CHARLES LORIA, )
)
Plaintiff/Appellant, )
) Franklin Chancery
) No. 22182
VS. )
) Appeal No.
) 01-A-01-9609-CH-00441
FLORENCE M. LORIA, )
)
Defendant/Appellee. )
FILED
March 12, 1997
IN THE COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
MIDDLE SECTION AT NASHVILLE Appellate Court Clerk
APPEAL FROM THE CHANCERY COURT OF WILLIAMSON COUNTY
AT FRANKLIN, TENNESSEE
HONORABLE CORNELIA A. CLARK, CHANCELLOR
Mark W. Henderson
P.O. Box 8822
Gallatin, TN 37066
ATTORNEY FOR PLAINTIFF/APPELLANT
William Carter Conway
236 Court Square
Franklin, TN 37064
ATTORNEY FOR DEFENDANT/APPELLEE
MODIFIED AND REMANDED
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
SAMUEL L. LEWIS, JUDGE
WILLIAM C. KOCH, JR., JUDGE
CHARLES LORIA, )
)
Plaintiff/Appellant, )
) Franklin Chancery
) No. 22182
VS. )
) Appeal No.
) 01-A-01-9609-CH-00441
FLORENCE M. LORIA, )
)
Defendant/Appellee. )
O P I N I O N
In this appeal by the husband from a divorce decree, the only issue is the award of
alimony in futuro rather than rehabilitative alimony. Subordinate issues are the ability of the
wife to work, her needs, and the ability of the husband to supply her needs.
At the time of the divorce, each of the parties was 56 years old; they had been married
for 35 years and separated for 2-1/2 years; and their children were adults. The husband
received a monthly retirement of $2,442.10 and earned $2,499.40 per month from his present
employment. The wife was a homemaker during the marriage and worked only at brief
intervals. She claims disability for work. The parties owned two residences, four vehicles,
and other personalty which were divided to their satisfaction.
As pertinent to this appeal, the divorce decree provided:
1. The parties were declared to be divorced pursuant to T.C.A. § 36-4-129. (No
fault determined.)
2. Husband was ordered to pay alimony in futuro of $3,000.00 per month until
wife’s death, remarriage or modification or termination by the Court.
3. Wife was awarded one-half of husband’s pension.
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4. Wife was awarded one-half of husband’s interest in the stock in his company.
On appeal, the husband insists that the award of periodic alimony was inconsistent
with T.C.A. § 36-5-101(d)(1) which states:
It is the intent of the general assembly 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, temporary support and maintenance.
Where there is such relative economic disadvantage and rehabi-
litation is not feasible in consideration of all relevant factors,
including those set out in this subsection, then the court may
grant an order for payment of support and maintenance on a
long-term basis or until the death or remarriage of the recipient
except as otherwise provided in subdivision (a)(3). Rehabilita-
tive support and maintenance is a separate class of spousal
support as distinguished from alimony in solido and periodic
alimony. In determining whether the granting of an order for
payment of support and maintenance to a party is appropriate,
and in determining the nature, amount, length of term, and
manner of payment, the court shall consider all relevant factors,
including:
(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 educa-
tion 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 Sec. 36-4-121;
(I) The standard of living of the parties established
during the marriage.
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(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.
(2) An award of rehabilitative, temporary support and main-
tenance shall remain in the court’s control for the duration of
such award, and may be increased, decreased, terminated,
extended, or otherwise modified, upon a showing of substantial
and material change in circumstances. Rehabilitative support
and maintenance shall terminate upon the death of the recipient.
Such support and maintenance shall also terminate upon the
death of the payor unless otherwise specifically stated. The
recipient of the support and maintenance shall have the burden
of proving that all reasonable efforts at rehabilitation have been
made and have been unsuccessful.
Alimony in futuro is a designation of alimony paid periodically, as distinguished from
alimony in solido which is paid in a single lump sum of cash or property. Alimony in futuro, or
periodic alimony is subject to the continuing control of the Trial Court, whereas alimony in
solido or lump sum alimony is generally considered a final judgment, ordinarily unchangeable
by the court after expiration of the time for appeal.
Alimony in futuro may be made subject to limitations or conditions, but it nevertheless
remains subject to the control of the court. In this respect, rehabilitative alimony may be
considered a species of alimony in futuro. It is paid periodically and remains subject to the
control of the court. It distinguishing characteristic is the purpose for which it is awarded, which
is to provide a temporary income during a period of adjustment and effort of the dependent
spouse to become partially or totally self sufficient. During this period, the Court retains the
authority to make appropriate adjustments in keeping with changing circumstances and
developments.
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If a dependent spouse does not satisfactorily strive for self sufficiency, the Court may
withdraw part or all of the support allocated to finance rehabilitation. If the dependant spouse
demonstrates complete inability to achieve even partial self sufficiency, the Court may grant
alimony in futuro to provide for the needs of the dependent spouse.
If the dependent spouse achieves partial self sufficiency but demonstrates inability to
achieve total self sufficiency, the Court may grant sufficient alimony in futuro to supplement the
earning capacity of the dependent spouse.
Of course, all of the foregoing must be administered within the capability of the
supporting spouse to provide the needed support.
In the present case, the first factual question to be answered is, what are the needs of the
dependent spouse? Other than fixing the amount of the alimony, the Trial court expressed no
finding as to the amount of the wife’s needs.
On May 2, 1995, the wife signed a statement reflecting a need for $720.00 per month.
The items listed thereon were:
Groceries $ 250.00 Laundry $ 10.00
Clothing 75.00 Dry Cleaning 20.00
Gasoline 80.00 Haircuts/Hair care 25.00
Gifts 25.00 Entertainment 100.00
Miscellaneous
75.00
Church Contribution 50.00
Books & Magazines 10.00
Sub Total $720.00
Installment debts not included in above schedule: Unpaid Monthly
Balance Payments
Furniture $______ $______
Car Note _______ _______
Appliances _______ _______
Mortgage Note _______ _______
Hospital _______ _______
MasterCard _______ _______
Sub Total _______ _______
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Total Monthly Payout $720.00
On July 24, 1995, the wife signed a statement reflecting needs of $3,153.00 per month
consisting of the following:
Rent $ Laundry $10.00
Gas Heat 75.00 Dry Cleaning 20.00
Electric Bill 130.00 Haircuts/Hair care 45.00
Water 47.00 Babysitter/Day care
Telephone 95.00 Life Insurance 50.00
Groceries & Eating Out 450.00 Property Insurance
Cable 22.00 Hospital Insurance - Husband to pay
Recreation 104.00 Doctors 75.00
Clothing 125.00 Dentists 35.00
Auto Insurance 75.00 Drugs & Health Supplies 30.00
Gasoline 120.00 Entertainment
Other Auto Expense 50.00 Miscellaneous
100.00
Home Maintenance and Church Contribution 30.00
Furniture Replacement 230.00 Books & Magazines 20.00
Gifts 80.00 Pest Control/Trash Pickup 50.00
Taxes on Alimony 400.00 Pet Expenses 30.00
Vacation & Travel 100.00
Sub Total $2,598.00
Unpaid Monthly
Installment debts not included in above schedule: Balance Payments
Mortgage Note $_______ $ 555.00
MasterCard - $5,130 (Wife is asking that husband pay)
Vanderbilt Medical Clinic (approximately $600 - wife
has given bills to husband.)
Sub total $_______ $ 555.00
Total Monthly Payout $3,153.00
The latter statement acknowledged receipt of $1,207.38 per month from husband’s
retirement. Thus, the net needs of the wife reflected by the latter statement were $3,153.00
minus $1,207.38, or $1,945.62. Moreover, the mortgage payment would terminate upon sale of
the home which would create a need to purchase another home or pay rent. The value of the
equity in the two homes was stipulated to be $185,000, so that the wife’s expectation from the
sale of the homes would be approximately $90,000.00, the price of a modest home or the source
of approximately $500.00 per month income.
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It appears from the latter statement of the wife that her needs are approximately
$2,000.00 per month.
As to the ability of the husband to pay, the Trial Court made no specific finding. On July
25, 1995, the husband signed a statement reflecting monthly income (including retirement) of
$3,706.90. A total of $3,493.08 expenses were listed, including:
REGULAR MONTHLY EXPENSES:
A. General Expenses:
1. Rent or mortgage, including taxes and insurance
TN Home Apartment Cottage
$553.42 $435.00 $138.66
2. Utilities: Water TN/Apt/Cottage; Gas 0/$100.00
Electric $100/100/35 Tel $40/30
Total Utilities $140.00 + $75
3. Car operation (gas, oil, repair, ins.) $ 216.00
4. Insurance (life and other) for Christine & Candice $ 85.00
5. Installment contracts and monthly payments:
Personal loans ___________; Auto $ 375
Household ins. on cottage $27.00 Other
Furniture payment $333.00 for 6 months
Total Installment Contracts $ 735.00
TN Apt Cottage
General Expense Total $653.42 $575.00 $203.66
B. Other Expenses (monthly) Myself Children
1. Food $600.00
2. Clothing 50.00
3. Medical, Dental & Drugs 200.00
4. Laundry & Cleaning 35.00
5. Recreation (specify) 100.00
6. School expenses 0
7. Babysitting/other child care 0
8. Beauty or Barber Shop 10.00
9. Other (Specify)
10. Other - Cable 30.00
11. Other
Sub Totals
TOTAL $ 1,025 Expense $ 3,493.08
(Monthly)
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The items of rent on three residences are not reasonable. The item of automobile expense
should be covered by husband’s admitted “monthly expense check.” With adustments for the
unreasonable items, the statement reflects $3,706.90 income and approximately $1,700 per
month expense, which leaves the ability to pay $2,000.00 per month.
Accordingly, the alimony in futuro for the first 36 months should be reduced to $2,000.00
per month. This alimony is to be considered “rehabilitative” in the sense that it is intended to
provide for the wife during which she is expected to make a reasonable effort to become self
sustaining. The award is “temporary” in the sense that it will not continue beyond 36 months
unless the Trial Court finds, upon further application and hearing, that, after reasonable efforts
to become self sustaining, the wife has been unable to do so and that a continuation of periodic
alimony in some amount is necessary and proper.
The judgment of the Trial Court is modified to grant the wife periodic alimony of
$2,000.00 per month for 36 months, and to reserve the jurisdiction to extend, modify or
terminate alimony according to the circumstances demonstrated to the Trial Court.
In its discretion, this Court assesses the costs of this appeal against the husband. The
cause is remanded to the Trial Court for entry of judgment consistent with this opinion and for
further appropriate proceedings.
MODIFIED AND REMANDED
___________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________
SAMUEL L. LEWIS, JUDGE
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_____________________________
WILLIAM C. KOCH, JR., JUDGE
-9-
Loria v. Loria
Combined Opinion