Mullinax v. Mullinax

JACKIE N. MULLINAX, )
)
Plaintiff/Appellee, )
)
Appeal No. FILED
01-A-01-9803-CH-00137
v. ) April 23, 1999
) DeKalb Chancery
TERRY O. MULLINAX, ) No. 96-149 Cecil Crowson, Jr.
) Appellate Court Clerk
Defendant/Appellant. )
COURT OF APPEALS OF TENNESSEE
APPEAL FROM THE CHANCERY COURT FOR DeKALB COUNTY
AT SMITHVILLE, TENNESSEE
THE HONORABLE VERNON NEAL, CHANCELLOR
J. HILTON CONGER
200 South Third Street
Smithville, Tennessee 37166
ATTORNEY FOR PLAINTIFF/APPELLEE
WM. KENNERLY BURGER
SunTrust Bank Building, Suite 306
201 East Main Street
P. O. Box 1969
Murfreesboro, Tennessee 37133-1969
ATTORNEY FOR DEFENDANT/APPELLANT
AFFIRMED AND REMANDED
WILLIAM B. CAIN, JUDGE
OPINION
This appeal arises out of the dissolution of the parties' twenty-three year
long marriage. The trial court granted the wife rehabilitative alimony for a two-
year period. The husband has appealed raising only the issue of the propriety of
the lower court's alimony award. We disagree with the husband's assertion that
the evidence preponderates against this alimony award, and accordingly, we
affirm the decision of the trial court.
Terry Mullinax (the Husband) and Jackie Mullinax (the Wife) were
married in 1975 and were divorced by final decree in 1998. During the course
of their twenty-three year marriage, one child was born to the parties. This child,
Bradley Mullinax, is now an adult, and he, along with both parties, were the only
witnesses who testified at the divorce hearing.
The Wife testified that she initiated the divorce proceedings due to the
Husband's infidelity. She claims that while the Husband had called her
derogatory names for years, his unfaithfulness was what prompted the divorce.
At the hearing, the Wife testified as to what she felt was evidence of the
Husband's unfaithfulness. However, even at the time of the divorce hearing, the
Wife stated that she still hoped for reconciliation. The parties' son testified and
confirmed that, on one occasion, a woman had been at his father's home and
answered the phone when he called.
The Wife, who is now 50 years old, testified that she has worked for the
entirety of her adult life. She was initially trained and worked as a cosmetologist
for eleven years. Before filing for divorce, the Wife had been working as an
insurance/personnel benefits coordinator for ten years and was earning
approximately $20,000 per year. She testified that she left this job in May of
1997 after having a nervous breakdown at which time she spent a week in
treatment at Parthenon Pavilion. Even before leaving her job, she felt that her
ability to perform her job had decreased in April of 1996 when her carotid artery
tore. She expressed that she would love to go back to work as soon as she was
able.
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The Wife introduced the deposition testimony of a psychologist, John
Averitt, who first saw the Wife in June of 1997 after she was discharged from
Parthenon Pavilion. The Wife was referred to Dr. Averitt from Dr. Pate, a
psychiatrist. At the January 9, 1998 date of his deposition, when Dr. Averitt had
seen the Wife fourteen times, he diagnosed her as having a major depressive
disorder that was secondary to her medical condition and to her divorce. Dr.
Averitt stated his opinion as follows: "I would rate her as being impaired or
disabled because of her depression, and I would say it is a permanent disability."
When asked what about her condition was disabling, Dr. Averitt responded as
follows:
[The Wife] has significant problems with
concentration and memory. She tends to luminate (sic) about
things consistently. She luminated (sic) about her husband
and the divorce. Now, she luminates (sic) about other things,
her inability to focus, carry on conversations.
She is very dependent, and probably was passive
dependent before the divorce ever occurred. She is presently
not able to live alone. Much of the time, she lives with her
sisters, one of her sisters, at least.
She had difficulty with sleep. Dr. Gillespie had
changed her sleep medication several times to try to address
that problem. She also had difficulty with a depressed affect.
In my opinion, she is not able to concentrate on a
job, or to deal with job stress in her current circumstances.
Dr. Averitt concluded that the Wife's prognosis was poor due to the fact that her
depression was probably based on a medical condition rather than based upon the
loss of marriage. Dr. Averitt testified that he referred the Wife to a psychiatrist,
Dr. Gillespie, for medication management.
The Wife testified that her total monthly financial need is $1,681.07.
This included a mortgage of $285 per month, an automobile payment of $324 per
month and medical expenses of $100 per month for her psychiatrist and
psychologist. The Wife testified that her monthly income is $735 per month
from Social Security. In addition, the final decree awarded the Wife at least one
piece of property with income-producing potential other than the house in which
she was living. Testimony was that this property could be rented for $325 to
$350 per month.
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The Husband, who is 47 years old, testified that he has been employed
by the DeKalb Telephone Company for the past twenty-two years. As of
recently, he also holds a part-time position as an affiliate broker with a realty
company. He earns approximately $30,000 a year with the phone company and
an additional $5,000 to $6,000 per year for his realty work. He testified that his
monthly expenses are $1,962.00.
The Husband denied the Wife's accusations of infidelity claiming that
he desired reconciliation during the first months of their separation. The
Husband described an increasing frustration throughout his marriage of what he
asserted were unfounded charges of infidelity that dated back ten or fifteen years.
Indeed, he cited this as the sole problem in the marriage. The Husband testified
that this pattern of behavior on the Wife's part dated from her first marriage. He
claimed that these accusations have caused an estrangement in his relationship
with his son.
The Wife filed a petition for divorce and the Husband subsequently
counterclaimed for the same. Prior to trial, the parties reached agreement
regarding all matters of property and debt division leaving only the issue of
alimony for the trial court to determine. In the final decree, the trial court found
"that it is appropriate to award alimony in futuro to the plaintiff for purposes of
rehabilitation as set out below." The court then ordered the Husband to pay the
Wife alimony in futuro in the amount of $400 per month for a two-year period
and stated that this was rehabilitative alimony.
Although the court describes the alimony as both "in futuro" and
"rehabilitative," the language in the court's Final Decree and bench ruling
indicates clearly that the court's award is one for rehabilitative alimony.
Rehabilitative support is designed to accomplish a stated result, to rehabilitate
an economically disadvantaged spouse, within a limited time whereas alimony
in futuro continues the support that was incident to the marriage relationship.
See Tenn. Code Ann. § 36-5-101 (Supp. 1998); Janet Richards, Richards on
Tennessee Family Law, § 12-3, 284 (1997); Long v. Long, 968 S.W.2d 292, 294
(Tenn. App. 1997) (upholding the trial court's award of alimony in futuro over
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husband's challenge that trial court erred in awarding wife alimony in futuro
rather than rehabilitative alimony).
With regard to the different types of alimony, the relevant part of the
Tennessee Code provides as follows:
(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;
(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
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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.
Tenn. Code Ann. § 36-5-101 (Supp. 1998). While all of these factors are
important, the most common factors are the need of the spouse requesting
support and the ability to pay of the obligor spouse. Bull v. Bull, 729 S.W.2d
673, 675 (Tenn. App. 1987).
A trial court's decision regarding the award of spousal support is
heavily fact-dependent and requires the careful balancing of many factors,
including the above factors of section 35-6-101(d)(1). Crain v. Crain, 925
S.W.2d 232, 233 (Tenn. App. 1996). In addition, the trial court has the
opportunity to observe the parties and witnesses as they testify, and it resolves
many conflicts that rest on the credibility of witnesses. Smith v. Smith, 912
S.W.2d 155, 157 (Tenn. App. 1995). Therefore, these decisions are entitled to
great weight on appeal. Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. App.
1988). Appellate review is pursuant to Rule 13(d) of the Tennessee Rules of
Appellate Procedure. Accordingly, "for a support decision to be upheld, it must
be based upon the proper application of the relevant legal principles and upon a
preponderance of the evidence." Cranford v. Cranford, 772 S.W.2d 48, 50
(Tenn. App. 1989).
As stated, the court awarded the Wife rehabilitative alimony for two
years. At the close of the hearing, the court made a ruling from the bench in
which it acknowledged that there was some degree of fault on the part of both
parties. With regard to the Wife's ability to work, the court made the following
finding:
The Court is convinced in its mind that at this time, Mrs.
Mullinax is unable to work. Based upon her testimony,
based upon the testimony of Dr. Averitt, the psychologist,
who had reviewed also the medical records of Dr. Pate and
Dr. Gillespie, Dr. Gillespie, the psychiatrist who had been
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seeing Mrs. Mullinax, and based upon the fact that she is
drawing social security disability benefits. Social Security is
not generally to[o] liberal in granting benefits to folks that
are not disabled. Obviously, they had to make some sort of
finding that she was disabled in order to do that, grant those
benefits.
I don't know how much of the disability may be associated
with the trauma, the emotional trauma of this divorce action,
but there are numerous appellate court cases that even that
type of disability, the Court has to take note of.
Anyway, the proof is to the effect that in the spring of 1996,
she had a ruptured or torn carotid artery, which I'm sure
contributed to her problems that she's had. She's described
it as being a nervous breakdown and I believe a lay person
can testify about their own condition especially you know, I
think, if you've had a nerve problem.
It appears certainly by a preponderance of the evidence at
this time, she's not able to work. She's got the training and
the expertise when she does become able, she has ten years
experience in working at Cooper Moog Industries, Cooper
Industries Division. She seemed to have a very prominent
job there in charge of benefit sections. She's a cosmetologist
and has worked some eleven years as a cosmetologist in
Woodbury. Also, she's trained as a certified nurse assistant.
So she has the ability, the training and the experience to earn
a livelihood if and when she is mentally and physically able
to work. I don't know if once this divorce case is over with,
hopefully her emotional situation will improve.
The Court feels that this is a proper case to grant alimony in
futuro for a period of two years at $400 a month. If she does
not recover to the extent she is able to work, obviously
within that period of time, she can petition the Court to
extend the alimony. This would be considered also as
rehabilitative alimony. It is the Court's opinion it will take at
least that long under the circumstances for her to rehabilitate
herself to get back into the work force.
I'm not really basing any of this on fault, although it is a
factor for the court to consider. I have looked at all of the
factors as set out in the Code, but based primary on need and
ability. She has the need, in the Court's opinion, he has the
ability to pay that amount.
On appeal, the Husband argues that the record does not support a
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conclusion that the Wife has demonstrated a need for alimony. He claims first
that the final decree reflects that the Wife received substantial assets in the
division of the parties' marital estate. Secondly, the Husband disputes that the
Wife has shown she in unable to work because, he claims, her medical diagnosis
was not supported by competent evidence. It is the Husband's position that
where the central issue of a case involves medical diagnosis and treatment, a
party's pronouncement that he or she is sick may not be the basis of the court's
decision.
The gist of the Husband's position is that the Wife is not really
depressed and unable to work. More than once, counsel for the Husband referred
to the fact that it would be better for the Wife to work than to sit at home and
watch "Ricki Lake" and "dwell on her problems." On cross-examination after
the Wife asserted that she could not do her job, the Husband's attorney countered
"that is simply because you have decided that you can't do it." In spite of the fact
that the Husband does not believe the Wife, the trial court did. "[O]n an issue
which hinges on witness credibility, [the trial court] will not be reversed unless,
other than the oral testimony of the witnesses, there is found in the record clear,
concrete and convincing evidence to the contrary." Givler v. Givler, 964 S.W.2d
902, 905 (Tenn. App. 1997) (quoting Tennessee Valley Kaolin v. Perry, 526
S.W.2d 488, 490 (Tenn. App. 1974)).
We find that this record fully supports the trial court's decision to award
the Wife rehabilitative alimony. In addition to the Wife's testimony of her
present inability to work, the trial court relied on the deposition testimony of the
Wife's treating psychologist, Dr. Averitt. Dr. Averitt opined with detail that the
Wife was suffering from a major depression disorder such that she was unable
to work. It was Dr. Averitt's opinion that the Wife was being honest regarding
her portrayal of her condition. Moreover, there was undisputed testimony of the
Wife's current financial needs as well as of the Husband's current income and
ability to pay.
This record contains no grounds for concluding that the trial court
misapplied the factors influencing the alimony decision. In fact, the trial court's
bench ruling evidences a thorough application of the statutory factors to the
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record. We conclude that the trial court's decision was supported by a
preponderance of the evidence. We therefore affirm the award of rehabilitative
alimony to the Wife. Furthermore, we find that the costs of this appeal should
be taxed against the Husband.
_______________________________________
WILLIAM B. CAIN, JUDGE
CONCUR:
___________________________________
BEN H. CANTRELL, P.J., M.S.
___________________________________
PATRICIA J. COTTRELL, JUDGE
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