Jennifer Lynn Jackman v. Kenneth Robert Jackman ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
August 25, 2011 Session
JENNIFER LYNN JACKMAN v. KENNETH ROBERT JACKMAN
Direct Appeal from the Circuit Court for Shelby County
No. CT-005602-02 Donna M. Fields, Judge
No. W2010-01435-COA-R3-CV - Filed October 24, 2011
This is an appeal of an alimony award. The trial court entered an order declaring Husband
and Wife divorced, but reserved all financial issues, including alimony, for trial at a later
date. After the trial, the trial court entered a final order awarding Wife rehabilitative alimony
and ordering her to undergo a vocational rehabilitation evaluation. Husband filed a petition
for contempt and to modify the final order based on Wife’s failure to file proof of her
completion of a vocational rehabilitation evaluation. In response, Wife filed proof of her
completed vocational rehabilitation evaluation, and filed a counter-petition for contempt and
to modify the final order seeking alimony in futuro. Subsequently, Wife filed a motion
pursuant to Tennessee Rule of Civil Procedure 60.01, arguing that the language of the final
order failed to include the trial court’s findings that the alimony award was not final, and was
subject to change based on the results of the vocational rehabilitation evaluation. The trial
court granted Wife’s Rule 60.01 motion, and conducted a hearing to determine the
appropriate nature and amount of alimony to be awarded based on the results of the
vocational rehabilitation evaluation. Following the hearing, the trial court awarded Wife
alimony in futuro, increased the amount of alimony awarded, and required Husband to
maintain additional life insurance to secure his alimony in futuro obligation. Husband
appeals the order granting Wife’s Rule 60.01 motion, and further argues that Wife was
required to show a substantial and material change of circumstances to warrant a
modification of the original rehabilitative alimony award. Finding that the trial court’s
alimony award was not final, and therefore the trial court retained jurisdiction to consider the
results of the vocational rehabilitation evaluation, we affirm the trial court’s award of
alimony in futuro.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
D AVID R. F ARMER, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.
John C. Ryland and Robert L. Parris, Memphis, Tennessee, for the appellant, Kenneth Robert
Jackman.
Emily Lauren Hamm and Kay Farese Turner, Memphis, Tennessee, for the appellee, Jennifer
Lynn Jackman.
OPINION
I. Background and Procedural History
Kenneth Robert Jackman (“Husband”) and Jennifer Lynn Jackman (“Wife”) married
on February 18, 1996. Both Husband and Wife had two previous marriages. In July 2002,
the parties separated after Wife discovered Husband was engaged in an extramarital affair.
On November 18, 2005, the parties were divorced. Husband stipulated Wife was entitled to
a divorce on the grounds of adultery. Further, the trial court found that both parties were
entitled to a divorce pursuant to Tennessee Code Annotated section 36-4-129. The trial court
reserved all financial issues in the case, including alimony, for trial on February 20, 2006.
At trial, Wife sought long-term alimony from Husband. Wife argued that she was
economically disadvantaged, could not be rehabilitated, and could never attain a standard of
living commensurate to the standard she enjoyed while married to Husband or the standard
Husband would enjoy after the divorce. Wife testified that she suffered from depression, an
anxiety disorder, incontinence problems, a sleeping disorder, recurrent corneal erosion,
ulcerated colitis, irritable bowel syndrome, that she needed new dentures, and that she was
prescribed medication for an undifferentiated connective tissue disorder. Wife also testified
that her problems with anxiety and depression preceded the parties’ marriage. Although
Wife did not work during the marriage, she was responsible for the care of her terminally ill
mother at the time of the trial.
The trial court also considered the deposition testimony of Wife’s treating psychiatrist,
Dr. Martha Gordon (“Dr. Gordon”). Dr. Gordon diagnosed Wife with a major depressive
disorder and an obsessive compulsive disorder that, in her opinion, prevented Wife from
working. Additionally, the trial court considered the testimony of Dr. Rebecca Caperton
Rutledge (“Dr. Rutledge”), a psychologist appointed by the trial court to conduct a
psychological evaluation on Wife. Dr. Rutledge testified that Wife had personality
characteristics of histrionic personality disorder, dependent disorder, obsessive disorder, and
borderline personality disorder. Further, Dr. Rutledge testified that she did not believe Wife
had the ability to work outside the home because of the debilitating impact Wife’s disorders
had on her self-motivation. Dr. Rutledge, however, did agree with the trial court’s
suggestion that Wife possibly could motivate herself to undergo a vocational rehabilitation
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evaluation if the consequence of noncompliance was a reduction or termination of spousal
support.
At the conclusion of the trial, the trial court issued an oral ruling. The trial court
ordered Husband to pay Wife rehabilitative alimony in the amount of $2,000 per month plus
the costs of Wife’s COBRA premiums. When Wife’s COBRA coverage expired, Husband’s
alimony obligation would increase to $2,400 per month until Wife reached the age of 59 ½,
at which time she could draw from the retirement benefits she received from Husband in the
division of the marital estate. Further, the trial court ordered Wife to undergo a vocational
rehabilitation evaluation and enroll in a displaced spouses program. The trial court stressed
that Wife’s failure to do so could result in termination of her alimony award.
On March 15, 2006, the trial court held a conference with counsel for both parties and
the guardian ad litem1 to discuss the wording of the final order that would memorialize the
trial court’s oral ruling. Counsel for Wife provided the trial court with a proposed draft of
an order, which the trial court took under review and advised that it would make any changes
deemed necessary. On April 10, 2006, the trial court held a second conference to discuss the
changes it made to the language of the proposed order. On April 17, 2006, the trial court
entered a final order memorializing its ruling in the case.
The final order provided the following with regard to alimony:
The Court has considered the testimony of Wife’s treating psychiatrist,
Dr. Martha Gordon, with regard to her opinion that Wife cannot be
rehabilitated. The Court has also considered the testimony of Dr. Rebecca
Caperton Rutledge and Wife’s testimony regarding her care for her terminally-
ill mother, which has substantially assisted in the Court concluding that Wife
may be rehabilitated. From March 2006 and continuing through the expiration
of Wife’s COBRA coverage in November 2008, Husband shall pay to Wife
rehabilitative alimony in the amount of $2,000 per month, which alimony shall
be taxable to Wife, deductible to Husband, and non-dischargeable in
bankruptcy proceedings. Said alimony shall be due and payable on the 1st day
of each month and considered past-due on the 5th of each month. From
December 2008 through August 2011 (at which time Wife will reach the age
of 59 ½ years old), Husband shall pay to Wife rehabilitative alimony in the
1
Although the record does not contain an order appointing the guardian ad litem, the record does
contain an order allowing the guardian ad litem to withdraw. Husband’s brief alleges that the trial court
appointed a guardian ad litem for Wife during the divorce proceedings because she was not complying with
discovery requests or the rules of the court.
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amount of $2,400.00 per month, which alimony shall be taxable to Wife,
deductible to Husband, and non-dischargeable in bankruptcy proceedings.
Said alimony shall be due and payable on the 1st day of each month and
considered past-due on the 5th of each month.
....
The Court further orders Wife to undergo a vocational rehabilitation
evaluation. Wife shall complete said evaluation within 90 days of the entry of
this order, or within 30 days of her mother’s death, and the evaluator shall
make a report to the Court regarding the results of the evaluation and Wife’s
cooperation with same. Wife’s failure to complete the evaluation in a timely
manner may be a basis for the Court reducing or terminating the alimony
enumerated in this paragraph.
On August 20, 2008, Husband filed a petition for contempt and to modify the final
order. Husband’s petition requested, inter alia, the trial court reduce or terminate Wife’s
alimony based on her failure to provide proof of her completion of a vocational rehabilitation
evaluation and displaced spouses program as required by the final order. On October 8,
2008, Wife filed proof of her completed vocational rehabilitation evaluation, dated
September 11, 2006, which concluded that Wife was not employable. Shortly thereafter, on
October 10, 2008, Wife filed her response and counter-petition for contempt and to modify
the final order. Wife argued that the award of rehabilitative alimony should be converted to
alimony in futuro based on the findings of the vocational rehabilitation evaluation.
Subsequently, the parties entered into a consent decree in which Wife agreed to undergo a
second vocational and psychological evaluation to determine whether she could maintain
meaningful employment.
On June 5, 2009, Wife filed a motion to amend the final order to correct a clerical
error pursuant to Tennessee Rule of Civil Procedure 60.01. Wife alleged that the final order
omitted the trial court’s findings that the alimony award was not final, and was subject to
change based on the results of the vocational rehabilitation evaluation. Further, Wife argued
that the trial court intended to review the vocational rehabilitation evaluation before making
a final determination on Wife’s ability to be rehabilitated. On October 28, 2009, after
conducting a hearing, the trial court granted Wife’s motion and entered the amended final
order nunc pro tunc to April 17, 2006.
Following the trial court’s amendment pursuant to Wife’s Rule 60.01 motion, the
amended final order provided the following with regard to alimony:
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The Court has considered the testimony of Wife’s treating psychiatrist,
Dr. Martha Gordon, with regard to her opinion that Wife cannot be
rehabilitated. The Court has also considered the testimony of Dr. Rebecca
Caperton Rutledge and Wife’s testimony regarding her care for her terminally-
ill mother, which has substantially assisted in the Court concluding that Wife
may be able to be rehabilitated. Wife is hereby ordered to be evaluated by the
Tennessee Department of Vocational Rehabilitation. If after that evaluation,
Wife is determined to be unemployable, the Court will revisit the issue of
support at that time. In the interim, and pending such future determination,
from March 2006 and continuing through the expiration of Wife’s COBRA
coverage in November 2008, Husband shall pay Wife rehabilitative alimony
in the amount of $2,000.00 per month, which alimony shall be taxable to Wife,
deductible to Husband, and non-dischargeable in bankruptcy proceedings.
Said alimony shall be due and payable on the first day of each month and
considered past due on the fifth of each month. From December 2008 until
such time as the Court makes a further determination as to Wife’s ability to be
rehabilitated, Husband shall pay to Wife rehabilitative alimony in the amount
of $2,400.00 per month, which alimony shall be taxable to Wife, deductible to
Husband, and non-dischargeable in bankruptcy proceedings. Said alimony
shall be due and payable on the first day of each month and considered past
due on the fifth of each month. If, after the evaluation, Wife is determined by
the Tennessee Department of Vocational Rehabilitation to be unemployable,
the Court will conduct a further hearing on the appropriate nature and amount
of this support at that time. (Emphasis added.)
On May 13, 2010, the trial court conducted a hearing on Husband’s petition and
Wife’s counter-petition to modify the final order. At the hearing, Wife argued that she was
entitled to alimony in futuro based on the results of the 2006 and 2009 vocational
rehabilitation evaluations, and her testimony regarding her mental and physical health
conditions. The trial court found that Wife was not capable of rehabilitation, and converted
Husband’s rehabilitative alimony obligation to alimony in futuro. The trial court increased
Husband’s alimony obligation from $2,400 per month to $2,900 per month until November
2012 when the monthly obligation would increase an additional $200 per month.2 The trial
court further ordered that Husband’s alimony obligation would be reduced by any disability
or retirement benefits Wife received or would be eligible to receive. Additionally, the trial
court required Husband to maintain an additional $150,000 in life insurance coverage to
2
The trial court initially ordered Husband to pay Wife $200 per month because of his dissipation of
the marital estate. Husband’s dissipation payments end in November 2012, thus the trial court ordered
Husband’s alimony obligation increase by $200 per month at this time.
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secure his alimony obligation, and name Wife as the sole irrevocable beneficiary thereon.3
On July 8, 2010, the trial court entered an order memorializing its oral ruling. Husband
timely filed a notice of appeal.
II. Issues Presented
Husband presents the following issues for our review:
(1) Whether the trial court erred by amending the final order
pursuant to Tennessee Rule of Civil Procedure 60.01,
(2) Whether the trial court erred by converting Husband’s alimony
obligation from rehabilitative alimony to alimony in futuro,
(3) Whether the trial court erred by increasing the amount of
Husband’s alimony obligation, and
(4) Whether the trial court erred by requiring Husband to maintain
additional life insurance coverage to secure his alimony
obligation.
III. Standard of Review
A trial court’s decision regarding an award of spousal support is factually driven and
involves the careful balancing of many factors. Robertson v. Robertson, 76 S.W.3d 337,
340-41 (Tenn. 2002); Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001). “[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.” Gonsewski v. Gonsewski, M2009-00894-SC-R11CV, 2011 WL 4116654, at
*3 (Tenn. Sept. 16, 2011) (quoting Broadbent v. Broadbent, 211 S.W.3d 216, 220 (Tenn.
2006)). 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); Crabtree
v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000). No presumption of correctness attaches to
the trial court's conclusions of law, however, and our review is de novo. Bowden v. Ward,
27 S.W.3d 913, 916 (Tenn. 2000).
3
In total, the trial court required Husband to maintain $170,000 in life insurance coverage to secure
his alimony in futuro obligation. In addition to the $150,000 ordered on May 13, 2010, the trial court first
required Husband to maintain $20,000 in life insurance coverage in its original final order on April 17, 2006.
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We review a trial court’s decision whether to grant a Rule 60.01 motion under an
abuse of discretion standard. SecurAmerica Bus. Credit v. Schledwitz, No. W2009-02571-
COA-R3-CV, 2011 WL 3808232, at *8 (Tenn. Ct. App. Aug. 26, 2011) (citation omitted).
Similarly, we decline to second-guess a trial court's decision to award spousal support absent
an abuse of discretion. Gonsewski, 2011 WL 4116654 at *3 (citing Robertson, 76 S.W.3d
at 343). A trial court abuses its discretion when it “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.” Gonsewski, 2011
WL 4116654 at *3 (citing 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. Myint v.
Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). Rather, “[u]nder the abuse of discretion
standard, a trial court’s ruling ‘will be upheld so long as reasonable minds can disagree as
to propriety of the decision made.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)
(quoting State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 266,
273 (Tenn. 2000)).
IV. Analysis
A. Rule 60.01 Motion
Husband first argues that the trial court abused its discretion by amending the final
order pursuant to Tennessee Rule of Civil Procedure 60.01. This rule provides in part:
Clerical mistakes in judgments, orders or other parts of the record, and errors
therein arising from oversight or omissions, may be corrected by the court at
any time on its own initiative or on motion of any party and after such notice,
if any, as the court orders.
Tenn. R. Civ. P. 60.01. “Rule 60.01 is designed to afford relief in cases in which the
judgment or order, either standing alone or when viewed in connection with other portions
of the record, shows facial errors arising from oversight or omission.” Continental Cas. Co.
v. Smith, 720 S.W.2d 48, 49 (Tenn. 1986) (quoting Jerkins v. McKinney, 533 S.W.2d 275,
280 (Tenn. 1976)). Rule 60.01 “is intended to be used to correct errors in a judgment which
cause the judgment to fail to reflect the court’s ruling accurately,” Addington v. Staggs, No.
88-214-II, 1989 WL 5453, at *3 (Tenn. Ct. App. Jan. 27, 1989), whether those errors are
“inclusions, transpositions, or the leaving out of something the judge intended should go into
the order.” Id. at *2 (citation omitted). In analyzing the trial court’s application of Rule
60.01, we are reminded “to strike a proper balance between the competing principles of
finality and justice.” Continental Cas. Co., 720 S.W.2d at 49 (quoting Jerkins, 533 S.W.2d
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at 280).
Husband argues that the language in the April 17, 2006 final order was unambiguous,
and therefore the trial court erred by substituting its later expressed subjective intent to
modify his alimony obligation. In support of his position, Husband relies on the cases of
Warren v. Warren, No. 03A01-9708-CV-00360, 1998 WL 16041, at *2 (Tenn. Ct. App. Jan.
14, 1998), and Williams v. Williams, No. 03A01-9105CV00182, 1991 WL 253301, at *2
(Tenn. Ct. App. Mar. 2, 1992). In Warren, the court of appeals disagreed with the trial
court’s use of Rule 60.01 because the judgment was “not ambiguous, and the subjective
‘intent’ later expressed by the Trial Judge, [did] not fall within the application of [Rule
60.01].” Warren, 1998 WL 16041, at *2. Similarly, while the court in Williams rested its
holding on other grounds, the court stated that Rule 60.01 “does not apply to altering the
plain meaning of a judgment or order on a subjective rationale as was done in this case.”
Williams, 1991 WL 253301, at *2. Further, Husband points to various portions of the record
that he alleges clearly establish that the trial court’s intent behind ordering the vocational
rehabilitation evaluation was to motivate Wife to enter the workforce, not to determine
whether she could be rehabilitated.
In response, Wife argues that the trial court did not err because the April 17, 2006,
final order omitted the trial court’s findings that the alimony award was contingent upon the
results of her vocational rehabilitation evaluation. Wife relies on the case of Woody v.
Woody, No. E2001-02078-COA-R3-CV, 2002 WL 31421668 (Tenn. Ct. App. Oct. 29, 2002).
In Woody, the trial court awarded wife one half of husband’s pension fund as part of her
marital property award. Id. at *1. Although the trial court reviewed the final decree before
entering it seven years earlier, the final divorce decree only addressed division of a portion
of husband’s pension fund. Id. at *2 Thereafter, the trial court amended the final decree
pursuant to Rule 60.01 to clarify its original intention to equally divide all components of
husband’s pension fund. Id. After reviewing the record as a whole, this Court affirmed,
stating that the trial court appropriately corrected this unintentional omission under Rule
60.01. Id. Similar to Husband, Wife also cites to various portions of the record that she
argues proves that the trial court intended to review the results of the vocational rehabilitation
evaluation before making a final determination on her ability to be rehabilitated.
After reviewing the record, we conclude that the trial court did not abuse its discretion
by amending the final order pursuant to Rule 60.01. Although we find support for both
Husband and Wife’s arguments throughout the record, we believe that the trial court is in the
best position to interpret its own orders. Wilson v. Schwind, 260 S.W.3d 454, 457-58 (Tenn.
Ct. App. 2007) (“‘[T]he trial judge is in the best position to interpret his own orders.’”)
(quoting Mark Pirtle Chevrolet, Inc. v. Celebration Nissan, Inc., No. M2002-00554-COA-
R3-CV, 2003 WL 21047139, at *3 (Tenn. Ct. App. May 9, 2003)); Richardson v.
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Richardson, 969 S.W.2d 931, 935 (Tenn. Ct. App. 1997) (“Even though the judge has no
independent memory of the proceedings, we still believe that the trial court is the best
interpreter of its own orders.”). Furthermore, we are “even further removed from the events
surrounding the [final] order than is the trial court, and we would be reluctant to say that the
judge’s order means something different from what [she] says it means.” Richardson, 969
S.W.2d at 935. At the hearing on Wife’s Rule 60.01 motion, the trial court stated that it
would not have ordered the vocational rehabilitation evaluation if it did not plan on using the
results to determine the appropriate nature and amount of alimony. Rule 60.01 was intended
to correct such unintentional omissions in orders where the trial court leaves out something
it intended should go into the order. Addington, 1989 WL 5453, at *2. While the trial court
may not have perfectly articulated its intent in the April 17, 2006 final order, the abuse of
discretion standard “‘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.’” Gonsewski, 2011 WL 4116654 at *3 (citations omitted). Viewing the evidence in
the light most favorable to the trial court’s decision, id. (citations omitted), we find no abuse
of discretion in the trial court’s decision to amend the final order pursuant to Rule 60.01.
B. Alimony
The next question before this Court is whether the trial court abused its discretion by
converting Husband’s alimony obligation from rehabilitative alimony to alimony in futuro.
Husband argues that the trial court abused its discretion by converting his rehabilitative
alimony obligation to alimony in futuro because Wife failed to meet the burden of proof
requirements set forth in Tennessee Code Annotated section 36-5-121(e)(2). This provision
of the Code provides:
An award of rehabilitative alimony shall remain in the court's control for the
duration of such award, and may be increased, decreased, terminated,
extended, or otherwise modified, upon a showing of a substantial and material
change in circumstances. For rehabilitative alimony to be extended beyond the
term initially established by the court, or to be increased in amount, or both,
the recipient of the rehabilitative alimony shall have the burden of proving that
all reasonable efforts at rehabilitation have been made and have been
unsuccessful.
Tenn. Code Ann. § 36-5-121(e)(2) (2010). On the other hand, Wife argues that the trial court
had not yet closed proof on her ability to be rehabilitated, and therefore did not abuse its
discretion by awarding her alimony in futuro.
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Wife relies on this Court’s decision in Walton v. Walton, No. W2004-02474-COA-R3-
CV, 2005 WL 1922565 (Tenn. Ct. App. Aug. 10, 2005), to support her argument. In Walton,
the trial court entered a final order awarding wife rehabilitative alimony which was to be
evaluated and reviewed after a period of eighteen months based on medical proof at that
time. Id. at *2. After the eighteen month period, the trial court reviewed the medical proof,
found that wife could not be rehabilitated, and awarded her alimony in futuro. Id. at *3-4.
The husband argued the trial court erred because wife was required to show a substantial and
material change of circumstances before she could be awarded alimony in futuro. Id. at *4.
We affirmed the trial court’s decision, finding that the trial court’s final order was not final
as to the alimony award, because the trial court had not closed proof on whether wife could
be rehabilitated. Id. at *7.
In the case at bar, the trial court relied on Walton to find that it retained jurisdiction
over the nature and amount of the alimony award pending the results of the vocational
rehabilitation evaluation. The trial court’s amended final order states that “[i]f, after the
evaluation, Wife is determined by the Tennessee Department of Vocational Rehabilitation
to be unemployable, the Court will conduct a further hearing on the appropriate nature and
amount of this support at that time.” Similar to the trial court in Walton, after the hearing on
May 13, 2010, the trial court reviewed the results of the vocational rehabilitation evaluation,
determined Wife could not be rehabilitated, and awarded Wife alimony in futuro. Because
we conclude the trial court’s decision to amend the final order pursuant to Rule 60.01 was
not an abuse of discretion, we agree that the trial court retained jurisdiction to hear further
proof on Wife’s ability to be rehabilitated and determine the nature and amount of alimony
at that time. Thus, like our decision in Walton, we find that Wife was not required to show
a substantial and material change of circumstances in order to receive an award of alimony
in futuro.
Given that the trial court retained jurisdiction over the alimony award, we must next
determine whether the trial court abused its discretion by awarding Wife alimony in futuro,
and by increasing the amount of alimony awarded. Tennessee Code Annotated section
36-5-121 provides courts discretion to award spousal support “according to the nature of the
case and the circumstances of the parties.” Tenn. Code Ann. § 36-5-121(a) (2010).
Although there is a legislative preference for awarding rehabilitative alimony, “when the
court finds that there is relative economic disadvantage and that rehabilitation is not
feasible,” an award of alimony in futuro is warranted. Tenn. Code Ann. § 36-5-121(f)(1).
In other words, 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
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the marriage, or to the post-divorce standard of living expected to be available
to the other spouse.
Id. In determining whether to award spousal support and the nature, amount, and duration
of such support, courts consider several factors, including:
(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.
Tenn. Code Ann. § 36-5-121(i)(1)-(12). It is well-settled that the two most important factors
relating to a trial court's award of alimony are the need of the economically disadvantaged
spouse and the obligor spouse's ability to pay. E.g., Watson v. Watson, 309 S.W.3d 483,
497-98 (Tenn. Ct. App. 2009) (citation omitted); Williams v. Williams, 286 S.W.3d 290,
295-96 (Tenn. Ct. App. 2008) (citations omitted). As noted above, a trial court’s evaluation
of the relevant factors and decision to award alimony is reviewed for an abuse of discretion.
Gonsewski v. Gonsewski, M2009-00894-SC-R11CV, 2011 WL 4116654, at *3 (Tenn. Sept.
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16, 2011) (citing Robertson v. Robertson, 76 S.W.3d 337, 343 (Tenn. 2002)). Therefore, we
must affirm the trial court’s ruling “‘so long as reasonable minds can disagree as to propriety
of the decision made.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State
v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 266, 273 (Tenn.
2000)).
After considering the vocational rehabilitation evaluations and Wife’s testimony
regarding her mental and physical illnesses, the trial court determined that Wife could not be
rehabilitated. The trial court also found Wife to be economically disadvantaged compared
to Husband. Wife did not work during the marriage, and her only income at the time of trial
was the alimony she received from Husband. Moreover, Wife’s expenses exceeded her
income, leaving her with a deficit of almost $700 at the end of each month. Thus, based on
Wife’s economic disadvantage and inability to be rehabilitated, the trial court found that
alimony in futuro was appropriate.
Husband argues that his marriage to Wife was one of short duration, and therefore she
is not entitled to alimony in futuro. Husband correctly states that “our courts have
consistently limited the duration or amount of an alimony award where the marriage between
the parties was one of short duration, especially when the obligee spouse has contributed
little or nothing to the marriage.” Cunningham v. Cunningham, No.
M2002-01659-COA-R3-CV, 2003 WL 22994291, at *10 (Tenn. Ct. App. Dec. 22, 2003)
(citing Crain v. Crain, 925 S.W.2d 232, 234 (Tenn. Ct. App. 1996); Flanagan v. Flanagan,
656 S.W.2d 1, 3 (Tenn. Ct. App. 1983)). Husband and Wife married on February 18, 1996,
and separated in July 2002. The trial court, however, did not enter its decree divorcing the
parties until November 18, 2005, and did not enter its final order until April 17, 2006. Thus,
the record clearly establishes that the parties’ marriage lasted approximately ten years. Even
though the trial court considered the marriage to be one of short duration, it still felt that
alimony in futuro was necessary under the circumstances.4 Therefore, we find that the trial
court did not abuse its discretion by awarding Wife alimony in futuro.
With regard to the amount of alimony in futuro awarded, the trial court examined
multiple summaries prepared by Wife which demonstrated Husband’s ability to pay. The
summaries included Husband’s state and federal income tax returns and bank account
statements from 2006 to 2009. According to Husband’s tax returns, Husband received tax
refunds for each of the past four years ranging from $12,710 to $16,111. One summary
showed Husband’s average yearly gross income, average monthly gross income, and average
monthly tax refunds. Another summary calculated Husband’s average monthly surplus of
4
The trial court expressly stated, “[i]t is a sizeable amount for a short term marriage; it is not enough
to make sure that she is comfortable, but it . . . will be taxable and deductible.”
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funds by adding his refunds to his average monthly bank deposits and subtracting his average
monthly expenses. Based on these summaries and Husband’s testimony, the trial court found
that Husband had a monthly surplus of approximately $4,500. Although Husband argues that
these summaries contain gross miscalculations, our review of the record reveals no such
error.
Husband further argues that the trial court erred when considering his ability to pay
because it failed to take into account the increased expenses he incurs every month from
supporting his current spouse and their three children. In response, Wife argues that any
obligations Husband voluntarily assumed since the divorce should not be considered to
decrease his alimony obligation. “The settled rule in Tennessee is that ‘obligations
voluntarily assumed are not proper to be considered as changed circumstance[s] to reduce
support payments otherwise owed.’” Lane v. Lane, No. M2008-02802-COA-R3-CV, 2009
WL 3925461, at *7 n.15 (Tenn. Ct. App. Nov. 17, 2009) (quoting Richards v. Richards, No.
M2003-02449-COA-R3-CV, 2005 WL 396373, at *9 (Tenn. Ct. App. Feb. 17, 2005) (citing
Dillow v. Dillow, 575 S.W.2d 289, 291 (Tenn. Ct. App. 1978))). Although this rule usually
applies to cases where the trial court modifies its initial alimony award based on a substantial
and material change of circumstances, we find that the unique circumstances of the case at
bar warrant its application. The trial court’s decision to declare the parties divorced and
reserve the issue of alimony to be determined at a later date resulted in this unusual factual
situation. Considering the equities between the parties, we agree with the trial court’s
decision not to decrease Husband’s alimony obligation by an amount attributable to the
support of his new family. “While there is no absolute formula for determining the amount
of alimony, ‘the real need of the spouse seeking the support is the single most important
factor.’” Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995) (quoting Cranford v. Cranford,
772 S.W.2d 48, 50 (Tenn. Ct. App. 1989)). Consequently, we find no abuse of discretion in
the trial court’s decision to increase the amount of Husband’s alimony obligation.
B. Life Insurance
Finally, Husband argues that, because the trial court erred by awarding Wife alimony
in futuro, the trial court also erred by requiring Husband to maintain additional life insurance
coverage to secure his alimony in futuro obligation. Tennessee Code Annotated section 36-
5-121(l) authorizes the trial court to require an obligor spouse to maintain life insurance
coverage on his own life, designating the other spouse as beneficiary, in order to secure his
alimony obligation. Tenn. Code Ann. § 36-5-121(l). Due to the fact that this award is
specifically authorized by statute, it was clearly within the trial court’s discretion to award
it. Because we find no error in the trial court’s decision to award Wife alimony in futuro, we
find that Husband’s argument is without merit. Accordingly, we find no abuse of discretion
in the trial court’s decision.
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V. Conclusion
For the foregoing reasons, we affirm the decision of the trial court. Costs of this
appeal are taxed to the appellant, Kenneth Robert Jackman, and his surety, for which
execution may issue if necessary.
_________________________________
DAVID R. FARMER, JUDGE
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