George Edwards v. Alice Edwards

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
July 19, 2012 Session
GEORGE EDWARDS v. ALICE EDWARDS
An Appeal from the Chancery Court for Dyer County
No. 10-CV-377 Tony Childress, Chancellor
No. W2011-02305-COA-R3-CV - Filed December 12, 2012
This is a divorce case in which the husband challenges the award of alimony. After the
divorce trial, the trial court awarded the wife transitional alimony and alimony in futuro. It
also awarded the wife a monetary amount per month for her share of the husband’s military
pension benefits. The husband filed a motion to alter or amend arguing inter alia that the
military would not make direct payments to the wife from his military benefits because the
marriage did not overlap the husband’s active-duty military service for the requisite number
of years. Based on the husband’s argument, the trial court modified the alimony award by
deleting the requirement that the husband divide his military pension benefits with the wife,
but increasing the husband’s in futuro alimony obligation by an equal amount. The husband
now appeals. Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed
H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.
Charles S. Kelly, Jr., Dyersburg, Tennessee, for the Plaintiff/Appellant George Edwards 1
Milly Worley, Dyersburg, Tennessee, for the Defendant/Appellee Alice Edwards
1
Mr. Kelly did not represent Husband at trial. He began representing Husband when he filed his motion to
alter or amend the trial court’s judgment.
OPINION
Plaintiff/Appellant George Edwards (“Husband”) and Defendant/Appellee Alice Edwards
(“Wife”) were married on April 7, 1991. When the parties married, Husband was 36 years
old and Wife was 39 years old.2
Husband joined the military right out of high school. He served in the military a total of 22
years. Husband attended Murray State University and received an associate’s degree in
design technology. Wife earned a bachelor’s degree in health information management, and
while Husband was stationed in Japan, she obtained a master’s degree in public
administration. The parties moved with some frequency while Husband was serving in the
military. Wife held a variety of jobs in these locations, mostly in the medical records
department at a hospital or medical center in the locale. After Husband retired from the
military, the parties eventually moved to Dyersburg, Tennessee, and purchased a home there.
The marriage came to a screeching halt after an incident on July 26, 2010 that Husband
characterizes as “a misunderstanding by my wife.” On that night, Wife returned to the
marital home after a weekend visit with her sister in Nashville. When she arrived home at
about 8:30 p.m., she found Husband in the parties’ kitchen in his pajama pants and a t-shirt.
She also found a woman sitting on the parties’ couch in the den, wearing only a pink
negligee3 and a “shawl” over her shoulders, and smoking a cigarette. Perhaps not
surprisingly, Wife “went ballistic” and began yelling numerous epithets at both Husband and
the woman. Husband and the woman quickly left the marital residence together. They both
went to the woman’s apartment for the night.
On September 23, 2010, Husband filed the instant complaint in the Chancery Court of Dyer
County, Tennessee, seeking a divorce on the ground of irreconcilable differences. Soon
thereafter, Wife filed a counter-complaint for divorce, alleging irreconcilable differences,
inappropriate marital conduct, and adultery. Husband later amended his divorce complaint
to include as two alternative grounds set forth in Tennessee Code Annotated § 36-4-
101(a)(10) (“habitual drunkenness or abuse of narcotic drugs”) and Section 36-4-101(a)(11)
(“cruel and inhuman treatment or conduct” that renders cohabitation unsafe). Initially, after
the parties filed for divorce, Wife continued to live in the parties’ marital residence pursuant
to the parties’ agreement.
2
No children were born of the marriage.
3
Wife described the negligee as a “pink thong bikini.”
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On December 10, 2010, Husband filed a contempt petition against Wife and a motion to have
her removed from the marital home. Husband claimed, among other things, that Wife was
removing and/or destroying his personal property in the marital residence. At some point
after Husband filed his motion, Wife moved out of the marital residence and into an
apartment. On January 6, 2011, the trial court entered a consent order, stating that both
parties had vacated the marital residence, and that the property would be leased to two
separate tenants, one in the main house and one in the “apartment” attached to the main
house, for total rent of $1,100 per month. Husband was required to collect the rents and
promptly pay the $1,107 monthly mortgage on the property. All other issues raised in
Husband’s motion were reserved for the final hearing.
On May 25, 2011, Husband filed an Affidavit of Property and Debts. As marital assets,
Husband listed the marital home with a value of $150,000, a $47 balance in Husband’s
checking account, and monthly rental payments of $1,000 per month — $100 per month less
than the rent noted in the above consent order. Husband’s list of marital assets also included
personal property and vehicles. In his affidavit, Husband noted that he receives $1,747.97
per month in military pension, and he proposed that Wife receive $278 per month as her
share of the military pension. As marital debts, Husband listed the $116,000 remaining
mortgage on the marital home and a $3,000 debt for new carpet in the marital home. He also
listed a $6,119.47 debt to James Langley (“Mr. Langley”), the tenant occupying the main part
of the marital residence, and a $1,900 debt to Husband’s father, James Edwards. The
affidavit indicated that Husband borrowed money from Mr. Langley and James Edwards in
order to make the mortgage payments and avoid foreclosure. Husband’s affidavit included
proposals about the allocation of the parties’ marital assets and debts.
On the same day, Husband filed an Affidavit of Income and Expenses. Husband calculated
his monthly income to be $4,480.97, comprised of $1,747.97 from his military pension,
$1,733.00 in wages from managing St. John Apartments, and $1,000 in rental income from
the marital home. Husband’s monthly expenses were listed as $4,316.00. Of that amount,
$1,663 in expenses related to ownership of the marital home, including the mortgage
payment, utilities, carpet, and repairs. As part of his monthly expenses, Husband included
the $278 payment to Wife as her portion of his military pension, and $521 on the $6,119.47
debt to Mr. Langley. The remaining expenses were Husband’s personal living expenses,
such as rent, food, and clothing.
The divorce trial was held on May 26, 2011. The trial court heard testimony from Husband,
Wife, and Suzanne Cole (“Ms. Cole”), the woman Wife found on the parties’ couch in a pink
negligee.
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Husband testified at the outset of the trial. Husband said that he joined the military
immediately after he graduated from high school. When he retired from the military, he and
Wife moved to Florida. They purchased a home in Florida and Husband obtained a job there
in the technology industry. By 2006, Husband had bought and sold two businesses. The sale
of the second business, he said, generated $25,000 in proceeds, which was applied toward
debts and the wedding of his daughter from a previous marriage. After that, Husband
testified, he and Wife sold the house in Florida. Husband claimed that Wife realized between
$75,000 and $80,000 on the sale of the parties’ Florida home. After leaving Florida, the
couple initially moved to Kentucky, but they later moved to Dyersburg, Tennessee. Once in
Dyersburg, they purchased the marital residence at issue in the parties’ divorce.
When Husband and Wife moved to Dyersburg, Husband took a job at a car dealership
managing the dealership’s body shop. By the time of trial, Husband testified, he was no
longer working at the car dealership. Instead, Husband was working as the apartment
manager for St. John Apartments, where he lived at the time of trial. In that position,
Husband claimed, he earned $400 per week before taxes.
Husband said that Wife did not have a job when they moved to Dyersburg, but she eventually
found a job as an adjunct professor at a college in Dyersburg. She also worked as a substitute
teacher in the Dyer County School System. Husband estimated that Wife earned about
$1,000 per month. Husband testified that Wife liked to stay up late at night and sleep until
the afternoon, and implied that she declined jobs that interfered with this schedule.
Husband testified about the tenants in the marital home and the discharge of his
responsibility for paying the mortgage on the home. He said that Mr. Langley was the tenant
in the main part of the home, and that John Monroe was the tenant in the “apartment”
attached to the main part of the home. Husband claimed that he received $500 per month in
rent from each tenant, even though a copy of Mr. Langley’s lease, which was admitted as an
exhibit at trial, stated that Mr. Langley’s rent was $600 per month. Husband acknowledged
that he had been tasked with the responsibility for paying the mortgage on the marital home
since he moved out in July 2010, but conceded that he had not always made the payments in
a timely manner. In fact, Husband admitted that the mortgage was not paid in September,
October, December 2010, or January 2011. In October 2010, Husband said, the mortgage
holder notified him that it intended to foreclose on the home; by then, the mortgage payments
were in arrears in the amount of $8,000. To “scrape up” the money needed to avoid
foreclosure, Husband asserted, he purportedly borrowed $4,000 from Mr. Langley, his tenant,
which he was repaying at a rate of $521 per month. Husband testified that he also sold his
trailer to his father, James Edwards, for $1,400. By putting these monies together with other
smaller loans from friends, Husband claimed, he was able to avert foreclosure on the marital
home. Because the debt to Mr. Langley and the other debts were incurred for the purpose of
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preserving the marital home, Husband said, those debts should be paid out of the proceeds
from the sale of the home.
Husband testified that he served in the military from 1974 to 1998, and that he and Wife were
married for seven of those 22 years. Based on this, he proposed that Wife should receive
$278 per month of his $1,747.97 total monthly payment from his military pension.4 In his
testimony, Husband explained that, according to military regulations, a couple must have
been married at least ten years before the military will divide the pension payment between
the military member and the divorced spouse.5 In light of these regulations, Husband
proposed that the trial court simply award Wife $278 per month as her share of this marital
property.
Husband asked the trial court to grant the divorce to him, because he and Wife had not been
getting along for ten years prior to their separation. He claimed that, since the parties’
separation, on some eight occasions, Wife had shown up at St. John Apartments and had
been asked to leave. He conceded that both he and Wife used alcohol to excess, and that this
contributed to their marital woes.
Husband flatly denied that he committed adultery during the parties’ marriage. Husband
acknowledged that he moved out of the marital residence as a result of the July 26, 2010
incident in which Wife came home to find Ms. Cole, she of the pink negligee, on the parties’
couch smoking a cigarette. He described Ms. Cole as a “friend,” and also said that she
happened to be related to the tenant to whom Husband was indebted, Mr. Langley.6 As it
turned out, the pink negligee Ms. Cole was wearing on the night in question was purchased
that same day at an adult superstore called “The Lion’s Den.” On cross-examination, counsel
for Wife presented Husband with a receipt for the negligee, as well as sexual paraphernalia,
for a total of $81.17, purchased that afternoon. Initially, Husband claimed that Ms. Cole
purchased those items herself. Upon further questioning, however, he acknowledged that he
had accompanied her to the store and had written a check for the items on the parties’ joint
4
The amount to which Husband stipulated was based on the fact that Wife was married to Husband for 31.8%
of the time that he was on active duty, and 31.8% of his $1,747.97 monthly pension is $556. Husband
reasoned that Wife should receive one half of this amount, or $278 per month.
5
The parties did not dispute that, where there is a ten-year overlap in the spouse’s active-duty military service
and the marriage, the Department of Defense would send directly to each spouse their share of the pension
benefits as provided in a valid court order.
6
Husband testified that Mr. Langley is Ms. Cole’s stepfather. As noted below, the trial court also heard
testimony from both Ms. Cole and Mr. Langley; both of them testified that they are brother and sister.
Husband did not explain the discrepancy.
-5-
checking account. Husband claimed, however, that Ms. Cole reimbursed him for that
expense.
Husband testified that Ms. Cole lived in St. John Apartments, the apartment complex he was
managing at the time of trial. He explained that Ms. Cole had previously lived in apartment
C3 in that complex, but she moved into her mother’s apartment in the same complex in
September 2010, the same month that Husband filed the complaint for divorce. When Ms.
Cole vacated apartment C3, Husband simply took over the lease and began living there in
October 2010. Husband was asked about whether Ms. Cole spent the night at his apartment
and about any trips he had taken with her; his interrogatory answers given in pretrial
discovery had represented that no one had ever stayed overnight in Husband’s apartment and
did not reveal any trips with Ms. Cole. Contrary to Husband’s sworn interrogatory answers,
Husband conceded that Ms. Cole spent the night in his apartment once or twice each week,
but he explained that she did so because she sometimes needed a break from her mother.
Husband also admitted that he had gone on a hunting trip in Texas with Ms. Cole, and that
Ms. Cole also accompanied him on two trips to Kentucky to visit his daughter from a
previous relationship. Despite these admissions, Husband steadfastly denied any affair with
Ms. Cole: “I’m not having an affair with [Ms. Cole]. Never have. . . . She’s a friend.”
Husband was asked on cross-examination about the loan from Mr. Langley that Husband had
claimed was made to enable him to catch up the mortgage payments on the marital residence
and avoid foreclosure. During Husband’s cross-examination, a document was entered into
evidence as Exhibit 4, written by Husband and dated February 23, 2011. The document
appeared to be a written acknowledgment of debt from Husband to Mr. Langley in the
amount of $6,119.47, with repayment to be made in monthly payments of $521 for 12
months. Husband said that the document granted Mr. Langley a lien on the marital residence
and provided that if Husband did not “return the owed debt,” Mr. Langley would “be
authorized to take over and liquidate the collateral and return the proceeds to borrower . . .
.” The document contains what purports to be the signatures of Mr. Langley and Husband.
Husband was also asked about a debt incurred for over $6,000 in dental work performed on
Wife. He denied that Wife’s dental work was required because he broke her tooth,
maintaining that the dental work was done because Wife “had bad teeth. Always all of her
life.”
Wife called Mr. Langley to testify at trial. Mr. Langley said that he began renting the marital
residence in January 2011, and that he paid Husband $500 per month in rent. Although the
lease entered into evidence stated that his rent was $600 per month, Mr. Langley said that he
had never paid Husband that amount of rent; Mr. Langley said that he did not read the lease.
Shown Exhibit 4, the document written by Husband purportedly to memorialize the
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$6,119.47 loan to Husband, Mr. Langley denied making Husband any such loan and denied
that the signature on Exhibit 4 was his signature.7 Mr. Langley said he was aware that there
were threats to foreclose on the parties’ marital residence; he said that at one point he gave
Husband $600, but not as a loan. He testified that Husband “took [the $600] as rent.” Mr.
Langley said that Husband has never made a payment to him pursuant to Exhibit 4.
Mr. Langley testified that Ms. Cole is his sister. He acknowledged that their mother has an
apartment in St. John Apartments but denied that Ms. Cole was living with their mother. He
testified that, at the time of trial, Ms. Cole was living with Husband in his apartment,
Apartment C3, and said that since she moved into the complex, he had never known her to
live in a different apartment.
Ms. Cole also testified. She claimed that she had lived with her mother in the St. John
Apartments since September 2010. She corroborated Husband’s testimony that she and
Husband were friends but were not romantically involved. Asked about the night Wife came
home and found her at the parties’ marital home, Ms. Cole explained that she had contacted
Husband as her landlord because an ex-boyfriend whom she described as a stalker “had a
knife to my throat and beat me up.” Presumably to reassure Ms. Cole after the upsetting
incident with the ex-boyfriend, Husband took Ms. Cole for a shopping spree at the adult
superstore, where they purchased the pink negligee and other items, and then he brought her
to the marital home.8 When Wife came home from visiting her sister, Ms. Cole said, “All
I was doing is sitting there” on the parties’ couch in the marital home wearing the pink
negligee. Ms. Cole complained: “[S]he come in – [Wife] come in, didn’t ask no questions
whatsoever, very violent, ‘Bitch, whore, slut, prostitute,’ all that. She didn’t even know me.”
Ms. Cole acknowledged that she had accompanied Husband on three out-of-town trips. She
understood that Mr. Langley had loaned Husband money, but she did not know the amount
of the loan.
Wife also testified at trial. Her initial testimony was about financial matters. After the
parties moved to Dyersburg, Wife said, she sought employment “[c]onstantly, for
everything,” and said that it was “rather difficult trying to find a job.” At the time of trial,
Wife was employed part-time as an adjunct college professor earning $12 per hour for about
20 hours per week. In addition, she worked as a substitute teacher in the Dyer County School
7
Mr. Langley testified that he is a truck driver and has custody of two nieces and a nephew. When asked
whether he had loaned Husband over $6,000, Mr. Langley commented: “If I had $6,000, I’d be in better
shape than I am.”
8
Consistent with Husband’s testimony, Ms. Cole testified that Husband paid for the items at the adult store,
but she paid him back in cash.
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system, earning $50 per day on the days she was asked to substitute. Wife estimated that she
earned about $12,000 per year. Wife denied Husband’s implication that she refused jobs
because she liked to stay up late and sleep in; she said that she never turned down a
substitute-teacher job that was offered, and that she “appl[ies] for every job that comes
open.”
While the parties were married, Wife stated, she was in charge of the parties’ finances. She
made all of the house payments on the marital residence through August 2010. In September
2010, after the parties separated, she claimed, Husband opened his own bank account and
stopped putting money in their joint bank account. Thereafter, Wife made no more house
payments. Wife acknowledged that Husband’s September military pension payment was
deposited into the joint account, and that this could have been used to make the September
house payment. During the pendency of the divorce, Wife stated, Husband gave her only
$500 and two bags of dog food.
Wife estimated that her expenses would be about $2,300 per month. She testified that she
had to get $6,000 in dental work because Husband hit her on the head and broke her tooth
in a confrontation. The dental surgery to repair the tooth cost about $6,500.
Wife explained that, at one point, she had a retirement account worth about $8,000.
However, this account was cashed out to pay off a debt of Husband’s business in Florida.
When she and Husband sold their marital residence in Florida, Wife said, they received about
$141,000 in equity. She said that about $37,000 of that money was used as a down payment
on the Dyersburg marital residence, and the rest went to pay the parties’ living expenses.
Wife testified about finding Ms. Cole at her home when she returned from visiting her sister
on the night of July 26, 2010. That night, she said, when she came in the door, she first saw
Husband in his pajama pants and then saw Ms. Cole sitting in her den in the pink negligee,
smoking a cigarette. Before she could say anything, Wife said, Husband turned to Ms. Cole
and said: “Suzanne, we haven’t had sex here, have we?” In the ensuing conflagration, Wife
said, Ms. Cole went into the bedroom to change out of the pink negligee, and Wife followed
her into the bedroom. At that point, she said, she saw that Ms. Cole had brought an overnight
bag to the parties’ home. Husband and Ms. Cole quickly left the marital residence, but left
behind the bag from the shopping trip to the adult superstore, “The Lion’s Den.” The bag
contained unopened items that Husband and Ms. Cole had purchased that day, and elsewhere
in the parties’ home Wife found opened packages from other items they had purchased at the
same store.9 The day after this incident, Wife went to Ms. Cole’s apartment. Husband
answered the door naked, and Wife saw the infamous pink negligee behind him on the living
9
One of the items Wife found opened was called “BJ Blast.”
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room floor of Ms. Cole’s apartment. Wife’s testimony completed the evidence presented to
the trial court, and the case was taken under advisement.
On June 3, 2011, the trial court entered its findings of fact and conclusions of law. On the
division of the marital property, the trial court noted that the parties had stipulated to the
division of certain personal property, and that they had agreed to sell the marital home, pay
off the mortgage and the debt for the carpeting, and divide the remaining proceeds equally.
The trial court also noted that the parties had stipulated that Wife “was to receive $278.00
per month of [Husband’s] pension.”
As to the remaining issues, the trial court made specific factual findings based, in part, on its
determination that Husband “was not truthful about several issues, and he had very little
credibility.” Regarding Husband’s claimed $6,119.47 debt to Mr. Langley, the trial court
noted Mr. Langley had denied the existence of this debt. The trial concluded that Exhibit 4
was “a document that [Husband] fabricated to deceive the Court.” It further found that
Husband had “engaged in inappropriate behavior with a woman with whom he has been
living for the last 8 months.” The trial court then addressed the parties’ income and
expenses. Prior to the sale of the marital residence, it found, Husband would have income
of $4,202.97 per month (which did not include the $278 pension payment to Wife) and
reasonable expenses of $3,238 per month. After the sale of the home, the trial court found,
Husband would have an income of $3,202.97 per month and $1,650.00 of reasonable
monthly expenses, giving him a monthly surplus of $1,552.97. The trial court found that
Wife earned income of $1,278 per month, comprised of $1,000 per month from her jobs as
an adjunct professor and substitute teacher, plus $278 from her share of Husband’s military
pension. It determined that Wife had $2,200 of reasonable monthly expenses, leaving a
deficiency of $922 per month.
The trial court then granted Wife a divorce based on Husband’s adultery. It assigned most
of the marital debt to Husband, including the $6,400 debt for Wife’s dental work. The trial
court determined that Wife was economically disadvantaged as compared to Husband and
held that an award of alimony was appropriate. While rehabilitation was not possible, the
trial court found that Wife needed “assistance adjusting to the economic circumstances of
divorce and long term support.” On this basis, the trial court awarded Wife transitional
alimony of $250 per month for a period of 36 months, as well as alimony in futuro of $750
per month. The trial court specifically found that Husband “has the ability to pay alimony
in these amounts.” Wife’s request for attorney fees was denied.10 On July 12, 2011, the trial
10
On June 9, 2011, the trial court filed amended findings of fact and conclusions of law, but the amendment
did not relate to the issues raised on appeal.
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court entered the final decree of divorce, attaching a copy of the previously-filed findings of
fact and conclusions of law and incorporating them by reference.
On August 11, 2011, Husband filed a motion to alter or amend the final decree, pursuant to
Rule 59.04 of the Tennessee Rules of Civil Procedure. In the motion, Husband argued that
the proof was insufficient for the trial court to grant Wife a divorce on the basis of adultery.
He asked the trial court to alter or amend the alimony award on numerous bases, including
an argument that “alimony in futuro should be awarded only when the trial court finds that
rehabilitation is not feasible and long-term support is necessary.” Husband also contended
that the trial court erred by awarding Wife income from his military pension “when she had
not been married to him for the requisite length of time while he was in active duty with the
United States military.”
Wife’s response to Husband’s motion, filed on August 18, 2011, stated that Husband had not
alleged a basis for Rule 59.04 relief. She acknowledged that Husband was “correct in stating
the Court cannot order a division of [Husband’s] military retirement benefits unless all
prerequisites are met including the overlap of the marriage and active duty for a certain
number of years.” Nevertheless, Wife asserted, Husband in this case stipulated for her to
receive the monthly payment of $278 out of his retirement benefits as part of the equitable
division of marital property. She argued that, although the trial court might not have had the
authority to order Husband to divide the military retirement benefits in this manner, “the
Court can approve the stipulation of the parties that [Husband] will pay $278.00 per month
from those funds once he has received them to [Wife] as marital property.”
On the same date, Wife filed a petition for contempt and for damages for intentional
infliction of emotional distress. The petition asserted that, since the entry of the final decree
of divorce, Husband had willfully failed to make alimony payments to her and had willfully
failed to pay other debts the trial court had ordered him to pay, including the mortgage on the
marital residence. She claimed that Husband failed to make the required payments on June
1, July 1, and August 1, 2011, and that each failure to pay constituted a separate criminal
and/or civil contempt of court.
On September 1, 2011, the trial court conducted a hearing on Husband’s motion to alter or
amend as well as Wife’s petition for contempt and emotional distress damages. At the
hearing, Husband submitted no additional proof to support his motion to alter or amend. He
argued, however, that under Tennessee law he did not have the power to stipulate to the
division of his military pension benefits. He also insisted that the evidence was insufficient
to find that he committed adultery, because Husband had not admitted that he had done so.
In addition, Husband argued that the trial court had erred in awarding alimony because
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Wife’s educational background gave her the greater earning power. In any event, he argued,
Wife could be rehabilitated and was therefore not entitled to alimony in futuro.
At the conclusion of the hearing, the trial court addressed Husband’s motion to alter or
amend. The trial court declined to modify any of its factual findings because they were based
in large part on the determination that Husband’s testimony was not credible. The trial judge
stated: “[N]ot only did [Husband] lie, he fabricated a document to deceive the Court, and
probably I should have contacted the district attorney because he committed perjury.”
However, based on the applicable military regulations, the trial court concluded that
Husband’s military pension was his separate property, and that he did not stipulate to its
division with Wife. In light of this, the trial court increased the amount of the award of
alimony in futuro by $278 per month. On September 9, 2011, the trial court entered a written
order consistent with its oral ruling. The findings of fact were modified to reflect that
Husband’s income after the sale of the marital home would be $3,480.97 per month, and that
Wife was in need of alimony in futuro in the amount of $1,028 per month, which equaled the
original $750 per month plus the $278 per month from Husband’s military pension. The trial
court denied Husband’s motion to alter or amend in all other respects.
On October 14, 2011, the trial court entered an order on Wife’s petition for contempt and her
claim for damages based on intentional infliction of emotional distress. The trial court found
that Husband was in willful violation of its previous order as alleged by Wife, but it
determined that Wife had failed to prove that she was entitled to damages for intentional
infliction of emotional distress. Husband filed this timely appeal.
I SSUE ON A PPEAL AND S TANDARD OF R EVIEW
The sole issue raised by Husband in this appeal is whether the trial court abused its discretion
in awarding transitional alimony and alimony in futuro to Wife.
On appeal, a trial court’s findings of fact are reviewed de novo on the record, with a
presumption that they are correct unless the evidence preponderates otherwise. Jones v.
Jones, 784 S.W.2d 349, 352 (Tenn. Ct. App. 1989). We give great weight to factual findings
that were based on witness credibility, and the trial judge’s assessment of witness credibility
will not be reversed absent clear and convincing evidence to the contrary. Sullivan v.
Sullivan, 107 S.W.3d 507, 510 (Tenn. Ct. App. 2002). Questions of law are reviewed de
novo, with no presumption of correctness in the trial court’s conclusions of law. Jordan v.
Knox County, 213 S.W.3d 751, 763 (Tenn. 2007).
Trial courts “have broad discretion to determine whether spousal support is needed and, if
so, the nature, amount, and duration of such an award.” Gonsewski v. Gonsewski, 350
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S.W.3d 99, 105 (Tenn. 2011). In Gonsewski, the Court emphasized that a trial court’s
decision on spousal support is factually driven, so appellate courts are not inclined to second-
guess such an award. Rather, we must determine whether the trial court abused its discretion
in making the award. A trial court abuses its discretion when it “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.” Id.
“If the discretionary decision is within a range of acceptable alternatives, appellate courts
will not substitute their decision for that of the trial court simply because the appellate court
would have chosen a different alternative.” Sullivan, 107 S.W.3d at 510.
In considering the type and amount of alimony to be awarded, a trial court is required to
balance several factors, including those enumerated in Tennessee Code Annotated § 36-5-
121(i):
(i) 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:
(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;
(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;
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(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.
Tenn. Code Ann. § 36-5-121(i) (Supp. 2012). In fashioning an award of spousal support, the
primary considerations are the recipient spouse’s need and the obligor spouse’s ability to pay.
Burlew v. Burlew, 40 S.W.3d 465, 472 (Tenn. 2001).
A NALYSIS
Husband challenges virtually every aspect of the trial court’s alimony award, arguing that
“the instant case is not a proper case under Tennessee law for an award of alimony.”
Husband argues that the preponderance of the evidence showed that Wife was
underemployed and was “capable of earning much more than him.” He also argues that the
preponderance of the evidence established that Wife could have been rehabilitated, making
an award of alimony in futuro inappropriate.11 Husband claims that the trial court’s finding
that he would be more capable than Wife of acquiring capital assets and income in the future
was illogical under this record. Husband also argues that his military pension was his
separate property, and that the trial court “circumvented the law by placing the exact amount
earlier awarded to [Wife] from the pension into an increased amount of long-term or life-time
alimony as it exists here.” He insists that the preponderance of the evidence does not support
the trial court’s finding that he was guilty of abuse and adultery. In light of these errors, and
11
Although Husband argues that Wife was capable of being rehabilitated, he does not concede that she should
have been awarded rehabilitative alimony.
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with a proper balancing of the factors in Section 36-5-121(i), Husband argues, it is clear that
the trial court reached an unreasonable conclusion and, therefore, abused its discretion in its
award of alimony to Wife. Alternatively, he argues, if an alimony award were appropriate,
it should be reduced in amount and required on a short-term basis only.
We observe at the outset that many of the trial court’s findings on disputed issues of fact
were resolved in favor of Wife based on its assessment of the parties’ credibility. The trial
court found that Husband had fabricated documents and even went so far as to find that
Husband had perjured himself, concluding that Husband “had very little credibility.” From
our review of the record, the evidence overwhelmingly supports the trial court’s credibility
determination in favor of Wife.
Giving due deference to the trial court’s credibility determinations, the evidence clearly
preponderates in favor of all of the trial court’s factual findings. Husband argues first that
Wife was underemployed, but cites no proof in the record to support his bare assertion.
Specifically, Husband submitted no proof of other jobs that were available to Wife, much
less any proof that she willfully refused such other jobs. Likewise, Husband submitted no
evidence that Wife could be rehabilitated by seeking further education or training to increase
her earning power; she already has both a bachelor’s degree and a master’s degree. See
Tenn. Code Ann. § 36-5-121(e)(1). The evidence in the record fully supports the trial court’s
finding that Husband is more capable than Wife of acquiring capital assets and income in the
future. Husband received both experience and training while in the military, and he also has
experience as an entrepreneur. His military service enables him to continue to seek work
while receiving his military pension. In contrast, Wife is nearing retirement age with neither
retirement funds nor the earning ability possessed by Husband.
Finally, Husband argues that the evidence does not support the trial court’s finding that he
committed adultery, because Wife submitted “no proof of sexual relations.” This argument
verges on the preposterous. The record need not include DNA evidence to support the trial
court’s finding of adultery by Husband. Therefore, we reject all of Husband’s challenges to
the trial court’s factual findings.
Many of the factors upon which the trial court based its alimony award were undisputed.
According to Husband’s own Affidavit of Income and Expenses, after the sale of the marital
residence, Husband will have $3,480.97 in monthly income.12 The trial court determined that
12
Husband argues on appeal that the trial court erred in denying his motion to alter or amend the alimony
award based on evidence that he was “laid off” from his job as apartment manager. However, Husband did
not argue in his motion to alter or amend that the alimony award should be modified on this basis. Rather,
(continued...)
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his reasonable expenses would be $1,650, giving him a surplus of $1,830.97. Wife, on the
other hand, earned $1,000 per month, but had $2,200 in reasonable expenses, for a deficit of
$1,200. The evidence in the record supports the trial court’s finding that Husband would be
able to pay $1,278 to Wife for three years to cover her deficit until she gets closer to
becoming eligible to draw full social security benefits. After the three years of transitional
alimony, Husband will be required to pay only $1,028 per month, leaving him an $800
surplus each month.
Husband argues strenuously that the trial court erred in its decision to add $278 to the
alimony in futuro award after it became clear that Wife could not receive any of Husband’s
military pension directly from the Department of Defense. We note that Husband testified
at trial that Wife “should receive about $278 per month as her marital share of [his] pension.”
We find no error in the trial court’s decision to increase the original alimony award by $278
per month.
Under all of these circumstances, we conclude that the trial court’s alimony award to Wife
was within the range of acceptable alternatives. Accordingly, we find no abuse of the trial
court’s discretion.
C ONCLUSION
The decision of the trial court is affirmed. Costs on appeal are taxed to Appellant George
Edwards and his surety, for which execution may issue, if necessary.
_________________________________
HOLLY M. KIRBY, JUDGE
12
(...continued)
evidence that Husband lost his job was presented in support of Husband’s argument that he was not in willful
contempt of the trial court’s orders. Therefore, because the argument he now raises on appeal was not raised
in the trial court below, we deem it to be waived. Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009).
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