Sandra Zoe Jeanette Naylor v. William Lee Naylor ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 22, 2016 Session
SANDRA ZOE JEANETTE NAYLOR v. WILLIAM LEE NAYLOR
Appeal from the Chancery Court for Hardin County
No. CH-172 James F. Butler, Chancellor
___________________________________
No. W2016-00038-COA-R3-CV – Filed July 15, 2016
___________________________________
In this divorce appeal, Husband raises several issues concerning marital property and
alimony. We modify the trial court‟s alimony award to award Wife $1,644.00 per month
pursuant to Tennessee Code Annotated Section 36-5-121(f), but otherwise affirm the
decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in
Part; Modified in Part; and Remanded.
J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which KENNY
ARMSTRONG, AND WILLIAM B. ACREE, SP.J. joined.
Jeffrey L. Levy, Nashville, Tennessee, for the appellant, William Lee Naylor.
George D. Norton, Jr., Selmer, Tennessee, for the appellee, Sandra Zoe Jeanette Naylor.
OPINION
Background
The parties, Plaintiff/Appellee Sandra Zoe Jeanette Naylor (“Wife”), and
Defendant/Appellant William Lee Naylor (“Husband”), were married in 1970. Nearly forty-
three years later, the parties separated and Wife filed a complaint for divorce on June 3, 2013.
Wife‟s complaint alleged grounds of inappropriate marital conduct and irreconcilable
differences. Husband answered the complaint on June 20, 2013, neither admitting nor
denying the grounds, averments, and prayers for relief alleged in the complaint. On July 15,
2013, Wife filed a motion requesting temporary support. No order was ever entered
adjudicating Wife‟s request; however, the record does reflect that Husband continued to
support Wife after the parties‟ separation.
On March 24, 2014, Wife filed a motion to find Husband in civil and criminal
contempt for making changes to the parties‟ credit and pension accounts. Husband denied
that his actions were contemptuous by response filed May 16, 2014.
On June 3, 2014, Husband filed a counter-complaint for divorce, admitting the ground
of irreconcilable differences and alleging inappropriate marital conduct against Wife. Wife
filed an answer to the counter-complaint on June 6, 2014, denying that she was guilty of
inappropriate marital conduct. On October 20, 2014, Husband filed an amended answer to
the divorce complaint, admitting both grounds alleged by Wife, but alleging that his
inappropriate marital conduct was justified by the “ill acts” of Wife.
The trial court held a trial on November 10, 2014. At the beginning of trial, the parties
submitted an agreed stipulation concerning the valuation of the parties‟ marital property.
Importantly, the parties did not value Husband‟s two pensions, a Pactiv Retirement Pension
Plan disbursing $1,283.00 per month, and a Packing Corporation of America Pension Plan,
disbursing $609.00 per month. The parties‟ marital property also included Husband‟s Fidelity
Rollover IRA with a balance of $200,593.00, Husband‟s Fidelity Deferred annuity with a
balance of $193,461.00, Wife‟s Fidelity Traditional IRA with a balance of $22,887.00, and
Husband‟s 401K plan with a value of $4,624.00. The parties agreed that the marital home
was valued at $165,000.00 and unencumbered. The parties also owned several timeshares
and other real and personal property. The parties also agreed as to the valuation of their
marital debts. Although the parties agreed as to the values of all the marital and separate
property, including the decision not to assign a specific present value to the pensions, they
did not agree as to its proper distribution.
Much of the testimony at trial focused on the grounds for divorce and Wife‟s alimony
request. Wife, who was sixty-three at the time of trial, testified that she did not work outside
the home for the last 18 years of the marriage. The parties moved frequently because of
Husband‟s work, which Wife asserted prevented her from receiving training or education for
employment. Wife did testify that she worked briefly for a gym during the parties‟ marriage,
but she only worked part-time and Husband insisted that she be available to take vacations
when his work permitted. As such, at the time of the divorce, Wife had no income and she
testified that she was not likely to be able to provide any financial support for her own
maintenance.
Wife continued to live in the marital home in Tennessee throughout the divorce. The
home includes nearly nine acres of property and an adjoining lot that must be maintained.
Wife testified that she allows the parties‟ adult son (“Son”) to live with her in the marital
home. However, Wife testified that Son had lived with the parties during their marriage,
dating back to 2007. According to Wife, Son is unemployed, but because of the acreage of
-2-
the marital home, he is necessary to helping her maintain it. Consequently, Wife testified that
she pays Son $800.00 per month for help with the home‟s yard and other maintenance. Son
then uses these funds to pay his expenses, including his child support obligation and cigarette
purchases. Wife testified that other than this expense and perhaps groceries, she does not
expend any other funds that are attributable to Son. At one point, Wife testified however, that
her cell phone bill included a phone for both herself and her son. Wife submitted an income
and expense worksheet detailing expenses of $8,919.00 per month; Wife admitted, however,
that some of the expenses were miscalculated.
Wife generally blamed the demise of the marriage on Husband‟s extramarital affair.
Although Wife admitted that both parties had engaged in extramarital affairs earlier in the
marriage, Wife testified that they were able to forgive each other and move on together. In
2013, however, Husband informed Wife and their children that he was seeing another woman
with whom he wanted to start a life. Wife testified that she was blind-sided by this revelation,
as the parties had recently been discussing Husband‟s anticipated retirement.
Husband testified that he is sixty-four years old and employed as an engineer in
Monroeville, Alabama. His current income is $6,216.39 per month, plus a weekly per diem
of over $600.00, monthly travel reimbursement, and occasional bonuses. Husband uses the
per diem to rent an apartment in Alabama, where he resided part-time during the marriage
and full-time after the parties‟ separation. Husband testified that because he will no longer be
a legal resident of Tennessee while working in Alabama after the divorce, he will no longer
receive the per diem or travel reimbursements. Husband testified that he was willing to
assume all of the marital debt. Husband also submitted his own statement of income and
expense showing expenses of $5,883.27 per month, including a $2,000.00 per month debt
payment on an approximately $12,000.00 credit card debt and a $300.00 per month payment
on the parties‟ home equity line of credit.
Despite being in generally good health, Husband testified that he hoped to retire at age
sixty-five. According to Husband, his desire to retire stemmed from job-related stress and not
being as “sharp” on the job as he was in younger years. Husband testified that errors on the
job could result in injuries. Husband estimated that he could draw approximately $2,500.00
per month in social security if he retired at 66, but that amount would be slightly less if he
retired earlier. Husband testified that Wife would be entitled to draw half of that amount.
Husband denied that he acquiesced in Son‟s living arrangements. Although Husband
testified that Son did live in the marital home for several years while the parties were
together, Husband asserted that the fault lay with Wife because Husband was often working
out-of-state and had no control over the situation. Husband admitted that Wife often asked
Son to obtain employment. Husband testified that maintenance on the marital home and
adjoining property required only one day of work per week and that Son did not deserve
$800.00 per month for that work, especially given that Wife was sometimes required to hire
professional help when problems arose.
-3-
Husband partly blamed the parties‟ living arrangements on the demise of the marriage.
Husband also asserted that Wife‟s affair in 1976 made Husband distrustful of Wife,
especially given that he worked out-of-town. Husband testified that Wife‟s affair “troubled
[him] every night” for twenty years. Husband admitted, however, that he initiated a sexual
relationship with his former assistant in November 2012, while out-of-town for work.
Husband further admitted that the 2012 affair was not his first marital indiscretion.
The trial court issued a letter ruling on December 2, 2014. The trial court entered a
final order of absolute divorce on January 29, 2015, incorporating by reference its letter
ruling. First, the trial court awarded Wife a divorce upon the ground of inappropriate marital
conduct. The trial court also generally accepted the parties‟ valuation of the marital and
separate property.1 The trial court awarded Wife the marital home and adjoining lot, as well
as 100% of Husband‟s Pactiv and Packing Corporation pensions, including the income
therefrom. The trial did not assign a present value to the two pensions awarded to Wife.
The trial court reduced Wife‟s reasonable expenses to $4,453.00 per month. Because
of Wife‟s age and lack of work experience, the trial court found that the most Wife could
make was minimum wage, but that obtaining any job was unlikely. Including the income
from the two pensions, the trial court found that Wife‟s need totaled $2,561.00 per month. In
contrast, the trial court set Husband‟s expenses at $4,572.00 per month, leaving a monthly
surplus of $1,644.00. The trial court noted, however, that while Husband would no longer
receive a travel reimbursement, it was not certain that he would no longer receive a per diem.
The trial court also found that Husband‟s tax rate would be substantially lower, increasing his
net income. The trial court also found that Son living with Wife predated the separation and
that he was not providing support to Wife. The trial court therefore declined to apply
Tennessee Code Annotated Section, 36-5-121(f)(2)(B), referred to as the “cohabitation
statute” by the parties, to reduce Wife‟s need for alimony and awarded Wife $2,000.00 per
month in alimony in futuro. Finally, the trial court dismissed Wife‟s contempt petition.
Husband filed a motion to alter or amend the trial court‟s judgment on February 24,
2015. In his motion, Husband raised several issues: (1) a mistake regarding the valuation of
the parties‟ marital home; (2) the trial court‟s failure to value Husband‟s pension, resulting in
far more marital property being awarded to Wife; and (3) Husband‟s alimony obligation
exceeds his ability to pay. The trial court entered an order on Husband‟s motion to alter or
amend on June 16, 2015, modifying the final divorce decree to accurately reflect the value of
the marital home, but denying Husband‟s other requested relief. Husband thereafter appealed
to this Court.
Issues Presented
1
The trial court mistakenly valued the parties‟ marital home at $125,000.00 rather than the
$165,000.00 agreed upon by the parties. As discussed below, the trial court eventually corrected this error.
-4-
Husband presented five issues for our review, which are taken from his appellate brief
and reordered as follows:
1. Whether the trial court erred in failing to value Husband‟s two
pensions, which currently pay a total of $1,892.00 per month
before awarding them to Wife, which including these pensions
make the overall distribution of the marital estate inequitable
and whether these should have been awarded to Husband with
any necessary financial support to Wife handled through an
award of alimony.
2. Whether the trial court erred in declining to apply properly the
cohabitation statute in determining that Son‟s contribution in
helping Wife around the house was worth the $800.00 per
month she was paying him or paying on his behalf.
3. Whether the trial court erred in ordering Husband to pay
$2,000.00 in alimony in futuro when Husband had only $1,644
per month to make the alimony payments according to the
court‟s own conclusion, when Wife was also ordered to receive
$1,892.00 from Husband‟s pensions and when the award was
inconsistent with Wife‟s need.
4. Whether the trial court erred in disregarding future actions
known at this time in determining Wife‟s need for support and
Husband‟s ability to pay.
5. Whether Husband is entitled to an award of his attorney‟s fees
on appeal.2
Standard of Review
In this appeal from a bench trial, we review the trial court‟s findings of fact de novo
with a presumption of correctness, unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d). No presumption of correctness, however, attaches to the trial court‟s
2
In the body of her appellate brief, Wife seeks an award of attorney‟s fees incurred in defending this
appeal. Wife, however, did not designate this request as an issue on appeal in a statement of the issues section
of her appellate brief. We therefore deem the issue waived. Forbess v. Forbess, 370 S.W.3d 347, 356 (Tenn.
Ct. App. 2011) (holding that husband waived an issue by his failure to designate it as an issue in his statement
of the issues); see also Rigsby v. Rigsby, No. E2014-02095-COA-R3-CV, 2015 WL 7575075, at *7 (Tenn. Ct.
App. Nov. 25, 2015) (“Because Mother did not raise the issue of attorney‟s fees on appeal in her statement of
the issues, we determine this issue to be waived.”) (citing Champion v. CLC of Dyersburg, LLC, 359 S.W.3d
161, 163 (Tenn. Ct. App. 2011)); Culpepper v. Culpepper, No. E2014-00815-COA-R3-CV, 2015 WL
6735909, at *6 (Tenn. Ct. App. Nov. 4, 2015) (same).
-5-
conclusions of law and our review is de novo. Blair v. Brownson, 197 S.W.3d 681, 684
(Tenn. 2006) (citing Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)).
Discussion
Property Division
Husband‟s first issue concerns the valuation and division of the parties‟ marital
property. Specifically, Husband argues that the trial court erred in failing to place a total
value on Husband‟s two pensions, the Pactiv Pension Plan and the Packing Corporation of
America Pension Plan (“the pensions” or “the subject pensions”), and then awarding the
pensions to Wife. Husband asserts that because these pensions have significant value that
was not considered in the overall property division, the resulting division is inequitable, with
Wife receiving significantly more property than Husband.
As we have explained:
Dividing marital property is not a mechanical process but rather
is guided by carefully weighing the relevant factors in Tenn.
Code Ann. § 36-4-121(c) (2005). Flannary v. Flannary, 121
S.W.3d 647, 650–51 (Tenn. 2003); Tate v. Tate, 138 S.W.3d
872, 875 (Tenn. Ct. App. 2003). As previously noted herein,
trial courts have broad discretion in fashioning an equitable
division of marital property. Jolly v. Jolly, 130 S.W.3d 783, 785
(Tenn. 2004); Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn.
1983), and appellate courts must accord great weight to a trial
court‟s division of marital property, Wilson v. Moore, 929
S.W.2d 367, 372 (Tenn. Ct. App. 1996). It is not this court‟s role
to tweak the manner in which a trial court has divided the
marital property. Morton v. Morton, 182 S.W.3d 821, 834
(Tenn. Ct. App. 2005). Rather, our role is to determine whether
the trial court applied the correct legal standards, whether the
manner in which the trial court weighed the factors in Tenn.
Code Ann. § 36-4-121(c) is consistent with logic and reason,
and whether the evidence preponderates against the trial court‟s
division of the marital property. Jolly, 130 S.W.3d at 785–86.
Farnham v. Farnham, 323 S.W.3d 129, 140–41 (Tenn. Ct. App. 2009) (footnote omitted).
While the trial court‟s division of marital property is reviewed for an abuse of discretion, the
value of marital property involves questions of fact, which are “entitled to great weight on
appeal and will not be second-guessed unless they are not supported by a preponderance of
the evidence.” Owens v. Owens, 241 S.W.3d 478, 486 (Tenn. Ct. App. 2007).
-6-
Generally, “[i]n order to divide marital property equitably in accordance with Tenn.
Code Ann. § 36-4-121(a), the trial court must place a value upon the couples‟ property.”
Cooper v. Cooper, No. 85-305-II, 1986 WL 10691, at *2 (Tenn. Ct. App. Oct. 1, 1986)
(emphasis added); see also Pope v. Pope, No. M2010-00067-COA-R3-CV, 2010 WL
4272690, at *5 (Tenn. Ct. App. Oct. 28, 2010) (“Once the court has classified the property,
the court must place a reasonable value on marital property that is subject to division.”)
(citing Edmisten v. Edmisten, No. M2001-00081-COA-R3-CV, 2003 WL 21077990, at *11
(Tenn. Ct. App. May 13, 2003)). In this case, however, at the start of trial, the parties entered
a joint stipulation regarding the value of the martial assets, in which Wife essentially agreed
to the valuation of assets proposed by Husband. Counsel for Husband specifically stated that
the agreement pertained to “the values” of the parties‟ marital assets. The stipulated exhibit,
however, does not set forth any value for the subject pensions, instead referring only to the
monthly income that is generated therefrom. Additionally, Husband does not propose any
valuation for these pensions in the chart attached to his brief pursuant to Rule 7 of the Rules
of the Court of Appeals of Tennessee, nor does he cite the part of the record wherein he
presented any evidence regarding the valuation that should have been assigned to these
assets. See generally Tenn. Ct. of App. R. 7. Indeed, from our review of the record in this
case, no evidence was presented regarding the total value of the subject pensions. Instead, in
his brief to this Court, Husband asks us to take judicial notice of facts not presented to the
trial court regarding actuarial tables and discount rates and endeavor to calculate the present
value of the subject pensions.
The Tennessee Rules of Appellate Procedure clearly states that: “Nothing in this rule
shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error.” Tenn. R. App. P. 36(a). Additionally, our review is appellate only;
accordingly, we will generally not review issues that were not first presented to the trial
court. See, e.g., Farmers Mut. of Tenn. v. Atkins, No. E2011-01903-COA-R9-CV, 2012 WL
982998, at *4 (Tenn. Ct. App. Mar. 21, 2012) (declining to consider a matter when no initial
determination was made by the trial court); Shaffer v. Memphis Airport Auth., Serv. Mgmt.
Sys., Inc., No. W2012-00237-COA-R9-CV, 2013 WL 209309, at *4 (Tenn. Ct. App. Jan. 18,
2013) (“In an interlocutory appeal, as well as in an appeal as of right, the appellate court
considers only questions that were actually adjudicated by the trial court.”); Reid v. Reid, 388
S.W.3d 292, 294 (Tenn. Ct. App. 2012) (“The jurisdiction of this Court is appellate only; we
cannot hear proof and decide the merits of the parties‟ allegations in the first instance.”); In
re Estate of Boykin, 295 S.W.3d 632, 636 (Tenn. Ct. App. 2008) (“At the appellate level, we
are limited in authority to the adjudication of issues that are presented and decided in the trial
courts.”). Here, Husband‟s own proposed property division did not include a value for the
subject pensions. Indeed, Husband chose to enter into a stipulation regarding the values to be
assigned to the marital property, which stipulation did not contain any value for the two
pensions at issue. Furthermore, Husband put on no proof regarding the present total value of
-7-
the pensions during trial.3 Under these circumstances, we decline to find error where the trial
court accepted the parties‟ stipulation, especially given that no specific evidence was
presented on the subject pensions‟ present values. See generally Prater v. Louisville & N. R.
Co., 62 Tenn. App. 318, 329, 462 S.W.2d 514, 518 (1970) (“The general rule is that
stipulations are regarded as contracts or agreements, and they can be rescinded only upon
grounds justifying the setting aside of such agreements or contracts generally.”). As such, we
affirm the trial court‟s finding that the total value of the marital estate was $618,534.00,
which does not include any specific present value for the subject pensions, as the parties
agreed not to place a present value on these assets.
In the stipulation, however, Husband did not agree as to the equitable division of the
parties‟ martial assets. On appeal, he therefore argues that the trial court erred in awarding
Wife the entirety of the subject pensions because the award of the pensions to Wife
essentially prevents Husband from retiring in the near future. Here, excluding Husband‟s
pensions, as we must due to the lack of evidence presented to the trial court on its value, the
trial court awarded Wife approximately 58% of the marital property, while Husband was
awarded 42% of the marital property, based upon the stipulated values agreed to by the
parties. It is well-settled that:
A trial court‟s division of marital property is to be guided by the
factors contained in Tenn. Code Ann. § 36-4-121(c). However,
an equitable property division is not necessarily an equal one. It
is not achieved by a mechanical application of the statutory
factors, but rather by considering and weighing the most
relevant factors in light of the unique facts of the case.
Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. Ct. App. 1988). Several factors contained in
Tennessee Code Annotated Section 36-4-121(c) lead us to conclude that above property
division was not inequitable, including the long duration of the marriage, see Tenn. Code
Ann. § 36-4-121(c)(1); Husband‟s substantially higher income, earning capacity, and level of
training and education, see Tenn. Code Ann. § 36-4-121(c)(2),(4); and Wife‟s lack of
separate property, see Tenn. Code Ann. § 36-4-121(c)(6). Under these circumstances,
awarding Wife somewhat more marital property is not inequitable.
3
Husband first raised an argument regarding the present value of the subject pensions in his motion to
alter or amend. “A Rule 59 motion should only be granted „when controlling law changes before the judgment
becomes final; when previously unavailable evidence becomes available; or to correct a clear error of law or to
prevent injustice‟ and „should not be used to raise or present new, previously untried or unasserted theories or
legal arguments.‟” In re Lawton, 384 S.W.3d 754, 764 (Tenn.Ct.App.2012) (quoting In re M.L.D., 182
S.W.3d 890, 895 (Tenn. Ct. App. 2005)). Nothing in Husband‟s motion indicated that he was unable to put on
proof regarding the present value of the subject pensions during trial. Indeed, the trial court specifically stated
in denying Husband‟s motion that the information Husband seeks to include “was available at trial, but simply
was not used[.]” Furthermore, Husband does not raise the denial of his motion to alter or amend as an error on
appeal.
-8-
Husband argues, however, that allowing Wife to retain the subject pensions and their
payments as her own property prevents him from having access to these funds at his
retirement. Specifically, Husband argues that:
The trial court‟s unconditional transfer of Husband‟s pension
payments to Wife limits the Court‟s discretion in future to adjust
the financial arrangements between the parties upon Husband‟s
hoped-for and anticipated retirement. Husband clearly indicated
his wish to retire in the near future, and the trial court explicitly
recognized that this may well happen and that the parties‟
incomes would both be affected. The only indication in the
record is that Husband‟s income at that time would be his social
security and whatever he might be able to draw from his IRAs
and nominal 401(k) plan. Upon his retirement, Husband would
qualify for social security and Wife would be eligible for her
spousal entitlement. As the trial court envisaged, Husband could
at that time file for a modification of his alimony. Even if he
were successful and his alimony were terminated, however, the
relief that the court could grant him would be severely limited;
there would be no apparent legal basis for the court to require
Wife to re-assign any of the pension payments to Husband and
no basis for her to pay him alimony. Thus, Husband at best
could wind up with little more than his social security benefits,
while Wife would be receiving Husband‟s pension payments of
$1,892 per month plus her spousal share of social security.
(Internal citation omitted). Husband also asserts that the property division ordered by trial
court is inequitable if the present values of the two pensions awarded to Wife are considered.
Respectfully, we find Husband‟s argument somewhat disingenuous. Importantly, we
note that nowhere in the above argument does Husband mention that he received other
retirement accounts in the division of marital property. The accounts awarded to Husband
total over $260,000.00. Husband characterizes these assets as retirement accounts, and
therefore, they are available for Husband at his retirement. Furthermore, although Husband
clearly expressed his desire to retire within a year following trial, nothing in the record
indicates that Husband is physically unable to perform his job or that it is likely to be
eliminated. Parties to divorces often must adjust to differing economic realities after the
demise of the relationship. This tenet holds true regardless of whether we are considering the
circumstances of the economically disadvantaged spouse or the spouse who has generally
earned more income throughout the marriage. The simple fact that Husband may not be able
to retire at the age he anticipated during the parties‟ marriage does not equate to an abuse of
discretion by the trial court in awarding this property to Wife, as the award ensures that she
has sufficient income upon which to survive after the demise of the parties‟ relationship.
-9-
Finally, we note that this Court is not permitted to “tweak” a trial court‟s property
division unless the overall division is inequitable. See Ghorashi-Bajestani v. Bajestani, No.
E2009-01585-COA-R3-CV, 2010 WL 3323743, at *14 (Tenn. Ct. App. Aug. 24, 2010).
Because we have concluded that Husband agreed not to place a present value on the two
pensions awarded to Wife and failed to present any evidence to the trial court on their present
value, we likewise will not consider the Husband‟s proffered present value for those assets in
determining the value of the property awarded to each party. Given that Husband declined to
assign a value to the subject pensions when he was seeking to retain them, we cannot
conclude that the trial court erred in failing to consider the present value of these assets in
making an equitable division of the parties‟ marital property. Likewise, we decline to engage
in the complicated calculations urged by Husband to assign a value to these assets. Excluding
these assets from the calculation, we cannot conclude that the trial court‟s overall division of
the marital property valued by the agreement of the parties was inequitable. As such,
Husband has failed to show an abuse of discretion that would justify our interference in the
trial court‟s sound judgment.
Alimony
Husband next raises several issues with regard to the trial court‟s decision to award
Wife $2,000.00 per month in alimony in futuro. The standard of review applicable in alimony
cases was thoroughly considered in the Tennessee Supreme Court‟s Opinion in Gonsewski v.
Gonsewski, 350 S.W.3d 99 (Tenn. 2011):
[T]his Court repeatedly and recently observ[ed] that trial
courts have broad discretion to determine whether spousal
support is needed and, if so, the nature, amount, and duration of
the award. See, e.g., Bratton v. Bratton, 136 S.W.3d 595, 605
(Tenn. 2004); Burlew v. Burlew, 40 S.W.3d 465, 470
(Tenn.2001); Crabtree v. Crabtree, 16 S.W.3d 356, 360
(Tenn.2000).
Equally well-established is the proposition that a trial
court‟s decision regarding spousal support is factually driven
and involves the careful balancing of many factors. Kinard v.
Kinard, 986 S.W.2d 220, 235 (Tenn. Ct. App. 1998); see also
Burlew, 40 S.W.3d at 470; Robertson v. Robertson, 76 S.W.3d
337, 340–41 (Tenn. 2002). As a result, “[a]ppellate courts are
generally disinclined to second-guess a trial judge‟s spousal
support decision.” Kinard, 986 S.W.2d at 234. Rather, “[t]he
role of an appellate court in reviewing an award of spousal
support is to determine whether the trial court applied the
correct legal standard and reached a decision that is not clearly
unreasonable.” Broadbent v. Broadbent, 211 S.W.3d 216, 220
- 10 -
(Tenn. 2006). Appellate courts decline to second-guess a trial
court‟s decision absent an abuse of discretion. Robertson, 76
S.W.3d at 343. An abuse of discretion occurs when the trial
court causes an injustice by applying an incorrect legal standard,
reaches an illogical result, resolves the case on a clearly
erroneous assessment of the evidence, or relies on reasoning that
causes an injustice. Wright ex rel. Wright v. Wright, 337
S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318
S.W.3d 328, 335 (Tenn. 2010). This standard does not permit an
appellate court to substitute its judgment for that of the trial
court, but “„reflects an awareness that the decision being
reviewed involved a choice among several acceptable
alternatives,‟ and thus „envisions a less rigorous review of the
lower court‟s decision and a decreased likelihood that the
decision will be reversed on appeal.‟” Henderson, 318 S.W.3d
at 335 (quoting Lee Medical, Inc. v. Beecher, 312 S.W.3d 515,
524 (Tenn. 2010)). Consequently, when reviewing a
discretionary decision by the trial court, such as an alimony
determination, the appellate court should presume that the
decision is correct and should review the evidence in the light
most favorable to the decision. Wright, 337 S.W.3d at 176;
Henderson, 318 S.W.3d at 335.
Gonsewski, 350 S.W.3d at 105–06 (footnote omitted).
Currently, Tennessee law recognizes four types of spousal support: “(1) alimony in
futuro, (2) alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony.”
Gonsewski, 350 S.W.3d at 107 (citing Tenn. Code Ann. § 36-5-121(d)(1)). The type of
alimony awarded in this case, alimony in futuro, is intended to provide long-term support for
the recipient until his or her death or remarriage. Tenn. Code Ann. § 36-5-121(f)(1). This
type of alimony can be awarded where “the court finds that there is relative economic
disadvantage and that rehabilitation is not feasible.” Id.; see also Burlew, 40 S.W.3d at 470–
71; Riggs v. Riggs, 250 S.W.3d 453, 456 n.2 (Tenn. Ct. App. 2007). Alimony in futuro is
appropriate when
the disadvantaged spouse is unable to achieve, with reasonable
effort, an earning capacity that will permit the spouse‟s standard
of living after the divorce to be reasonably comparable to the
standard of living enjoyed during the marriage, or to the post-
divorce standard of living expected to be available to the other
spouse.
Tenn. Code Ann. § 36-5-121(f)(1).
- 11 -
As our supreme court explained, however:
Alimony in futuro “is not, however, a guarantee that the
recipient spouse will forever be able to enjoy a lifestyle equal to
that of the obligor spouse.” Riggs, 250 S.W.3d at 456 n.2. In
many instances, the parties‟ assets and incomes simply will not
permit them to achieve the same standard of living after the
divorce as they enjoyed during the marriage. Robertson, 76
S.W.3d at 340. While enabling the spouse with less income “to
maintain the pre-divorce lifestyle is a laudable goal,” the reality
is that “[t]wo persons living separately incur more expenses than
two persons living together.” Kinard, 986 S.W.2d at 234. “Thus,
in most divorce cases it is unlikely that both parties will be able
to maintain their pre-divorce lifestyle . . . .” Id. It is not
surprising, therefore, that “[t]he prior concept of alimony as
lifelong support enabling the disadvantaged spouse to maintain
the standard of living established during the marriage has been
superseded by the legislature‟s establishment of a preference for
rehabilitative alimony.” Robertson, 76 S.W.3d at 340.
Gonsewski, 350 S.W.3d at 108.
In determining whether alimony is appropriate, the trial court is directed to consider
the factors contained in Tennessee Code Annotated Section 36-5-121(i). Although each of
these factors must be considered when relevant to the parties' circumstances, “the two that
are considered the most important are the disadvantaged spouse's need and the obligor
spouse‟s ability to pay.” Riggs, 250 S.W.3d at 457; see also Bratton, 136 S.W.3d at 605;
Robertson, 76 S.W.3d at 342; Burlew, 40 S.W.3d at 470. Additionally, Section 36-5-121(i)
“reflects a legislative preference favoring short-term spousal support over long-term spousal
support, with the aim being to rehabilitate a spouse who is economically disadvantaged
relative to the other spouse and achieve self-sufficiency where possible.” Gonsewski, 350
S.W.3d at 109. As such, Tennessee law has “a statutory bias toward awarding transitional or
rehabilitative alimony over alimony in solido or in futuro. While this statutory preference
does not entirely displace long-term spousal support, alimony in futuro should be awarded
only when the court finds that economic rehabilitation is not feasible and long-term support
is necessary.” Id.Husband first argues that the trial court erred in calculating Wife‟s need for alimony
where it failed to take into account her cohabitation with the parties‟ adult Son. To support
his argument, Husband cites Tennessee Code Annotated Section 36-5-121, which provides in
relevant part:
- 12 -
In all cases where a person is receiving alimony in futuro and
the alimony recipient lives with a third person, a rebuttable
presumption is raised that:
(i) The third person is contributing to the support of the
alimony recipient and the alimony recipient does not
need the amount of support previously awarded, and the
court should suspend all or part of the alimony obligation
of the former spouse; or
(ii) The third person is receiving support from the
alimony recipient and the alimony recipient does not
need the amount of alimony previously awarded and the
court should suspend all or part of the alimony obligation
of the former spouse.
Tenn. Code Ann. § 36-5-121(f)(2)(B).
Wife first argues that the above statutory guidelines do not apply to this case because
it involves an initial award of alimony, rather than a modification proceeding. Respectfully,
we cannot agree. This Court has previously recognized that “while the above statute concerns
only modification of an existing support award, „the public policy expressed in the statute [is]
relevant‟ to an initial alimony award.” Ezekiel v. Ezekiel, No. W2014-02332-COA-R3-CV,
2015 WL 4916930, at *8 (Tenn. Ct. App. Aug. 17, 2015) (quoting Berkshire v. Berkshire,
No. E2014-00022-COA-R3-CV, 2014 WL 6735385, at *5 n.3 (Tenn. Ct. App. Dec. 1,
2014)). As such, we can consider whether Son‟s cohabitation with Wife is evidence that her
need for alimony is lessened.
Here, the trial court made a specific finding regarding Son‟s cohabitation with Wife.
According to the trial court:
The Court has heard the testimony concerning [Son] residing in
the household of Wife. The Court further finds that this situation
existed prior to the Husband‟s separation from the marital home,
and that while it still exists today, does not represent any change
in the situation from prior to the separation, and that Mr. Naylor
is not providing support to Wife to the extent that she does not
need alimony, and that Wife is not providing support to [Son] in
excess of the value of the services he performs for her
maintaining the grounds and the house where Wife is forced to
reside until she can liquidate the house and obtain a smaller and
less expensive place to live. Therefore, the Court finds that
under all of these circumstances, that the cohabitation statute,
- 13 -
Tennessee Code Annotated §36-5-121(f)(2)(B), is not impacting
Husband‟s duty to support his Wife by a payment of alimony.
The record does not preponderate against the trial court‟s finding that the situation
concerning Son‟s residence pre-dated the parties‟ separation, and in fact, has occurred for
nearly the last decade.
In a similar case, this Court recently affirmed the trial court‟s award of alimony to
wife, despite the fact that her adult son resided with her. See Ezekiel, 2015 WL 4916930, at
*8. The Court of Appeals based its decision on two considerations: (1) testimony was
undisputed that the son was not contributing to the household expenses because of his
unemployment; and (2) the trial court excluded certain purported expenses of wife that were
likely attributable from the adult son. Id. Likewise in this case, the testimony is undisputed
that Son is unemployed and does not contribute financially to the household. Furthermore,
the trial court specifically excluded some expenses that it found were attributable to Son in
determining that Wife‟s expenses were $4,453.00, rather than nearly $9,000.00 in expenses
that Wife alleged. Under these circumstances, we cannot conclude that the trial court abused
its discretion in considering Wife‟s need for alimony despite the fact that her adult son
resides in her home.
Husband next asserts that the trial court erred in awarding alimony in futuro to Wife
because the factors in Tennessee Code Annotated Section 36-5-121(i) do not support an
award of “permanent” alimony. First, we disagree with Husband‟s characterization of Wife‟s
alimony as permanent and therefore immutable. While it is true that alimony in futuro
typically extends until the death or remarriage of the recipient, Tennessee Code Annotated
Section 36-5-121 makes clear that such an award remains in the court‟s control and may be
modified upon a showing of substantial and material changed circumstances. As such, if
Wife‟s need or Husband‟s ability to pay ever changes, either party may return to the trial
court in an effort to modify or terminate the alimony award.
With regard to whether the statutory factors favor an award of alimony in futuro to
Wife in this case, the trial court made the following detailed findings:
a. Wife is almost totally economically disadvantaged relative to
Husband. Her earning capacity is at best, a minimum wage type
job, which will be difficult to obtain at her age and skill level.
Wife needs the financial resources available only to the Husband
including income from pensions and retirement plans;4
b. Husband‟s educational level is higher than Wife‟s and Wife
has never used her education since she has been mainly a stay at
home spouse and has moved around at different locations to
4
See Tenn. Code Ann. §36-5-121(i)(1) (concerning the relative earning capacities of the parties).
- 14 -
facilitate the Husband's employment and to further his
employment opportunities and skill level;5
c. The parties have been married 44 years;6
d. Wife is 63 years of age and Husband is 64, but in good health
and fully employed;7
e. While Wife will be awarded certain assets of the marital
property as set forth on the attached spreadsheet, it is not likely
that Wife will be able to accumulate further assets during her
lifetime other than those awarded;8
f. Wife has devoted her time in the marriage to maintaining a
household for the Husband to return to after work, and has cared
for the children during their minority almost exclusively and
made significant contributions as a homemaker[;]9
g. The Husband is at fault in the destruction of the marriage;10
h. Husband will be able to deduct alimony payments from his
adjusted gross income on his federal income tax return which
will significantly reduce his tax liability each year for the
amounts paid for the support of the Wife. Wife on the other
hand, will be required to report said alimony payments on her
tax return and pay tax thereon.11
The bulk of the trial court‟s rulings concerns Wife‟s earning capacity relative to Husband‟s.
While Husband is currently earning a substantial income, Wife has no income apart from the
pensions that she received as part of the parties‟ marital property dissolution. Even
considering the income that Wife receives from the pensions and the decreased expenses as
found by the trial court, Wife‟s need exceeds $2,500.00 per month.
5
See Tenn. Code Ann. §36-5-121(i)(2) (concerning the relative education levels of the parties).
6
See Tenn. Code Ann. §36-5-121(i)(3) (concerning the duration of the marriage).
7
See Tenn. Code Ann. §36-5-121(i)(4) (concerning the relative ages and mental conditions of the
parties), and (5) (concerning the relative physical conditions of the parties).
8
See Tenn. Code Ann. §36-5-121(i)(8) (concerning the provisions made with regard to the parties‟
marital property).
9
See Tenn. Code Ann. §36-5-121(i)(10) (concerning 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”).
10
See Tenn. Code Ann. §36-5-121(i)(11) (concerning the fault of the parties for the demise of the
marriage)
11
See Tenn. Code Ann. §36-5-121(i)(12) (concerning the tax consequences to each party)
- 15 -
Further, the trial court found that Wife was unlikely to be able to obtain a job paying
even minimum wage, given her age and experience. The evidence does not preponderate
against these findings. According to the record, Wife worked no more than ten hours per
week during the marriage and none in recent years, often due to frequent moves necessitated
by Husband‟s jobs and Husband‟s desire that Wife always be available to go on vacation.
Certainly, Husband never objected during the marriage to Wife‟s lack of work outside the
home. Wife has no training, education, or experience that would make her employable.
Husband does not argue in his brief that Wife could become employable given more training
or education. As such, we cannot conclude that the trial court erred in finding that Wife was
unlikely to obtain employment at this stage in her life.
In contrast, although Husband expressed his desire to retire shortly after the
conclusion of the divorce proceedings due to job stress, nothing in the record suggests that
Husband is physically unable to perform his job. There can also be no dispute that Husband‟s
earning capacity far surpasses Wife‟s. As such, the evidence in the record does not
preponderate against the trial court‟s finding that Wife is a candidate for long-term alimony
in futuro at the present time.
Husband finally asserts that the trial court erred in finding that he had the ability to
pay alimony in the amount of $2,000.00 per month until Wife‟s death or remarriage. Husband
asserts that the trial court specifically found that Husband had a surplus after reasonable
expenses of $1,644.00 per month. In awarding Wife $2,000.00 in alimony per month,
however, the trial court found that Husband receives reimbursements from his employment
for mileage and per diem for expenses, some of which will not be reduced by Husband‟s
move closer to his place of employment. Further, the trial court found that Husband‟s tax
liability would substantially decrease due to his alimony payments to Wife.
We first note that there was no evidence presented by the parties as to the extent of
any decrease in Husband‟s tax liability due to Husband‟s alimony obligation. Furthermore,
although somewhat unclear, Husband did testify that both the mileage and per diem
reimbursements would be eliminated after the divorce. The record contains the following
exchange between Husband and his counsel:
Q. And your testimony is you‟re not going to be receiving any of
[the mileage or per diem] because . . . you‟ll be a resident now
of Alabama?
A. Correct. That‟s only paid to employees that work more than
60 miles away from their home base.
Elsewhere Husband testified: “Once my residence is changed, permanent residence is
changed to Monroeville, I will no longer be eligible for the per diem or the gasoline
reimbursement for travel home.” As such, the evidence is largely undisputed that both the
mileage and per diem would be eliminated from Husband‟s income. Under these
- 16 -
circumstances, it appears that the trial court abused its discretion in requiring Husband to pay
more alimony than he can currently afford. This Court has previously held that a trial court
has abused its discretion in ordering a spouse pay more alimony than he or she can currently
afford. See Ezekiel, 2015 WL 4916930, at *9. As such, we modify Husband‟s alimony in
futuro obligation to $1,644.00 per month.
Future Retirement
Husband next asserts that the trial court erred in failing to consider his anticipated
retirement. Husband testified throughout the divorce trial that he hoped to retire at age sixty-
five, just one year after the divorce. According to Husband, his desire to retire stems from
job-related stress and age, though no physical impairments prevent him from continuing his
current employment. Husband testified that if he retires at sixty-six, he expects to receive
approximately $2,500.00 per month in social security, while Wife will be independently
entitled to receive half of that amount.
The trial court declined to consider Husband‟s anticipated retirement in reaching its
decision concerning alimony. As the trial court explained:
The Court is aware that at such time as Husband does retire, if
his retirement is deemed to be reasonable under the law, that his
income will be materially [a]ffected and that Wife's income will
likewise be effected. The Court is also aware of the rights of
each party concerning the social security they would be entitled
to. However, the Court is not prepared to consider that at this
point since the parties are in a transition period and Wife‟s
expenses may be less at a later time.
“Courts deal with the present. They do not address „future events that may or may not
occur as anticipated or, indeed, may not occur at all.‟” Carter v. Carter, No. M2014-02457-
COA-R3-CV, 2016 WL 697348, at *3 (Tenn. Ct. App. Feb. 19, 2016) (quoting B & B
Enters. of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 848 (Tenn. 2010). Courts
“will decline to act „where there is no need for the court to act or where the refusal to act will
not prevent the parties from raising the issue at a more appropriate time.‟” B & B
Enterprises, 318 S.W.3d at 849 (quoting AmSouth Erectors, LLC v. Skaggs Iron Works,
Inc., No. W2002-01944-COA-R3-CV, 2003 WL 21878540, at *6 (Tenn. Ct. App. Aug. 5,
2003)).
Here, the trial court did not abuse its discretion in declining to consider Husband‟s
anticipated retirement because the issue was more appropriately decided in a future
modification proceeding if and when Husband determines that retirement is feasible. Here,
while Husband may wish to retire at age 65, retirement at that age may not be reasonable
given the economic realities of this divorce. Furthermore, while the trial court specifically
referenced that Wife‟s expenses may decrease as a result of selling the marital home, the
- 17 -
record also reflects that Husband‟s expenses are likely to substantially decrease in the near
future: Husband‟s current expenses include substantial debt payment, one of which, a
$2,000.00 per month debt payment, that will likely be paid off in approximately seven
months at the current rate. Questions involving “reaching far into the future” are best “left to
future judicial determination rather than crystal-ball gazing.” Sprenger v. Superior Court In
& For Sacramento Cnty., 268 Cal. App. 2d 857, 867, 74 Cal. Rptr. 638, 643 (1969). Given
the myriad scenarios that might arise between the divorce trial and Husband‟s anticipated
retirement, the trial court did not abuse its discretion in relying only on the present
circumstances of the parties in reaching its decisions.
Attorney’s Fees
Finally, Husband seeks an award of attorney‟s fees on appeal. An award of appellate
attorney‟s fees is a matter within this Court‟s sound discretion. In re Jaiden W., No. M2014-
00953-COA-R3-JV, 2015 WL 1881092, at *4 (Tenn. Ct. App. Apr. 23, 2015) (citing Archer
v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995) (involving both child support and
alimony)). In considering a request for attorney‟s fees on appeal, we consider the requesting
party‟s ability to pay such fees, the requesting party‟s success on appeal, whether the appeal
was taken in good faith, and any other equitable factors relevant in a given case.
Darvarmanesh v. Gharacholou, No. M2004-00262-COA-R3-CV, 2005 WL 1684050, at *16
(Tenn. Ct. App. July 19, 2005).
Here, Husband has prevailed in reducing his alimony obligation, but has not been
successful on the other issues in this appeal. Importantly, Husband relies on his calculation of
the present value of the pensions awarded to Wife to assert that attorney‟s fees are
appropriate because he was awarded a mere 30% of the marital property. We have concluded,
however, that Husband chose not to present evidence on the value of the subject pensions and
that there can be no appellate relief from that decision. As such, the dissolution of marital
property was much more equitable than Husband‟s characterization. Furthermore, the trial
court found that Wife had a need of over $2,500.00 per month. Wife will only be entitled,
however, to receive $1,644.00 per month in alimony. As such, Wife simply does not have the
ability to pay Husband‟s requested attorney‟s fees. We, therefore, respectfully deny
Husband‟s request for an award of attorney‟s fees incurred in this appeal.
Conclusion
The judgment of the trial court is affirmed in part and modified in part. Specifically,
Husband‟s alimony in futuro obligation is modified to award Wife alimony in futuro pursuant
to Tennessee Code Annotated Section 36-5-121(f) in the amount of $1,644.00 per month.
This cause is remanded to the trial court for all further proceedings as are necessary and are
consistent with this Opinion. Costs of this appeal are taxed to Appellant William Lee Naylor,
and his surety.
- 18 -
_________________________________
J. STEVEN STAFFORD, JUDGE
- 19 -