James R. Morrissett, Jr. v. Robbie Claire McKee Morrissett ( 2004 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 21, 2004 Session
JAMES R. MORRISSETT, JR.
v.
ROBBIE CLAIRE McKEE MORRISSETT
An Appeal from the Chancery Court for Henderson County
No. 14912 Joe C. Morris, Chancellor
No. W2003-01052-COA-R3-CV - Filed July 23, 2004
This is a divorce case. The parties were married in 1972. In 2001, the husband filed for divorce
based on inappropriate marital conduct and irreconcilable differences, and the wife counterclaimed
for divorce on the basis of inappropriate marital conduct. After the March 2002 trial, some of the
parties’ main assets were sold in foreclosure. In October 2002, the trial court granted a divorce to
the wife on the grounds that the husband had committed adultery. The divorce decree resolved all
of the property issues between the parties. The trial court also found implicitly that the wife could
not be rehabilitated, based on a letter from the wife’s physician, and awarded alimony in futuro.
Two weeks later, the husband filed a motion for reconsideration, based in part on the interim sale
of some of the parties’ assets and the husband’s consequent inability to fulfill his obligations under
the decree. In April 2003, the trial court denied the husband’s motion to reconsider. From that
order, the husband now appeals and challenges many of the trial court’s rulings. We affirm the trial
court’s division of the marital property and its allocation of the marital debts. We find, however, that
the letter from the physician was inadmissible hearsay, and consequently reverse the trial court’s
award of alimony in futuro and remand for an award of rehabilitative alimony and for other
proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed in
part, Reversed in part, and Remanded
HOLLY M. KIRBY , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.
Teresa McCaig Marshall, Paris, Tennessee, for the appellant, James R. Morrissett, Jr.
Robbie Claire McKee Morrissett, appellee, pro se.
OPINION
Plaintiff/Appellant James R. Morrissett (“Husband”) and Defendant/Appellee Robbie Claire
McKee Morrissett (“Wife”) were married in July 1972. The parties had two children, daughter
Jamie born in November 1973, and son Joseph born in March 1984. Husband was employed as the
general manager and vice president of Huntingdon Morrissett Tire Service Store (“Morrissett Tire”),
a family-owned business in which he owned a third of the stock. During most of the marriage, Wife
was not employed outside the home.
On April 23, 2001, Husband filed a complaint for divorce in the trial court below, based on
grounds of inappropriate marital conduct and irreconcilable differences. In June 2001, Wife filed
an answer and counterclaim for divorce, alleging that Husband had engaged in inappropriate marital
conduct and that irreconcilable differences had arisen between them. Wife sought alimony, an
equitable division of marital property, an equitable allocation of marital debts, attorney’s fees, and
costs. The parties’ two children had both reached majority by the time of trial
.
The trial was conducted on March 28, 2002. Both Husband and Wife testified, with
testimony focused on the issues of inappropriate marital conduct, property division, and alimony.
Husband testified first. At the outset, he asserted that he had never been unfaithful to Wife. He
admitted a close relationship with Amy Woolery (“Amy”), a woman who worked in a business
across the street from his workplace, and conceded that she had visited his house and had spent the
night there with him when he was sick. Husband said that the parties’ son Joseph was “[v]ery much
aware” of his relationship with Amy. In addition, Husband admitted that he had met with Nancy
Holloway (“Nancy”), his pastor’s wife, “[o]nce or twice” in “secluded areas” prior to her divorce
from her husband. He maintained, however, that he had never had a sexual relationship with either
Amy or Nancy. Husband asserted that Wife had a boyfriend named Buddy Jones (“Jones”), but he
did not know whether Wife started dating Jones before or after the complaint for divorce was filed.
Husband then testified about his employment. In his job as general manager of Morrissett
Tire, Husband ordinarily earned $35,000 per year. In November 2001, however, he had a knee
replacement and was forced to stop working. In January 2002, he resumed working on a part-time
basis. Working part-time, Husband claimed that he was earning $250 per week, about half of his
normal full-time compensation. Morrissett Tire provided Husband with a truck to drive, and his
family health insurance premium and the premium on a $335,000 life insurance policy were paid by
the company. Husband testified that Morrissett Tire lost $30,000 in 2001. To attempt to supplement
his income, Husband stated, he got into the cattle business for five years, but the business was
unsuccessful. He also “went in a partnership on some horses,” but that business was likewise
unsuccessful. Husband said that he still had some outstanding debts from those failed endeavors.
Husband testified at trial that he had a $170,000 debt to Carroll Bank & Trust, with a
payment of $1,900 per month. At the time of trial, Husband said that he was behind on those
payments, and that the bank had threatened to foreclose on his house. Husband also testified that
he had gotten behind on the monthly payments on the parties’ Mercury Mystique, ordinarily driven
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by Wife. Husband said that the car had been repossessed twice, and that he had to borrow money
from his mother to get the car back for Wife. The parties still owed $8,500 on the Mercury
Mystique. Husband acknowledged further that he had not paid the property taxes on the marital
home for at least one or two years.
Husband then testified about the Wife’s ability to maintain gainful employment. He stated
that she graduated from Jackson State Community College, and that she earned a degree in interior
design from Lambuth University with honors. Husband paid all of the costs associated with her
education. He stated that Wife had sporadically earned money painting murals and working at
weddings, but that she chose not to work regularly or contribute financially to the marriage.
Husband said that Wife had told him that she chose not to work because, she said, “the Lord doesn’t
lead her to work. He’s done away with all her mundane chores in her life so she can study Him.”
He later recalled that Wife was a substitute teacher on a part-time basis for two years. Husband
acknowledged that Wife was under the care of a physician for a chemical imbalance.
Husband claimed that, during the last few years of the parties’ marriage, Wife had not been
active in their son’s life. When asked about who raised the parties’ two children, Husband
responded, “Basically when my daughter—she helped with it. When Joseph came along, basically
my parents and I raised Joseph.”
Husband then explained his reasons for seeking a divorce. He asserted that Wife was not
committed to the marriage, gave him no moral or financial support, and withheld physical contact.
He said that he and Wife did not have sex for ten years after their daughter was born. He was aware
that Wife accused him of inappropriate conduct, but asserted that he had not engaged in affairs with
other women. Despite Wife’s behavior toward him and her claimed depression, Husband asserted
that Wife had an active social life, that she went out at night with her sister and took trips to
Mississippi to see friends.
Wife submitted the testimony of Keith Holloway (“Holloway”), the parties’ former pastor,
and the husband of Nancy Holloway, with whom Husband had denied having an affair. Holloway
testified that he had been the pastor at the church attended by Husband and Wife for several years,
though he no longer held that position. Holloway said he divorced his wife Nancy in 2000.
Holloway testified that he had been suspicious of the relationship between his former wife and
Husband, so he hired a private investigator. Holloway was asked whether the investigator found
Husband and Nancy together in “secluded areas.” When Husband’s counsel objected to that
testimony as hearsay, the trial court said, “Overruled. You’re probably right, Mr. Dempsey. I just
want to hear it.” The question was then rephrased, “[W]hat was learned about the relationship
between [Husband] and Ms. Holloway[?]” Holloway said that the private investigator’s report
showed that Husband and Nancy were, in fact, meeting in secluded areas. Holloway testified that
both confessed to him that there was an attraction between them, and they told him that they had
discussed “getting together and maybe even getting married later on down the road” if “anything
happened between” Husband and Wife. Through the investigator’s report, Holloway also discovered
that Husband and Nancy would “rendezvous” with the help of another friend. He said, “[Y]ou have
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to understand these were very hard times for all of us.” Holloway testified that Wife was of good
character, and that she was “extremely religious.” Holloway further stated that, while he was pastor
at the church the parties attended, Husband had a “[g]ood, strong commitment” to the church.
Wife then testified on her own behalf. As background, Wife said that she met Husband when
she was a student at Jackson State, and that they married after a three-month courtship, when she was
only nineteen years old. Wife worked in a minimum-wage position at Sears until the birth of their
daughter in November 1973. After their daughter was born, Wife taught part-time as a substitute
teacher for several years. She later decided that she wanted to “get out of [her] marriage,” so she
went back to school “to make a career for [herself] to leave.” Wife graduated from Lambuth in
1991. She claimed that her marriage made her sick, and that she started working at a Christian book
store, but that she had to quit because of her illness. She then attempted to teach private art lessons
in the county schools, but claimed that she had to quit giving lessons because of her illness. Wife
stated that she had made some money doing odd jobs, but never enough to report on an income tax
return. For example, on one occasion, she made $500 for decorating a wedding. Wife said that her
marriage had caused her to have breakdowns, depression, and anxiety attacks.
Wife testified she began seeing Terry Harrison, M.D. (“Dr. Harrison”), in 1995 to obtain
medication to help her cope with her illnesses. Wife submitted into evidence a letter from Dr.
Harrison, over Husband’s hearsay objection. The letter from Dr. Harrison stated that Wife had “had
a marked amount of problems with depression and her nerves. At times she is unable to interact
socially and would be unable at this time, in my opinion, to hold down gainful employment
secondary to her depression.” Dr. Harrison further opined that he expected Wife “to continue on
medication for quite some time.” Wife testified that Dr. Harrison had prescribed Paxil for her to take
at midday for anxiety and Amitriptyline at night to help her rest. Wife’s activities during the day
included housework, yardwork, and taking care of her home. She claimed that she needed her home
because it nurtured her, stating, “I need quiet. I need my rest. I need a place away from stress.”
Wife said that she would want the marriage to continue if it could be stress-free, but that her
marriage to Husband made her “suffer beyond endurance.” She testified that she was frightened
about the future, because she did not know how to support herself, and had never been able to do so.
Over the objection of Husband’s counsel, Wife testified that her son had told her that
Husband was seeing Amy Woolery, and that Amy had spent the night with Husband, sharing the
same bed. Wife claimed that Husband had had affairs “all through our marriage.” She asserted that
in the first year of their marriage, she found a letter indicating that Husband had been with another
woman during the first three months of the marriage. Wife said that she was so upset by this that
she miscarried, and that that was the point at which she quit her job at Sears. She acknowledged that
she did not sleep with Husband for years, and said that it was “because I was such a basket case. I
had to just withdraw.” Wife further stated, “My sisters say that I have never been the same. It’s just
done a number on me.”
At the conclusion of the March 2002 trial, the trial court asked the parties to submit proposed
orders on the issues at trial. On October 7, 2002, the trial court entered an order granting Wife’s
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counterclaim for divorce, making the order effective nunc pro tunc to March 28, 2002, the trial date.
The trial court found that Husband had committed adultery during the marriage, and awarded the
divorce to Wife on that basis. Wife was awarded the real property, consisting of a house and forty-
eight acres of land, the Mercury Mystique, the cash surrender value of all the parties’ life insurance
policies, and all personal property in her possession as separate property. Husband was awarded the
parties’ stock in Morrissett Tire, the First Bank checking account, four horses, the sixteen foot stock
trailer, and all personal property in his possession as separate property.
With respect to the parties’ debt, Husband was ordered to assume the debts to Carroll Bank
and Trust, David Frizzell, trustee (property taxes), and Carroll Bank & Trust Visa. Wife was ordered
to assume the debts to McKee’s Grocery, Dr. Harrison, First Bank, Marcie McNutt, and Jones’
Pharmacy. The trial court explained that, in allocating the parties’ debt, it considered the respective
financial status of the parties, each party’s prior work experience, and each party’s ability to be
gainfully employed. The trial court reasoned:
Husband’s assumption of these debts will free more of Wife’s future income, which
is necessary to assist in supporting Wife. This support is necessary to assist in
meeting the daily living expenses of the non-obligor spouse. This assumption of debt
is in lieu of additional support for Wife, and it is the intent of the Court to create a
support obligation because it will have the actual effect of providing necessary
support, and the amount is not so excessive as to be unreasonable under traditional
concepts of support. The parties further understand that the obligation of Husband
to assume these debts shall survive Wife’s death or remarriage and is not contingent
thereon. The Court intends by this assumption to create a support debt that will be
non-dischargeable in the event of the bankruptcy of the obligor spouse, pursuant to
11 U.S.C. § 523(a)(5).
Thus, the trial court allocated a disproportional amount of debt to Husband in lieu of additional
support for Wife.
The trial court ordered Husband to pay Wife alimony in futuro in the amount of $1,000 per
month until her death or remarriage, with the payments not to terminate upon Husband’s death. As
security for the alimony payments, Husband was ordered to insure his own life in the minimum
amount of $250,000, with Wife as the irrevocable beneficiary. The trial court further ordered
Husband to maintain health insurance for Wife, and to pay the premiums for such insurance. Finally,
Husband was ordered to pay Wife alimony in solido in the amount of $3,721.11 toward Wife’s
attorney’s fees, and to pay court costs and mediation costs.
On October 22, 2002, Husband filed a motion for rehearing, reconsideration, and/or for a new
trial. Husband argued that in the six-month period between the March 2002 trial and the October
2002 final decree, circumstances had changed, making it impossible for Husband to perform some
of the requirements in the decree. On November 8, 2002, a hearing was held on Husband’s motion.
On March 26, 2003, Husband submitted a brief to the trial court outlining supplemental facts as an
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additional basis for granting his motion. With his brief, Husband submitted documentation showing
that, since the time of trial, he had defaulted on the loan from Carroll Bank & Trust, and the bank
had foreclosed on the house and the Morrissett Tire stock. On April 4, 2003, the trial court entered
an order denying Husband’s motion. From that order, Husband now appeals. In June 2003, Wife’s
attorney of record withdrew from the case, and Wife represents herself pro se in this appeal.
On appeal, Husband raises the following issues:
(1) Whether the trial court erred in granting a divorce to Wife alone based on
adultery, rather than concluding that both parties were equally at fault?
(2) Whether the trial court erred in failing to sustain a hearsay objection to
Holloway’s testimony regarding the information in the private investigator’s report?
(3) Whether the trial court erred in distributing the marital property and allocating the
debt between the parties?
(4) Whether the trial court erred in failing to sustain a hearsay objection to the letter
from Dr. Harrison?
(5) Whether the trial court erred in awarding alimony in futuro, rather than
rehabilitative alimony?
(6) Whether the trial court erred in awarding $1,000 per month in alimony in light of
Husband’s ability to pay?
(7) Whether the trial court erred in requiring Husband to provide Wife medical
insurance coverage?
(8) Whether the trial court erred in requiring Husband to maintain a $250,000 life
insurance policy?
(9) Whether the trial court erred in requiring Husband to pay $3,721.11 as alimony
in solido?
(10) Whether the trial court erred in denying Husband’s motion for rehearing,
reconsideration, and/or new trial based upon a substantial change in circumstances?
Because this case was tried by the court sitting without a jury, the trial court’s findings of fact
are reviewed de novo on the record, with a presumption that those findings are correct unless the
evidence preponderates otherwise. Tenn. R. App. P. 13(d); Nelson v. Nelson, 106 S.W.3d 20, 22
(Tenn. Ct. App. 2002). The trial court’s conclusions of law are reviewed de novo, with no such
presumption. Nelson, 106 S.W.3d at 22.
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Husband first argues that the trial court erred in granting a divorce to Wife, rather than
concluding that both parties were entitled to a divorce based on inappropriate marital conduct. We
review the trial court’s decision as to which party is entitled to the divorce for an abuse of discretion.
Crowell v. Crowell, No. E1999-00348-COA-R3-CV, 2000 WL 688568, at *10 (Tenn. Ct. App. May
30, 2000).
The trial court granted the divorce to Wife, based on its finding that “Husband has been
guilty of adultery.” Section 36-4-129(b) of the Tennessee Code Annotated provides:
(b) The court may, upon stipulation to or proof of any ground for divorce pursuant
to § 36-4-101, grant a divorce to the party who was less at fault or, if either or both
parties are entitled to a divorce, declare the parties to be divorced, rather than
awarding a divorce to either party alone.
Tenn. Code Ann. § 36-4-129(b) (2001). Although the record includes evidence that Wife also
engaged in inappropriate marital conduct, the trial court did not expressly address the merits of
Husband’s petition for divorce. We must conclude that the trial court implicitly found that Wife was
less at fault than was Husband. The resolution of such issues necessarily involves determinations
of credibility, which are accorded great weight on appeal. Sullivan v. Sullivan, 107 S.W.3d 507,
510 (Tenn. Ct. App. 2002). “Accordingly, we will not reevaluate a trial judge’s assessment of
witness credibility absent clear and convincing evidence to the contrary.” Id. Giving appropriate
deference to the trial court’s assessment of the parties’ credibility, the trial court’s implicit finding
that Wife was less at fault is not contrary to the preponderance of the evidence at trial. Therefore,
the trial court’s decision to grant the divorce to Wife is affirmed.
Husband also claims that the trial court committed reversible error in allowing the pastor,
Holloway, to testify regarding the information in his private investigator’s report, because that
information constituted hearsay. The trial court’s resolution of whether a statement is hearsay and
whether it nevertheless is admissible under a hearsay exception is reviewed for an abuse of
discretion. State v. Stout, 46 S.W.3d 689, 697 (Tenn. 2001).
Holloway testified about the contents of the private investigator’s report, though the report
itself was not submitted into evidence at trial. Holloway stated that the report revealed that Husband
and Nancy, the pastor’s wife, had been found together in secluded areas. Holloway also said that
the report showed that a mutual friend had arranged meetings between Husband and Nancy, and that
the friend would drive Nancy to meet Husband. Testimony on the report was submitted to show that
Husband committed adultery. Assuming arguendo that Holloway’s testimony on the investigator’s
report constitutes inadmissible hearsay, the undisputed evidence was sufficient for the trial judge to
conclude that Husband had committed adultery. Although Husband denied a sexual relationship
with either Amy Woolery or Nancy Holloway, Husband admitted to having met with Nancy in
secluded areas, and admitted that Amy had spent the night at his home. Husband does not contend
that the evidence was insufficient to find that he had engaged in inappropriate marital conduct;
rather, he claims that the evidence showed that Wife was guilty of inappropriate marital conduct as
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well. Under these circumstances, any error in admitting into evidence Holloway’s testimony
regarding the private investigator’s report would be deemed harmless in light of the undisputed
evidence showing Husband’s misconduct. See Herrera v. Herrera, 944 S.W.2d 379, 384-85 (Tenn.
Ct. App. 1996) (finding it was harmless error to admit report of guardian ad litem, which contained
inadmissible hearsay, because the trial court considered other evidence in determining that
appellant’s fitness as custodial parent).
Next, Husband challenges the trial court’s distribution of marital property and allocation of
marital debt. The trial court is given wide discretion in this regard, and the trial court’s division of
the marital estate will not be disturbed on appeal unless the “decision is contrary to the
preponderance of the evidence or is based on an error of law.” Sullivan, 107 S.W.3d at 512.
The trial court is not obligated to divide the parties’ marital property equally, but equitably.
Id. at 511-12. In dividing the marital property, the trial court must consider the factors set forth in
Tennessee Code Annotated § 36-4-121(c):
(c) In making equitable division of marital property, the 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;
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(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;
(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) (2001 & Supp. 2003). Fault is not considered in the division of
marital property. Tenn. Code Ann. § 36-4-121(a)(1) (2001 & Supp. 2003).
Husband argues that the statutory factors weigh against the trial court’s allocation of property
and debt in this case. The parties were married for almost thirty years. At the time of trial, Husband
was fifty-three years old and Wife was forty-nine years old. Wife had more years of education;
Husband attended three years of college and Wife has a degree in interior design earned at Lambuth
during the marriage. During the marriage, Husband made a large proportion of the financial
contributions to the marriage, including the expenses related to Wife’s education. Wife made
intangible contributions to the marriage, including her role as homemaker and parent. During the
marriage, Husband worked at Morrissett Tire earning a regular salary of $35,000 per year, plus
benefits, including a truck to drive, gas, work clothes, health insurance, and life insurance.1 In
contrast, Wife’s only regular work was in the early years of the parties’ marriage; in the beginning
of the marriage, Wife worked as a sales assistant at Sears earning minimum wage, and after their
daughter was born, Wife worked part-time as a substitute teacher. Later, she worked for a short
period at a religious book store and attempted to teach private art lessons at a public school. She
testified that she quit those jobs because of her mental and emotional illness. Husband
acknowledges that Wife struggles with a chemical imbalance.
The evidence submitted on the value of the parties’ marital assets was scarce at best. As to
most of the marital property, each party submitted into evidence his or her own valuations of the
property.2 As noted above, Wife was awarded the marital home and the land on which it was
situated (value ranging from $80,000 to $90,000), the Mercury Mystique ($5,250), and the cash
surrender value of the parties’ life insurance policy (approximately $2,000). Therefore, Wife’s only
liquid asset was the $2,000 she could receive by cashing out the parties’ life insurance policy.
1
W hile recovering from knee surgery, Husband reduced his workload, and consequently reduced his
monthly income to $1,400 per month.
2
In some instances, Husband’s submission did not include all of the assets and debts included in W ife’s
submission. In those instances, W ife’s valuations of assets and debts must be considered undisputed.
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Husband was awarded his stock in Morrissett Tire (value ranging from $60,704 to $259,273), the
parties’ checking account (value ranging from $500 to $2,000), and four horses with a trailer
($19,500). The estimated value of the Morrissett Tire stock was disputed, with Husband claiming
a value of approximately $60,704 and Wife claiming it was worth approximately $259,273. Wife’s
estimate of the value of the stock was supported by a financial statement submitted to Carroll Bank
& Trust by Husband in December 2000. Using Wife’s valuations, Husband received marital assets
valued well in excess of the assets awarded to Wife. With respect to debt, however, the trial court
clearly allocated to Husband the bulk of the parties’ debt. Husband was allocated the debt to Carroll
Bank & Trust ($180,000), the property taxes on the parties’ home ($1,315), and the Carroll Bank &
Trust Visa ($1,000), totaling approximately $182,315. Wife was assigned the parties’ debts to
McKee’s Grocery ($1,900), Dr. Harrison ($103), First Bank ($3,129), Marcie McNutt ($150), and
Jones’ Pharmacy ($250), totaling approximately $5,532. The trial court explained the disparity in
the allocation of debt, stating, “Husband’s assumption of these debts will free more of Wife’s future
income, which is necessary to assist in supporting Wife.” The trial court concluded that “the amount
is not so excessive as to be unreasonable under traditional concepts of support.”
Based on the preponderance of the evidence submitted at trial, we find that the trial court did
not err in its assignment of marital property and debt in this case. Husband clearly has the greater
income stream and earning capacity, and Husband was awarded the parties’ most valuable asset, the
Morrissett Tire stock. Therefore, although it would be difficult, he was in a better position to pay
the parties’ debt. Although Wife was awarded the home, her car, and a small amount of life
insurance with cash value, without having had regular employment for many years, Wife would be
unable to shoulder the debt that was allocated to Husband. Considering the evidence submitted at
trial, we cannot conclude that the trial court erred in its allocation of marital property and debt.
Husband next challenges the trial court’s decision to admit into evidence the letter from Dr.
Harrison, arguing that it was inadmissible hearsay. Particularly in light of the fact that Dr. Harrison’s
letter was inadmissible hearsay, Husband argues, the trial court erred in awarding Wife alimony in
futuro instead of rehabilitative alimony, and argues as well that the amount of the award, $1,000 per
month, was excessive.
Again, the determination of whether a statement is hearsay and whether it is nevertheless
admissible is reviewed for an abuse of discretion. State v. Stout, 46 S.W.3d 689, 697 (Tenn. 2001).
As to the alimony award, “[t]he trial court has broad discretion in determining the type, amount, and
duration of alimony based upon the particular facts of each case.” Sullivan, 107 S.W.3d at 511. The
trial court’s award of alimony will not be reversed absent an abuse of discretion. Id. In determining
a proper alimony award, the primary considerations are the need of the recipient spouse and the
obligor’s ability to pay. Id. at 510; see Goodman v. Goodman, 8 S.W.3d 289, 295. (Tenn. Ct. App.
1999). In making such a determination, the trial court must consider the factors enumerated in
Tennessee Code Annotated § 36-5-101(d)(1)(E):
(E) 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
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of term, and manner of payment, the court shall consider all relevant factors,
including:
(i) 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;
(ii) 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;
(iii) The duration of the marriage;
(iv) The age and mental condition of each party;
(v) The physical condition of each party, including, but not limited to,
physical disability or incapacity due to a chronic debilitating disease;
(vi) 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;
(vii) The separate assets of each party, both real and personal,
tangible and intangible;
(viii) The provisions made with regard to the marital property as
defined in § 36-4-121;
(ix) The standard of living of the parties established during the
marriage;
(x) 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;
(xi) The relative fault of the parties in cases where the court, in its
discretion, deems it appropriate to do so; and
(xii) Such other factors, including the tax consequences to each party,
as are necessary to consider the equities between the parties.
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Tenn. Code Ann. § 36-5-101(d)(1)(E) (Supp. 2003). Rehabilitative alimony provides the
economically disadvantaged spouse support for a period of time to enable that spouse to become and
remain self-sufficient. Rehabilitative alimony is appropriate where the trial court finds that the
economically disadvantaged spouse can be rehabilitated from an economic standpoint. Crabtree v.
Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000). Where such rehabilitation is not feasible, long-term
support is necessary, and the court may award alimony in futuro. Id. “[A]limony in futuro should
be awarded only when the trial court finds that ‘economic rehabilitation is not feasible and long-term
support is necessary.’ ” Id. at 359 (quoting Self v. Self, 861 S.W.2d 360, 361 (Tenn. 1993)). The
general assembly has expressed a preference for an award of rehabilitative alimony, rather than
alimony in futuro. Id. at 358. However, the trial court’s determination of whether alimony should
be rehabilitative or in futuro is granted wide discretion. Id. at 360.
Husband contends that the letter from Wife’s physician is inadmissible hearsay, that the trial
court erred in admitting it into evidence, and that it cannot be considered evidence that rehabilitation
for Wife is not feasible. Husband argues that, considering her work experience and her degree in
interior design, Wife has employable skills. He points out that Wife was only forty-nine years old
as of the date of the trial, and that her artistic abilities gave her marketable skills. Husband argues
that Wife testified that the main source of her depression and anxiety stemmed from their marriage.
With the marriage over, he argues, and with the assistance of her physician, Wife should be able to
recover and maintain gainful employment. Furthermore, Husband argues, considering the debt
allocation to him and his currently reduced income, he is unable to pay Wife alimony of $1,000 per
month. He claims that, even if the court attributed to him his prior income of $35,000 per year, he
is unable to pay the $1,900 per month debt payment to Carroll Bank & Trust, $1,000 per month in
alimony to Wife, and also his separate personal expenses.
In this case, the parties were married for almost thirty years, and Wife had no regular
employment outside the home during most of that time. At the time of trial, Wife was forty-nine
years old. In an apparent effort to rehabilitate herself, Wife acquired a degree from Lambuth and had
sporadic jobs using her creative ability. The trial court, by awarding alimony in futuro, must have
concluded that rehabilitation for Wife was not feasible, and that Wife would be unable to work full-
time to support herself. The primary, indeed virtually the only, impediment to Wife working to
support herself is her longstanding depression, under treatment by a physician, Dr. Harrison.
Surprisingly, however, Wife came to trial armed only with a letter from Dr. Harrison that was clearly
inadmissible hearsay. When the predictable hearsay objection was made by Husband’s attorney,
Wife’s attorney apparently acknowledged the letter was inadmissible but protested that Wife did not
have the funds to pay for the physician’s deposition. Wife’s counsel then said “if” such a deposition
were needed, the trial court should immediately adjourn the trial and require Husband to pay for the
physician’s deposition. Wife’s counsel did not explain why such a request was not made well in
advance of the trial, since admissible evidence that Wife could not be rehabilitated was obviously
necessary. Apparently focused on resolving matters quickly, the trial judge simply said “no point
to it” and admitted the physician’s letter into evidence.
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We must conclude that the record before us contains insufficient evidence that Wife will be
unable to work to support herself. Given her age and educational leave, the basis for Wife’s
assertion that rehabilitation is not feasible is a medical condition, namely, her longstanding
depression. Wife asserts that her depression is caused by her marriage, now ended, and a chemical
imbalance under treatment by her physician. Even if Dr. Harrison’s letter were admissible, which
it is not, the letter says only that Wife suffers from depression and “would be unable at this time, in
my opinion, to hold down gainful employment secondary to her depression.” (Emphasis added.)
Apart from her own testimony, Wife simply offered no admissible evidence that, once the marriage
ended, her medical condition would prevent her from working to support herself. Based on the
record before us, we must conclude that Wife did not submit evidence sufficient to support the trial
court’s award of alimony in futuro, and that the award was therefore an abuse of discretion.
Under these circumstances, the award of alimony in futuro must be reversed, and the cause
remanded for the trial court to consider an appropriate award of rehabilitative alimony. The
payments of $1,000 per month shall continue until the trial court determines the amount and duration
of rehabilitative alimony that should be awarded.
Husband next argues that the trial court erred in ordering him to maintain health insurance
for Wife, and in ordering him to maintain a life insurance policy with Wife as beneficiary as security
for the alimony payments. Husband argues that both of these financial burdens exceed his ability
to pay, and that the trial court failed to consider Wife’s ability to be rehabilitated.
The evidence at trial indicated that Morrissett Tire provided Husband with family medical
insurance and life insurance as part of his employment benefits, and, there was no evidence that
those benefits will be discontinued. In light of all of the evidence at trial, including Wife’s lack of
regular employment and her existing medical condition, the requirement to provide medical coverage
was not improper. The order to maintain life insurance, however, must be reconsidered on remand
in light of our reversal of the award of alimony in futuro. Particularly since life insurance for
Husband is apparently a benefit of his employment, an order that he maintain life insurance for
Wife’s benefit, consistent with the award of rehabilitative alimony, may be considered by the trial
court on remand. See Emison v. Emison, No. W1998-00591-COA-R3-CV, 1999 WL 1336054, at
*11-*12 (Tenn. Ct. App. Dec. 27, 1999) (upholding order to provide life insurance for benefit of
children when obligor parent submitted no evidence of cost to show an inability to pay); see also
Zettersten v. Zettersten, No. M1999-01186-COA-R3-CV, 2000 WL 1231372, at *4 (Tenn. Ct. App.
Aug. 31, 2000) (upholding order to provide life insurance for the benefit of the wife to secure
alimony payment).
Husband next challenges the trial court’s award to Wife of $3,721.11 in attorney’s fees as
alimony in solido. Again, such an award of alimony is not reversed on appeal unless the trial court
has abused its discretion. Lindsey v. Lindsey, 976 S.W.2d 175, 180-181 (Tenn. Ct. App. 1997).
Because the award of attorney’s fees constituted a component of the alimony award, the trial court
must balance the factors in Tennessee Code Annotated section 36-5-101. Heideman v. Heideman,
No. W2001-01486-COA-R3-CV, 2002 WL 31730897, at *4 (Tenn. Ct. App. Nov. 27, 2002);
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Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App.1995). We have already addressed the
most important factors in an award of alimony, namely, the need of the disadvantaged spouse and
the ability of the obligor spouse to pay. Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001)
(quoting Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995)). An award of attorney’s fees is
“appropriate when the spouse seeking them lacks sufficient funds to pay his or her own legal
expenses or would be required to deplete his or her resources in order to pay these expenses.” Smith
v. Smith, 984 S.W.2d 606, 610 (Tenn. Ct. App. 1997) (citing Brown v. Brown, 913 S.W.2d 163(Tenn. Ct. App. 1994)). Although we have reversed the trial court’s award of alimony in futuro,
under all of the circumstances of this case, including the lack of liquid assets awarded to Wife, we
find that the award to Wife of $3,721.11 as alimony in solido for attorney’s fees in connection with
this litigation was not an abuse of discretion, and it is affirmed.
Finally, Husband argues that the trial court erred in refusing to grant his motion for rehearing,
reconsideration, and/or for a new trial based on a change in the parties’ circumstances that occurred
after the March 2002 trial. Husband’s motion asserted, among other things, that the final decree
required him “to perform impossible facts [sic] involving property divisions that were unilaterally
divided by creditor foreclosures, all prior to entry of the decree.” On March 26, 2003, Husband
submitted a document entitled “Legal Brief of Law and Facts in Support of Motion to Reconsider
Divorce Findings and Judgment Based upon Supplemental Facts.” In that memorandum, Husband
asserted that he could not transfer title to the house to Wife, and he could not take ownership in the
Morrissett Tire stock, because the bank had foreclosed on those assets in order to satisfy his
obligation to pay the loan to Carroll Bank & Trust. Husband attached as exhibits letters notifying
him that those two assets would be put up for sale. The trial court denied Husband’s motion to
reconsider. On appeal, Husband asserts that the house was sold to Wife’s brother-in-law for
$67,000, and the stock in Morrissett Tires was sold to Husband’s brother for $70,000. Thus,
according to Husband, there still remained a debt to Carroll Bank & Trust in the amount of $50,000.
Considering these post-trial facts, Husband argues, the trial court should have reconsidered its
distribution of assets and allocation of marital debt.
Husband apparently filed his motion under Rules 52.02, 59.02 and/or 59.04 of the Tennessee
Rules of Civil Procedure, which are each reviewed for an abuse of discretion. Ruff v. Raleigh
Assembly of God Church, Inc., No. W2001-02578-COA-R3-CV, 2003 WL 21729442, at *8-9
(Tenn. Ct. App. July 14, 2003). In this case, the trial judge stated expressly that his distribution of
the parties’ assets and debts was tied to the alimony award to Wife. In light of our reversal of the
trial court’s award of alimony in futuro, we must also reverse the trial court’s denial of Husband’s
motion to reconsider, since the trial court must be able to examine on remand the full circumstances
of the parties in connection with the issue of alimony.
The decision of the trial court is affirmed in part and reversed in part and remanded for
further proceedings not inconsistent with this Opinion. Costs on appeal are to be taxed equally to
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Appellant James R. Morrissett, Jr., and his surety, and to Appellee Robbie Claire McKee Morrissett,
for which execution may issue, if necessary.
_________________________________________
HOLLY M. KIRBY, JUDGE
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