Tennessee Reports
Unpublished
HESTER v. HESTER, M2004-03023-COA-R3-CV (Tenn.App.
12-19-2006) PENNY W. HESTER v. HARRY F. HESTER, Jr. No.
M2004-03023-COA-R3-CV. Court of Appeals of Tennessee, at
Nashville. July 11, 2006 Session. Filed on December 19,
2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] An Appeal from the Chancery Court for Sumner
County, No. 2003D-309 Tom E. Gray, Chancellor.
Judgment of the Chancery Court is Affirmed.
Vicky V. Klein and L. Anthony Deas, Madison, Tennessee,
for Plaintiff/Appellant Penny W. Hester.
John R. Phillips, Jr., Gallatin, Tennessee, for
Defendant/Appellee Harry F. Hester, Jr.
HOLLY M. KIRBY, J., delivered the opinion of the Court, in
which W. FRANK CRAWFORD, P.J., W.S., and DAVID R. FARMER,
J., joined.
OPINION
HOLLY M. KIRBY, J.
This is a divorce case. At the time the parties married,
both worked full time. In 1994, the husband quit his job
and started a business. In the early stages, the wife
contributed to the business financially and performed
part-time work for it as well. The business prospered and,
eventually, the wife became a full-time homemaker. The
parties separated and later filed for divorce. After two
hearings, the trial court granted the parties a divorce,
named the wife primary residential parent of the parties’
minor child, ordered the husband to pay child support,
divided the parties’ marital estate, and awarded the wife
rehabilitative alimony for seven years and alimony in
solido for attorney’s fees. As part of the property
division, the trial court awarded the wife a substantial
sum of money to be paid from the earnings of the business in
monthly installments for ten years without interest. The
wife appeals the division of marital property, the decision
not to award post-judgment interest on the sum to be paid
from the earnings of the business, and the amount and
duration of the rehabilitative alimony award. We affirm.
Plaintiff/Appellant Penny W. Hester (“Wife”) and
Defendant/Appellee Harry F. Hester, Jr. (“Husband”) married
on September 27, 1991. Husband and Wife were married for
thirteen years and lived together until June 2003. The
parties have one minor child born of the marriage. At the
time of the divorce, Wife was 41 years of age and Husband
was 49.
The only significant separate property brought to the
marriage was Wife’s $30,000 401(k) account and her
double-wide trailer. The trailer was situated on a piece of
property in Cottontown, Tennessee, which was next door to
Wife’s parents. The trailer became the parties’ first
marital residence, and Wife’s parents later deeded the land
to Husband and Wife.
At the time the parties married, both worked full time.
Wife is a high school graduate and attended Volunteer State
Community College for a year and a half. For several years
prior to the parties’ marriage, she worked as a loan
processor. Wife continued in this field, and in 1995, her
annual earnings peaked at $24,575. She stopped working as a
loan processor in 1997.
Husband worked as an electrician when the parties married
and had fifteen years experience in the electrical
business. During this time, Husband had worked his way up
from apprentice to licensed electrician, then a field
superintendent, a project manager, and vice president of an
electrical contracting business. In the early 1980s, Husband
started an electrical contracting business, but the entity
declared bankruptcy in 1988.
When the parties married, Wife had a son from a prior
marriage who was disabled. Wife’s son lived with the
parties. In November 1993, the parties’ daughter was born.
In 1994, Husband quit his job and started another
electrical contracting company — Southeast Electric,
Inc. (“Southeast Electric”). Southeast Electric began as a
sole proprietorship operated from the living room of the
parties’ mobile home; there, Husband calculated job
estimates, leased employees, and paid the company’s bills.
During the weekdays, Husband worked as an electrician on
the company’s job sites. While Husband focused his efforts
on establishing the business, Wife continued working full
time as a loan processor and cared for the parties’
daughter, and her then minor son.
In 1996, the parties built a house on the land given to
them by Wife’s parents. Wife contributed $15,000 from her
401(k) toward the home. With help from some of his
employees, Husband did the construction on the home. By
this time, Southeast Electric had outgrown the parties’
mobile home, and company operations were moved into the
garage attached to the newly constructed house. In
addition, Wife began working part time for Southeast
Electric, doing secretarial work and basic bookkeeping.
Sometime during this transition, Wife contributed the
remaining $15,000 of her 401(k) to Southeast Electric’s
business expenses.
In 1997, Southeast Electric moved to a commercial rental
property to accommodate its expanding operations. The
company hired a complete office staff, and eventually a
full-time bookkeeper. After Southeast Electric moved to its
commercial location, Wife’s direct involvement in the
company diminished. She soon stopped working outside the
home altogether.
Over the next few years, Southeast Electric continued to
prosper, reporting revenues that ranged from $2,499,158 in
1999 to $5,340,451 in 2003. In January 2003, Southeast
Electric, which by that time had approximately 50
employees, moved into its own newly constructed building on
Pleasant Grove Road.[fn1] As the company became more
successful, Husband’s income also increased. Husband earned
$197,700 in 1997, $270,500 in 1998, $188,202 in 1999,
$269,999 in 2000, $320,474 in 2001, $322,500 in 2002, and
$415,000 in 2003.
During this time, Wife was a full-time homemaker. She
assumed most, if not all, of the household and
child-rearing responsibilities. The parties’ daughter was
involved in dance and karate, and Wife periodically
volunteered at her school. In addition, Wife managed the
parties’ personal finances. Wife allocated the money from
Husband’s paycheck between two joint banking accounts
— a checking account and money market account. She
paid the marital expenses and balanced the checkbook.
During their marriage, the parties lived an affluent
lifestyle and accumulated a substantial marital estate.
Turning their first house into a “guest house,” they custom
built a larger brick home with a pool on the land from
Wife’s parents. They hired a housekeeper and a lawn
service. The family vacationed at least once and sometimes
twice a year. The parties’ net marital estate exceeded $2.5
million.
In June 2003, Husband told Wife that he no longer loved
her, and that he wanted a divorce. He then moved into the
guest house. On July 11, 2003, Wife filed a complaint for
divorce, alleging irreconcilable differences and
inappropriate marital conduct. Wife sought to be designated
the primary residential parent of the parties’ daughter and
asserted that she was in need of financial assistance.
Husband’s answer denied irreconcilable differences or
inappropriate marital conduct, but admitted Wife’s need for
financial assistance, asserting that it could be addressed
by an award of temporary support — namely,
rehabilitative or transitional alimony. Husband later filed
a counter-complaint for divorce, alleging irreconcilable
differences and that Wife was guilty of inappropriate
marital conduct. In her response, Wife denied that she
engaged in inappropriate marital conduct and asserted a need
for permanent financial support.
In December 2003, the parties made an attempt to
reconcile. Unfortunately, it was unsuccessful. Thereafter,
pending the trial, Husband was ordered to pay Wife $1,100
each week in support, as well as the expenses associated
with the parties’ marital home, the premiums on his life
insurance and Wife’s car insurance, and reasonable dance
and school expenses for the parties’ daughter. The case was
tried on July 29, 2004 and September 1, 2004.
At the hearings, both parties testified. Much of Husband’s
testimony focused on the financial status of Southeast
Electric as of the time of trial. After acknowledging the
company’s success in 2003 — when Southeast Electric
grossed its highest sales of over $5 million —
Husband discussed the company’s 2004 performance. According
to Husband, the “construction market [was] flat” as of July
2004, which resulted in limited projects and declining
sales. Consequently, the company had reduced its workforce
from over 60 employees to 30 employees. The company had
previously been debt free, but in 2004, it borrowed
$200,000 against a $355,000 line of credit, and Husband
loaned the company an additional $30,000. While his
compensation in 2003 had been over $400,000, Husband said
that he had substantially cut his salary, receiving
$105,000 as of July 29, 2004.[fn2] He also said that the
company had elected not to distribute profit sharing in
2004. To counteract the market downturn and increasing
competition, Husband testified, the company was trying new
marketing techniques and bidding on jobs outside its usual
territory.
In his testimony, Husband also questioned eighteen
unexplained withdrawals from the parties’ personal bank
accounts. Wife managed the parties’ finances and, according
to Husband, while Wife entered every check written from the
accounts, she often made cash withdrawals that went
unrecorded. Husband asserted that between January 2002 and
June 2003, Wife withdrew a total of $26,173.97 in cash from
the parties’ accounts. On cross examination, Husband
acknowledged that he had access to the checkbooks and bank
statements during this time and that Wife sometimes made
cash withdrawals for him.
In her testimony, Wife did not dispute the eighteen cash
withdrawals, but said that the only money she spent, aside
from paying bills and buying groceries, was for everyday
living — e.g., clothing, decorations for the home
and lawn, dry cleaning, and “stuff like that.” She said
that Husband had never questioned her spending during the
marriage and that neither party had ever been required to
explain cash withdrawals. She denied secreting any of the
parties’ funds.
Both parties testified about Wife’s monthly expenses. In
her post-divorce expense statement, filed on July 29, 2004,
Wife’s monthly expenses were broken down into three
categories — household expenses, automobile
expenses, and general expenses. For household expenses,
Wife reported a total of $2,086 per month; this category
included items such as property taxes, utilities, pool and
yard maintenance, and homeowners insurance.[fn3] For
automobile expenses, Wife reported $923 per month. Of this
amount, $500 was allocated to a car payment; Wife testified
that her 1998 towncar, which had 88,000 miles on it at the
time of trial, was unreliable and needed to be replaced in
the near future. In the category of general expenses, Wife
reported a monthly total of $4,966.80. This included
groceries, clothing, the daughter’s school supplies and
extracurricular activities, Christmas and birthday gifts,
and a vacation allowance, as well as expenses for hair and
nails, gym membership, kickboxing, housekeeping, dining
out, bottled water, decorations, and “miscellaneous” items.
In total, Wife’s expense statement showed a monthly deficit
of $7,975.
Wife testified that the statement accurately reflected her
monthly expenses during the marriage and acknowledged that
the parties enjoyed an “affluent” lifestyle. She said that
she wanted to maintain that lifestyle for herself and their
daughter. Husband maintained that Wife’s claimed expenses
were “excessive,” and commented that, “lifestyles change
and adjustments have to be made.”
Both parties presented expert testimony on the value of the
parties’ marital residence, which included the newer living
quarters, the pool, and the “guest house.” Lloyd Andrews, a
certified residential appraiser, testified for Wife.
Andrews emphasized what he characterized as the home’s
rural location, which, he explained, greatly affected its
marketability. Andrews opined that, despite the customized
amenities and a combined living area of 4,837 square feet,
the fair market value of the home was $475,000. James
Samuels, a certified general appraiser, testified for
Husband. Samuels’ testimony focused more on the home’s
amenities — e.g., the high ceilings, pool, and guest
house. Samuels asserted that, despite the home’s “unique”
location just outside the city of White House, its fair
market value was $700,000.
Finally, each party presented the testimony of a certified
public accountant on the fair market value of Southeast
Electric; David Mensel testified for Wife and James Trumble
testified for Husband. Not surprisingly, while both experts
used similar valuation approaches, they came to different
conclusions. Under the “market approach” — a method
based on the sales of comparable businesses — Wife’s
expert, Mensel, found that Southeast Electric had a value
of $1,655,540. Using the same method, Husband’s expert,
Trumble, determined a slightly lower value of $1,653,580.
The divergence between the experts’ valuations was more
marked under the income approach, a method based on future
cash flow. Using the income approach, Wife’s expert Mensel
opined that Southeast Electric had a value of $1,431,750,
while Husband’s expert Trumble determined a value of
$800,591.[fn4] Mensel testified that the market approach
was the superior method of valuation, based in part on the
sufficiency of comparable transactions. On this basis,
Mensel opined that the fair market value of Southeast
Electric was $1,655,540. Husband’s expert Trumble, however,
found the quantity of comparable sales to be deficient, as
well as the data available on those sales. Ultimately,
Trumble used a combination of the income and market
approaches, giving 90% weight to the income approach and 10%
to the market approach. With this methodology, Trumble
asserted that the fair market value of Southeast Electric
was $890,000.
At the conclusion of the hearings on September 1, 2004, the
parties stipulated to the existence of grounds for divorce,
pursuant to T.C.A. § 36-4-129. The final decree was
entered on November 17, 2004. Therein, the court declared
the parties divorced, designated Wife as the primary
residential parent, ordered Husband to pay $2,100 per month
in child support, and required Husband to deposit $500 per
month in an account for post-secondary education for the
parties’ daughter. In valuing the marital estate, the trial
court accepted the valuations of Husband’s experts as to
the value of the marital residence, $700,000, and the value
of Southeast Electric, $1,653,580 (by the “market
approach”). The trial court awarded Wife the marital
residence and $500,000 to be paid from the earnings of
Southeast Electric in monthly installments of $4,167 for
ten years without interest. Husband was awarded Southeast
Electric and the $650,000 improved real property on Pleasant
Grove Road. In addition, the trial court distributed the
parties’ vehicles, retirement and investment accounts,
household furnishings, and other personalty. In total,
Husband took approximately $1,496,000 and Wife took
approximately $1,201,000 of the net marital estate. Because
Wife was responsible for the $225,500 mortgage on the
marital residence, the trial court awarded Wife
rehabilitative alimony in the amount of $3,000 per month
for seven years. In making this award, the trial court
stated that Wife was “capable of employment outside the
home.” Finally, Wife was awarded alimony in solido in the
amount of $9,500 for attorney’s fees. From this order, Wife
now appeals.
On appeal, Wife argues that the trial court erred in three
respects: (1) in dividing the marital estate, and
specifically in setting the amount of the $500,000 award to
Wife; (2) in declining to order Husband to pay
post-judgment interest on the $500,000 award to Wife; and
(3) in both the amount and duration of alimony awarded to
Wife. Wife also seeks an award of attorney’s fees incurred
in this appeal.
Our standard of review is de novo upon the record,
according a presumption of correctness to the trial court’s
findings of fact, unless the preponderance of the evidence
is otherwise. Tenn. R. App. P. 13(d); Berryhill v. Rhodes,
21 S.W.3d 188, 190 (Tenn. 2000). To the extent the trial
court made no specific findings of fact, however, we review
the record to determine where the preponderance of evidence
lies. See Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn.
2002); see also Ganzevoort v. Russell, 949 S.W.2d 293, 296
(Tenn. 1997). The trial court’s legal conclusions are
reviewed de novo and accorded no presumption of
correctness. Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn.
2005).
On appeal, Wife argues that the trial court, instead of
awarding Husband 55% and Wife 45% of the net marital
estate,[fn5] should have divided the marital property
equally between the parties. Specifically, Wife contests
the amount of the $500,000 award and asks this Court to
award her an additional $147,387 to equalize the
distribution. She contends that the “the law seems to
support a presumption that the division [of marital
property] should be equal changed only by the Court’s
consideration and weighing of the relevant factors.” Wife
maintains that the duration of the marriage, the disparity
in the parties’ earning capacity, her contributions to the
business, and her contributions as a homemaker and parent,
taken together warrant, at minimum, an equal division of
the marital property.
In reviewing this issue, we note that a trial court’s
division of marital property is not mechanical and must be
guided by the factors set forth in T.C.A. §
36-4-121(c). Manis v. Manis, 49 S.W.3d 295, 306
(Tenn.Ct.App. 2001); Brown v. Brown, 913 S.W.2d 163, 168
(Tenn.Ct.App. 1994). The relevant factors are:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational
skills, employability, earning capacity, estate, financial
liabilities and financial needs of each of the parties;
(3) The tangible or intangible contribution by one (1)
party to the education, training or increased earning
power of the other party;
(4) The relative ability of each party for future
acquisitions of capital assets and income;
(5) The contribution of each party to the acquisition,
preservation, appreciation, depreciation or dissipation of
the marital or separate property, including the
contribution of a party to the marriage as homemaker, wage
earner or parent, with the contribution of a party as
homemaker or wage earner to be given the same weight if
each party has fulfilled its role; (6) The value of the
separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time
the division of property is to become effective;
(9) The tax consequences to each party, costs associated
with the reasonably foreseeable sale of the asset, and
other reasonably foreseeable expenses associated with the
asset;
(10) The amount of social security benefits available to
each spouse; and
(11) Such other factors as are necessary to consider the
equities between the parties.
T.C.A. § 36-4-121(c)(1)-(11) (2001). The trial court
is afforded wide discretion in dividing marital property,
Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn. 1983); Manis,
49 S.W.3d at 306, and its distribution will be given “great
weight” on appeal. Ford v. Ford, 952 S.W.2d 824, 825
(Tenn.Ct.App. 1997); Wilson v. Moore, 929 S.W.2d 367, 372
(Tenn.Ct.App. 1996). Thus, we ordinarily “defer to the trial
courts in these matters unless their decisions are
inconsistent with the factors in [section] 36-4-121(c) or
are not supported by the preponderance of the evidence.”
Brown, 913 S.W.2d at 168 (citing Barnhill v. Barnhill, 826
S.W.2d 443, 449-50 (Tenn.Ct.App. 1991)).
While there is a presumption that marital property is owned
equally, there is no presumption favoring an equal
division. Bookout v. Bookout, 954 S.W.2d 730, 731
(Tenn.Ct.App. 1997) (citing Salisbury v. Salisbury, 657
S.W.2d 761 (Tenn.Ct.App. 1983)); see also Batson v. Batson,
769 S.W.2d 849, 859 (Tenn.Ct.App. 1988) (“[A]n equitable
property division is not necessarily an equal one.”).
Instead, the goal is to divide the property in a fair and
equitable manner, considering the unique facts of the case
and weighing those facts in light of the relevant statutory
factors in T.C.A. § 36-4-121(c). See, e.g., Cohen v.
Cohen, 937 S.W.2d 823, 832 (Tenn. 1996); Ellis v. Ellis,
748 S.W.2d 424, 427 (Tenn. 1988).
In this case, neither party brought a substantial amount of
property to the marriage. The bulk of the parties’ marital
estate was earned after they were married. While the
thirteen-year duration of the marriage was substantial, it
cannot be characterized as an “exceptionally long”
marriage, as Wife contends. See Ricketts v. Ricketts, No.
M2005-00022-COA-R3-CV, 2006 WL 2842717, at *8 (Tenn.Ct.App.
Oct. 3, 2006) (finding that a marriage of ten years cannot
be considered an exceptionally long duration). During the
marriage, Wife made significant contributions to the
parties’ largest marital asset — Southeast Electric;
she provided the land on which the business was launched
and contributed the sum of her 401(k) as seed money for
business expenses as well as the parties’ first house, which
the company partially occupied in 1996. Wife worked part
time for the company during its early years, while caring
for the parties’ minor daughter, and later assumed the
responsibilities of a full-time homemaker.
Clearly, while Wife tended to the household duties and the
parties’ daughter, Husband was able to focus his efforts on
the business. His hard work along with Wife’s efforts
proved fruitful. From 1999 to 2003, the company’s gross
sales more than doubled, going from $2,499,158 to
$5,340,451. In addition, Husband’s annual income
substantially increased, ranging from $197,700 in 1997 to
$415,000 in 2003. Consequently, by the time the parties
divorced, at the ages of 41 (Wife) and 49 (Husband), they
had accumulated a substantial marital estate.
Based on the above evidence, and in light of the relevant
statutory factors, Wife is entitled to a significant share
of the parties’ marital property. Accordingly, the trial
court awarded Wife $500,000 to be paid from the earnings of
Southeast Electric in monthly installments of $4,167 over
the next ten years. In addition, she received the marital
residence, which the court valued at $700,000, all of the
marital household furnishings, two vehicles, and
approximately $175,000 in banking, retirement, and
investment accounts. Thus, as noted above, Wife received
45% of the parties’ net marital estate.
After a careful review of the record, we must conclude that
the trial court appropriately considered Wife’s
contributions in distributing the marital estate,
specifically regarding the $500,000 award. At trial, the
court heard testimony regarding Southeast Electric’s
declining performance in 2004; due to a market downtown,
the company had cut its workforce by half, elected against
the distribution of profit-sharing, incurred a substantial
amount of debt, and significantly reduced Husband’s salary.
Despite this unrebutted evidence, the trial court accepted
the “market approach” valuation of $1,653,580 by Husband’s
expert — the second highest figure presented by the
experts — and awarded Wife $500,000 to be paid from
the earnings of the company. In effect, Wife received 30%
of the business’s fair market value at the time of trial.
While the apparent disparity in the parties’ earning
capacity gives us some pause, in light of the overall
substantial size of the marital estate and the deference
accorded a trial court’s division of marital property, we
must conclude that the evidence does not preponderate
against the trial court’s division of the parties’ marital
estate. Accordingly, we affirm the trial court’s decision
on this issue. Wife argues next that the trial court erred
in not ordering Husband to pay interest on the $500,000
award to Wife. She contends that the trial court was
without authority to deny her post-judgment interest at the
rate of 10% per annum for ten years on the sum of $500,000,
pursuant to T.C.A. § 47-14-121 (2001). Accordingly,
she asserts that the installments payments should be $6,607
per month instead of $4,167 per month.
As indicated above, the trial court, in dividing the
parties’ marital estate, awarded Wife “$500,000.00 cash
from Husband payable at $50,000.00 per year for ten (10)
years to be paid in monthly installments of $4,167.00.” In
doing so, the trial judge explained his reasoning:
No indication at trial was made to cause the Court to
find that Southeast Electric, Inc. is for sale or
contemplated to be sold. If it is sold within the next ten
(10) years the cash award to [Wife] should be paid in full
from proceeds of the sale. No interest is awarded
because payments to Wife will come from earnings of the
corporation.
Clearly, the trial court, without granting Wife an interest
in Southeast Electric, intended to make a distributive
award of part of the value of the corporation in an attempt
to achieve equity in the overall division of the parties’
marital estate. An additional award of interest would upset
the balance the trial court sought to achieve.
Moreover, we disagree with Wife’s assertion that the trial
court did not have authority to make the award without an
accrual of interest over the ten-year payment period. To
the contrary, a “party’s right to postjudgment interest is
based on that party’s entitlement to use the proceeds of
the judgment after the award.” Vooys v. Turner, 49 S.W.3d
318, 322 (Tenn.Ct.App. 2001) (citing West Am. Ins. Co. v.
Montgomery, 861 S.W.2d 230, 232 (Tenn. 1993)); see also
Williams v. Williams, No. E1999-02750-COA-R3-CV, 2000 WL
816821 (Tenn.Ct.App. June 23, 2000) (“[T]he rule is that
the statutory interest does not begin to accrue until the
party awarded judgment becomes entitled to the money.”). In
the instant case, the trial court ordered that the $500,000
be paid in future installments. Wife is not entitled to use
the proceeds of each installment until that installment is
due. See Price v. Price, 472 S.W.2d 732, 734 (Tenn. 1971)
(denying post-judgment interest from the date of the decree
because the award was payable in monthly installments).
Nothing in the record indicates, nor does Wife allege, that
Husband has failed to make the required payments. See
Whiteside v. Whiteside, No. 03A01-9707-CV-00272, 1998 WL
237715, at *12 (Tenn.Ct.App. May 7, 1998) (awarding
post-judgment interest from the date that each unpaid
installment matured). Consequently, we affirm the trial
court’s decision on this issue as well.
As her final issue, Wife contends that the trial court
erred in its award of rehabilitative alimony in the amount
of $3,000 per month for seven years. Wife maintains that
the trial court erred in both the amount and duration of
spousal support awarded. She asserts that $3,000 per month
is insufficient to account for her present need, which she
says amounts to $6,016 per month.[fn6] She argues that she
should not be required to encroach upon her award of
marital property, namely the $500,000, to satisfy her
present need, but rather should be able to invest this
money towards her future security. As to the duration of
the alimony award, Wife asserts that the disparity in the
parties’ ability to earn income, the length of the
marriage, and the combined efforts of the parties in
amassing a sizeable estate, which includes an
income-producing business, warrant an award of alimony in
futuro. According to Wife, while Husband will be able to
maintain the marital standard of living long past the
seven-year period, she will continue to be economically
disadvantaged.
Trial courts are afforded broad discretion in deciding
whether spousal support is warranted and in determining the
type, amount, and duration of such support. Bratton v.
Bratton, 136 S.W.3d 595, 605 (Tenn. 2004). Accordingly, a
trial court’s findings as to spousal support are reversed
only in instances in which this discretion “has manifestly
been abused.” Hanover v. Hanover, 775 S.W.2d 612, 617
(Tenn.Ct.App. 1989). “If the discretionary decision is
within the range of acceptable alternatives, appellate
courts will not substitute their decision for that of the
trial court simply because the appellate court would have
chosen a different alternative.” Clement v. Clement, No.
W2003-02388-COA-R3-CV, 2004 WL 3396472, at *19
(Tenn.Ct.App. Dec. 30, 2004).
We must also be mindful of the legislative preference for
rehabilitation. T.C.A. § 36-5-101(d)(1)(C) (“It is
the intent of the general assembly that a spouse who is
economically disadvantaged relative to the other spouse, be
rehabilitated whenever possible.”). A rehabilitative
alimony award is intended to provide the economically
disadvantaged spouse an opportunity to obtain the education
or training necessary to allow the disadvantaged spouse to
achieve an “appropriate standard of living, as compared to
the standard of living enjoyed during the marriage.”
Ricketts v. Ricketts, 2006 WL 2842717 at *5 (citing
Robertson v. Robertson, 76 S.W.3d 337, 340-42 (Tenn. 2002)).
The purpose of rehabilitative alimony is to encourage and
aid the disadvantaged spouse in becoming self-sufficient.
Burlew v. Burlew, 40 S.W.3d 465, 471 (Tenn. 2001). Where
economic rehabilitation is not feasible, however, a court
may award alimony in futuro.[fn7] See T.C.A. §
36-5-101(d)(1)(C); see also Burlew, 40 S.W.3d at 471.
Furthermore, there are no hard and fast rules for
determining whether spousal support is warranted and, if
so, the nature and extent of such support. Ricketts, 2006
WL 2842717 at *6 (citing Manis v. Manis, 49 S.W.3d 295, 304
(Tenn.Ct.App. 2001)). Instead, these decisions are
factually driven and require the trial court to carefully
balance the relevant statutory factors in section
36-5-101(d)(1)(E) of the Tennessee Code Annotated. Brown v.
Brown, 913 S.W.2d 163, 169 (Tenn.Ct.App. 1994). The
statutory factors are:
(i) The relative earning capacity, obligations, needs,
and financial resources of each party, including income
from pension, profit sharing or retirement plans and all
other sources;
(ii) The relative education and training of each party,
the ability and opportunity of each party to secure such
education and training, and the necessity of a party to
secure further education and training to improve such
party’s earning capacity to a reasonable level;
(iii) The duration of the marriage;
(iv) The age and mental condition of each party;
(v) The physical condition of each party, including, but
not limited to, physical disability or incapacity due to a
chronic debilitating disease;
(vi) The extent 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;
(vii) The separate assets of each party, both real and
personal, tangible and intangible;
(viii) The provisions made with regard to the marital
property as defined in § 36-4-121;
(ix) The standard of living of the parties established
during the marriage;
(x) The extent to which each party has made such tangible
and intangible contributions to the marriage as monetary
and homemaker contributions, and tangible and intangible
contributions by a party to the education, training or
increased earning power of the other party;
(xi) The relative fault of the parties in cases where the
court, in its discretion, deems it appropriate to do so;
and
(xii) Such other factors, including the tax consequences
to each party, as are necessary to consider the equities
between the parties.
T.C.A. § 36-5-101(d)(1)(E)(i)-(xii) (Supp.
2004).[fn8] Of these factors, the most important are the
need of the disadvantaged spouse and the ability of the
obligor spouse to pay. Bratton, 136 S.W.3d at 604; Anderton
v. Anderton, 988 S.W.2d 675, 683 (Tenn.Ct.App. 1998).
In this case, the trial court did not fully explain its
decision that rehabilitative alimony was feasible, nor did
it expressly make any findings of fact regarding the
relevant statutory factors in T.C.A. §
36-5-101(d)(1)(E). Instead, the trial court took the case
under advisement and issued a final decree that simply
stated that “this is an appropriate case for rehabilitative
alimony” because Wife was allocated the responsibility for
paying the mortgage on the marital residence and because
Wife was “capable of employment outside the home.”
Consequently, we have independently reviewed the record in
light of the relevant statutory factors.
Wife is a high school graduate and attended a community
college for a year and half. At the time of the marriage,
she was working full time as a loan processor and gained
several years of experience in that field. When the parties
divorced after thirteen years of marriage, Wife was 41
years of age, and nothing in the record reflects that she
suffers from any physical or mental limitations. In
addition, the parties’ minor daughter was 10 years old at
the time of trial and attending school during the daytime.
Thus, with the proper financial support, Wife is capable of
acquiring additional training or education and reentering
the workforce.
Regarding the division of property, moreover, both parties
received a substantial amount of marital property.
Specifically, Husband was awarded approximately $1,496,000
and Wife was awarded approximately $1,201,000 of the
marital estate. Husband took the parties’ major
income-producing asset — Southeast Electric —
along with the Pleasant Grove Road land and facility. On
the other hand, Wife, who contributed to the growth of the
business both directly and indirectly, received a $500,000
cash award to be paid from the earnings of the business
over the next ten years. In addition, Wife received the
marital residence, which is on the land deeded to the
parties by Wife’s parents and has a fair market value of
$700,000. Wife also received the bulk of the parties’
investment and retirement accounts.
Notably, the trial court made no express finding on the
parties’ relative earning capacity, and this is a
substantial factor. The record reflects that Wife’s
earnings peaked in 1995 at $24,575. In contrast, from 1997
to 2004, Husband’s average salary, despite its recent
decline, was approximately $271,000. The parties also
established an affluent lifestyle during the marriage, one
which allowed Wife to fully devote herself to homemaking
and child-rearing for about seven years. Clearly, the
disparity in the parties’ ability to earn income and their
marital standard of living weigh against the decision to
make the award of support temporary in this case. In
determining an alimony award, however, every relevant
statutory factor must be considered, including the division
of marital property and the duration of the marriage. See,
e.g., Cooke v. Cooke, No. M2001-03026-COA-R3-CV, 2003 WL
21392003, at *8 (Tenn.Ct.App. June 17, 2003) (“Neither the
standard of living . . . nor the income or earning
potential of the other spouse can be used as the sole or
determinative factor.”). Here, the trial court’s division
of marital property coupled with the award of rehabilitative
alimony affords Wife the opportunity to substantially
increase her earning capacity. Moreover, from the statement
of expenses submitted by Wife, there is room for Wife to
reduce expenses without a substantial adverse effect on
herself or the parties’ daughter.
This issue presents a close question. However, after
considering all of the relevant statutory factors, we
cannot say that the trial court abused its discretion in
the amount or duration of the award to Wife of
rehabilitative alimony. Therefore, we affirm on this issue
as well.
Finally, we have considered Wife’s request for attorney’s
fees, and find that it must be denied.
The decision of the trial court is affirmed. Costs of this
appeal are to be taxed to Plaintiff/Appellant Penny W.
Hester, and her surety, for which execution may issue, if
necessary.
[fn1] The parties had previously purchased this land, and
Husband built the facility. The company pays Husband rent
for use of the building.
[fn2] This amounts to a total salary of $190,672 for 2004.
[fn3] This amount does not include the mortgage payment for
the marital residence. According to Wife, the parties were
trying to pay off the mortgage in five years and, prior to
their separation in June 2003, made payments of $5,100 a
month; this amount exceeded the required obligation. After
the parties separated, Husband paid the $5,100 for June,
July, and August, but made interest only payments
thereafter. Wife testified that the mortgage will mature in
2008 and reported an outstanding balance of $225,500 at the
time of trial.
[fn4] Among other things, the disparity in valuations under
the income approach arose from the experts’ use of
different earnings periods. Mensel utilized Southeast
Electric’s earnings for 2003-the company’s highest earnings
period. Trumble, on the other hand, used an average of
several years, including earnings from January 2004 to July
2004.
[fn5] Pursuant to Rule 7 of the Rules of the Court of
Appeals of Tennessee, Wife attached a statement to her
appellate brief detailing the trial court’s distribution of
the marital property. According to Wife’s statement,
Husband received $1,496,156 (55%) and Wife received
$1,201,382 (45%) of the net marital estate.
[fn6] This figure is derived from Wife’s expense statement,
which is discussed above, but does not include the $1,959
attributed to general expenses for the parties’ daughter.
Furthermore, as Wife points out, this amount does not
include the $739.34 in monthly mortgage interest payments
on the marital residence.
[fn7] Alimony in futuro provides long-term financial support
to a disadvantaged spouse who is not capable of economic
rehabilitation. See generally Burlew, 40 S.W.3d at 471.
[fn8] The alimony provisions of section 36-5-101 have since
been removed, Act effective July 1, 2005, ch. 287, §
1. The above factors may now be found in T.C.A. §
36-5-121 (2005).