Stockman v. Stockman ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
TOMMY EUGENE STOCKMAN, ) FILED
)
Petitioner/Appellant, ) Appeal No.August 17, 1999
) 01A01-9801-CH-00026
Cecil Crowson, Jr.
v. ) Appellate Court Clerk
) Williamson County Chancery
DORIS LORAINE STOCKMAN ) No. 23065
)
Respondent/Appellee. )
)
COURT OF APPEALS OF TENNESSEE
APPEAL FROM THE CHANCERY COURT
FOR WILLIAMSON COUNTY
THE HONORABLE HENRY DENMARK BELL PRESIDING
GEORGE M. ALLEN
WISCHHOF & ALLEN
GLANCY SQUARE, SUITE 207
110 GLANCY STREET
GOODLETTSVILLE, TN 37072
ATTORNEY FOR PETITIONER/APPELLANT
DENISE ANDRE
415 BRIDGE STREET
P.O. BOX 1022
FRANKLIN, TN 37065
ATTORNEY FOR RESPONDENT/APPELLEE
AFFIRMED & REMANDED
PATRICIA J. COTTRELL, JUDGE
CONCUR:
CANTRELL, J.
CAIN, J.
OPINION
In this appeal, Tommy Eugene Stockman ("Husband") seeks to be
relieved from his obligation to pay rehabilitative alimony to his former wife,
Doris Loraine Stockman ("Wife"). In support of his request, Husband asserts that
Wife’s cohabitation with another man terminates his obligation, that Wife has no
need for the rehabilitative alimony, and that Wife has made no efforts at
rehabilitation. Under the Marital Dissolution Agreement, which was
incorporated into the final order of divorce, Husband agreed and was ordered to
pay rehabilitative alimony in the amount of $1,000.00 per month for 120 months
or until Wife’s death or remarriage. He made the first 30 alimony payments, and
then brought this action maintaining that his obligation should be terminated.
After an October 7, 1997 trial, the trial court denied Husband’s petition.1 We
affirm.
The parties were divorced on April 13, 1995, on the ground of
irreconcilable differences. At that time, Husband was earning approximately
$60,000 annually. Wife, then 57 years old, suffered from two chronic health
problems, a degenerative bladder condition and fibromylasia, a condition which
affected her muscles and tendons and rendered her unable to stand for long
periods of time. She had a high school education and had worked as a secretary
and bookkeeper for 35 years. At the time of the divorce, she earned
approximately $21,759 per year.
From June to December 1995, Wife co-owned a jewelry business with
her daughter while maintaining her employment as a secretary/bookkeeper.
Sometime between July and December 1996, however, Wife lost the latter job
1
Because the trial was not transcribed, the parties rely on a Statement of
Evidence, which was modified and approved by the trial court.
-2-
when her employer went out of business. She received unemployment
compensation for approximately six months while she sought another job.
During that time, she purchased a home computer and computer manuals to
upgrade her skills. Wife eventually accepted employment in a retail store.
Because she was unable to stand on her feet for hours at a time due to her
illnesses, she was forced to quit that job after one week. Since June 1997, Wife
has worked at Barnes Plumbing at a yearly salary of $23,400. Her job provides
no benefits.
Since the divorce, Wife has entered into a relationship with another
man. The two possess a joint checking account, jointly purchased a residence in
May 1996, and were living together at the time of the trial herein.
I.
Husband first maintains that his obligation to pay alimony must cease
because cohabitation is tantamount to remarriage, an act which would have
terminated Wife's alimony under the Marital Dissolution Agreement. Neither the
Marital Dissolution Agreement nor the final decree appears in the record on
appeal. However, both parties agree, and the Statement of the Evidence
provides, that the agreement provided for Husband to pay “rehabilitative
alimony” of $1,000 per month for 120 months, beginning May 1, 1995, and
ending upon payment in full or Wife’s death or remarriage.
We reject Husband’s assertion that cohabitation is equivalent to
remarriage for purposes of terminating the alimony under the agreement. The
language used by parties to an agreement must be given its usual and ordinary
meaning when interpreting a contract. See Bob Pearsall Motors, Inc. v. Regal
Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn. 1975). Remarriage means
-3-
another marriage, nothing less. The law gives unique status and effect to
marriage and does not apply the same benefits and burdens to other types of
relationships. See, e.g., Tyler v. Tyler, 671 S.W.2d 492, 494 (Tenn. App. 1984);
Tenn. Code Ann. § 36-4-121(b)(1) (1996). This Court cannot and will not insert
an additional condition for termination which the parties did not contemplate at
the time of the agreement. Cohabitation is not tantamount to marriage, and the
Marital Dissolution Agreement dictates only that remarriage or death will
terminate the support agreement. Therefore, Husband’s first argument must fail.
II.
Husband next maintains that Tenn. Code Ann. § 36-5-101(a)(3) (Supp.
1998) justifies termination of the rehabilitative spousal support. That statutory
provision creates a rebuttable presumption that the recipient of “alimony in
futuro” who lives with a third person is either receiving support from the third
person or is contributing to the third person’s support and no longer needs the
previously awarded alimony. Tenn. Code Ann. § 36-5-101(a)(3). Once the
presumption arises, the alimony recipient bears the burden of demonstrating a
need for the previously awarded alimony, notwithstanding the cohabitation.2
Azbill v. Azbill, 661 S.W.2d 682, 686 (Tenn. App. 1983).
Husband further argues that Wife garners significant financial benefit
from cohabitating with another man, giving evidentiary support to the legal
presumption that Wife no longer requires the amount of support previously
awarded. Wife responds that the rebuttable presumption that a spouse
cohabiting with a third party no longer needs alimony applies only to alimony
2
Tenn. Code Ann. § 365-101(a)(3), where applicable, merely shifts the
evidentiary burden in a modification proceeding; it does not require termination
of support. Isbell v. Isbell, 816 S.W.2d 735, 738 (Tenn. 1991).
-4-
in futuro.
By its terms, the statutory presumption applies “where a person is
receiving alimony in futuro.” Tenn. Code Ann. § 36-5-101(a)(3). In Isbell v.
Isbell, 816 S.W.2d 735 (Tenn. 1991), the Supreme Court determined that the
presumption created in subsection (a)(3) was applicable only to long-term,
permanent alimony and not to temporary rehabilitative support, which at that
point in time was a judicially-created type of alimony. Id. at 738.
In 1993, the General Assembly amended Tenn. Code Ann. § 36-5-101to provide as follows: “Rehabilitative support and maintenance is a separate
class of spousal support as distinguished from alimony in solido and periodic [in
futuro] alimony.”3 1993 Tenn. Pub. Acts, ch. 243. Because this provision
specifically differentiates rehabilitative support from the other two kinds of
support, the legislature cannot be presumed to have intended that the term
“alimony in futuro” include rehabilitative support.
In Rust v. Gerbman, No. 01-A-01-9608-CH-00361, 1997 WL 266844at *4 (Tenn. App. May 21, 1997) (no Tenn. R. App. P. 11 application filed), this
court rejected the argument that subsection (a)(3) applies to rehabilitative
alimony. The court noted that the statute itself refers specifically to alimony in
futuro, not to rehabilitative alimony, “and that the two forms of modifiable
alimony are based on opposite findings as to the possibility of the obligee spouse
becoming capable of providing his or her own support.” Rust v. Gerbman, 1997
3
As the law now stands, awards of alimony may be in solido (for a definite
amount), in futuro (for an indefinite total amount over an indefinite amount of
time), or rehabilitative. Alimony in solido reflects a goal of certainty and finality
though an award of monthly payments for a definite period with no conditions
or terminating factors. See Self, 861 S.W.2d at 362. It is not modifiable. See id.
Alimony in futuro, which is modifiable, continues support that was incident to
the marital relationship. See id.
-5-
WL 266844 at * 5. Thus, Tenn. Code Ann §36-5-101(a)(3) does not apply to
rehabilitative support.
As implied in Gerbman, because of the 1993 amendment, the question
for this court is no longer whether the award is more like alimony in solido or
alimony in futuro. The only question is whether the instant award is, in fact,
rehabilitative support and maintenance.
Correctly categorizing the type of alimony awarded in a particular
situation may be challenging. See Rust v. Gerbman, 1997 WL 266844 at *4.
Prior to the statutory establishment of rehabilitative support as a separate
classification of alimony, our courts generally considered duration and
definiteness when seeking to classify a particular award, usually for the purpose
of determining its modifiability. However, in Towner v. Towner, 855 S.W.2d
888 (Tenn. 1993), our Supreme Court found that the purpose of the award, rather
than its contingencies or method of payment, was the determinative factor.
Similarly, in Self v. Self, 861 S.W.2d 360 (Tenn. 1993), the Court stated:
Mrs. Self insists, and the Court of Appeals held, that since
the decree provides that the payments will terminate upon
Mrs. Self’s death or remarriage, the uncertainty of the
duration of the payments prevents the award from being
characterized as in solido. This argument gives credence to
form rather than substance. Even though some prior
decisions have distinguished awards as in solido or in futuro
by the definiteness of the term of the award, that distinction
actually reflects the essential purpose of each
award–rehabilitative support is designed to accomplish a
stated result within a limited time, while in futuro support
continues the support that was incident to the marriage
relationship.
Self, 861 S.W.2d at 361-362.
Like the two other types of alimony, the distinguishing characteristic
of rehabilitative alimony is its purpose, which is “to provide a temporary income
-6-
during a period of adjustment and effort of the dependent spouse to become
partially or totally self-sufficient." Loria v. Loria, 952 S.W.2d 836, 838 (Tenn.
App. 1997). In other words, rehabilitative alimony is intended to enhance an
individual's capacity to function independently and achieve economic security.
See Smith v. Smith, 912 S.W.2d 155, 160 (Tenn. App. 1995).
Here, the parties in the Marital Dissolution Agreement and the trial
court, by incorporating that agreement, identified the support as rehabilitative.
Husband’s petition for modification made the same characterization. The support
was set for a specific duration. The record herein does not include the final
decree or the Marital Dissolution Agreement. However, the Statement of
Evidence provides, “at the time of the entry of the final decree of divorce, and
as noted in the Marital Dissolution Agreement, there was a disparity in the
‘earning capacity’ of the Parties and a need for rehabilitative alimony by the
Respondent.” We are unable to review any further findings by the trial court or
any further statements of intention by the parties regarding the initial award of
alimony. However, there is nothing in the record before us to indicate that the
purpose of the rehabilitative alimony award was other than to enhance Wife’s
ability to become economically self-sufficient. At the time of divorce, Wife was
57 years old and had been employed for 35 years, and the parties apparently
agreed that ten years of support would give her the opportunity to become
independent of Husband’s support as she approached retirement.
The law professes a distinct preference for rehabilitative alimony
“whenever possible,” and it is the type of support to be awarded unless the trial
court finds that rehabilitation is not feasible. Tenn. Code Ann. §36-5-101(d)(1).
This record contains no such findings. These circumstances convince us that the
-7-
alimony is rehabilitative. Therefore, Tenn. Code Ann. §36-5-101(a)(3)’s
rebuttable presumption does not apply to the award of rehabilitative alimony
herein and, therefore, does not shift the evidentiary burden to Wife to prove she
still needs the support.
III.
Notwithstanding the non-applicability of the statutory presumption
arising from cohabitation, we must consider Husband’s assertion that the
evidence regarding the economic impact of his former wife’s cohabitation
demonstrates that she no longer needs the spousal support she receives from him.
It is now clear that an award of rehabilitative alimony remains
modifiable by the courts. Tenn. Code Ann. § 36-5-101(d), in pertinent part,
provides:
An award of rehabilitative, temporary support and
maintenance shall remain in the court’s control for the
duration of such award, and may be increased, decreased,
terminated, or extended, or otherwise modified upon a
showing of substantial and material change in circumstances.
Thus, the courts retain authority during the period of rehabilitation to
modify the award as changing circumstances may require. See Self v. Self, 861
S.W.2d at 363; Loria v. Loria, 952 S.W.2d at 838; see also Wiseman v.
Wiseman, No. 03A01-9612-CV-00392, 1997 WL 418495 at *2 (Tenn. App.,
July 28, 1997) (Tenn. R. App. P. 11 application denied); Sommerville v.
Sommerville, No. 01-A-01-9502-CV-00070, 1995 WL 498943 at * 1 (Tenn.
App., August 23, 1995) (no Tenn. R. App. P. 11 application filed).
Because support decisions are factually driven and involve considering
and balancing numerous factors, we give wide latitude to the trial court’s
-8-
discretion. See Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. App. 1989).
We review a trial court’s decision according to the familiar Tenn. R. App. P. 13
(d) standard, and we will uphold the trial court’s decision unless it is based on
an improper application of the law or is against the preponderance of the
evidence. See id.; Luna v. Luna, 718 S.W.2d 673, 675 (Tenn. App. 1986).
Ordinarily our review is de novo with a presumption that the trial court's factual
findings are correct. See Tenn. R. App. P. 13 (d). However, the trial court's
failure to make findings of fact leaves nothing to which the presumption of
correctness can attach. Accordingly, in this case, our review is de novo without
a presumption of correctness. See Goodman v. Memphis Park Comm'n, 851
S.W.2d 165, 166 (Tenn. App. 1992); Kelly v. Kelly, 679 S.W.2d 458, 460 (Tenn.
App. 1984).
By statute, increases, decreases, terminations, extensions or other
modifications of rehabilitative alimony may be granted only upon a showing of
substantial and material change in circumstances.4 See Tenn. Code Ann. §36-5-
101(d); Brewer v. Brewer, 869 S.W.2d 928, 935 (Tenn.. App. 1993); Cranford,
772 S.W.2d at 50. In order to be material, a change in circumstances must have
been unforeseeable at the time of the decree. See McCarty v. McCarty, 863
S.W.2d 716, 719 (Tenn. App. 1992); Elliot v. Elliot, 825 S.W.2d 87, 90 (Tenn.
App. 1991). The party seeking the modification bears the burden of proving the
4
The wording of this statutory requirement is the same as that required for
a modification of alimony in futuro. Tenn. Code Ann. §36-5-101(a)(1)
(Supp.1998). Thus, cases regarding substantial and material change of
circumstances have some applicability in requests for modification of
rehabilitative support. Because, however, the two types of support differ in their
purposes, a different analysis may be required as to some issues.
-9-
modification is warranted.5 Seal v. Seal, 802 S.W.2d 617, 620 (Tenn.
App.1993).
Because support can be ordered in the first place only where one spouse
is economically disadvantaged relative to the other spouse, Tenn. Code Ann. §
36-5-101(d)(1), the material change of circumstances analysis should include,
at a minimum, consideration of whether there has been significant change in the
economic disparity between the parties.
The only evidence in the record relevant to the parties’ economic
situations is the following: Wife’s income from employment was $21,750 at the
time of the divorce and was $23,400 at the time of the hearing on modification,
but her current employment did not provide benefits such as health insurance.
It is unclear from the record whether the effect of the lack of benefits was, in
actuality, a net reduction in salary. 6 In any event, a modest increase in salary
cannot be said to be unanticipated at the time of the divorce. See Norvell v.
Norvell, 805 S.W.2d 772, 775 (Tenn. App. 1990). Further, even in alimony in
futuro situations, a recipient’s increased income alone is not sufficient to warrant
reducing or terminating support. See McCarty, 863 S.W.2d at 720; Norvell, 805
S.W.2d at 775. Husband’s salary has remained approximately $60,000. Thus,
there remains a significant disparity between the incomes earned by the parties.
Wife is still economically disadvantaged relative to Husband. Of course, the
basis for Husband’s request for termination is not a change in the incomes of
either of the parties; it is his assertions regarding the impact of Wife’s
5
In section II of this opinion, we have determined that the burden-shifting
presumption arising from cohabitation, by virtue of Tenn. Code Ann. § 36-5-
101(a)(3), does not apply to this award of rehabilitative alimony.
6
Wife’s expenses at the time of hearing included payment for health
insurance coverage under COBRA.
-10-
cohabitation.
In Isbell v. Isbell, 816 S.W.2d at 735, the Supreme Court rejected the
argument that remarriage is by its nature rehabilitative and held that remarriage
itself did not warrant termination of rehabilitative alimony, stating, “The
presumption that the state of marriage in and of itself meets the economic needs
of the female, or indeed of either spouse, is an antiquated presumption that may
not be indulged in modern society,” Isbell, 816 S.W.2d at 739. Similarly, in
Gregory v. Gregory, No. 03A01-9503-CH-00093, 1995 WL 447786 (Tenn. App.
July 31, 1995) (no Tenn.R.App.P. 11 application filed), this court held that
remarriage does not constitute a change of circumstances sufficient to warrant
termination of rehabilitative alimony. Based on the reasoning of these holdings,
we are of the opinion that cohabitation, in and of itself, does not constitute a
change of circumstance sufficient to trigger a review of an award of
rehabilitative support. The critical factor is not the cohabitation itself, but the
economic impact on the recipient former spouse of any financial contribution
from the cohabitee.
With regard to the economic effects of Wife’s relationship with another
man, the record is scanty. The fact that the couple share a joint bank account
does not prove that Wife has benefitted financially from that arrangement.
Similarly, although the record shows that the residence was jointly purchased in
March of 1997, for approximately $140,000, as tenants in common with the right
of survivorship, joint ownership of the residence does not establish that wife
enjoys economic benefit. The couple paid monthly installments of $1300 on the
residence, and Wife’s income and expense statement reflects a monthly expense
of $690 for the mortgage. According to Wife’s income and expense statement,
-11-
her income (including the rehabilitative support) exceeds her expenses by only
$65 per month. We have no information regarding Wife’s monthly expenses at
the time of the divorce; therefore, the record does not show a substantial
decrease in her expenses. Further, the record contains no information regarding
other financial assets (other than the condominiums discussed separately below)
or the distribution of assets such as pension funds at the time of the divorce.
IV.
Husband’s primary point involves Wife’s ownership and renting out of
two condominiums. Husband claims that because Wife is able to live in the
residence she co-owns, she is “free to invest in and rent out at least two other
properties and to benefit from their increase in equity.” In this argument,
Husband asserts that the economic benefits Wife enjoys from living with
someone else allow her to improve her overall economic situation through
accumulation of assets (the equity).
The record does not fully reflect all the circumstances surrounding Wife’s
acquisition of these properties. However, Husband quitclaimed his interest in
one condominium to Wife at the time of their divorce, and the quitclaim deed
includes an affidavit that the deed was executed and delivered in accordance
with the Parties’ Marital Dissolution Agreement and Final Decree of Divorce.7
An increase in the value of assets acquired in a division of marital property is
foreseeable and, therefore, does not constitute a substantial and material change
7
Husband’s argument also implies that Wife would be living in this
condominium if she had not co-purchased the house where she currently resides.
Neither the record nor Husband’s argument addresses the mortgage payments
Wife would have made on the condominium, i.e., whether those payments would
have been greater or less than the amount she currently pays toward the house.
Husband does acknowledge that mortgage payments are still due on the
condominium as Wife rents it for an amount sufficient to cover those payments.
-12-
of circumstances. See Norvell, 805 S.W.2d at 775. The record includes a
quitclaim deed from a previous co-owner (with Wife) of another condominium
dated June 30, 1995, but contains no further information about Wife’s
acquisition of partial and then total ownership interest in this property.
An unforeseeable substantial change of circumstances justifying
modification of a support award has often, in the context of alimony in futuro,
been interpreted to require a change in the recipient’s need or the payor’s ability
to pay, or both. See Bowman v. Bowman, 863 S.W.2d 563, 568 (Tenn. App.
1991). Those principles have applicability to rehabilitative alimony; however,
the concept of “need” in this situation must be analyzed with reference to the
purposes and goals of rehabilitative alimony, which differ from those of alimony
in futuro.
The concept of rehabilitation in ordinary usage
involves the process of restoring an individual . . . to
a useful and constructive place in society through
some form of vocational . . . retraining or through
relief, financial aid, or other reconstructive measure.”
Webster’s Third New International Dictionary 1949
(1961). In legal parlance and in connection with
alimony, rehabilitation “contemplates sums necessary
to assist a divorced person in regaining a useful and
constructive role in society through vocational or
therapeutic training or retraining and for the further
purpose of preventing financial hardship on society or
individual during the rehabilitative process.” Black’s
Law Dictionary 1157 (5th ed. 1979). Both definitions
contemplate the enhancement of an individual’s
capacity to function independently and with economic
security in society. Likewise, the statute in question
expresses the General Assembly’s intent that the
economically disadvantaged spouse be rehabilitated
whenever possible and provides guidelines for the
court to consider when “determining the nature,
amount, length of term, and manner of payment.” The
concept of rehabilitation in the statute is the
improvement of one’s present and future capacity to
function independently in society.
-13-
Isbell, 816 S.W.2d at 738-38 (quoting from Gerlach v. Gerlach, 1988 WL
102744 at *3 (Tenn. App. October 6, 1988). Rehabilitative alimony has
also been described as providing “a temporary income during a period of
adjustment and effort of the dependent spouse to become partially or totally self-
sufficient.” Loria, 952 S.W.2d at 838.
A gradual improvement in the recipient’s economic situation during the
adjustment period is not only foreseeable, it is the expectation and the goal of
rehabilitative alimony. The concept of a change in the recipient’s “need” in the
context of rehabilitative alimony must be viewed from that perspective.
Husband has alleged some non-defined increase in Wife’s financial condition by
her accumulation of equity in the two rental properties. However, he has failed
to establish that this equity interest has rendered Wife economically self-
sufficient.8 Since the equity accumulation indicates a gradual and incremental
improvement in Wife’s financial condition, it cannot be said to have been
unforeseeable at the time Husband executed the Marital Dissolution Agreement.
Changes in circumstances are not material if the parties contemplated them when
entering into an agreement regarding support. See Givler v. Givler, 964 S.W.2d
at 902, 906 (Tenn. App. 1997). An attempt by the obligor to shorten the period
of rehabilitation will not be successful where an incremental improvement in
financial condition is all that is shown or alleged.
Therefore, we find that Husband has failed to establish a material change
of circumstance since the entry of the final divorce decree which would warrant
8
Husband objects to Wife’s accumulation of assets, when, in fact, a
continuing increase in her assets is the very event which could make her more
self-sufficient and reduce the possibility of his 10-year obligation being
converted to a permanent in futuro obligation at the end of the rehabilitation
period. See Loria, 959 S.W.2d at 838.
-14-
consideration of termination of the rehabilitative support he agreed to pay.
V.
In addition to asserting that the benefit accruing to Wife from the
increasing equity in the two condominiums obviates her need for continued
support, Husband alternatively argues that such investment in rental property
does not constitute sufficient rehabilitative efforts on Wife’s part to justify
continuation of rehabilitative alimony.9 Husband asserts that Wife’s only
rehabilitative efforts were the purchase of a computer and some computer
manuals, which were insufficient to meet the statutory requirement of
reasonableness. Wife asserts her successful re-employment efforts and her real
estate investments are reasonable rehabilitative efforts.
Tenn. Code Ann. § 36-5-101(d)(2) requires recipients of rehabilitative
alimony to make “reasonable” efforts at rehabilitation. “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.” Loria, 952 S.W.2d at
838. On the other hand, if the dependent spouse achieves partial self-
sufficiency, but demonstrates an inability to be totally self supporting, courts
may grant alimony in futuro to supplement the spouse’s earning capacity. See
id.Some grants of rehabilitative alimony have been based upon specific
rehabilitative goals, e.g., obtaining a college education. However, the statute
itself does not limit rehabilitative measures to education and training, and there
is nothing in the record to indicate such a specific purpose in this case. In the
9
Husband’s earlier argument that Wife has improved her financial
condition to the point she no longer needs support obviously creates problems
for his argument that Wife must prove that her rehabilitative efforts have been
unsuccessful.
-15-
situation of Wife herein, who was 57 years old at the time of divorce and had
been employed for 35 years, it would not have been realistic to expect her to
obtain training or education in a new field, launch a new career, and attain
enough success in it to enable her to prepare financially for her retirement if she
could hope to retire around the customary age.
While working at the job she had at the time of the divorce, Wife
attempted to increase her earnings by working toward advancement. In fact, her
salary was increased from $21,750 to $24,300 in her position at that company.
However, Wife lost her job when that company closed, a setback unanticipated
by either party. During her unemployment, Wife purchased the computer and
manuals to upgrade her skills so that she could find another job. She also sent
out resumes at the rate of 10 to 15 per week for seven months. She briefly tried
working in a retail store, but her health problems made continuation impossible.
She succeeded in obtaining a new position, at a salary slightly higher than the
salary she was earning at the time of the divorce. There is nothing in the record
to indicate that Wife is capable of finding suitable employment at a significantly
greater salary, although she continues to look for opportunities with better
economic prospects.
Based upon Wife’s situation, her efforts to upgrade her skills to allow her
to advance monetarily in the occupation where she had 35 years of experience,
as well as her efforts to find another job after her employer closed, were
unquestionably reasonable. To expect her to completely retrain for a new
occupation would, in our opinion, be unreasonable. Since the purpose of
rehabilitative alimony is “the improvement of one’s present and future capacity
to function independently,” the gradual improvement of Wife’s financial
-16-
condition through real estate or other investments is also reasonable. In any
event, we think Wife herein has made efforts which were reasonable in her
situation; however, she continues to need the rehabilitative support ordered by
the court and agreed to by Husband. See Wiseman, 1997 WL 418495 at *2.
Because Wife proved that she made reasonable efforts at rehabilitation but
continues to require the additional support contemplated by the parties' Marital
Dissolution Agreement, we need not reach Husband's argument that Tenn. Code
Ann. § 36-5-101(d)(2) required Wife to bear the burden of proving that she made
sufficient efforts to rehabilitate herself. See Wiseman v. Wiseman, 1997 WL
418495 at *4.
VI.
In summary, the record shows that Wife was and is at an economic
disadvantage when compared with Husband. He clearly has a much greater
earning capacity. Notwithstanding her chronic health problems, Wife has made
a concerted effort to remain employed and to upgrade her skills. She bought a
computer and instruction books, sent out numerous resumes during her period
of joblessness, and managed to obtain employment at a higher rate of
compensation than she enjoyed at the time of the parties’ divorce. However, this
job provides no health benefits, a problem for an employee with Wife's medical
history. While she continues to seek employment with greater opportunity, her
age, long employment history, lack of advanced education, and medical
problems pose obstacles to dramatic career changes. Meanwhile, she has
invested in real estate and is gradually accumulating increased equity in those
properties. All these facts convince us that the trial court did not abuse its
discretion in declining to modify the rehabilitative alimony. Ingram v. Ingram
-17-
721 S.W.2d 262, 264 (Tenn. App. 1986) (trial courts possess considerable
latitude in making alimony decisions, and this court is disinclined to interfere
unless the facts require it.).
Accordingly, the trial court's denial of Husband's petition for modification
of spousal support is affirmed. This case is remanded to the trial court for such
further proceedings as may arise. Costs are taxed to Tommy Eugene Stockman
for which execution may issue if necessary.
______________________________
PATRICIA J. COTTRELL, JUDGE
CONCUR:
________________________________
BEN H. CANTRELL, PRESIDING JUDGE, M.S.
________________________________
WILLIAM B. CAIN, JUDGE
-18-
-19-