabilitative alimony award. The awards of attorney’s fees are affirmed, and the case is remanded for further proceedings consistent with this opinion.
Tenn. R. App. P. 11; Judgment of the Court of Appeals Affirmed in Part; Reversed in Part; Modified and Remanded
H OLDER , J., delivered the opinion of the cour

t, in whic h A ND ERSON , C.J., and D ROWOTA , B IRCH , and B ARKER , JJ., joined. Mike W. Binkley, Nashville, Tennessee, for the Appellant, Stephen Earl Crabtree. Edward M. Yarbrough, Nashville, Tennessee, for the Appellee, Nancy Choppin Crabtree
OPINION
The parties were married for twenty-three years. Nancy Choppin Crabtree was forty-three years old at the time

of the entry of the final decree of divorce. She graduated with highest honors from the University of Tennessee at Knoxville and beca me a certified public

accountant. Ms. Crabtree workedtwo years for the accounting firm of Ernst and Whinney. She then decided to leave her full-time employment position to start a family but continued to work out of he r home as a certified public accountant. In theyear prior to the divorce, she earned approximately $41,200 per year working thir

ty hours per week

. She had approxima

tely 100 clients.
St ephen Earl Crabtree was a stockbroker at J.C. Bradford. Mr. Crabtree’s gross inco m e1 The evidence demonstrates that Mr. Crabtree ea

rned $230,943 in

1991, $387,073 in 1992, $353,225 in 1993, $254,437 in 1994, $400,864 in 1995, and $417,034 in 1996.
-2- variedduring the six years prior to the divorce. 1 At the time of trial in 1997 his net monthly in

come was $13,582.71, including his partnership distribution. Both Mr. Crabtree and Ms. Crabtree enjoy good health.
The parties are the

parentsof two daughters. At the time of trial, Elizabeth Lee was nineteen years old and enrolled at

Georgetown Unive

rsity. Jennifer L

ynn was sixteen ye

ars old and enrolled at Harpeth Hall, a private school. Jennifer Lynn was expected to graduate from high school in 1999.
Mr. Crabtree admitted to adultery, and the divorce was granted on the stipulated grounds of inappropriate

marital conduct. Mr. Crabtree was awarded marital property valued

at approximately $465,000. Ms. Crabtree was awarded marital property valued at approximately $373,000 and child support in the amount of $1,3 12 per month. The tr ial court award ed rehabilitative alimony in the amount of $1,700 per month for five years to be followed by alimony in futuro in the amount of $1,200 per month until Ms. Crabt ree’s d eath or remarriage. Finally, the trial court ordered Mr. Crabtree to pay $7,500 of Ms. Crabtree’s attorney’s fees.
Mr. Crabtree appealed

the trial court’s award of alimony in futuro and the award of attorney’s fees. Ms. Crabtree raised an issue regarding child support. The Court of Appeals affirmed the trial court’s award of both alimony and attorney’s fees but remanded the case on the iss ue of child support. The appellate court ordered that on remand the trial court should apply the child support guidelines and that any deviation from the guidelines must

be supported by written findings. The parties do not appeal this is sue. The Court of A ppeals also awar

ded Ms. Cra btree additional attorney’s fees incurred on appeal. We granted review to address whethe r the order

of alimony in futuro following a period of rehabilitative alimony in the initial decree was error.
ANALYSIS
Mr. Crabtree argues that the trial court erred in awarding Ms. Crabtree alimony in futuro in addition to rehabilitative alimony. In support of this argument, he contends that she should receive only rehabilitativ

e alimony due to her

earning capac

ity as a certifie

d public accounta

nt.
The alimony and child support statutes are codified at Tenn. Code Ann. § 36-5-101, et. seq. Rehabilitative ali

mony is addressed i

n Tenn. Code Ann. § 3 6-5-101(d) (199 2) and provides:
It is the intent of the gen eral assembly that a spouse who is economically

disadvantaged, relative to the other sp ouse, be re habilitated whenever possible by the granting of an order fo r pa ym ent of rehabilitative, temporary support and maintenance. Where there is s uch relative ec onomic disadvanta

ge and rehabil

itatio n is not feasible in co

nsideration of al

l relevant facto

rs, including those-3- set out in th is subsection, then the court may grant an order for payment of support and maintenance on a long-term basis or until the death or remarriage of the recipient except as otherwise provided in subdivision (a)(3).
Id. Accordingly, the legislature has demons trate d a preference for an award of rehabilitative alimony to rehabilitate an economically disadvantaged spouse.
The legislature has provided statutory criteria to be employed when deter minin g the appropriate

form and duration of spousal support. Tenn. Code Ann. § 36-5-101(d)(1). When determining:
the nature, amount, length of term, and manner of

payment, the court shall consider all relevant factors, including: (A) The relative earning capac ity, obligations, needs, and financial resources of each party, includ ing income from pension, profit sharing or retirement plans and all other sources; (B) The relative education and training of each party, the ability and opportun it y of each party to secure such education and training, a nd the necessity of a party to secure further education and training to im prove such party’s earning capacity to a re

asonable level; (C) The duration of the marriage; (D) The age and mental condition of each party; (E) The physical condition of each party, includi ng, but not l imited to, physical disability or incapacity due to a c hroni c debilitating disease; (F) The extent to which it would be undesirable for a par ty to seek employment outside the home because such party will be custodian of a minor child of the marriage; (G) The s eparate assets of each party, both real and personal , tangible and intangible; (H) The provision made with regard to the marital property as defined in § 36-4-121;-4- (I) The standard of living of the parti

es e stablished during the marriage; (J) The extent to which each party has made such tangi ble and intangible contributions to the marri age as monetary and homemaker

contributions, and tangible and in tangible contributions by a party

to the education, training or increased earning power of the other party; (K) The relative fault of the parties in cases where the court, in its discretion, deems it appropriate to do so; and (L) Such other factors, including t he ta x consequences to each par ty, as are necessary to consider the equities between th e parties. Tenn. Code Ann. § 36-5-101(d)(1).
This Court previously addressed the application of Tenn. Code Ann. § 36-5-101(d)(1) in Self v. Self , 861 S.W.2d 360 (Tenn. 1993). In Self , we held that

§ 36-5-101 reflects an obvious legislative policy to eliminate the dependency of one ex-spouse upon the other and to relieve the parties of “imped

iments incident to the dissolved marriage.” Id. at 361. According ly, alimony in futuro should be awarde

d only when the tria

l court finds that “

economic rehab

ilitation isnotfeasible and long-term support is necessary.” Id.
The legislature amended Tenn. Code Ann. § 36-5-101 while the Self appeal was pend

ing in this Court. The amendme nt permitted modifications of rehabilitative alimony awards and provided:
An award of rehabilitative, temporary support and maintenance shall remain in the c ourt’s control for the

durati on o

f such award , and may be increased, decreased, terminated, extended, or oth erwise modified, upon a showing of substantial and mater ia l change in cir cumstances. . . . The recipient of the support and maint enance shall have the burden of proving that all reason abl e effortsat rehabilitation have been made and have been unsuc

cessful.
Tenn. Code Ann. § 36-5-101(d)(2) (emphasis added). This amendment, however, was inapplicable to our analysis

in Self due to the effec

tive date of the a

mendment. Nonethe

less, we recognized i

n Self that the amended f

orm of the statute p

rovides courts wit

h the authority

to order awards designed to accomplish the rehabilitation of a spouse. Self , 861 S.W.2d at 363. We noted that this provision would allow for a continued monitoring of the parties’ circum stances and would

provide trial cou

rts withmore flexibility in d

esigning suitable

financial arrangements for the dissolution of ma

rriages. Id.-5-

In this case, the Court of Appeals recognized that the award of

rehabilitative a

limony would assist Ms. Crabtree in realizing her full economic potential. The i nterme diate appellate court, however, was concerned that rehabilitative alimony would:

notplace her anywhere

near an equal f

ooting with Husband

nor will she be able to continue living in the manner in whichshe had become accustomed

during this twenty-three year marriage. The award of alimony in futuro will further assis ther in this regard and provide her with “closing in” money.
The court cited Aaron v. Aaron , 909 S.W.2d 408, 411 (Tenn. 1995), in support of its conclusion.
We believe that the Co

urt of Appeals’ reliance on Aaronwas misplaced. In Aaron this Court awarded alimony in futuro to a homemaker with a high school education who had never worked outside the home. This Court noted that although

the award would “

not put her in

the same position in which she was prior to the divorce, it will provide her with ‘closing in’ money; that is she will be enabled to more closely

approach her former economic position.” Aaron , 909 S.W.2d at 411. This statemen t, however, was intended neither to provide a new standard for awarding alimony nor t o suggest that every spouse should be entitled to be placed in the same financial conditionoccupied prior to the divorce. Aaron merely acknowle dged that, where rehabilit

ation is not

feasible, an award of alimony in futuro will not always be s ufficient to plac

e a disadvantage

d spouse in

the financial position occupied pre-divorce.
If an award of

rehabilitative a

limony is justified by

the parties’ circumstances, a trial court initially should award rehabilitative alimony only. An award of rehabilitative alimony pursuant to Tenn. Code A nn. § 36-5-101 must be predicated upon a finding that the recipient can be economically

rehabilitated. Once awarded, rehabilitative alimony may be modified if the recipient’s prospects for economic re

habilitation mater

ially change. If

rehabilitation is not feasible, the trial court may then make an award of alimony in futuro. Accordingly, a concurrent award of both types of alimony is inconsistent. At the time of the decree, a trial court must necessarily f ind that the recipient of alimony either

can be or cannot be rehabilitated although that determination is subject to later modification. Allowing concurrent awards of alimony in futuro and rehabilitative alimony would require a trial court to engage in an act of clairvoyance. The trial court would n ot only b e required to anticipate the duration necessary for rehabilitation but would also be requir ed to anticipate the future needs of a spouse who, it has been determined, can be rehabilitated.
We re cognize that a trial court has wide discretion in determining whether an award of alimony should be rehabilitative or in futuro. Appellate review of findings of fact by the trial court are de novo upon the record a ccompanied by a p

resumption of the c

orrectness

of the findings. See Tenn. R. App. P. 13(d). See also Hanover v. Hanover , 775 S.W.2d 612, 617 (Tenn. Ct. App. 1989) (amount of alimony awarded is largely a matter left to the discreti on of the trial court, and the appellate courts will not inter

fere except in t

he case of an ab

use of disc

retion). The trial court is required to consider the factors set forth at Tenn. Code Ann. § 36-5-101(d)(1)(A)--(L). In this case, the trial court state

d that it considere

d the entire rec

ord prior to its ruli

ng. It did not,however, make2 At trial, Mr. Crabt ree testifie

d that Ms. Crabtree had been working only part-time and undercharging her clients. He testified that she could increase her earnings by increasing her client base and by raising her fee for services.

3 The cost of private schooling and of the children’s c

ollege education

s will be paid

by Mr. Crabtree.

4 In cases in which there is a disparity between the relative earning capacities of the parties, a trial court al so ma y consider adjusting the award of marital assets to assist the disadvantaged spouse. Having made that adjustment, this factor then becomes one of those factors to be considered in determining the proper award of alimony. Tenn. Code Ann. § 36-5-101(d)(1)(H).
-6- findings of fact with

regard to the factors considered. Accordingly, there are no findings of fact that we may presume to be correct. We therefore must conduct our o wn independe nt review of the record to determine where the preponderance of the eviden ce lies. See Brooks v. Brooks , 992 S.W.2d 403, 405 (Tenn. 1999).
We conclude that an award of alimony in futuro in this case is not justified and does not recognizeor further the legislative purpose of encouraging divor ced s pouses to become selfsufficient. The trial court r ecognized that M

s. Cr abtree’s rehabilitation was feasible. That conclusion is supported by the record. Both parties have received suffi

cient education t

o enable them to compete in

the workforce. At the time of the decree, Mr. Crabtree’s earning capacity was greater than that of Ms. Crab tree. Tenn. C ode Ann. § 36-5-101(d)(1)(A). It is clear from the record, however, that Ms. Crabtree’s earning capacity exceeds her current earnings. Ms. Crabtree is a fortythree-year-o

ld college graduate w h o is a certified public accountant. Tenn. Code Ann. § 36-5-101(d)(1) (B), (D). Her sk ills were suffici

ent for her to

be employed by a large accounting firm. After leaving tha

t firm to start a

family, Ms. Crabtree worked part-time without interruption until the time of tria

l. At trial, Mr. Crabtree pro vided the only estim

ate of Ms. Crabtree’s earning capacity. He testified that she could earn between $65,000 and $100,000 annually. 2 There has been no testimony that Ms. Crabtree will need further training to “improve [her] earning capacity to

a reasonable level.” Tenn. Code Ann. § 36-5-101(d)(1)(B). Neither party has health p robl ems. Tenn. Code Ann. § 36-5-101(d)(1)(D), (E). With her younger daughter’s graduation from high school in 1999, Ms. Crabtree’s need to work part-time has diminished. 3 Tenn. Code Ann. § 36-5-101(d)(1)(F). Although Mr. Crabtree admitted to adultery, the divorce was granted on the stipulated grounds

of inappropriate

marital conduct.

There was no testimony concerning the relative fault of the parties. The trial court, accordingly, made no findings with regard to this factor. Tenn. Code Ann. § 36-5-101(d)(1)(K).
The division of marital property provided Ms. Crabtree with $373,000 , or appro ximately 45% of the parties’ a

ssets. Part of the a

ward was in the fo

rm of the marital residence, which was estimated to have a net value of $145,223. No appeal was taken from the trial cou rt’s division of the parties’ marital assets. Tenn. Code Ann. § 36-5-101(d)(1)(H). 4-7-

After reviewing the relevant statutory factors and the record in this case, we affirm the trial court’s award of rehab

ilitative alimony fo

r a period of five

years. While hold

ing that alimony in futuro is inappropriate at this time, we recognize that we have eliminated the income stream the trial court found was needed by Ms. Crabtree. We shall, therefore, modify the amount of the award of rehabilitative alimony to recognize the effect of our holding. Applying the factors set forth in Tenn. Code Ann. § 36-5-101(d)(1), we increase the trial court’s award of rehabilitative alimony from $1,700 per month for five years to $2,500 per month for five years. This increase in rehabilitative alimony will assist Ms. Crabtree in making the transition from part-time to full-time employment before her alimony is scheduled to end. As required by statute, the trial court will retain jurisdiction of the award of rehabilitative alimonyduring the pendency of the rehabilitative alimony award. The award of alimony in futuro is reversed.
CONCLUSION
We hold the trial court erred in awarding alimony in futuro f ollowing a period of rehabilitative alimony in the initial decree of divorce. We affi rm the trial court’s award of rehabilitative alimony for a period of five years. The amount of the award is increased to $2,500 per month. The award of ali

mony in futuro is revers

ed. As provided by

statute, the trial

court will retain jurisdiction for the durati on of the rehabilitative alimony award. We have reviewed the award of attorney's fees in this case, and we have found no abuse of discretion. The trial court's award of attorney’s fees in the amount of $7,500 is affirmed. The Court of Appeals awarded additional attorney ’s fees t o Ms. Crabtree and remanded the case to the trial court for a determination of the amount of that award. We affirm the Court of Appeals in this respect.
The case is remanded

to the trial court for further proceedings consistent with this opinion. The costs of the appea

l to this Court only sha

ll be assessed equally against Mr. and Ms. Crabtree for which execution may issue if necessary.