### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON October 16, 2003 Se ssion
EDWARD HOCHHA USER, III v. ANNELLE G. HOCHHAU SER
A Direct Appeal from the Chancery Court for Shelby County No. D30255-2 The Honorable Floyd Peete, Jr., Chancellor

No. W2003-00119-COA-R3-CV - Filed Novem ber 19, 2003

This is an a ppeal fr

om a fina l decre e of divor

ce, involving issu es of con curren t awards o f alimony in futuroand rehabilitative alimony, and an aw ardof at torne y f ees. Husba

nd appeal s. We
revers e in part , modify

and aff irm in par t.

Tenn. R. App.P. 3; Appeal as of Right; Judgment of the Chancery Court Reversed in Part, Modified and Affirmed in Part

W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in whichA LAN E. H IGHERS , J R . and H OLLY M. K IRBY , J., joined.

Jo e M. Dun can , Me mp hi s, F or A ppe ll ant , Ed war d Ho chh aus er, III Richard F. Vaughn, Memphis, For Appellee , Annelle G. Hochhauser

OPINION

Edward Hochhauser, II

I (“Husband,” or

“Appellant”) and

Annelle G. Hochhauser (“Wife,”
or “Appellee”) were married on August 1, 1986. Two childre n were born to themarriag e, Kimber ly Michelle Hochhauser (dob 7/23/87) and Edward Hoc hhauser, IV (dob

2/7/89). Wife has a degree in accounting from Mississippi State University. When she and Husband met, Wife was working in the tax department at Holiday I nn. Approximately a y

ear after the marriag e, Holiday I nn moved their base of operation. At that time, Wife began working part-time at Husband’ s dental practice and assumed primary re sponsibility for the household. Husband’s dental pra c tice thrived during the marri age and he set up three offices in the Memphis a

rea and other of fices in N ashville, Knoxville and Sey mour, Ten

nessee, and also in Birming ham and B iloxi. The out of state businesses did not make a p ro fi t a nd Hu sb an d e ve nt ua ll y fi le d f or ba nk ru pt cy. Husband s old the pr ofitable Tennessee offices to American Dental Partners and bec ame one o f their e mployees. At th e tim e of th e heari ng, both parties agreed that Husband’s g ross income was $150,000 per year.-2-

On February

11, 1999, Husband filed a Complaint for Divorce against Wife, a lleging irreco ncilable

differences. On March 18, 1999, Wife filed an A nswer to Husband’s Complaint and
a Cou nter-Com

plaint for Divorce , alleg ing inap

propria te marita l conduct and irreconcila

ble differe nces. By Order o f Augus t 18, 1999, Husband w as allowed to amend his orig inal comp laint. Husbandfiled his Amended Complaint on August 18, 1999. The Amended Complaint avers additional grounds of cruel and inhuman treatment, and inapp ropriate ma rital conduct on the part of Wife. On Se

ptember 24, 1999, t

he trial c ourt e ntered a Consent Order o n Tempora

ry Support. Wife filed her Answer to the Amended Complaint on October 14, 1999.

In January

2000, Wife

took a job with Bean -Iso n CPAs and Co nsultants. At the time of trial, Wife worked approximately 1,500 hours per year a t this job, at an hour

ly rate of $16.35 (i.e. Wife earned approximately $25,00 0 pe r year ). Wife is not a CPA and, at the time of trial, needed an additional nineteen (19) course hours to be eligible to sit for her CPA license.

This matter w as hear

d by the trial court on O ctober 4 , 2001. B oth par ties were forty -nine (49) ye ars old a

t the time of the hearing. A Final Dec ree of Absolute Divorce was entered on May 21, 2002.

This cause c ame on to b e heard before the Honor

able Floy d Peete, Jr., Chancellor of Part II of the Chan cery Court of Shelby Co un ty, Tenness ee, stat

ement o f counse

l repre senting

the part ies, upon the testimon y of t

he parties and their witnesses, and upon the entire record in this cause. From all of which it appears to theCourt that a divorc e should be granted to both parties pursuant t o T.C.A. §36-4-129 in accordance with the terms and conditions set out herein: IT IS, THEREFORE, ORDERED, ADJUDG ED AND DECREED: 1. A Final Decre e of Divo rce be a nd is hereby a

warded to the parties herein pursuant to T.C.A. §36-4-129, and the bonds of matrimony

heretofore existing between t he parties be and they

are hereby dissolved. 2. The parties be and a re her eby dec lared to be the joint custodians of their minor children as expressly provide d in the Permanent

Parenting Plan entered in this cause, with Annelle G. Hochhauser

(herei nafter “Wife ”) bein g d e signated as the primary custodian parent. Edward Hochha use r, II I (hereinaf

ter “Husband”) shall rec eive visit

ation priv ileges

. 3. Begi nning January 1, 2002, Husba nd be and is hereby ordered to pay to Wife the sum of $2,737 per month as child support for both o f the minor

childre n of the pa

rties. 4. Beginning April 1, 2002, Husband be and is hereby ordered to pay to Wife re

habili tative al

imony in an amou

nt not to1 This paragr aph was subs equentl y amended by Order of September 13, 2002, s ee infra

. -3- exceedFive Hundred ($500) Dollars per mo nth for a

period not to exceedfive (5) y

ears pr ovided Wif

e is activ ely

pursuing a licens e to become a Certif

ied Pu blic Accountant. Wife shall provide documentation to Husband twice a y ear itemizing the expenses incurred in pursuit of

her CPA license. Additiona lly, Husband s hall pay Wife t he sum of One Thousand Five Hundred ($1,500) Dollar s pe r mo nt h a s a li mo ny in futuro , and said alimony shall be pa i d
concurr ently withthe rehabilitative a

limony . When Wife

is eligib le to receive Social Secu rit y be ne fi ts , H us ba nd ’s al im on y in futuro obligation s hall be reduce d dollar f or dollar in accor dance w ith Wi fe’ s be ne fi ts . U nd er no ci rc um st an ce s s ha ll Wi fe ’s al im on y in futuro be less that $500 per month. 1 5. The escrow account in the initial amount of $3,000 be and the same is hereb y e qually

divided be

tween the parties. 6. Husband shall and is hereby obligated to reimburse Wife for seventy (70%)percent of her reasonable attorney

fees and expert fees incurred in this cause. 7. Husband shall maintain Four Hund red Thousand ($400,000) Dollars of term life insurance designating the parties minor children as irrevocable beneficia ries with Wife as trustee for Two Hundred Thousand

($200,000) Dollars and Wife as irrev ocable benefic iary

for Two H

undred T housand ( $200,000) Dollars. 8. Husband shall provide Cobra be nefits to Wife for a period of 36 month s at his co st. 9. Each party sha ll ret ain th ose ch eckin g and/orsaving s accoun ts in thei r respec tive name s, and both parties s hall expre ssly waive a ny interest in the othe

rs checking an d/or savings ac counts. 10. The Pers p ective Fixed and Variable Annuity ...shall be awarded to Wife. 11. Husband s hall reta

in sole title

and e xclusive ownership in his dental pr

actice , and Wife

shall wai ve any

interest in this asset

. Husbandshall further be re spon sible for indemnifying and holding Wife harmlessf

or an y indebtedne ss or oblig ation ar ising fr om his ownersh ip intere st. 12. The parties shalldivide eq ually the proc eeds fr

om the sale of the R aleigh Do ctor’s Ce nter. The

costs of th

e upkee p of said facility pending

sale shall be paid by Husband, but shall be a djusted
so that the p arties share equally in said expenses and Husba nd be given proper credit when the proc eeds are divided. 13. The 1994 Ho nda Civic shall be retained by Wife, a nd Husband shall execute the necessary documents to transfer t

he vehicl e-4- to Wife and indemnify

and hold Wif

e harmle ss for an

y in debtedne ss still owing on the vehicle not discharged in Husba nd’s Chapter 7 ba nk ru pt cy. 1 4. Wife shall be r

esponsibl e for pa

yin g the cr

edit car ds in her name, and Husband shall be responsible for the debts to Nations Bank (1997 Chrysler Town & Co untry Van) in the a mount of FourteenThousand Six Hundred Fifty-two ($14,6 52) Dollars and Matsco in the amount of One Hundred Fifty -eight

Thousa nd Thre e HundredThirty-five ($158,335) Dollars remaining as contingent liabilities to Wife pending the di scharg eability determin ation in Husband’s Chapter 7 bankrup tcy . Each pa rty shall indemn ify and hold the other harmless forany obligat ion that e ither is r esponsibl e for paying

. 15. The parties shall divide equally the fr equent fly er miles. 16. The court

costs be a nd are he reby equally divided a gainst both of the parties for all of which execution issue.
Husband filed a Motion to Alter or Amend Judgment on June 18, 2002. On June 21, 2002, Wife

filed a Re sponse

to Husband’s Motion to Alter or Amend Judgment. An “Order
on Motion to Alter or

Amend Judgment” was entered on September 13, 2002. Parag raph 4 of the Final Decree a s follows:

4. Begin

ning Apr il 1 , 2002, Husband be and is hereby ordered to pay Wife reha

bilitative alimonyin an amou nt not to exceed Five Hundred ($500) Dollars per month for a period not to exceed five (5) yea

rs provided Wife is active ly pursuing a licens e to beco me a Certifie d Public Ac countant

. Wife shall provide document ation to Husb and twice a y

ear item izing the expenses incurre d in pursuit o f herCPA l icense. Additionally, Husband sha ll pay to Wife the s u m of Five Hundred ($500) Dollars per month as alimony in futuro , and said alimony sha

ll be p aid concurrently

with the rehabilitative alimony. When

the parties children reach majority and Husband no longer ha s a ch il d s up po rt ob li ga ti on , H us ba nd ’s al im on y in fut uro obligation shallbe increased to Seven Hundred Fifty

($750) Dollars per month.

All other as pects of the Final Decree of Absolute Divorce not heretof ore ref erenced shall re

main in full force

and eff ect.

Husbandappeals from the Final Decree of Divorce as modified . He raises the following issues for review as stated in his brief:

Issue I-5- Did the tr ial cour t err in a warding Mrs. Hochhauser

both
re ha bi li ta ti ve al im on y an d a li mo ny in futuroat the same time?

Issu e II Did the trial court err in awarding Mrs. Hoc hhauser rehabilitative alimony for five ( 5) year s rather than two (2) years, which was the time that both she and her employe r testified that it would take for her to obt ain the sufficien

t educat ion to sit fo

r her Cer tified Pub lic Account ant exam?

Issu e III

Di d t he tr ia l c ou rt er r i n a wa rd in g M rs . H oc hh au se r a li mo ny in futuro when the

re was n o finding

by t he trial c ourt that s he could not be economically r

ehabilitated?

Issu e IV Did the trial court err in ordering Dr. Hoc hhauser to pay

70 percent of Mrs. Hochhauser’s legal fees and suit expenses when she received all of the marital assets, and he received none of the marital a ssets?
Wife raises the following additional issues as stated in her brief:

1. Did the

trial cou rt err in granting Dr. H ochhaus er’s Moti on to Al te r o r A me nd Ju dg me nt th er eb y re du ci ng th e a li mo ny in futuro from $1,500 per month to $500.00 per month?

2. Should Mr s. Hochha

user be a warded her atto rney fees and costs in defending thisappeal?
We will address the issues concerning the trial court’s aw ard of both rehabilitative al im on y an d a li mo ny in futuro, in cl ud in g t he am ou nt s a nd du ra ti on s t he re of , c on cu rr en tl y. We first note that, since this c ase wastried by a court s itting without a jur y, w e review the ca se de novo upon the record with a presumption of correctness of the findings of fact by

the trial court. Unless the evidence preponderate s against the findings, we must affirm, absent er ror of law. See Tenn. R. App. P. 13(d).

Husband contends that the trial court erred in awar ding Wife rehabilitative alimony and al im on y in futuroat the same time. Specifically , he asserts that Wife should not have been
aw ar de d a li mo ny in futuroat all because neither the facts nor the tria l court’s ruling found that2 W e note tha t T.C.A. §36-5- 101(d)( 1) was subs equent ly amended t o inc lude the fol lowi ng: “An aw ard of perio dic alimo ny may b e ma de eith er i n add ition to a rehab ilitation aw ard, w here a spou se ma y be p artially rehabi li tat ed.. .or ins tead of a rehabilit ation award, where feasible.” See T.C.A. §36 -5-101(d)(1)(C)(Supp. 20 03). The Notes to this ame nde d sec tion ind icate tha t the am end men ts “shall ap ply to an y pendi ng cas e in whi ch t he ju dgment of the trial court has not become final by June 17, 2003.” Since the Fi nal Decree of Divorce in this case beca me fina l well befo re Jun e 17 , 200 3, the a men dme nts to §3 6-5-1 01( d)(1 ) are no t app licable

. -6- Wife was not able to be rehabilitated from an economic standpoint. T.C.A. § 36-5-101(d) (1) (2001) w as in full f

orce and effect at the time that the F

inal Dec ree of D ivorce w as gra

nted in this
cause on May 21, 2002. T .C.A. § 36- 5-101(d) (1) (200 1) read s, in rele vant par t, as follo ws: (d)( 1) It is the intent of the gener al assembly that a spouse w ho i s economic ally

disadvantag ed, re lative to the other spouse, be rehabilitatedwhene v er possible by the g ranting of an order for payment of rehabilitative, temporary s upport and maintenance. Where the re is such relative eco nomic disadvantage and rehabilitation is not feasible in consideration of all releva nt facto rs, inclu ding thos e set out in this sub section , then the court may g rant an order for payment of support

and maintenance on a long-term basis or until the death or rem arriage of the recipient e xcept as ot

herwise provided in subdivision (a)(3). Rehabilitative supportand maint enance is a separa te class of

spousal su

pport as d

istinguis h ed fr om alimony in solido and periodic alimony. In determining whe ther the granting of
an order f

or pay ment of su

pport and

maintena

nce to a p arty

is appropriate, a nd i n determ ining the nature, amount, le

ngth of t erm, and manner

of pay ment, the court sha ll conside r all releva nt facto rs, inclu ding: 2
(A) The rela

tive ear ning ca pacit y, obligations, needs, and financial
resources of each party , i n cluding income f

rom pensi on, profi

t sharing or retir ement pla ns and all other sou rces; (B) The relative education and training of each party , the ability and opportuni ty of each pa rty to secure such education and training, a nd the necessity o f a part

y to secure further educati on and tra

ining to improve s uch part

y’ s earnin g capa

city to a rea sonable l evel; (C) The duration of the marriage; (D ) T he ag e a nd me nt al co nd it io n o f e ac h p ar ty; (E) The physical c ondition of eachparty, including , butnot limited to, physical disability

or incapacity

due to chronic debilitating disease; (F) The extent to which it would be undesirab le for a party to seek employment

outside the home bec ause such party will be custodian of a minor child of the marriage; (G) The separate assets of each party , both real and persona l, tangi ble and intangible;-7- (H) The provisions made with regard to m arital property as de fined in § 36-4-121; (I ) The standard of living of the parties established duri ng th e marriage; (J) T he extent to which each party has made such tangible an d intangi ble contr ibut ions to th e marri age as monetary a nd homemaker contribu tions, and tangibl e and inta ngible c ontributio ns by

a party to the education, tr ai ni ng or in cr ea se d e ar ni ng po we r o f t he ot he r p ar ty; ( K) the relative fault of the parties in cases wher e the court, in i t s discretion, deems it appropriate to do so; and (L) Such other factors, including tax consequences to each party , as are nec essary

to conside

r the equ ities betw een the p arties.

The question of whether the unamended T.C.A. §36-5-101(d) (1), see supra , allowed a tr ia l c ou rt to or de r c on cu rr en t o r s uc ce ss iv e a wa rd s o f r eh ab il it at iv e a li mo ny a nd al im on y in futuro was addressed by

our Supreme Court in the case of Crabtree v. Crabtree , 16 S.W. 3d 356 (Tenn. 2000). Mrs. Crabtree was a Certified Public Acc ountant and had worked for the
accoun ting fir m of Ernst

and Whinne

y f or two y ears before le aving f

ull-time e mploy ment to become a homemake

r. In the year pri or to divor

ce, Mrs. Crabtre e worke d approxima tely thirty (30) h ours p er week . Mr. C rabtr ee was a stock broke r with J.C . Bradf ord an d his annua l earni ngs averaged $340,596. The trial cour t ordered rehabilitative alimony in the amount of $1,700 per
mo nt h f or fi ve (5 ) ye ar s f ol lo we d b y al im on y in futuroin the amount of $1,2 00 per mon th until Mrs. Crabtree’s death or remarria ge. The Supreme Court, in Crabtree , acknowledged that the Tennessee legislature had, in the rehabilitative alimony statute, “de monstrated a preference for an award of rehabilitative alimony to rehabilitate an economically disadvantaged spouse.” 16 S.W.3d 357, 358. In r elevant part, the Supreme C ourt held

as follow s:
If an award of r

e habilitat ive alimon

y isjustified

by t he parti es’ circumst ance s, a trial court initially should awar d rehabilitative alimony only . An awa rd of re habilitat ive alimon

y pu rsuant to Tenn.Code Ann § 36-5-101 must be predicated upon a find ing t hat the recipient can be economically rehabilitated . Onc e awarded, rehabilitative alimony may be modified if the recipient’s pr ospects f or economic rehabilitatio n m aterially cha nge. If rehabilitation is not feasible , the trial

court may then make an award of alimony in futuro. Accord ingly, a concurre

nt award of b oth types o f alimony is inconsistent

. At

the time of the decree, a trial court mus t necess arily find that the r

ecipien t of alimony either ca

n be or cannot be rehabilitatedalthou gh that determination is subject to later modification. Allowing concurrent awards of a limony in futuroand-8- rehabilitative alimony

would require a trial court

to engage in an act of clairvoyanc e. The trial court would not only be require d to anticipa te the duration necessary

for rehabilitation but

would also be requ ired t o anticipate the future needs of a spouse who, it has bee n determined, can be rehabilitated.

Id. at 360 (emphasis added).
Under the Supreme Court’s holding in Crabtree and the plain language of T.C.A. §36- 5- 101(d)(1)(2001), the trial court erred in making a concurrent award of both reha bilitative alimony
an d a li mo ny in futuro . The question now becomes whether Mrs. Hochhauser is capable of being economically re

habilitated. If so, an awar d of rehabilitative alimony a lone is correct. If not, then
an aw ar d o f a li mo ny in futuroalone is correct. We turn to the relevant facts in record.
From our reading of the rec ord, it appears that Wife can be economically rehabilitated. She has a bachelor’s degree in accounting, she has been able to proc ure employment with the
accoun ting fir m of Bea n-Is on and, f

rom all fa cts in rec ord, she a

ppears t o be motiva

ted to continue her educ ation and

to sit for h

er CPA exam . The re al issue ishow long it will take

Mrs. Hochhau ser to ac

hieve the se goa

ls. Husba nd argues that Wif

e could be

fully rehabil itated within two (2) yea

rs. Specifically, Husba

nd argues that Mrs. Hochhauser could c omplete the nineteen (19) additional hours necessary to allow her to sit for her CPA exam by taking three hours per
semes ter fo r two years . We d isagre e with Husba nd’s a rgumen t for s everal reason s. Alt hough Mrs. Hochhauser

could com

plete he r course work in tw o ye ars, if sh

e attend s classe s in the fa ll, spring, and summe

r semeste rs, this y ear-r ound aca demic schedule w ould be dif ficult at best considering that she is the primary parent of a twelve and a fourtee n year old. This fa

ct, coupled with Mrs. H ochhaus er’s pa rt-time w ork with B ean-I son would make such an acad emic schedule very difficul t at best. R

ealistic ally , it will tak

e Mrs. Ho chhause

r at leas t three y

ears to c omplete her hours, if she attends classes during two semester s each ye ar. Also, it is a matter of common knowledg e that the

CPA exam is dif

ficult. Mr s. Hochha

user tes tified tha

t she sat f or the te st previous ly in

1981 or 19 82. At tha

t time, she

passed on

e of the f our part s but rec eived no c redit for that p art since

the requ irement, at that time , was tha t the take r had to pa ss at leas t two part s in order to be give n any credit. Conseque

ntly , when she

does sit fo

r the CPA e

xam, Mrs. Hochhau ser will b e at squa re one. Mickey

Ison , manag ing par

tner of B ean-I son CPAs & Consultants testified that only a very few people pass all four parts the first time they sit and that passing the exam often takes “two, three four sittings.” F or the foregoing rea sons, we find that the trial court did not err in awarding Wife r

ehabilita tive alimo ny f

or a per iod of fiv e (5) y

ears. Turning to the amount of re

habilitat ive alimon

y a warded , we note

that ther e is no dispute in the record that Mr. Hochhauser has a g reater earning ca

pacity than Mrs. Hoc

hhauser, a fact which he admits, to wit:
Q. You wou

ld agree, Dr. Ho chhause

r, that y our ear ning ca pacity is consider ably great er than t hat of y our wife ; corre ct?-9- A. I t hink it’s g

reater than her s. It is also undisputed that Wife currently earns approximately $25,000 per year a nd that Husband currently

earns $150,000 per year. Given the discrepancy in the parties’ incomes, the discrepancy

in their current levels of education and their respective earning capacities, we find that the amount of rehabilitative alimony should be r aised to $2,000 per month.
Wife’s Attorney F

ees Husband asserts that he should not have been ordered to pa y seventy (70%) percent of Wi fe ’s le ga l fee s It is we ll se tt le d t ha t a n a wa rd of at to rn ey f

ee s c on st it ut es al im on y in solido

. See Herre

ra v. Herr

era , 944 S.W.2d 3 79, 390 (Tenn.Ct.Ap p.1996). The dec ision whet her to award attorney s’ fees is within the sound discretion of the trial court and “will not be disturbed upon appeal unless the evidence prepondera tes against such a decision.” Kincaid v. Kincaid , 912 S.W.2d 140, 1 44 (Tenn .Ct.App.1 995); see also Rule 13(d) Tenn. R. App. P. As with any a limony
aw ar d, in de ci di ng wh et he r t o a wa rd at to rn ey’ s fee s a s a li mo ny in solido , the tria l court sh ould consider the relevant factors enumera ted in T.C.A. § 36-5-101(d), see supra . A spouse with adequate property

and income is not entitled to an award of alimony to pay attorney s’ fees and expenses. Umstot v. Umstot , 968 S.W.2d 8 19, 824 (Tenn.Ct.Ap p.1997); Duncan v. Duncan , 686 S.W.2d 56 8, 573 (Te nn.Ct.App .1984). T

hese aw ards ar

e approp riate on ly w hen the sp ouse seeking them lacks sufficient funds to pay his or her own legal expenses, Houghland v. Houghland , 844 S.W.2d 619, 623 (Tenn.Ct.App.1992), or would be required to deplete his or her resources in order to pay these expenses. Harwell v. Harwell , 612 S.W.2d 182, 185 (Tenn. Ct. App 1980). Thus, where the wife has demonstrated that she is financ ially unable to procur e counsel, and where the husband has the ability to pay, the court may

properly orde

r the husband to pay the wife’ s attorney’s fees. Harwell v. Harwell , 612 S.W.2d 182, 185 (Tenn.Ct.App.1980); Palmer v. Palmer , 562 S.W.2d 8 33, 839 (Tenn.Ct.Ap p.1977); Ligon v. Ligon , 556 S.W.2d 763, 768 (Tenn.Ct.App.1977).
We have discussed, supra , the rel ative ea rning c apacity

of the pa rties, the fact tha t Mrs. Hochhauser makes considerably less than Mr. Hochhauser at present, the respective education of each party , and the primary responsibility Mrs. Hochhauser has for the minor children, which limits her ability to work full time. The facts of this case , when viewed in light of those factors outlined in

T.C.A. § 36 -5-101( d), do not p reponde rate ag ainst the t

rial cou rt’s find ing on thi s issue. We, theref

ore, af firm.

Wife also raises an issue as to whether she is entitled to an award of a ttorney fee s incurred in defending this appeal. Considering the division of marital property a nd the respective income of the parties, we believe it is appropriate for the parties to pay the

ir own attorney f

ees and costsincurre d on appe al.
For the foregoing r

easons, we reverse the order of the trial court awarding Wife alimony in futuro . We modify the awar d of rehabilitative alimony to $2,000 per month for a period of-10-

five (5) ye ars. The Order of the trial court is affir med in all other respects. Costs of this appeal
are ass essed one -half to A ppellant , Edward

Hochhau ser, I

II and his sur

ety and one- half to Appellee, Annelle G. Hochhauser. The c ase is remanded to the trial court for such other pr oc ee di ng s a s m ay b e n ec es sa ry.

__________________________________________ W. FRANK CR

AWFORD, PRE SIDI

NG JUDGE, W. S.