IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT KNOXVILLE March 15, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
VERA ELIZABETH TH OMAS, ) C/A NO. E1999-00563-COA-R3-CV
)
Plaintiff-Appellee, ) HAMILTON CHANCERY
)
vs. ) HON. W . FRANK BROW N, III
) CHANCELLOR
KENNETH LAM AR THOMA S, )
) AFFIRMED AND
Defend ant-App ellant. ) REMANDED
SANDRA J. BOTT, Chattanooga, for Plaintiff-Appellee.
DAV ID W. N ORT ON, C hattanoog a, for Def endant-A ppellant.
O P I N IO N
Franks, J.
In this divorce action, the husband appealed from the award of alimony
to the w ife.
The w ife wa s 49 years old at the time of trial, and the hus band w as 52.
The parties have been married for 28 years, with three adult children.
At the conclusion o f the trial, the Court awarded wife alimony in futuro
and attorney’s fees, and made a division of the marital property. The husband filed a
Motion to Alter or Amend, which resulted in the Court’s lowering the amount of
alimony previously awarded to $2,750.00 for February 1999, $2,250.00 per month for
March through August 1999, $1,750.00 per month from September through December
1999, a nd $1,5 00.00 p er mon th therea fter, unt il her rem arriage or death .
The husband’s brief on appeal contains a statement of the issues
presented for appe al, and includes an issue w hich asks “[w]h ether the Trial Court
erred in awarding the wife a disproportional share of the parties assets.” The
remainder of the brief, however, contains no argument with regard to this issue.
Rule 6 of the Rules o f the Cou rt of App eals of Te nnessee sta tes that:
(a) Written a rgumen t in regard to e ach issue o n appeal sh all
contain:
1. A statement by the appellant of the alleged erroneous action of
the trial court which raises the issue and a statement by the
appellee of any action of the trial court w hich is relied u pon to
correct the alleged error, with citation to the record where the
erroneous or corrective action is recorded.
2. A statement showing how such alleged error was
seasonab ly called to the atten tion of the trial ju dge with
citation to tha t part of th e rec ord w here appellan t's
challenge of the alleged error is recorded.
3. A statement reciting wherein appellant was prejudiced by
such alleged error, with citations to the record showing
where the resultant prejudice is recorded.
4. A statement of each determinative fact relied upon with citation
to the record where evidence of each such fact may be found.
(b) No complaint of or reliance upon action by the trial court will be
considered on appea l unless the arg ument the reon con tains a specif ic
reference to the page or pages o f the record where su ch action is
recorded. No assertion of fact will be considered on appeal unless the
argument upon such assertion contains a reference to the page or pages
of the record where evidence of such fact is recorded.
Not only do es husban d’s brief fail to provide the necessary statem ents
and refere nces to the re cord as en umerated , it fails to set forth a ny argumen ts in
suppo rt of this is sue. Th us, the iss ue will n ot be co nsidere d by the C ourt. See Forde
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v. Fisk Un iversity, 661 S.W.2d 88 3 (Tenn. Ct. Ap p. 1983). 1
As to the issue of alimony, we review the Trial Court’s finding of fact
de novo with a presumption of correctness. T.R.A.P. Rule 13(d). No presumption of
correct ness atta ches to the Tria l Court ’s conc lusions of law .
The Trial Court found that the wife needed alimony, due to her lack of
income and her health problems, as well as the long duration of the marriage, the
parties’ relative earning capacities in the future and the standard of living enjoyed
during the marriage. The Trial Court did encourage the wife to get secretarial or other
training so she could generate some income for herself, and this was the reason that
the Court allowed for a decrease in alimon y after a certain period of time. The C ourt
further found that the husband had the ability to pay alimony to the wife.
The wife testified she had been treated for depression, an ulcer, colitis,
hypoglycemia and glaucoma. In this 28 year marriage, the wife testified she had not
worked outside of the home in more than twenty years, and that she had tried to find
employment since the parties separated, but had met with no success.
The hus band testifie d that he w orked fo r Fletcher B right Com pany until
1995, and then became self-employed. Although his income with Fletcher Bright had
been significantly higher, the Trial Court found the husband’s net income since
becoming self-employed had averaged around $50,000.00 per year. The evidence
does not preponderate against the Court’s finding that the wife had a need for alimony
and that the husband had the ability to pay. T.R.A.P. Rule 13(d ).
The parties’ tax returns for the last three years demonstrated that
husba nd’s av erage yea rly net inco me w as appr oxima tely $50.0 00.00 a nd incr easing .
Wife had no recent job experience, and had no marketable skills or prospects of
emplo yment.
Husband argues that the Court should have awarded wife rehabilitative
alimony rather than alimony in futuro. Tenn. Code Ann. §36-5-101 makes clear that
there is a pref erence fo r rehabilitative a limony, but the c ourts may gra nt alimony in
futuro where rehabili tation is n ot feasi ble. Long v. Long, 968 S.W .2d 292 (T enn. Ct.
App. 1 997). See also Brown v. Brown, 1990 W L 1409 12 (Tenn . Ct. App. 1 990);
Crabtree v. Crabtree, 1998 WL 382210 (Ten n. Ct. App. 1998).
Ford v. Ford, 952 S.W.2d 824 (Tenn. Ct. App. 1996), and Long v. Long,
1
We also note that the husband failed to set forth the proper tabulation of marital property
required by Rule 15 of the Rules of the Court of Appeals of Tennessee.
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968 S.W.2d 292 (Tenn. Ct. App. 1997), teach that is improper to award rehabilitative
alimony wh ere rehabilitatio n is not feas ible. These c ases and o thers deal w ith
situations w here one s pouse w as so econ omically disad vantaged when c ompared with
the other sp ouse, that the spouse co uld not be e conomic ally rehabilitated. Sim ilarly
here, rehabilitation is not feasible because of the great earnings disparity between the
parties. Wife is almost 50 years old, has health problems, no marketable skills, and no
real job experience. The Trial Court properly considered all of the factors when
making th e award o f alimony to the wife, and we affirm the judgm ent.
Wife has asked this Court to make an award of her attorney’s fees
incurre d on the appea l, which we ca n do, if p roper. See Seaton v. Seaton, 516 S.W.2d
91 (Te nn. 197 4). Atto rney fees are con sidered as addi tional alim ony. Ford, and Long,
Keisler v. Keisler, 1997 WL 427026 (Ten n. Ct. App. 1997). W e conclude the record
establishes a basis to award the wife her reasonable attorney’s fees incurred on the
appea l. See Sane lla v. Sanella , 993 S .W.2d 73 (Te nn. Ct. A pp. 199 9).
The judgment of the Trial Court is affirmed and upon remand, the Trial
Court w ill set the wife’s reasonab le attorney’s fees for her rep resentation o n appeal,
and the a mou nt w ill be awa rded agai nst th e husban d as a dditiona l alim ony.
The cost o f the appe al is assessed to the appellan t.
__________________________
Herschel P. Franks, J.
CONCUR:
___________________________
Charles D. Susano, Jr., J.
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___________________________
D. Michael Swiney, J.
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