# FILED January 8, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk JOEL THOMAS C ATLETT, JR., ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9605- CH-00244 VS. ) ) W illiamson Chancery ) No. 23509 MARJEAN GE’ NELL PERRY MAN ) CATLETT, ) ) Defendant/Appellee. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE
APPEALE D FRO M THE C HANC ERY C OURT O F WILLIAMSON COUN TY AT FRANKLIN, TENNESSEE THE HONORABLE HENRY D ENMARK BELL, JUDGE

PAUL T. HOUSCH 211 Third Avenu e, North P. O. Box 1982 88 Nashvil le, Tennessee 37219- 8288 Attorney for Plaintiff/Appellant VIRGINIA LEE STORY 136 4th Avenue, S outh P. O. Box 1608 Franklin, Tennessee 37065 Attorney for Defendant/Appellee

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE

CONCUR: TODD, P.J., M .S. KOCH, J. 

## O P I N I O N- 2 - The trial court granted the parties a divorce, and ordered the husband to pay the w ife alimony i n futuro. The parties were also gr anted joint custody of the teena ge children, w ith the husband to have primar y physi cal custody . On appeal, the husband challenges

the nature and amount of the alimony award, and the trial court’s failure t o o r d e r

t h e w i fet o p a yc h i l d s u p p o rt
. We remand this cas e to enable the tr ial court to make the finding s of fact in rega rd to child support that are required by Tenn. Code Ann. § 36-5- 101(e)(1). In all other respects we affirm the trial court.

I.

Joel Thomas Catlett and Marjean Ge ’N ell Perry man married in 1 976. It was the s econd marriag e for bot h. T he parties sepa rated on July 24, 1995, and were subsequently

divorced . The husband wa s a framing cont ractor, w ho earned a substantial income. The wife stayed at hom e and ra ise d the two ch ildren of the marriage, Jeffery Kane Catlett, born on May 16, 1978, and Floyd Joel Catlett, born on April 23, 1979
. The parties enjoyed a very comfortable standar

d of living , but the husband failed to accumulate any assets of value, and di d not putaway an y money for emergencies

or for retir

ement.

The wife sometimes

worked par

t-tim e during the marr iage, but she never earned much above the mi nimum wage. She had dropped out of hig h school in her junior year, and ha d problems w ith reading because of dysl exia. She a lso suffered an injury during a fishing trip with her husband that left her blind in one eye. Shewas interested in betteringherself, and took the real estatelicensingexam four times, but was unable to pass. After t he partiesseparated, she took her G.E. D. exam. She did not pass, but she wishes t o try ag ain.

The proof showed t hat neither par ty is afraid of

hard wor k, but that the husband has t he ove rwhelm ingly gr eate r earn ing ca paci ty b ecause of his ski lls and- 3 -

his experience in the construction busine ss. The court had some dif ficulty in determining the app ropri ate amou nt of per sonal incometo attribute t o Mr. Catl ett for the purpose of sett ing alimony, because he had failed to file any income tax r

eturns forthe ten years prior

to the divo rce, and his records were somewhat disorgani zed. On the basis of inform ation he supplie d as to hi s inco me f or th e mo st rec ent f ive years, the trial court found the husband ’s earning capacity to be $7,200 per month. The wi fe had most recently worked at

a country club, doing manual labor for $6. 00 per hour.

The c ourt ordered the husban d to pay the wife $3,000 per m onth a s alimony in futuro, w ith t he obligati on to be decreased to $1,000 per month after 36 months. The husband argu es on appeal that t he trial cour t should have ordered rehabilit at ive alimony r

ather than alimony

in futuro, and that the amount of alimony ordered was excessive in light of the husband’s ow n persona l ex penses, the uncertainty

of his income, and the possibility that he might become li able to the Internal Revenue Service for substantia l back taxes and penalties.

II
.
The husband relies

upon Tenn. Code Ann. § 36-5-101(d)( 1), i n whic h our legislature has stated a preferen ce in divorce cases for rehabi litative alimony ov er alimony in futuro.

It is the intent

of the general assembly that a spouse wh o is economically disadvantag ed, relative to the other spouse, be re habilit ated whenever possible by

the granti ng of an order forpaym en t of rehabilitat ive temporar y support a nd maintenance. Where t he re is such relative economic disadvan tage and rehabilitation is not fe asi ble in consideration of all relevant factors, including those set out in this subsection, then the court may grant an or

der for paymentof sup po rt and maintenance on a long term basis

. . . .- 4 - We see no inconsi stency between the mandate of the leg islature and the result in this case. Thetrial judg e incorporated portions of the tr anscript relating to ali mony in to the Final D ecree of Divorce as finding s of fact. In discu ssing the difficulties the w ife had to deal with, the judge stated, “I think there’s a good chance that she can be substanti ally re habilitated. I think there’s a fair

chance she mig ht not be.”

T he judge went on to say that he woul d initiall y set the amount o f alimony high because he wanted to g ive the w ife the opport unity to do s ome schooling or to take other steps to improve her earning capacity in the period fol lowing divorce. After that pe riod, the a limony would be reduced, but not eliminate d, because the wife’s handicaps mig ht make it impossi ble for her to be come to tally self -suppo rting. Thus, the first peri od of alimony i s meant to be “rehabili tative” i n fact, if not in name. The second period of alimony prot ects the w ife’s rig ht to long- term support i f that shou ld rem ain n eces sary.

III
.

In determining the manner, amount and d uration of alim ony, the tr ial court is direct ed by

the legis lature to cons ider all relevant factor s includingthose that are specificall y listed in categor ies (A) throug h (L) under subsecti on (d) of Tenn. Code Ann. § 36-5-101.

Althou gh we do not feel it necessary to recite all th ose f acto rs he re, we note that vir

tually al l of them indicate that the wi fe in the present case i s entitled toa generousamount of supp ort from her forme r husband. Some of the most important forthe purposes of this case are the r elative ear ning capaci ties of the parties, the lack of separate proper

ty or other financi al resources forthe wife to r

ely upon, the duration1 Alt hough di vorce was gr anted t o both pa rti es in accordance wi th Tenn. Code Ann. § 36- 4- 129, t he record indi cates t hat t he wif e agreed t o drop her demand that di vorce be g rant ed to her on the gr ounds of t he husband’ s inapp ropri ate marit al cond uct i n exchange for a sti pulat ion t hat t he proo f reg ardin g rela tive fau lt be co nsid ered in con nec tion with alim ony. - 5 - of the marriag e, the standard of liv ing the part ies established dur ing the marr iage, and the relative fault of the p arties. 1

This court has st ated many times that the amountof alimony is a matter in the sound discretion of the trial court, and that the need of the disadvantaged spouse is the most impo rtan t con side ratio n, f ollo wed by t he ab ility o f the o bligor spouse to provi de support. Lancaster v. Lancaster , 671 S

. W. 2d 501 (Tenn. App. 1984); Campanali v. Campanali , 695 S.W.2d 193 (Tenn. App. 1985); Cran ford v. Cranford, 772 S.W.2d 48 (Tenn. App. 1989); Loyd v. Loyd, 860 S.W.2d 409 (Tenn. App. 1993).

Both parties sub mitt ed monthly in come and expense statements to assist thecourt in deter mining the appropriate amou nt of support to set. T he wife’s statementindicates minimal income, an d expenses in ex cess of $3,000 per mont h. This sum include s $400 for psyc hological counseling to overcome theeffects of the abuse she suffered duringthe marriag e. The wife had not yet begun s uch cou nseling, but she feels it co uld be an importan t componen t of her rehabilitation. She also testified that she is interested i n enrollingin a junior college after

getting her G.E.D., but her income statement did not in clude the proj ected expenses of this plan.

The husband contends th at his income is likelyto be inadequat e to meet both his own l iving expenses and the alimony ordered by the court. He n otes that he is self-employed, that f raming is a highly competitive and cycl ical busines s, and that he may become obli gated to the Internal Revenue Service for a large sum in the near future. He also st ates thathe is no lo nger a s phys icall y capa ble o f pic king u p hea vy materials and climbing onto t he structure s on the job si te as he was when he was younger.- 6 - The husband submitted an expense statement which indicates mon thly livingexpenses of $5,855, including the $2,000 in ali mony pendente li te that the court order ed pri or to the filin g of its final o rder. He al so submitted an i ncome statement that indicates a g ross income for his business of $14,000 per month, and a net incomeafter business expense s and after income taxes of $4,226, resul ting in a monthly househol d deficit of about $1,628.

We note, how ever, tha t Mr. Catl ett has apparentl y not ye t taken any steps to repor

t his taxab le income to the I.R.S. W e note also that the Certif ied Public Accountantwho was hired to review his business records and t o help prepa re h is incomestatement report was unable to calculatehis business ex penses direct ly from those records because of their dis organiz ed state. The CP A had to rely instead on statistics for contractor s and carpentr

y wor k nationwi de, even th ough it is unclear whether Mr. Catl ett’s busines s practices are typi cal of the ind u stry as a whole. Further, ther

e appears to be s ome leeway for saving s on the expens e side.

Some of the expenses M r. Catlett listed were $1,400 for

rent, $380 for elec trici ty, $450 for grocer ies, lunches and allowances for the two boys in the amount of $350, $350 for gasol ine, another $350 for payments on a pi ckup truck, and payments on a jet ski of $215. At the time of trial, some of the se figu res wer e in f lux, a s the husban d was planni ng to move t o a less ex pensive hous e, but had not yet found one to his lik ing, and he was not yet mak ing any payments on a pi ckup truck, because he was driving one lent to him by a builder he was working for.

We do not dou bt th at M r. C atle tt w ill have som e di ffi culty mee ting his alimony pay ments. We also respect the str enuous nature of the work invol ved wi th his chosen occupation, and the un certainties inherent in self-employment . We do not feel, however, that the trial court erred in basing the initial alimony award on the futu re expensesthe wife will likely encounter i n herefforts to rehabil itate herself, an d the- 7 -

amount of income the court believes to be currentl y avai lable to th e husband . The judge encouraged M r. Catlett to honor his oblig ations to the I. R.S., but chosenot to make a premature adju stment in the ali monyin anticipat ion of the penalties th at might be imposed.

We note that alimony

in futuro remains

within the jurisdi ction of the court, and m ay b e modified upon a showing of a significant and material chan ge in circumstances. Seal v. Seal, 726 S.W.2d 934 (Tenn. App. 1986); Jones v. Jones , 784 S.W.2d 349 (Tenn. App . 1 989); Bowman v. Bowm an , 836 S.W.2d 563 (Tenn. App. 1991). Prior to any such cha nges, the cour t relies upon i ts understa nding of the current financial statu s of the parties. On the basis of the record before us, we do not feel that the trial court abused i ts discreti on in the manner i n which i t fashioned thi s alimony award.

IV
.

The husband was granted physical cus tody o f the children of the marriage, with thewife to receive “st andard vis itation.”In the final decr ee of divorce, the trial cour

t stated that “ due to Mother’ s lack of employ ment and disparity of income of the parties, no child support is set at thi s time.”

The wife notes th at the older boy turned eightee n years of age on May 16, 1996, five months after the filing of the Final Dec ree of Divor ce. The young er boy will reach his maj ority on A pril 23, 1997. The older boy was working in the father’s framing business at the time of trial and earning $10 per hour. The wife asser ts that the younger

boy is al so worki ng wit h his father now

.
The husb and arg ues that the tri al court err ed in declini ng to order the wi fe to pay him child suppor t out of her income fro m alimony and part-time work. He- 8 -

correctlypoints out that the law c reates a rebutt able presumption that the noncustodial parent is obl igated topay child support to the custodial parent in accordance with the child sup port guidel ines establi shed by the l egislature. See Tenn. Code Ann. § 36- 5-10 1(e) (1). T he sa me st atut e goe s on t o say:

. . . If the court finds tha t evidence is sufficient to rebut this presumption, the court shal l make a wr itten find in g that the application of the child support guidelines would beunjust or inappropriatein that parti cular cas e, in or der to prov ide for the best interest of the chil d(ren ) or the eq uity between the parties. Findings

that the application ofthe guidelines would be unjust or inappropri ate shall state the amount of support that would have been ordered under the child suppo rt guidelines

and a ju stific ation for a var iance from the guidelines.

It appears to usthat whil e the trial court may have found the applicati on of the guidelines inappropriate in this case , it f aile d to f ully co mply wi th th e abo ve requirements. Those require me nts are not a mere formality, as they str engthen a presumption which was created to protect the rights of minor children. W e therefore remand this case to t he trial cour t with i nstructions to make the req uired findi ngs , unless it bel ieves that the applicatio n of the guidelines would in fact be appropriate, in which case it must o rder child support.

V.

The judgment of the tr ial court i s affirmed, but t he court is ordered to amend its decree to co n form to the requi rements of Tenn. Code Ann. § 36-5- 101(e)(1). This cause is remanded to the trial court for further proceedi ngs consistent with thi s opinion. Tax

the costs on appe al to the appell ant.

_____________________________ BEN H. CAN TRELL, JUDGE- 9 -

CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ WILLIAM C. KOCH, JR., J UDGEIN THE COURT OF APPEALS OF TEN NESSEE MIDDLE SEC TION AT NASHVILLE

JOEL THOMAS C ATLETT, JR., ) ) Plaintiff/Appellant, ) Appeal No. ) 01-A-01-9605- CH-00244 ) VS. ) W illiamson Chancery ) No. 23509 ) MARJEAN GE’ NELL PERRY MAN ) Affirmed CATLETT, ) and ) Remanded Defendant/Appellee. )



### J U D G M E N T This cause came on to be heard upon t he record on appea l from the ChanceryCourt of W ill iamson County, br iefs and argument of counsel; upon consideration whereof, thi s Court is of the opinion that in the decr ee of the Chancello r there is no reversible error.

In accordance w ith the opinion of the Court filed herein, i t is, therefore, ordered and decreed by this Court that the decree is affirmed. It i s further ordered by this Court that thecause be remanded w ith i ns tructions for the trial court to make written findings of fact as r equired by

Tenn. Code Ann. § 36- 5-101(e)(1)

. Costs of this appeal are t axed again st Joel Thomas Cat lett, Jr., Prin cipa l, an d Pau l T. Ho usch , Sur ety, f or whic h exec utio n ma y issue if ne cess ary.

ENTER _______________________.

_________________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_________________________________ BEN H. CAN TRELL, JUDGE

_____________ ___________________ _ WILLIAM C. KOCH, JR., J UDGE