Mark Burell Parrish v. Tammy Jo Scott Parrish

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 3, 2013

MARK BURELL PARRISH v. TAMMY JO SCOTT PARRISH

Direct Appeal from the Chancery Court for Henderson County

No. 24468 James F. Butler, Judge

No. W2013-00316-COA-R3-CV - Filed June 21, 2013

This is a divorce case in which the award of alimony in futuro is questioned. Appellant

Husband and Appellee Wife were married for approximately thirty years. The trial court

granted Husband a divorce, divided certain marital property and debt, and awarded Appellee

Wife alimony in futuro in the amount of $850 per month until death or remarriage. Appellant

Husband appeals only the award of alimony. From the totality of the circumstances, and

specifically based upon Wife’s health issues, her level of education, her employment history,

and past earnings, it does not appear that rehabilitation will be possible. Accordingly, we

conclude that the trial court did not abuse its discretion in the type and amount of alimony

awarded. Wife’s request for attorney’s fees on appeal is denied. Affirmed and remanded.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Affirmed

J. S TEVEN S TAFFORD, 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.

William E. Tallent, Jackson, Tennessee, for the appellant, Mark Burell Parrish.

Lloyd R. Tatum, Henderson, Tennessee, for the appellee, Tammy Jo Scott Parrish.

OPINION

Appellant Mark Burrell Parrish (“Husband”) and Appellee Tammy Jo Scott Parrish

(“Wife”) were married on December 27, 1982. Two children, now past the age of majority,

were born to the marriage. The parties separated in March 2010. On June 28, 2010,

Husband filed a complaint for divorce in the Chancery Court of Henderson County, alleging

inappropriate marital conduct and irreconcilable differences as grounds. Wife did not file

an answer to the complaint and, on August 26, 2010, Husband moved the court for entry of

a default judgment against her. The trial court granted the default judgment and the parties

were divorced by order entered on September 30, 2010.

On October 27, 2010, Wife filed a Tennessee Rule of Civil Procedure 59 motion to

set aside the September 30, 2010 final decree of divorce. Concurrent with this motion, Wife

filed an answer to the complaint for divorce and a counterclaim for divorce, asking the court,

inter alia, to award her alimony. Wife’s Rule 59 motion was granted and the September 30,

2010 final decree of divorce was set aside by order entered on April 14, 2011. Thereafter,

the parties engaged in discovery and also submitted to mediation, where they were able to

agree on the division of certain marital property and debt. The parties were unable to agree

on the division of Husband’s retirement account, the division of some marital debts, and the

need for alimony. However, the case was not pursued by either party until the trial court

entered an order, on August 1, 2012, advising that it would dismiss the case for failure to

prosecute unless the parties could show cause why it should not be dismissed. In response,

Wife filed a request, on August 14, 2012, that the case not be dismissed. On November 15,

2012, Wife filed a “Final Divorce Disposition Checklist,” asking, inter alia, for an award of

$1,000 per month in alimony in futuro.1

The trial court heard all pending matters on November 15, 2012. By order of

December 13, 2012, the trial court divorced the parties. Concerning the award of alimony,

the court’s order states, in relevant part, that:

[T]he parties were married for 29 years. . . . [Husband] has a net

income of $5,062.00 [per month] and [Wife] has $1,430.00 in

living expenses and draws $200 per month in food stamps and

has many physical and educational limitations preventing her

from being gainfully employed and is in need of alimony in

futuro . . . .

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED that:

* * *

4. [Husband] shall pay alimony in futuro to [Wife] in the amount

of $850 per month beginning December 1, 2012 and continue

until her death or remarriage. [Husband] shall also maintain a

1

The “Final Divorce Disposition Checklist” appears to be one means by which a party may remind

the trial court of the status of the divorce case and may reiterate his or her request for relief.

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life insurance policy insuring his life with [Wife] as the sole

irrevocable beneficiary in the amount of $50,000 to remain in

full force and effect while the alimony awarded in this cause

remains due. In the event [Husband] fails to maintain said

insurance and absent further order of the court, then any

succeeding alimony due following [Husband’s] death will be

charged against [Husband’s] estate.

As set out above, the trial court’s order is sparse on findings concerning the basis for

the award of alimony in this case. The order does not elaborate on what limitations

specifically comprise the “many physical and educational limitations” that result in Wife’s

inability to be rehabilitated. It is well settled that a court speaks through its orders. Palmer

v. Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1977). In Cunningham v. Cunningham,

No. W2006-02685-COA-R3-CV, 2008 WL 2521425 (Tenn. Ct. App. June 25, 2008), this

Court explained:

A judgment must be reduced to writing in order to be valid. It is

inchoate, and has no force whatever, until it has been reduced to

writing and entered on the minutes of the court, and is

completely within the power of the judge or Chancellor. A judge

may modify, reverse, or make any other change in his judgment

that he may deem proper, until it is entered on the minutes, and

he may then change, modify, vacate or amend it during that

term, unless the term continues longer than thirty days after the

entry of the judgment, and then until the end of the thirty days.

Cunningham, 2008 WL 2521425, at *5 (citing Broadway Motor Co ., Inc. v. Fire Ins. Co.,

12 Tenn. App. 278, 280 (1930)). Consequently, we usually “do not review the court’s oral

statements, unless incorporated in a decree, but review the court’s order and judgments for

that is how a court speaks.” Id. Moreover, it is well settled that, in bench trials, courts must

make findings of fact and conclusions of law to support their rulings. Rule 52.01 of the

Tennessee Rules of Civil Procedure provides, in pertinent part:

In all actions tried upon the facts without a jury, the court shall

find the facts specially and shall state separately its conclusions

of law and direct the entry of the appropriate judgment. The

findings of a master, to the extent that the court adopts them,

shall be considered as the findings of the court. If an opinion or

memorandum of decision is filed, it will be sufficient if the

findings of fact and conclusions of law appear therein.

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Id. Prior to July 1, 2009, trial courts were only required to make specific findings of fact and

conclusions of law “upon request made by any party prior to the entry of judgment.” See

Poole v. Union Planters Bank N.A., No. W2009-01507-COA-R3-CV, 337 S.W.3d 771, 791

(Tenn. Ct. App. 2010) (noting the amendment). However, the current version of Rule 52.01

requires the court to make these findings regardless of a request by either party. Id.

This Court has previously held that the General Assembly's decision to require

findings of fact and conclusions of law is “not a mere technicality.” In re K.H., No. W2008-

01144-COA-R3-PT, 2009 WL 1362314, at *8 (Tenn. Ct. App. May 15, 2009). Instead, the

requirement serves the important purpose of “facilitat[ing] appellate review and promot[ing]

the just and speedy resolution of appeals.” Id.; White v. Moody, 171 S.W.3d 187, 191 (Tenn.

Ct. App. 2004); Bruce v. Bruce, 801 S.W.2d 102, 104 (Tenn. Ct .App. 1990). “Without such

findings and conclusions, this court is left to wonder on what basis the court reached its

ultimate decision.” In re K.H., 2009 WL 1362314, at *8 (quoting In re M.E.W., No. M2003-

01739-COA-R3-PT, 2004 WL 865840, at *19 (Tenn. Ct. App. April 21, 2004)).

Generally, the appropriate remedy when a trial court fails to make appropriate findings

of fact and conclusions of law pursuant to Rule 52.01 is to “vacate the trial court's judgment

and remand the cause to the trial court for written findings of fact and conclusions of law.”

Lake v. Haynes, No. W2010-00294-COA-R3-CV, 2011 WL 2361563, at *1 (Tenn. Ct. App.

June 9, 2011). However, this Court has previously held that when faced with a trial court's

failure to make specific findings, the appellate courts may “soldier on” when the case

involves only a clear legal issue, Burse v. Hicks, No. W2007-02848-COA-R3-CV, 2008 WL

4414718, at *2 (Tenn. Ct. App. Sept. 30, 2008), or when the court's decision is “readily

ascertainable.” Burgess v. Kone, Inc., No. M2007-0259-COA-R3-CV, 2008 WL 2796409,

at *2 (Tenn. Ct. App. July 18, 2008). Although the trial court's statements from the bench

were not specifically incorporated, by reference, into its order, the statements are included

in the transcript of the evidence adduced at the November 15, 2012 hearing. While we note

that the proper practice is to set forth findings of fact and conclusions of law in the written

order, in this case, the trial court’s statements from the bench do provide guidance as to its

thought process. Accordingly, this Court concludes that, based upon the clear legal issue

presented, and the guidance provided by the trial court’s oral statements, we are able to

ascertain the trial court’s reasoning so as to conduct a valid appellate review in this case. In

relevant part, the court stated from the bench that:

The Court has determined this is a case for alimony in

futuro. The parties have been married 29, almost 30 years. The

wife is relatively young, and the husband is, too, 49 on the

husband, 47 on the wife. They’ve been married about 30 years.

The husband’s earning capacity is much better than the wife’s.

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The husband’s health is much better than wife’s. The wife has

a number of physical ailments that impede her earning capacity.

. . . [H]er tenth grade education impedes her earning capacity

and her ability to go back and try to be rehabilitated. The

husband is a skilled laborer and over the years has been

employed and had—18 years with this company, had on-the-job

training and has the ability to make a reasonable wage upon

which the parties both survived until the separation came along.

The Court was not privy to all the factors that make up

the finding of fault. The parties stipulated to divorce, and I

didn’t hear anything else about it, so I’m not going to consider

that [factor].

The wife’s mental condition is—she described anxiety,

a previous diagnosis of schizophrenia and that is cleared up.

She takes medication. The division of the property between the

parties, can’t really tell because I don’t have any values to go by.

I don’t know what the value of the real estate is and what the

debt is other than the 119,000 [mortgage] debt. But in any

event, all the wife seems to be receiving is half of his pension

plan and she can live on that [according to the record, half of

Husband’s pension is approximately $110,000].

I think the parties have separate assets which is a factor

to consider, and the tax consequences are that the husband will

be able to deduct whatever he pays to wife as a tax deduction on

his federal income tax return. So she would have to—the wife

would have to, in return, report that income as income on her

federal income tax returns each year.

Considering the—not running the numbers on these, the

court felt that there was—a little shy on information as to the

wife’s needs. I did have good information on the husband’s

ability to pay, and the court took license to add a couple of

things to the wife’s needs because obviously she does need it,

and it’s clear to the court that she does. But even adding those

things, she did testify to some financial needs, and during the

proof as a whole, the court finds that the wife’s needs are about

$1,430 a month, including her food. She has 200 in food

stamps, and so I deducted that which reduces her need down to

about 1,230.

The husband has a net income of—and I used his net

income by taking his gross, deducting everything on his check

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that came out, including the medicals, and added back the $35

a week gas money. His net income is $5,062. I rounded it off

to $5,000 because there’s no tax on the gas. The husband’s

reasonable expenses, in running his number[s], are 4,073.

Therefore, he has available about $990 more or less. . . . Then

based on the foregoing factors, the court sets the alimony in

futuro at 850 per month. . . .

Husband appeals the December 13, 2012 order. He raises two issues for review as

stated in his brief:

1. Whether the trial court erred in granting alimony in futuro, by

presuming an impediment to rehabilitation, where the

disadvantaged spouse offered no supporting documentation of

claimed disability, was denied disability benefits, had worked

throughout the majority of the marriage in a licensed trade, and

had made no subsequent attempt at regaining employment after

a period of inactivity.

2. Whether the trial court erred in granting alimony in futuro in

the amount of $850.00 per month, where the disadvantaged

spouse presented limited information of her needs and had

received a substantial monetary benefit through property

division.

The Tennessee Supreme Court has consistently recognized that trial courts in

Tennessee have broad discretion to determine whether spousal support is needed and, if so,

to determine the nature, amount, and duration of the award. See, e.g., Gonsewski v.

Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011); Bratton v. Bratton, 136 S.W.3d 595, 605

(Tenn. 2004); Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001); Crabtree v. Crabtree,

16 S.W.3d 356, 360 (Tenn. 2000). Because a trial court’s “decision regarding spousal support

is factually driven and involves the careful balancing of many factors,” Gonsewski, 350

S.W.3d at 105 (footnote omitted), the role of an appellate court is not to second guess the

trial court or to substitute its judgment for that of the trial court, but to determine whether the

trial court abused its discretion in awarding, or refusing to award, spousal support. Id.; White

v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999) (“If a discretionary decision

is within a range of acceptable alternatives, we will not substitute our judgment for that of

the trial court simply because we may have chosen a different alternative.”). “An abuse of

discretion occurs when the trial court causes an injustice by applying an incorrect legal

standard, reaches an illogical result, resolves the case on a clearly erroneous assessment of

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the evidence, or relies on reasoning that causes an injustice.” Id. (citing Wright ex rel.

Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d

328, 335 (Tenn. 2010)). In determining whether the trial court abused its discretion, an

appellate court “should presume that the [trial court's] decision is correct and should review

the evidence in the light most favorable to the decision.” Gonsewski, 350 S.W.3d at 105–06;

see also Tenn. R. App. P. 13(d) (“[R]eview of findings of fact by the trial court in civil

actions shall be de novo upon the record of the trial court, accompanied by a presumption of

the correctness of the finding [s], unless the preponderance of the evidence is otherwise.”).

Tennessee recognizes four distinct types of spousal support: (1) alimony in futuro,

(2) alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony. Tenn. Code

Ann. § 36-5-121(d)(1) (2010 & Supp. 2012). Alimony in futuro, such as that awarded in the

instant case, is a form of long-term support. An award of alimony in futuro is appropriate

when the economically disadvantaged spouse cannot achieve self-sufficiency and economic

rehabilitation is not feasible. Gonsewski, 350 S.W.3d at 107. Alimony in solido, another form

of long-term support, is typically awarded to adjust the distribution of the marital estate and,

as such, is generally not modifiable and does not terminate upon death or remarriage. Id. at

108. By contrast, rehabilitative alimony is short-term support that enables a disadvantaged

spouse to obtain education or training necessary to become self-reliant following a divorce.

Id. Where economic rehabilitation is unnecessary, transitional alimony may be awarded.

Transitional alimony assists the disadvantaged spouse with the “transition to the status of a

single person.” Id. at 109 (internal quotation marks omitted). Rehabilitative alimony “is

designed to increase an economically disadvantaged spouse’s capacity for self-sufficiency,”

whereas “transitional alimony is designed to aid a spouse who already possesses the capacity

for self-sufficiency but needs financial assistance in adjusting to the economic consequences

of establishing and maintaining a household without the benefit of the other spouse’s

income.” Id. Consequently, “transitional alimony has been described as a form of short-term

‘bridge-the-gap’ support designed to ‘smooth the transition of a spouse from married to

single life.’” Mayfield v. Mayfield, 395 S.W.3d 108 (Tenn. 2012) (citing Engesser v.

Engesser, 42 So.3d 249, 251 (Fla. Dist. Ct. App. 2010)). Transitional alimony is payable for

a definite period of time and may be modified only if: (1) the parties agree that it may be

modified; (2) the court provides for modification in the divorce decree, decree of legal

separation, or order of protection; or (3) the recipient spouse resides with a third person

following the divorce. Tenn. Code Ann. § 36-5-121(g)(2).

Tennessee statutes concerning spousal support reflect a legislative preference favoring

rehabilitative or transitional alimony rather than alimony in futuro or in solido. See Tenn.

Code Ann. § 36-5-121(d)(2)–(3); Gonsewski, 350 S.W.3d at 109. Not even long-term support

is a guarantee that the recipient spouse will be able to maintain the same standard of living

enjoyed before the divorce because “two persons living separately incur more expenses than

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two persons living together.” Gonsewski, 350 S.W.3d at 108 (quoting Kinard v. Kinard, 986

S.W.2d 220, 234 (Tenn. Ct. App. 1998)), see full context infra. Although the parties’

standard of living is a factor courts must consider when making alimony determinations, see

Tenn. Code Ann. § 36-5-121(i)(9), the economic reality is that the parties' post-divorce assets

and incomes often will not permit each spouse to maintain the same standard of living after

the divorce that the couple enjoyed during the marriage. Gonsewski, 350 S.W.3d at 113.

Decisions regarding the type, length, and amount of alimony turn upon the unique facts of

each case and careful consideration of many factors, including, but not limited to, the

statutory factors contained in Tennessee Code Annotated Section 36-5-121(i). The pertinent

factors include:

(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 earning 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;

(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

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(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). The two most important factors, however, are the

disadvantaged spouse's need and the obligor spouse’s ability to pay. Gonsewski, 350 S.W.3d

at 109–10.

Before turning to the record and the specific circumstances of this case, we begin with

a review of the statutory and case law relied upon by Husband in seeking to reverse the trial

court’s award of alimony in futuro. These cases, Crabtree v. Crabtree, 16 S.W.3d 356

(Tenn. 2000), Dempsey v. Dempsey, No. M1998-00972-COA-R3-CV, 2000 WL 1006945

(Tenn. Ct. App. July 21, 2000), and Gonsewski v. Gonsewski, 350 S.W.3d 99 (Tenn. 2011)

were recently outlined, and their holdings were specifically discussed by this Court in

Gorman v. Gorman, No. M2010-02620-COA-R3-CV, 2011 WL 5599867 (Tenn. Ct. App.

Sept. 21, 2011), wherein Judge Bennett, writing for the Court, explained:

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. 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

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award alimony in futuro. Id. At the time of the initial alimony

award, however, “a concurrent award of both types of alimony

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.

Gorman, 2011 WL 5599867 at *2–*3 (footnote omitted). The Gorman Court went on to

discuss the Dempsey case as follows:

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 a[s] 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,

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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] 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.

Gorman, 2011 WL 5599867 at *3–*4 (footnote omitted).

Concerning the evolution of the statutory provisions governing alimony, the Gorman

Court explained:

In 2003, the general assembly enacted revisions to the

provisions of Tenn. Code Ann. § 36-5-101(d) governing

alimony. See 2003 Tenn. Pub. Acts ch. 305. In 2005, the general

assembly again revised the alimony provisions and moved them

to Tenn. Code Ann. § 36-5-121. See 2005 Tenn. Pub. Acts 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. 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).2 The provisions added in 2003

and 2005 define what it means to be rehabilitated and contain

the following statements of public policy:

2

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 Tennessee Code Annotated Section 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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• “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

assem bly finds that the econom ically

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).

Gorman, 2011 WL 5599867 at *4–*5.

Finally, the Gorman Court turned to explain the recent Tennessee Supreme Court

decision in Gonsewski:

The most recent Supreme Court case relevant to our

discussion is Gonsewski v. Gonsewski, 350 S.W.3d 99, 2011

WL 4116654. The Supreme Court stated the issue presented as

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“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.” 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 that the disadvantaged spouse

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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.

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,

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. Gonsewski, 350

S.W.3d 99, 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 bonuses 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 concluded 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

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is likely that Husband’s standard of living will

also decline as he establishes a separate household

without Wife’s income. We reiterate that “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)).

Gorman, 2011 WL 5599867 at *5–*6 (footnotes omitted). “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.” Id.

at *6. As in the Gorman Case, “[a]s applied to the case before us, the deference factor

suggests upholding the . . . award of alimony in [futuro], while the disfavor for long-term

alimony suggests striking down the award.” Id.

However, 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, 350

S.W.3d at 105. 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. In doing so, we review the specific circumstances of this case in light of the statutory

factors outlined at Tennessee Code Annotated Section 36-5-121(I).

The first statutory factor is the “relative earning capacity, obligations, needs, and

financial resources of each party.” This inquiry should include “income from pension, profit

sharing or retirement plans and all other sources.” As found by the trial court, in this case,

Husband is a skilled laborer, who has over eighteen years of experience in HVAC repair. He

is a member of his union and earns over $30 per hour. Husband testified that, during the

marriage, Wife took care of the house and children and also worked as a beautician. Wife

testified that, at the time of the hearing, she had not worked as a beautician since 2007, and

that her license had expired. She stated that she could no longer stand to perform her job

because of “neuropathy, carpal tunnel, arthritis . . . and some back problems.” She stated

that, due to her health problems, she experiences “[n]umbness and tingling, and [her] fingers

cross and get cramped” such that she cannot cut hair. At any rate, even when she was able-

bodied, Wife testified that, at most, she earned between $300 and $400 per week “if she

worked every day.” Wife testified that, at present, she has no source of income and that she

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relies upon her father and brother for housing. She testified that she lives, rent-free, in a

boarding house, which is owned by her brother, and that her father occasionally gives her “10

bucks here and there,” but that she “basically beg[s] for toilet paper and stuff from [the other

boarders].” As noted by the trial court, Wife receives $200 per month in food stamps. From

the record, it appears that Wife is economically disadvantaged in terms of her ability to earn.

Even when she was able to work full time, she was not able to achieve the level of earnings

that Husband does.

Concerning the relative needs of the parties, Husband argues that the trial court abused

its discretion by imputing need/expenses to Wife when he contends that the record does not

support this finding. Specifically, as set out above, the trial court stated, from the bench, that

“the court took license to add a couple of things to the wife’s needs because obviously she

does need it, and it’s clear to the court that she does.” The trial court did not elaborate on

what these additions entail. In addition, Husband contends that Wife’s failure to submit a list

of monthly expenses negates the trial court’s finding that she has need of support.

Although we concede that the usual practice is for the parties to both submit a list of

monthly expenses, which the trial court may weigh against their relative earnings, this is not

the only method by which need may be established. As noted above, Wife testified that she

lives in her brother’s boarding house, that she gets a few dollars from her father, that she gets

food stamps, and that she “begs” various household necessities from the other boarders. She

further testified that, through her research, she discovered that an apartment would cost her

approximately $600 per month in rent, not including utilities, which she estimated would be

around $125 per month. In addition, she testified that she currently drives a “1996 Ford

truck,” but that it is unreliable and only “runs around town.” In relevant part, Wife also

testified concerning her medical insurance as follows:

Q. Right now you’re covered by insurance under his

[Husband’s] work, but after this divorce you won’t be. What are

you going to do?

A. Be without insurance.

Q. Is the COBRA payment for a year 160 a month through his

work?

A. Yes.

Q. So that’s 160, and that doesn’t include the co-pay.

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A. It’s like 10 percent after the deductible of $500.

Wife also submitted an exhibit comprised of her past-due medical bills, totaling

approximately $14,079.61.

Although the trial court did not make a specific credibility finding concerning either

party’s testimony, it is clear from the trial court’s order that it did credit Wife’s testimony in

regard to her need. It is well settled that when the resolution of the issues in a case depends

upon the truthfulness of witnesses, the trial judge who has the opportunity to observe the

witnesses and their manner and demeanor while testifying is in a far better position than this

Court to decide those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.

1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith,

and credit to be given to any witness' testimony lies in the first instance with the trier of fact,

and the credibility accorded will be given great weight by the appellate court. Whitaker, 957

S.W.2d at 837; see also Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997). Crediting

Wife’s testimony, the evidence shows that Wife has a need of at least $875.00 per month

(including $600.00 per month for rent, $125.00 per month for utilities, and $160.00 per

month for insurance). This need does not include Wife’s food expenses, which are paid

through the $200.00 she receives per month in food stamps. Thus, from the record, we cannot

conclude that the trial court abused its discretion in finding that Wife had need of support.

The second statutory factor, “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,” weighs in favor of Wife. As noted above, although Husband has only

an eighth grade education, he is a skilled laborer, who has received years of training in his

field of HVAC repair. Although trained as a beautician, Wife’s uncontradicted testimony

establishes that she is no longer able to perform that job and that her license has lapsed. Wife

has only a tenth grade education; accordingly, her ability to secure further education and

training is very limited.

The third factor, “the duration of the marriage,” also weighs in favor of long-term

alimony. The parties were married for almost thirty years and raised two children.

According to the testimony, during the marriage, Wife was primarily in charge of

housekeeping and child care. As discussed by the Gorman Court, the 2003 and 2005

amendments to the statutory provisions on alimony clearly indicate that housekeeping and

child care arrangements should be considered in the alimony determination as “[t]his

arrangement often results in economic detriment to the spouse who subordinates such

spouse's own personal career for the benefit of the marriage.” Gorman, 2011 WL 5599867

at *4–*5.

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The next factor is “the age and mental condition of each party.” Although the parties

are both relatively young (Husband was 49 at the time of the hearing; Wife was 47),

according to her uncontested testimony, Wife has suffered from diagnosed schizophrenia and

anxiety disorder. She has been hospitalized at least twice specifically due to these mental

conditions. Husband has no such impairments. Accordingly, this factor weighs in favor of

Wife.

We have previously touched on the fifth statutory factor, “the physical condition of

each party, including, but not limited to, physical disability or incapacity due to a chronic

debilitating disease.” Although both parties have Hepatitis C and arthritis, Husband testified

that these conditions have not affected his ability to work. On the other hand, Wife testified

that she cannot work due to her inability to stand for longer than one hour and the problem

with neuropathy and cramping in her hands. There is some dispute in the record as to the

extent of Wife’s impairment. Husband points to the testimony concerning Wife’s ability to

paint and clean a house that she was renting. He opines that, if she was able to perform these

tasks, she is able to hold a job. Wife testified that, although she can do some work, she has

no stamina and is only able to “work one hour and sit 30 [minutes] and work another hour.”

However, she testified that because of neuropathy and cramping in her hands, she cannot do

the job for which she trained, i.e., beautician. In addition, Wife testified that she has vision

problems, including night blindness, which impede her ability to drive after dark.

Considering the relative physical conditions of the parties, we conclude that Wife is more

disadvantaged than Husband in terms of the types of jobs, if any, she would be able to

perform.

Husband also points to the fact that Wife was denied Social Security disability

benefits. Specifically, he argues that this fact is evidence that she is not disabled. We

respectfully disagree. Neither party cites any Tennessee cases directly deciding this issue, nor

has our research revealed any. However, Tennessee courts have consistently awarded

alimony in situations where one spouse was not awarded disability benefits, either through

the failure of the spouse to apply for benefits or because the spouse was denied the benefits.

For example, the husband in Ohme v. Ohme, No. E2004-00211-COA-R3-CV, 2005 WL

195082 (Tenn. Ct. App. Jan. 28, 2005), made a similar argument against the award of

alimony to his former wife, stating that, “if [w]ife is truly disabled, she should be required

to apply for disability benefits rather than forcing [h]usband to provide her with alimony and

health insurance.” In Ohme, the wife put on “uncontroverted” proof that she was unable to

procure employment due to numerous physical and psychological ailments. This Court

affirmed the trial court’s award of alimony to wife, noting that husband presented no proof

to rebut the wife’s evidence that she had numerous medical issues, that she had a need for

alimony, and that the husband had the ability to pay. Indeed, as stated by our Supreme Court

in Aaron v. Aaron, 909 S.W.2d 408 (Tenn. 1995), “‘the real need of the spouse seeking the

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support is the single most important factor.’” Id. at 410 (quoting Cranford v. Cranford, 772

S.W.2d 48, 50 (Tenn. Ct. App. 1989)). Likewise, in this case, Wife’s testimony that she is

unable to work due to physical ailments is uncontroverted in the record on appeal, other than

Husband’s contention that she was denied disability benefits.

The mere denial of benefits, however, without evidence that the denial was based on

the applicant’s lack of impairment, has been held insufficient to foreclose an award of

alimony in futuro. Specifically, in Walton v. Walton, No. W2004-02474-COA-R3-CV, 2005

WL 1922565 (Tenn. Ct. App. Aug. 10, 2005), this Court affirmed the trial court’s award of

alimony in futuro to wife based on her inability to work, despite the fact that she had been

denied disability benefits. Id. at *6–*7. The record in Walton showed that the denial of

disability benefits to the wife was not due to a lack of support for her claim of a physical

disability, but was due to the fact that the wife had not worked long enough to qualify for

benefits. Id. at *2. In the case-at-bar, although Husband contends that Wife was denied

disability benefits, he fails to elaborate as to the basis for the denial. As such, we are unable

to discern from the record on appeal whether the denial was based on Wife’s physical

impairments, or lack thereof, or her working history. As noted above, the mere fact that she

was denied these benefits, without a basis in the record as to why, is not sufficient to prove

that she is not disabled for purposes of spousal support. Finally, even a spouse’s refusal to

seek disability benefits has not been held a bar to an award of alimony. In Keith v. Keith, No.

E2009-02201-COA-R3-CV, 2010 WL 1221425, at *2–*4 (Tenn. Ct. App. March 30, 2010),

the Court of Appeals affirmed an alimony award on the basis of wife’s physical impairments

despite wife’s testimony that she had “no real excuse for not seeking disability benefits.” In

this case, Wife apparently made a good faith request for Social Security disability benefits,

but was denied. As previously stated, the basis for the denial is not contained in the appellate

record. What is contained in the record is Wife’s uncontested testimony that she suffers from

various medical issues. Wife also provided the court an exhibit of her medical bills.

Although provided to prove her debts, these medical bills also indicate ongoing medical

issues for which she has received myriad treatments. The fact that she has not been awarded

Social Security benefits does not, ipso facto, lead us to conclude that she is able bodied in

light of the proof of her medical conditions. Based on the above law, we must conclude that

Husband has failed to meet his burden to show that the trial court abused its discretion in

awarding Wife alimony in futuro notwithstanding the denial of any disability benefits. We

concede that the factual circumstances surrounding the grant or denial of Social Security

disability benefits may be considered by a trial court in reaching its determination of whether

a spouse is disabled; however, we cannot go so far as to say that the denial of these types of

benefits is, ipso facto, proof that a spouse is not disabled for purposes of alimony.3

3

We note, however, that “Social Security, public welfare, disability benefits, retirement benefits, and

(continued...)

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The sixth, seventh, and eighth factors, “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,” “the separate assets of each party, both real and personal,

tangible and intangible,” and “the provisions made with regard to the marital property as

defined in § 36-4-121" are not applicable in this case. The parties’ children are grown. As

noted by the trial court, concerning the division of marital property, because the parties were

able to reach agreement through mediation, the record is devoid of significant proof in this

area. However, we know from the record that, although Husband was awarded the marital

home, he was also assigned the mortgage debt (approximately $119,000). The primary proof

on marital property division is the fact that Wife was awarded half of Husband’s vested

retirement account, which award totaled approximately $109,0000. As noted by the trial

court, this was not an alimony award, but was part of the division of marital property.

Moreover, as the court advised Wife, this money will be subject to large fines and negative

tax implications should she choose to withdraw the funds rather than reinvesting them.

Consequently, the award of these funds will not substitute for monthly alimony to

supplement Wife’s living expenses. In addition, the record indicates that Wife has many

past-due debts from previous medical treatments. Given her current health issues, which

impact her ability to work, she has no means of paying these debts.

Concerning the standard of living of the parties established during the marriage, there

is little evidence on this issue. However, based upon the limited information in the record,

it is clear that the parties enjoyed a moderate standard of living. At the time of their

separation, the parties were living in a house, but it was encumbered by a mortgage. The

parties both testified that their respective vehicles had over one-hundred-thousand miles on

them and were both in need of replacement. From the record, neither party can expect an

increase in their standard of living after the divorce. As in Gonsewski, “[w]hile we recognize

that the record demonstrates a likelihood that Husband's income may continue to exceed

Wife's by some extent. . . . [w]e reiterate that ‘two persons living separately incur more

3

(...continued)

retirement accounts are considered sources of income for the purposes of determining an award of permanent

alimony.” 27B C.J.S. Divorce § 612 (2013); Gragg v. Gragg, 12 S.W.3d 412, 418-19 (Tenn. 2000) (“. .

.disability benefits should be considered when determining alimony and child support obligations.”).

Furthermore, a benefit of alimony in futuro is that it can be modified in the event of a substantial and material

change in circumstances. “An award of alimony in futuro shall remain in the court's control for the duration

of such award, and may be increased, decreased, terminated, extended, or otherwise modified, upon a

showing of substantial and material change in circumstances.” Tenn. Code Ann. § 36-5-121(f)(2)(A).

Accordingly, should Wife later qualify for Social Security disability payments, Husband is not precluded

from seeking a modification of the alimony award.

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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.” Gonsewski, 350 S.W.3d at 112-13 (quoting Kinard v. Kinard, 986 S.W.2d 220,

234 (Tenn. Ct. App. 1998)). Although both parties will have to make adjustments in their

respective standards of living, this is not to say that Wife’s standard should fall to the level

of abject poverty.

Concerning factor ten, “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,” this factor weighs in Wife’s favor. As discussed above, she was

the primary homemaker during the marriage; she also worked at least part time. Husband

was able to work full time and has gained over eighteen years of practical experience and on-

the-job training.

The trial court did not weigh the eleventh factor, the relative fault of the parties

because the parties agreed to the divorce. However, the court did note the last factor, “the

tax consequences to each party, as are necessary to consider the equities between the parties.”

The court correctly noted that the payment of alimony will be charged to Wife as income on

her federal tax returns. The court further noted that the award of half of Husband’s

retirement account could not be easily accessed for Wife’s living expenses because of the tax

consequences of early withdrawal.

In sum, considering the evidence in a light most favorable to the trial court's decision,

as the Gonsewski case requires, we conclude that the trial court did not abuse its discretion

in awarding Wife $850 per month in alimony in futuro. In reaching its decision, the trial

court considered the relevant factors and, from the totality of the circumstances, the trial

court’s determination of the type and amount of spousal support was not “clearly

unreasonable.” Gonsewski, 350 S.W.3d at 105. We agree.

Wife has asked this Court to award her attorney’s fees expended in defense of this

appeal. Tennessee Code Annotated Section 27-1-122 provides:

When it appears to any reviewing court that the appeal from any

court of record was frivolous or taken solely for delay, the court

may, either upon motion of a party or of its own motion, award

just damages against the appellant, which may include but need

not be limited to, costs, interest on the judgment, and expenses

incurred by the appellee as a result of the appeal.

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However, “[i]mposing a penalty for a frivolous appeal is a remedy which is to be used only

in obvious cases of frivolity and should not be asserted lightly or granted unless clearly

applicable, which is rare .” Henderson v. SAIA, Inc., 318 S.W.3d 328, 342 (Tenn. 2010).

Although we have not decided the issues before us in Husband’s favor, we are not persuaded

that this appeal is frivolous or taken solely for delay. We, therefore, decline to award

attorney’s fees to Wife.

For the foregoing reasons, we affirm the trial court’s award of alimony in futuro. The

case is remanded for such further proceedings as may be necessary and are consistent with

this Opinion. Costs of the appeal are assessed against the Appellant, Mark Burell Parrish,

and his surety.

_________________________________

J. STEVEN STAFFORD, JUDGE

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