The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
February 27, 1998
WILLIAM M. KIZER, ) Cecil W. Crowson
) Appellate Court Clerk
Plaintiff/Appellee, ) Sumner General Sessions
) No. 2453-G
VS. )
) Appeal No.
ANNA LYNN KIZER, ) 01A01-9707-GS-00304
)
Defendant/Appellant. )
APPEAL FROM THE GENERAL SESSIONS COURT
FOR SUMNER COUNTY
AT GALLATIN, TENNESSEE
THE HONORABLE BARRY BROWN, JUDGE
For Plaintiff/Appellee: For Defendant/Appellant:
Homer R. Ayers F. Dulin Kelly
Goodlettsville, Tennessee Clinton L. Kelly
Andy L. Allman
KELLY & KELLY
Hendersonville, Tennessee
MODIFIED AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
OPINION
This appeal involves the dissolution of a sixteen-year marriage. After granting
the wife a divorce based on the husband’s inappropriate marital conduct, the Sumner
County General Sessions Court divided the marital property and declined the wife’s
request for spousal support and attorney’s fees. The wife appealed, contending that
she was entitled to spousal support and attorney’s fees based on her financial need
and her husband’s ability to pay.1 We have determined that the wife is entitled to
spousal support and, accordingly, modify the judgment to award the wife $100 per
month in long-term spousal support.
I.
William M. Kizer, now 72 years old, and Anna Lynn Kizer, now 68 years old,
were married on August 21, 1981. They both had adult children from previous
marriages. During the early part of the marriage, Mr. Kizer was employed by the
Ford Glass Plant, and Ms. Kizer worked for Oscar-Mayer. Mr. Kizer was also a
licensed real estate agent, and the parties worked together building and renovating
houses for sale. In 1985, at Mr. Kizer’s urging, Ms. Kizer took early retirement from
Oscar-Mayer, but she continued assisting Mr. Kizer with his real estate dealings. Mr.
Kizer retired from the Ford Glass Plant a year later but continued his real estate
activities.
Mr. Kizer filed for divorce in the Sumner County General Sessions Court in
July 1996, seeking a divorce on the grounds of inappropriate marital conduct or
irreconcilable differences. Ms. Kizer counterclaimed for divorce. At trial, the parties
stipulated that the divorce be granted to Ms. Kizer based on inappropriate marital
conduct. The trial judge divided the marital estate equally by awarding Ms. Kizer the
marital residence and other assets worth between $329,829 and $330,704 and by
awarding Mr. Kizer three parcels of real estate and other assets worth between
1
This court has direct appellate jurisdiction over the domestic relations decisions of Division
II of the Sumner County General Sessions Court because Division II has concurrent jurisdiction over
these cases with the circuit and chancery courts. See Act of Feb. 25, 1982, ch. 236, §§ 3 & 9, 1982
Tenn. Priv. Acts 89, 90-91.
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$328,182 and $331,947.2 The general sessions court declined to award Ms. Kizer
either spousal support or attorney’s fees. Ms. Kizer has appealed, arguing that the
court should have granted her requests for spousal support and attorney’s fees
because she is unable to meet her current monthly expenses, while Mr. Kizer has a
monthly surplus and an income three times greater than hers.
II.
MS. KIZER’S REQUEST FOR SPOUSAL SUPPORT
Trial courts have broad discretion in determining whether to award spousal
support and in determining the amount and duration of this support. See Wilson v.
Moore, 929 S.W.2d 367, 375 (Tenn. Ct. App. 1996); Jones v. Jones, 784 S.W.2d 349,
352 (Tenn. Ct. App. 1989). The courts are required by statute to take into account
multiple factors when making an alimony determination, see Tenn. Code Ann. § 36-
5-101(d)(1) (1996), but the most relevant considerations are the recipient spouse’s
need and the obligor spouse’s ability to pay. See Aaron v. Aaron, 909 S.W.2d 408,
410 (Tenn. 1995); Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995);
Smith v. Smith, 912 S.W.2d 155, 159 (Tenn. Ct. App. 1995).
There is no absolute formula for determining whether alimony should be
awarded. The inquiry is factually driven and requires the careful balancing of many
factors. See Crain v. Crain, 925 S.W.2d 232, 233 (Tenn. Ct. App. 1996); Loyd v.
Loyd, 860 S.W.2d 409, 412 (Tenn. Ct. App. 1993). We must also consider the
legislative preference for rehabilitative alimony, see Tenn. Code Ann. §36-5-
101(d)(1), but this preference does not preclude awarding long-term alimony when
rehabilitation is not feasible. See Self v. Self, 861 S.W.2d 360, 361 (Tenn. 1993). The
Tennessee Supreme Court has approved awarding “closing in” money to allow an
economically disadvantaged spouse to more closely approximate his or her former
economic position. See Aaron v. Aaron, 909 S.W.2d at 411.
The prospects of Ms. Kizer’s economic rehabilitation are quite guarded under
the facts of this case. She is now 68 years old and is nearing the end of her working
2
We are unable to determine the precise value of the property awarded to the parties because
the general session court did not assign a value to all the property.
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years. She currently earns approximately $150 per month doing demonstrations at
grocery stores and depends on her retirement and social security for her remaining
income. Realistically, Ms. Kizer has no reasonable prospect for increasing her
earnings or accumulating additional capital assets.
This marriage lasted more than fifteen years. During this time, Ms. Kizer
worked and maintained the home. She also assisted Mr. Kizer with his real estate
ventures by painting, wallpapering, trimming, and landscaping the houses that they
sold. By acceding to Mr. Kizer’s suggestion that she take early retirement from
Oscar-Mayer, Ms. Kizer “drastically” reduced her monthly pension payments and,
thus, her income after the divorce.
Both Mr. and Ms. Kizer are now retired and in good health. The evidence
clearly demonstrates that there is a disparity in their earning capacity, obligations, and
need. Ms. Kizer has a monthly income of $940, but her current monthly obligations
are $1,673.90. Even if we were to accredit Mr. Kizer’s assertion that Ms. Kizer’s
monthly expenses are overstated, Ms. Kizer still faces a substantial monthly
shortfall.3 Without spousal support, Ms. Kizer will be forced to begin depleting the
assets she was awarded in the property division in order to support herself.
In stark contrast to Ms. Kizer, Mr. Kizer has a monthly income of $2,677, part
of which is attributable to the income-producing property he received as part of the
division of the marital estate. His income is close to three times that of Ms. Kizer’s.
His income exceeds his expenses by approximately $1,592 each month. He has much
better prospects for increasing his income and for accumulating additional capital
assets because he is a licensed real estate agent with over fifteen years of experience.
Considering Mr. Kizer’s ability to pay, Ms. Kizer’s need and impaired earning
capacity, Ms. Kizer’s substantial contributions to the marriage, and the equities of the
situation, we find that Mr. Kizer should be required to pay Ms. Kizer $100 a month
in long-term spousal support until her death or remarriage or until Mr. Kizer
demonstrates that she no longer needs this spousal support.
III.
3
Mr. Kizer took specific issue with Ms. Kizer’s monthly budget allocating $200 for clothing,
$150 for church donations, and $125 for gifts.
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MS. KIZER’S REQUEST FOR ATTORNEY’S FEES
Ms. Kizer also asserts that the general sessions court erred by refusing to award
her attorney’s fees. She argues that denying her request for attorney’s fees will place
her in a worse financial condition than she was in prior to the divorce and that the
parties’ economic disparity justifies an award of fees. We disagree.
An award of attorney’s fees in a divorce action is treated as alimony, see Smith
v. Smith, 912 S.W.2d 155, 161 (Tenn. Ct. App. 1995); Gilliam v. Gilliam, 776 S.W.2d
81, 86 (Tenn. Ct. App. 1988), and lies within the sound discretion of the trial judge.
See Aaron v. Aaron, 909 S.W.2d at 411; Brown v. Brown, 913 S.W.2d 163, 170
(Tenn. Ct. App. 1994). Such an award is proper when the spouse seeking attorney’s
fees either lacks the financial resources to pay legal expenses or would have to
deplete other assets in order to do so. See Kincaid v. Kincaid, 912 S.W.2d at 144;
Brown v. Brown, 913 S.W.2d at 170; Thompson v. Thompson, 797 S.W.2d 599, 605
(Tenn. Ct. App. 1990).
Ms. Kizer has received marital property worth approximately $330,000, and
approximately $130,000 of this property is liquid. Even though she will be required
to support herself with these funds, requiring her to pay $3,465 for her legal expenses
will have little impact on her long-term financial well-being. Accordingly, we find
that the general sessions court did not err by denying Ms. Kizer’s request for
attorney’s fees.
IV.
We affirm the final divorce decree as modified herein and remand the case to
the general sessions court for the entry of an order directing Mr. Kizer to begin
paying Ms. Kizer $100 per month in long-term spousal support beginning on the first
day of the month following the issuance of our mandate. We tax the costs of this
appeal in equal proportions to Anna Lynn Kizer and her surety and to William M.
Kizer for which execution, if necessary, may issue.
______________________________
WILLIAM C. KOCH, JR., JUDGE
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CONCUR:
__________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
__________________________________
BEN H. CANTRELL, JUDGE
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