Erin Alford Fuller v. Roger Darnell Fuller ( 2019 )

07/10/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 21, 2019 Session
ERIN ALFORD FULLER v. ROGER DARNELL FULLER
Appeal from the Chancery Court for Bradley County
No. 2014-CV-272 Jerri Bryant, Chancellor
No. E2018-01003-COA-R3-CV
This appeal concerns a redetermination of alimony on remand. Erin Alford Fuller
(“Wife”) sued Roger Darnell Fuller (“Husband”) for divorce in the Chancery Court for
Bradley County (“the Trial Court”). The case was tried, and Husband appealed the
judgment. We determined that the Trial Court properly classified and valued Husband’s
trail income from his business in the property division but erred by then including, as part
of Husband’s income, the amount of trail income distributed as a marital asset.1 We thus
vacated the Trial Court’s determinations regarding child support and alimony. On
remand, the Trial Court found that Husband inflated his business expenses. The Trial
Court found that Husband earned approximately $200,000 per year and ordered him to
pay Wife $1,500 per month as alimony in futuro. Husband appeals. We hold that the
Trial Court, in keeping with our instructions, properly excluded the trail income
distributed as a marital asset in making its fresh determination of Husband’s income. We
find no reversible error in the Trial Court’s finding as to Husband’s income, nor do we
discern any abuse of discretion in the Trial Court’s alimony decision. We affirm the
judgment of the Trial Court and remand for an award to Wife of her reasonable attorney’s
fees and costs incurred on appeal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.
David K. Calfee, Cleveland, Tennessee, for the appellant, Roger Darnell Fuller.
1
“Trail income,” a term used throughout this Opinion, means the residual income from assets previously
sold but still being managed.
James F. Logan, Jr., and Philip M. Jacobs, Cleveland, Tennessee, for the appellee, Erin
Alford Fuller.
OPINION
Background
This divorce matter is before us once again. To review, Wife and Husband were
married in the state of California in 1988. Two children were born of the marriage, both
of whom are now of majority age.2 In December 2014, Wife filed for divorce. This case
was tried over the course of two days in November and December 2015. Husband, who
works in financial planning, was age 52 and Wife, a nurse, was 50. In January 2016, the
Trial Court entered its final judgment, which Husband appealed. In Fuller v. Fuller, No.
E2016-00243-COA-R3-CV, 2016 WL 7403791 (Tenn. Ct. App. Dec. 21, 2016), we
affirmed, in part, and vacated, in part, the Trial Court’s judgment. As pertinent to this
appeal, we stated and instructed3:
VI. Father’s Income and Child Support
Father also asserts that the trial court erred in determining the
amount of his income for the purpose of setting child support. According
to Father, the trial court failed to deduct the “ordinary and reasonable
expenses of self-employment necessary to produce income” pursuant to the
Tennessee Child Support Guidelines. See Tenn. Comp. R. & Regs. 1040-2-
4-.04(3)(a)(3). Father appears to be correct because the trial court’s only
finding with regard to Father’s income was that he “has income over the
last two years of approximately two hundred thousand dollars, even though
his summary exhibit on Exhibit 5 shows less than that.” The trial court
utilized the annual income amount of $200,000 when calculating Father’s
child support obligation on the child support worksheet. The parties’ tax
records demonstrate that an average of $200,000 for the two years prior to
trial would be nearest to the gross revenue of Legacy without any deduction
of ordinary and reasonable expenses as required by the guidelines.
2
Husband represents that the parties have reached an agreement concerning any lingering child support
obligations and that all issues involving the parties’ children are moot. No issues concerning child
support are raised.
3
While the initial portion of our Opinion quoted deals with child support, it is relevant to our discussion
further in the Opinion concerning alimony.
-2-
We also note another question concerning the trial court’s
determination of Father’s income. In basing Father’s income amount on
the total revenue from Legacy, the court appears to have included the trail
income that was also divided as a marital asset. As Tennessee Code
Annotated § 36-4-121(b)(1)(E) (Supp. 2016) provides:
Property shall be considered marital property as defined by
this subsection (b) for the sole purpose of dividing assets
upon divorce or legal separation and for no other purpose;
and assets distributed as marital property will not be
considered as income for child support or alimony purposes,
except to the extent the asset will create additional income
after the division ....
Ergo, the trail income distributed as marital property should not be
considered as income for child support purposes. For these reasons, we
conclude that the trial court’s determination regarding Father’s income and
his resultant child support obligation must be vacated.
We accordingly remand this matter to the trial court for a
determination of the proper amount of Father’s child support obligation.
The court should make a determination regarding Father’s income by
deducting (1) any ordinary and reasonable expenses of self-employment
necessary to produce income and (2) the amount of the trail income
distributed as a marital asset. The court should consider, however, any
additional income generated by this asset after the division. See Tenn.
Code Ann. § 36-4-121(b)(1)(E); see also Ghorashi–Bajestani v. Bajestani,
No. E2013-00161-COA-R3-CV, 2013 WL 5406859, at *5 (Tenn. Ct. App.
Sept. 24, 2013) (“[T]he trial court did not err in failing to include the
principal amount of the deferred compensation account as income for child
support purposes, but the court should have considered any appreciation
thereon or income stream generated therefrom as income in the calculation
of child support.”), perm. app. denied (Tenn. Mar. 5, 2014).
VII. Alimony
Father also contends that the trial court erred in its award of spousal
support. The trial court awarded alimony in futuro to Mother in the amount
of $1,500 per month. Father asserts that the award is erroneous in type,
length, and amount. Without addressing the specific arguments raised by
Father, we again note that the trial court erred in its determination regarding
-3-
the amount of Father’s income for the reasons set forth above. See Tenn.
Code Ann. § 36-4-121(b)(1)(E) (“[A]ssets distributed as marital property
will not be considered as income for child support or alimony purposes,
except to the extent the asset will create additional income after the division
....”). Inasmuch as the trial court considered the asset of trail income,
which had been divided as marital property, as income to Father for the
purpose of setting alimony, such determination is erroneous.
We therefore vacate the alimony determination and remand to the
trial court with instructions to determine Father’s income without
consideration of the amount of the trail income distributed as a marital
asset. The trial court should consider, however, any additional income
generated by this asset after the division. See Tenn. Code Ann. § 36-4-
121(b)(1)(E). Once Father’s income has been established, the trial court
can make a determination regarding alimony in accordance with the
applicable statutory factors. See Tenn. Code Ann. § 36-5-121(i).
Fuller, 2016 WL 7403791, at *7-9 (footnote omitted).
In August and September 2017, this matter was heard on remand. In December
2017, the Trial Court entered an order addressing the remanded issues. The Trial Court
found that Husband inflated his business expenses and declined to find his tax returns
accurate. The Trial Court stated in its order, in relevant part:
This cause came to be heard on the 29th day of August 2017 on
remand from the Court of Appeals, for this Court to establish the income of
Defendant after deducting ordinary and reasonable expenses to produce that
income and the amount of trail income distributed as a marital asset.
Previously, this Court had determined Defendant’s income to be $200,000
per year. On remand and after proof, the Court took the matter under
advisement, retrieved the trial exhibits from the Court of Appeals and
reviewed those exhibits. More particularly, this Court reviewed Exhibits 1,
5, 16, and 17 from the original trial. Additionally, the Court reviewed the
transcripts from this matter.
It was originally difficult for this Court to determine the income of
Defendant because this Court did not find Defendant’s tax returns to be
credible. When comparing his tax returns in Exhibit 5 with his budget in
Exhibit 17, and his income and expense statements from Exhibit 1, the
Court finds that Defendant uses the terminology “gross and net income” to
mean different things at different times, depending on his purpose. For
instance, on the 2014 tax return Defendant claimed his total income was
-4-
$190,484. He inappropriately stated his rental income and failed to include
Schedule C information in his testimony. The Court will note the
testimony from Defendant was that he charged his business $30,000 per
year for rent (which is income to him and reduced his business income), as
well as an additional $6,000 per year for rent, for a total rent of $36,000 per
year (income to him). It is unknown how much he allocated to
depreciation. The health savings account in the amount of $6,500 paid by
the business and the self-employed insurance premium payments on his
behalf were not necessary to produce income from the business and are
considered income to him. This Court has not been provided a list of
itemized deductions from Schedule A and therefore finds that $267,000 is
the gross income for the year 2014. Defendant has come forth with no
additional information to prove the reasonableness and necessity of any of
his deductions. For the year 2013, Defendant states his Schedule C income
at $145,459. However, the gross income on Schedule C for 2013 was
$233,150. It is noted the business pays for Defendant’s automobile at
$10,497; that he deducts $30,000 for an unknown reason; that his meals in
the amount of $2,738 are deducted and his “other expenses” in the amount
of $15,017 are deducted. There is no documentation to back up any of
these deductions. On Schedule E where he did reflect his rent received in
the amount of $36,000 he also took out $6,789 for depreciation, $261 for
amortization which both should be added back to his $11,659 net rent, and
these added to his income would certainly put his 2013 income from Line
22 of his 2013 tax return in the $200,000 range. Additionally, Defendant
deducted $6,450 for his health savings account, which was not necessary to
produce his income as stated above. Defendant also deducted $10,000 he
put in his retirement and $11,506 for self-employed health insurance
premiums.
This Court does not find additional deductions in the amount of
$30,000 for 2014 to be supported by any proof and his car and truck
expense should be added to his income. Exhibit 5 to the August 29, 2017
hearing shows that while this case was pending, Defendant produced
$60,000 less in commission in 2015 than he did in 2014.
The Court does not find Defendant’s 2015 numbers to be accurate
nor part of the proof in this case. There is no supporting documentation for
his claimed $83,354 in business expenses in 2014 nor his $87,691 in
business expenses for 2013. The Court has previously found that the trail,
which is an income generating asset, was properly valued during the
divorce hearing.
***
-5-
Defendant is purchasing Plaintiff’s interest in that asset at the rate of
$2,000 per month. Additionally that trail generates income. In 2015 it
generated income in the amount of $180,865; and in 2014 in the amount of
$175,949. Those numbers are not manipulable by Defendant and therefore
this Court finds those reliable numbers to consider as part of his income.
Striking in these comparisons is Exhibit 17, which shows $227,028 as gross
year-to-date income (2011) compared to Exhibit 1 to the August 2017
hearing. On the Exhibit 17, Defendant lists his yearly expenses for his
business at $27,753. On his Exhibit 1 for August 29, 2017 hearing, he listed
his business expenses as $75,599 with no supporting documentation.
Deducting his Exhibit 17 (prior to divorce) number of $27,753 from his
gross revenue of $227,000 leaves his gross revenue of $200,000 in the year
2011, gross rental income with undocumented expenses which, even if
taken as true, would cause his 2011 income to be $216,000. Between 2014
and 2015 Defendant testified his commission income, meaning the amount
he was generating on a yearly basis for work he had done in the previous
year, declined over $60,000. This likewise, was without explanation or
proof. The Court does not find his documentation or testimony credible.
***
The Court therefore finds the average gross compensation for 2014
and 2015 to be $273,596. Defendant’s claimed business expenses are not
credible, not documented and unreasonable as compared to what he claimed
in 2011, which was prior to being involved in court. His claimed business
expenses in the amount of $83,351 for 2014 and $91,570 for 2015 are
unsupported.
For 2014, the Court has no proof of expenses that were deducted
from the gross rental income, but even taking that number as true and
deducting additional approximately $43,351 in undocumented business
expenses in 2014 and $40,000 in 2015; the Court finds that the 2014
income to be $223,698 and the 2015 income to be $240,143. Because these
amounts are more than the amount originally found in this case, after
deducting the $2,000 per month Defendant is paying to purchase the trail
income producing asset, the Court sets his true income at $199,698 for
2014 and $216,143 for 2015.
***
To determine the amount of alimony payable to Plaintiff, the Court
had previously found that Plaintiff needed $1,500 per month to meet her
-6-
reasonable monthly expenses. Based upon the mandate from the Court of
Appeals, the Court sets Defendant’s average gross monthly income at
$16,641.50 for 2014 and after deducting the $2,000 payment to wife to buy
her out of the trail asset. The Court finds that Defendant inflated his
personal expenses and that many of those expenses he was claiming as his
own personal monthly expenses, he has also deducted as business expenses
from his business. Based upon this lack of credibility, the Court finds the
Defendant has the ability to pay over $2,000 in that he is giving more than
$2,000 to charity. The Court previously found Plaintiff was economically
disadvantaged. Defendant pays his car payment through his business, he
deducts bills, he receives $30,000 - $36,000 in income from the rent of the
building he owns for which his business pays him. Based upon the above
findings and Defendant’s monthly income and that it is at or above that
previously set by this Court, the Court finds that even after deducting the
amount he is paying to buy Plaintiff out of the asset of the business, he is
capable of and able to pay $1,500 per month in alimony. Child Support is
set at $1,522.00 per the Guidelines and the attached worksheet.
Husband subsequently filed a motion to alter or amend and to make additional
findings of fact. In April 2018, the Trial Court entered an order disposing of Husband’s
motion. The Trial Court stated, in part:
The Court notes that Defendant’s commission income, which he
earns on a yearly basis, was drastically reduced during the year the parties
were engaging in a divorce process. This is within Defendant’s control. In
looking at Defendant’s past production, his commission rates each year, his
lifestyle and the fact he did not earn commission at the same rate as the two
(2) prior years without explanation, the Court finds Defendant voluntarily
reduced his income in an effort to avoid alimony. This is further indicated
by his failure to pay child support and alimony during the pendency of this
case. The Court deems a three (3) year average to be reasonable.
***
[T]he Court finds the average gross compensation for 2013, 2014 and 2015
to be $268,784.33. The Court finds the claimed business expenses in the
amount of $87,691 for 2013, $83,354 for 2014 and $91,570 for 2015 are
unsupported by the evidence and are unreliable. Additionally, not all of
Defendant’s IRS claimed deductions are necessary to produce income and
some are added back as payment of living expenses and therefore income
under the Child Support Guidelines. This Court added back $6,550 to each
-7-
year for the deduction Defendant took for his Health Savings Account. The
burden is on the Defendant to show expenses are reasonable and necessary
for producing the income. There was little testimony along this line.
Previously, the Court did not find the tax returns to be reliable. The Court
also adds back depreciation under the guidelines.
In Exhibit 17 of the original trial, Defendant prepared a document
showing his yearly expenses without depreciation to be approximately ten
percent (10%) of his gross income. This exhibit also listed expenses that
may not be described as necessary to produce income, i.e. meals,
entertainment, and club dues. At the February 2, 2018 hearing, Defendant
attempted to add additional evidence not provided at trial. The Court did
not consider this. This Court reviewed the trial exhibits and found that per
Exhibit 1, entered on August 29, 2017, Defendant deducted furniture
expense of $6,145, meals and entertainment of $2,739, new hardware,
$1,300 credit card interest, and $10,497 in mileage. There was no
supporting documentation. The yard and janitorial expenses doubled that
year without explanation as claimed on Schedule E. It appears the
reasonable and necessary expenses for 2013 are in the $45,000 range.
These included his self-employment taxes of $8,900. Defendant claimed
rent expense of $30,000 in Schedule C and $36,000 on Schedule E as
income was reduced by $6,789 in depreciation, which is to be added back.
In 2014, per Exhibit 2 entered on 8-29-17, Defendant claimed car
expenses in the amount of $9,731, travel, meals and entertainment of
$4,364, deductible meals in the amount of $3,533 and “other”
undocumented expenses in the amount of $15,656 on his tax return. The
Court will add back depreciation in the amount of $6,788. Disallowing
these reduces his claimed expenses of $83,354 to the $40,000 range for
reasonableness.
In 2015, per Exhibit 3 entered on August 29, 2017, there are the
same issues. Advertising, “other”, rent, meals, entertainment expenses all
appear out of line with previous proof in Exhibit 17 at trial. This particular
year, during the divorce, Defendant also ran $7,529 in legal services
through his company. Subtracting those amounts brings his claimed
$91,000 in expenses down to $40,000 that appear reasonable and necessary.
These line up with Exhibit 4 when Defendant claimed gross monthly
income of $15,900 in his budget.
All of the above support this Court’s original finding that Defendant
had approximately $200,000, in a three year average, annual net income for
2013, 2014 and 2015.
***
-8-
Therefore, this Court finds Defendant has the ability to pay his
economically disadvantaged ex-spouse $1,500 per month as alimony in
futuro. Plaintiff’s standard of living will drop drastically because of the
divorce.
This amount is to be figured in the child support worksheet with the
appropriate self-employment tax credit being given, as well as Defendant
claiming one (1) dependent. This shall be supplied within thirty (30) days
of this order or by May 18, 2018.
Husband appealed. This matter was stayed briefly pending entry of an order
addressing a Rule 60.02 motion filed by Wife. According to a January 2019 order of the
Trial Court, “the parties returned to open Court and announced that they had reached an
agreed resolution of the issues.” Thereafter, we entered an order lifting the stay. This
appeal now is properly before us.
Discussion
We restate and consolidate the issues Husband raises on appeal as follows: 1)
whether the Trial Court erred in determining Husband’s income; 2) whether the Trial
Court erred in its alimony determination; and, 3) whether Husband is entitled to an award
of attorney’s fees and costs incurred on appeal. Wife raises her own separate issue of
whether she, rather than Husband, should be awarded her attorney’s fees and costs
incurred on appeal.
Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001). Regarding witness credibility, our Supreme Court has
stated:
When it comes to live, in-court witnesses, appellate courts should
afford trial courts considerable deference when reviewing issues that hinge
on the witnesses’ credibility because trial courts are “uniquely positioned to
observe the demeanor and conduct of witnesses.” State v. Binette, 33
S.W.3d 215, 217 (Tenn. 2000). “[A]ppellate courts will not re-evaluate a
trial judge’s assessment of witness credibility absent clear and convincing
evidence to the contrary.” Wells v. Tennessee Bd. of Regents, 9 S.W.3d
779, 783 (Tenn. 1999); see also Hughes v. Metro. Gov’t of Nashville &
Davidson Cnty., 340 S.W.3d 352, 360 (Tenn. 2011). In order for evidence
-9-
to be clear and convincing, it must eliminate any “serious or substantial
doubt about the correctness of the conclusions drawn from the evidence.”
State v. Sexton, 368 S.W.3d 371, 404 (Tenn. 2012) (quoting Grindstaff v.
State, 297 S.W.3d 208, 221 (Tenn. 2009)). Whether the evidence is clear
and convincing is a question of law that appellate courts review de novo
without a presumption of correctness. Reid ex rel. Martiniano v. State, 396
S.W.3d 478, 515 (Tenn. 2013), (citing In re Bernard T., 319 S.W.3d 586,
596-97 (Tenn. 2010)), cert. denied, ––– U.S. ––––, 134 S. Ct. 224, 187
L. Ed. 2d 167 (2013).
Kelly v. Kelly, 445 S.W.3d 685, 692-93 (Tenn. 2014).
We first address whether the Trial Court erred in determining Husband’s income.
The Trial Court found that Husband earns $200,000 per year, a figure Husband argues is
too high. Husband earns income from two sources: (1) income from Legacy Investments,
including trail income, and (2) rental income from his office building. Husband argues in
his brief that “the proper methodology by which to calculate Husband’s income is to take
his Schedule C net income and add his Schedule E net income.” Husband’s methodology
yielded an average monthly income of $12,743.17 from 2010 to 2016 prior to the
deduction of the $2,000 per month trail income payment to Wife and subtraction of
Husband’s self-employment tax. Husband asserts further that he lost several big clients
during the pendency of the case, and therefore his commission income went down. In
addition, Husband points to instances where the Trial Court misinterpreted his expenses.
For instance, the Trial Court added $6,450.00 and/or $6,550.00 back into Husband’s
income each year, sums representing Husband’s contributions to a health savings
account. The Trial Court identified this as a business expense. Husband also asserts error
in the Trial Court’s adding back of a $10,000 contribution he made for retirement.
In response, Wife argues that the Trial Court never claimed that its calculation
would be exact. Wife notes that the Trial Court stated expressly that it had difficulty
calculating Husband’s income because it did not credit Husband’s business expenses.
The Trial Court, instead, found Husband’s ordinary and reasonable business expenses to
be around $40,000 rather than the claimed $80,000. Wife acknowledges that the Trial
Court erred in some areas, such as when it added back Husband’s health savings account
contributions. However, Wife points out that the Trial Court also failed to add back
certain “other expenses” it already had rejected as impermissible. Wife contends that the
Trial Court’s mistakes actually favored Husband on the whole because they lowered his
income.
Initially, we agree with both parties that the Trial Court erred somewhat in its
calculations. Given the state of the proof, this is not surprising. The dispositive question,
-10-
however, is whether the evidence preponderates against the figure of $200,000 arrived at
by the Trial Court as to Husband’s annual income. The Trial Court explicitly found
Husband to not be credible. We defer heavily to a trial court’s credibility determination
absent clear and convincing evidence to the contrary. Here, no such clear and convincing
evidence exists. Husband argues that the documents show what they show, and
Husband’s individual credibility is not a relevant factor. We disagree with Husband that
the Trial Court was required to accept his numbers in the documents at face value. Tax
returns obviously can be useful to determining someone’s income, but they are not
necessarily foolproof or beyond question.
The Trial Court made several findings adverse to Husband in its orders. The Trial
Court found that Husband “voluntarily reduced his income in an effort to avoid alimony.”
In addition, the Trial Court found that “the claimed business expenses in the amount of
$87,691 for 2013, $83,354 for 2014 and $91,570 for 2015 are unsupported by the
evidence and are unreliable.” The evidence does not preponderate against these findings.
In opposition, Husband relies on innocuous explanations that were rejected as not
credible by the Trial Court.
The Trial Court was tasked with determining Husband’s income without including
his trail income distributed as part of the marital estate. That was achieved on remand.
The figure of $200,000 is an imprecise one, but it is one that comports with the evidence
available to the Trial Court in view of the Trial Court’s rejection of certain of Husband’s
expenses as well as his explanations. We find no reversible error. We affirm the Trial
Court in its determination of Husband’s income.
We next address whether the Trial Court erred in its alimony determination. As
our Supreme Court has instructed regarding spousal support:
For well over a century, Tennessee law has recognized that trial
courts should be accorded wide discretion in determining matters of spousal
support. See Robinson v. Robinson, 26 Tenn. (7 Hum.) 440, 443 (1846)
(“Upon a divorce . . . the wife is entitled to a fair portion of her husband’s
estate for her support, and the amount thus to be appropriated is a matter
within the legal discretion of the chancellor. . . .”). This well-established
principle still holds true today, with this Court repeatedly and recently
observing that trial courts have broad discretion to determine whether
spousal support is needed and, if so, the nature, amount, and duration of the
award. See, e.g., Bratton v. Bratton, 136 S.W.3d 595, 605 (Tenn. 2004);
Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001); Crabtree v. Crabtree,
16 S.W.3d 356, 360 (Tenn. 2000).
-11-
Equally well-established is the proposition that a trial court’s
decision regarding spousal support is factually driven and involves the
careful balancing of many factors. Kinard v. Kinard, 986 S.W.2d 220, 235
(Tenn. Ct. App. 1998); see also Burlew, 40 S.W.3d at 470; Robertson v.
Robertson, 76 S.W.3d 337, 340–41 (Tenn. 2002). As a result, “[a]ppellate
courts are generally disinclined to second-guess a trial judge’s spousal
support decision.” Kinard, 986 S.W.2d at 234. Rather, “[t]he role of an
appellate court in reviewing an award of spousal support is to determine
whether the trial court applied the correct legal standard and reached a
decision that is not clearly unreasonable.” Broadbent v. Broadbent, 211
S.W.3d 216, 220 (Tenn. 2006). Appellate courts decline to second-guess a
trial court’s decision absent an abuse of discretion. Robertson, 76 S.W.3d
at 343. An abuse of discretion occurs when the trial court causes an
injustice by applying an incorrect legal standard, reaches an illogical result,
resolves the case on a clearly erroneous assessment of the evidence, or
relies on reasoning that causes an injustice. Wright ex rel. Wright v.
Wright, 337 S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318
S.W.3d 328, 335 (Tenn. 2010). This standard does not permit an appellate
court to substitute its judgment for that of the trial court, but “ ‘reflects an
awareness that the decision being reviewed involved a choice among
several acceptable alternatives,’ and thus ‘envisions a less rigorous review
of the lower court’s decision and a decreased likelihood that the decision
will be reversed on appeal.’ ” Henderson, 318 S.W.3d at 335 (quoting Lee
Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)).
Consequently, when reviewing a discretionary decision by the trial court,
such as an alimony determination, the appellate court should presume that
the decision is correct and should review the evidence in the light most
favorable to the decision. Wright, 337 S.W.3d at 176; Henderson, 318
S.W.3d at 335.
Gonsewski v. Gonsewski, 350 S.W.3d 99, 105-06 (Tenn. 2011) (footnote omitted).
When making alimony decisions, courts are to consider the factors contained in
Tenn. Code Ann. § 36-5-121, which, in pertinent part, provides:
(i) 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:
-12-
(1) 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;
(2) 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 earnings capacity to a reasonable level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited to,
physical disability or incapacity due to a chronic debilitating disease;
(6) 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;
(7) The separate assets of each party, both real and personal, tangible and
intangible;
(8) The provisions made with regard to the marital property, as defined in §
36-4-121;
(9) The standard of living of the parties established during the marriage;
(10) 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;
(11) The relative fault of the parties, in cases where the court, in its
discretion, deems it appropriate to do so; and
(12) Such other factors, including the tax consequences to each party, as are
necessary to consider the equities between the parties.
Tenn. Code Ann. § 36-5-121(i) (2017).
-13-
Our Supreme Court has articulated the two most important factors to a court’s
alimony decision as follows:
Although each of these factors must be considered when relevant to the
parties’ circumstances, “the two that are considered the most important are
the disadvantaged spouse’s need and the obligor spouse’s ability to pay.”
Riggs, 250 S.W.3d at 457. See also Bratton, 136 S.W.3d at 605;
Robertson, 76 S.W.3d at 342; Burlew, 40 S.W.3d at 470. Carefully
adhering to the statutory framework for awarding spousal support, both in
terms of awarding the correct type of support and for an appropriate amount
and time, fulfills not only the statutory directives but also alimony’s
fundamental purpose of eliminating spousal dependency where possible.
Gonsewski, 350 S.W.3d at 110.
Husband argues that the Trial Court erred in its orders by failing to apply the
statutory factors. Husband is correct in that the Trial Court’s orders on remand focus
primarily on the dispute over his income and do not elaborate on its rationale for an
award of alimony to Wife. We note, however, that the Trial Court did find Wife to be the
economically disadvantaged spouse; that Wife needed $1,500 per month to meet her
reasonable needs; and that Husband has the ability to pay this amount. The evidence
does not preponderate against these findings.
With respect to Wife’s need for alimony, Husband asserts that she is not just
“scraping by.” Husband notes that she is a nurse who earns $22.64 per hour, with the
capacity to earn more. Wife’s 2016 W-2 reflected $56,454.89 in gross income. Wife is
trained as both an RN and an x-ray technologist. Husband points out that Wife was
awarded the marital residence and ten acres of property, whereas he lived in a twelve
hundred square foot apartment at the time of trial. Wife receives $2,000 per month as her
portion of Husband’s trail income. Wife’s health is not an obstacle to her working.
Husband also takes issue with Wife’s personal expenses. In sum, Husband contends
Wife failed to establish any need for alimony.
Husband may be correct that Wife is not scraping by, in general terms, but that is
not all there is to be considered. The parties’ lifestyle during the marriage is a relevant
statutory factor. This is a marriage of 27 years, with two children raised during the
marriage. Husband earns much more than Wife. Although Wife already is well-educated
and thriving in her field, she is an economically disadvantaged spouse relative to
-14-
Husband. There is no realistic room for rehabilitation for her. Wife has to pay taxes on
her alimony award, as well.4
As to Husband’s skepticism toward Wife’s expenses, she reported monthly
expenses of $5,099.70 as of the original hearing and $5,733.31 at the remand hearing.
Husband reported monthly expenses of $9,013.75 and $15,519, respectively. As is often
the case in divorces, the parties each robustly defend his or her personal expenses as
completely necessary and attack the other’s expenses as exaggerated. We reiterate that
Wife is an economically disadvantaged spouse relative to Husband. The parties are in
their mid-50s, and this was a marriage of long duration. A review of all relevant statutory
factors including, among others, the duration of the marriage, the earning capacity of the
parties, the parties’ prior divorce standard of living, and the tax consequences support the
Trial Court’s decision. It was appropriate for the Trial Court to place—or attempt to
place as best it could given the parties’ economic circumstances—Wife on an economic
level comparable to Husband given the facts of the case. We find no abuse of discretion
in the Trial Court’s decision to award Wife alimony in futuro at the rate of $1,500 per
month.
The final issue we address is whether either party is entitled to an award of
attorney’s fees and costs incurred on appeal. Both parties agree that this is a decision that
falls within our discretion. Given that Wife has prevailed on appeal, and, in
consideration of the equities of the case, we find Wife is entitled to her attorney’s fees
incurred on appeal. We remand to the Trial Court for the determination and award to
Wife of her reasonable attorney’s fees and costs incurred on appeal.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below and for further proceedings consistent with
this Opinion. The costs on appeal are assessed against the Appellant, Roger Darnell
Fuller, and his surety, if any.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
4
Alimony awards entered before January 1, 2019 are taxable to the recipient and deductible to the payor.
Pub. L. No. 115-97, § 11051.
-15-