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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