### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE June 2000 Session GARY WAYNE ROBERTSON v. LOR I VANHOOSER ROBERTSON Appeal from the Circuit Court for Hamilton County No. 96-DR-2492 W. Neil Thomas, III, Judge

FILED AUGUST 25, 2000 No. E2000-01698-COA-RM-CV

The Supreme Court granted Mr. Robertson’s a

pplication for pe

rmission to

appeal and rema

nded this case to us “for recons

ideration in ligh

t of Crabtree v. Crabtree [16 S.W.3d 356 (Tenn. 2000)].” Upon reconsideration, we adhere to our original opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part; Modified in Part; Reversed in Part; Case Remanded C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., joined. D ON T. M C M URRAY , J., who signed the original opinionin this case, died wh ile this matter was pendin

g before the Sup

reme Court. Leroy Phillips, Jr., Chattanooga, Tennessee, for the appellant, L ori Vanhooser Robertson. Sherry B. Paty, Chattanooga , Tennessee, for the appellee, Gary Way ne Robertson. OPINION The Supreme Court in Crabtree focused on s everal issues, primary among them being “whether a trial cou rt may order concurrent or successive awar ds of alimony in futuro and rehabilitative alimony in the initial decree of divorce.” Id

. at 357. The Supreme Court concluded that “a concurrent award

of both types of alimony is inconsistent.” Id . at 360. I t opined th

at “[a]t the time of the decree, a trial court must necessarily find

that the recipient of alimony either can be or cannot be rehab

ilitated although

that determinatio

n is subject to

latermodification.” Id . It concluded

th at the eviden ce preponderated in favor of a finding that Ms. Crabtree could be rehabilitated. Id . While increasing the amount of

monthly rehabilitative alimony, it reversed the trial court’s award of alimony in futuro -- an award that was to have followedthe trial court’s award of five years of rehabilitative alimony

. Id . at 361. The primary issue in Crabtree is notpresent in the instant case. Neither the trial court nor this Court ordered concurrent or successive awards of rehabilitative alimony and alimony in futuro.1 The order of rem and s imply prov ides th at the Su

preme Court r

emanded the i

nstant case to us

“for reconside ration in light of Crabtree v. Crabtree .”.

2 The Su preme C ourt had ea rlier discussed this subject in Self v. Self , 861 S.W.2d 360 (Tenn. 1993). -2- We believe 1 the Supreme Court remanded the instant case to us because it wanted us to re-evaluate our decision that Ms. Robertson cannot be rehabilitated. This we will do. In Crabtree , the Supreme Court again

2 looked at the subject of rehabilitative alimony as that concept is codified at T.C.A. § 36-5-101(d) (Supp. 1999). Among other things, it said the fo llowing: [T]he legislature has demonstrated a preference f or an award of rehabilitative alimony to

rehabilitate an economically disadvantaged spouse. * * * In Self [ v. Self , 861 S.W.2d 360 (Tenn. 1993)], we held that § 36-5- 101 reflects an obvious legislative policy to eliminate the dependency of one e x-spouse u pon the other and to relieve the parties of “impedimen ts inc ide nt t o th e di sso lve d ma rri age. ” Acc ord ingl y, alimony in futuro should be awarded only when the trial court

finds that “economic reha

bilitation is

not feasible and long-term support is necessary.” * * * In Aaron [ v. Aaron , 909 S.W.2d 408 (Tenn. 1995) ] this C our t awarde d a limony in futuro to a homemaker with a high school education who had never worked outside the home. This Court noted that although the award wo uld “ not put her in the sa me position in which she was prior to the divorce, it will provide her with ‘closing in’ mon ey; t hat is s he w ill be en abl ed t o mo re cl ose ly app roach her former economic position.” This statement, 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 thesame financial condition occupied prior to the divorce. Aaron merely ack no wledged t hat, where rehabilit

ation is not

feasible, an aw

ard of alim

ony i n futuro will not always be sufficient to place a disadvantaged

spouse in the financial position occupied pre-divorce. * * *-3- An award of rehabilitative alimony pursuant to Tenn. Code Ann. § 36-5-101 must be predicated upon a finding that the recipient can

be economically rehabilitated. Id

. at 358-60 (citations omitted) (emphasis in Crabtree ). We believe the Supreme Court’s remand of the instant case may indicate that body’s doubts re garding the correctness of our decision that M

s. Robertson cannot be rehabilitated, when viewed in the context of the above

-quoted principle

s. If this be the case, we welcome the opportunity to further explain the rationale for our decision. We start by

noting that the words, “rehabilitated,” “rehabilitative,” and “rehabilitation,” are notdefined in T.C.A. § 36 -5-101(d) (Supp. 1999). All are derivatives of the word “rehabilitate,” which is also not defined in the statute. What d id th e leg islature intend by the use of these derivatives of “rehabilitate”? The cases clearly hold that courts are to ascer tain the intent of the legislature“primarily from the natural and ordinary meaning of

the language contained...when read in context with

the whole statute.” James Cable Partners v. City of Jamestown , 818 S.W.2d 338, 341 (Tenn. Ct. App. 1991). The common thread to th

e various definit

ions of the word “r

ehabilitate

” is that of restoration

. The following is one four-prong definition of the word “rehabilitate”:

1. To restore ( e.g. , a handicapped p erson) to customa

ry activity through education and therapy. 2. To reinstate the good name of. 3. To restore the former rank, privileges, or rights of. 4. To restore to a former state. Webster’s II New Riversi de University Dic tionary 991 (1994). See also American Heritage Dictionary

109 6 (1 978 ). W hil e, ge nera lly speaking, these definitions all embrace the concept of restoration, they do not dir ectly su ppl y the object

of that restoration, especially as the concept of rehabili tating is embodied

in T.C.A. §

36-5-101 (d). We

are left with thequestion: Rehabilitate or restore to what ? At the outset, it should be noted that a court does not reach th

e issue of rehabi

litation unless the spouse requesting alimony is “economically disadvantaged, relative to the other spouse.” T.C.A. § 36-5-101(d)(1). If the

court does not find “such relative economic disadvantage,” id ., it should go no further; in the absence of s uch economic disa

dvantage the r

equesting party

is not entitled to ali mon y, rehabilitative or otherwise. On the other hand, if the court finds that the spouse requesting alimony suffers from a

relative economic disadvantage vis-a-vis his or her spouse, the court should continue the inquiry

and decid

e “the nature, amount, length of term, and manner of pay ment” of alimony. Id

. In the instant case, it is clear to us that Ms. Robertson is economically disadvantaged relative to Mr. Robertson for the reasons expressed in our orig

inal opini on. We will not repeat tha

t analysis here.3 Short marriages are t ypically approached differen

tly. For ex

ample, on the subje ct of division o f property, see Batson v. Bat

son , 769 S.W.2d 849 , 859 (Tenn. Ct. App. 1988). -4- We return to the qu estion of rehabilitation. In contemplating the question posed earlier -- rehabilitation to what ? -- we beli eve the stat ute suggests the answer. Expandin g our se arch to another part of T.C.A. § 36-5-101, specifically subsection (d)(1)(I ), we find that “in determining the nature” of the appropriate spousal support, see subsection (d)(1), weare to consider, among other th ing s, “[t]he standard of living of the parties established during the marriage.” T.C.A. § 36-5- 101(d )(1)(I). We believe this means that in marriages of long duration 3 where a spo use i s economically

disadvantaged vis-a-vis

the other spouse,

the parties’ stan

dard of living sho

uldbe the measuring stick by which and against which a court determines whether

or not an individual can be rehabi litate d. This is not to say that the court must find that the requesting spouse can be rehabilitatedto the exact standard of living that he or she enjoyed during the marriage. That standar d of living is simply a measuring stick against which the rehabilitation an

alysis is made. In the final analysis, the court should determinewhether the evid ence preponder

ates that the req

uesting spouse can be restored to

a standard that is reasonable when compared to the parties’ pre-divorce standard

. There is absolutely nothing in the statutory

language to

suggest that the correct rehabilitation inquiry is whether a person can be restored to a “pretty g ood” lifestyle or to a subsistence level of existence or to a poverty-line lifestyle. I t seems to us that the concept of rehabilitation is not a “one size fits all.” We do not believe this concept can be viewed in a vacuum. It must be viewed in the context o f the partie s’ pre-divo rce standard of living. We recog nize that the Supreme Court in Crabtree suggested tha t not every e

conomicall

y disadvantaged

spouse is “entitled

to be placed in

the same financial condition occupied prior to the divorce.” 16 S.W.3d at 359-60. We do not mean to suggest otherwise. The fact that one cannot be rehabilitated to an economic station in life approximating his or her pre-divorce standard of living does not necessarily

mean that said

individual is entitled to spousal support in an amountthat will exactly reach that standard. The proof may refle

ct that a request

ing spouse can be

rehabilitated to a standardof living that is reasonable in relation to the one enjoyed by that party

prior to the divorce. In any event,

the appropriate

answer to the rehabilitation question depends upon a careful weighing of all of the factor

s set forth at T.C.A. § 36-5-101(d)(1)(A)-(L). When these factors are considered, a cou rt m ay determine tha t the other party does not have the resources to pay all of the necessary support, or that the requesting spouse’s relative fault is such as to mi

litate against an award of any or all of the needed support, or, for any one or more of a number o

f other reasons,

that the other par

ty should not be ordered to pay the full amount of support that is required to reach a re as ona ble appr oximation of

the requesting s

pouse’s former s

tandard of living ; but we believe the only fair reading of the statute is that the inquiry as to whether a requesting spouse can be rehabilitated must be viewed in the context of “[t]he standard of living of the parties established during the marriage.” T.C.A. § 36-5-101(d)(1 )(I). To fin d a different me

asuring stick is to

graft onto the statute an economic status that is not expressly stated or otherwise suggested in the statutory scheme.-5-

Other states seem

to have adopted the appr

oach suggeste

d in this opinion. The

Florida statute is similar to ours:

(1) In a proceeding for dissolution of marriage, the c ourt may grant alimony to either party

, which alim

ony m ay be rehabilitative or permanent in nature. * * * (2) In determin

in g a proper award of alimony or maintenance , the court shallconsider all rele

vant economic

factors, including but not limited to: (a) The standard of living established during the marriage. (b) The duration of the marriage. (c) The age and the physical and emotional condition of

each part y. (d) The financial resource s of each party, the nonmarital and the marital assets and liabilities distributed to each. (e) When a pplicable, the time necessary for either party to acquire sufficient education o r training to e nable such party to find appropriate emp

loyment. (f) The contribution o

f each party

to the marriage, including, but not limited to, services rendered in homemaking, child care , education, and care er bu ild ing o f th e ot her p art y. (g) A ll s our ces o f in com e ava ila ble to e ith er pa rty. The court may consider any other factor necessary to d

o equ ity and justice between t

he parties. Fla. Stat. Ann. § 61.08 (1997). In Blumberg v. Blumberg , 561 So. 2d 118 7 (Fla. Dist. Ct. App. 1989), the Florid

a court construe

d the Florida stat

ute as follows: The purpose of rehab ilitative alimony is to assist a spouse i n becomin g sel f-sufficient, a nd hopefully

placed in a positio

n to m aintain the lifestyl

e to which he or she

had become acc

ustome d during the marriage.4 The New Jersey statute is found at N.J. Stat. Ann. § 2A: 34-23 (West 1987). -6- Id

. at 1188 (citations omitted). The court went on to further explain the concept under discussion: Furthermore, self- su fficiency connotes more than subsistence or partial self-support. Courts require mor e than a showing of mere employabilit

y or a capacity for subsistence level self-support in

order to classify a person as rehabilitated. Id

. at 1189 (citations

omitted). This subje

ct is also discussed in the case of Bissell v. Bissell , 622 So. 2d 532 (Fla. Dist. Ct. App. 1993):

An award of rehabilitative alimony must be predicated upon evidence of a need for the a

limony and the

other party ’s ability to

pay, as wel

l as evidence that the party seeking the rehabilitative alimony “has the ability through ret raining o r edu cation to provide for a standard of living reasonably commens urate with the standard established d urin g the marriage .” Id . at 533 (citation omitted) (emphasis added). In addition to Florida, other states haverecognized the significance of the former standard of living in the rehabilitation inquiry. The Supr eme Court of New Jersey addressed the subject thu sly: In this matter, Mrs. Crews was awarded rehabilitative alimony by the trial court. It is well recognized that a rehabilitative alimony award is intended to “enable [the] former spouse to complete the preparation necessary for economic sel

f-sufficiency

.” It is “p ayable for a termin able

period of time when it is reasonably anticipated that a spouse will no longer need support.” But, “self-s upport ” does not mean so me subsistence level; it describes the point at which the supportedspouse is deemed to have reached a level where he

or she can support himself

or herself in a manner

reasonably

comparable to the marital standard of living. Crews v. Crews , 164 N.J. 11, 34, 751 A.2d 524, 536 (N.J. 2000) (citations omitted). 4 See also In re Marriage of Ward

, 641 N.E.2d 879, 884 (Ill. App. Ct. 1994) (“The p oli cy underlying rehabilitative maintenance is to sever all finan

cial ties betwee

n the former coup

le inan expeditious, butjust, manner. Each former spouse should be independent of the other as soon as is practicable. As a result, spouses may have to accept empl oyme nt that, while not being ideal, provides for a reasonable

approximation of

the marital standard of living.”); Moriarty v. Stone , 668 N.E.2d 1338, 1344 (Mass. App. Ct. 1996 ) (holding that an award of alimony is improper absent a finding of-7-

financial need on the part of the recipient spouse and that “[t]he standard of need is measured by the ‘station’ of the parties -- by what is required to maintain a standard of living comparable to the one enjoyed during the marr

iage.”); Wiege v. Wiege , 518 N.W.2d 708, 711 (N.D. 1994) (“A spouse’s needfor rehabilitation is not limited to the ‘prevention of destitution,’ but can also be based on their standard of living before the divorce.”). Turning to the facts of the instant case, and comparing those facts to the facts of Crabtree , we believe the holding and rationale of the latter case support the conclusion in our original opinion that Ms. Robertson cannot

be rehabilitated when

viewed in the context of “[t]he standard of living of the parties established during the marriage.” See T.C.A. § 36-5-101( d)(1)(I). Wh

ile Ms. Crabtree clearly could be rehabilitated to a reasonable standard of living, viewed in th e context of her predivorce standard of living, we do not find that the same can be said of Ms. Robertson. We believe a comparison of th

e two clearly

reflects this. Ms. Crabtree continued to work as a certified public accountant du ring the entirety of the parties’ 23 years of marriage; Ms. Robertson was basically a homemaker, wife and parent during her 23 years of marriage.Ms. Crabtree is a member of one of the best-paid professions; Ms. Robertson is a would-be teacher -- ar guably the

lowest paid of all the true professions. Ms. Crabtree’s potential gross income of $100,000 places her in a position to enjoy an affluent lifesty le, if not th e facially opulent one of her marriage; Ms. Robertson’s salary of $22,500, with no evidence of any potential for large increases, will prevent her from achieving the middle class status of her prior station which was funded by two incomes of approximately $66,000 - $80,000 per year. Both Ms. Crabtree and

Ms. Robertson were ma

rried for appro

ximately half

of their probable work lives; but Ms. Crabtree obviously accrued Social Security credit on her own account based on a substantia

l income duri ng the entire pe riod of the marria

ge. The proof in

dicates that Ms. Robertson had little income du ring her marri

age that entitle

d her toSocial Security credit on her own account. The proof is clear that Ms. Crabtree’s marriage did not hinder her development as a cer tified public accountant; on the other hand, Ms. Robertson delayed her pursuit of a care er for some

23 years. At age 42, she is just now getting started. She likely will find herself competing with teachers her age who have 20 years, more or le ss, of teaching experience. Cer tai nly, Ms. Robertson could maintain a subsistence standard of living on her gross salary of $22,500; but, as previously indicated, this is not the test. When her prior middle class standard of living isused as the measuring stick, the standard of living that she can achieve on her own cannot be considered a reasonable one. Our original decisi

on does not run afo

ul of th e legis lative policy favoring rehabilitative ali mon y. We recognize that p olicy and ce

rtainly do no

t seek to set a new

policy contr

ary to this obvious legislative enactment; but our decision simply recognizes that the policy does n

ot come into-8-

play until a finding is made that rehabilitation, as contemplated by the statute, is feasible. See T.C.A. § 36-5-101(d)(1). In this case, the evidence pr eponderates tha

t rehabilitation is s

imply not feasible. Having found that Ms. Robertson cannot be rehab ilitated, we conc

luded, and still

conclude, that Mr. Robertson could afford to pay $600 per month when he reached a point whe re he was no longer obligated to pay

child support. Consi

dering the fac

tors set fo rth in T.C.A. § 36-5- 101(d)(1)(A)-(L),we find that Ms. Robertson has the need for this amount, that Mr. Robertson can afford to pay at this

rate, and that the

parties’ relati

ve fault -- particularly Mr. Robertson’s adultery -

- militat e in favor of our in futuro award. While this amount will not place her back fully to her previous standard of living, it can serve as “closing in” money as contemplated by the Aaron case. 909 S.W.2d at 411. We adhere to our find ing and holding that Ms. Robertson cannot be rehabilitated as that concept is set forth in T.C.A. § 36-5-101(d)(1). We also adhere to our decision that Mr. Robertson should pay alimony in futuro at the rate set for th in our original opinion. We republish our opinion released November 9, 1998, in all respects, with costs taxed to the appellee.

___________________________________ CHARLES D. SUSANO, JR., JUDGE