1 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE JULY 11 , 2002 Ses sion
DAVID ANTHONY NORMAN v. MELISSA DAWN NORMAN
Direct Appeal from the Chancery Court for Williamson County

No. 27201 Russ Heldman, Chancellor

No. M2001-02796-COA-R3-CV- Filed Mar ch 4, 2003

This appeal arises from a divorce proceeding. The tr ial court, finding the Husband completely at fault, granted Wife a divorce. The trial cour t also distributed the parties’ marital property , awarded Wife long-te

rm alimony , set the c

hild suppor

t amount a

nd o rdered Husband to pay $30,000 of Wife’s attorney fees. The parties raise multiple issues on appeal. For the following reasons, we vacate in part, reverse in part and r emand. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Vacated in Part, Reversed in Part and Remanded

A LAN E. H IGHERS , J., delivered the opinion of the cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and H OLLY K IRB Y L ILLARD , J., joined. Rose Palermo, Nashville, TN, for Appellant Maclin P. Davis, Jr., Rachelle Laisnez, Nashville, TN, for Appellee
OPINION David Norman (“Husband”) and Melissa Norma n (“Wife”) were married

on September 18, 1993. After approximately seve n yearsof marriage and the birth of two childre n, on July 11, 2000, Husbandfiled for divorce. As grounds, Husband alleg ed the existence of irrec oncilabl e diffe rences
. Wife soon answ ered and admitted the existence of ir

reconc ilable dif

ferenc es, but al s o counterclaimedalleging inappropriate marital conduc t. Eventually, Husband ame nd ed his compla

int to include inappropriate marital conduct as grounds f or the divorce as well.

Before the case could p ro ceed to trial, the parties unloaded a montage of motions that resulted in severa l hearin gs. Conse

quently , severa

l pre-tr ial orde rs were issued by

the trial court. Mo st rele vant t o this appeal, on December 11, 2000, the trial court issued an orde r for pendente

lite1 Because of the acts perpetrated against our country on September 11, 200 1, the tri al was reset f or the foll owing day. Furthe r, due t o a schedul ing conf lict , th e Honorable R. E. Lee Davi es, t he origi nal ju dge, was replaced by the Honorable R ussell Heldman.

2 Th e cou rt app arently felt tha t if Husb and could offer suc h high p raise to W ife in these g reeting card s, his testimo ny at trial co ncern ing her fa ult was false

. 2 support. The order directed Husband to make monthly alimony payments of $2,377 and te mporary monthly child support

payments of $2,623. The or der further stated that Wife had “suffic ient asse

ts to pay her own a

ttorney’s fees” for prosecuting the case

. Ev en tu al ly, the parties ag reed to withdraw several motions and a trial date was set for September

11, 2001. 1 In the in terim, how ever, H usband a mended hi s complain

t again , this time alleging that addition al act s of inapp ropriate marital c onduct ha

d occurr ed since the filing of his original compl aint. Similarly, Wife amended her c ounter-complaint alleging adultery and further inapprop riate conduct as well. Husband answered denying the allegations and stated that Wife’s ill conduc t cons tituted an affirmative defense to the inappropriate c onduct. Wife filed a similar response. Following the trial, which appears from the record to ha ve been lengthy

and extr emely contenti ous, the trial court issued a Memorandum and Final Judgment. In its Memorandum, issued
on October

19, 2001, t

he court f ound Husband to be the sole cause of the marriag e’s demise and granted the divor ce to Wife on the grounds of inappropriate marital conduct and adultery . The court stated that Husba

nd was not

a credible witness because greeting cards given to Wife by Husband on special occasions dating back to 1997 showed that Husband “a ttempted to manufacturetestimony.” 2 Further, the court, quoting one of t he greeting car

ds, stated, “During the marriage [Wife] was consiste ntly ‘a wonde rful, ca ring pe rson & lo ving moth

er.’ Te nnessee law requ ir e s no mo re. ” In sum, th e court, in its Memorandum, concluded that “Wife has been shattere d emotionally by Husband’s misconduct. Clearly, the fa ult which caused the destruction of the marriag e was Husband’s pure, unadulterated choice in pursuing Renee Kelly a

nd abandoning Wife.”

In the Memor

andum, the

court al so discussed child and spousal support as well as attorney ’s fees. First, after determining Husband’s ave rage monthly

gross income to be $12,536 based on his August 2001 pay stub, the court set c h ild suppor t at $2,744 per month in accordance with the guidelines. Next, the court ordered Husband to pay Wife al im on y in futuroin the amount of $3,000 per month for ten (10) ye ars or until Wife’s death or remarriage. I n doing so, the court stated that rehabilitation was not feasible and that the award was not de si gn ed to be pu ni ti ve in na tu re . F in al ly, the court vacated

Judge Davies’ pendente lite order that stated that Wife had sufficient assets to pay her attorne y’ s fees. Co nsequen

tly, th e court ordered Husband to pay $30,000 towards Wife’s attorney’s f

ees and legal expenses.

On October 26, 2001, a F inal Judgm

ent was e ntered in accord ance with the Memo randum. The Final Ju dgment, in addition to ordering Husband to pay the items listed above, awarded each party their separate property

and divided the marital pr op er ty. In dividing the marital proper ty, the3

courtordered Husband to pay $70,000 from his savings and retirement plans to Wife an d p ay a n additional $8,000 to Wife for her interest in Husband’s car. In tot al, inclu ding the

attorne y’ s fees, Husband was ordered to make a money payment of $108,000 to Wife. Following entry of

the fina l judgme nt, Husband moved the court to stay enforcement of the order pending appeal. Offering a lengthy soliloquy in support of its decision, the cour t refuse d to stay enforcement of Hu sband’s ch ild support and alimony obligations. The c ourt, however, did agree to stay enforc ement of the $108,000 judgment for Wife if Husband posted bo n d in the amount of $200,000.

In response to the court’s decision, Husband filed a motion with this Cour

t pursuan t to Rule 7 of the Te

nnessee Rules of A

ppellate Procedu re. This C ourt dete

rmined tha

t the tria l court lik ely overstated Husband’s monthly g ross income by $767 due to a calculation mistake. Co ns eq ue nt ly,
we granted a “stay

pending appeal of

that portion of the child support award attributable to the $767 monthly gross income included in the original calculation.” We further reduced spousal support to the pre-trial level of $2,377 per month pending appea l. In reducing

Husband’s spousal support obligat ions, we stated that Husba nd would be

liable fo r the diff erence should Wife

prevail on appea l. Fi na ll y, we concluded that the $200,000 bond required by the trial court was unnecessary and stayed enforcement

of Wife’s money judgment upon entry of a

n order preventing dissipation of Husband’s retirement

account. Husband fi led a timely notice of a ppeal and now contests the trial court’s decision as of right. Both Husband and Wife have r aised issues for our review.

I. C LASS IF ICATI ON AND D IVISION OF P ROPE RTY

. In his first issue, Husband argues that the trial court err ed in classifying

a portion of the value of the parties’ home as Wife’s separate proper ty. Husband also makes se veral argume

nts to support his contention that

the cour t failed t o equitab ly d

ivide the parties’ marital p

roperty . When fac ed with the obligation to divide the assets of divorcing parties, courts must first classify each asset as either ma ri ta l o r s ep ar at e p ro pe rt y. Dunlap v. Dunlap , 996 S.W.2d 803, 814- 815 (Tenn. Ct. App. 1998) (citing Cutsinger v. Cutsinger , 917 S.W.2d 238, 241 (Tenn. Ct. App. 1995)). When classifying the pr op er ty, courts must look to section 36-4-121(b) of the Tennessee Code. Section 36-4-121(b) providesin pertine

nt part: (1) (A) “Marital property” means any real and pe rs on al pr op er ty, bothtangible and i ntangib le, acquired by either or both spouses during the course of the marriag e . . . . (B) “Marital property

” includes income from, and any increas e in value during the marr

iage of , proper ty d etermined to be sep arate propert y in accordance with subdivision(b )(2) if e ach par ty substantia lly contribu ted to its preservation and appreciation, and the value of vested and unvested pension, vested and unve sted stock option rights, retirem

ent or oth

er fringe benef

it r ig hts relat

ing to employment that acc

rued during the period of the marriag e.

. . . .4 (D) A s us ed in this subsection, “substantial contribution” may include, but not be limited to, the direct or indirect contribution of a spouse as a homemaker; wage ea rner; parent or family

financial manager, together with such other factor s a s the court having jurisdiction thereof may de termine . . . .

. . . . (2) “Sep arate p

roperty ” means: (A) All real

and pers onal prop erty

owned by a spous e befor e marri age . . . ; (B) Property ac quired in exchange for p ro pe rt y acquired before the marriag e; (C) Income from and appr eciation of p ro perty

owned by

a spouse before marriage except when characterized as marital

property unde

r subdivision (b)(1); . . . .
T ENN

. C ODE A NN . § 36-4-121(b) (2002).
After characterizing the parties' assets as either marital or separate prope rty, the trial court must give parties their separate prope rty and make a

n eq uit able division of marital assets. See Batson v. Batson , 769 S.W.2d 849, 856 (Tenn. Ct. App. 1988). An equitable division of prope rty does not necessarily me an an equal division. See Bookout v. Bookout , 954 S.W.2d 730, 732 (Tenn. Ct. App. 1997 ); Batson , 769 S.W.2d at 859. "The div ision of the

estate is not ren dered inequitabl e simply because it is not math

ematica lly e qual, or because each party did not receive a share of

every item of marital p roperty." King v. King , 986 S.W.2d 216, 219 (Tenn. Ct. App. 1998) (citi ng Cohen
v. Cohen , 937 S.W.2d 823, 832 (Tenn . 1996) ; Ellis v. Elli s , 748 S.W.2d 424, 427 (Tenn. 1988); Brown v. Brown , 913 S.W.2d 163, 168 (Tenn. Ct. App. 1994)).

In determin

ing wha t constitut es an equ itable div ision of ma

rit al assets , the court will consider the fac tors liste d in sectio n 36-4-12 1(c) of the Tennessee Co de. Secti on 36-4-1 21(c) pr ovides:

In making equitable division o f marita l proper ty, the cour

t shall consider all relevant factors inclu ding: (1) The d uration o f the mar

riage ; (2) The age, phy sical and mental health, vocatio nal skills,
em pl oya bi li ty, earning

capaci ty, estate, financi al liabilit i e s and financi al needsof each

of the pa rties; (3) T he t angible or intangible contribution by one (1) party

to the educati on, train

ing or increased earning power of the oth

er part y; (4) The relative ability of

each pa rty for future acquisitions of capital assets a nd income ; (5) The contribution of each party to the ac qui sition, preservation, appreciationor dissipation of the marital or se pa ra te pr op er ty, including the contribution of a party to the marriage as homemaker,5 wage earner or

parent, with the contribution of a party as homema

ker
or wage earner to be given the same we ight if each

party has fulf

illed its role; (6) The v alue of t

he separ ate prop erty

of each party ; (7) The e state of e ach par ty a t the time o f the mar

riage ; (8) The economic circumstances of each pa rty at the time

the division of prope rty is to beco me effective; (9) The tax consequences to each party ; and (10) Such othe

r facto rs as ar e neces sary

to consider the equities between the parties.

T ENN

. C ODE A NN . § 36-4-121(c) (2002). The court must make the division o f marital pro perty without regard to marital fault. TENN

. C ODE A NN . § 36-4-121(a)(1) (2002).

The trial court's cl assification and division of marital property enjoys a pre sumption of
correctness on appea

l and will b e rever sed or mod ified only if the evidence p

reponde rates a gainst the trial court's decision. See Lancaster v. L ancaster , 671 S.W.2d 5 01, 502 (Tenn. Ct. App. 1984); Hardin v. Hardin , 689 S.W.2d 152, 154 (Tenn. Ct. App. 1983). "The tri al court is granted broad discretion in adjusting and a djudicat ing the p arties'

interest in all jointly owned property

. Its decision regarding division of the marital property is entitled to great weight on appeal." Watters v. Watters , 959 S.W. 2d 585 , 590 ( Tenn. Ct. A pp. 19 97) (ci ting Batson , 769 S.W.2d at 859). The fairness of the propert y division is judged upon its final results. See Wade v. Wade , 897 S.W.2d 702, 717 (Tenn. Ct. App. 1994) (ci ting Thomps on v. Thompson , 797 S.W.2d 599, 604 (Tenn. Ct. App. 1990)).

A. Proper Classification of the Parties’ Home.

In its Memora

ndum, inco

rporate d into the F

inal Judgm

ent, the trial cou

rt adopte d Wife’s li st of separate property . In this list, Wife categorized $28,000 that she contributed to the down pa yment of the part ies’ home as her se parate property. Wife claimed that because she had inherited the money it was her separ at e p ro pe rt y. Husband c ontends th at the tri al court erred in failing

to find tha

t a transmutation of these funds had occurred.

This Court has recog nized that s eparat e proper ty ma y become mar

ital prope rty as a result of t he parties’ treatment of the property

. Batson , 769 S.W.2d a t 858. The

doctrine of trans mu tatio n provides a vehicle whereby separate p roperty may

become part of the marital estate. Eldrdige v. Eldrid ge , No. W 2000-00730-COA-R3-CV, 2002 Tenn. App. LEXI S 583, at *26 (Tenn. Ct. App. Aug. 8, 200 2) (ci ting Hofer v. Hofer , No. 02A01-9510-CH-00210, 1997 Tenn. App. LEXIS 74, at *8-9 (Tenn. Ct . App. Fe

b. 3, 1997) ). The do ctrine o f transmu tation ha s been de scribed

as follow s: [Transmutation] occurs when separa te property is trea

ted in such a way as to giv e evidence of an intention t

h at it become marital pr op er ty. One method of cau sing tra nsmutation

is to purchase propert y with separate funds but to take title in joint tena ncy . This6 may al so be do ne by p la ci ng se pa ra te pr op er ty in the name s of both spouses. The rationale underly ing both these doctrines is that dealing withpropert

y in these wa ys c reatesa rebutt

able presumption of

a gift to the marit

al estate . This pre sumption is bas ed also upon the provision in many marital proper ty statutes that propert

y acquired during the marriage is presumed marital. The pr esum ption can be rebuttedby evidenc e o f circumstance s or commu nication s clear

ly indicating an intent that the property remain separate.

Batson , 769 S.W.2d at 858. When Wife inherited the $28,000 from her mother, the inheritance was Wife’s separate property

. See T ENN

. C ODE A NN . § 36-4-121(b)(2)(D). When Wife c ontribute d this money to the purchase of themarital residence and “titled it in the names of both spouses, however, [Wife] created a rebuttable presumption of a g ift to the marital estate.” See Eldri dge , 2002 Tenn. App. LEXI S, at *30. After a review o f the re cord, we

find that Wi fe failed to rebut this presumption. The record is void of any

indication that Wife intended to ke ep th e $ 28 ,0 00 as he r s ep ar at e p ro pe rt y. See id

. at *31. The $53.049.67 check issued to cover the down pay ment was from the parties’ joint funds. Husbandtestified that this money “came from a variety

of different things,” including Wife’s inheritance, the proceeds from the sale of their Jacksonville home, money from savings, and

money received from the sale o f stock options. Abse nt a clea r intent th at Wife int

ended the $28,000 to remain her separate property , we find that there has been a transmutatio n of these funds. See Barnhi ll v. Barn

hill , 826 S.W.2d 443, 542 (T e nn. Ct..Ap p. 1991); see also Batson , 769 S.W.2d at 858. Acco rd ingly , we hold t hat the tr ial cour t erred in classif yin g the $2 8,000 as Wif

e’s sepa rate pr op er ty.

B. Pro per Cl assi

ficat ion o f the 4 01(k).

Husbandowns a 401(k) plan through his employ er. Wife requested and received $70,000 of this plan. On appeal, Husband alleges that the trial court err ed in the classification and distribution of h is 401 (k) pl an. In September 1993, at the time of the parties’ marriage, Husband’s 401(k) was wort

h $72,483.05. Wife conceded in her list of the parties’ separate property that $72,000 from the 401(k) was Husband’s separate property . At trial, Husband introduced a statement showing that as of September 10, 2001 the plan was valued at $137,693.94. D uring di sc ov er y, Husbandha d furnish ed an exhibit to Wife which showed the plan had a value of $219,000 as of September

30, 2000. Husband testified that the only withdrawal he

had made from the plan was for
a loan for their Cadillac. Husband stated that the promissory note he had signed for the Cadillac was an asset of the 401(k) and that he currently owed about $6,000 on the note.

In its order regarding Husba nd’s motion to stay, the trial court explained the rationale be hind its decision awardingWife $70,000 of the 401(k). The trial court found that Husband had produced records showing his interest in the 401(k) was $72,483.05 at the time of the marri age and that the plan was worth $219,543.50 on September 30, 2000. The trial court found that as of September 30, 2000, the marital portion of the plan w as appro ximately 68% and th

us Wife should rece

ive at lea st 34% of the pla

n. At tria

l, Husband intr oduced a s tatement showing that the p lan was w orth7

$137,6 93.94 on September 10, 2001. The court noted that Husband’s loan of $6,041.29 was not included in this figure and since the loan was an asset to the 401(k), thecourt included the amount of the loan to reflect the true balance of $143,735.23. The court then stated that Husband “chose not to produce evidence of the actual shar es of the securities that had been in the amount [sic] on September

30, 2000, which may have shown whether the reduction resulted solely from a decline in the market or whether Husband had made withdraw als from the account which caused some of the reducti on.” Ba sed on this , the cour t stated it was justif

ied in awa

rdin g Wife $70,000, which amounted to approximately 31% of the value of the plan as of September 30, 2000and 48% of the value as of September 10, 2001. The court reasoned that if the va lue of the plan h ad declined betweenSeptember 30, 2000 and Septe mber 10, 2 001 solely

“as a result of a decline in the market,” then the 32% of

the 401(k

) that wa s Husband ’s separ ate prop erty

would hav e “decl

ined in value by the same proportion that the 68% marital portion declined.” I n conclusion, the trial court rejected any argume nt by Husband t

hat the decrease

should be attributed to the marital portion of the plan. Our analysis beg

ins with a discussion of the TennesseeCode. Tennessee CodeAnnotated
sec tion 36-4-121 (b)(1) (B) pro vides tha t “the va lue of ve sted and u

nvested p ension, ve ste d an d unvestedstock

option rights, retirement or other fringe benefit rights relating to employ ment that accrued during the period of the marriag e” is marital property

. See T ENN

. C ODE A N N . § 36-4- 121(b)(1)(B); see also Umstot v. Umstot , 968 S.W.2d 819, 822 (Tenn. Ct. App. 1997). This section also providesthat marital prope rty should be v alued “a s of a dat e as nea r as rea sonably

possible to the final divo rce hear ing d ate.” T ENN

. C ODE A NN . § 36-4-121(b)(1)(A). I n Cohen , our Supr

eme Court discussed thr

ee obser vations:

1. Only the portion of

retirement benefits accrued during the ma rriage are marital property

subject to equitable division. 2. Retirement benefits accrued during the marriage are mar ital propert y subject to equitable division even though the non-employ ee spouse did not contribute to the increase in their value. 3. The value of retirement be nefi ts must be determined at a date as near as possible to the date of the divorce.

Cohen v. Cohen , 937 S.W.2d 823, 830 (Tenn. 1996).

In the case sub judice , Hu sband enteredthe marr iage w ith $72,483 .05 in his 40 1(k). Th is amount is Husban d’s sepa

rate property. At trial, Husba

nd provided the court

with a statement which showedthat the 401(k) plan had a value of $137,693.94 plus the loan of $6,041.29 which is an asset of the plan, resulting

in a total va

lue of $14 3,735.23. The tria l court e rred in it s classification and
c alculation of Husba

nd’s 401( k). Thus, we vaca

te the tri al court ’s judgm ent with r espect t o th e 401(k) plan and find that Husband should be award ed $72,48 3.05 as hissepara te prope rty . This leaves a remainder of $71,252.18 to be divided equitably as marital property

. C. Distribution of the Marital Property.8

More gener

ally , Husband

allege s that the d

ivision of marital pro perty is inequitable and cannot be justified. Unfortunately , we are unabl e to address this issue. After our review of the record, it is impossible to tell the value of each item the trial court awarded to each par ty. The trial court’s Memorandum and Final Judgment are inconsistent and incomplete. The Final Judgment states that Husband shall receive various items of property and that Wife shall rec eive var ious items, but the court did not assign a value to many of these items.

In its Memorandum dated October 19, 2001, the court states that “[b]ased upon al l th e evidence, Husband’s lack of credibility and Wife’scredibility, and all applica ble statutory criter

ia, the Court sustains Wife’s proposal for relief, Exhibit 47, numbers 1-5, 7, 9-16 and 18-21.” In its Final Judgment, dated October 26, 2001, the trialcourt ordered that its Memorandum of October 19, 2001 be made a part of the record in the c ase.
In Exhibit 47, titled Wife’s Proposal for Relief, Wife requested andthe tria l court granted proposal s 1-5, 7, 9- 16 and 18. Of parti cular in terest a re propo sa ls 13 and 14. I n proposal 13, adoptedby the trial court, Wife states that the c ourt should “[ f]in d that the marital estate of the parties is as set ou

t in Wife’slist of mar

ital asse ts and liab ilities whi ch was m ad e an exhibit and divide the marit

al prope rty of th e partie s as proposed in that exhibit.” Turning to Wife’s List of Marital Assets andLiabilities, found at Exhibit 12, Wife proposed that the court divide Husband’s 401(k) retirement plan with $73,500.00 to Husband and $73,500.00 to Wife. However, in proposal 14, Wife asks the court to “[o]rder husband to cause to be transferred to Wife by qualifieddomestic relations order $70,000.00 from h is in teres t in t he Hil ton Ho tel C orpor ation savin gs and retirement plan.” Also, the cour

t adopted Wife’s list

of marita l liabilitie s. This list, however , is incomplete. Wife lists various debts, then provides her opinion of the current value, but she does not provide for
an allocation of these debts between the parties Al so, Wife does not li st all the marital de bts. Further, this list is inconsis tent with the tr ial cour t’s orde r which p rovides t hat “Hus band sha

ll indemnify

Wife and hold her ha

rmless fr om liabi lity

on the debts owed to A merican Express, MasterCard, Texaco, Ro oms to Go and Visa cr edit card accounts of the parties.” The c ourt’s order provides no values for these debts.

In light of our inabi lity

to make sense of the trial court’s Memorandum and Fina l Judgment , we remand t

o the trial court with instructions to make specific findings of fact as to wha titems are separa te property, to whom

they are ass igned a

nd the val ue give n to each item. The

court is a lso instructed to make sp ecific finding s of fac t as to wha

t items ar e marita l assets, w hat items are marital liabil ities, to whom th e items are assigned and the value g iven to each item. Also, the trial court should take into consideration this Court’s decision with reg ard to the clas sificati on of the p arties’ home and Husband’s 401(k) plan.

II. A WARD O F A LI MONY
In his second issue, H

usband ma

kes seve ral arg uments withregard to the trial court’s awa rd of long- term in futuroal im on y. First, Husbandar gu es th at th e c ou rt er re d i n a wa rd in g a li mo ny in9

futuro as opposed to reha bilitative support. F

urther, Husb and argues that the c ourt abus ed its discretion in setting the amount of alimony and the duration for which it should extend.

There are no hard and fast rules gove rning the availability of spousal support. Crain v. Cr ain , 925 S.W.2d 232, 234 (Tenn. Ct. App. 1996). Section 36-5-101(d)(1) of the Tennessee Code, however, provides a framework from which courts ca n make a proper determination of whethe r support isneeded . This sec tion state s:

It is the inte

nt of the g eneral

assembly

that a spouse who is economic ally

disadvant aged, relative to the other spouse, be rehabilitatedwhenever possible by the grant

i ng of an order for payment of rehabilitative, temporar y support and maintenanc e. . . . In determining whether the gra nting of an order for payme nt of support and maintenanceto aparty is appropr iate, and in determining the nature, amount, length of term, and manner of pa yment, the court shall con sider all

releva nt facto rs, inclu ding: (A) The relative earning capa city, obl ig ations, needs, and financial resources of each part

y , includin g income

from pen sion, prof

it sharing or retir ement pla ns and all other sou rces; (B) The relative education and training of ea ch pa rt y, the ability and opportunity of eac

h party to s ecure s uch ed ucati on and train ing, and the necessity o f a part

y to secure further educati on and tra

ining to improve s uch part

y' s earnin g capa

city to a rea sonable l evel; (C) The d uration o f the mar

riage ; (D) The age a nd mental condition

of each party ; ( E) Th e p hys ical condition of each party , including, but not limited to, physical disability or incap acity

due to a chronic de

bilitating disease ; (F) The extent

t o which it would be undesirable for a party to seek employment outside the home because such pa rty will be custodian of a minor c hild of the marriag e; (G) The separate assets of

each party , both real and personal, tangible and intangible; (H) The pr ovision s made with regard to the marital property as defined in § 36-4- 121; (I) The stand ard of liv

ing of th e partie s establis hed during the ma rriag e; (J) Th e extent to which e ach par ty h as made s uch tang ible and intangib le contributions to the marriage as monetary and homem aker contribu

tions, and tangibl e and intangible contributions by a party to the education, training or increased e arning power of the other party ; (K) The relative fault of the parties in cases where th e court, in its discr

etion, de ems it appropriate to do so; and10 (L) Such other factors, including the tax consequences to each party , as are necessary to consider the equities between the parties.
T ENN

. C ODE A NN . § 36-5-1 01(d)(1 ) (2002) . In a ddition, ou

r suprem e court h as stated

that “[w]hil e there is no absol

ute formu la for de termining th e amount o f ali mony , ‘the re al need o f the spou se seeking the support is the single most important factor.’” Aaron v. A aron , 9 09 S.W.2d 408, 410 (Tenn. 1995) (quot ing Cranford v. Cranford , 772 S.W.2d 48, 50 (Tenn. Ct. App. 1989)). Next, “the courts most often consider the ability of the oblig or s pouse to pr ovide support.” Id. Finally , this Courthas held where the marriage w as of a short duration, “the justification for spousal support is diminished when the

spouse se eking su

pport h as contribut ed little, directly or indirectly, to the marriage. Crain , 925 S.W.2d at 234.
We must a

lso be cog niza n t of the fact that trial courts retain discretion in determining whether or not to award rehabilitativesupport a nd that “a ppellate courts wi ll not inter

fere e xcept in the case of an abu se of discretion.” Burlew v. Burlew , 40 S.W.3d 465, 470 (Tenn. 2001) (citations omitted). Further, in determining whether an abuse of discretion has occurr ed, we mu st not mere

ly substitute our judgment for that

of the trial court. White v. Vanderbilt Univ. , 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999). Instead, appel late r eview must seek t o dete rmine wheth er the l ower co urt's decision ha s a ba si s i n l aw or fa ct an d i s t he re fo re no t a rb it ra ry, illogica l, or unconscionable. State v. Brown & Williamson Tobacco Corp. , 18 S .W.3d 186, 191 (Tenn. 2000). Where a co urt has improperl y construed or applied the app licable l egal pr inciples, appella

te court s may

properl y r everse the trial court’s decision. White , 21 S.W.3d at 223.

A. Alimony In Futuro Versus Rehabilitative Support.
As sh o wn above, section 36-5-101(d)(1) reflects a preference for te mporary support, or rehabilitative al im on y, as op po se d t o l on g- te rm su pp or t o r a li mo ny in futuro

. See T ENN

. C ODE A NN

. § 36-5-101 (d)(1) (2001); see also Wilson v. Moore , 929 S.W.2d 367, 375 (Tenn . Ct. App. 1996). “The purpose of

rehabilitative alimony

is to enable the disadvantaged spouse to acquire a dditional job skills, education, or training that will enable him or her to be more self-suf ficient.” Kin ard v. Kinard , 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998) (citations om itted). I n contra st, the purpose of al im on y in futurois to provide support to an economically disadva ntaged spouse who is unable

to achieve somedegree of self-suffic iency. Lori a v. Loria , 952 S.W.2d 836, 838 (Tenn. Ct. App. 1997). Again, a co ur t m ay gr an t a li mo ny in futuroonly where r ehabilita tion of the

economic ally disadvantaged

spouse is not feasible. See Aaron , 909 S.W.2d at 410; Self v. Self, 861 S.W.2d 360, 361 (Tenn. 1993).
In its Final Judgment, the trial court awarded Wife long-te

rm alimony

of $3,000

per month “for a period of ten 10 y ears or u ntil Wife’s death or remarriage.” In its Memorandum, the court explained that there was “such relative economic disadv an tage between Husband and Wife and rehabilitation is not fea sible in co nsid eration o f all relevant factors set forth in T.C.A. 36-5- 101(d)(1).”
This Court sees no reason why rehabilitation of Wife is not possible. Wife is thirty-five (35) yearsold and in g ood healt h. Wife is a

lso college-educ ated with a degr ee in business mana

gement

. Since receiving her

degree in1990, Wife worked for various employ ers thru 1997. Wife testified that the last year she was employed f

ull-time was 1996 and t

hat she st opped wor

king all togethe r in 1997.11

In light of Wife’s age, her g ood health, h er educational background, a nd work history, we find that the tr

ial cour t abused its discre

tion in finding that rehabilitation is not feasible. Thus, we vacate the trial cou rt’s awar d of long-term alimony . However, in light of our disposition of the issues regarding the distribution of the separa te and marital property , we will not address the amount and duration

of the spousal suppo

rt. Since Tennessee Code Annotated section 36-5-101(d)(1) (G) and (H) prov

ide that th e partie s’ separate assets and the distribution of marital property “may have an effect upon theamount of support and maintenance,” the trial court is instructed to reconsider the amount of support awarded in light of the revised property

distribution and in light of this Court’s finding that Wife is capable of rehabilitation. See Cooper v. Cooper , No. 85-305-II , 1986 Tenn. App. LEXI S 3323, at *7-8 (Tenn. Ct. App. Oct. 1, 1986).

III. H USBAND ’ S A BIL ITY TO P AY ALL O RDERED S UPPORT

.

In his third issue, Husband argues that the trial cou rt abuse d its discretion in setting support pay ments at a

level whe

re he will be fina

ncially unable to comply . This issue

is rendered moot by our disposition

of the issu es reg arding

the distri bution of marital a

nd separ ate prop erty

an d a li mo ny.

IV. C ALCULAT ION OF H USBAND ’ S G ROSS I NCOME FOR C HIL D S UPPOR T P URPOSES

.

In Husband’s fourth issue, Husband argues that the trial court er red in ca lculating his gros s income for purposes of

setting his child support obligations. To prope rly calcula te net inc ome, gr

oss income must first be determined. The definition of gross income is given significant cove rage in the guidel ines. The gui delin es defi ne gros s inco me in p art as the fo llow ing:

(3) Gross income. (a) Gross income shall include all income from any source ( before taxes and other deductions), whether earned or unearned, a nd inc ludes but i s not limi ted to , the f ollo wing: wages , salaries, commissions, bon uses, ove rtime pay ments, div ide nds, severance pay , pensions, interest, trust income, annuitie s, capit al ga ins, benefit received from the Social Security Administration, i.e., TitleII Social Sec

urity benefit s, workers compensa

tion benefits w he ther temporary or p er manent, judgmen

ts recov ered fo

r person al injurie s, unemployment

insurance benefits, gifts, prizes , lottery winning s, alimony or maintenance , an d in come from selfemploy ment. Inc ome from s e lf-e mploy ment inclu des incom

e from business o

perat ions and r

ental pr operty , etc., le ss reasona ble expenses nece ssar y to produce suc h income. Deprec iatio n, home offices , excessive promotional, excessive travel, exce ssiv e car expenses, or excessive personal expenses, etc., sho

uldnot be con sidered

reasona ble expenses. “In kind” re

munerat ion must also be imputed as income, i.e., fringe benefits such as a company car, the val ue of o n-base l o dging and meals in lieu of BAQ and BAS for a military member, etc.12 (b)Var iable income such as commission s, bonuses, overtime pa y, dividends, etc., should be averaged and a dded t o the obligor’s fixed salary

.

T ENN . C OMP

. R. & R EGS

. R. 1240-2-4-.03(3)(a) - (b).

Once an obligor parent’s gross income ha s been established, the g uidelines provide the following guidance on determining net income:
(4) Net

income is calculated by subtra

cting from gross income of the obligor

FICA (6.2% Social

Security + 1.45% Medicare for regular wage earners and 1 2 .4% Social Security + 2.9% Medicarefor self-employ ed, as of 1991, or any amount subseque ntly set by fede

ral law as FICA tax), the amount of wit hholding tax deducted for a single wage e arner clai min g one withholding allow ance . . ., and the amount of

child support ordered pursuant to a previous order of child support for other children.

Id. at 1240-2-4-.03(4).

While the guidelines providea straig htforwa rd mathe matical f ormula fo r calculating c

hild support, this deter

minatio n become s more difficult where variable income must be consider ed. Turney v. Turney , No. W2001-00492-COA-R3-CV, 2002 WL 1349503, at *3 (Tenn. Ct. App. Feb. 15, 2002). Although the guidelines p rovide th at varia

ble income should be averaged befor e being addedto fixed income, the guidelines do not provide a method or instruction on how to determine the average. Id . (citing Gore v. Gore , No. M2000-02412-COA-R3-CV, 2001 WL 1660827, at *8 (Tenn. Ct. App. Dec. 28, 2001)) . Thus, a case-by -case basis is the most appropriate method for determining variable income. Id . (cit ing Gore , 2001 WL 1660827, a

t *8). Ge nerally , courts t

ry to average variable income “over a s l ong a time period as circumstances per mit.” Id . (cit ing Gore , 2001 WL 1660827, at *8). “The time period to be used lies within the discre tion of the trial court based up on the facts of the situation.” Tinsley v. Tinsley , No. M2001-02319-COA-R3-CV, 2002 WL 31443210, at *4 (Tenn. Ct. App. Nov. 1, 2002).

Therefor e, this court reviews matters of child support using the defere ntial abuse of discreti o n standard. Han selman v. Hanselman , No. M1998-00919-COA-R3-CV, 2001 Tenn. App. LEX IS 166 , *4 (Tenn. Ct. App. Mar. 15, 2001). “This standard requires us to consider (1) whether the decision has a sufficient evidentiary foundation, (2) whether the trial court co rrectly identified and pro

perly applied the appropriate legal principles, and (3)whether the decision is within the r ange of accept able alternatives.” Id. (citi ng State ex rel. Vaughn v. Kaatrude , 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000)). Thus, this court will not set aside the decision of the trial court unless the decision is “contrary

to the governing law” or the decision “does not rest on an adequ ate evid entiary foundation.” Id

.

In the p resen t case, the trial court found that Husband’s gross income for child support purposes was $12,536.00 per month. Based upon this monthly income, the c hild support guidelines13

providedthat Husband must pay child support in the amount of $2,7 44.00 per month. The court stated that it cou

ld have us ed “the a

verag e of Husb and’s 1 999 income o f $204,839 and his 2000 income of $139,000." The average income for these two yea rs would have been $171,919.00. Instead, the cour

t chose to base ch ild s uppor t on Hu sband ’s 200 1 earni ngs as shown on his pay stub d ated Aug ust 16, 2001. Husband’s regular wag es were $2,139.15 per week which the tria l court found convert

ed to $9,2 70.00 per

month. The

court al so took Hus band’s va cation tim e into ac count. The court found that

Husband had vacation earnings of $2,304.65 whic h “totaled $27,7260.25 (sic) for that period of 8 1⁄2 months.” Thus, the trial court concluded that Husba nd had an aver age monthly income of $12,536.00.

Su bs eq ue nt ly, on November 21, 2001, the trial court issued an order pu rs uant to T.R .C.P. 60.01. This order was issued to correct a portion of the court’s Memorandum Opinion dated October 19, 2001. The court

deleted the following sent

ences, stating that this action was taken to correct an error aris ing fro m oversig

ht or omissi on: “‘Hisregula r wage s of $2,13 9.15 per week co nverts t o $9,270 per month. The total of his vacation of $2,304.65 totals $27,7260.25 (sic) for that period of 8 1⁄2 months.’”

In its order regarding stay

dated November

26, 2001, the court again explained how it arrived at the amount of $12, 536.00 per month as Husband’s average monthly income. I

n the first 8 1⁄2 months of 2001 Husband “received, in addition to his regular wages of $9,270 a month, a bonus of $22,329.60, vacation pay

of $2,304.65, Vac/PTO sell back of $2,270.34 and sick pay of $855.66.” These additiona

l pay ments totaled $27,76 0.25. (Id.). The court then divided $27,760.25 by 8 1⁄2 months and added this figure to $9,270 to reach the amount of

$12,536.0 0 per mont

h as Husband’s income.

On December 21, 2001, Husband filed a motion for review of the trial court’s order deny ing stay of execution. In its order dated Janua ry 8, 2002, thi s Court fou nd that the

trial cou rt erre d in calculating Husband’s gross income for child supp ort purpo ses. This court noted that the trial court took Husband’s bonus of $22,329.60 and divided by 8 1⁄2 months. This court concluded that bec ause Husband’s bonus was “an annual bonus paid only once per yea

r if at all, it should have been averaged over tw el ve months rather than over eight and one ha lf months.” With this in mind, Husband’s monthly gross income wa s reduced by $767.00. This court

declined to address whether the trial cou

rt erre d in including the bonus Husband received in 2001 in its calculation of Husband’s gross income, stating that this issue is best determined in the appeal based on the entire record.

On appeal, Husband a

rgues t hat the tr ial cour t erred in inclu din g Husband’s accumulated vacation pay of $2,304.65 and sic k pay of $85 5.66 in i ts calculation of his gross income. Sp ec if ic al ly, Husband argue s that these figures should not be included in gross income until and unless he chooses to get paid for vacation time or sick pa y, “in addition to reg

ular pay a nd instead of using it for leave purposes.” H usband a lso argues that inclusion of his $22,329.60 bonus was error. Specifically, Husba nd argues that his proof at trial de m onstrated that he would not receive such bonus in the future. Further, Husband argue s that the $ 2,270.34 in vacatio n time that he “sold back” to his company

should be subject to the averaging re quirement of T ENN

. C OMP

. R. & R EGS

. R. 1240-2-4-.03(3)(b) due to its fluctuating nature.

Husbandargues that

if the court inc ludes the

vacatio n sell-ba

ck of $2, 270.34, then it shoul d be averag ed in acc ordance withT ENN

. C OMP

. R. & R EGS

. R. 1240-2-4-.03(b). While this provision14

does provide f

or the av eraging of “ variabl e income su ch as co mm is si on s, bo nu se s, ov er ti me pa y, dividends , etc.,” Husband did not provide the trial court with enough information to compile an average. T ENN

. C OMP

. R. & R EGS

. R. 1240-2-4-.03(b). Husband could hav e provided the cour t with information such as pa st pay stubs to demonstr

atethat he did not ordinarily sell back his va cation time. All that Husband presented to the court was his pay stub of Augu st

16, 2001. Husband argues that if Wife wishes to include his vacation sel l back of $2,270 .34, then he should b e allowe d to present proof, on remand, of the “average of this income he ha s received in the past.” We cannot allow husband to do this. He had a n opportuni ty to do so at trial and did not, so he will not be allowed to do so now.

After reviewing the record, we f i nd that t he trial court abused its discretion in setting the amount of child support. We find that the trial court’s decision did not have a basis in the evidence presented and was not within the range of acce ptable alternatives. Thus, we vacate the trial court’s determination of child sup port and re mand for a determination of net income with the following directiv es. We agree with the trial court’s finding tha t Hus band ’s monthly reg ular wages are $9,270.00. We also ag

ree with the trial court’sdetermin ation to inc lude Husb and’s Va c/PTO Sell Back in the amount of $2,270.34, as Husba nd rece ived this a

mount in ad

dition to hisregula

r wage s. We disagr

ee, howe ver, with the trial court’sdecis ion to inclu de Husband’s vacation pay in the amount of $2,304.65 and his sick pay in the amount of $855 .66. We find that the evidence established that Husba

nd rece ived thes e amountsin lieu of his regular wagesand not in a

ddition to his base pay . In a

ccorda nce with this Court’s Rule 7 decision, we find that Husband’s bonus of $22,329.60 is an annual bonus and should have been divided by twe lve (12) months, instead of eight and one half ( 8 1⁄2) as done by the trial court. The correct amount per month attributed to the annual bonus would be $1,860.80. Husband’s Vac/PTO Sell Back should be divided by

eight a nd one ha lf (81⁄2) months. Thi s yi elds a t otal of $267.10 per month. This gives a total gross income of $11,397.90 per month. We remand to the trial court with instructions to determine Husband’s net income in accordance with the child support guidelines using the figureof $11,397.90 as Husband’s monthly gross income. Once the trial court deter mines Husband’s net

incom e, the court is then instructed to determine the amount of child support in accordance with the guidelines.

A. Medical and Insurance Expenses of the Children

.
Husbandargues that the trial court abused it s discre

tion in req uiring h im to pay all uncovered medical and dental expen ses of the two min or childr en. (App ellant’sBrief, p.68). Hu sband als o takes issue with the trial court’s adoption of Wife’s Parenting Plan which req uir ed Husba

nd to provide “medical, dental, vision and hospi talization coverage for ea ch child equivalent to the covera ge previous ly in

effec t untileach child is 23 ye ars of age or gr aduates from college, whicheve r occurs earlier.”

In his first c ontention , Husband argue s that the t

rial cour t erred

in requir ing him to

pay all uncovered

medical a nd dental expenses. Due to some

confusion in the trial court’sFinal Judgment, this Court is unable to address this issue. The trial court’s Final Judgment contradicts itself. The Final Judgment provides that “Wife’s Parenting Plan is adopted and made the order of the Court.” The Final Judgment later provides that “Husband shall provide at his expense hospitalization, medical, dental and vision insurance coverage for the parties’ childre

n and he s hall pay

all medical and dental bi lls for sa

id children that are not paid by said insurance.” Wife’s Parenting Plan provides in pertinent

part: “Uncovered medical expenses, which include . . . shall be pa id by the residential parent up to Two Hundred

Fifty ($250.00 ) Dollar s. Uncovered expenses in excess of Two Hundred3 As this Court noted in Ba rnhill , “[t] his period does extend, however, unti l the chil d graduates from high

school, T.C.A. § 34-1-101, or when a child is physicall y or mentally incapacitated the duty may extend beyond majority.” Ba rnhill , 826 S.W .2d at 451, n.4 (citi ng Sayne v. Sayne , 39 T enn. A pp. 4 22, 2 84 S .W .2d 3 09 ( 195 5)).

4 According to section 34-1-102 of the Tennessee Cod e, a parent wil l continue t o be responsible for the support of t heir chi ld “ aft er the chi ld re aches eig htee n (18) year s of age i f the chi ld i s i n hi gh sc hool. The dut y of support shall conti nue until the child graduates from high school or the clas s of which the chi ld is a member when the chil d attai ns eig hteen ( 18) years of age gr aduates, whichev er occurs fir st. ” T ENN

. C ODE A NN . § 34 -1-10 2(b ).
15 Fifty ($250.00) Dollars for any given calendar y

ear shall be divided equally between the parties.” Un fo rt un at el y, this Court cannot address Husband’s argument until we know which of the abov e provisions the trial court intende d to make ef fective . Thus, we

remand t o the tria l court with instruction to clarify which of the above provisions was intended to govern.

In his second contention, Husband argues that the trial court abused its discretion in requiring him to provide “medical, dental, vision and hospitalization coverage . . . until eac h child is 23 years of age or gra duat es fr om co lleg e, wh

ichever o ccur s ear

lier .” We agree . This Cour

t has previously held that the law in Tennessee is that “the parental duty to supporta child terminates when the child reaches majority

and a tri al court

i s without authority to extend it beyond that time.” 3 Barnhill v. Barnhi ll , 826 S.W.2d 443, 451 (Tenn. Ct. App. 1991) (citations omitted). Therefore, we modify this aspect of Wife’s Parenting Plan which was “adopted and made the order of the Court” by

omitting the fol lowing “until each child is 23 y ears of age or g raduates from college, whiche ver occur s earlier” and replacing

it with “until each child reaches eighteen ( 18) year s of age.” 4

V. A TTORNEY ’ S F EES W IFE I NCUR RED A T T RIAL

.
Both Husband a

nd Wife ra

ise an issue with respect to the court’s decision ordering H usband to pay $30,000 f or the at torney ’s feesincurre d by

Wife at tr ial. Husband argues that the court abused its discreti on in requ

iring him to pay such a hig h amount. Wife, on the other hand, submits that the court erred in not requiring Husband to pay $57,715.32, which represents all of her attorney ’s fees as well as additional legal expenses.

This cour t has rep eatedly

held that an awar d for atto rney ’s feesin a divor

ce case is treated as spousal support and should be ch ar ac te ri ze d a s a li mo ny in solido

. Wildv. Wild , 66 S.W.2d 892, 894 (Tenn. Ct. App. 2001) (citing Sannella v. Sannella , 993 S.W.2d 73, 76 (Tenn. Ct. App. 1999); Smithv. Smith , 984 S.W.2d 6 06 (Tenn . Ct. App. 1 997); Anderton v. Anderton , 988 S.W.2d 675, 682 (Tenn. Ct. App. 1988); Gilliam v. Gilliam , 7 76 S. W. 2d 81 (T en n. Ct . A pp . 1 98 8) ). Ac co rd in gl y, when reviewing a court’s decision to awar d attorney’s f

ees, we must recognize the wide discretion givento the trial court. Id. Appellate courts may reverse a trial court’s decision to awar d attorney’s fees, however, “where the evidence preponderates agains tthe awa rd, and a manifest injustice will be done” by

allowing the trial court’s decision to stand. Id.

With attorney’s f

ees being a form of alimony , courts must balance the factors given in section 36-5-101(d)(1) of the Tennessee Code, as stated above, in deter mining a proper award. Ag ain, the cornerstones in balancing thefactors are the real need of the requesting spouse and the ability of the obligor spouse to pay. Aaron , 909 S.W.2d at 410. Although the relative fault of the parties is to be16

considered, awardsshould not be punitive in nature. Anderton , 988 S.W.2d at 682. Instead, the true purpose should be to “aid the disadvantaged spouse to become a nd remain self-sufficient and . . . to mitigate the harsh economic realities of divorce

. Id.

Due to our disp osi tion o f issues regarding the distribution of the separ ate and marital pr op er ty, this Court cannot address the attorney fees issue. Thus, we vacate the trial court’s award of attorn ey fees to the Wife andremand f

or a dete rmination of whether attor

ney fees ar e proper in light of the trial court’s revised dec isions regar di ng di st ri bu ti on of se pa ra te an d m ar it al pr op er ty.

VI. A TTORNEY ’ S F EES I NCURRE D O N A PPEAL

.
As a final matter, both parties have requested that this Court order the respective opposing party to pay

the other’s attorney ’s fees incurred for this appeal. Our supreme court has defined the factors that s ho uld be app lied when consider ing a re quest for attorne y’ s fees incurred

on appea l. These factors include the ability of the reque sting party to pa y the acc rued fees, the requesting par ty’s successin the appeal, whether the requesting pa rty sought the a

ppeal in good faith, a

n d any other equitabl e factor that need b e consider ed. See Folk v. F olk , 357 S.W.2d 828, 829 (Tenn. 1962). Ac co rd in gl y, because we have remande d to the trial court for further consideration of questions presented, we find it

equitabl e to decl

ine to award e

ither pa rty the attor ney ’s feesincurre d for this appeal.

VIII. C ONCLUS ION

Based on the foregoingconclusions, we hereby vacate in part and

reverse in part the decision of the trial cou

rt and re mand this c ause

for further proceedings c onsistent with this opinion. Costs on appeal are assessed equally against the Appellant, David Norman, and his surety, as well as Ap pe ll ee , M el is sa No rm an , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

___________________________________ ALAN E. HI

GHERS, JUDGE