Robin Claire Pearson Gorman v. Timothy Stewart Gorman

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 21, 2011 Session
ROBIN CLAIRE PEARSON GORMAN v. TIMOTHY STEWART
GORMAN
Appeal from the Chancery Court for Coffee County
No. 09186 Vanessa Jackson, Judge
No. M2010-02620-COA-R3-CV - Filed November 16, 2011
Husband challenges the trial court’s award of alimony in solido beginning after three years
of rehabilitative alimony. We find no abuse of discretion and affirm the trial court’s
decision.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
A NDY D. B ENNETT, J., delivered the opinion of the Court, in which R ICHARD H. D INKINS, J.,
joined. F RANK G. C LEMENT, J R., J., filed a concurring opinion.
Roger James Bean and Bradley Joseph Eldridge-Smith, Tullahoma, Tennessee, for the
appellant, Timothy Stewart Gorman.
Michael E. Griffin and Karen Sedora Price, Tullahoma, Tennessee, for the appellee, Robin
Claire Pearson Gorman.
OPINION
F ACTUAL AND P ROCEDURAL B ACKGROUND
Robin Claire Pearson Gorman (“Wife”) and Timothy Stewart Gorman (“Husband”)
were married in 1994 and have two minor children. Wife filed for divorce in May 2009
alleging grounds of inappropriate marital conduct, adultery, and irreconcilable differences.
While initially denying inappropriate marital conduct or adultery, Husband later filed an
amended answer admitting these grounds.
The matter was heard on November 3, 2010. Husband and Wife both testified. In a
memorandum order entered on November 17, 2010, the trial court granted Wife a divorce
and, as agreed by the parties, named Mother the primary residential parent of the two minor
children. With respect to the parties’ earning capacity, the court made the following
findings:
The Court finds that both the parties have master’s degrees in civil
engineering. However, since 1998, the Wife has not worked in the field of
engineering. By mutual agreement of the parties, she stayed home to care for
the children. From the time he was in college, the Husband has worked for
Roger’s Group. He has received several promotions, and his career has
steadily advanced. His current gross income is $12,455.85 per month
($9,129.25 net). He has regularly received yearly bonuses, and his bonus for
2010 was $17,384.00 gross ($9,900.00 net).
Although the Wife has the education to be employed in the engineering
field, she has not worked in the field for almost 12 years. The starting salary
for engineers is approximately $50,000.00 per year; however, the Wife has
been unable to find an engineering position in the Tullahoma area. She now
desires to pursue a career as a math teacher in the public school system. She
presently teaches at St. Paul’s School, and her gross salary is $1,260.42 per
month. It will require approximately three years for the Wife to obtain the
education and certifications necessary to pursue a career as a teacher.
Unfortunately, the salary she will earn teaching in the public school system
will not be as much as she could earn working in the engineering field. It is
the Wife’s prerogative to choose a different career path, but the law requires
that the Husband’s child support obligation be based upon her earning capacity
(i.e. $50,000.00 per year in the engineering field).
The court subsequently found that Wife was entitled to rehabilitative alimony of $2,000 per
month for three years “in order to achieve an earning capacity that would permit her to enjoy
a standard of living reasonably comparable to that enjoyed during the marriage.” The court
went on to state as follows:
Even if the Wife were to find employment as an engineer with a starting
salary, she would be just starting her career. While the Husband’s career has
steadily advanced, for the last twelve years she has been out of the job market.
It will require some period of time for the Wife to develop her career to the
point that she can afford a reasonable comparable lifestyle. Therefore, after
the expiration of the period of rehabilitative alimony, the Wife is awarded
alimony in solido in the amount of $2,000.00 per month for a period of 12
years.
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The court made specific rulings regarding the division of marital assets and debts.
Husband was ordered to assume and pay the two credit card debts. The parties’ joint bank
account was equally divided. Wife was awarded her 401k account, and the parties were to
receive equal shares of Husband’s 401k retirement and pension accumulated during the
marriage.
In an order entered on March 11, 2011, the trial court incorporated by reference its
previous memorandum and order and reiterated its rulings regarding rehabilitative alimony
and alimony in solido. Husband was ordered to pay monthly child support in the amount of
$1,563.00. The court gave a detailed listing of the marital property awarded to each spouse.
Husband was ordered to pay Wife’s reasonable attorney fees.
Husband appeals on the issue of the trial court’s award of alimony in solido.
S TANDARD OF R EVIEW
We review a trial court’s findings of fact de novo with a presumption of correctness
unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). We review
questions of law de novo with no presumption of correctness. Nelson v. Wal-Mart Stores,
Inc., 8 S.W.3d 625, 628 (Tenn. 1999).
A trial court has broad discretion to determine the need for spousal support, as well
as the appropriate nature, amount, and duration of that support. Tenn. Code Ann. § 36-5-
121; Bratton v. Bratton, 136 S.W.3d 595, 605 (Tenn. 2004). An award of spousal support
will not be disturbed on appeal absent an abuse of the trial court’s discretion. Broadbent v.
Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006). Under the abuse of discretion standard, a
reviewing court cannot substitute its judgment for the trial court’s judgment. Wright ex rel.
Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011). Rather, a reviewing court will find an
abuse of discretion only if the trial court “applied incorrect legal standards, reached an
illogical conclusion, based its decision on a clearly erroneous assessment of the evidence, or
employ[ed] reasoning that causes an injustice to the complaining party.” Konvalinka v.
Chattanooga–Hamilton County Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008); see also Lee
Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). Therefore, “when reviewing a
discretionary decision by the 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.” Gonsewski v. Gonsewski, No. M2009-00894-SC-R11-CV, 2011
WL 4116654, at *3, __ S.W.3d __ (Tenn. Sept. 16, 2011).
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A NALYSIS
I.
We begin with a summary of the statutes and caselaw relevant to the propriety of a
trial court’s alimony award.
In 2000, our Supreme Court issued its opinion in Crabtree v. Crabtree, 16 S.W.3d 356(Tenn. 2000), a case which has often been the starting point for subsequent cases concerning
rehabilitative alimony. Crabtree involved the dissolution of a 23-year marriage. Id. at 357.
The wife was a certified public accountant who began working part-time when the couple
started a family; she was earning approximately $41,000 a year working out of the home at
the time of the divorce. Id. The husband, a stockbroker, earned approximately $417,000 in
the year preceding the divorce. Id. at n.1. The trial court awarded Ms. Crabtree rehabilitative
alimony of $1,700 per month for five years, followed by alimony in futuro of $1,200 per
month. Id. at 357-58. The Court of Appeals affirmed the alimony award. Id. at 358.
In analyzing the case, the Supreme Court focused on the statutory preference for
rehabilitative alimony.1 Id. The Court concluded that, “[i]f an award of rehabilitative
alimony is justified by the parties’ circumstances, a trial court initially should award
rehabilitative alimony only.” Id. at 360. Should the recipient’s prospects of economic
rehabilitation change, the court reasoned, the rehabilitative alimony award could be modified;
if rehabilitation were not feasible, the court could then award alimony in futuro. Id. At the
time of the initial alimony award, however, “a concurrent award of both types of alimony
[rehabilitative and in futuro] is inconsistent.” Id. The Court also noted that the trial court
had not made any findings of fact regarding the statutory factors, thereby requiring the Court
to make an independent review of the record to determine the preponderance of the evidence.
Id.
The Court concluded that the award of alimony in futuro “is not justified and does not
recognize or further the legislative purpose of encouraging divorced spouses to become self-
sufficient.” Id. The Court agreed with the trial court’s conclusion that Ms. Crabtree could
be rehabilitated, noting her education and earning capacity, estimated by Mr. Crabtree to be
between $65,000 and $100,000 annually. Id. After reviewing all of the statutory factors, the
Court affirmed the award of rehabilitative alimony for five years but increased the amount
to $2,500 per month to assist Ms. Crabtree in making the transition to full-time employment.
Id. at 361. The award of alimony in futuro was reversed. Id.
1
At that time, the statutory provisions regarding alimony were codified at Tenn. Code Ann. § 36-5-
101(d).
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This court examined the implications of Crabtree in Dempsey v. Dempsey, No.
M1998-00972-COA-R3-CV, 2000 WL 1006945 (Tenn. Ct. App. July 21, 2000), a case
involving an award of alimony in futuro. The question raised in Dempsey was “the proper
measure of economic rehabilitation to be used in determining if the disadvantaged spouse’s
attainment of that level is feasible.” Id. at *2. While the relevant statutory provisions were
not as detailed at they are now, they did state the general assembly’s intent “that a spouse
who is economically disadvantaged, relative to the other spouse, be rehabilitated whenever
possible by the granting of an order for the payment of rehabilitative, temporary support and
maintenance.” Id. at *2, n.1 (quoting Tenn. Code Ann. § 36-5-101(d)(1) (2000) (now Tenn.
Code Ann. § 36-5-121(d)(2))). Where rehabilitation was not possible, the statute allowed for
long-term support. Id.; see Tenn. Code Ann. § 36-5-101(d)(1) (2000) (now Tenn. Code Ann.
§ 36-5-121(d)(3)). Based upon the statutes and caselaw, this court concluded that “a court
should determine whether it is feasible for a disadvantaged spouse to improve his or her
earning capacity to a ‘reasonable level.’” Dempsey, 2000 WL 1006945, at *4. We then
proceeded to consider whether this reasonable level should be related to the pre-divorce
standard of living or the other spouse’s earning capacity. Id. After a lengthy discussion of
Crabtree, we reached the conclusion that the holding in Crabtree “indicates that this
differential [between the earning capacities of the husband and wife]2 is not relevant to the
question of the feasibility of rehabilitation, at least at the time of the initial determination of
whether rehabilitation is feasible.” Id. at *6 (footnote omitted). Based upon the statutory
preference for rehabilitation and the Supreme Court’s analysis in Crabtree, this court
concluded that an award of rehabilitative alimony, rather than alimony in futuro, was
appropriate. Id. at *7.
While Crabtree stands for the proposition that, at least at the time of the initial decree,
rehabilitative alimony and alimony in futuro are inconsistent, a subsequent Supreme Court
case declined to reach the same conclusion with respect to rehabilitative alimony and alimony
in solido. See Burlew v. Burlew, 40 S.W.3d 465, 472 (Tenn. 2001). In several other cases,
the Supreme Court emphasized that, while the marital standard of living is one factor to be
considered in awarding alimony, a trial court must consider all of the relevant statutory
factors. See Bratton v. Bratton, 136 S.W.3d 595, 604 (Tenn. 2004); Robertson v. Robertson,
76 S.W.3d 337, 340 (Tenn. 2002). In Robertson, the court cited Crabtree for the following
principles:
The prior concept of alimony as lifelong support enabling the disadvantaged
spouse to maintain the standard of living established during the marriage has
2
Ms. Dempsey did not work outside of the home until the end of the marriage, when she earned seven
to eight dollars an hour; Mr. Dempsey earned in excess of $60,000 per year. Dempsey, 2000 WL 1006945,
at *1.
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been superseded by the legislature’s establishment of a preference for
rehabilitative alimony. The parties’ incomes and assets will not always be
sufficient for them to achieve the same standard of living after divorce that
they enjoyed during the marriage.
Robertson, 76 S.W.3d at 340.
In 2003, the general assembly enacted revisions to the provisions of Tenn. Code Ann.
§ 36-5-101(d) governing alimony. See 2003 T ENN. P UB. A CTS ch. 305. In 2005, the general
assembly again revised the alimony provisions and moved them to Tenn. Code Ann. § 36-5-
121. See 2005 T ENN. P UB. A CTS ch. 287. The new provisions added transitional alimony to
the recognized forms of alimony and specifically allow for concurrent awards of
rehabilitative and in futuro alimony.3 See Tenn. Code Ann. § 36-5-121(d), (g); Anderson v.
Anderson, No. M2005-02029-COA-R3-CV, 2007 WL 957186, at *5 (Tenn. Ct. App. Mar.
29, 2007). The provisions added in 2003 and 2005 define what it means to be rehabilitated
and contain the following statements of public policy:
• “Spouses have traditionally strengthened the family unit through private arrangements
whereby one (1) spouse focuses on nurturing the personal side of the marriage,
including the care and nurturing of the children, while the other spouse focuses
primarily on building the economic strength of the family unit. This arrangement
often results in economic detriment to the spouse who subordinates such spouse’s
own personal career for the benefit of the marriage. 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.” Tenn. Code Ann. § 36-5-121(c)(1).
• “The general assembly finds that the contributions to the marriage as homemaker or
parent are of equal dignity and importance as economic contributions to the marriage.
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
3
As this court recognized in Anderson v. Anderson, No. M2005-02029-COA-R3-CV, 2007 WL
957186, at *5 (Tenn. Ct. App. Mar. 29, 2007), the provisions of Tenn. Code Ann. § 36-5-121(d)(4) supersede
the holding of Crabtree with regard to concurrent awards of rehabilitative and in futuro alimony. The statute
now recognizes that, in some cases, only partial rehabilitation is possible. See Tenn. Code Ann. § 36-5-
121(d)(4); Anderson, 2007 WL 957186, at *5-6.
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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)(2).
Pursuant to Tenn. Code Ann. § 36-5-121(d)(5), “[a]limony in solido may be awarded in lieu
of or in addition to any other alimony award, in order to provide support, including attorney
fees, where appropriate.”
The most recent Supreme Court case relevant to our discussion is Gonsewski v.
Gonsewski, 2011 WL 4116654. The Supreme Court stated the issue presented as “whether
alimony in futuro should be awarded to a spouse who has a college degree, good health, a
stable work history in a relatively high paying job, and a lack of demonstrated need for such
long-term alimony.” Id. at *1. The Gonsewskis were married for 21 years and had two
children, who were adults at the time of the divorce. Id. Both spouses worked throughout
the marriage–the wife as an information technologist with the State of Tennessee with a base
salary of $72,000, and the husband as an accountant with a gross income of $137,418 and
a bonus of $34,726 in 2008. Id. The husband testified that the bonuses he received in 2007
and 2008 were unusually large. Id. The trial court divided the marital property about equally
and determined that the wife was not entitled to alimony, citing her stable job with the State,
good income, and her share of the equity in the marital home (which the court considered
sufficient to obtain another residence). Id. at *2. The Court of Appeals reversed the trial
court’s decision regarding alimony and ordered the husband to pay alimony in futuro of
$1,250 per month, noting that alimony in futuro was “necessary to mitigate the harsh
economic realities of divorce” in light of the disparity in the parties’ incomes. Id
The Supreme Court emphasized the “legislative preference favoring short-term
spousal support over long-term spousal support, with the aim being to rehabilitate a spouse
who is economically disadvantaged relative to the other spouse and achieve self-sufficiency
where possible.” Id. at *7 (citing Tenn. Code Ann. § 36-5-121(d)(2)-(3)). The Court further
stated that “alimony in futuro should be awarded only when the court finds that economic
rehabilitation is not feasible and long-term support is necessary.”4 Id. Based upon on the
statutory factors, the Court concluded that alimony in futuro should not have been awarded
because alimony in futuro was intended to apply when the spouse could not be rehabilitated.
Id. at *8. Tenn. Code Ann. § 35-5-121(f)(1), cited by the Court, provides, in pertinent part:
Such alimony [in futuro] may be awarded when the court finds that there is
relative economic disadvantage and that rehabilitation is not feasible, meaning
4
We note that Tenn. Code Ann. § 36-5-121(d)(4) allows for an award of alimony in futuro “either
in addition to an award of rehabilitative alimony, where a spouse may be only partially rehabilitated, or
instead of an award of rehabilitative alimony, where rehabilitation is not feasible.”
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that 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
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.5
In reversing the decision of the Court of Appeals and reinstating the trial court’s
decision, the Court specifically cited the wife’s strong earnings record, the absence of
evidence regarding what (if anything) she could do to alter her earning capacity to allow her
post-divorce standard of living to be reasonably comparable to that applicable during the
marriage,6 the little amount of evidence regarding the marital standard of living, and the lack
of evidence regarding the husband’s expected post-divorce standard of living.7 Gonsewski,
2011 WL 4116654, at *8. The Court interpreted the earnings evidence as showing the wife
with a base salary of $72,000 a year and longevity bonuses8 and husband with a base salary
of $99,900 with the likelihood of decreasing bonuses. Id. at *9. The Court also mentioned
that the husband had taken out loans to help fund the children’s college education. Id.
Noting that the award of alimony in futuro by the Court of Appeals in this case was
inconsistent with its decision in Crabtree, the Court wrapped up its analysis as follows:
In short, Wife has the ability to support herself and, absent an abuse of
discretion, we are not inclined to second-guess the trial court’s decision not to
award alimony in futuro. While we recognize that the record demonstrates a
likelihood that Husband’s income may continue to exceed Wife’s by some
extent, and that Wife’s post-divorce lifestyle may decline to some extent, we
are not willing to overrule the trial court on this basis. The economic realities
are such that it is likely that Husband’s standard of living will also decline as
he establishes a separate household without Wife’s income. We reiterate that
5
This is consistent with the statutory definition of “rehabilitated” set forth in Tenn. Code Ann. § 36-
5-121(d)(2).
6
The Court cited Tenn. Code Ann. § 36-5-121(f)(1) and interpreted its provisions as contemplating
proof as to the “prospect or feasibility of Wife making any ‘reasonable efforts.’” Gonsewski, 2011 WL
4116654, at *8.
7
The Court was “not inclined to speculate about these matters.” Gonsewski, 2011 WL 4116654, at
*8.
8
Wife’s most recent longevity bonus was $1,500. Id. at *1.
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“two persons living separately incur more expenses than two persons living
together. Thus, in most divorce cases it is unlikely that both parties will be
able to maintain their pre-divorce lifestyle once the proceedings are
concluded.”
Id. at *10 (quoting Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998)).
Perhaps the two most significant points we are to derive from Gonsewski are the great
deference appellate courts are to give to the trial court’s decisions regarding alimony and the
disfavor for long-term alimony. As applied to the case before us, the deference factor
suggests upholding the 12-year, $2,000 per month award of alimony in solido, while the
disfavor for long-term alimony suggests striking down the award.
II.
In Gonsewski, our Supreme Court recognized the principle that “a trial court’s
decision regarding spousal support is factually driven and involves the careful balancing of
many factors.” Id. at *3 (footnote omitted). Decisions regarding the nature and amount of
spousal support hinge upon the unique facts of each case and require careful consideration
of the factors found at Tenn. Code Ann. § 36-5-121(i).9 Oakes v. Oakes, 235 S.W.3d 152,
160 (Tenn. Ct. App. 2007). Tenn. Code Ann. § 36-5-121(i) instructs the court to consider
all relevant factors in determining whether spousal support is appropriate and in determining
the nature, amount, length of term, and manner of payment, including the following:
(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;
9
As Supreme Court Justice Henry once observed, “Every tub must stand on its own bottom.” Farris
v. State, 535 S.W.2d 608, 622 (Tenn. 1976). Each case is governed by its own facts and the application of
the law to those facts. Id.
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(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.
The single most important consideration for the court in awarding alimony is the need of the
disadvantaged spouse seeking support, followed by the ability of the obligor spouse to pay
support. Bratton, 136 S.W.3d at 470; Oakes, 235 S.W.3d at 160.
In the present case, in addition to an award of rehabilitative alimony, the trial court
awarded Wife alimony in solido of $2,000 per month for 12 years. Pursuant to Tenn. Code
Ann. § 36-5-121(h)(1), alimony in solido, or lump sum alimony, is “a form of long term
support, the total amount of which is calculable on the date the decree is entered, but which
is not designated as transitional alimony.” The same subsection states that the purpose of
alimony in solido is “to provide financial support to a spouse.” Tenn. Code Ann. § 36-5-
121(h)(1). Such an award is not modifiable (unless the parties agree otherwise) and is not
terminable upon the death or remarriage of either party. Tenn. Code Ann. § 36-5-121(h)(2)-
(3). Alimony in solido may be awarded “in lieu of or in addition to any other alimony
award.” Tenn. Code Ann. § 36-5-121(d)(5).
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We now consider the statutory factors set forth at Tenn. Code Ann. 36-5-121(i).
Factor 1 is the parties’ relative earning capacity, obligations, needs, and financial resources.
The trial court determined that Wife had the capacity to earn approximately $50,000 a year
as an engineer and used this figure to impute a monthly income of $4,166.67 to her for
purposes of child support. Husband was determined by the trial court to have a current gross
income of $12,455.85 per month, which yields an annual income of $149,470.20. The court
further found that Husband “has regularly received yearly bonuses, and his bonus for 2010
was $17,384.00 gross ($9,900.00 net).” For child support purposes, the court used a total
monthly gross income of $13,904.52. Thus, Husband’s total income was over three times
the imputed earning capacity of Wife. While the court did not make specific findings
regarding the parties’ needs, each party presented a statement of expenses. Subtracting
private school tuition fees (paid by Husband) and an overstatement of health insurance
expenses from Wife’s statement, we calculate Wife’s monthly expenses to be approximately
$3943.57; Husband claimed monthly expenses in the amount of $7,184.29 (which includes
the children’s private school tuition). Just looking at the numbers, we must conclude that
Wife has need and Husband has the ability to pay.
Factor 2 is the parties’ relative education and training and whether there is a need for
further education to improve a party’s earning capacity. Tenn. Code Ann. § 36-5-121(i)(2).
Husband and Wife both have college degrees in civil engineering. Husband obtained a
master’s degree in civil engineering from Vanderbilt in 2008. Wife obtained a master’s
degree in civil engineering from the University of Tennessee in 1995 but at the time of the
hearing had decided to pursue a position teaching high school math. The trial court found
that “[i]t will require approximately three years for the Wife to obtain the education and
certifications necessary to pursue a career as a teacher.” The court’s award of rehabilitative
alimony for three years was intended to allow Wife to get the credentials to allow her to teach
full time in the public school system. The court recognized that a career in teaching would
not allow Wife to earn as much as working in engineering.
As to factors 3, 4, and 5, the parties were married for approximately sixteen years and
were both age 40 and healthy at the time of the divorce. See Tenn. Code Ann. § 36-5-
121(i)(3)-(5). Factor 6 is “[t]he 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.” Tenn. Code Ann.§ 36-5-121(i)(6). Under the terms of the permanent parenting
plan adopted by the court, Wife is the primary residential parent of the two minor children,
who were ages 8 and 12 at the time of the divorce. Because Husband moved to another state,
he has regular parenting time during the school year only one weekend per month. One of
the reasons stated by Wife for pursuing a teaching position was to allow her to be available
to the children after school and on breaks. Wife also testified that she had not sought
engineering positions in other cities because she wanted to maintain stability in the lives of
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the children. Thus, although Wife will be working outside the home, there is evidence
indicating that a school teaching position is preferable to an engineering position in another
town because of the impact on the children.
Factors 7 and 8 concern the parties’ separate assets and the division of marital
property. Tenn. Code Ann. § 36-5-121(i)(7)-(8). Neither party has substantial separate
assets. The parties agreed on the division of many of the marital assets, but they did not
agree on the valuation of the assets; and the court had to make a determination as to the
division of the bank accounts, retirement benefits, pension funds, and debts. Husband was
ordered to be responsible for both of the credit cards, totalling about $29,000.00. One of the
cards was in Husband’s name only, and there was evidence that Husband had used the other
card for expenses incurred as a result of an extramarital affair. Based upon both parties’
valuations of the marital assets, the court divided the assets fairly evenly.10
Factor 9 is the parties’ standard of living during their marriage. Tenn. Code Ann.
§ 36-5-121(i)(9). We will combine the discussion of this factor with factor 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 and increased earning power of the other party.” Tenn. Code Ann.
§ 36-5-121(i)(10). As summarized above, Tenn. Code Ann. § 36-5-121(c)(2) accords equal
importance to the contributions of a spouse as homemaker or parent as it does to economic
contributions. The statute goes on to state:
[W]here 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)(2). In this regard, the trial court specifically found that,
“[b]y mutual agreement of the parties, [Wife] stayed at home to care for the children.” 11 The
trial court also made the following relevant findings:
10
With Wife’s numbers, she received about $167,000.00 and Husband received about $165,000.00.
According to Husband’s numbers, Wife received about $178,000.00 and he received about $150,000.00.
11
While the precedential value of Crabtree must be considered in light of later statutory revisions
and caselaw, we note that, in Crabtree, the wife continued to work parttime in her chosen career throughout
the marriage. See Crabtree, 16 S.W.3d at 360. In Gonsewski, too, the wife worked outside the home
throughout the marriage. Gonsewski, 2011 WL 4116654, at *1.
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While the Husband’s career has steadily advanced, for the last twelve years
[Wife] has been out of the job market. It will require some period of time for
the Wife to develop her career to the point that she can afford a reasonable
comparable lifestyle.
From these findings, it appears that the trial court felt Wife was in need of support in light
of her contribution to the marriage by dropping out of the work force to care for the parties’
children and her resulting economic disadvantage. The court specifically recognized that,
without additional support, she would not be able to have a standard of living reasonably
comparable to that of Husband.
Factor 11 is the relative fault of the parties. There is no doubt in this case that
Husband was at fault in the divorce since the court awarded Wife a divorce on the basis of
adultery and inappropriate marital conduct.
Tenn. Code Ann. § 36-5-121(i) provides that the court may take into account other
factors, including tax consequences, as necessary “to consider the equities between the
parties.” Husband argues that the court failed to consider the tax consequences of alimony
in solido. Because alimony in solido is not terminable upon death or remarriage, Husband
asserts, it does not meet the criteria for being deductible to Husband.
Husband takes the position that the trial court’s award of alimony in solido is not
consistent with the statutory factors and the preference for rehabilitative, rather than long-
term, alimony. He further argues that the trial court’s award of alimony in solido is a
punitive measure for Husband’s fault in the failure of the marriage.
In reviewing the statutory factors and the trial court’s findings, we must bear in mind
that our review is limited to the abuse of discretion standard. Gonsewski, 2011 WL 4542255,
at *3. Alimony determinations are inherently factual in nature and require the trial court to
balance many factors. Id. Our role is only “to determine whether the trial court applied the
correct legal standard and reached a decision that is not clearly unreasonable.” Id. We are
to presume the correctness of the trial court’s decision and review the evidence “in the light
most favorable to the decision.” Id. at *4. An abuse of discretion review must reflect “an
awareness that the decision being reviewed involved a choice among several acceptable
alternatives.” Id. at *3. Thus, the fact that the reviewing court would not have made the
same ruling is not relevant as long as the trial court’s decision falls within the range of
acceptable options.
With these principles in mind, we cannot find an abuse of discretion in the trial court’s
alimony award. The court considered the statutory factors and made specific findings with
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regard to the factors it deemed salient. Reviewing the evidence in the light most favorable
to the trial court’s decision, we see no indication that the trial court applied an erroneous
standard or reached a patently unreasonable result.
C ONCLUSION
We affirm the decision of the trial court and assess the costs of this appeal, for which
execution may issue if necessary, against the appellant, Timothy Stewart Gorman.
______________________________
ANDY D. BENNETT, JUDGE
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