IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 2000 Session

GARY WAYNE ROBERTSON v. LORI 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 application for permission to appeal and remanded this

case to us “for reconsideration in light 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

CHARLES D. SUSANO,JR.,J., delivered the opinion of the court, in which HOUSTON M. GODDARD,

P.J., joined. DON T. MCMURRAY, J., who signed the original opinion in this case, died while this

matter was pending before the Supreme Court.

Leroy Phillips, Jr., Chattanooga, Tennessee, for the appellant, Lori Vanhooser Robertson.

Sherry B. Paty, Chattanooga, Tennessee, for the appellee, Gary Wayne Robertson.

OPINION

The Supreme Court in Crabtree focused on several issues, primary among them being

“whether a trial court may order concurrent or successive awards 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. It opined that “[a]t

the time of the decree, a trial court must necessarily find that the recipient of alimony either can be

or cannot be rehabilitated although that determination is subject to later modification.” Id. It

concluded that the evidence 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 followed the trial court’s award

of five years of rehabilitative alimony. Id. at 361.

The primary issue in Crabtree is not present 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 remand simply provides that the Supreme Court remanded the instant case to us “for

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

2

The Su preme Court had ea rlier discussed this subject in Self v. Self, 861 S.W.2d 360 (Tenn. 1993).

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We believe1

 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 again2

 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 following:

[T]he legislature has demonstrated a preference for 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 ex-spouse upon the other and to relieve the parties of

“impediments incident to the dissolved marriage.” Accordingly,

alimony in futuro should be awarded only when the trial court finds

that “economic rehabilitation is not feasible and long-term support is

necessary.”

* * *

In Aaron [v. Aaron, 909 S.W.2d 408 (Tenn. 1995)] 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.” This statement, however, was intended

neither to provide a new standard for awarding alimony nor to suggest

that every spouse should be entitled to be placed in the same financial

condition occupied prior to the divorce. Aaron merely acknowledged

that, where rehabilitation is not feasible, an award of alimony in

futuro will not always be sufficient to place a disadvantaged spouse

in the financial position occupied pre-divorce.

* * *
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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 regarding the correctness of our decision that Ms.

Robertson cannot be rehabilitated, when viewed in the context of the above-quoted principles. 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

not defined 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 did the legislature intend by the use of these

derivatives of “rehabilitate”? The cases clearly hold that courts are to ascertain 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 the various definitions of the word “rehabilitate” is that of restoration.

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

1. To restore (e.g., a handicapped person) to customary 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 Riverside University Dictionary 991 (1994). See also American Heritage

Dictionary 1096 (1978). While, generally speaking, these definitions all embrace the concept of

restoration, they do not directly supply the object of that restoration, especially as the concept of

rehabilitating is embodied in T.C.A. § 36-5-101(d). We are left with the question: Rehabilitate or

restore to what?

At the outset, it should be noted that a court does not reach the issue of rehabilitation 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 such economic disadvantage the requesting party is not entitled to

alimony, 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 decide “the nature, amount, length of term, and manner of payment” 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 original opinion. We will not repeat that analysis

here.
3

Short marriages are typically approached differently. For example, on the subje ct of division o f property, see

Batson v. Batson, 769 S.W.2d 849 , 859 (Tenn. Ct. App. 1988).

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We return to the question of rehabilitation. In contemplating the question posed earlier --

rehabilitation to what? -- we believe the statute suggests the answer. Expanding our search 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), we are to consider, among other

things, “[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 duration3

 where a spouse is

economically disadvantaged vis-a-vis the other spouse, the parties’ standard of living should be the

measuring stick by which and against which a court determines whether or not an individual can be

rehabilitated. This is not to say that the court must find that the requesting spouse can be

rehabilitated to the exact standard of living that he or she enjoyed during the marriage. That standard

of living is simply a measuring stick against which the rehabilitation analysis is made. In the final

analysis, the court should determine whether the evidence preponderates that the requesting 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 good” lifestyle or to a subsistence level of

existence or to a poverty-line lifestyle. It 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 of the parties’ pre-divorce standard of living.

We recognize that the Supreme Court in Crabtree suggested that not every economically

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 amount that will

exactly reach that standard. The proof may reflect that a requesting spouse can be rehabilitated to

a standard of 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 factors set forth at T.C.A. § 36-5-101(d)(1)(A)-(L). When these factors are considered,

a court may determine that 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 militate against an award of any

or all of the needed support, or, for any one or more of a number of other reasons, that the other party

should not be ordered to pay the full amount of support that is required to reach a reasonable

approximation of the requesting spouse’s former standard 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 find a different measuring stick is to graft onto the statute an

economic status that is not expressly stated or otherwise suggested in the statutory scheme.
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Other states seem to have adopted the approach suggested in this opinion. The Florida statute

is similar to ours:

(1) In a proceeding for dissolution of marriage, the court may grant

alimony to either party, which alimony may be rehabilitative or

permanent in nature.

* * *

(2) In determining a proper award of alimony or maintenance, the

court shall consider all relevant 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 party.

(d) The financial resources of each party, the nonmarital and the

marital assets and liabilities distributed to each.

(e) When applicable, the time necessary for either party to acquire

sufficient education or training to enable such party to find

appropriate employment.

(f) The contribution of each party to the marriage, including, but not

limited to, services rendered in homemaking, child care, education,

and career building of the other party.

(g) All sources of income available to either party.

The court may consider any other factor necessary to do equity and

justice between the parties.

Fla. Stat. Ann. § 61.08 (1997). In Blumberg v. Blumberg, 561 So. 2d 1187 (Fla. Dist. Ct. App.

1989), the Florida court construed the Florida statute as follows:

The purpose of rehabilitative alimony is to assist a spouse in

becoming self-sufficient, and hopefully placed in a position to

maintain the lifestyle to which he or she had become accustomed

during the marriage.
4

The New Jersey statute is found at N.J. Stat. Ann. § 2A: 34-23 (West 1987).

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Id. at 1188 (citations omitted). The court went on to further explain the concept under discussion:

Furthermore, self-sufficiency connotes more than subsistence or

partial self-support. Courts require more than a showing of mere

employability or a capacity for subsistence level self-support in order

to classify a person as rehabilitated.

Id. at 1189 (citations omitted). This subject 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 alimony and the other party’s ability to pay, as well

as evidence that the party seeking the rehabilitative alimony “has the

ability through retraining or education to provide for a standard of

living reasonablycommensurate with the standard established during

the marriage.”

Id. at 533 (citation omitted) (emphasis added).

In addition to Florida, other states have recognized the significance of the former standard

of living in the rehabilitation inquiry. The Supreme Court of New Jersey addressed the subject

thusly:

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 self-sufficiency.” It is “payable for a

terminable period of time when it is reasonably anticipated that a

spouse will no longer need support.” But, “self-support” does not

mean some subsistence level; it describes the point at which the

supported spouse 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 policy underlying

rehabilitative maintenance is to sever all financial ties between the former couple in an expeditious,

but just, manner. Each former spouse should be independent of the other as soon as is practicable.

As a result, spouses may have to accept employment 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
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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 marriage.”); Wiege v. Wiege, 518 N.W.2d 708, 711 (N.D. 1994) (“A spouse’s

need for 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). While Ms. Crabtree

clearly could be rehabilitated to a reasonable standard of living, viewed in the 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 the two clearly reflects this.

Ms. Crabtree continued to work as a certified public accountant during 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 -- arguably 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 lifestyle, if not the 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 married for approximately half of their probable

work lives; but Ms. Crabtree obviously accrued Social Security credit on her own account based on

a substantial income during the entire period of the marriage. The proof indicates that Ms.

Robertson had little income during her marriage that entitled her to Social Security credit on her own

account.

The proof is clear that Ms. Crabtree’s marriage did not hinder her development as a certified

public accountant; on the other hand, Ms. Robertson delayed her pursuit of a career 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 less, of teaching experience.

Certainly, 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 is used as the measuring stick, the standard of living that she can achieve on her own cannot

be considered a reasonable one.

Our original decision does not run afoul of the legislative policy favoring rehabilitative

alimony. We recognize that policy and certainly do not seek to set a new policy contrary to this

obvious legislative enactment; but our decision simply recognizes that the policy does not come into
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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 preponderates that rehabilitation is simply not feasible.

Having found that Ms. Robertson cannot be rehabilitated, we concluded, and still conclude,

that Mr. Robertson could afford to pay $600 per month when he reached a point where he was no

longer obligated to pay child support. Considering the factors set forth 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’ relative fault -- particularly Mr. Robertson’s adultery --

militate 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 finding 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 forth 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