Opinion

Patricia Ridgeway v. Jimmy Kimball

Court
Court of Appeals of Tennessee
Filed
Aug 22, 2002
Status
Published
On the bench
Judge Houston M. Goddard
Cited by
0 cases
Authority
More cited than 29.9%

The opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 22, 2002 Session

PATRICIA ANNE RIDGEWAY v. JIMMY CLARKE KIMBALL

Appeal from the Chancery Court for Knox County

No. 144339-2 Daryl Fansler, Chancellor

FILED NOVEMBER 5, 2002

No. E2001-02577-COA-R3-CV

The sole issue for our review in this divorce case is whether the Chancellor erred in ordering the

Appellant, Jimmy Clarke Kimball (“Husband”) to pay alimony in futuro in the amount of $1,000 per

month to the Appellee, Patricia Anne Ridgeway (“Wife”). We find that the Chancellor properly

considered the applicable statutory factors and that the evidence does not preponderate against his

decision to award alimony in futuro rather than rehabilitative alimony. Consequently, we affirm the

Chancellor’s judgment.

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

Remanded

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and

D. MICHAEL SWINEY, JJ., joined.

Jerrold L. Becker, Knoxville, for the Appellant, Jimmy Clarke Kimball

John P. Valliant, Jr., Knoxville, for the Appellee, Patricia Anne Ridgeway

OPINION

The parties were married on December 2, 1978. On September 8, 1999, Wife filed this

action for divorce. After hearing the proof, the Chancellor granted Wife a divorce on the grounds

of inappropriate marital conduct. The parties have one child, born March 15, 1986. The Chancellor

ordered that the parties continue the custody arrangement in place at the time of trial, which provided

that the child stay with the Husband nine days per two-week period, and with the Wife the remaining

five days. Regarding the marital property division, the Chancellor held “that given all circumstances

in this case and considering the duration of the marriage an equitable division of the property would

be an equal division of property.” The Chancellor ordered Husband to pay Wife alimony in futuro

in the amount of $1,000 per month.

On appeal, Husband argues that the in futuro alimony award was erroneous, and that the

evidence supported, at most, a short-term rehabilitative alimony award.

We review the Trial Court's findings of fact de novo upon the record of the proceedings

below, with a presumption of correctness "unless the preponderance of the evidence is otherwise."

Tenn. R.App. P. 13(d); see also Hass v. Knighton, 676 S.W.2d 554 (Tenn.1984). There is no

presumption of correctness with regard to the trial court's conclusions of law, and those conclusions

are reviewed de novo. Jahn v. Jahn, 932 S.W.2d 939 (Tenn.Ct.App.1996).

The Trial Court has broad discretion in determining an award of alimony. Loyd v. Loyd, 860

S.W.2d 409 (Tenn.Ct.App.1993). This wide discretion includes the decision as to whether an award

of alimony should be rehabilitative or in futuro. Crabtree v. Crabtree, 16 S.W.3d 356 (Tenn. 2000).

The decision is factually driven and requires a balancing of the factors listed in T.C.A. 36-5-101(d).

Loyd v. Loyd, 860 S.W.2d 409 (Tenn.Ct.App.1993). Accordingly, this Court is not inclined to alter

a trial court's award of alimony unless it is unsupported by the evidence or is contrary to the public

policy embodied in the applicable statutes. Brown v. Brown, 913 S.W.2d 163 (Tenn.Ct.App.1994).

In determining an alimony award, the Trial Court is required to consider the following

factors, codified at T.C.A. 36-5-101(d)(1):

(d)(1) It is the intent of the general assembly that a spouse who is

economically disadvantaged, relative to the other spouse, be

rehabilitated whenever possible by the granting of an order for

payment of rehabilitative, temporary support and maintenance.

Where there is such relative economic disadvantage and rehabilitation

is not feasible in consideration of all relevant factors, including those

set out in this subsection, then the court may grant an order for

payment of support and maintenance on a long-term basis or until the

death or remarriage of the recipient except as otherwise provided in

subdivision (a)(3). Rehabilitative support and maintenance is a

separate class of spousal support as distinguished from alimony in

solido and periodic alimony. In determining whether the granting of

an order for payment of support and maintenance to a party is

appropriate, and in determining the nature, amount, length of term,

and manner of payment, the court shall consider all relevant factors,

including:

(A) The relative earning capacity, obligations, needs, and financial

resources of each party, including income from pension, profit

sharing or retirement plans and all other sources;

(B) The relative education and training of each party, the ability and

opportunity of each party to secure such education and training, and

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the necessity of a party to secure further education and training to

improve such party's earning capacity to a reasonable level;

(C) The duration of the marriage;

(D) The age and mental condition of each party;

(E) The physical condition of each party, including, but not limited to,

physical disability or incapacity due to a chronic debilitating disease;

(F) The extent to which it would be undesirable for a party to seek

employment outside the home because such party will be custodian

of a minor child of the marriage;

(G) The separate assets of each party, both real and personal, tangible

and intangible;

(H) The provisions made with regard to the marital property as

defined in § 36-4-121;

(I) The standard of living of the parties established during the

marriage;

(J) The extent to which each party has made such tangible and

intangible contributions to the marriage as monetary and homemaker

contributions, and tangible and intangible contributions by a party to

the education, training or increased earning power of the other party;

(K) The relative fault of the parties in cases where the court, in its

discretion, deems it appropriate to do so; and

(L) Such other factors, including the tax consequences to each party,

as are necessary to consider the equities between the parties.

Our Tennessee courts have repeatedly noted that, “while all of the above factors must be

considered in arriving at a decision regarding spousal support, the two most important factors are

the demonstrated need of the disadvantaged spouse and the obligor spouse’s ability to pay.” Hopkins

v. Hopkins, an opinion of this Court filed in Knoxville on October 23, 2002 (citing Anderton v.

Anderton, 988 S.W.2d 675 (Tenn.Ct.App. 1998); internal quotation marks omitted); Robertson v.

Robertson, 76 S.W.3d 337 (Tenn. 2002).

In the present case, Wife holds a doctorate degree in clinical psychology, and she owns an

incorporated private psychological practice. In 1998, Wife was diagnosed with fibromyalgia, and

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she testified that as a result of the effects of this disease, she was forced to reduce the number of her

working hours. Wife presented the testimony of Dr. Jay Henderson Warrick, her treating physician.

Dr. Warrick testified that although Wife is presently able to continue her clinical psychology

practice, her medical condition does cause “some degree of impairment virtually every day.” Dr.

Warrick stated that Wife has a history of flare-ups of her fibromyalgia, which would reasonably

require her to cut back on her practice. Wife testified that, with Husband’s encouragement, she cut

her clinical working hours to about 20 per week after her diagnosis. In September of 1999, after

filing for divorce, she increased her hours to about 30 per week.

Wife earned $36,000 in gross income for the years 1998 and 1999. At trial she filed an

affidavit of her corporation’s monthly income and expenses, which shows a total net income of $13

per month. Wife draws a monthly salary of $2,500 from the corporation. Her affidavit of personal

monthly income and expenses shows a deficit of $904 per month. We agree with the Chancellor that

Wife has demonstrated a need for support.

Husband, a pediatrician, does not dispute that he has the ability to pay alimony. He testified

that his current yearly salary income is $125,000 and that he also makes $1,200 per month in rental

income. The record supports the implicit finding that Husband has the ability to pay the $1,000 per

month alimony ordered by the Chancellor.

We must determine whether Wife’s rehabilitation is feasible in consideration of all relevant

statutory factors. The Chancellor found as follows in this regard:

It is clear that Dr. Ridgeway is not enjoying anything near the

standard of living she enjoyed during the course of this marriage.

Furthermore, given her current illness and the unlikelihood that she

will ever be able to increase her current earnings, she is not likely to

ever a achieve a standard of living remotely close to that which she

enjoyed during the marriage. . .Given the ages and potential earning

capacities of the parties and their potential for acquiring assets in the

future and giving consideration to the fact that Dr. Ridgeway has been

essentially forced from this marriage through no fault of her own the

Court is of the opinion that this is an appropriate case for alimony in

futuro and orders that alimony [is] to be set in the amount of $1000

per month.

We agree that rehabilitation of the Wife is not feasible under the facts of this case. At the time of

trial, Wife was nearly fifty-six years old. She has reached the pinnacle of educational training for

her career, but due to the effects of fibromyalgia, she is physically unable to work full time. Our

review of the other relevant statutory factors, as discussed above, also supports this conclusion.

Husband argues on appeal that the award of alimony in futuro “serves to punish the

[Husband] rather than to assist the [Wife].” He asserts that the Chancellor inappropriately placed

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greater weight on T.C.A. 36-5-101(d)(1)(K), the “relative fault of the parties” factor. Alimony has

never been intended by our legislature to be punitive, nor is it intended to be an award for virtue.

Lancaster v. Lancaster, 671 S.W.2d 501 (Tenn.Ct.App. 1984); Gaskins v. Gaskins, an unreported

opinion of this Court filed in Knoxville on November 29, 2001. However, the plain language of the

statute authorizes a trial court to consider, in accordance with the other statutory factors, the relative

fault of the parties.

Regarding this factor, the Chancellor found that the Husband had been involved in an

extramarital affair for over fifteen years. He introduced his paramour into the family as a close

friend and the parties’ child came to refer to her as an “aunt.” Husband admitted that on at least one

occasion, he falsely told his Wife that his relationship with the other individual was not sexual. The

revelation of the truth of this matter was a precipitous factor in ending the parties’ marriage of some

twenty-two years. We have carefully reviewed the Chancellor’s judgment in this case, and find that

he did not give undue weight to the relative fault of the parties. We believe his order of in futuro

alimony in this case was not an attempt to punish Husband, but rather was based on a review of all

the relevant statutory factors and a finding of legitimate need on Wife’s part.

For the foregoing reasons the judgment of the Chancellor is affirmed and the cause remanded

for collection of costs below. Costs of appeal are adjudged against Dr. Jimmy Clarke Kimball and

his surety.

_________________________________________

HOUSTON M. GODDARD, PRESIDING JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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