Sonja Broyles Williams v. Stewart Ashley Williams ( 2017 )

08/17/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 27, 2017 Session
SONJA BROYLES WILLIAMS v. STEWART ASHLEY WILLIAMS
Direct Appeal from the General Sessions Court for Hardin County
No. GS5446 Larry McKenzie, Judge, Sitting by Interchange
No. W2016-01602-COA-R3-CV
This is an appeal from a divorce case dissolving a long-term marriage with two minor
children. Following a four and one-half day trial, the court awarded Wife a divorce,
designated Husband as the primary residential parent of the parties’ children, distributed
the marital property, awarded Wife rehabilitative alimony, and denied Wife’s request for
attorney’s fees. Wife appeals the designation of Husband as primary residential parent,
the value and division of certain items within the marital estate, the court’s decision to
award her rehabilitative alimony rather than alimony in futuro, and the denial of her
request for attorney’s fees. We vacate the trial court’s order regarding retroactive child
support and remand the issue for further proceedings consistent with this opinion. We
affirm the remainder of the judgment of the trial court. We deny Wife’s request for
attorney’s fees incurred on appeal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
Vacated in part, Affirmed in part, and Remanded
BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and W. NEAL MCBRAYER, J., joined.
Terry Lynn Wood, Adamsville, Tennessee, for the appellant, Sonja Broyles Williams.
Ryan Michael Hagenbrok and Katherine Parrish Hagenbrok, Savannah, Tennessee, for
the appellee, Stewart Ashley Williams.
OPINION
I. FACTS & PROCEDURAL HISTORY
Sonja Broyles Williams (“Wife”) and Stewart Ashley Williams (“Husband”)
married on May 24, 1996. During the course of the marriage, the parties had four
children, two of whom were minors at the time of trial (the “Children”). During the
marriage, Husband worked as a general manager at a car dealership. Wife is a registered
nurse and was employed off and on throughout the marriage, both full and part-time.
Wife originally filed a complaint for divorce against Husband in 2002, but the parties
then reconciled for more than ten years. Apparently unaware that Wife’s 2002 complaint
for divorce had never been dismissed, Husband filed for divorce from Wife under a new
docket number in 2013. The trial court dismissed Husband’s complaint, and the parties
proceeded to litigate this divorce pursuant to Wife’s original complaint.
One night in October of 2012, there was an altercation between the parties, and
Wife’s leg was broken. Husband and Wife have very different recollections of what led
to Wife’s injury. Wife testified that Husband violently and criminally assaulted her that
night, which caused grievous injury to her leg. Husband testified that Wife was actually
the aggressor and that she injured her leg while she was pursuing him and she tripped and
fell. The trial court eventually resolved this issue in favor of Husband, finding that there
was not sufficient evidence to support Wife’s allegation that Husband intentionally
injured her. Wife is currently receiving social security disability benefits as a result of
the injury to her leg and various psychological problems.
Prior to the start of the divorce trial, the court heard testimony from the parties’
son, then 13 years old, and their daughter, then 12 years old, regarding their preference of
with which parent they wanted to live. Both children expressed a desire to live with their
father.
The case was tried over the course of four and one-half days and included the
testimony of 14 witnesses and the introduction of 77 exhibits. The issues before the court
at trial were (1) which party was entitled to a divorce; (2) the entry of a permanent
parenting plan; (3) division of marital property and marital debt; (4) Wife’s request for
alimony; and (5) Wife’s request for attorney’s fees. The trial court issued a written ruling
on February 16, 2016. In its written ruling, the court held that Wife was entitled to a
divorce because Husband was continuously absent from the home and “gave up on his
marriage.” The court determined that Husband should be the Children’s primary
residential parent. The court also divided the marital assets and debt, awarded Wife
rehabilitative alimony for three years, and denied Wife’s request for attorney’s fees.
The court entered a final judgment on March 21, 2016, which incorporated by
reference its written rulings. The final judgment also stated that “requests by either party
for retroactive support are denied.” The court simultaneously entered a permanent
parenting plan consistent with its ruling.1 The permanent parenting plan designates
1
This plan was later amended to correct some inadvertent errors, but the substance of the plan remained
consistent with the court’s written ruling.
2
Husband as the Children’s primary residential parent, giving Husband 275 days of
parenting time and Wife 90 days. In the parenting plan, the court specifically stated that
“[t]he custody preference of the children has been a significant factor in preparing this
parenting plan.” Regarding child support, the trial court held that Wife should not pay
child support at this time because she is “presently disabled and drawing social security
disability.” The court did, however, assign Father as the payee for the Children’s social
security payments and gave Wife credit for said payments. Again, the trial court declined
to calculate retroactive child support for either party.
II. ISSUES PRESENTED
Our review of the merits of this appeal has been hindered by Wife’s failure to
provide a proper statement of the issues presented on appeal as required by Rule 27(a)(4)
of the Tennessee Rules of Appellate Procedure. In his brief, Husband presented a
statement of what he considered to be Wife’s issues for our review “based on the
arguments raised in [Wife’s] brief.” Despite the deficiencies in Wife’s brief, we exercise
our discretion to move forward with the issues we have gleaned from Wife’s arguments
in her brief and that Husband has identified for our review on appeal. We have restated
five issues before us as follows:
1. Whether the trial court erred in designating Husband as the
Children’s primary residential parent?
2. Whether the trial court erred in declining to award retroactive child
support to Wife?
3. Whether the trial court erred in valuing certain marital assets and
dividing the marital estate?
4. Whether the trial court erred in refusing to award Wife alimony in
futuro?
5. Whether the trial court erred in refusing to award attorney’s fees to
Wife?
III. STANDARD OF REVIEW
This case was tried by the trial court without a jury. We therefore review the trial
court’s findings of fact de novo with a presumption of correctness unless the evidence
preponderates otherwise. Tenn. R. App. 13(d); Armbrister v. Armbrister, 414 S.W.3d
685, 692 (Tenn. 2013). We review the trial court’s conclusions of law de novo with no
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presumption of correctness. Hyneman v. Hyneman, 152 S.W.3d 549, 553 (Tenn. Ct. App.
2003).
1. Designation of Primary Residential Parent
Mother challenges the trial court’s decision to designate Husband as the
Children’s primary residential parent. Matters of custody and visitation are generally
within the broad discretion of the trial court. Melvin v. Melvin, 415 S.W.3d 847, 850-51
(Tenn. Ct. App. 2011) (citing Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001);
Smallwood v. Mann, 205 S.W.3d 358, 361 (Tenn. 2006)). This is because such decisions
often hinge on subtle factors, such as the parents’ demeanor and credibility during
proceedings. Rountree v. Rountree, 369 S.W.3d 122, 129 (Tenn. Ct. App. 2012).
However, a trial judge’s discretion when determining the details of custody and visitation
must be based on evidence and applicable rules of law. Hogue v. Hogue, 147 S.W.3d
245, 251 (Tenn. Ct. App. 2004). A trial court abuses the discretion afforded to it only
when it applies an incorrect legal standard or makes a decision that is against logic or
reasoning causing an injustice to the complaining party. Eldridge, 42 S.W.3d at 85.
A. Tennessee Code Annotated section 36-6-406
Wife first contends that the trial court erred in refusing to apply Tennessee Code
Annotated section 36-6-406(b) to this case based on her allegations that Husband
physically abused her. Section 406 sets forth circumstances that warrant imposing severe
restrictions on a parent’s visitation with their children. See Tenn. Code Ann. § 36-6-406.
In her brief on appeal, Wife specifically cites to subsection (b) of this statute, which
states that a “parent’s residential time with the child shall be limited if it is determined by
the court . . . that the parent resides with a person who has engaged in physical or sexual
abuse.” Tenn. Code Ann. § 36-6-406(b). However, Wife does not appear to have ever
alleged that Husband resides with anyone who has abused another person. Rather,
Wife’s contention is that “Husband’s act of kicking Wife’s leg undoubtedly fits the
definition of abuse,” which should make section 406 applicable to restrict Husband’s
parenting time. Based on Wife’s argument, we assume that the portion of section 406 to
which Wife is actually referring is section 406(a)(2), which requires a parent’s residential
parenting time to be limited if that parent has engaged in physical, sexual, or emotional
abuse of the other parent, child, or another person living with that child. Tenn. Code
Ann. § 36-6-406(a)(2).
Wife points to the incident on October 12, 2012 that resulted in the injury to her
leg to support her allegation that she was physically abused by Husband. Wife
acknowledges, however, that the “trial court discussed and rejected Wife’s claim of abuse
by Husband.” Whether Husband was actually responsible for Wife’s injuries to her leg
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was a hotly debated issue throughout the trial. The trial court heard testimony from the
parties and others regarding what happened that evening and ultimately concluded
“[t]here is simply not enough evidence to support an intentional injury caused [to Wife]
by Husband.” In support of this determination, the trial court noted that Wife never told
anyone about the alleged abuse, Husband had no history of physical abuse, Wife allowed
Husband to move back into the marital home, and the record is devoid of any evidence
that Wife was frightened of Husband. After reviewing the record, we conclude that the
evidence does not preponderate against the trial court’s finding against Wife’s allegation
of physical abuse, and accordingly we discern no error in the trial court’s failure to apply
Tennessee Code Annotated section 36-6-406 when fashioning a permanent parenting plan
in this case.
B. Tennessee Code Annotated section 36-6-106(a)
Wife also argues that the trial court erred in weighing the “best interest factors” set
forth in Tennessee Code Annotated section 36-6-106(a), and that a proper weighing of
those factors should have resulted in the court naming her the Children’s primary
residential parent. Trial courts have broad discretion in fashioning child custody and
visitation arrangements that best suit the unique circumstances of each case. Parker v.
Parker, 986 S.W.2d 557, 563 (Tenn. 1999). However, that discretion is limited to some
degree by the statutory directive that such determinations “shall be made on the basis of
the best interest of the child.” Tenn. Code. Ann. § 36-6-106(a). Additionally, section 36-
6-106 directs courts to consider “all relevant factors,” including a non-exclusive list of
fifteen factors, when determining the best interests of a child in a primary residential
parent determination. Determining a child’s best interest is a “fact-sensitive inquiry” that
does not call for “rote examination of each of [the relevant] factors and then a
determination of whether the sum of the factors tips in favor of or against the parent. The
relevancy and weight to be given each factor depends on the unique facts of each case.”
Solima v. Solima, No. M2014-01452-COA-R3-CV, 2015 WL 4594134, at *4 (Tenn. Ct.
App. July 30, 2015) (no perm. app. filed) (quoting In re Marr, 194 S.W.3d 490, 499
(Tenn. Ct. App. 2005)). To that end, the determination of what is in a child’s best interest
could turn on a single factor. See In re Marr, 194 S.W.3d at 499.
On appeal, Wife summarizes her argument related to the trial court’s alleged error
in reviewing the best interest factors as follows:
[T]he trial court failed to properly consider the factors in Tenn. Code Ann.
§ 36-6-106(a). Even a cursory review of the undisputed facts in this case
point to all factors being in favor of Wife as the primary residential parent.
Had the trial court taken the time to individually contemplate the factors
fairly it would have been obvious that Wife should have been so designated
5
as the primary residential parent.
Ironically, Wife herself fails to take the time to point this Court to any particular evidence
that applies any specific factor that would require the trial court to find that factor
weighed in favor of Wife. Rather, Wife’s argument related to this issue includes a
lengthy recitation of her allegations of Husband’s bad acts, Husband’s girlfriend’s bad
acts, and her disagreement with the weight the court put on her Children’s stated
preference to live with Husband.
On the other hand, the trial court made extensive written findings of fact with
regard to what was in the Children’s best interest and held as follows:
Both parties seek custody of the two minor children. T.C.A. § 36-6-106
states that said determination should be made based on the best interest of
the minor children. A second goal of T.C.A. § 36-6-101 is to allow both
parents the maximum participation possible in the lives of the children.
This Court has considered carefully each of the factors set forth in T.C.A. §
36- 6-106.
Until Wife’s accident, she was the primary caregiver for the two minor
children of the marriage. Because of Husband’s work schedule the Wife
was responsible for, including but not limited to, transportation to school,
school activities, shopping, tutoring and feeding the children. The record
reflects that she excelled as a Mother to her children. The Wife’s injury
arising out of the altercation between the parties changed her relationship to
her two minor children. She could no longer take care of herself, let alone
take care of her children. Circumstances beyond her control affected how
her two younger children began to feel about her. Two important events
occurred in the lives of these two children. The Husband changed his
attitude to late nights at work and began to establish a closer relationship
with the children. He began to date a family nurse practitioner [Melanie
Reaves] who was able to establish a close relationship with the children.
The two are now engaged and have purchased a house and are residing
therein. To Wife’s credit she saw the benefits of the care of Ms. [Reaves]
and encouraged that relationship because it was in the best interest of her
children.
The children are intelligent, articulate and mature for their age. They
testified without hesitation that they desire to live with their Father. The
children love both of their parents and desire to have a good relationship
with both. During the pendency of the divorce, the minor son found
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marijuana in his Mother’s bedroom. She denied the marijuana was hers,
claiming it belonged to the Husband. This has caused some tension
between Mother and son. The children testified that it is a regular
occurrence for Mother’s friend to come to visit and the two drink alcohol.
Coupled with the fact that Mother has not returned to work, the relationship
between the Mother and the two children has become strained. Mother has
been the steadfast constant in the children’s life up until the accident. The
children’s belief that the Mother has voluntarily refrained from going back
to work and resuming an active life is a real issue to the children and must
be considered in determining the best interest of the children.
When weighing all of the factors set forth in T.C.A. § 36-6-106 the Court
concludes that both parents love their children, both children love their
parents, both are able to nurture and parent their children. The Court does
have concerns with the present emotional stability of the Wife given her
slow recovery from her accident, her anxiety issues and the stress of a
protracted divorce. Therefore, the custody preference of the two minor
children should be given greater weight and the primary caregiver should
be the Father.
Wife’s allegation that the trial court “dropped the ball” with regard to designating
Husband as the Children’s primary residential parent is not sufficient for this Court to
find reversible error in the trial court’s analysis outlined above. The trial court conducted
a proper best interest analysis pursuant to Tennessee Code Annotated section 36-6-
106(a), and the evidence does not preponderate against the trial court’s findings. We
conclude that the determination made by the trial court was within the spectrum of
rulings that could reasonably flow from the applicable facts and law, and we therefore
affirm the judgment of the trial court designating Father as the Children’s primary
residential parent.
2. Retroactive Child Support
Mother next contends that the trial court erred in declining to award child support
to her for the period of time during which the Children resided primarily with her, which
extended from March 2013 until September 2014. In its written findings of fact and
conclusions of law, the trial court held as follows:
As to the issue of child support the Mother is drawing social security
disability. The Father will be the payee of the children’s social security
payments received through Mother’s disability. The Court chooses not to
set child support for the Mother because the Mother is currently disabled
7
and the Father has substantial income. The Mother is given credit for the
social security payments made by the Social Security Administration on
behalf of the children (Sherrell vs. Sawyer, 1987 Tenn. App. Lexis 3197.)
The Court has entered a Parenting Plan, a copy of which is attached to this
opinion.
In Tennessee, a parent’s child support obligation is governed by the Child Support
Guidelines set forth by the Tennessee Department of Human Services in accordance with
Tennessee Code Annotated section 36-5-101(e). We have articulated our standard of
review of a trial court’s decision on child support as follows:
[T]he adoption of the Child Support Guidelines has limited the courts’
discretion substantially, and decisions regarding child support must be
made within the strictures of the Child Support Guidelines. . . .
....
Because child support decisions retain an element of discretion, we review
them using the deferential “abuse of discretion” standard. . . . Discretionary
decisions must, however, take the applicable law and the relevant facts into
account.
Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005) (internal citations
omitted).
The Child Support Guidelines (the “Guidelines”) specifically state that, unless the
rebuttal provisions set forth in Tennessee Code Annotated sections 36-2-311(a)(11) 2 or
36-5-101(e)3 have been established by clear and convincing evidence, in cases where a
court is setting an initial child support order, “a judgment must be entered to include an
amount of monthly support due up to the date that an order for current support is
entered.” Tenn. Comp. R. & Reg. 1240-02-04-.06(1). Subsection (3) of that regulation
goes on to set forth the manner in which “retroactive [child] support . . . shall be
calculated.” Tenn. Comp. R. & Reg. 1240-02-04-.06(3). And while a trial court may
use its discretion to deviate from the Guidelines in determining retroactive child support,
“this discretion is narrow and must be exercised within the constraints and limitations of
2
Tennessee Code Annotated section 36-2-311(a)(11)(A) relates to cases establishing parentage
and is inapplicable to the case at bar.
3
Tennessee Code Annotated section 36-5-101(e) describes circumstances under which an obligor parent
may be entitled to a deviation in retroactive child support owed pursuant to the Guidelines in cases of
divorce or separation.
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the guidelines.” Redmond v. Hunt, No. W2004-00217-COA-R3-JV, 2004 WL 2848385,
at *3 (Tenn. Ct. App. Dec. 10, 2004). Specifically, the Guidelines require the following:
(2) Deviations from the presumption that a judgment for retroactive
support shall be awarded back to the date of the birth of the child, the date
of the separation of the parties, or the date of the abandonment of the child
shall be supported by written findings in the tribunal's order that include:
(a) The reasons the tribunal, pursuant to Tennessee Code Annotated
§§ 36-2-311(a)(11)(A) or 36-5-101(e)(1)(C), deviated from the
presumptive amount of child support that would have been paid
pursuant to the Guidelines; and
(b) The amount of child support that would have been required under
the Guidelines if the presumptive amount had not been rebutted;
and
(c) A written finding by the tribunal that states how, in its
determination,
1. Application of the Guidelines would be unjust or
inappropriate in the particular case before the tribunal; and
2. The best interests of the child or children who are subject
to the support award determination are served by deviation
from the presumptive guideline amount.
Tenn. Comp. R. & Regs. 1240-02-04-.06 (emphasis added).
“When ‘shall’ is used in a statute or a rule, the requirement is mandatory.”
Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009)
(citing Stubbs v. State, 393 S.W.2d 150, 154 (Tenn. 1965)). The trial court’s order and
reasoning for declining to order retroactive child support in this case does not include the
written findings required by subsections (b) and (c) as outlined above, which are
mandatory in the event that the court deviates from ordering retroactive child support.
We must therefore remand this issue for calculation of retroactive child support pursuant
to the Guidelines.
3. Valuation and Division of Marital Property
Wife next alleges that the trial court erred in the following respects regarding its
9
valuation and division of the parties’ marital property:
A. Valuation of the Marital Home at 35 Fawn Lane
B. Equity in 110 Breathtaking Loop Pickwick Lake Property
C. Husband’s Dissipation of Marital Assets
This Court has set forth the following principles with regard to a trial court’s division of
marital property:
Trial courts have broad discretion in fashioning an equitable division of
marital property, and appellate courts must accord great weight to a trial
court’s division of marital property. Accordingly, it is not our role to tweak
the manner in which the trial court has divided the marital property.
Rather, our role is to determine whether the trial court applied the correct
legal standards, whether the manner in which the trial court weighed the
factors in Tenn. Code Ann. § 36-4-121(c) is consistent with logic and
reason, and whether the trial court’s division of marital property is
equitable.
The division of the marital estate includes both the division of marital
property and the allocation of the marital debt. Trial courts have not
completely divided a marital estate until they have allocated both the
marital property and the marital debt. Thus, an examination of the manner
in which a trial court divided the marital property must take into
consideration how the trial court allocated the marital debt.
Owens v. Owens, 241 S.W.3d 478, 490 (Tenn. Ct. App. 2007) (Internal citations omitted).
A. Valuation of the Marital Home at 35 Fawn Lane
Wife contends that the trial court erred in valuing the parties’ marital home at
$300,000.00, although she does not specify the valuation that the trial court should have
adopted. The value of marital property is a question of fact. Owens v. Owens, 241
S.W.3d 478, 486 (Tenn. Ct. App. 2007). “‘The value of a marital asset is determined by
considering all relevant evidence regarding value.’ If the evidence of value is conflicting,
the trial judge may assign a value that is within the range of values supported by the
evidence.” Powell v. Powell, 124 S.W.3d 100, 105-06 (Tenn. Ct. App. 2003) (quoting
Wallace v. Wallace, 733 S.W.2d 102, 107 (Tenn. Ct. App. 1987)). “[A] trial court’s
decision with regard to the value of a marital asset will be given great weight on appeal.”
10
Wallace, 733 S.W.2d at 107.
Throughout the course of litigation, the marital home was valued by the parties at
different amounts ranging from $295,000.00 to $342,000.00. At trial, Husband testified
that the value of the marital home was less than the debt held against it, which was
around $300,000.00. The trial court determined that the home was worth $300,000.00
and the debt owed on the home was $300,000.00. An assessment of $300,000.00 is
squarely within the range of values for the home supported by evidence that was
presented to the trial court. Accordingly, we affirm the trial court’s valuation of the
home at 35 Fawn Lane.
B. Equity in 110 Breathtaking Loop Pickwick Lake Property
Wife next states that she “disagreed with the trial court’s distribution of the
spectacular 110 Breathtaking Loop Pickwick Lake property purchased by Husband with
his girlfriend Reaves.” The trial court found the value of a one-half interest in this
property to be worth $600,000.00 and the debt on the property to be $527,500.00. The
court further found that neither Husband nor the marital estate had an interest in any of
the equity in this property.
Husband purchased this property with his fiancée, Ms. Reaves. The two obtained
financing to aid in the purchase of the home. The loan officer who handled the mortgage
for the property, Darrin Howard, testified that Ms. Reaves made the down payment on
the property in the amount of $155,000.00 and that Husband did not contribute any funds.
Husband and Ms. Reaves were not married when this property was purchased, and Wife
has cited no authority for the position that Husband was entitled to any portion of the
equity in the property. The trial court made a specific written finding that the testimony
of Mr. Howard was credible. After reviewing the record, we conclude that the value of
Husband’s interest in this property was zero. Accordingly, we affirm the finding of the
trial court.
C. Dissipation
Finally, Wife contends that the trial court’s distribution of marital property was
inequitable because the court failed to account for what she alleges to be Husband’s
dissipation of marital property. It is difficult to discern precisely what Wife’s argument
is on this point, but she appears to contend that the trial court should have charged against
Husband’s portion of the marital estate a sum of money he electronically transferred to
Ms. Reaves, as well as money Husband spent on one of the Children’s orthodontic bills.
The record shows that the trial court heard evidence from both parties on the issue
11
of dissipation and declined to factor it into the division of the marital estate. Husband
testified that the electronic transfers to Ms. Reaves were loans and that Ms. Reaves
reimbursed him. The record does not preponderate against the trial court’s determination
that there was no dissipation of marital assets. Furthermore, pursuant to Tennessee Code
Annotated section 36-4-121(c)(5)(A), the extent to which a party may have dissipated
marital assets is only one of multiple factors that a court takes into account when dividing
marital property. After considering Wife’s arguments on the point, we cannot conclude
that the trial court’s division of marital property was inequitable or otherwise in error,
and we affirm the court’s valuation and distribution of marital property in all respects.
4. Spousal Support
Wife requested that the trial court award her long-term spousal support in the form
of alimony in futuro. Ultimately, the court decided that “Wife can achieve, with a
reasonable effort, an earning capacity that will permit Wife’s standard of living after
divorce to be reasonbl[y] comparable to the standard of living she enjoyed prior to the
divorce.” Consequently, the court awarded Wife rehabilitative alimony in the amount of
$1,000.00 per month for twelve months, eight hundred dollars per month for twelve
months, and six hundred dollars per month for twelve months. According to Wife, the
trial court erred in “failing to award disabled Wife alimony in futuro.”
The Tennessee Supreme Court has articulated a deferential standard of review
applicable to a trial court’s decision on matters of alimony:
For well over a century, Tennessee law has recognized that trial
courts should be accorded wide discretion in determining matters of spousal
support. See Robinson v. Robinson, 26 Tenn. (7 Hum.) 440, 443 (1846)
(“Upon a divorce . . . the wife is entitled to a fair portion of her husband’s
estate for her support, and the amount thus to be appropriated is a matter
within the legal discretion of the chancellor . . . .”). This well-established
principle still holds true today, with this Court repeatedly and recently
observing that trial courts have broad discretion to determine whether
spousal support is needed and, if so, the nature, amount and duration of the
award. See e.g., Bratton v. Bratton, 136 S.W.3d 595 605 (Tenn. 2004);
Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001); Crabtree v. Crabtree,
16 S.W.3d 356, 360 (Tenn. 2000).
Equally well-established is the proposition that a trial court’s
decision regarding spousal support is factually driven and involves the
careful consideration of many factors. Kinard v. Kinard, 986 S.W.2d 220,
235 (Tenn. Ct. App. 1998); see also Burlew, 40 S.W.3d at 470; Robertson
12
v. Robertson, 76 S.W.3d 337, 340-41 (Tenn. 2002). As a result,
“[a]ppellate courts are generally disinclined to second-guess a trial judge’s
spousal support decision.” Kinard, 986 S.W.2d at 234. Rather, “[t]he role
of an appellate court in reviewing an award of spousal support is to
determine whether the trial court applied the correct legal standard and
reached a decision that is not clearly unreasonable.” Broadbent v.
Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006). Appellate courts decline to
second-guess a trial court’s decision absent an abuse of discretion.
Robertson, 76 S.W.3d at 343. An abuse of discretion occurs when the trial
court causes an injustice by applying an incorrect legal standard, reaches an
illogical result, resolves the case on a clearly erroneous assessment of the
evidence, or relies on reasoning that causes an injustice. Wright ex rel.
Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA,
Inc., 318 S.W.3d 328, 335 (Tenn. 2010). This standard does not permit an
appellate court to substitute its judgment for that of the trial court, but
“‘reflects an awareness that the decision being reviewed involved a choice
among several acceptable alternatives,’ and thus, ‘envisions an less
rigorous review of the lower court’s decision and decreased likelihood that
the decision will be reversed on appeal.’” Henderson, 318 S.W.3d at 335
(quoting Lee Medical Inc., v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)).
Consequently, when reviewing a discretionary decision by a trial court,
such as an alimony determination, the appellate court should presume that
the decision is correct and should review the evidence in the light most
favorable to the decision. Wright, 337 S.W.3d at 176; Henderson, 318
S.W.3d at 335.
Gonsewski v. Gonsewski, 350 S.W.3d 99, 105-06 (Tenn. 2011) (footnote omitted).
Tennessee Code Annotated section 36-5-121(d)(1) outlines the four types of
spousal support that are recognized under Tennessee law: (1) alimony in futuro, (2)
alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony. Alimony in
futuro “is intended to provide support on a long-term basis until the death or remarriage
of the recipient.” Gonsewski, 350 S.W.3d at 107 (citing Tennessee Code Annotated
section 36-5-121(f)(1)). The Tennessee General Assembly, however, has set forth a clear
legislative preference for rehabilitative alimony:
(2) 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. To be rehabilitated means to achieve, with reasonable effort, an
earning capacity that will permit the economically disadvantaged spouse’s
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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, considering
the relevant statutory factors and the equities between the parties.
Tenn. Code Ann. § 36-5-121(d)(2).
In awarding Wife rehabilitative alimony, the trial court set forth its extensive
reasoning as follows:
The parties have been married for 19 years. Both have worked diligently
outside the home. The Husband’s hard work and accomplishments have
benefitted the family through consistent good yearly earnings. Wife, prior
to her accident, achieved the position of Director of Nursing and was a
respected professional in her field. In addition, she willingly assumed total
responsibility for the home and children. The tragic event of October 12,
2012 in which Wife was injured during an altercation brought substantial
changes to Wife’s health, both physically and mentally. There is no
question that rehabilitative alimony to the Wife is proper in this cause of
action.
The difficult question the Court must resolve is the rehabilitation time
needed and the amount that is fair to both parties. Exhibit 25, Social
Security Disability Notice of Award indicates that Wife has four
impairments as follows: (1) Dysfunction, severe (2) Disorders of the back,
severe (3) Anxiety disorders, severe and (4) Affective disorders, severe.
Dr. Frazier, in his deposition, Exhibit 5, indicates that the Wife did not
pursue the physical therapy necessary to gain a full recovery. There is no
testimony of Wife seeking mental treatment for the anxiety disorders and
the affective disorders. In Exhibit 5, page 8 the following question is asked
and answered. Question: What is your assessment of the credibility of the
individual’s statements regarding symptoms concerning the total medical
and [nonmedical] evidence in the file? Answer: Partially credible.
Credibility assessment. Claimants assessment are partially credible as there
is an expectation that post surgery she will continue to ambulate with
improvement.
The Court, in weighing all of the evidence, must judge the credibility of the
witnesses including the parties. Wife is pessimistic about a full recovery
and the Court finds that based on her testimony as well as other testimony
is that she should be optimistic about solving her medical problems through
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physical therapy and her mental issues through psychiatric counseling in
order that she can return to a nursing career.
Children are not vocational experts. However, they can make simple day to
day observations about the physical condition of their Mother. They lived
with their Mother before the accident and they lived with their Mother after
the accident and their observation is that Mother can return to work.
Mother has now driven to Florida and back for a vacation. She has
resumed many of her activities around the house as well as shopping and
attending school activities. It is Dr. Frazier’s belief that the surgery was
successful.
Judith Young who worked in the home for six months testified that the
Wife improved to the point that she was driving herself. Ms. Young took a
dim view of Wife stating that the Wife was lazy.
It is the opinion of this Court that Wife can achieve, with a reasonable
effort, an earning capacity that will permit Wife’s standard of living after
the divorce to be reasonable comparable to the standard of living she
enjoyed prior to the divorce. The Court has considered the parties age,
length of the marriage, the severity of the injury and slowness of recovery,
the Wife’s need and the Husband’s ability to pay. The Court has also
considered the fact that Husband will be the primary caregiver of the
children and the fact Husband will be receiving no child support from the
Wife. Therefore, Husband will pay Wife the sum of One Thousand
($1,000.00) Dollars per month for a period of twelve (12) months, Eight
Hundred ($800.00) Dollars for a period of twelve (12) months and Six
Hundred ($600.00) Dollars for a final period of twelve (12) months.
Rehabilitative alimony will terminate on the death of Husband or Wife.
Husband will carry appropriate life insurance to protect the Wife in the
event of Husband’s untimely death.
Our review of this discretionary decision involves three determinations: (1)
whether the factual basis for the trial court’s decision is properly supported in the record;
(2) whether the trial court applied the correct legal principles; and (3) whether the trial
court’s decision was within the range of acceptable alternatives. Gooding v. Gooding,
477 S.W.3d 774, 780 (Tenn. Ct. App. 2015). After reviewing the record, we determine
that the evidence does not preponderate against the trial court’s findings of fact above.
Although Wife asserts that the trial court could not have reasonably found that she could
be rehabilitated when she is receiving Social Security Disability, the court appears to
have properly considered the substance of the disability award. In addition to the
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analysis set forth by the trial court, Trial exhibit 25, which is the notice that Wife
received entitling her to Social Security Disability, states that her disability determination
will be reviewed every three years - the same amount of time for which the trial court
awarded rehabilitative alimony. The claim analysis also states that “there is an
expectation that post-surgery [Wife] will continue to ambulate with improvement.”
Wife’s disability notice also indicates that she is not limited to unskilled work due to her
impairments. Furthermore, we conclude that the trial court’s analysis properly identified
and employed the correct principles for determining an award of alimony, which are set
forth in Tennessee Code Annotated section 36-5-121(i). In sum, we hold the
determination of the trial court was within the range of reasonable alternatives available
in light of the facts and law applicable to this case. We therefore affirm the court’s award
of rehabilitative alimony.
5. Attorney’s Fees
Wife’s final arguments raised on appeal relate to attorney’s fees. According to
Wife, the trial court erred in refusing to exercise its discretion to award her reasonable
attorney’s fees at trial pursuant to Tennessee Code Annotated sections 36-5-121(a) and
35-5-103(a). Wife states that she is not able to pay for her attorney, Husband has
“substantial” income, and Husband was found at fault in the divorce. In the context of a
divorce, an award of attorney’s fees is considered an award of alimony. Long v. Long,
957 S.W.2d 825, 829 (Tenn. Ct. App. 1997). As we have related herein, a trial court is
afforded wide discretion in an award of alimony, which in this regard is attorney’s fees,
and we will not reverse that decision absent a showing of abuse of discretion. See Aaron
v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995). Wife does not include any citations to the
record or otherwise expound upon her claim that she is in need of money to pay her
attorney. Accordingly, we decline to find that the trial court abused its discretion in
refusing to award Wife attorney’s fees.
Wife has also devoted a single sentence in her brief to request that this Court grant
her attorney’s fees incurred on appeal. The determination of whether to award attorney’s
fees on appeal is within the sole discretion of the appellate court. Moses v. Moses,
E2008-00257-COA-R3-CV, 2009 WL 838105, at *10 (Tenn. Ct. App. Mar. 31, 2009)
(no perm. app. filed) (citing Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App.
1995)). We respectfully deny Wife’s request.
IV. CONCLUSION
For the foregoing reasons, we vacate the trial court’s order regarding retroactive
child support and remand that issue for further proceedings consistent with this opinion.
We affirm the judgment of the trial court in all other respects. We deny Wife’s request
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for attorney’s fees incurred on appeal. Costs of this appeal are taxed equally to Husband
and to Wife and her surety, for which execution may issue if necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
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