Dennis T. Crouse v. Charlane Allen Crouse ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
______________________________________________ FILED
DENNIS T. CROUSE,
December 7, 1998
Appellant,
Cecil Crowson, Jr.
Appellate C ourt Clerk
Vs. C.A. No. 02A01-9712-CV-00312
Shelby Law No. 151303
CHARLANE ALLEN CROUSE,
Appellee.
____________________________________________________________________________
FROM THE SHELBY COUNTY CIRCUIT COURT
THE HONORABLE KAY S. ROBILIO, JUDGE
Richard F. Vaughn of Memphis
For Appellant
Daniel Loyd Taylor, John N. Bean of Memphis
For Appellee
AFFIRMED AS MODIFIED AND REMANDED
Opinion filed:
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
DAVID R. FARMER, JUDGE
F. LLOYD TATUM, SENIOR JUDGE
This dispute concerns an award of alimony and attorney’s fees. Appellant, Dennis T.
Crouse (Husband), appeals from the trial court’s order granting alimony in futuro and attorney’s
fees to Appellee, Charlane Allen Crouse (Wife).
The parties married on August 21, 1971 in Lewis County, New York. A daughter was
born of this marriage in 1972, but she is no longer a minor and does not reside with either party.
After the marriage, Husband and Wife first lived in New York where they both worked in a
bowling pin factory. Due to Husband’s subsequent military career, the parties moved to San
Antonio, Texas in 1973 and then to Houston, Texas. Upon completing his military career,
Husband obtained a Bachelor of Science degree from the University of Houston while Wife
worked as a clerk in a fabric store. The parties then moved to Galveston, Texas to enable
Husband to attend medical school. While Husband attended medical school, Wife worked as a
part-time clerk in a grocery store and as a part-time secretary in the pathology department at the
university, eventually quitting the job at the grocery store in order to work full time in the
pathology department. After Husband obtained his medical degree in 1982 and completed his
residency in 1985, the parties moved from Galveston to Birmingham, Alabama to allow Husband
to participate in a fellowship program. At this time, Wife worked as an administrative secretary
in addition to providing sewing services from the parties’ home. Wife stopped working outside
of the home in 1989 in order to pursue her sewing business. In 1993, the parties moved to
Memphis, Tennessee to enable Husband to take a position at the University of Tennessee.1
On February 13, 1996, Husband filed a complaint for divorce alleging irreconcilable
differences and inappropriate marital conduct on the part of Wife. Wife filed an answer
admitting irreconcilable differences while denying guilt of inappropriate marital conduct, and
filed a counter-complaint alleging inappropriate marital conduct on Husband’s part. On March
24, 1997, the trial court entered a decree granting absolute divorce pursuant to T.C.A. § 36-4-129
which incorporated the parties’ stipulated property settlement while reserving the issues of
spousal support and attorney’s fees. On November 17, 1997, the trial court entered a final decree
of divorce awarding Wife alimony in futuro in the amount of $3,800.00 per month for forty-
eight months, and thereafter in the amount of $2,900.00 per month. The trial court also ordered
Husband to pay Wife’s attorney’s fees and litigation expenses in the amount of $8,750.00.
Husband subsequently brought this appeal.
On appeal, Husband presents the following issues for our review:
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It is also important to note that Husband also worked various jobs to support his family
while pursuing his education except for a few years when he was in medical school.
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(1) Whether the trial court erred in awarding Wife alimony in
futuro rather than rehabilitative alimony.
(2) Whether the trial court erred in awarding Wife’s attorney’s
fees and litigation expenses in the amount of $8,750.00.
Since the trial court heard this case sitting without a jury, we review the case de novo
upon the record with a presumption of correctness of the findings of fact by the trial court.
Unless the evidence preponderates against these findings, we must affirm, absent error of law.
T.R.A.P. 13(d).
Alimony
Husband asserts that the trial court should have granted Wife rehabilitative alimony
rather than granting her alimony in futuro. Husband contends that this is a classic case for an
award of rehabilitative alimony in that Wife is in her mid-forties, in good health, had the
opportunity during the marriage to pursue further education and training, is currently pursuing
a degree in special education, and that he supported Wife’s decision to pursue her degree and
does not object to paying rehabilitative alimony until she secures her master’s degree. He further
asserts that rehabilitative alimony is proper in that fault was not a factor in the divorce, the
parties did not enjoy a lavish lifestyle, Wife received an adequate amount in the agreed division
of property, and that it is uncertain what her needs will be once she completes her education.
On the other hand, Wife asserts that the grant of alimony in futuro was warranted by the
circumstances and that the award was fair and equitable. She contends that she contributed to
her family by working outside the home in several positions in addition to caring for their
daughter and the household which in turn allowed Husband to pursue his educational endeavors.
Furthermore, Wife asserts that she is not capable of rehabilitation given her age and lack of
experience, and that the award of alimony in futuro will allow her to more closely approach her
former economic position she enjoyed while married. Finally, Wife contends that Husband has
the ability to pay the amount ordered by the trial court and that her needs also support the amount
awarded.
In Tennessee, there is a preference for rehabilitative alimony. Aaron v. Aaron, 909
S.W.2d 408, 410 (Tenn. 1995). Our Supreme Court, in discussing rehabilitative alimony, stated
in Self v. Self, 861 S.W.2d 360 (Tenn. 1993):
[T.C.A. § 36-5-101(d)(1)] reflects an obvious legislative
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policy that, if possible, the dependency of one ex-spouse on the
other be eliminated and both parties be relieved of the
impediments incident to the dissolved marriage, and that an ex-
spouse be adjudged permanently dependent upon the other only
when the court granting the divorce finds that economic
rehabilitation is not feasible and long-term support is necessary.
Id. at 361. “However, rehabilitative alimony is offered as an alternative to alimony in futuro,
not as a replacement.” Ford v. Ford, 952 S.W.2d 824, 827 (Tenn. App. 1996). T.C.A. § 36-5-
101(d)(1) still permits the courts to award long-term support if it appears that rehabilitation is
not feasible. Id. “Accordingly, our domestic relations laws governing the payment of alimony
still acknowledges that:
‘The husband, having entered one of the strongest most
fundamental relationship known to the law, must continue to bear
its financial burden where he can reasonably do so and where it
is necessary in order to prevent a relatively greater hardship to the
wife.’”
Id. (quoting H. Clark, The Law of Domestic Relations in the United States § 17.5 at 255 (2nd
ed. 1987)).
T.C.A. § 36-5-101(d)(1) (Supp. 1998) provides:
(d)(1) 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, temporary support and maintenance.
Where there is such relative economic disadvantage and
rehabilitation is not feasible in consideration of all relevant
factors, including those set out in this subsection, then the court
may grant an order for payment of support and maintenance on a
long-term basis or until the death or remarriage of the recipient
except as otherwise provided in subdivision (a)(3). Rehabilitative
support and maintenance is a separate class of spousal support as
distinguished from alimony in solido and periodic alimony. In
determining whether the granting of an order for payment of
support and maintenance to a party is appropriate, and in
determining the nature, amount, length of term, and manner of
payment, the court shall consider all relevant factors, including:
(A) 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;
(B) 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 earning capacity to a
reasonable level;
(C) The duration of the marriage;
(D) The age and mental condition of each party;
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(E) The physical condition of each party, including, but not
limited to, physical disability or incapacity due to a chronic
debilitating disease;
(F) 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;
(G) The separate assets of each party, both real and personal,
tangible and intangible;
(H) The provisions made with regard to the marital property as
defined in § 36-4-121;
(I) The standard of living of the parties established during the
marriage;
(J) 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;
(K) The relative fault of the parties in cases where the court, in its
discretion, deems it appropriate to do so; and
(L) Such other factors, including the tax consequences to each
party, as are necessary to consider the equities between the
parties.
“The amount of alimony to be allowed in any case is a matter for the discretion of the
trial court in view of the particular circumstances.” Ingram v. Ingram, 721 S.W.2d 262, 264
(Tenn. App. 1986). In determining the amount of alimony, “the real need of the spouse seeking
the support is the single most important factor. In addition to the need of the disadvantaged
spouse, the courts most often consider the ability of the obligor spouse to provide support.”
Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. App. 1989) (citations omitted). “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.” Aaron, 909
S.W.2d at 411.
Husband is in his mid-forties and is a neonatologist at the University of Tennessee and
the University of Tennessee Medical Group. Husband’s income has continued to increase over
the years. In 1996, Husband had an income of approximately $150,000.00. Wife is also in her
mid-forties. After the divorce, Wife began to pursue a Bachelor of Arts degree with a major in
special education. Wife currently is a full-time student and works part time as a student assistant
at five dollars per hour. It is estimated that it will take Wife three to four years to complete her
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Bachelor of Arts degree. Wife then plans to pursue her master’s degree in special education
which she estimates will take approximately one and one-half to two years to complete. Wife
will be fifty or fifty-one years of age upon completion of her education.
At the time of the divorce, the parties agreed on a division of property. As a result of
such agreement, each party received assets from various retirement and investment plans.
Furthermore, Wife received the marital residence which, at the time of the divorce, was worth
approximately $200,000.00 but which had only approximately $30,000.00 in equity. The total
amount each party received as a result of the property division was approximately $114,000.00.
During the proceedings below, each party filed a Rule 14 Affidavit of Income and
Expenses. Husband’s affidavit reveals a gross monthly salary of $10,869.92 and a net monthly
salary of $7,713.67. Husband’s affidavit further reveals that his monthly expenses for the
support of Wife to be $4,091.03 which, according to his affidavit, results in a monthly deficit of
$487.75 after payment of his monthly expenses. At the time of the hearing below, Husband
admitted that a change in circumstances reduced his monthly deficit to approximately $36.00.
On the other hand, Wife’s affidavit reveals a gross monthly income of $530.00 and a net monthly
income of $397.10. Her affidavit further reveals $5,164.47 in total monthly expenses which
results in a monthly deficit of $4,767.37.
With the foregoing, we believe the trial court correctly determined that Wife should be
awarded alimony in futuro. Wife is economically disadvantaged to Husband. The record
reveals that Husband has a greater earning capacity, superior education, and better job training
than Wife. Wife also substantially contributed to her family and household in a number of ways
which allowed Husband to achieve his superior education and earning capacity.
This was a twenty-six year marriage. During this marriage, Husband has been building
a career outside the home while Wife has, for the most part, worked within the home such that
she has no college degree and only limited outside-work experience. Wife worked several
different jobs, provided for the care of the parties’ daughter and household, and freely moved
several times to support and contribute to Husband’s career. Wife sacrificed her career to follow
Husband around the country in furtherance of his career.
The record further reveals that Wife is in need of some support and that Husband has the
ability to pay. It is unlikely that Wife will ever be able to approach the level of income which
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Husband is able to enjoy. Thus, given due consideration to all relevant factors, we are of the
opinion that the alimony in futuro awarded to Wife is necessary for her to continue to maintain
a reasonable standard of living which is at least somewhat comparable to that which she
experienced before the divorce.
We therefore believe the trial court’s grant of $3,800.00 per month as alimony in futuro
for forty-eight months to be correct given that this will allow Wife to complete her education.
However, we find the grant of $2,900.00 per month as alimony in futuro to be excessive. While
we agree that granting alimony in futuro rather than rehabilitative alimony was correct in this
aspect, we believe that Wife’s award should be reduced to $2,000.00 per month as alimony in
futuro and that such be terminated upon the death or remarriage of Wife. As this Court stated
in Lancaster v. Lancaster, 671 S.W.2d 501 (Tenn. App. 1981):
Alimony is not and never has been intended by our legislature to
be punitive. Nor do we believe it was intended simply as an
award for virtue. It is not designed to serve as an annuity for the
wife; or as Professor Clark has stated “[t]he purpose of alimony
is to care for the wife’s needs after divorce, not to provide her
with a life-time profit-sharing plan.”
Id. at 503 (citations omitted).
It is unclear what Wife’s needs will be upon completion of her education. However, it
is clear that Wife will then have the means and ability to support herself somewhat.
Furthermore, Wife received a reasonable amount of assets from the property division. Given the
foregoing, the award of $2,900.00 per month as alimony in futuro was excessive and should be
reduced to $2,000.00 per month as alimony in futuro. This amount should be more than
sufficient to support her once she has acquired her education. However, this is not to say that
circumstances may change which may warrant an increase or decrease in the amount of alimony.
Attorney’s Fees
As previously mentioned, Husband also contests the trial court’s order granting $8,750.00
in attorney’s fees and litigation expenses to Wife. Husband contends that the trial court erred
in granting fees considering the assets Wife received in the division of property and the lack of
liquid assets on his part. To the contrary, Wife asserts that she does not have the resources to
pay attorney’s fees given the fact that she is a full-time student and is only working part time.
Furthermore, Wife contends that the parties received the same amount in the property division
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and that the majority of her portion was in the form of equity in the marital residence and
retirement accounts. Wife also requests that this Court award her attorney’s fees incurred on this
appeal.
Attorney fee awards are treated as alimony. Gilliam v. Gilliam, 776 S.W.2d 81, 86
(Tenn. App. 1988). In determining whether to award attorney’s fees, the trial court should again
consider the relevant factors in T.C.A. § 36-5-101(d)(1). Houghland v. Houghland, 844 S.W.2d
619, 623 (Tenn. App. 1992). Where the wife demonstrates that she is financially unable to
afford counsel, and where the husband has the ability to pay, the court may properly order the
husband to pay the wife’s attorney’s fees. Id.; Harwell v. Harwell, 612 S.W.2d 182, 185 (Tenn.
App. 1980). Furthermore, the award of attorney’s fees is within the sound discretion of the trial
court, and unless the evidence preponderates against the award, it will not be disturbed on
appeal. Lyon v. Lyon, 765 S.W.2d 759, 762-63 (Tenn. App. 1988).
In the case sub judice, we cannot say that the evidence preponderates against the trial
court’s finding that Wife is entitled to attorney’s fees. Given the status of the parties and the
division of property, Wife does not have the resources or ability to pay these fees while Husband
readily has the ability to pay such. However, we believe that the respective parties should bear
the expense of their own attorney’s fees for this appeal.
Accordingly, the decree of the trial court is modified to reduce the award of $2,900.00
per month as alimony in futuro to an award of $2,000.00 per month as alimony in futuro to
terminate upon the death or remarriage of Wife. As modified, the decree is affirmed, and the
case is remanded for such further proceedings as are necessary. Costs of the appeal are assessed
against the Appellant.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
____________________________________
DAVID R. FARMER, JUDGE
____________________________________
F. LLOYD TATUM, SENIOR JUDGE
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