Farrell Nesbitt v. Paula Nesbitt ( 2008 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 9, 2007 Session
FARRELL NESBITT V. PAULA NESBITT
Appeal from the Fourth Circuit Court for Davidson County
No. 05D-3285 Muriel J. Robinson, Judge.
No. M2007-00176-COA-R3-CV - Filed February 4, 2008
This appeal arises from a dispute regarding the trial court’s award of alimony in futuro to
Paula Nesbitt. The trial court granted the parties’ divorce, pursuant to Tennessee Code
Annotated § 36-4-129, and ultimately awarded the divorce to the wife because the husband
appeared to be at greater fault on the grounds of inappropriate marital conduct. Farrell Nesbitt
challenges the trial court’s alimony in futuro award, arguing rehabilitative alimony was the
proper award. We affirm the trial court’s ruling. Costs of this appeal shall be assessed to the
appellant, Ferrell Nesbitt.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
DON R. ASH , SP.J., delivered the opinion of the court, in which Patricia J. Cottrell, P.J. and Andy
D. Bennett, J., joined.
Lorraine Wade, Nashville, Tennessee, for the appellant, Farrell Nesbitt.
Tusca R. S. Alexis, Nashville, Tennessee, for the appellee, Paula Nesbitt.
OPINION
STANDARD OF REVIEW
Rule 13(d) of the Tennessee Rules of Appellate Procedure dictates the appellate review
of factual findings by the trial court shall be de novo upon the record of the trial court coupled
with the presumption of correctness of the findings, unless a preponderance of the evidence is
otherwise. If the trial court states no finding of fact for a determinative factor, the appellate
court must conduct its “own independent review of the record to determine where the
preponderance of the evidence lies.” Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000)
(citing Brooks v. Brooks, 992 S.W.2d 403, 405 (Tenn. 1999). Questions of law are afforded de
novo review, without any presumption of correctness. Burlew v. Burlew, 40 S.W.3d 465, 470
(Tenn. 2001). Trial courts are afforded discretion in their decisions regarding the nature, time
duration, and amount of alimony awards; therefore, but for an abuse of discretion, the trial
court’s amount of award will survive appellate review. Ingram v. Ingram, 721 S.W.2d 262, 264
(Tenn. Ct. App. 1986).
FACTS
Appellant, Farrell Nesbitt (“Mr. Nesbitt”), and Appellee, Paula Nesbitt (“Ms. Nesbitt”),
married November 3, 1988, or November 5, 1989,1 in Davidson County, Tennessee. Both parties
were born in 1958. No children were born from the marriage.2
Ms. Nesbitt has consistently worked since the age of thirteen, and she is a high school
graduate. Throughout her working career, she has been an hourly wage earner. Past
employment includes work as a corn de-tasseler, a nurses’ aide, a sand blaster, and a pick
packer. Ms. Nesbitt’s lifetime wages have ranged from $7.00 to $16.00 per hour. At the time of
the divorce proceeding and appellate hearings, she worked as a cafeteria assistant with the
Davidson County Metropolitan Schools, during the school year, earning $10.34 per hour. She
worked throughout the marriage, except for approximately a year in 2003, in which she suffered
from a staph infection. Ms. Nesbitt testified she cooked meals and did chores for the marital
household.
Mr. Nesbitt also worked throughout the marriage. Nissan has been his employer for
sixteen years. At this job, Nissan provided training for his position as a general laborer.3 The
United States National Guard has also employed him for twenty-eight years. His earnings vary,
depending on whether he is on active duty. The record is void of the husband’s education level
and past work experience. Reported adjusted gross income for 2003 was $62,848; for 2002 was
$62,896; and for 2001 was $60,321.
.
1 In their opening statements, the parties argue different dates for the marriage of the parties.
.
2Ms. Nesbitt has children from a previous marriage who have already reached the age of
majority.
.
3 Based upon a review of the transcript, Mr. Nesbitt’s exact title and job duties at Nissan are
unknown.
The record indicates the parties have various joint property.4 The parties have a marital
home, a Nissan pathfinder, a 1976 Chevy Truck, real property, household property, and
furniture, and various 401K, pension, IRA, and retirement accounts.
Mr. Nesbitt filed for divorce September 9, 2005 alleging irreconcilable differences and
inappropriate marital conduct. Ms. Nesbitt filed an Answer and Counter-Complaint for divorce
alleging inappropriate marital conduct, adultery, cruel and inhuman treatment, and irreconcilable
differences. In an Amended Complaint, Ms. Nesbitt additionally prayed for divorce alleging
habitual drunkenness and abandonment. Mr. Nesbitt filed no Answer.
The Fourth Circuit Court in Davidson County held a hearing for divorce of the parties on
October 11, 2006. Judge Robinson ordered the parties divorced, and awarded the divorce to the
wife on the grounds of inappropriate marital conduct by the husband. The Court further ordered
Mr. Nesbitt pay alimony to Ms. Nesbitt in the sum of $750.00 per month, beginning November
1, 2006, extending for the period of her lifetime. It is from this award of alimony in futuro Mr.
Nesbitt appeals.
ISSUES
The following issue is the sole issue before the court: Whether the trial court erred in its
$750.00 per month alimony in futuro award to Ms. Nesbitt?5
ANALYSIS
This case presents the court with the opportunity to examine the delicate, yet common,
situation of an alimony award. Alimony was designed to aid an economically disadvantaged
spouse after divorce. Alimony awards are structured on a case-by-case basis, tailored to address
specific needs. The award can be a lump sum award, alimony in solido; for an indefinite period,
alimony in futuro; for a specific time period, transitional alimony; or temporary to achieve
specific goals, rehabilitative alimony. Tenn. Code Ann. § 36-5-121 (2005).
.
4 The extent of this appeal is for purposes of alimony only. The trial court ordered the marital
residence to be sold and all proceeds awarded to the wife, free and clear of the claim of the
husband. Mr. Nesbitt was to continue making the payments on the mortgage until sale of the
home, and upon sale, he will be reimbursed one-half of the note he pays subsequent to
November 1, 2006. The trial court awarded Ms. Nesbitt household furnishings and furniture,
except for the family Bible and an antique mirror, which were Mr. Nesbitt’s family heirlooms.
Each party retains his and her automobile. The court allowed Mr. Nesbitt to keep the proceeds
he received from the sale of the boat and lawn equipment. Pensions, IRAs, retirements, and
401(k)s are divided between Mr. and Mrs. Nesbitt equally.
5 The issue before this court is limited to the alimony dispute, therefore, this court will not
address the trial court’s award of divorce to the wife or the division of assets.
Alimony has paralleled gender roles’ evolution. Historically, courts viewed alimony as
an extension of the husband’s contractual duty to care for his wife, and courts only awarded
alimony to the wife if she was innocent of wrongdoing and could prove need. See Rush v. Rush,
232 S.W.2d 333, 336 (1949); Gary H. Nichols, Covenant Marriage: Should Tennessee Join the
Noble Experiment?, 29 U. MEM . L. REV . 397, 427 (Winter 1999). The alimony award was not
available to the husband at that time because the wife had no contractual duty to provide for her
husband. Janet L. Richards, Richards on Tennessee Family Law, Sections § 12-3 (Supp. 2000).
Alimony awards were once described as “an allowance out of the estate of the husband made
pendente lite for the maintenance of the wife, or for the sustenance of the wife after legal
separation or divorce.” See White v. Bates, 89 Tenn. 570, 572 (Tenn. 1890). As gender roles
equalized, the United States Supreme Court held limiting awards only to wives did not withstand
strict scrutiny, thus alimony became a viable award to either spouse on a fault basis. Orr v. Orr,
440 U.S. 268 (1979). Eventually, courts began awarding alimony to either spouse, regardless
their sex, and emphasizing self-support to each of the parties. See Self v. Self, 861 S.W.2d 360
(Tenn. 1993). Tennessee legislators viewed alimony’s purpose to “encourage divorced spouses
to become self-sufficient.” Tenn. Code Ann. § 36-5-121 (2005); Crabtree v. Crabtree, 16
S.W.3d at 359-60 (Tenn. 2000). This type of temporary alimony is referenced as rehabilitative
alimony, which is now codified in Tennessee Code Annotated § 36-5-121.
Legislators have been explicit with their intentions regarding the purpose of today’s
alimony awards. See Tenn. Code Ann. § 36-5-121 (2005). In cases in which a spouse is
economically disadvantaged, T.C.A. § 36-5-121(d)(2) provides guidance. In this section, it
states, “it is the intent of the general assembly that a spouse who is economically disadvantaged,
relative to the other spouse, be rehabilitated whenever possible by the granting of an order for
payment of rehabilitative alimony.” Tenn. Code Ann. § 36-5-121(d)(2) (2005). Because of
legislators’ explicit preference for rehabilitative alimony, the Tennessee Supreme Court advises
courts to award alimony in futuro only when long-term support is necessary and rehabilitation
cannot be achieved. Tenn. Code Ann. § 36-5-121(d)(3) (2005); Crabtree, 16 S.W.3d at 359.
Richards on Tennessee Family Law distinguishes rehabilitative support from in futuro support
stating, “[r]ehabilitative support is designed to accomplish a stated result within a limited time,
while in futuro support continues the support that was incident to the marriage relationship.”
Janet L. Richards, Richards on Tennessee Family Law, Sections § 12-3 (Supp. 2000).
Courts should determine whether an alimony award is even necessary before considering
whether rehabilitative or in futuro alimony is appropriate.6 It is important to keep in mind
“[a]limony is not and never has been intended by the legislature to be punitive; nor was it
intended simply as an award for virtue. It is not designed to serve as an annuity for the wife, nor
to care for the wife's needs after divorce or provide her with a life-time profit-sharing plan.”
Lindsey v. Lindsey, 976 S.W.2d 175 (Tenn. Ct. App. 1997). To determine whether to grant
support, courts may consider any factor; however, courts must consider several statutory factors.
Tenn. Code Ann. § 36-5-121(i) (2005). The mandatory considerations are:
6
This appeal is limited to rehabilitative and in futuro alimony. The Court recognizes the third
and fourth types of alimony, alimony in solido and transitional alimony, but will not discuss
them because of their inapplicability to this case.
1. 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. Relative education and training of each party, the ability and opportunity of
each party to secure such education and training, and the necessity of a party to
secure further education and training to improve such party's earning capacity to a
reasonable level;
3. Duration of the marriage;
4. Age and mental condition of each party;
5. Physical condition of each party, including, but not limited to, physical
disability or incapacity due to a chronic debilitating disease;
6. 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. Separate assets of each party, both real and personal, tangible and intangible;
8. Provisions made with regard to the marital property;
9. Standard of living of the parties established during the marriage;
10. 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. Relative fault of the parties, in the court's discretion; and
12. Other factors, including tax consequences, as necessary to consider the
equities between the parties. Tenn. Code Ann. § 36-5-101(d) (2005).
Each of the factors should be considered, if relevant to the facts, but the most important
determinations should rest upon the demonstrated need and the obligor spouse’s ability to pay.
Anderton v. Anderton, 988 S.W.2d 675, 683 (Tenn. Ct. App. 1998). The dependent spouse has
the duty to present evidence for need and each of these factors; the independent spouse should
present evidence to rebut the same. Janet L. Richards, Richards on Tennessee Family Law,
Sections § 12-3 (Supp. 2000) (emphasis added). If the court concludes one spouse is
economically dependent upon the other, and the court concludes alimony is necessary, the court
should proceed to the rehabilitation versus in futuro analysis.
In this case, the trial court made no specific findings of fact regarding its decision to
award alimony to Ms. Nesbitt. However, the parties apparently do not dispute the award of
alimony, rather they dispute the form of the alimony award. Even so, it is this Court’s duty to
review the finding de novo, and determine where the preponderance of the evidence lies. In its
limited address to the matter, the court said, “this is definitely an alimony case,” and we agree.
The record indicates Mr. Nesbitt has been the primary wage earner of the household, making
over $60,000, while his wife has graduated from no more than $16.00 per hour in her entire life.
Considering Ms. Nesbitt’s age, her work history, her lack of skill, and most importantly, Mr.
Nesbitt’s ability to pay, this court does not find that the evidence preponderates against the
ruling for an alimony award.
To assess the nature of spousal support, courts shall consider the same twelve statutory
criteria considered when deciding whether to award spousal support, focusing on ability to self-
support and rehabilitate. Tenn. Code Ann. § 36-5-121(i) (2005); see Aaron v. Aaron, 909
S.W.2d 408, 410 (Tenn. 1995). The court should first determine whether rehabilitative alimony
is practical. In the alimony statute, the legislature reiterates Tennessee public policy stating,
It is the public policy of this state to encourage and support marriage, and to
encourage family arrangements that provide for the rearing of healthy and
productive children who will become healthy and productive citizens of our state.
...
Further, where one (1) spouse suffers economic detriment for the benefit of the
marriage, the general assembly finds that the economically disadvantaged
spouse's standard of living after the divorce should 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, considering the relevant
statutory factors and the equities between the parties.
Tenn. Code Ann. § 36-5-121(c). Rehabilitation is defined by the marital standard of living,
meaning “to achieve, with reasonable effort, an earning capacity that will permit the
economically disadvantaged 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(e)(1)
(2005). Rehabilitation is achieved through re-education and retraining, and the alimony is a
means to support the economically disadvantaged spouse through this period.
Courts have struggled and varied in their holdings regarding whether a spouse can be
rehabilitated. Consistently, however, courts look to the dependent spouse’s education,
employment history, age, health, and marital standard of living, keeping in mind cases in which
the pre-divorce, marital standard of living is not economically feasible post-divorce, the effort is
to achieve the ex-spouse’s post-divorce standard of living. See Melvin v. Johnson-Melvin, 2006
LEXIS 274, No. M2004-02106-COA-R3-CV (Tenn. App. 2006) (stating the disadvantaged wife
could still achieve a comparable lifestyle to that of the husband after divorce, because she was
capable of rehabilitation even with her disease); Walker v. Walker, 2006 LEXIS 315, No.
M2005-01561-COA-R3-CV (Tenn. App. 2006) (finding the disadvantaged wife could be
rehabilitated in five years because her youngest child would reach the age of majority in a year,
she admitted to having no physical or mental infirmities, and she needed only two years
education to become an ultrasound technician); Eganey v. Eganey, 2006 LEXIS 809, No.
M2005-01755-COA-R3-CV (Tenn. App. 2006) (examining the parties’ earning capacities pre-
and post-divorce finding the husband had an earning capacity of $120.00 per hour due to his
education, skill, and experience, and the wife, earning $15.00 per hour, could not achieve, with
reasonable effort, an earning capacity that would allow her a comparable living to that of her
husband’s pre- or post-divorce).
If,
after consideration of all the dependent spouse’s circumstances, the court determines that the
spouse’s education, employment history, and standard of living during the marriage will not
allow that spouse to maintain a standard of living comparable to that he or she maintained pre-
divorce, or a standard of living comparable to the post-divorce standard of living of the other
spouse, the court should award long-term spousal support in the form of in futuro alimony.
Tenn. Code Ann. § 36-5-121(d)(3) (2005); Burlew v. Burlew, 40 S.W.3d 465, 468 (Tenn. 2000).
This type of alimony terminates only on the dependent spouse’s death or re-marriage. While
there is an explicit legislative intent for rehabilitative alimony, courts should not dismiss the
option of long-term spousal support. In Anderton, the Tennessee Court of Appeals reminded
courts “the statutory preference for rehabilitative support does not entirely displace other forms
of spousal support when the facts warrant long term or more open-ended support.” 988 S.W.2d
at 682.
Once the nature, or form, of alimony is determined, courts should determine the amount,
length of term, and manner of payment. The Tennessee Supreme Court in Aaron,
provided several guiding principles, in addition to T.C.A. section 36-5-121(i)’s statutory
criteria:
1. The real need of the spouse seeking the support is the single most important
factor;
2. In addition to the need of the disadvantaged spouse, the courts most often
consider the ability of the obligor spouse to provide support;
3. Further, the amount of alimony should be determined so that the party
obtaining the divorce is not left in a worse financial position than he or she
had before the opposite party’s misconduct brought about the divorce; and
4. While alimony is not intended to provide a former spouse with relative
financial ease, we stress that alimony should be awarded in such a way that
the spouses approach equity.
909 S.W.2d at 410 (citing Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. Ct. App. 1989) and
Shackleford v. Shackleford, 611 S.W.2d 598, 601 (Tenn. Ct. App. 1981)).
In
this case, the trial court heard testimony and argument at the alimony hearing between Mr. and
Ms. Nesbitt. Unless the preponderance of the evidence so establishes otherwise, this Court will
defer to the trial court’s finding of facts. Where no finding of fact is stated within the record
regarding one of the factors, this court will review such factor de novo from evidence within the
record and determine where the presumption of correctness lies. Lastly, this Court will review
the amount of the alimony award under an abuse of discretion standard. We will discuss each of
the mandatory, statutory factors in turn.
A. Relative earning capacity, obligations, needs, and financial resources of each party,
including income from pension, profit sharing or retirement plans and all other sources.
The trial court stated in its findings “there is no way from any proof . . . that Ms. Nesbitt
can ever command the salary that Mr. Nesbitt does. . . . The proof shows that the husband makes
almost six times the money she does. He’s been the sole support of the family.” According to
Ms. Nesbitt’s income and expense statement, she has a deficit of $1003.95 each month while Mr.
Nesbitt makes approximately $62,000 a year. This Court finds the evidence supports the trial
court’s finding Mr. Nesbitt makes almost six times than that Ms. Nesbitt does.
B. Relative education and training of each party, the ability and opportunity of each party to
secure such education and training, and the necessity of a party to secure further education and
training to improve such party's earning capacity to a reasonable level.
The trial court stated in its findings “she is not skilled. She can only work hourly jobs.
She’s working as . . . a cafeteria aide at Metro where she’s only paid eight months a year. . . .
There is no foreseeable way at all . . . that she can ever be able to be skilled enough to make
anywhere near her husband makes. She is in need of the alimony. He has the ability to support.”
The record states that Nissan trained Mr. Nesbitt for his job. No other education is mentioned.
This Court finds there is no preponderance of evidence to controvert the trial court’s finding that
Ms. Nesbitt has only a high school education while Mr. Nesbitt has received at least on-the-job
training through Nissan and the military.
C. Duration of the marriage.
The trial court properly found “this is a marriage of long duration.” The parties
presented conflicting dates, 1988 and 1989, as to when they were married. Regardless the exact
year, this court finds the evidence lies with the finding the marriage was for a long duration, for
approximately seventeen or eighteen years.
D. Age and mental condition of each party.
The trial court did not specifically state in its findings the age and mental condition of the
parties. However, this Court finds that the record is clear the parties are forty-eight. No
specifics were made regarding the mental condition of each party, but this Court finds from the
record that each is in good mental condition.
E. Physical condition of each party, including, but not limited to, physical disability or
incapacity due to a chronic debilitating disease.
The trial court made no specific statements of fact regarding the physical conditions of
each party. After de novo review of the record, this Court finds that each party is in good health.
While there is evidence to show Ms. Nesbitt was once gravely ill with a staph infection, this
Court finds that the evidence presented shows Ms. Nesbitt has returned to work and lives
routinely.
F. 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.
The trial court did not make any statements of fact regarding this mandatory factor.
Upon de novo review, this Court finds that there is evidence to show the parties had no children
from this marriage, and Ms. Nesbitt’s children from a prior relationship have reached age of
majority.
G. Separate assets of each party, both real and personal, tangible and intangible.
The trial court did not make any reference to separate assets of each party. This Court
finds, via de novo review of the record, the parties held all their property as marital property.
H. Provisions made with regard to the marital property.
The
trial court ordered the martial home to be sold and awarded the equity to Ms. Nesbitt. The
mortgage payments were to be paid by Mr. Nesbitt until the home is sold. Upon sale, the
proceeds should be used to reimburse one-half of Mr. Nesbitt’s mortgage payments made after
November 1, 2006. The trial court awarded the furniture and household goods to Ms. Nesbitt,
except the family Bible and an antique mirror, which were awarded to Mr. Nesbitt. Each party
was awarded their vehicle. The trial court awarded Mr. Nesbitt the proceeds of the sale of the
boat and the lawn equipment. The pensions, retirement, IRAs, and the 401Ks were divided
50/50. This Court finds the preponderance of the evidence supports the trial court’s division of
the marital property.
I. Standard of living of the parties established during the marriage.
The trial court made no specific statements regarding the standard of living
established during the marriage. This Court finds the evidence in the record establishes
the wife as the primary homemaker and the husband as a successful laborer at Nissan.
J. 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.
No direct findings of fact were made regarding either party’s contributions to the
marriage. Through de novo review, this Court finds Ms. Nesbitt contributed to the
marriage through her household chores, cooking meals, and her various employment,
except for one year of the marriage when she was ill. The only evidence of Mr. Nesbitt’s
contributions to the marriage was his earnings from Nissan and the military.
K. Relative fault of the parties, in the court’s discretion
The trial court stated in its findings it granted the divorce to Ms. Nesbitt because
it found Mr. Nesbitt in greater fault on grounds of inappropriate marital conduct. This
Court finds that upon review of the record, the preponderance of the evidence supports
the trial court’s grant of the divorce to the wife. The record indicates Mr. Nesbitt had
domestic issues with Ms. Nesbitt’s son and the weight of the testimony was that Mr.
Nesbitt drank heavily.
L. Other factors, including tax consequences, as necessary to consider the equities
between the parties.
The trial court made no direct statements of fact regarding any tax consequences. This
Court finds, under de novo review, there was no evidence of tax consequences to either party.
This Court affirms the trial court’s award of in futuro alimony to Ms. Nesbitt. The
weight of the evidence in the record supports the categorization of Ms. Nesbitt as an unskilled,
hourly wage earner. The preponderance of the evidence is the wife graduated high school, but
never received further education or training, other than on the job training, to elevate her outside
hourly wage jobs. Ms. Nesbitt attended to the household chores, cooked and cleaned for her
husband, further evidencing she has not sought or attained more education, training, or skills.
This Court also believes Ms. Nesbitt contributed to Mr. Nesbitt’s success so that he
accomplished a greater earning capacity than his wife. This Court is of the opinion the
preponderance of the evidence shows Ms. Nesbitt has a great need for support and no evidence is
within the record that Ms. Nesbitt can promote herself to earn more than minimum wage.
Therefore, this Court affirms the trial court’s conclusions Ms. Nesbitt cannot be rehabilitated to a
standard of living comparable to the post-divorce standard of living of that of Mr. Nesbitt.
In regards to the amount of the in futuro alimony award, this Court finds the trial
court did not abuse its discretion. The real need of the Ms. Nesbitt is evidenced by her
$1003.95 per month deficit coupled with her inability to elevate herself out of hourly
wages. In addition to her need, Mr. Nesbitt’s approximate $62,000 annual salary
evidences his ability provide support. Considering the party obtaining the divorce is not
left in a worse financial position than she had before the divorce, the preponderance of
the evidence supports the trial court’s conclusion $750.00 is sufficient to supplement her
salary to allow her to reasonably resume her standard of living. This court believes
$750.00 per month in futuro alimony is a most equitable solution. This Court finds the
weight of the evidence proves the trial court did not abuse its discretion in choosing the
amount of the alimony award.
CONCLUSION
We
hold the preponderance of the evidence supports the trial court’s award of alimony in futuro to
Ms. Nesbitt. We also affirm the trial court’s $750.00 per month alimony award because the
evidence indicates Ms. Nesbitt needs long-term spousal support because she, at her age, cannot
receive the training education, and skills necessary to work a job other than her life-long, hourly-
wage earning job. The evidence shows Ms. Nesbitt cannot be rehabilitated to earn a standard of
living after the divorce reasonably comparable to the standard of living enjoyed during the
marriage or to the post-divorce standard of living expected to be available to Mr. Nesbitt. As
such, the trial court is affirmed, and costs of this appeal are to be assessed to the appellant,
Ferrell Nesbitt.
___________________________________
DON R. ASH, S.J.