Roger Dale Raper v. Johanna Raper ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 8, 2010 Session
ROGER DALE RAPER v. JOHANNA RAPER
Appeal from the Chancery Court for Monroe County
No. 15, 850 Jerri S. Bryant, Chancellor
No. E2009-02345-COA-R3-CV - Filed February 2, 2011
In this divorce case, the trial court granted Roger Dale Raper (“Husband”) and Johanna
Raper (“Wife”) an absolute divorce, thereby ending their 26-year union. A bench trial was
held to resolve the remaining issues of property division and alimony. The court divided the
marital property and awarded Wife alimony in solido and alimony in futuro. Husband
appeals and challenges each of these determinations. We affirm.
Tenn. R. App. P. 3 Appeal as of Right ; Judgment of the Chancery Court
Affirmed; Case Remanded
C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.
Barry K. Maxwell, Madisonville, Tennessee, for the appellant, Roger Dale Raper.
John Carson III, Madisonville, Tennessee, for the appellee, Johanna Raper.
OPINION
I.
Husband and Wife were married on September 9, 1983. It was the first marriage for
Husband and the second for Wife. Two sons were born to the parties’ union, only one of
whom was still a minor at the time Husband filed for divorce in February 2008;1 the parties’
eldest son was 23 and married with a family. When the complaint was filed, the youngest
1
The youngest child was born on January 8, 1991; hence, he was 17 when the complaint was filed.
He had turned 18 by the time of trial.
of the parties’ sons was 17 and preparing to enter college on a full scholarship. In his
complaint, Husband alleged irreconcilable differences and, in the alternative, inappropriate
marital conduct. In her answer, Wife denied that she was guilty of inappropriate marital
conduct. She filed a counterclaim alleging that Husband was guilty of inappropriate marital
conduct and another ground. In June 2008, the parties reached a partial agreement whereby
Wife was to be named as the primary residential parent of the younger child and setting
Husband’s child support obligation. In answer to Wife’s counterclaim, Husband conceded
that he was guilty of inappropriate marital conduct.
Shortly before the July 21, 2009, trial date, Wife moved for a continuance. The
parties appeared for trial and Husband agreed to stipulate that Wife had grounds for divorce
provided they were divorced that day. The court complied by granting the divorce; it went
on to set a trial on the remaining issues.
Two days before the scheduled August 2009 bench trial, Wife amended her complaint
to include a request for spousal support. At the time of trial, both parties were about 50 years
old.2 At the outset, Husband conceded that he was nine months in arrears on his previously-
ordered child support obligation. He proposed that Wife be awarded additional assets in the
property distribution to settle his arrearage.
The proof showed that Husband, at the time of trial, had been employed as an over-
the-road truck driver for a Madisonville trucking firm since March 2009. In that position,
he earned a gross income of about $2,900 a month or $35,000 a year. Before being laid off
in January 2009, Husband had previously held a position with Sea Ray Boats earning
between $40,000 and $46,000. Husband was happy with his truck driver position and had
not looked for a higher-paying job.
After graduating from high school, Wife worked at a sewing plant until it closed. She
then received a two-year business “certificate” from Cleveland State Community College
and, in 2003, obtained a full-time job as a secretary for the Monroe County Board of
Education. She also worked part-time each afternoon for the Madisonville Boys and Girls
Club. From these jobs, Wife earned a combined income of just over $23,000 a year or
$1,624 a month in take-home pay. Wife drove an 11-year-old Saturn with an odometer
reading of over 150,000 miles. She anticipated having to purchase another car.
2
Wife testified she was 51; there is nothing in the record indicating Husband’s age/date of birth, but
in opening statement, counsel for Wife said that “these parties are 50 and have been married for 25 years....”
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The trial court heard from both parties regarding the marital assets and debts.
Husband agreed he handled the parties’ finances during the marriage – his check was
deposited directly into the checking account and he paid the bills. Wife was not even an
authorized signatory on the checking account. The parties’ largest assets were the marital
home and Husband’s retirement account. In November 2007, the parties refinanced the
marital home and consolidated other marital debts into the loan. Husband testified as
follows:
I consolidated a few bank notes that I had and put it all into one
payment, because the way it was all spread out, it was just too
much to handle for a month. So I re-financed and got it all into
one payment, which was a whole lot cheaper as far as the month
was concerned.”
More specifically, $15,884 was applied to pay off a line of credit Husband had obtained with
FSG Bank. According to Husband, he initially used the credit line to buy cattle that he raised
“mostly for a hobby.” Subsequently, he financed the purchase and repair of a wrecked
pickup truck. Husband had taken out the line of credit with Wife’s knowledge. The loan
was also used to pay off a “joint” credit card used for marital purchases; although the card
was in Husband’s name, Wife used it to purchase Christmas gifts and they both used it for
their travel expenses and to make purchases for their oldest son when they visited him in
Michigan. During the marriage, Husband decided to purchase $15,000 worth of farming
equipment – including a tractor, hay roller, and hay rake – to start a hay-farming business on
a hundred acres of land he leased. Some of the refinanced loan was used to pay off the
$4,912 remaining balance on the second mortgage the parties took out to buy the farming
equipment. Husband farmed and mowed hay and sold some of it, but kept most of it for his
own use. Husband said that over the last several years, he made “a little or nothing” in the
side business and had not shown any income on his tax returns because any profits were
reinvested into the operation. In summary, the bulk of the new loan went to pay off the
$10,000 credit card balance, the $15,000 truck loan, and the $6,000 in debt remaining on the
motorcycle. The parties applied the remaining $3,500 to remodel two rooms in the marital
home.
Husband agreed that his new girlfriend, Sherry Gregory, was a part-owner of
“Personal Mortgage Solutions, Inc.,” the company that processed the refinanced mortgage
loan at the end of November 2007. Husband was already acquainted with Gregory because
she is the mother of the wife of the parties’ eldest son. In mid-December, Husband obtained
a new cell phone account that he agreed was for the exclusive purpose of communicating
with Ms. Gregory. The proof showed that beginning on December 18, 2007, Husband made
and received calls to and from Ms. Gregory’s number on most days, several times a day.
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Husband testified that he began seeing Ms. Gregory about a month after she separated from
her husband in December 2007.
As to the marital finances, Wife said she became aware that Husband planned to
encumber the home with a second mortgage to purchase farming equipment when she had
to go to the lender’s office to sign the loan documents. In late November 2007, Husband told
Wife he needed to refinance the home in order to consolidate their debts into one monthly
payment. At that time, about $5,000 was owed on the original mortgage. Wife
acknowledged that she participated in refinancing the house and did not object to the loan
at the time, but noted she had no indication that Husband was then unhappy in the marriage.
Wife said, “But had I known that, . . . a month later, two months later after I signed the re-
finances that he was going to leave me, no, I wouldn’t have signed to have the home re-
financed.” Wife conceded that without the refinancing, the truck, motorcycle and farm
equipment loans, credit card balance, and other marital debts would have remained
outstanding.
During the marriage, Husband bought a one-and-a-half acre lot from his sister for
$3,500; the lot had been part of their father’s farmland. Although the deed was only in
Husband’s name, he intended that he and Wife would own the lot together. In January 2008,
two weeks before filing his divorce complaint, Husband deeded the lot to the parties’ eldest
son and his new wife and they had since built a house on it. When his son had approached
him about purchasing the lot, which was valued at $22,000, Husband refused payment for
it; he said he originally bought it “with intentions of one or the other [of his sons]” to build
a home there, so he deeded the lot to his son and daughter-in-law at no charge: “[T]hey come
and asked me what I wanted for it to buy it. I just give it to them.” Asked whether he had
first discussed the decision with Wife, Husband said, “I’m sure I mentioned it. I can’t be a
hundred percent, no, but I’m sure she knew about it.” Wife said she and Husband had
discussed it “years earlier” and decided against conveying it to their son. Wife said at that
time, she had expressed her reservations about giving their son the property because he was
then living in Michigan.
According to Husband, the value of his 401(k) from his former employment was
$83,000 at the time of trial. He explained that the balance had fallen from over $100,000 to
as low as $73,000 due to fluctuations in the stock market in recent years. Husband proposed
awarding the marital home to Wife, “free and clear,” and he would continue to pay the
mortgage until it was paid in full. Further, Husband proposed that he be awarded the full
balance of his 401(k) account, while Wife would receive her own, small retirement account.
In the event the court did not adopt his plan, Husband suggested that the marital home be
sold and everything, including the remaining equity, be split “50-50 down the middle” after
the proceeds were applied to satisfy the refinanced mortgage.
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Wife explained that her retirement account was not a 401(k), but a state pension that
would vest in her if she continued to work at her current job for another 15 or more years;
it had no present value that could be withdrawn. She had not submitted any job applications
since the separation to try to get a better-paying job.
In 2006, Husband bought himself a motorcycle as reflected on the parties’ list of
marital assets. During the pendency of the divorce, he sold the motorcycle and used the
money to purchase a car for the parties’ youngest son to use at college. According to
Husband, he told his son to get Wife’s approval to buy the car and the son did get it “okayed”
with her. Wife was present when Husband and their son bought the car.
The parties had agreed to the value and division of nearly all of the remaining marital
property. In addition to the $45,000 mortgage, the only other debts were loans for $1,500
and $400 that Wife had borrowed from her family members, with Husband’s knowledge, to
help their son hire a lawyer and pay a child support arrearage. Husband wanted to keep
property including his truck and other items he purchased during the marriage and proposed
that Wife be awarded other property or credits to equalize the distribution. Wife told the
court that she wanted to remain in the marital home but believed that the debt on property
that Husband had purchased for his own use that was rolled into the refinanced mortgage
should be Husband’s responsibility.
At the conclusion of the trial, the court divided the marital estate. Of a total value of
$163,285, Wife was awarded $103,185, and Husband was awarded $60,100. The court
further ordered Husband to pay his stipulated child support arrearage of $3,745 over 10
months at the previously ordered amount of $428 a month beginning in September 2009.
Lastly, the court awarded Wife spousal support – $15,000 of the mortgage payments
Husband was ordered to make were deemed alimony in solido and Husband was further
ordered to pay alimony in futuro of $450 a month until the child support arrearage was
satisfied. Thereafter, beginning in May 2010, Wife’s alimony award would increase to $700
a month.
Husband filed a timely notice of appeal. He essentially contends that the property
division was inequitable and the alimony awards were not supported by the evidence
presented.
II.
Husband raises the following issues for our review:
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1. Did the trial court commit reversible error by inequitably
awarding Ms. Raper $91,500.00 in net marital assets and Mr.
Raper only $16,500.00 from their two largest marital assets?
2. Did the trial court abuse its discretion, and commit reversible
error, in awarding alimony in solido and in awarding alimony in
futuro?
III.
In this non-jury case, our standard of review is de novo upon the record of the
proceedings below; however, the record comes to us with a presumption of correctness as
to the trial court’s factual determinations, a presumption we must honor unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); Wright v. City of Knoxville, 898 S.W.2d
177, 181 (Tenn. 1995). There is no presumption of correctness as to the trial court’s
conclusions of law. Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002); Campbell
v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996).
A trial court has broad discretion in fashioning a division of marital property. Fisher
v. Fisher, 648 S.W.2d 244, 246 (Tenn. 1983); Barnhill v. Barnhill, 826 S.W.2d 443, 449-50
(Tenn. Ct. App. 1991). It has the same broad discretion with respect to an award of alimony.
See Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995). “An appellate court should find
an abuse of discretion when it appears that a trial court applied an incorrect legal standard,
or reached a decision which is against logic or reasoning that caused an injustice to the party
complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) (citing Ballard v. Herzke,
924 S.W.2d 652, 661 (Tenn. 1996)).
IV.
A.
Husband challenges the trial court’s division of the marital assets as being grossly
inequitable. He contends that the trial court improperly relied upon Husband’s “ ‘fault’ and
un-supported conclusions on his future intentions, based on his finding a girlfriend after the
re-financing, in dividing the marital assets and debts.” Husband essentially concludes that
only an equal division of the marital property is equitable in this case and requests that this
Court reverse the judgment and evenly re-distribute the marital property between the parties.
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B.
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)3 . 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, 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 at 246, and appellate courts must accord great weight to a trial
3
The statute sets out the relevant factors as follows:
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.
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court’s division of marital property, Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn. Ct. App.
1996).
Equity does not require that the award to each party be equal. Batson v. Batson, 769
S.W.2d 849, 859 (Tenn. Ct. App. 1988). 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 statutory
factors is consistent with logic and reason, and whether the evidence preponderates against
the court’s division. Jolly, 130 S.W.3d at 785-86. Marital debts are subject to equitable
division in the same manner as marital property. See Cutsinger v. Cutsinger, 917 S.W.2d
238, 243 (Tenn. Ct. App. 1995); Mondelli v. Howard, 780 S.W.2d 769, 773 (Tenn. Ct. App.
1989). In dividing marital debts, courts should consider the following factors: (1) the debt’s
purpose; (2) which party incurred the debt; (3) which party benefitted from incurring the
debt; and (4) which party is best able to repay the debt. Id.
C.
In its bench ruling, the trial court explained its property division as follows:
This is a 26-year marriage. Through no fault of the wife, she is
now faced with divorce. The parties have pretty much stipulated
the division of their assets. When I take their values as being
true and line those up, I get, if I count them, and this is the free
and clear numbers, wife was getting about $80,000. It’s really
about $81,000.00-something. And husband is getting $44,000
in assets, $22,000 of that is the lot that he gave away to the
child. Then I deduct what they’re paying on for those and I
deduct $25,000 of that $45,000 on the parties’ home as being the
debts on his assets, being the $15,000 for the truck, the $5,000
for the motorcycle, and the $5,000 for the farm equipment. That
give husband approximately $20,000 in hard assets and wife
approximately $80,000.00, which would be about $60,000 when
we consider the debt on that.4
4
We note that the trial court’s rough estimation of each party’s award at the outset of its opinion
includes its disposition of the marital home but does not include its distribution of Husband’s 401(k), the
parties’ second largest marital asset.
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The Court, in dealing with that division, looks at also the fact
that the credit card debt, the truck, and the motorcycle were
debts of the marriage . . . . But the Court also is mindful that the
husband one month before leaving the wife re-financed these
debts and encumbered the house, which he knew he wasn’t
apparently going to keep. And so I think the most equitable
thing to do with those debts is to have those debts follow those
assets and be taken off of the equity in the house. That was not
a dissipation of an asset, but that was husband’s way to combine
debts in such a way that he could control the distribution of
assets, whether he was upside down on his . . . pickup truck or
not.
The lot that was deeded away one month before filing benefitted
not only the parties’ son, but the girlfriend’s daughter. But in
either way, it had no benefit to the wife to which she was
entitled to half of the benefit. That’s why I counted that as a
marital asset.
* * *
But when you look at the wife’s need in this case, I’m going to
order husband to continue to make the house payments and pay
the house off. And he’ll have 90 days to re-finance the house
into his own name. $15,000.00 of that payment or of that debt
on the house I will consider as payment for alimony in solido.
* * *
I’ve looked at wife’s budget and husband’s budget. Contrary to
a lot of budgets I have given to me in court, these both appear to
be very reasonable. I realize that husband’s eating out at
$600.00 a month is a bit high, but in light of what he does for
living, that’s not unusual, although he can save some money by
taking his own meals in a cooler as many truckers testify in
court that that’s what they do.
To equalize the division of the parties’ property, the Court can
use the retirement, but the Court doesn’t have any information
as to its current value. The Court doesn’t have any information
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of the tax consequences of realigning that value. And the Court
certainly doesn’t know what the parties’ future needs would be
in dividing that asset, whether somebody would need to take it
out early or leave it in there until retirement age. The Court,
therefore, finds that it’s equitable in this case to divide the
401(k) with a 50-50 distribution. And husband will receive an
additional $20,000.00 of that retirement account to equalize
equitably, but not entirely equal, the parties’ property division.
On questions from counsel, the court elaborated on its ruling as follows:
Mr. Maxwell: Did you calculate when you get to the end of all
that how much, as far as property division, you know, you were
giving us dollar figures or what she was getting, what he was
getting:
The Court: I took that into consideration in the property
division, yes.
Mr. Maxwell: But what are the final figures as far as –
The Court: I don’t have them. I didn’t have them written down
as final figures because I considered the house as a free and
clear asset when I said that she was getting approximately 70
percent if the house was free and clear.
Mr. Maxwell: $70,000.
The Court: Uh-huh. And I tried to equitably divide it by giving
him some more money in the retirement account, but not totally
because she shouldn’t have to cash in her retirement part of that
account just for monthly expenses.
D.
The trial court’s division of the marital assets and debts was as follows:
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Awarded Awarded
Assets and Debts Value to Wife to Husband
Marital residence $70,000 $70,000
2000 Chevrolet pickup truck 6,500 $6,500
1998 Saturn 3,500 3,500
1989 Honda Accord 800 800
2006 Suzuki motorcycle 5,000 5,000
FSG bank account 200 200
Husband’s 401(k) retirement account 83,000 21,500 61,500
Lawnmower 200 200
Tools 500 500
Wife’s state pension fund 3,686 3,686
Christmas club account 120 120
275 Massey Ferguson tractor 4,500 4,500
New Holland hay roller 2,000 2,000
New Holland disc mower 2,000 2,000
Furniture, appliances, etc.5 2,330 2,330
Deer rifle 100 100
Pool (not working), pump, accessories 400 400
Metal storage building 25 25
FSG IRA account 1,375 1,375
Y-12 Credit Union savings 49 49
16-foot trailer 300 300
1 1/2 acre lot (Husband deeded to son) 22,000 22,000
Miscellaneous personal property6 1,600 1,350 250
Loans from Wife’s family <1,900> <950> <950>
Mortgage on marital home <45,000> <45,000>
Totals $163,285 $103,185 $60,100
Wife received approximately 63.2% of the value of the marital property and Husband
received approximately 36.8%. Considering the relevant factors in light of the evidence
presented, we cannot conclude that the trial court’s decision was inequitable.
5
The category of “furniture, appliances, etc.” includes the following with assigned values: living
room suite ($400), refrigerator ($300), washer and dryer ($200), televisions ($400), twin bed and chest
($150), digital camera ($300), DVD player ($50), VCR ($50), patio set ($200), cleaning appliances ($80),
and deep freezer ($200).
6
Wife’s share of “miscellaneous property” is comprised of the following: linens ($200), cookware
($800), kitchen utensils ($50), and DVD/VHS movies ($300). Husband’s miscellaneous property consists
of spare truck parts ($250).
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In this case, the parties agreed to the values and allocation of most of the marital
assets consisting of home furnishings, vehicles, farming equipment and personal items.7 The
trial court was left to divide the parties’ two largest assets – the marital home and Husband’s
401(k) account. Husband focuses on only those two assets when he asserts that the trial
court “committed reversible error by inequitably awarding [Wife] $91,500 in marital assets
and [Husband] only $16,500, from their two largest marital assets.” (Underlining in original).
The trial court’s ruling, however, reflects that it properly considered “the big picture” in
allocating the parties’ assets and debts.
The trial court began by considering that this was a lengthy marriage – a factor that,
standing alone, might support a more equal division of the assets, as Husband suggests.
Other factors including age, physical and mental health, and employability also weigh equally
in favor of both parties. Neither did either party bring any notable assets to the marriage or
have any significant separate property. The trial court found, however, that a consideration
of wife’s financial need, Husband’s earning capacity, and both parties’ economic situation
at the time of the divorce favored a disparate division of the parties’ property in favor of
Wife. The evidence showed that Wife worked as she had throughout the marriage, but was
operating at a deficit each month. Husband, on the other hand, earned nearly twice Wife’s
monthly income, and admittedly was able to continue paying the mortgage and child support
and have money remaining each month. Moreover, although neither party had sought
different employment since their separation, Husband had a demonstrated capacity to earn
a higher salary, while there was no evidence that Wife had an ability to improve her
economic circumstances.
In “not totally” dividing the marital property evenly, the trial court determined that
it was equitable for Wife to remain in the marital home and also receive some liquid assets
– amounting to some $21,500 from Husband’s retirement account – toward her reasonable
expenses. In support of its judgment, the trial court expressly found that Husband’s
treatment of certain marital assets and debts in the months and weeks before he filed for
divorce “was husband’s way to combine debts in such a way that he could control the
distribution of assets. . . .”
We cannot conclude that the evidence preponderates against the trial court’s
conclusion that its division of the net marital estate was equitable. The trial court basically
divided the property as Husband had proposed – the house to Wife with continued payment
of the mortgage by Husband and the 401(k), albeit less $21,500 to Wife, to Husband. We
disagree with Husband’s argument that in so doing, the court improperly considered
7
In considering Husband’s argument that the property division is equitable, we have used the value
assigned by Husband for any item with a disputed value.
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Husband’s fault in the demise of the marriage. We think that the court’s comments on the
evidence show that it properly focused on the effects of the divorce, not the reason for it, in
distributing the marital property. The evidence showed that these parties lived a seemingly
comfortable, relatively frugal lifestyle together for nearly three decades. The trial court
found that Wife was entitled to a greater share of the nest egg the parties had built together
based on her needs and the economic circumstance that she unfortunately experienced as a
direct result of the divorce. In our view, the trial court also allocated the debts represented
by the refinanced mortgage by inferring that some of Husband’s financial decisions were
made with an eye toward dividing the parties’ property in the near future. Our review of the
chronology of relevant events persuades us that the trial court was correct in its approach.
Furthermore, we note that Husband was awarded certain marital property accumulated
primarily for his benefit that he wished to keep in the divorce, but he was effectively held
responsible for their related debt.
In summary, the overall equities between the parties support a disproportionate award
of the net marital estate to Wife. While many of the relevant factors do not favor one spouse
over the other, a consideration of Wife’s need, Husband’s earning capacity, and both parties’
economic circumstances support a greater award to Wife. The evidence does not
preponderate against the trial court’s property division in this case.
V.
Husband contends that the trial court abused its discretion in awarding Wife alimony;
he argues that the evidence fails to demonstrate Wife’s need for spousal support in any form.
In closing, Husband’s counsel argued against spousal support as follows:
She makes sufficient money to pay her bills. He is going to
have bills himself. He doesn’t make that much more than what
she makes. The divorce case has been pending for nearly two
years, or whatever, no request for alimony was made until two
days ago when a motion to amend was filed. So if it was such
a necessary thing, you know, then you would think it would
have been brought to the Court’s attention before then.
Tenn. Code Ann. § 36-5-121(d)(2005) governs alimony decisions and states a
preference, “whenever possible,” for an award of rehabilitative alimony to an economically
disadvantaged spouse. However, “[w]here there is such relative economic disadvantage and
rehabilitation is not feasible in consideration of all relevant factors, . . . then the court may
grant an order for payment of support and maintenance on a long-term basis. . . .” Id. Thus,
long-term spousal support is intended to provide long-term support to an economically
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disadvantaged spouse who is unable to be rehabilitated. Burlew v. Burlew, 40 S.W.3d 465,
471 (Tenn. 2004); Loria v. Loria, 952 S.W.2d 836, 838 (Tenn. Ct. App.1997). The type,
if any, and amount of alimony to be awarded is within the sound discretion of the trial court
in view of the particular circumstances of the case and a consideration of the relevant factors
set forth in Tenn. Code Ann. § 36-5-121(i)(1-12). Those factors are as follows:
(1) 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;
(2) 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 earnings capacity to a
reasonable level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not
limited to, physical disability or incapacity due to a chronic
debilitating disease;
(6) 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;
(7) The separate assets of each party, both real and personal,
tangible and intangible;
(8) The provisions made with regard to the marital property, as
defined in § 36-4-121;
(9) The standard of living of the parties established during the
marriage;
(10) 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;
(11) The relative fault of the parties, in cases where the court, in
its discretion, deems it appropriate to do so; and
(12) Such other factors, including the tax consequences to each
party, as are necessary to consider the equities between the
parties.
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Among the cited factors, the “real need of the [disadvantaged] spouse seeking the support
is the single most important factor . . . [and next] the courts most often consider the ability
of the obligor spouse to provide support.” Aaron v. Aaron, 909 S.W.2d at 410.
In the present case, in awarding Wife alimony the trial court stated as follows:
Husband will pay wife – since the house payment will be being
paid by the husband, she still has a need of approximately
$450.00 a month as long as she’s receiving the child support
payment also, so husband will pay her $450.00 per month as
alimony in futuro. And after the child support ceases in ten
months, the alimony in futuro will increase to $700.00 a month.
There’s no reason . . . the wife[’s] standard of living . . . should
decrease in such a fashion after this divorce. Her bare bones
affidavit of monthly income and expenses will change because
she will need a new car with the one she has having such high
mileage on it. She may have expenses that come up
unexpectedly such as medical or things in the future. The
parties had a standard of living that was not extravagant and I
think that would be equitable because he has an ability to pay at
least $1,470.00 a month at his current income level after child
support, and having to share that with his wife would be the
equitable thing to do for alimony.
A reading of the court’s bench ruling, in its entirety, indicates that the trial court
properly considered the length of the marriage, Wife’s need, Husband’s ability to pay, and
the effect of its property division in finding that Wife was entitled to alimony. The proof
showed that even after the mortgage payment was removed from her expenses, Wife was
operating at a slight deficit each month. After adding such anticipated expenses as a $250
car payment for a replacement vehicle, Wife’s expenses surpassed her income by several
hundred dollars each month. It is apparent to us that the trial court further considered relevant
the parties’ standard of living during the marriage and Husband’s marital fault in fashioning
its alimony award – the court expressly acknowledged Husband’s relationship with the
girlfriend that had led him to leave Wife and concluded that there was no reason, given
Husband’s available income, that Wife’s standard of living should decrease as a result of the
unexpected end of her marriage. As the trial court put it, after 26 years of marriage, Wife,
“through no fault of her own,” was faced with the reality that she could not maintain her
former standard of living on her own. For all these reasons, the trial court found that Wife
was entitled to the assistance from Husband that he could afford to pay. The evidence does
not preponderate against the trial court’s finding.
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Lastly, Husband contends, in conclusory form, that Wife has the ability to earn more
money than her two present jobs pay, and faults her for failing to make efforts in this
direction. In connection with this assertion, we notice that Husband has a demonstrated
ability to earn a higher salary, but professed that he was happy being a truck driver and
conceded that neither had he looked for a job that paid a salary commensurate with his
previous employment. Even at Husband’s lower pay rate, he earns nearly twice Wife’s
income each month. In short, the evidence does not preponderate against the trial court’s
findings in support of its awards of alimony to Wife. It follows that we are not inclined to
disturb the trial court’s alimony awards.
VI.
The judgment of the trial court is affirmed. This case is remanded to the trial court,
pursuant to applicable law, for enforcement of its judgment and the collection of costs
assessed below. Costs on appeal are taxed to the appellant, Roger Dale Raper.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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