IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 15, 2003 Session

ROSE MARIE HARPER BRITT v. ELMER LEE BRITT

Direct Appeal from the Chancery Court for Madison County

No. 58837 Joe C. Morris, Chancellor

No. W2003-00430-COA-R3-CV - Filed December 17, 2003

This appeal arises from a divorce action in which the trial court granted wife an absolute divorce and

open-ended rehabilitative alimony, ordered the parties marital property sold and the assets divided,

and entered a parenting plan submitted by wife. We affirm in part, modify in part, reverse in part,

and remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in part;

Modified in part; Reversed in part and Remanded

DAVID R.FARMER,J., delivered the opinion of the court, in which W.FRANK CRAWFORD,P.J.,W.S.,

and HOLLY M. KIRBY, J., joined.

K. Don Bishop, Henderson, Tennessee, for the appellant, Elmer Lee Britt.

Mary Jo Middlebrooks and Betty S. Scott, Jackson, Tennessee, for the appellee, Rose Marie Harper

Britt.

OPINION

Rose Marie Harper Britt (“Wife”) and Elmer Lee Britt (“Husband”) were married in March

1974. One child was born of the marriage in July 1986. In August 2001, Wife filed a complaint for

absolute divorce based on irreconcilable differences and inappropriate marital conduct. Husband

answered and counter-claimed on the grounds of inappropriate marital conduct in March 2002. 

The matter was heard on July 30, 2002. On August 29, 2002, the court notified the parties’

attorneys, by letter, of its ruling. The court awarded Wife a divorce on the grounds of inappropriate

marital conduct. The court found the parties could not reach a satisfactory agreement regarding the

division of property, and ordered it to be sold and the proceeds divided. It also ordered Husband to

pay Wife rehabilitative alimony of $800 per month until further orders of the court, and referenced

a previously approved parenting plan. 
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Husband’s attorney filed a motion to withdraw from the lawsuit on November 5, 2002.

However, the court did not grant the motion until February 18, 2003, when it entered an agreed order

allowing substitution of counsel for Husband. 

In January 2003, Wife’s attorney submitted an order of absolute divorce and mediated

parenting plan to the court. Wife’s attorney informed the court that she had forwarded these

documents to Husband’s attorney on November 7, 2002. She furtherinformed the court that she had

made several requests for responses from Husband’s attorney, but had received none. 

The court entered the order for absolute divorce and permanent parenting plan on January

24, 2003. The final order reiterated the terms of the court’s August 2002 ruling, ordered each party

to pay their own attorney’s fees, and ordered Husband to pay the costs of the cause. Husband filed

a timely appeal to this Court.

Issues Presented 

Husband raises the following issues for review by this Court:

(1) Whether the parenting plan entered by the court without a hearing in January

2003 supersedes a parenting plan that was approved but not entered in July

2002.

(2) Whether the court erred by awarding rehabilitative alimony to Wife without

setting a termination date.

(3) Whether the rehabilitative alimony award is excessive.

(4) Whether the trial court erred by ruling the parties’ property could not be

divided and must be sold.

(5) Whether the trial court erred in entering the Order for Absolute

Divorce without the approval of Husband or his attorney.

Wife requests attorney’s fees and costs incurred on appeal. 

Standard of Review 

To the extent these issues involve questions of fact, our review of the trial court's ruling is

de novo with a presumption of correctness. Tenn. R. App. P. 13(d); Sullivan v. Sullivan, 107 S.W.3d

507, 509 (Tenn. Ct. App. 2002). We may not reverse the trial court's factual findings unless they are

contrary to the preponderance of the evidence. Id. at 510. With respect to the court's legal

conclusions, however, our review is de novo with no presumption of correctness. Id. 
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Parenting Plan 

Husband submits the trial court erred by entering a parenting plan which differed from a plan

previously agreed by the parties and approved by the court in July 2002. Upon review of the two

plans, we find the only substantive difference to be the amount of child support to be paid by

Husband. The parenting plan entered by the court in January 2003 set child support at $655 per

month. The plan agreed upon in July 2002 provided for child support of $580 per month. 

Husband does not argue that the amount of child support set in the January 2003 order

deviates from the statutory guidelines, or that the court erred in calculating his income in determining

child support. Further, the amount of child support set by the trial court has not been raised as an

issue on appeal. Thus any error in entering one parenting plan over the other is harmless. We affirm

the parenting plan as entered in January 2003.

Alimony Award 

Husband contends that although the trial court properly awarded Wife rehabilitative alimony,

it erred by leaving the duration of the award open-ended. Wife, on the other hand, submits the award

was within the trial court’s discretion and, further, that the court properly should have awarded her

alimony in futuro. We agree with wife that alimony in futuro is appropriate in this case, and

accordingly modify the trial court’s award.

We begin our analysis of this issue by noting that, contrary to Wife’s assertion, this Court’s

opinion in Perry v. Perry, No. W2001-01350-COA-R3-CV, 2002 WL 1751407 (Tenn. Ct. App.

March 21, 2002)(Farmer, J., dissenting), rev’d, 114 S.W.3d 465 (Tenn. 2003), does not stand for the

proposition that a court may award rehabilitative alimony without setting a duration for the award.

In Perry, the trial court awarded Ms. Perry rehabilitative alimony for a period of two years, and

ordered the parties to return to court before the end of that time for a review of the award. Perry,

114 S.W.3d at 468. The issue on appeal in Perry was whether a showing of a substantial and

material change of circumstance was required to modify the award. The Tennessee Supreme Court

reversed this Court, holding that, although the trial court retains jurisdiction to modify an award of

rehabilitative alimony for the duration of the award, such modification requires a showing of

substantial and material change of circumstance. Id. Both this Court and the Tennessee Supreme

Court, however, specifically declined to opine on the proprietyof the original award of rehabilitative

alimony. Id. Thus the reasoning of Perry is inapplicable to this case. Further, in light of our

conclusion that alimony in futuro is appropriate in this case, we decline to address the issue of

whether a trial court may properly award rehabilitative alimony without setting a specific duration

for the award. 

Despite the preference for rehabilitative alimony, after reviewing the record before us, we

believe an award of alimony in futuro is appropriate in this case. These parties were married in

1974, when Wife was sixteen years of age. They were married for twenty-eight years and have one

child. During the course of the marriage, Wife was primarily a homemaker, although she worked
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intermittently part-time as a substitute teacher and teacher’s aide. Wife has a high-school education,

and currently works at Wal-Mart earning approximately$7.28 per hour. Wife testified that her hours

at Wal-Mart are limited to twenty-five per week because of Wal-Mart’s cut-backs on payroll.

Husband testified that his gross income from his employment as a mechanic at Sonoco and farming

is in excess of $50,000 per year. We accordingly modify the award of alimony to Wife to an award

of alimony in futuro. We remand for a determination of the amount of alimony in accordance with

the factors enumerated in Tenn. Code Ann. § 36-5-101(d)(1). In light of the foregoing, it is

unnecessary for us to address Husband’s assertion that the amount of the alimony award was

excessive.

Division of Property 

Both Husband and Wife submit the trial court erred by ordering the property in this case sold,

rather than dividing the property. As we perceive it, the primary dispute here concerns who should

receive a new home on Liberty Road, which is mortgaged for $91,500, and who should receive an

older, but debt-free, home on WilloughbyRoad. Both parties submit they should receive the Liberty

Road home. The order of the trial court reads: 

The Court has not been able to reach a satisfactory conclusion from the proposals

presented in the above cause. Therefore, all property, both real and personal, will be

sold and the cash derived therefrom will be divided equally between the parties.

The trial court further ordered that debts of $91,591.91 to Farm Credit Services and $2,979.89 to

WFS Financial would be paid out of proceeds from the sale. 

We agree with the parties that this is unsatisfactory. Although under Tenn. Code Ann. § 36-

4-121 it is within the discretion of the trial court to order the sale of property, we do not believe this

case calls for the sale of all property, both real and personal. Moreover, the court has made no

findings regarding what property, if any, is separate property. Although the equities of this case

might require the sale of the parties’ real property, we do not believe equity demands the sale of all

property, both real and personal. Moreover, we believe the totality of the property can be divided

in such a way asto be equitable to both parties upon application of the statutory considerations. We

accordingly reverse the order requiring the sale of all property. We remand for a determination of

what property, if any, is separate property, and for an equitable division of property pursuant to Tenn.

Code Ann. §36-4-121. 

Conclusion 

We affirm the trial court’s judgment awarding Wife an absolute divorce and the parenting

plan as entered in January 2003. We modify the award of rehabilitative alimony to Wife to an award

of alimony in futuro, and remand for a determination of the amount of alimony. We reverse the

order requiring all property of the parties sold, and remand for an equitable division of property. 
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In light of our holdings on the foregoing, the propriety of the entry of the absolute divorce

without Husband’s approval is pretermitted. We decline Wife’s request for attorney’s fees. Costs

of this appeal are taxed to the appellant, Elmer Lee Britt, and his surety, for which execution may

issue if necessary.

___________________________________ 

DAVID R. FARMER, JUDGE