Anthony Bernard Mobley v. Priscilla Ann Caffa-Mobley

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 22, 2012 Session

ANTHONY BERNARD MOBLEY v. PRISCILLA ANN

CAFFA-MOBLEY

Appeal from the Circuit Court for Montgomery County

No. MCCCCVDV091089 Ross H. Hicks, Judge

No. M2011-02269-COA-R3-CV - Filed November 30, 2012

The former husband appeals from the denial of his Motion to Set Aside or in the Alternative

Alter or Amend the Final Decree of Divorce, which was filed 23 days after the entry of the

Final Decree. In his Motion for relief, Husband sought to amend the Final Decree as it

pertained to the division of the parties’ mortgage debt on two homes, the division of

Husband’s military pension, and the award of rehabilitative alimony to Wife. We have

determined the trial court should have granted partial relief as it pertained to Husband’s

continuing liability on the mortgage on the Miami, Florida property awarded to Wife, and to

address a mathematical error pertaining to Wife’s interest in Husband’s military retirement.

Thus, we remand for review of these two issues and affirm in all other respects.

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

Affirmed in Part; Reversed in Part and Remanded

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which P ATRICIA J.

C OTTRELL, P.J., M.S., and R ICHARD H. D INKINS, J., joined.

Sharon T. Massey, Clarksville, Tennessee, for the appellant, Anthony Bernard Mobley.

Priscilla Ann Caffa-Mobley, Clarksville, Tennessee, Pro Se.

OPINION

Anthony Bernard Mobley (Husband) filed a complaint for divorce against Priscilla

Ann Caffa-Mobley (Wife) on June 1, 2009. The grounds listed in the complaint were, inter

alia, irreconcilable differences. Wife filed an answer and counter-claim also seeking a

divorce on the grounds of, inter alia, irreconcilable differences.

The parties were married 13 years and have no children. Both parties have high school

diplomas. Husband is an E-8 in the United States Army earning approximately $6,200 a

month; he has been on active duty for over 22 years. During the marriage, Wife worked on

and off primarily in child care or as a teacher’s aide, usually earning minimum wage. She

was in a serious car accident in 2008, leaving her permanently unable to perform jobs that

require lifting. Wife was unemployed at the time of the divorce. Husband paid the bulk of

the household bills throughout the marriage.

The parties did not always live within their means and incurred substantial debt during

their marriage. In 2010 Wife received a $50,000 personal injury settlement for the injuries

she sustained in the 2008 vehicular accident; she used these funds to pay off some of the

couple’s financial obligations.

The marital home in Clarksville, Tennessee, is worth between $185,000 and $195,000,

and had an outstanding mortgage of $172,000 at the time of the divorce. The parties also own

a home in Miami, Florida, which Wife inherited. When Wife inherited the property, it had

a $30,000 mortgage. Husband’s name was added to the title in 2003 in order for the couple

to refinance the property to make some improvements to both properties and to pay off other

financial obligations. The property was refinanced again in 2006, and the total outstanding

debt at the time of the divorce was approximately $150,000. At the time of the divorce, the

Miami residence was rented to Wife’s niece who was paying $1,000 a month in rent.

The parties attempted mediation on October 14, 2010, but were unsuccessful; thus,

the case went to trial. Following a hearing on April 7, 2011, the trial court ruled from the

bench and declared the parties divorced. In dividing the marital estate, the court did not

specifically award Wife a portion of Husband's military pension, but ordered the parties to

calculate the amount for the Final Decree stating, “I think we’re really in agreement about

that. You know how to calculate it.” As for the remaining items in the marital estate, Wife

was awarded the parties’ home in Miami, Florida. Husband was ordered to sell the marital

property in Clarksville and to evenly divide any profit (or any remaining debt) with Wife.

Each party was awarded any furniture or personal effects in their possession, including their

vehicles. Wife was also awarded the parties’ 2010 Federal Income Tax Refund of $4,263 to

cover her attorney’s fees, and Husband was held responsible for the parties’ credit card debt

of approximately $15,000. Finally, the court found that due to her lack of post-high school

education and her physical limitations, Wife was entitled to “transitional and/or rehabilitative

alimony,” in the amount she requested, for four years to attend college or otherwise obtain

more education.

At the close of the hearing, the attorneys were instructed to prepare the Final Decree

of Absolute Divorce. The Final Decree was prepared by Wife’s attorney and approved for

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entry by Husband’s attorney,1 and approved by the trial court as presented. The parts of the

Final Decree pertinent to the issues on appeal provide: 1) Wife is to receive the real property

in Miami and “shall be responsible for any and all indebtedness associated with the

property”; 2) Wife “shall receive 35% of the Husband’s military disposable retirement

pension from the United States Army”; and 3) “Husband shall pay to the Wife $1,800 per

month retroactively from April 1, 2011, until April 1, 2012. Husband shall then pay to Wife

$1,600 per month until April 1, 2013, and then Husband shall pay to the Wife $1,400 per

month for 24 additional months.”

The Final Decree was entered April 19, 2011. On May 12, 2011, less than thirty days

after its entry, Husband filed a motion titled, “Motion to Set Aside or in the Alternative Alter

or Amend,” which stated that it was filed “pursuant to Rule 60.02(5), Tennessee Rules of

Civil Procedure.” Husband asserted that the award to Wife of 35% of his military pension

was “a mistake and should be set at 27-29%.” He also argued that Wife’s alimony award was

inequitable due in part to the fact that Husband’s income decreased following the divorce.

Following a hearing, the trial court denied Husband’s motion in all respects. Regarding the

issues relating to Husband’s military pension, the Order provides: “The Final Decree, which

was signed by both parties, listed the amount agreed upon by the parties. The Court does not

have an obligation to correct the amount of Husband’s retirement proposed even it if is a

mistake.” Husband timely filed this appeal.

I SSUES P RESENTED ON A PPEAL

In his brief, Husband contends the trial court erred in denying his Motion for post-

judgment relief because, Husband argues, he made a clear showing of mistake due to

excusable neglect. Husband also contends the trial court erred in failing to calculate the

specific figure for the award of Husband’s military pension and in failing to require Wife to

release him from the mortgage on the Miami, Florida property within a reasonable amount

of time. Husband also contends that the amount of transitional alimony awarded to Wife

constitutes an abuse of discretion.

Wife is no longer represented by counsel2 and is proceeding pro se on appeal. She did

not file an appellee’s brief in the form or substance required by the Tennessee Rules of

Appellate Procedure; however, she did submit a packet of documents as her response to

Husband’s brief. These include her medical records, school records, the parties’ tax records,

1

With permission from Husband’s attorney, Wife’s attorney signed the final decree on behalf of

Husband’s attorney indicating Husband’s approval for entry of the final decree as written.

2

Wife’s former counsel withdrew on September 16, 2011, and she has acted pro se since then.

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and a list of ways Husband has treated her unfairly in a section titled, “Unfair Treatment.”

Wife’s submission does not comply with the Tennessee Rules of Appellate Procedure and

does not constitute an appellee’s brief. See Tenn. R. App. P. 27 through 29. Nevertheless, we

shall consider the issues properly raised by the parties in light of the official record before

this court, see Tenn. R. App. P. 13, however we shall not consider any documents submitted

that do not also appear in the official record provided by the trial court clerk. See id.

A NALYSIS

I.

We will first address Husband’s contention that the trial court erred in denying his

Rule 60 Motion to Set Aside or in the Alternative Alter or Amend.

A.

Before we consider the merits of the motion, it should be noted that Husband

erroneously identified his motion to alter or amend as a Tennessee Rule of Civil Procedure

60 motion. It is actually a Rule 59 motion for relief; this is because the motion was filed

within 30 days of the entry of the Final Decree. Thus, the motion was filed before the Final

Decree became a final, non-appealable judgment. This circumstance was discussed in detail

in Ferguson v. Brown, 291 S.W.3d 381, 387 (Tenn. Ct. App. 2008) (“When Plaintiff’s

motion was received and filed by the clerk's office, the judgment was not yet a final,

non-appealable judgment. Accordingly, Rule 59.04 is the applicable rule.”).

The erroneous identification of the motion as a Rule 60 motion is of no consequence

for our courts are not bound by titles of motions. Id. Further, Rule 59.04 allows a party to

seek relief from a judgment within thirty days after being entered. Id. Conversely, Rule 60.02

affords a party a means to seek relief from a final, non-appealable judgment, meaning one

that was entered more than thirty days prior to the filing of the motion. Id. (citing Campbell

v. Archer, 555 S.W.2d 110, 112 (Tenn. 1977)).

A party may obtain relief pursuant to Rule 59.04 from an order entered as a

result of mistake, inadvertence, or excusable neglect by a party’s counsel

notwithstanding the fact the party erroneously stated in its motion that it was

seeking relief pursuant to Rule 60.02(1). See Campbell, 555 S.W.2d at 112;

Henson, 674 S.W.2d at 310. Such was the case in Campbell and Henson,

wherein this court determined that motions that were incorrectly denominated

as being filed pursuant to Rules 55.02 and 60.02(1), respectively, would be

treated as motions filed pursuant to Rule 59.04. In Campbell, the court held

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that plaintiffs were “entitled to relief under Rule 59, Tennessee Rules of Civil

Procedure, and that resort need not be had to Rule 60.02, upon which they

rely.” Campbell, 555 S.W.2d at 112. In Henson, the court stated, “We note the

motion to set aside the default judgment was filed and served within thirty

days of the entry of the judgment, and it should be deemed a motion for a new

trial under Tenn. R. Civ. P. 59 which can afford relief from a judgment

because of mistake, inadvertence, surprise or excusable neglect.” Henson, 674

S.W.2d at 310. We will therefore consider Plaintiff's motion as a Rule 59.04

motion for relief from an order that resulted from counsel's mistake,

inadvertence, or excusable neglect.

Ferguson, 291 S.W.3d at 387-88 (footnote omitted).

We shall now address the merits of Husband’s contention that the trial court erred in

denying his motion to set aside or amend the Final Decree, thereby refusing to consider the

specific issues raised in the trial court.

B.

Husband contends his previous attorney made a mistake in approving the Final Decree

for entry; he asserts the parties agreed to a method of calculation which would have resulted

in an award to Wife of 27-30% of his military pension, but his attorney overlooked the fact

that the Final Decree awarded Wife 35% of his military pension.

It is important to note that not all negligence can be indulged. To do that “‘would read

out of the excusable neglect principle the requirement that the neglect must first be found

excusable.’” Id. at 388 (quoting State ex rel. Sizemore v. United Physicians Ins. Risk

Retention Grp, 56 S.W.3d 557, 567 (Tenn. Ct. App. 2001)).

An attorney’s mere oversight or negligence, without more, does not

automatically amount to excusable neglect. In determining whether excusable

neglect existed on behalf of the moving party, “the burden is on the movant to

set forth, in a motion or petition and supporting affidavits, facts explaining

why the movant was justified in failing to avoid the mistake, inadvertence,

surprise, or neglect.” Tenn. Dep’t of Human Servs. v. Barbee, 689 S.W.2d 863,

866 (Tenn. 1985) (quoting Tenn. State Bank v. Lay, 609 S.W.2d 525, 527

(Tenn. Ct. App. 1980)).

Excusable neglect may have causes ranging from forces beyond a

party’s control to forces within its control. Sizemore, 56 S.W.3d at 567. “It

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may encompass simple, faultless omissions to act and, more commonly,

omissions caused by carelessness.” Id. (quoting Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993)). Accordingly,

excusable neglect may apply to certain situations in which failure to comply

with a filing deadline is attributable to that party’s negligence. Id. (citing

Pioneer Inv. Servs. Co., 507 U.S. at 394, 113 S.Ct. 1489; Marx v. Loral Corp.,

87 F.3d 1049, 1054 (9th Cir. 1996)).

Whether neglect is excusable is an equitable determination “taking

account of all relevant circumstances surrounding the party’s omission.” Id.

(quoting Pioneer Inv. Servs. Co., 507 U.S. at 395, 113 S.Ct. 1489; Dubuc v.

Green Oak Township, 958 F. Supp. 1231, 1241 (E.D. Mich. 1997)). The

relevant circumstances envelop the big picture of both causes and effects,

including:

(1) the danger of prejudice to the party opposing the late filing,

(2) the length of the delay and its potential impact on

proceedings, (3) the reason why the filing was late and whether

that reason or reasons were within the filer's reasonable control,

and (4) the filer's good or bad faith. These circumstances must

be weighed both with and against each other because, if

considered separately, they may not all point in the same

direction in a particular case.

Id. (quoting Sizemore, 56 S.W.3d at 567) (other internal citations omitted). As the court did

in Ferguson and Sizemore, we will consider how each of these circumstances applies to the

present case, where Husband’s attorney only discovered the alleged mistake in the Final

Decree after its entry.

The first circumstance to be considered is “the danger of prejudice” to the party

opposing the motion. Sizemore, 56 S.W.3d at 567-68. As explained in Sizemore, “prejudice

connotes unmerited, substantive harm to the opposing litigant.” Id. (citing Sizemore, 56

S.W.3d at 568). Mere delay does not constitute prejudice. Id. Courts may find prejudice

“where one side has been harmed by loss of opportunity to present some material aspect of

its case,” or where the party opposing the motion has detrimentally relied on the filing party’s

inaction. Id. (citing State v. Burns, 6 S.W.3d at 463 (Tenn. 1999)).

In this case, although there would have been a modest delay if the trial court had

considered the issues raised by Husband, the record does not reflect that Wife would have

been prejudiced if the parties were required to re-calculate Wife’s portion of the military

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retirement. Husband did not raise any novel legal arguments nor did he present any new

evidence. Moreover, there is nothing in the record to suggest that Wife has lost the

opportunity to “present some material aspect of [her] case.” Id. (citing Burns, 6 S.W.3d at

463).

The second circumstance discussed in Ferguson is “the length of the delay and its

potential impact on [the] proceedings.” 381 S.W.3d at 387. The relevant question to ask in

this case is whether a substantial delay would have resulted had Husband’s Motion been

granted and the military pension award been re-calculated on the date the Motion was heard.

We find at most the proceedings would have been minimally delayed. As stated above,

Husband raised no new legal arguments and presented no new evidence. Moreover, Husband

brought the alleged error to the trial court’s attention within thirty days of the entry of the

Final Decree and thus before the Final Decree became a final, non-appealable judgment.

The third factor to be considered is the reason why Husband’s previous counsel failed

to identify the alleged error until after the Final Decree was entered. Id. The record does not

reflect why Husband, or Husband’s former attorney, failed to detect the alleged error

regarding the military pension on the Final Decree. Thus, this factor therefore weighs against

a finding that the alleged mistake was a result of excusable neglect.

The fourth circumstance is the issue of Husband’s good or bad faith in seeking to

amend the Final Decree. See id. Husband identifies several points in the record that suggest

the award to Wife of 35% of the military pension was a mistake. First, throughout the

proceedings, the highest percentage Wife requested was 33%, in her pretrial brief. Second,

the trial court did not specifically rule that Wife was entitled to 35%, but rather the court

found that the parties were in agreement about the method for calculating the percentage,

stating: “I think we’re really in agreement about that. You know how to calculate it.”

Husband asserts the parties agreed the distribution of the military pension should be

determined by dividing the number of months of marriage by the total number of months of

Husband’s military service and dividing that figure in half; and that this computation would

afford Wife some portion between 27% and 30%. This is the formula Husband proposed in

his pre-trial brief and testified to at trial. These facts have not been refuted by Wife. There

is no evidence of bad faith on the part of Husband, only evidence of Husband’s previous

counsel’s alleged failure to identify this error, if an error was made, prior to the entry of the

Final Decree. Throughout these proceedings, Husband has agreed that Wife is entitled to a

portion of his military pension. His position is simply that his former attorney failed to detect

a clerical mistake on the Final Decree, which, he argues, would require a relatively small

deduction in the pension award. Thus, we find this factor weighs in favor of excusable

neglect.

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Based upon the record before us, it appears the trial court focused only on the fact that

Husband’s previous attorney mistakenly approved the Final Decree. At the conclusion of the

hearing on Husband’s motion, the trial court denied the motion stating “the Court does not

have an obligation to correct the amount of Husband's retirement proposed even if it is a

mistake.” The trial court went on to state that Husband’s “remedies lie in other areas, such

as suing his attorney.” In its ruling from the bench, the trial court made no reference to the

other circumstances discussed in Ferguson. The fact that the alleged mistake in this case

appears to be attributable primarily to Husband’s former attorney’s failure to read the Final

Decree closely must be balanced against the fact that: 1) this alleged error was brought to the

trial court’s attention quickly (less than thirty days after the entry of the Final Decree), 2) the

mistake could have been easily and quickly corrected, and 3) prior to the entry of the Final

Decree, the parties were in agreement that Wife was entitled to between 27% and 33% of

Husband’s military pension. See Sizemore, 56 S.W.3d at 567 (“Finding whether neglect is

excusable is an equitable determination ‘taking account of all relevant circumstances . . .’

The relevant circumstances envelop the big picture of both causes and effects.”).

Based upon the foregoing analysis, we have concluded that Husband’s neglect was

excusable and that the trial court erred by declining to consider the issues raised in Husband’s

Motion to Alter or Amend the Final Decree. Accordingly, we shall examine the issues raised

in the Motion.

II.

As it pertains to the award to Wife of 35% of Husband’s military pension, we remand

this issue to the trial court to determine whether an error was made by the attorneys in setting

the percentage and, if so, for the trial court to determine the correct percentage of Husband’s

military pension Wife is entitled to receive and to enter judgment accordingly.

III.

Husband contends the trial court erred in the division of marital property. We find no

error with the division of the marital property (except for a possible error in the percentage

of Husband’s military retirement awarded to Wife which is discussed above).3 However, as

for the mortgage on the Miami, Florida property, we have concluded the failure to make any

3

Any interest in a retirement benefit, vested or unvested, that accrues during a marriage, is marital

property subject to division. See Cohen v. Cohen, 937 S.W.2d 823, 828 (Tenn. 1996); see also Batson v.

Batson, 769 S.W.2d 849 (Tenn. Ct. App. 1988).

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provision for Husband’s release from the debt encumbering the Miami, Florida property may

be contrary to Tennessee law. See Dobbs v. Dobbs, 2012 WL 3201938, at *4 (Tenn. Ct. App.

Aug. 7, 2012). As we explained in Dobbs:

Tenn. Code Ann. § 36-4-121(c)(4) requires the court to consider “the relative

ability of each party for future acquisitions of capital assets” in its division and

distribution of marital property. We are concerned that failing to make any

provision for Husband’s release from the debt encumbering the marital

residence may be contrary to § 36-4-121(c)(4). As a consequence, we remand

the case for the court to determine a reasonable time for Wife to secure

Husband’s release from indebtedness and to amend the final decree

accordingly. See e.g. Long, 221 S.W.3d at 10.

Id.

In this case, the parties’ Miami, Florida property is disposed of in the Final Decree as

follows:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the parties

own real property located at 1763 Northwest 55th Street, Miami, Florida

33142. All interest in said property shall be divested from Husband and vested

into Wife. Wife shall be responsible for any and all indebtedness associated

with the property.

As was the case in Dobbs, pursuant to the Final Decree here, Husband remains

indefinitely obligated to pay the outstanding debt and costs of collection if Wife defaults;

further, the indefinite indebtedness impairs his ability to qualify for financing should he

require a mortgage to obtain financing for housing or other needs in the future.4 Therefore,

based upon the record before us, we have determined that a reasonable time frame should be

established by which Wife is required to satisfy the indebtedness on the Miami, Florida

property for which Husband is jointly and severally liable, either by selling the property and

paying the entire indebtedness or by refinancing in a manner by which Husband shall be fully

released from any liability on the indebtedness. See Dobbs, 2012 WL 3201938, at *4.

4

Husband was ordered to sell the parties’ marital home in Clarksville, “with the parties equally

dividing any profit or loss from the sale.” The approximate value of the home, as testified to by the parties

at trial, is between $185,000 and $195,000, and the home has an outstanding mortgage of $172,000. Husband

was also held responsible for the parties’ substantial remaining credit card debt.

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For the foregoing reasons, we remand with instructions for the trial court to determine

a reasonable time by which Wife shall secure Husband’s full release on the indebtedness

encumbering the Miami, Florida property and to enter judgment accordingly.

IV.

Husband contends the trial court erred in the amount and duration of rehabilitative

alimony awarded to Wife. We find no merit to this contention.

Trial courts are afforded wide discretion in determining whether there is a need for

spousal support, and if so, the nature, amount, and duration of the award. Gonsewski v.

Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011) (citing 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)). Absent an abuse of discretion, a trial court's

decision to award spousal support will not be disturbed on appeal. Id. 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 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)). The appellate court may not substitute its judgment for that of the trial court;

rather, it should presume that the trial court's alimony decision is correct and review the

evidence in the light most favorable to that decision. Id. at 105–06 (citing Wright, 337

S.W.3d at 176; Henderson, 318 S.W.3d at 335). The deference to trial court decisions

regarding spousal support follows from the recognition that such decisions are “factually

driven” and involve “the careful balancing of many factors.” Id. (citing Kinard, 986 S.W.2d

at 235).

In Gonsewski, our Supreme Court emphasized the strong preference for short-term

spousal support over long-term spousal support. Gonsewski, 350 S.W.3d at 109. The court

further recognized that the legislative preference was for support aimed at the rehabilitation

of the disadvantaged spouse in order to “achieve self-sufficiency where possible.” Id. (citing

Tenn. Code Ann. § 36-5-121(d)(2)-(3); Bratton, 136 S.W.3d at 605; Perry v. Perry, 114

S.W.3d 465, 467 (Tenn. 2003)). Rehabilitative alimony is “intended to assist an economically

disadvantaged spouse in acquiring additional education or training which will enable the

spouse to achieve a standard of living comparable to the standard of living that existed during

the marriage or the post-divorce standard of living expected to be available to the other

spouse.” Id. at 108 (citing Robertson, 76 S.W.3d at 340-41; Isbell v. Isbell, 816 S.W.2d 735,

738-39 (Tenn. 1991)). The court further noted that “[c]arefully adhering to the statutory

framework for awarding spousal support, both in terms of awarding the correct type of

support and for an appropriate amount and time, fulfills not only the statutory directives but

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also alimony's fundamental purpose of eliminating spousal dependency where possible.” Id.

at 110 (emphasis added).

When determining whether to award alimony and the “nature, amount, length, and

manner of payments,” courts are required to consider the factors set forth at Tennessee Code

Annotated § 36-5-121(i). Id. at 109. These include but are not limited to the relative earning

capacity, obligations, needs, and financial resources of each party, the relative education and

training of each party, duration of the marriage, the age, mental condition and physical

condition of each party, the separate assets of each party, provisions made with regard to the

marital property, the standard of living the parties established during the marriage, the extent

to which each party has made such tangible and intangible contributions to the marriage, the

relative fault of the parties, and such other factors as are necessary to consider the equities

between the parties. See Tenn. Code Ann. § 36-5-121(i). The two factors considered most

important are the disadvantaged spouse's need and the obligor spouse's ability to pay.

Gonsewski, 350 S.W.3d at 110 (citing Riggs, 250 S.W.3d at 457; Bratton, 136, S.W.3d at

605; Robertson, 76 S.W.3d at 342; Burlew, 40 S.W.3d at 470).

In this case, Wife is clearly the economically disadvantaged spouse. She has a high

school education and limited work experience over the past thirteen years. Furthermore, she

is limited in the type of employment she is currently capable of performing due to her health

problems and physical limitations. The record reflects that, without additional education, if

Wife is able to obtain employment and is able to work full time, she would likely make less

than $20,000 annually. Wife’s economic disadvantage is also due, in part, to her

contributions at home while Husband was deployed. See Tenn. Code Ann. § 36-5-121(i)(10)

(stating that, in determining the amount and type of alimony to award, the court should

consider “[t]he 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”). The education and training of each spouse, including the necessity of a

spouse to secure further education and training in order to improve that spouse’s earning

capacity to a reasonable level, is a factor for consideration in the award of alimony. Tenn.

Code Ann. § 36-5-121(i)(2). Wife testified that she has experience working as a teacher’s

aide, and that she would like to go to college to earn a teaching degree. She testified that she

had already spoken to a counselor at Hopkinsville Community College, and that it would take

her approximately four years to get the necessary education and training to accomplish her

goal of becoming a teacher.

Gonsewski emphasized the importance of focusing on the economically disadvantaged

spouse’s need, stating: “We emphasize that, ‘[w]hile there is no absolute formula for

determining the amount of alimony, the real need of the spouse seeking the support is the

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single most important factor.’” Gonsewski, 350 S.W.3d at 115 (quoting Aaron, 909 S.W.2d

at 410). Wife’s income and expenses affidavit reflects a monthly deficit in excess of $3,500.

With rental income from her property in Florida, the record reflects her monthly deficit

would still run in excess of $2,500. In contrast to Wife, Husband is employed in the military

at the E-8 level, earning in excess of $72,000 annually, and he has the potential for several

more years in the military and additional earnings thereafter. See Tenn. Code Ann. § 36-5-

121(i)(1) (setting forth the “relative earning capacity, obligations, needs, and financial

resources of each party” as a factor for consideration in the award of alimony). Finally, we

note that this was a marriage of long-duration, as the parties were married for almost thirteen

years. See Tenn.Code Ann. § 36-5-121(i)(3).

Based upon our review of the record, we find no error with the trial court’s decision

to award Wife rehabilitative alimony of $1,800 a month from April 1, 2011 until April 1,

2012; $1,600 a month from April 1, 2012 until April 1, 2013; and $1,400 a month for

twenty-four months beginning April 1, 2013. Thus, we affirm the award of alimony.

I N C ONCLUSION

The judgment of the trial court is reversed in part, affirmed in part, and this matter is

remanded for further proceedings consistent with this opinion. Costs of appeal are assessed

against the appellant, Anthony Bernard Mobley.5

______________________________

FRANK G. CLEMENT, JR., JUDGE

5

Costs are generally assessed against the non-prevailing party; however, we assess costs against the

appellant due to the fact the errors complained of were due in principle part to the failure of the appellant

and/or his former counsel to assure that the final decree submitted to the trial court by agreement was correct

and complete.

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