# FILED

December 28, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT JACKSON

CAROLYN ELROD VATTER, ) ) Plaintiff/Counter-Defendant ) Shelby Circuit No. 150777-9 R.D. Appellee, ) ) v. ) ) ROBERT L. VATTER, ) Appeal No. 02A01-9707-CV-00141 ) Defendant/Counter-Plaintiff ) Appellant, )

APPEAL FROM THE CIRCUIT COURT OF SHEL BY COUNTY AT MEMPHIS, TENNESSEE

THE HONORABLE ROBERT L. CHI LDERS, JUDGE

For the Plaintiff/Counter-Defendant For the Defendant/Counter-Plaintiff Appellee : Appellant : Stuart B. Breakstone Will iam G. Hardw ick, II Memphis, Tennessee Memphis, Tennessee

AFFIRMED

HOLL Y KIR BY LI LLA RD, J.

CONCURS: W. FRANK CRAWFORD, P. J., W.S.

HEWIT T P. TOM

LIN , JR., SR .J.OPINION

This is a divorce case . The trial court o rdered the husba

nd to pay the wife r

ehabilitativ

e alimony, alimony in futuro beginning at a future date, and alimony in solido . T he tria l court also found a partnership int

erest to be the hus

band’s separate

property. Both par

ties appeal. We affirm. Appellant Robert J. Vatter (“Husband”) and Appellee Carolyn E. Vatter (“W ife”) wer e married in 1988. Husband hadbeen married previously and Husband and his previous wife owned

a ten perce nt in terest in a partnership known as the Clay Road Partnership (“Partnership”). The Partnership

rents office and warehouse facilities to a construction company. During the marriage of Husband and Wife, the parties purchased Husband’s previous wife’s interest i n the Partnership withmarital funds. During the marria ge, Husband work

ed for Mapco Petr

oleum, first as a contractor and later as anemployee earnin g approximately $5 ,400 per month. Wif e worked first

as a secretary and later as a real e

state agent ear

ning approximatel

y $17,000 per yea

r. In 1995, Wif

e f iled for divorce. The divorce trial was held in 1997. At trial, Wife sought permanent alimony. She testified that during the marriage shebecame chronically

ill and that it greatly aff

ected her ability to work as a real estate agent. She presented testimony from Kathy Chapman, M.D., a rheumatologist, to support her claim of decreased earning capacity. Dr. Chapman testified that Wife suffered from fibromyalgia, also sometimes termed chronic fatigue syndrome, and depression. She testified that these conditions would affect Wife’s ability to work and that it was likely there would be only a limited improvement over time, that the condition was considered chronic. Husband testified that Wife had no involvement in the operation of the Partnership, and that his ex-wife’s interest was purchased during Husband and Wife’s marriage with “our joint money.” He indicated that the Partnership interest generates income of approximately $432 per month. He testified that most of the par ties’ finances were kept separate during the marriage. He presented no proof contradicting Wife’s evidence on her physical condition. B ased on the parties’ agreement, the trial court declared the parties divorced under Tenne ssee Code Annotated § 36-1-129(b). This statute authorized the trial court to declare the parties divorced rather than granting a divorce to one party. The trial court f

ound that W

ife suffered from depression. The trial court recognized that there was a

possibility that Wife also suffered from fibromylagia, but found that Wife had not carried her burden of proving this illness. It noted that Wife had been unsuccessful as a

real estate agent and2

observed that Wife would likely have to go into another line of work. The trial court then ordered Husband to pay rehabilitative alimony of $1,500 per month for five years, in or

der to permit Wife to obtain treatment for her depression and go into a line of wo rk other than rea l estate. The trial court also ordered Husband to pay alimony in futuro in the amount of $200 per month, beginning at the end of the five-year period of rehabilitative alimony. It also ordered Husband to pay $4,000 towardWife’s attorney’s fee, as alimony in solido . It ordered Husb and to maintain a life insurance policy in the amount of $250,000 to ensure his alimony payments to Wife. The trial court also found that the Partnership was Husband’s separ ate property. In

its oral ruling, the trial court sta ted that Wif

e “ probably does have some interest in that Clay Road Partnership but the

Court, based on the

evidence in this

case, is frankly, unable to determine what that value is or what the interest is.” Husband now appeals the trial court’s awa r d of alimony. Wife appeals the trial court’s finding that the Partnership is Husband’s separate property. We review the trial court’s fin dings of fact in

this case de novo with the presumption that the trial court’s findings of fact are correct, unless the factual findings are against the preponderance of the evidence. Tenn. R. App. P. 13(d). On appeal, Husband asserts that the trial court’s finding that Wife suffered from depression

was based on speculation and conjecture, and that the trial court erred in basing an award of alimony

on this finding. After reviewing the record, we find that the evidence was sufficient to support the trial court’s finding and does no t preponderate a

gainst it. Wife presented sufficient expert testimony and H usband offered no countervailing evidence. Therefore, the trial court’s fac tual finding t ha t Wife suffers from depression that interferes with her ability to work is affirmed. Husband next alleges that the trial court erred in awarding rehabilit ative alimony and alimony in futuro , along with life insurance coverage to insure payment of the alimony obligation. Husband argues that permanent alimony should be awarded only in circumstances w

here the recipi

ent spouse

c annot be economically rehabilitated, and that it is error to award rehabilitative alimony and permanent alimony.3

Tennessee statutes provide for three types of alimony: (1) rehabilitative alimony, which is temporary support to enable the former spouse to obtain the ability to support himself or herself at

an app ropriate level, (2) periodic alimony or alimony in futuro , which is a permanent sup por t obligation to an economically disadvantaged former spouse, and (3) alimony in solido , which is a lump sum payment. See Tenn. Code Ann. § 36-5-101(d)(1) (Supp. 1998). A number of factors are considered to de

termine the appr

opriate amount of

spousal support: (A) The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharingor retirement plans and all other source

s; (B) The relative education and training of each party, the ability and opportunity

of each party to

secure such education and training, and the necessity of a party to secure further education and training to improve 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 phys ical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease; (F) The extent to which it would b e undesirable for a party to seek employment

outside the home be

cause such party will be custodian of a minor child of the marriage; (G) The separate a

ssets of each par

ty, both real and p

ersonal, tang ible and intangible; (H) The provisions made with regard to the marital proper ty as defi ned in § 36-4-121; (I) The standard of living of the parties established during the marriage; (J) The extent to which ea ch pa rty has made such t angible and intang

ible contributions to the marria ge as monetary and homemaker co ntributions, and ta ngible and intangible 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 the tax conseque nces toeach party, as are necessary to co

nsider the equitie

s between the par

ties. Tenn. Code Ann. § 36-5-101(d)(1 )(A)-(L) (Supp . 1998). This statute reflects a legis

lative policy in favor of rehabilitative

alimony as a way to

encourage the independence and self-sufficiency of the former spouse:

It is the intent of the general assembl y that a spouse who i

s economically disadvantaged, relative to the other spouse, be rehabilitated whenever possible by the granting of an order for payment of rehabilitative, tempo r ary support and maintenance. Where there is such relative economic disadvantageand rehabilitation is not feasible in consideration of all relevant factors, including those set out in this su bs ection, then the court may grant an order for payment of support and maintenance on a long-term basis or until the death o r remarr iage of the recipient except as otherwise provided in subdivision (a)(3). Tenn. Code Ann. § 36

-5-101(d)(1) ( 1996); see Self v. Self , 861 S.W.2d 360, 361 (Tenn. 1993)4

(“[L]ong-term

support and maintenan ce is appropriate on ly where there is

relative econom

ic disadvantage and rehabilitation of the disadvantaged party is not feasible.”). A trial court may modify both rehabilitative alimony and alimon y in futu ro during the periods the payme

nts are in effec

t. Tennessee Code

Annotated § 36-5- 101(d)(2) provid es that [a]n award of

rehabilitative, t

emporary suppor

t and maintenance

shall remain

in the court's co ntrol for the duration of such award, and may be increased, decreased, terminated, extended, or otherwise modified , upon a showing of substantial and material change in circumstances. Reh a bilitative support a nd maintenance sh

all terminate upon the death of the recipient. Such support and maintenance

shall also termina te upon the death of the payor unless otherwise specifically stated. Th e recipient of the support and

mainte n ance shall have

the burden of pro

ving that all reasonable eff

orts at rehabilita

tion have been ma

de and have bee

n unsuccessful. Tenn. Code Ann. § 36-5-101(d)(2) (Supp. 1998). Both rehabilitative alimony and alimony in futuro remain subject to the control of the trial court: If

a dep e ndent spouse does not satisfactorily strive for self sufficiency, the Courtmay withdraw part or all of the support allocated to finance rehabilitation. If the dependant spouse

demonstrates com

plete inability to a

chieve even par

tial self sufficiency, the Court may grant alimony in f uturo to provide for the needs of the dependent spouse. If the dependent spouse achieves partial self sufficiency b ut demonstrates inability to achieve total self sufficiency, the Court may grant sufficient alimony in futuro to supplement the earning capacity of the dependent spouse. Loria v. Loria , No. 01A01-9609-CH-00441, 1997 WL 107170, at *2-3 (Tenn. App. Mar. 12, 1997);

see also Self v. Self

, 861 S.W.2d 360, 361 (Tenn. 1993); Towner v. Towner , 858 S.W.2d 888 (Tenn. 1993). Husband argues that it was improper for the trial court to order both rehabilitative alimony and alimony in futuro in this case. We f ind no statu

tory or com mon law prohibition against an award of permanent

and rehabilitative alimony in the same case. The trial court has the discretion to set the alimony award in a particular case, and the award will not be modified on appeal unless the appellant can show an abuse of that discretion. See Ingram v. Ingram , 721 S.W.2d 262, 264 (Tenn. App. 1986). An award of both re

habili tative a nd permanent alimony was affirmed in Hanover v. Hanover , 775 S.W.2d 612 (Tenn. App. 1989). In Hanover, the trial court had applied the factors in Tennessee Code Annotated § 36-5-101(d). Id. at 617. The court f ound that it was unlik

ely that5

the former spouse co

uld rehabilitate h

erself su fficie ntly to live in the manner to which she was accustomed during the marriage. In this case, the trial court’s aw ar d of permanent alimony after a period of rehabilitative alimony was based

on the finding that Wife’s prospects for rehabilitation were limited because of her depression, past employment history, and the possibility of fibromylalgia. As in Hanover , the trial court in this case applied the factors set out in Tennessee Code Annotated § 36-5-101(d). After the period of rehab

ilitati v e alimony ends, and the trial court can see the extent to which Wife has rehabilitated herself, the trial court may decide to modify or eliminate the award at that time. The evidence does not preponderate against the trial court’s factual findings, and we find no abuse of d iscretion in the trial court’s decision to award alimony in futuro at the end of the rehabilitative period. Husband argues that the trial court erred in awarding any rehabilitative alimony at all. He argues that Wife has already obtained means of supportin

g herself, earn

ing approximately

$17,000 per year as a rea

l estate agent. Consequently, she has no need for five years of rehabilitative alimony. However, rehabilitative al i mony may be award ed for reasons o

ther than to permit

a financially

disadvantaged former spouse to obtain job skills. “While rehabilitative alimony may be par tic ularly

appropriate whe

n evidence shows

that the disadvant

aged spouse can b

ecome economically

sufficient by further education or job skills training, the award of rehabilitative alimony is not limited to those specific circumstances.” Quarry v. Quarry , 1992 WL 141796, at * 4 (Tenn. App. June 2

5, 1992). In this ca

se, the trial cour

t found that th

e a ward of rehabilitative alimony was suppor

ted by the following

factors: (1) the relative education and training of each party; (2) the ab

ility and opportunity of each party to secure such education and training to

improve that party’s earning capacit y to a rea sonable level; (3) the fact that Wife suffers from depression and demonstrateda need for trea tment for this

problem; (4 ) the fact that Wife has not been successful in re

al estate and will

probably need to go into

another line of work in order to adequately support herself; (5) Wife ’s m onthly expenses outweigh her current income by close to $800.00; (6) the standard of living the parties established during the marriage; and (7) the ext ent to which each party has made tangible and intangible to the ma

rriage as moneta

ry and homemaker

contributions. The trial cou r t also considered the fault of the parties in causing the dissolution of the marriage. Afte r reviewing the re

cord, we conclu

de that the eviden

ce does not prepo

nderate against

the tria l court's award of rehab

ilitative alimony to

Wife in the amount of $1,500 per month for a period of6

five years. The decision of the trial court on this issue is affirmed. Husband also argues that the trial court erred in awarding $4,000 in attorney fees as alimony in solido . Husband argues that such an award is not proper where the f ormer s pouse receives

a portion of the marital estate. In this case, Wife was aw arded marital assets valued at $141,785. Husband contends that this award provides Wife with sufficient funds to pay her attorney and the $4,000 for attorney’s fees award was error. However, most of the assets awarded to Wife were nonliquid assets. Moreover

, in determinin

g whether to awar

d attorney’s fee

s, the trial court m

ust consider the factors listed in

Tennessee Code Annotated §36-5-101(d) and quoted above. See Houghland

v. Houghland, 844 S.W.2d 619, 623 (Tenn. App. 1992); Harwell v. Harwe ll , 612 S.W.2d 182, 185 (Tenn. App. 1980). An award of attorney’s fees is within the sound discretion of the trial court and will not be disturbed on appeal unless there is a showing of abuse. Lyon v. Lyon , 765 S.W.2d 759 , 762-63 (Tenn. App. 1988). We find no abuse of discretion in the award of attorney’s fees. The decision of the trial court is affirmed on this issue. Wife raises one issue on appeal, the trial court’s determination that the entire interest in the Partnership

w as Husband’s separate property. While Husband was married to his first wife, they purchased

an interest in the Partnership. This interest was divided between Husband and his prior wife at their divo

rce. At the time

of the marriage between Husband and Wife, Husband owned an approximate

5% interest

in the Partnership. During the marriage, Husband purchased the ex-wife’s interest, another approxi

mately 5% interes

t. Husband acknow

le dged th at this interest was purchased with Husband and Wife’s “joint funds.” Tennessee Code Annotated § 36-4-121 grants the trial court the power to

“equitably divide, distribute or assign the marit

al property betw

een the parties w

it hout regard to marital fault in proportions as the court deems just.” Tenn. Code Ann. § 36-4-121 (1996). Therefore, the trial court wide has discretion to adjudicate the rights of the parties in all jointly owned property. Wallace v. Wallace , 733 S.W.2d 102, 106 (Tenn. App. 1987). In this case, the trial court reviewed all of the assets at issue, including the marital home and the Partnership inter

est, which gener

ates approximate

ly $432 per month

in income. After reviewing the evidence, the trial court’s award to Husband included the interest in the Partnership and the concomitant

income of

$432 permonth, and the award to Wife included the marital home, rehabilitative alimony and thereafter alimony in futuro of $200 per month. It should be noted that7

counsel for Wife, in his c

losing statement at

trial, referre

d to the Partnershi

p interest and state, “we say let him keep tha

t because that wil

l go to help him

pay my client

alimony. . . .” While the trial court awarded considerably less pe rmanent alimony than requeasted by Wife, in reviewing the overall division of marital property, we cannot say that the evidence prepo

nderates agains

tthe trial court’s decision on the Partnership interest. The trial court is affirmed on this issue. W i fe also requests attorney’s fees incurred in this appeal. Both parties on appeal have prevailed on some issues and no t on others. Under the circumstances as a whole, we deny the request for attorney’s fees incurred in this appeal. In sum, the trial court’s awards of rehabilitative alimony, alimony in futuro and alimony in solido are affirmed. The finding t hat the entire intere

st in the Partnersh

ip is Husband’s sep

arate property is affirmed. Wife’s request for attorney’s fees on appeal is denied. The decision of

the trial court is affirmed. Costs are assessed against both parties equally, for which execution may issue, if necessary.

HOLLY KIRBY LILLARD, J.

CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

HEWITT P. TOMLIN, JR., SR.J.