1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The Court, with the

concurrence of all judges participating in the ca se, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no prec edential value. When a case is decided by memora ndum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case

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# FILED

December 31, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

______________________________________________ JIMMIE WAYNE WIGGINTON, Stewart Chancery No. 95-7-154 The Honorable Allen W. Wallace, Plaintiff -Appella nt, Judge C.A. No. 01A01-9704-CH-00163 Vs. AFFIRMED AND R EMANDED NELLIE FAYE WIGGINTON, Gregor y D. Smith of

Clarksvil le For Appellant Defendant-Appellee. Clifford K. McGow n, Jr. of W averly For Appellee

________________________ ___________________________________________________ _ MEMORANDUM OPINION 1

___________________________________________________________________________ CRAWFORD, J.

This is a divorce case. Jimmie Wayne Wigginto n appeals the order of the trial court awarding wife alimony in the a mount of $1,000 per month for approximately ten years and $10,000 in

attorne y fees. In Septembe

r 1995, a fte r nearly twenty-t

hree ye ars of ma

rriage , Appella

nt, Jimmie Wigginton, filed for an absolute d ivorce fromhis wife o n the grou nds of irr

econcil able differences and inappropriate marital conduct. Nellie Wigginton’ s motion for t emporary support and possession of the marital home was granted pending the outcome of the suit. Mrs. Wigginton filed an answer admitting that the parties had irreconcilable diff erences but denying that she was guilty of inappr

opriate marital c onduct. Sh

e also fil ed a counter-c ompla int seek ing a divorce from bed and board. Mrs. Wigginton later sought a temporary restraining order prohibiting Mr. Wigginton from squandering the parties’ assets through stock purchase s and conve yances t o third parties. Pursuant t

o Mrs. Wig ginton’s motion to ame nd her co unter-c omplaint, an agreed order was entered permitting her to amend her counter -complaint to add the ground of adultery and request an absolute divorce from Mr. Wigginton. After a hearing in which Mr. Wigginton admitted his adultery, his complaint for divorce was stricken. The par ties stipul ated tha

t Mrs.2

Wigginton was entitled to a divorce on the ground of adultery, an d an absolute divorce was granted on October 21, 1996. In addition to dividing the marital property, the divorce decree orde red Mr. Wigginton to pay $1,000 per month in alimony until Mrs. Wigginton reached age 65 ( approxim a tely ten years), as well a s $10,000 t oward Mr s. Wigginton ’s attorn ey’s fe es. Mr. Wigginton appeals the judgmentof the trial court asserting that the award of alimony was excessive and the award of attorney fees was unjustified and/or excessive. Since this case

was tried by th

e court s itting witho

ut a jury, we revie

w the ca se de novo upon the record with a pre sumption of cor rectne ss of the f indings of

fact by t he trial c ourt. Unless the evide

nce pre pondera tes agai nst

these findings, we

must affi rm, absent error of law. T.R.A.P. 13(d). The factors used to determine the proper amount of maintena nce and support

are found in T.C.A. § 36-5-101 (d)(1) (1996) w hich prov ides: (d)(1) It is the intentof the general assembly that a spouse who is economic ally d isadva ntaged, relative to the other spouse, be rehabilitatedwhenever possible by the granting of an order f or payment of rehabilitative, temporary su pport and maintenance. Where there is such relative econom i c disadvantage and rehabilitation is not feasible in consideration of all relevant factor s, including

those set out in this subsection, then the court may grant an order

for payment of

support and maintenance on a lo ng-term basis or u

ntil the de ath or re

marriag e of the r

ecipien t e xcept as otherwise provided in subdivision (a)(3). Rehabi litativ e support and maintenanceis a separate class of spousal support as distinguished fro m alimony in solido and periodic alimony. In determining whether the granting o f an order for payment of support and maintenance to a par ty is approp

riate, a nd in determining the nature, amount, length of term, and manner of payment, the court shall consider all relevant factors, including: (A) The relative earn ing capacity, obligations, needs, and financial resources of each party, including income fr om pension, profit sha ring or r etireme nt plans a nd all othe

r source s; (B) The relative education and training of each

party, th e ability and opportunity of each party to secure such ed ucation and training, and the ne

cessity o f a part

y to secure further education and training to improve such party's earning capacity to a reasona ble level; (C) The duration of the marriage; (D) The age and mental condition of each pa rty; (E) The physi cal cond

ition of ea

ch party , in cluding , but not limited to, physical disability or incapacity due to a c hronic3 debilitating disease; (F) The exte

nt to which it would be undesirable for a party to seek employment

outside the home because such party will be custodian of a minor child of the marriage; (G) The sepa rate as sets of e ach par ty, both re al and pe

rsonal, tangible and intangible; (H) The provisions made with regard to the m arital p roperty as defined in § 36-4-121; (I) The st and ard of living the parties established during the marriag e; (J) T he extent to which each party has made such tangibl e an d intangible contributions to the marri age as monetary and homemaker

contribu

tions, and tangible an d intangib le contributions b y 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 cour t, in its discretion, deems it appropriate to do so; and ( L) S uch other factors, including the tax consequences to e ach party, as are necess ary to consider the equities between the parties. The courts generally set the amount of support based on the needs of the innocent spouse and the a bil ity of the obligor spouse to pay. “If one spouse is economically disadvantaged compared to the other, the co urts are ge nerally inclined to provide some type of support.” Batson v. Batson , 769 S.W.2d 849, 861 (Tenn. App. 1988) . A lthough there is a legislative preference

for providing only r

ehabilita tive alimo ny, it is ap

propria te to award alimony in futuro if rehabilitation is notfeasible . T.C.A. § 3 6-5-101( d)(1) ( 1996); Self v. Self , 861 S.W.2d 360, 361 (Tenn. 1993). The trial court correctly determined that Mrs. Wigginton should be awarded alimony in futuro until she reaches retirement age. The transcript of the divorce hearing indicates tha t the trial court thoughtfully considered all relevant factors before making the alimony award. Factors of particular note include: the lengt h of the ma

rriage ; the fac t that all

fault was attributed to Mr. Wigginton; that Mrs. Wigginton was underemployed because she sacrificed her career to follow her husband around the country in furtherance of his career; and the probability that given Mrs. Wigginton’s age and work experience, re habilitation is not likely. The amount of the awa rd is reasonable under the facts and cir cumstances and will not be disturbed. Mr. Wigginton also appeals the award of $10,000 toward Mrs. Wigginton’s attorney f ees4

asserting that the award is unjustified and/or excessive. Attorney fee awards are treated as alimony. In determining whether to award a ttor ney fees, the trial court should again consider the relevant

factors in T.C.A. § 36-5-101(d)(1). Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. App. 1995). These awards are within the sound discretion of the trial court, and unless the evidence preponderates against the a ward, it will not be disturbed on appeal. Id

. Furthermore, the record indicates that extra fees were incurred to compel discove ry and because Mrs. Wigginton was forced to seek a restraining order to prevent Mr. Wigginton from squande ring mari tal asset s. The evidence d oes not pr eponder ate aga inst the award

of attorney fees in this case and we find no abuse of discre tion. The judgment of the trial court is affirmed, and the case is re manded for such further procee dings as ma

y be nec essary. Costs of the appeal a re asse ssed aga

inst the ap

pellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ HEWITT P. TOMLIN, JR. SENIOR JUD GE