IN THE COURT OF APPEALS OF TENNESSEE,
AT JACKSON
_______________________________________________________
)
JUDITH ANN WARREN TAYLOR, )
)
Shelby Law No.
1050984 R.D.
FILED
Plaintiff/Appellee. )
) June 8, 1998
VS. ) C.A. No. 02A01-9706-CV-00112
) Cecil Crowson, Jr.
Appellate C ourt Clerk
MICHAEL RAYMOND TAYLOR, )
)
Defendant/Appellant. )
)
______________________________________________________________________________
From the Circuit Court of Shelby County at Memphis.
Honorable Janice M. Holder, Judge
Marti L. Kaufman, MONROE, KAUFMAN & McGHEE, Memphis, Tennessee
Attorney for Defendant/Appellant.
Stevan L. Black,
Kimberly Harris Jordan,
BLACK, BOBANGO & MORGAN, P.C., Memphis, Tennessee
Attorney for Plaintiff/Appellee.
OPINION FILED:
AFFIRMED AND REMANDED
FARMER, J.
CRAWFORD, P.J., W.S.: (Concurs)
HIGHERS, J.: (Concurs)
Judith Ann Taylor (“Wife”) filed a complaint for divorce against Michael Raymond
Taylor (“Husband”) and also sought an injunction prohibiting Husband from dissipating marital
assets. Husband filed an answer and counter-complaint for divorce. The trial court granted Wife
the divorce on the grounds of inappropriate marital conduct and awarded her rehabilitative alimony,
partial attorney fees, and 60% of the marital assets. Husband appeals and raises the following issues:
whether the trial court erred (1) in awarding Wife rehabilitative alimony of $1,300 per month for 60
months; (2) in ordering Husband to pay $20,000 as alimony in solido for Wife’s attorney fees; (3)
in ordering Husband to pay a portion of Wife’s health insurance coverage; (4) in requiring Husband
to maintain a life insurance policy which exceeds the total amount of child support owed; and (5)
in dividing the marital property of the parties. Wife submits the additional issue of whether she is
due attorney fees on appeal. For the reasons stated below, we find no error and affirm the trial
court’s judgment in all respects.
The parties were married in July, 1978 and separated in January, 1996. At the time
of the trial below, Husband was approximately 41 years old and Wife was approximately 38 years
old. The parties have two children who are now approximately 16 and 13 years of age. The trial
court awarded custody of both children to Wife.
Husband has a Bachelor’s Degree in Business Administration from Oklahoma State
University. At the time of the divorce, Husband was the Regional Director of Business Development
for APS with a salary of Seventy-Seven Thousand Six Hundred Dollars ($77,600) per year. Husband
had earned more substantial compensation in recent years, including approximately $160,000 in
1989, $100,506 in 1993, and $133,685 in 1994. Much of Husband’s compensation was in the form
of bonuses, the last of which was in March, 1996 for $17,500. Husband testified the company he
worked for was bought out and that he had to change positions to keep his job. As a result of the
change of position, Husband claims he is no longer entitled to any bonuses.
Wife attended Oklahoma State University for a year and a half, but does not have a
college degree. Wife’s work experience during the parties’ marriage is varied. Before the birth of
the parties’ first child, Wife worked full-time as a receptionist. After the birth of the children, Wife
worked as a fill-in receptionist for a medical clinic where she earned $10 per hour. After the parties’
separation, Wife took a job working 16 hours a week at $6.00 per hour as a file clerk at Federated
Insurance Company. Wife testified that she did not seek a full-time position because she felt it was
necessary to keep the children’s lives as stable as possible during the divorce.
I. Rehabilitative Alimony
Husband challenges the trial court’s award of $1,300 per month in rehabilitative
alimony to Wife. It is well established that the appellate courts should give much deference to the
trial court’s award of alimony. Jones v. Jones, 784 S.W.2d 349, 352 (Tenn. Ct. App. 1989).
Nevertheless, our review is de novo with a presumption of correctness for the factual findings of the
trial court. Tenn.R.App.P. Rule 13(d).
Our legislature has clearly established a preference for rehabilitative alimony. T.C.A.
§ 36-5-101(d)(1) (Supp. 1997). Our courts have affirmed this legislative policy by awarding
rehabilitative alimony whenever feasible. Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995), Self
v. Self, 861 S.W.2d 360, 361 (Tenn. 1993), Storey v. Storey, 835 S.W.2d 593, 597 (Tenn. Ct. App.
1992). The factors the court uses to determine whether rehabilitative alimony is proper in a given
set of circumstances are expounded in the statute as follows:
(A) 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;
(B) 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 earning capacity to a reasonable
level;
(C) The duration of the marriage;
(D) The age and mental condition of each party;
(E) The physical condition of each party, including, but not
limited to, physical disability or incapacity due to a chronic
debilitating disease;
(F) 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;
(G) The separate assets of each party, both real and personal, tangible
and intangible;
(H) The provisions made with regard to the marital property
as defined in § 36-4-121;
(I) The standard of living of the parties established during the
marriage;
(J) 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;
(K) The relative fault of the parties in cases where the court,
in its discretion, deems it appropriate to do so; and
(L) Such other factors, including the tax consequences to each
party, as are necessary to consider the equities between the parties.
Tenn. Code Ann. § 36-5-101(d)(1)(A)-(L) (Supp. 1997).
Our review of the record convinces us the trial court properly considered these factors
in its award of rehabilitative alimony. Husband’s main contention with the trial court’s award is that
the monthly amount he must pay is too high given the relative financial position of the two parties.
However, it is clear that Husband’s current earning capacity and overall financial position is much
better than that of Wife. Even after furthering her education and increasing her marketable skills,
Wife will be at a significant economic disadvantage compared to Husband. Weighing this factor
with the other factors to be considered, we cannot say the trial court erred in awarding rehabilitative
alimony in the amount of $1,300 per month for 60 months.
II. Attorney Fees
Husband challenges the trial court’s award of $20,000 alimony in solido to wife for
attorney fees. The decision to award attorney fees to a party in a divorce proceeding is within the
sound discretion of the trial court and will not be disturbed on appeal except upon a clear showing
of abuse of that discretion. Aaron, 909 S.W.2d at 411, accord Storey, 835 S.W.2d at 597.
Husband primarily contends that Wife was awarded sufficient assets to pay her own
attorney fees. The trial court awarded Wife 60% of the marital assets totaling approximately
$132,000. The trial court awarded Husband 40% of the assets totaling approximately $88,000. The
trial court also allocated to Husband all of the marital debts which totaled up to $31,000, not
including Wife’s attorney fee award. The most significant debt was a note to Husband’s grandfather
which Husband valued at $21,200 and Wife valued at $10,000. The difference in their respective
valuations is due to a dispute as to whether Husband’s grandfather had agreed to reduce the note to
include principal only.
In her ruling, the trial judge said, “I am not one to award attorney’s fees unnecessarily;
I’m not one to award large amounts of attorney’s fees generally . . . . In this case, however, I can’t
subscribe to that theory, . . .” We further note that the trial judge also considered the fact that
Husband had used some of the marital assets to pay his individual attorney fees. This issue will be
more fully developed later in this opinion. Given the circumstances which precipitated the award
of attorney fees, we cannot say the trial court abused its discretion in awarding Wife $20,000 in
attorney fees.
III. Health Insurance Coverage
Husband’s third issue is whether the trial court erred in ordering Husband to pay a
portion of Wife’s health insurance coverage. T.C.A. § 36-5-101(f)(1) reads as follows:
The court may direct the acquisition or maintenance of health
insurance covering each child of the marriage and may order either
party to pay all, or each party to pay a pro rata share of, the health
care costs not paid by insurance proceeds. The court may also direct
a party to pay the premiums for insurance insuring the health care
costs of the other party.
The statute gives the trial court broad discretion in determining whether to require one party to pay
the entire health insurance premiums of the other party. In this particular case, the trial judge only
required Husband to pay one half of Wife’s insurance premium. We find no error.
IV. Life Insurance Coverage
Husband alleges the trial court erred in requiring Husband to maintain a life insurance
policy which exceeds the total amount of child support owed. Husband was ordered to pay $1,481
per month in child support until the youngest child, age 11 at the time of trial, reaches the age of 18.
Husband argues that the total amount of child support due, i.e., $124,404, is well below the $300,000
amount of life insurance the trial court forced him to maintain to insure the payment of his child
support obligation.
The applicable statute is T.C.A. § 36-5-101(g) which reads:
The court may direct either or both parties to designate the
other party and the children of the marriage as beneficiaries under any
existing policies insuring the life of either party and maintenance of
existing policies insuring the life of either party, or the purchase and
maintenance of life insurance and designation of beneficiaries.
Husband does not cite us to any supporting authority for his contention. We read nothing in the
statute and find nothing in the case law which forces the trial court to limit the amount of Husband’s
life insurance to the amount of child support ordered by the court. The court directed that the
children were to be the irrevocable beneficiaries of this policy. Therefore, contrary to Husband’s
assertions, the death of Husband before the expiration of this policy would result in no windfall to
Wife.
V. The Division of Marital Property
“Trial courts have broad discretion in dividing the marital estate in a divorce case.
Accordingly, their decisions are entitled to great weight on appeal, and are presumed to be correct
unless the evidence preponderates otherwise.” Mondelli v. Howard, 780 S.W.2d 769, 772 (Tenn.
Ct. App. 1989) (citations omitted).
Husband challenges the trial court’s 60/40 division of assets. Husband’s first
subissue under this category is that he alleges the trial court’s division was in reality 64.22% to Wife
and 35.77% to him. Husband’s calculation is incorrect because it fails to account for approximately
$30,000 he received from one-half of the sale of the marital residence. Once that amount is added
to both Husband’s and Wife’s total assets, the percentage is very close to a 60/40 division. Our
courts have clearly stated that Tenn. Code Ann. § 36-4-121 (1996), the statute which authorizes the
division of marital assets, does not require the division of property to be equal in order to be
equitable. Ellis v. Ellis, 748 S.W.2d 424, 427 (Tenn. 1988). This first subissue is without merit.
Husband’s second subissue involves the trial court’s allocation of 100% of the marital
debt to Husband. Our court in Mondelli, supra, spoke at length about the factors which aid the trial
court in the allocation of marital debt. The court said:
Courts should apportion marital debts equitably in much the
same way that they divide marital assets. When practicable, the debts
should follow the assets they purchased.
Courts should consider the following factors when they divide
marital debts: (1) which party incurred the debt and the debt’s
purpose, (2) which party benefitted from incurring the debt, and (3)
which party is best able to assume and repay the debt.
Mondelli, 780 S.W.2d at 773 (citations omitted). Furthermore, the Mondelli court refused to adopt
a “mechanical approach” which would require the trial court’s distribution of debt to mirror the same
percentage the court used in the distribution of assets. Id.
The record reveals that the trial court was thoroughly familiar with the principles
which guide the allocation of marital debts. From our review, it appears the trial court properly
allocated the debts to Husband. The largest marital debt, a note to Husband’s grandfather, was for
the benefit of both parties. However, given the dispute over the value of the note and Husband’s
higher earning capacity, it was proper for the trial court to assign this debt to Husband.
Husband also raises the issue that the trial court primarily used Wife’s valuation of
marital assets instead of utilizing his valuation. The underlying issue here is one of credibility. The
trial court obviously found Wife to be the more credible witness and we think the record supports
this finding. Furthermore, the trial court has broad discretion in matters of credibility with which
appellate courts are hesitant to interfere. Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn.
1996).
Husband’s third subissue charges the trial judge with improperly considering
Husband’s use of a marital asset to pay personal debts. The asset at issue is an investment account
which held approximately $63,000 at one time. The trial court ordered these funds to be deposited
by Husband into a joint checking account to ensure that the funds would not be dissipated prior to
trial. Instead, Husband deposited the funds into an individual checking account in his name only.
With the court’s permission, Husband spent a portion of these funds to retire a second mortgage on
the marital residence and to pay joint credit card debt. However, approximately $4,000 of the funds
were used to pay Husband’s individual attorney fees and the remaining balance was also depleted
prior to trial.
The trial court heard testimony from Husband as to why he had disobeyed the court’s
order by placing the funds into an individual account rather than a joint account. Part of Husband’s
justification related to his compliance with conflicting or confusing instructions from the court-
appointed Divorce Referee. After weighing all the evidence, the trial judge elected not to find
Husband in contempt. However, the trial judge did consider the dissipation of this marital asset
when allocating the marital assets and the marital debt. In our view, this was within the trial court’s
discretion and the issue is without merit.
VI. Attorney Fees on Appeal
Wife requests the court award her reasonable attorney fees on appeal. While Wife
was successful in defending each issue Husband raised on appeal, we do not feel that an award of
attorney fees is warranted under the circumstances. Costs in this cause on appeal are taxed to
Husband for which execution may issue if necessary.
____________________________________
FARMER, J.
______________________________
CRAWFORD, P.J., W.S. (Concurs)
______________________________
HIGHERS, J. (Concurs)