# Kincaid v. Kincaid > Court of Appeals of Tennessee · May 12, 1995 · 912 S.W.2d 140 URL: https://www.frixlaw.com/law-library/cases/9667961 ## Case - **Full name:** Marie Jose Catalano KINCAID, Plaintiff-Appellee, v. William Bryan KINCAID, Jr., Defendant-Appellant - **Court:** Court of Appeals of Tennessee - **Decided:** May 12, 1995 - **Citations:** 912 S.W.2d 140; 1995 Tenn. App. LEXIS 309 - **Precedential status:** Published - **Opinion:** Dissent by Tomlin - **Judges:** Crawford, Cantrell, Tomlin - **Cited by:** 150 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9667961 ## Opinion text TOMLIN, P.J., W.S., dissents. I respectfully dissent in part from the majority opinion. More specifically, I disagree with the conclusion of my colleagues that the trial court’s award to Wife of alimony in the amount of $300 per month should be reclassified as rehabilitative alimony rather than alimony in futuro. The majority opinion correctly cites and relies upon caselaw that determines the nature of alimony that a trial court might award. In Self v. Self, 861 S.W.2d 360 (Tenn. 1993), the supreme court duly characterizes a codified principle regarding alimony: [T.C.A. § 36-5-101(d)(l) ] reflects an obvious legislative policy that, if possible, the dependency of one ex-spouse on the other be eliminated and both parties be relieved of the impediments incident to the dissolved marriage, and that an ex-spouse be adjudged permanently dependent upon the other only when the court granting the divorce finds that economic rehabilitation is not feasible and long-term support is necessary. 861 S.W.2d at 361 . However, there is another legal principle that we, as an appellate court, must keep in mind when we contemplate reversing the judgment of the trial court in regard to the allowance of alimony. The amount of alimony to be awarded in a divorce suit is largely a matter left in the discretion of the trial judge in view of the particular circumstances and the appellate courts will not interfere except in the case of a manifest abuse of such discretion. Hanover v. Hanover, 775 S.W.2d 612, 617 (Tenn.App.1989). At trial below, the parties waived oral argument. The trial judge made it known that she was aware of what each of the parties wanted — -Wife requested alimony in futuro and Husband wanted no alimony awarded. In reversing the trial court on this issue, the majority states that we believe that she is a candidate for rehabilitation. Prior to, and during the early years of the marriage, Wife had a successful career handling claims for various insurance companies. Wife received promotions, raises, and was even honored as the employee of the month on occasion. Wife testified that she did not feel qualified for many jobs now, because she lacked computer skills. We believe that adult education courses in computer literacy could help her overcome this hurdle. There is also evidence that Wife suffers from a number of physical ailments. However, she testified that she works as a caterer twenty-five (25) hours per week. We believe, that with the proper training, Wife could increase her income significantly without greatly increasing the amount of horns that she works. With this in mind, following is a summary of the education and work experience of Wife, who was bom December 11,1935 (she was 58 years of age at the time of the divorce). Wife completed the 10th grade in high school. She has no technical training, nor is she licensed or certified in any particular area. While still married to Husband, in 1989 she went to a Nashville high school in an attempt to obtain her GED, but failed the exam. The vast majority of Wife’s employment has been in clerical positions. She was employed by Fireman’s Fund Insurance Company from 1963 to 1972, at which time the company closed the department in which she worked. She worked there as a policy typist and life insurance secretary, earning at or near minimum wage. From 1972 to 1975, Wife worked for an engineering firm, where she worked on the switchboard, did typing, and ordered supplies. Again, she was paid about minimum wage. She left this employment to get back into the insurance field. From 1975 to 1986 she worked for CIGNA, an insurance company. At CIGNA she did *146 clerical work, typing, ordered supplies, and paid medical claims. She lost her job at CIGNA when they closed down her department. Again, she was being paid about minimum wage at CIGNA. From 1987 through January 1990, Wife worked for Corroon & Black, an insurance company in Nashville. While there, she paid claims for the agency. She was terminated because of job reduction. She testified that at that time she was making about $18,000 or $14,000 per year. In none of the above positions was she ever disciplined or terminated for cause. Wife did not seek employment following this termination. She testified without contradiction that she was honoring her husband’s request that she not work anymore because of her back problems and stress, and that he wanted her to be a homemaker and help take care of his elderly mother. From the time Husband left the marital home in January 1992 until time of trial below, Wife testified that she had attempted to find full-time employment in the insurance industry. She failed the application test at one company and was advised by another for whom she had worked previously that no positions were available for someone with her qualifications. In addition, she has been working part-time doing catering for the Hee-Haw Group at Opryland and at the Vanderbilt Stadium Club, which entails about five hours a day, five days a week. In essence, what we have before us is a woman not quite sixty years of age, with a tenth grade education, who spent twenty-three years in the labor market as a clerk-typist, earning minimum wage. There is no proof in this record that she has any particular skills other than typing. In fact, based upon her inability to pass the GED exam, she may have difficulty learning new information at this stage in her life. The writer is- also of the opinion that the Court may take judicial notice of the “sizing down” that Fortune 500 corporations and smaller companies alike are presently undergoing. The labor market has been reduced by several hundred thousands of workers in the last three years. It is unreasonable to expect that at her age and with her training and education — or really, lack of it — that even some type of basic training in computers would make her an appealing employee in today’s market. The writer also is of the opinion that the majority’s reliance upon the lack of income of Husband is misplaced. While Husband is two years older than Wife, the record reflects that he had a steady job involving the repairing and selling of surveying equipment, and earned an average of at least $20,000 a year. He has a high school education, two years at Tennessee Tech, and computer and word processing skills. He testified that he is in good health, has successfully owned his own business and is trained in the use of survey equipment. The record also reflects that Husband voluntarily quit his job following the parties’ separation in January 1992. In my opinion, this record does not permit us to reach the conclusion that the action of the trial court in awarding alimony in futuro constituted a clear abuse of the court’s discretion. As to all other issues before this court, I join with my colleagues and affirm the judgment of the trial court. I would affirm the award of alimony in futuro to Wife in the amount of $800 per month, and thus dissent from the action of the majority in changing the classification of the alimony award to rehabilitative alimony from alimony in futuro. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9667961. Public record. Not legal advice.