IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 1, 2010 Session
DEBORAH SOUTHERN ANTRICAN v.
ALVIN MICHAEL ANTRICAN
Appeal from the Chancery Court for Hancock County
No. 06-8976 E.G. Moody, Chancellor
No. E2009-01028-COA-R3-CV - FILED MARCH 22, 2010
This is a divorce case following a long-term marriage. Following a trial, the Trial Court
classified the property as separate or marital, divided the marital property, awarded Wife
$30,000 as her share of farm income that was earned after the parties separated, and awarded
Wife alimony in futuro of $800 per month and alimony in solido of $20,000 for partial
payment of her attorney fees. Both parties appeal raising various issues. We modify the
award of $30,000 in farm income to an award of $2,184. We also modify the award of
alimony in futuro to be $400 per month, with this modification to become effective sixty days
from the date our judgment is entered. In all other respects, the judgment of the Trial Court
is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed as Modified; Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.
Douglas R. Beier, Morristown, Tennessee, for the Appellant, Alvin Michael Antrican.
Denise Terry Stapleton, Morristown, Tennessee, for the Appellee, Deborah Southern
Antrican.
OPINION
Background
Husband and Wife were married in March 1978.1 Almost twenty-eight years
later, in January 2006, Wife filed a complaint seeking a divorce from Husband on the ground
of adultery. Alternatively, Wife sought a divorce based on irreconcilable differences.
Husband answered the complaint and generally denied any fault. Husband filed a counter-
claim also seeking a divorce. Husband alleged that Wife was guilty of inappropriate marital
conduct or, alternatively, that irreconcilable differences existed between the parties. The
parties have two adult children.
The trial was on February 11, 2009. Much of the general background
information as well as most of the information pertaining to the property owned by one or
both of the parties and that property’s value is not in dispute. Accordingly, we quote liberally
from the Trial Court’s opinion:
Husband (Defendant) and Wife (Plaintiff) have been
married for 35 years. The Husband voluntarily moved out of the
marital residence on March 31, 2004. The Parties have 2 adult
children.
The Wife is 54 years old; she has a Master’s Degree; she
is a tenured teacher with the Hancock County School System;
she has taught school for 30 years; she is currently employed in
the Administrative Offices of the Hancock County School
System as Assistant Director of Federal Programs; her monthly
income is $4,323 . . . and her annual income is $51,882.
The Husband is 55 years old; he has a Master’s Degree;
he is a tenured teacher with the Hancock County School System;
1
At trial, both parties testified that they were married for “thirty-five” years. Surprisingly, at trial
neither of them was asked on what day they actually were married. If they were married in March 1978, as
alleged in the complaint, then they would have been married for thirty years at the time of trial in February
2009. We thought we had found the answer to this riddle when we came across the following from
Husband’s testimony: “Deb had left once before and we’ve been divorced once before when she had ran off
with another man and we married back. . . .” When counting both marriages, perhaps the parties were
married for “thirty-five” years. We, however, cannot be certain that this is the solution to the riddle because
Wife stated in the complaint that this was the first marriage for both parties, an allegation admitted by
Husband.
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he has taught school for many years; he is currently employed by
the Hancock County School System as the Director of Schools
which position he has held for nineteen years; his monthly
income is $6,416 per month and his annual income is $76,992.
The Husband, as Director of Schools, has the authority to
terminate the Wife as the Assistant Director of Federal
Programs. The Wife has always worked both outside of the
home and as a homemaker except for a short time following the
births of the parties’ children. The Husband testified that the
Wife was and is a good mother. . . .
The Husband admitted that he has had an adulterous
relationship since 2002 or for two years prior to his moving out
of the marital residence. The Husband hired his paramour in a
position with the Hancock County School System making
$18,000 per year and allowed her to work in the same office as
the Wife until the Wife persuaded him to transfer her to another
office. The Wife had been faithful to the marriage.
[The Wife is in] good health. The Husband has had
cancer which is in remission and he has diabetes which is well
controlled.
The parties agreed to use Mr. David Britton as a real
estate appraiser and agreed to be bound by his appraisals as to
the fair market values of the real estate in question. The parties
agreed that the 454 Janet Drive house and the 1.1 acres where
the wife resides is marital property; Mr. Britton appraised it for
$168,000 and it is unencumbered. The parties agreed that the
Cantwell Valley Road property consisting of 11.09 acres is
marital property; Mr. Britton appraised it for $24,000 and it is
unencumbered.
The Husband constructed a new house in 2005 on the 150
acres in Cantwell Valley which was given to him by his parents
in 1997; his mother has a life estate in it which has a value of
$88,433; Mr. Britton appraised it for $310,000, and it is
encumbered in the amount of $80,000.
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The 12.1 acres in Grainger County was deeded to the
parties by the Husband’s mother as shown in Exhibit 4; the deed
was delivered to him; the deed has not been recorded; Mr.
Britton appraised it for $32,000 and it is unencumbered.
The 12 acres in Cantwell Valley is in the names of the
Husband and his mother. The Husband’s interest was given to
him by his mother in 1997.
The 48 acres at Union Ridge was a gift to the Husband
from the Husband’s parents; it is in his name and it is subject to
the life estate of his mother.
The parties took over the farming operations of the
Husband’s parents in 1992. The parties agreed that the fair
market cash value of the cattle is $74,100 and that the fair cash
market value of the farm equipment is $24,200. (original
paragraph numbering omitted and shorter paragraphs
combined).
In addition to the foregoing, the parties were able to agree to the fair market
value of the following property: (1) Wife’s furniture, $15,000; (2) Husband’s furniture,
$2,412; (3)Wife’s retirement, $94,298.49; (4) Husband’s retirement, $99,121.95; (5) Wife’s
annuity with AIG, $8,000; (6) Wife’s 2002 Tahoe, equity totaling $700; (7) Husband’s 2004
GMC truck, equity totaling $7,000; (8) Husband’s 1989 Dodge, $1,500; (9) Husband’s 1989
Nissan, $500; (10) Husband’s 1987 Jeep, $600.
Wife had several credit cards, and the parties agreed that Wife was the only one
who used the credit cards. According to the Trial Court, Husband acknowledged that most
of these debts were longstanding and incurred for family expenses. In short, even though the
credit cards were in Wife’s name only and even though she was the party who incurred the
debt, the Trial Court found that all of these debts were marital debts. The credit cards and
related debts, including a loan from Wife’s parents that was used to pay off a high-interest
credit card, are as follows: (1) AIG, $3,600; (2) Bank of America, $25,000; (3) Discover,
$6,177.14; (4) Sam’s, $1,300; (5) Q card, $1,088.72; (6) Chadwick’s, $675; (7) J.C. Penney,
$600; (8) First Century Bank $4,200; (9) Wife’s parents, $21,800. These debts total
$64,440.86.
Although the parties agreed on the value of most of the property, they were at
odds as to how some of it should be classified, i.e., as separate or marital property. The
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parties also were in sharp disagreement as to how to divide that property and whether Wife
was entitled to alimony.
As relevant to this appeal, Husband testified that he constructed a house on the
150 acres located in Cantwell Valley. Husband paid for all of the construction, etc., to build
the house. This house was built after the parties separated but while they still were married.
Husband admitted that any real property that has been accumulated was accumulated during
the marriage.
Husband acknowledged that Wife was a homemaker in addition to working a
full-time job outside of the home during most all of the marriage. When asked if Wife
assisted with the tobacco grown on the farm, Husband responded that she assisted “mainly”
on her parents’ farm. Husband eventually acknowledged that Wife assisted with the farming
duties, although he minimized the amount of assistance she provided. Husband
acknowledged that Wife helped haul hay and helped feed and vaccinate the cattle. Husband
admitted that Wife borrowed money to buy a tractor for the farm. Husband admitted that
during the marriage Wife had purchased tools and supplies for the farm and the marital
residence. Husband testified that the gross income from the farm was approximately $30,000
per year, but the net income was much less. Relying on the income tax returns entered as
exhibits at trial, for the years 2005 through 2007, there was total net farming income of
$4,368 for those three years.
The parties disagreed on how to classify 12.1 acres of land located in Grainger
County. With respect to this property, Husband acknowledged that the warranty deed from
his mother lists both Husband and Wife as the grantees. Husband claimed that he and Wife
never paid his mother for the property and so the deed never was recorded. According to
Husband, he had agreed to pay his mother $10,000 for the property, but those funds never
were paid.
Husband also testified about a separate 12 acre tract of property in Cantwell
2
Valley. Husband testified that this property was transferred to him and his mother in 1998.
Husband borrowed $67,000 to build his current house, and his mother co-
signed the note for this loan. Husband’s payment on this loan is $800 per month. This debt
was incurred during the marriage, and Husband claimed it is a marital debt. There is no
mortgage on this house.
2
Wife correctly points out that while the deed to this property states that the property consists of 12
acres, an appraisal showed that the property actually was 23.2 acres. We will refer to this property as a 12
acre tract because that is how the Trial Court referred to this property.
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Husband previously had filed an affidavit of income and expenses with the
Trial Court and affirmed most of its accuracy at trial. Husband’s affidavit lists his health
insurance payment twice3 and also includes his then pendente lite alimony payment. It also
was no longer accurate with regard to the amount of taxes, which also had been counted
twice. Not counting the alimony payment, deducting the post-divorce amount of Husband’s
health insurance and counting it only once, adjusting the tax payment, and eliminating a
phone and cable bill that Husband does not have, Husband’s affidavit shows monthly
expenses of $2,931.00 and net monthly income of $4,149.28 before deducting the $2,931.00.
Wife testified that she and Husband both owned the Grainger County property
and both were on the deed. Wife indicated that no one ever told her that the deed allegedly
was invalid because Husband’s mother had not been paid $10,000. Wife testified that she
helped Husband with the tobacco grown on the farm, and that she helped haul hay and fence
in the farm. Wife also helped with the cattle. Wife always considered the farm joint
property.
Wife also filed an affidavit of monthly income and expenses and testified
regarding same at trial. In her affidavit, Wife listed her net monthly income as $3,020.29 and
her monthly expenses at $3,905.92. Based on this shortfall, Wife sought an award of
alimony. Wife’s affidavit, however, included payments for all of the credit cards and other
debt that the Trial Court ultimately held Husband responsible for paying. Backing out
payments for credit cards and other debts for which Husband was held responsible, Wife’s
monthly expenses totaled $2,518.92. This total also includes monthly charitable
contributions of $354.15 and gifts of $62.50.
Based on the testimony of the parties, the Trial Court found that both the 12
acres on Cantwell Valley Road and the 48 acres at Union Ridge were Husband’s separate
property. The Trial Court further found that the 12.1 acres in Grainger County and the 150
acres in Cantwell Valley where Husband built his new house both were marital property. As
to the farming equipment and the cattle, the Trial Court found them to be marital property.
The Trial Court’s classification of these five items are at issue on appeal.
After classifying the property, the Trial Court then divided the marital property.
The Trial Court awarded Wife marital property valued at $309,998.49. Wife was not held
3
Husband’s health insurance payment was $715 which included family coverage for him and Wife.
However, this payment was listed as a monthly expense and also was listed a second time as a deduction
from the gross amount of Husband’s paycheck. In addition, Husband acknowledged that once he and Wife
are divorced and he no longer carries her on his insurance, his monthly payment will decrease to $357.50.
We have used this latter figure when determining Husband’s monthly expenses.
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responsible for any of the marital debt. Husband was awarded marital property valued at
$386,000.95. However, Husband also was held responsible for all of the $64,440.86 in
marital debt plus the note related to the new house built by Husband, resulting in a net award
to Husband of $321,560.09. See footnote 8, infra at page 12. In addition, the Trial Court
concluded that as to the net farm income for 2005 through 2007, Wife was entitled to
$30,000 as her share. Finally, the Trial Court found that Wife was entitled to an award of
alimony in futuro of $800 per month as well as a one time payment of $20,000 as alimony
in solido to go toward partial payment of her attorney fees.
Husband appeals raising numerous issues. First, Husband claims that the 12.1
acres in Grainger County and the 150 acres in Cantwell Valley were not marital property, and
the Trial Court erred when it classified this property as such. Husband also alleges that the
Trial Court erred when it found that the farm was marital property, and that Wife was entitled
to $30,000 as her share of the net farming income from 2005 through 2007. Next, Husband
claims that the overall property distribution was inequitable. Finally, Husband claims the
Trial Court erred when it awarded Wife alimony in futuro of $800 per month and alimony
in solido of $20,000 toward partial payment of her attorney fees.4
Wife also appeals. Wife claims that the Trial Court erred when it found that
the 12 acres on Cantwell Valley Road and 48 acres on Union Ridge were Husband’s separate
property. Wife also claims that the Trial Court should have ordered Husband to pay all of
her attorney fees. In all other respects, Wife maintains that the judgment of the Trial Court
should be affirmed.
Discussion
The factual findings of the Trial Court are accorded a presumption of
correctness, and we will not overturn those factual findings unless the evidence
preponderates against them. See Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721,
727 (Tenn. 2001). With respect to legal issues, our review is conducted “under a pure de
novo standard of review, according no deference to the conclusions of law made by the lower
courts.” Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710
(Tenn. 2001).
4
Although not entirely clear, it appears that Husband is challenging a finding by the Trial Court that
he was in contempt of court. Because this issue was not set forth in Husband’s Statement of the Issues, in
the event that Husband is attempting to raise this as an issue on appeal, we consider it waived.
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We first will discuss whether the Trial Court correctly classified the property
at issue as separate or marital. As relevant to this appeal, Tenn. Code Ann. § 36-4-121(b)
defines marital and separate property as follows:
(b) For purposes of this chapter:
(1)(A) “Marital property” means all real and personal property,
both tangible and intangible, acquired by either or both spouses
during the course of the marriage up to the date of the final
divorce hearing and owned by either or both spouses as of the
date of filing of a complaint for divorce, except in the case of
fraudulent conveyance in anticipation of filing, and including
any property to which a right was acquired up to the date of the
final divorce hearing, and valued as of a date as near as
reasonably possible to the final divorce hearing date. . . . All
marital property shall be valued as of a date as near as possible
to the date of entry of the order finally dividing the marital
property.
(B) “Marital property” includes income from, and any increase
in value during the marriage of, property determined to be
separate property in accordance with subdivision (b)(2) if each
party substantially contributed to its preservation and
appreciation, and the value of vested and unvested pension,
vested and unvested stock option rights, retirement or other
fringe benefit rights relating to employment that accrued during
the period of the marriage. . . .
(D) As used in this subsection (b), “substantial contribution”
may include, but not be limited to, the direct or indirect
contribution of a spouse as homemaker, wage earner, parent or
family financial manager, together with such other factors as the
court having jurisdiction thereof may determine. . . .
(2) “Separate property” means:
(A) All real and personal property owned by a spouse before
marriage, including, but not limited to, assets held in individual
retirement accounts (IRAs) as that term is defined in the Internal
Revenue Code of 1986, as amended;
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(B) Property acquired in exchange for property acquired
before the marriage;
(C) Income from and appreciation of property owned by a
spouse before marriage except when characterized as marital
property under subdivision (b)(1); [and]
(D) Property acquired by a spouse at any time by gift, bequest,
devise or descent . . . .
Tenn. Code Ann. § 36-4-121(b) (2005).
As stated previously, the Trial Court found that the 12 acres in Cantwell Valley
and the 48 acres in Union Ridge5 were Husband’s separate property. As to the 12 acres in
Cantwell Valley, the warranty deed shows that the record owners of the property are Husband
and his mother, Nola Antrican. Husband testified that this property was deeded to him as a
gift. Wife offered no credible evidence or argument to the contrary. As to the property at
Union Ridge, this property was deeded solely to Husband by his mother and father in 1997.
Both of Husband’s parents retained a life estate in this property. Again, Wife offered no
credible proof that this property was not intended to be a gift solely to Husband. Because the
facts do not preponderate against the Trial Court’s factual determination that these two pieces
of property were Husband’s separate property, the judgment of the Trial Court with respect
to these two items is affirmed.
When Husband’s mother intended to gift property to Wife and not just to her
son, she certainly was free to include Wife on the deed, which is exactly what happened in
the deed pertaining to the 12.1 acres located in Grainger County. In 2001, Husband’s mother
deeded this property jointly to Husband and Wife. As did the Trial Court, we reject
Husband’s argument that this deed is invalid because he allegedly never paid his mother
$10,000 for this property. There is nothing in the deed indicating a sale price, assuming that
there even was one, or that the sale price had not been paid at the time the deed was executed.
The Trial Court found that this “conveyance was completed upon the delivery of the deed to
the Husband and that the property is marital property.” The Trial Court also noted that
although Husband’s mother was present at trial, she did not testify.
As to the property where Husband built his new house, there is no doubt that
he built his new house with marital funds as the parties still were married when the house
5
This property is sometimes referred to in the record as being located on Union Church Road. Since
the Trial Court used “Union Ridge”, that is the designation we also shall use.
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was built.6 This land was acquired many years before the parties separated and more years
before they were divorced. The Trial Court found that “the Husband inextricably
commingled [the 150 acres] with marital property when he built and furnished a house on
[the 150 acres] with marital property which converted it to marital property.”
The facts do not preponderate against the Trial Court’s findings and ultimate
conclusions that the real property in Grainger County and the property where Husband’s
house is located, as well as Husband’s house, are marital property. We affirm the Trial
Court’s judgment as to the classification of these two properties.
The final piece of property at issue is the farm. Although Husband attempted
to downplay Wife’s contributions to the farm, he eventually admitted that Wife made many
contributions over the years. If Wife’s testimony is credited, the amount of her contributions
were even more significant. In addition, Wife took out a loan to purchase farm equipment.
As to the cattle and farm equipment, Husband’s and Wife’s testimony conflicted in numerous
aspects. The Trial Court specifically found Wife’s testimony to be more credible on this
issue, and found the cattle and farm equipment to be marital property as was the farming
operation. Given the Trial Court’s credibility determination on this issue, the evidence does
not preponderate against the Trial Court’s findings that the farm was marital property, and
we affirm the Trial Court’s judgment in that regard.
Even though we have affirmed the Trial Court’s judgment that the farm was
marital property, another issue is raised with respect to the farm. Specifically, Husband
claims that the Trial Court erred when it ordered Husband to pay Wife “the sum of $30,000
for her share of the net farm income for 2005, 2006, and 2007.” (emphasis added) The Trial
Court could not have awarded Wife $30,000 as her share of the net farm income as the
evidence shows the net farm income for those three years was much less than $30,000.
Apparently the Trial Court awarded her a share of the gross farm income for that three year
period. The income tax returns exhibited at trial, the only evidence presented relevant to the
net farm income, unequivocally show that the farm’s net income for that three year period
was only $4,368. Husband admitted at trial that none of the $4,368 was shared with Wife,
to whom he was still married when the income was earned. Therefore, we modify the Trial
Court’s judgment to award Wife $2,184 instead of $30,000 as her share of the net farm
income.7
6
Husband correctly claims that the debt on the house is marital debt.
7
Wife claims that to the extent the Trial Court may have awarded Wife too much for her share of
the farm proceeds, any such error is off-set by the fact that Husband received governmental tobacco farming
(continued...)
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Having affirmed the Trial Court’s classification of the property, the next issue
is whether the marital property distribution was equitable. When making an equitable
division of marital property, a trial court shall consider all relevant factors including:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills,
employability, earning capacity, estate, financial liabilities and
financial needs of each of the parties;
(3) The tangible or intangible contribution by one (1)
party to the education, training or increased earning power of the
other party;
(4) The relative ability of each party for future
acquisitions of capital assets and income;
(5) The contribution of each party to the acquisition,
preservation, appreciation, depreciation or dissipation of the
marital or separate property, including the contribution of a
party to the marriage as homemaker, wage earner or parent, with
the contribution of a party as homemaker or wage earner to be
given the same weight if each party has fulfilled its role;
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time
the division of property is to become effective;
(9) The tax consequences to each party, costs associated with the
reasonably foreseeable sale of the asset, and other reasonably
foreseeable expenses associated with the asset;
7
(...continued)
subsidies. Wife has failed to establish that these subsidies were not factored into the overall profitability of
the farm or that these funds otherwise were not reinvested in the farm.
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(10) The amount of social security benefits available to
each spouse; and
(11) Such other factors as are necessary to consider the
equities between the parties. . . .
Tenn. Code Ann. § 36-4-121(c) (2005).
A trial court has wide discretion in dividing the interest of the parties in marital
property. Barnhill v. Barnhill, 826 S.W.2d 443, 449 (Tenn. Ct. App. 1991). As noted by this
Court in King v. King, when dividing marital property:
The trial court’s goal in every divorce case is to divide
the parties’ marital estate in a just and equitable manner. The
division of the estate is not rendered inequitable simply because
it is not mathematically equal, Cohen v. Cohen, 937 S.W.2d 823,
832 (Tenn. 1996); Ellis v. Ellis, 748 S.W.2d 424, 427 (Tenn.
1988), or because each party did not receive a share of every
item of marital property. Brown v. Brown, 913 S.W.2d [163] at
168. . . . In the final analysis, the justness of a particular division
of the marital property and allocation of marital debt depends on
its final results. See Thompson v. Thompson, 797 S.W.2d 599,
604 (Tenn. App. 1990).
King v. King, 986 S.W.2d 216, 219 (Tenn. Ct. App. 1998) (quoting Roseberry v. Roseberry,
No. 03A01-9706-CH-00237, 1998 WL 47944, at *4 (Tenn. Ct. App. Feb. 9, 1998), no appl.
perm. appeal filed).
Wife was awarded a total of $309,998.49 in marital assets with no
corresponding debt. Thus, Wife’s net award of marital property was $309,998.49. Husband
was awarded a total of $386,000.95 in marital assets and $64,440.86 in marital debt, thereby
resulting in a net award to him of $321,560.09. In short, Husband was awarded 50.9% of the
net marital property, and Wife was awarded the remaining 49.1%.8
8
In discussing the overall property awards, we note that when the Trial Court ordered Husband to
pay Wife $30,000 for her share of the farm income, those funds were not factored into the Trial Court’s
overall award to Wife of $309,998.49 in assets. Thus, our modification of that award does not materially
change the fact that Wife received 49.1% in net marital assets. In addition, with respect to the $67,000 loan
on Husband’s house, which is a marital debt, the amount of that loan was taken into account when that asset
was awarded to Husband. Specifically, the Trial Court reduced the net value of that asset by the amount of
(continued...)
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The parties are close in age and have the same level of education. They both
have long-term jobs. They both contributed to the accumulation of assets during the
marriage as both were actively employed outside of the home for most, if not all, of the
marriage. In addition, both parties contributed to the preservation of the marital home and
the farm. Both parties are receiving a substantially similar amount of net assets. In short,
when considering the relevant factors set forth in Tenn. Code Ann. § 36-4-121(c), we cannot
conclude that the marital property distribution was inequitable, and we affirm that judgment
with the sole modification as to the amount Wife is to receive as her share of the net farm
income for 2005 - 2007.
We next consider the award of alimony in futuro. Trial courts have broad
discretion to determine whether alimony is needed and, if so, the nature, amount, and
duration of support. See Garfinkel v. Garfinkel, 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996).
Pursuant to Tenn. Code Ann. § 36-5-121(i), the court is to consider the following factors in
determining alimony:
(1) 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;
(2) The relative education and training of each party, the
ability and opportunity of each party to secure such education
and training, and the necessity of a party to secure further
education and training to improve such party's earnings capacity
to a reasonable level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but
not limited to, physical disability or incapacity due to a chronic
debilitating disease;
(6) 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;
8
(...continued)
the loan before awarding it to Husband.
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(7) The separate assets of each party, both real and
personal, tangible and intangible;
(8) The provisions made with regard to the marital
property;
(9) The standard of living of the parties established
during the marriage;
(10) 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;
(11) The relative fault of the parties, in cases where the
court, in its discretion, deems it appropriate to do so; and
(12) Such other factors, including the tax consequences
to each party, as are necessary to consider the equities between
the parties.
Tenn. Code Ann. § 36-5-121(i) (2005).
There are no hard and fast rules with respect to spousal support decisions.
Anderton v. Anderton, 988 S.W.2d 675, 682 (Tenn. Ct. App. 1998). Decisions regarding
alimony require a careful balancing of the factors in Tenn. Code Ann. § 36-5-121(i) and
typically hinge on the unique facts and circumstances of the case. See Anderton, 988 S.W.2d
at 683. While all of the statutory factors are significant, the two most important factors are
the obligor spouse’s ability to pay and the need of the disadvantaged spouse. Aaron v.
Aaron, 909 S.W.2d 408, 410 (Tenn. 1995).
The Tennessee General Assembly has stated its intent 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 alimony.” Tenn. Code Ann.
§ 36-5-121(d)(2). In those cases where rehabilitation is not feasible, “the court may grant an
order for payment of support and maintenance on a long-term basis or until death or
remarriage of the recipient . . . .” Tenn. Code Ann. § 36-5-121(d)(3). The purpose of an in
futuro award is to “mitigate the harsh realities of divorce” and “to provide financial support
to a spouse who cannot be rehabilitated.” Burlew v. Burlew, 40 S.W.3d 465, 471 (Tenn.
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2001). Alimony in futuro serves the purpose of providing support to the spouse who is
unable to achieve self-sufficiency. Loria v. Loria, 952 S.W.2d 836, 838 (Tenn. Ct. App.
1997). It is also intended to aid the disadvantaged spouse when economic rehabilitation is
not feasible, in order to mitigate the harsh economic realities of divorce. Id.
When the Trial Court awarded Wife alimony in futuro, it did so in an attempt
to elevate Wife’s post-divorce standard of living. This is an appropriate consideration.
Tenn. Code Ann. § 36-5-121(f)(1) states:
(f)(1) Alimony in futuro, also known as periodic alimony,
is a payment of support and maintenance on a long term basis or
until death or remarriage of the recipient. Such alimony may be
awarded when the court finds that there is relative economic
disadvantage and that rehabilitation is not feasible, meaning that
the disadvantaged spouse is unable to achieve, with reasonable
effort, an earning capacity that will permit the spouse's standard
of living after the divorce to be reasonably comparable to the
standard of living enjoyed during the marriage, or to the
post-divorce standard of living expected to be available to the
other spouse, considering the relevant statutory factors and the
equities between the parties.
Tenn. Code Ann. § 36-5-121(f)(1) (2005).
Given the fact that Wife has a Master’s Degree and has been employed with
the Hancock County School System for 30 years, there is no need for rehabilitative alimony.
As set forth previously, Husband has net monthly income of $4,149.28 and net monthly
expenses of $2,931. After paying his monthly expenses, Husband has $1,218.28 remaining.
Wife has net monthly income of $3,020.29 and net monthly expenses of $2,518.92, leaving
her with $501.37 each month after expenses. Wife has no mortgage payment and was not
held responsible for any of the marital debt.
When considering all of the relevant factors, we conclude that the award of
$800 per month in alimony in futuro was excessive. After Husband makes that payment, he
is left with $418.28 per month, while Wife now has $1,301.37 left over. In order to achieve
a better balance between the parties’ post-divorce standard of living, we modify the award
to reflect an award of alimony in futuro in the amount of $400 per month. In modifying the
award, we note that “[t]he parties’ incomes and assets will not always be sufficient for them
to achieve the same standard of living after divorce that they enjoyed during the marriage.”
Robertson v. Robertson, 76 S.W.3d 337, 340 (Tenn. 2002). This may well be one of those
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cases. We further hold that this modification is to take effect sixty days from the date our
judgment is entered. Until that time, Husband is to pay alimony as ordered by the Trial
Court.9
The final issue is Husband’s claim that the Trial Court erred when it awarded
Wife $20,000 in alimony in solido toward payment of her attorney fees. Wife claims the
Trial Court erred by not requiring Husband to pay all of her attorney fees. An award of
alimony in solido for payment of attorney fees likewise should be based on the factors set
forth in Tenn. Code Ann. § 36-5-121(i), and is appropriate when the spouse seeking attorney
fees does not have adequate funds to pay his or her legal expenses. See Yount v. Yount, 91
S.W.3d 777, 783 (Tenn. Ct. App. 2002). Conversely, a spouse with sufficient property or
income to pay his or her attorney fees is not entitled to be compensated. Koja v. Koja, 42
S.W.3d 94, 98 (Tenn. Ct. App. 2000). If a spouse is receiving alimony intended to sustain
that spouse, and he or she would be required to deplete those funds in order to pay attorney
fees, then an award of attorney fees is proper. See Batson v. Batson, 769 S.W.2d 849, 862
(Tenn. Ct. App. 1988).
Wife submitted an affidavit from her attorney showing fees and expenses
totaling $32,078.89. Husband argues that the affidavit is not detailed and does not reference
the specific services rendered, and therefore is invalid because there is no proof that they are
reasonable. At trial, Husband stated that he wanted the opportunity to “rebut . . . or respond
to” the affidavit. Counsel for Wife stated that she would supply a detailed affidavit under
seal. The Trial Court then indicated that it may need to conduct an in camera hearing to
determine the reasonableness of the fees. There is nothing further in the record to indicate
that Husband pursued such a hearing.
When considering the relevant factors set forth in Tenn. Code Ann.
§ 36-5-121(i), as well as the property award, we cannot conclude that the facts preponderate
against the award of $20,000 to Wife as alimony in solido. We, therefore, reject both
Husband’s and Wife’s challenges to that award.
9
Husband argues that Wife is entitled to no alimony whatsoever. He does not argue that another
type of alimony would be more appropriate, such as transitional alimony. Because we conclude that some
type of alimony is appropriate, and because Husband does not argue that some other form of alimony would
be more appropriate, we affirm the Trial Court’s decision to award alimony in futuro.
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Conclusion
The judgment of the Trial Court awarding Wife $30,000 as her share of the net
farm income is modified to be instead an award of $2,184. In addition, Wife’s award of
alimony in futuro is modified to be $400 per month. This alimony modification is to take
effect sixty days from the date our judgment is entered. In all other respects, the judgment
of the Trial Court is affirmed. This case is remanded to the Trial Court for collection of the
costs below. Costs on appeal are taxed one-half to the Appellant, Alvin Michael Antrican,
and his surety, and one-half to the Appellee, Deborah Southern Antrican, for which execution
may issue, if necessary.
________________________________
D. MICHAEL SWINEY, JUDGE
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