Summary
In Perry, the trial court awarded Ms. Perry rehabilitative alimony for a period of two years, and ordered the parties to return to court before the end of that time for a review of the award.
Summary of this case from Britt v. BrittOpinion
No. W2001-01350-COA-R3-CV.
Filed March 21, 2002.
Direct Appeal from the Chancery Court for Tipton County; No. 16, 505; The Honorable Martha Brasfield, Chancellor.
Affirmed.
J. Thomas Caldwell, Ripley, TN, for Appellant.
Julie D. Byrd, Tina Lum Perrusquia, Bartlett, TN, for Appellee.
Alan E. Highers, J., delivered the opinion of the court, in which David R. Farmer, J., (by separate concurrence in part and dissent in part) and Holly Kirby Lillard, J., (by separate concurrence) joined.
The Appellant and the Appellee were divorced by final decree of divorce entered by the Chancery Court of Tipton County. The trial court ordered the Appellant to pay the Appellee rehabilitative alimony on a temporary basis for two years. The trial court stated that the parties would return to court prior to the expiration of the two year period to determine whether rehabilitative alimony should continue. Prior to the expiration of the two year period, the Appellee filed a petition to modify the final decree of divorce to continue alimony payments and a petition for contempt. The Appellant filed a petition for an order closing rehabilitative alimony. The trial court held a hearing on the petitions. Following the hearing, the trial court ordered the Appellant to pay the Appellee rehabilitative alimony for three additional years. The trial court ordered the Appellant to pay the Appellee's attorney's fees.
The Appellant appeals the decision of the Chancery Court of Tipton County ordering the Appellant to pay the Appellee rehabilitative alimony for three additional years and ordering the Appellant to pay the Appellee's attorney's fees. For the reasons stated herein, we affirm the trial court's decision.
OPINION I. Facts and Procedural History
The Appellant, William Harwell Perry ("Mr. Perry"), and the Appellee, Ricki C. Childs Perry ("Ms. Perry"), were divorced by final decree of divorce entered by the Chancery Court of Tipton County on November 16, 1998. In the findings of fact incorporated into the final decree of divorce, the trial court found that Mr. Perry would earn over $40,000.00 in 1998, and Ms. Perry would earn $16,640.00 in 1998. The trial court ordered Mr. Perry to pay Ms. Perry rehabilitative alimony in the amount of $700.00 per month on a temporary basis through December 31, 2000. Prior to December 31, 2000, the parties would return to court at which time the trial court would determine whether the rehabilitative alimony should continue. The trial court stated, "Continuance of the alimony shall be based upon Mrs. Perry's needs, her return to school, her progress made at school, her grades and any other factors which may be relevant to this issue."
On March 18, 1999, Ms. Perry filed a petition for writ of scire facias and contempt of court. The petition alleged that Mr. Perry had failed to pay Ms. Perry rehabilitative alimony for the months of January, February, and March, 1999. On November 3, 2000, Ms. Perry filed a petition to modify the final decree of divorce to continue alimony payments and a petition for contempt. On December 20, 2000, Mr. Perry filed a petition for an order closing rehabilitative alimony. On March 1, 2001, a hearing was held on the petitions.
Ms. Perry and Mr. Perry testified that they were both forty-seven years old and were high school graduates. Ms. Perry testified that she worked as a seamstress and earned an annual income of $21,736.00. She stated that the summer following the divorce, she enrolled in a community college to earn an associate's degree in engineering drafting. Ms. Perry claimed that she did not enroll in the community college immediately following the divorce because Mr. Perry did not pay rehabilitative alimony until March, 1999. She testified that she had a 3.2 grade point average and that at her current course load, she would complete the engineering drafting program in five years. Ms. Perry filed an affidavit of income and expenses stating that her apartment and utility expenses were $835.00 per month, her car payment was $309.00 per month, and her living expenses were $1,010.25 per month.
Mr. Perry testified that he had worked as a dock worker for the past twenty-two years and also worked as an emergency medical technician. He claimed that he earned an annual income of $38,000.00 in 2000. Mr. Perry stated that for the past three years, he had been living in a thirty-foot camper-trailer and kept his personal property in a rented space because he could not afford anything better. He testified that he sustained a leg injury at work on December 4, 2000 and had been drawing worker's compensation disability until late February, 2001.
On May 11, 2001, the trial court entered an order on Ms. Perry's petition to modify the final decree of divorce to continue alimony payments and petition for contempt and on Mr. Perry's petition for an order closing rehabilitative alimony. The trial court found Mr. Perry in contempt of court for failure to pay Ms. Perry rehabilitative alimony during the months of January, February, and March, 1999. The trial court found that prior to the hearing, Mr. Perry paid Ms. Perry the rehabilitative alimony he owed for January, February, and March, 1999. The trial court found that Ms. Perry needed a continuation of rehabilitative alimony based on her testimony at the hearing. The trial court ordered Mr. Perry to pay Ms. Perry rehabilitative alimony for three additional years in the amount of $550.00 per month from January 1, 2001 until June 30, 2002, and thereafter, $400.00 per month from July 1, 2002 until December 31, 2003. The trial court ordered Mr. Perry to pay Ms. Perry's attorney's fees in the amount of $800.00. This appeal followed.
II. Standard of Review
The standard of review for a non-jury case is de novo upon the record.See Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of correctness as to the trial court's factual findings, unless the preponderance of the evidence is otherwise. See Tenn.R.App.P. 13(d). For issues of law, the standard of review is de novo, with no presumption of correctness. See Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).
III. Law and Analysis
The following issues are presented for our review:
1. Whether the trial court erred by ordering the continuation of rehabilitative alimony;
2. Whether the trial court erred by awarding attorney's fees to Ms. Perry; and
3. Whether this Court should award attorney's fees and costs on appeal.
We will address each issue in turn.
The first issue presented for our review is whether the trial court erred by ordering the continuation of rehabilitative alimony. The trial court has broad discretion concerning the amount, type, and duration of spousal support based on the particular facts involved. See Watters v. Watters, 959 S.W.2d 585, 593 (Tenn.Ct.App. 1997). The trial court's decision is entitled to great weight on appeal and will not be disturbed absent a showing of abuse of discretion. See id. (citing Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995); Luna v. Luna, 718 S.W.2d 673, 675 (Tenn.Ct.App. 1986)); Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn.Ct.App. 1996). Accordingly, this Court is not inclined to alter a trial court's award of alimony "unless it is not supported by the evidence or is contrary to the public policy embodied in the applicable statutes." Brown v. Brown, 913 S.W.2d 163, 169 (Tenn.Ct.App. 1994) (citing Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn.Ct.App. 1988); Ingram v. Ingram, 721 S.W.2d 262, 264 (Tenn.Ct.App. 1986)).
The trial court stated that during the November 16, 1998 hearing, it was unsure whether Ms. Perry actually intended to return to school. Thus, the trial court declined to make a final decision on the amount and duration of rehabilitative alimony. Rather, the trial court decided that Mr. Perry would pay Ms. Perry rehabilitative alimony on a temporary basis for two years. The trial court stated that prior to the end of the two year period, the trial court would assess whether rehabilitative alimony should continue. The trial court enumerated four factors it would examine in making its decision: Ms. Perry's needs, her return to school, her grades, and her progress made at school. Two years later, the trial court heard proof on the four factors. Ms. Perry submitted an affidavit of income and expenses which showed a monthly net income of $1,303.35 and monthly expenses of $2,154.25. Thus, the affidavit showed that Ms. Perry had a need of approximately $850.00 per month. Ms. Perry testified that she enrolled in a community college after Mr. Perry begin paying rehabilitative alimony. Ms. Perry claimed that she maintained a 3.2 grade point average in school and would graduate in five years. At the close of the hearing, the trial court ordered the rehabilitative alimony to continue for an additional three years.
Mr. Perry argues that the trial court erred by ordering the continuation of rehabilitative alimony because Ms. Perry failed to show a substantial and material change in circumstances. Section 36-54-101(d)(2) of the Tennessee Code states that "[a]n 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, extended, or otherwise modified, upon a showing of substantial and material change in circumstances." Tenn. Code Ann. § 36-54-101(d)(2) (Supp. 2000). We agree that a person seeking to modify a final award of rehabilitative alimony must show a substantial and material change in circumstances. When the trial court fails to make a final award of rehabilitative alimony, however, it is not necessary to show a substantial and material change in circumstances to modify a temporary, open-ended award of rehabilitative alimony.
In the case at bar, the trial court took a "wait and see" approach to awarding rehabilitative alimony. The trial court stated that it was uncertain whether Ms. Perry actually intended to return to school. The trial court declined to make a final decision with regard to rehabilitative alimony until it could determine whether Ms. Perry had returned to school, how she was doing in school, and her financial needs while attending school. Thus, the trial court ordered Mr. Perry to pay rehabilitative alimony on a temporary basis for two years until the trial court could better assess Ms. Perry's educational and financial situation. Because the trial court ordered a temporary, open-ended award of rehabilitative alimony, we find that Ms. Perry did not have to show a substantial and material change in circumstances in order to be awarded a continuation of rehabilitative alimony. From our review of the record, we further find that the trial court did not abuse its discretion in ordering Mr. Perry to continue to pay rehabilitative alimony to Ms. Perry for an additional three years. Accordingly, we affirm the trial court's decision ordering the continuation of rehabilitative alimony.
The second issue presented for our review is whether the trial court erred by awarding attorney's fees to Ms. Perry. The decision to award attorney's fees is within the sound discretion of the trial court. See Richardson v. Richardson, 969 S.W.2d 931, 936 (Tenn.Ct.App. 1997) (citation omitted). An appellate court will not overturn a trial court's award of attorney's fees absent an abuse of discretion. See Garfinkel v. Garfinkel, 945 S.W.2d 744, 748 (Tenn.Ct.App. 1996).
In the case at bar, Mr. Perry argues that the trial court abused its discretion by awarding attorney's fees to Ms. Perry in the amount of $800.00. Ms. Perry's attorney informed the trial court that her usual fee was $150.00 per hour; however, Ms. Perry presented no proof as to the actual time expended by her attorney. At the hearing, Mr. Perry was aware that Ms. Perry presented no proof regarding attorney's fees, but we are unable to find any objection in the record as to the award of attorney's fees. We find that the trial court was in a position to determine the reasonable value of services rendered by Ms. Perry's attorney, and we conclude that $800.00 was a reasonable estimate of attorney's fees. We find no abuse of discretion on the part of the trial court in its award of attorney's fees. Accordingly, we affirm the trial court's award of attorney's fees to Ms. Perry.
The third issue presented for our review is whether this Court should award attorney's fees and costs on appeal. Ms. Perry requests this Court to award her attorney's fees and costs necessitated by this appeal. We respectfully deny Ms. Perry's request for attorney's fees and costs on appeal.
IV. Conclusion
For the foregoing reasons, the decision of the trial court is affirmed. Costs of this appeal are taxed against the Appellant, William Harwell Perry, and his surety, for which execution may issue if necessary.
I concur with the majority opinion in this case, but write separately to elaborate on my reasoning regarding the issue raised in the partial dissent in this case.
Tennessee Code Annotated § 36-5-101(d)(2) provides as follows:
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 circumstance.
Tenn. Code Ann. § 36-5-101(d)(2) (2001). The dissent applies this statute to the case at bar, arguing that the statute would require the wife in this case to show a substantial and material change in circumstances in order to receive continued rehabilitative alimony, even where the award is expressly open-ended and non-final. If this were true, however, the statute could arguably apply to a pendente lite award of alimony as well. Clearly it would be anomalous to require a showing of a substantial and material change in circumstances to modify such an award.
One of the purposes of Section 36-5-101 (d)(2) is to establish that the trial court retains continuing control over an award of rehabilitative alimony. Such a provision is unnecessary in the case of a non-final order; if the award is not final, the trial court's continuing control is apparent. This indicates that Section 36-5-101(d)(2) is intended to apply only to a final award of rehabilitative alimony, since statutory authority could be necessary to establish that such an award, although final, remains in the control of the trial court. Requiring a showing of substantial and material change to modify a final award of rehabilitative alimony is appropriate.
The dissent expresses concern about permitting a trial court to adopt a "wait and see" approach in awarding rehabilitative alimony. This concern is justified, but on occasion such an approach is warranted. See Robinette v. Robinette , 726 S.W.2d 524 (Tenn.Ct.App. 1986). Considering all of the circumstances in this case, I do not believe that the trial court abused its discretion by entering an order on rehabilitative alimony that was non-final. For these reasons, I concur separately.
I concur with the majority's decision regarding the award of attorney's fees in this case, but respectfully dissent from the holding that "it is not necessary to show a substantial and material change in circumstances to modify a temporary, open-ended award of rehabilitative alimony." This holding allows a trial court to modify an award of alimony by simply reserving that right in the divorce decree, thereby circumventing the legislative mandate that awards of alimony may be modified only upon a showing of substantial and material change in circumstances.
The legislature has expressed an intent that, whenever possible, an economically disadvantaged spouse should be rehabilitated by an award of temporary support and maintenance. Crabtree v. Crabtree , 16 S.W.3d 356, 358 (Tenn. 2000); Tenn. Code Ann. § 36-5-101(d)(1) (2001). Rehabilitative alimony is "a separate class of spousal support as distinguished from alimony in solido and periodic alimony." Tenn. Code Ann. § 36-5-101(d)(1) (2001). The award "remain[s] in the court's control for the duration of such award, and may be . . . modified, upon a showing of substantial and material change in circumstances." Tenn. Code Ann. § 36-5-101(d)(2) (2001). Thus an award of rehabilitative alimony is always a temporary award. In that it is subject to modification, it is always somewhat "open-ended." However, the legislature has expressed an intent that such "open-endedness" is not without limits. A showing of material and substantial change in circumstances is required to modify an award of rehabilitative alimony.
When called upon to interpret a statute, as we are here, this Court's primary objective is to effectuate the purpose of the legislature. Lipscomb v. Doe , 32 S.W.3d 840, 844 (Tenn. 2000). Insofar as possible, the intent of the legislature should be determined by the natural and ordinary meaning of the words used in the statute, and not by a construction that is forced or which limits or extends the meaning. Id . Likewise, the Court must seek to ascertain the intended scope of the statute, neither extending nor restricting that intended by the legislature. State v. Morrow , ___ S.W.3d ___, 2002 WL 27513, at *2 (Tenn. Jan. 11, 2002) (citing State v. Sliger , 846 S.W.2d 262, 263 (Tenn. 1993)). Our interpretation must not render any part of the statute "inoperative, superfluous, void or insignificant." Id . (quoting Tidwell v. Collins , 522 S.W.2d 674, 676-77 (Tenn. 1975)). Rather, we construe statutory provisions within the context of the entire statute, giving effect to its over-arching purpose. Merrimack Mut. Fire Ins. Co. v. Batts , 59 S.W.3d 142, 151 (Tenn.Ct.App. 2001).
The purpose of rehabilitative alimony is to provide an economically disadvantaged spouse temporary support for a period of time so that he/she may become self-sufficient. Loria v. Loria , 952 S.W.2d 836, 838 (Tenn.Ct.App. 1997). It is also designed to encourage the recipient spouse to become and then remain self-sufficient. Burlew v. Burlew , 40 S.W.3d 465, 470-71 (Tenn. 2001). A trial court's award of rehabilitative alimony is based on a finding that the economically disadvantaged spouse can be economically rehabilitated. Crabtree v. Crabtree , 16 S.W.3d 356, 360 (Tenn. 2000). The award "may be modified if the recipient's prospects for economic rehabilitation materially change." Crabtree , 16 S.W.2d at 360. In this case, the trial court determined that Ms. Perry could be economically rehabilitated, and awarded rehabilitative alimony while reserving the right to modify that award at a later date. An award of rehabilitative alimony, however, remains within the jurisdiction of the court and is subject to modification for the duration of the period of the award. Id .; Tenn. Code Ann. § 36-5-101(d)(2) (2001). However, any subsequent modification must be predicated on a showing of material and substantial change in circumstance. Id .
I do not believe the legislature intended to permit the courts to adopt a "wait and see" approach in awarding rehabilitative alimony. The statute provides guidelines for use by the courts in determining the amount and duration of rehabilitative awards. See Tenn. Code Ann. § 36-5-101(d)(1) (2001). Once the trial court has determined that economic rehabilitation is feasible, it must apply these guidelines to determine the appropriate amount and duration of the award. Loria , 952 S.W.2d at 837. If the recipient spouse does not attempt to become self-sufficient, the court may reduce or terminate the rehabilitative award. Id . at 838. If the recipient can show that economic rehabilitation has not been possible, or that it has been only partially possible, the trial court may then award alimony in futuro . Crabtree , 16 S.W.3d at 360; Loria , 952 S.W.2d at 838. However, the burden is on the recipient spouse to prove that rehabilitation has not been possible and that alimony in futuro is needed. Tenn. Code Ann. § 36-5-101(d)(2) (2001); Crabtree , 16 S.W.3d at 359. The court also may modify the original award of rehabilitative alimony upon a showing of material and substantial change in circumstance. See Tenn. Code Ann. § 36-5-101(d)(2) (2001). When determining whether a modification of an alimony award is justified, the court must give equal weight to the need of the recipient spouse and the ability of the obligor spouse to pay. Bogan v. Bogan , 60 S.W.3d 721, 730 (Tenn. 2001).
In Robinette v. Robinette , 726 S.W.2d 524, 525 (Tenn.Ct.App. 1986), this Court adopted the majority rule from other jurisdictions permitting the trial court "to reserve the issue of alimony when proper at the time of granting the divorce." Such a reservation, however, is to be used only "when proper." Id . As an exception to the general rule, it should be sparingly used in unique factual situations. See, eg., Lawson v. Lawson , No. 03A01-9709-CH-00406, 1998 Tenn. App. LEXIS 339, at *6 (Tenn.Ct.App. May 20, 1998). It should be noted, moreover, that Robinette addressed a determination of whether alimony should be awarded at all. Robinette provided an exception to the rule that if no alimony was awarded at the time of the final decree, it could not be subsequently awarded. Robinette , 726 S.W.2d at 525. Under Robinette , if a trial court determines that alimony is not needed at the time of the divorce, but that it may become necessary in light of the facts as they exist at the time of the divorce, it may, in its sound discretion, reserve the issue of alimony while granting an absolute divorce. Id .
The legislature and the courts have expressed a public policy in favor of the finality of divorce issues. See, eg., Waddey v. Waddey , 6 S.W.3d 230, 234 (Tenn. 1999). I agree that in rare cases it may be prudent or necessary to reserve the determination of whether alimony should be awarded while granting a final divorce. Such instances should be limited, however, to extenuating factual situations. In the present case, the trial court did not reserve the issue of whether to award alimony. It awarded rehabilitative alimony and reserved jurisdiction to modify that award. As noted, continuing jurisdiction over the award during its pendency is provided by statute. However, the statute does not permit the trial court to modify an award which has not been appealed simply by reserving that right. If such were the case, the trial court could reserve the right to modify an award for any reason. This circumvents the legislative intent expressed by the statute.
The legislature and the courts have recognized that there may be significant changes in circumstances which warrant the modification of an alimony award. See generally, Bogan v. Bogan , 60 S.W.3d 721 (Tenn. 2001). The legislature has expressed that these changes must be both material and substantial. This Court and the Tennessee Supreme Court have interpreted the legislative intent of the statute to reflect a policy that a final decree of divorce should settle the legal issues between the parties with a high degree of finality. See Waddey , 6 S.W.3d at 234 (quoting Harshfield v. Harshfield , 842 P.2d 535, 539 (Wyo. 1992), for the proposition that otherwise, "the finality of divorce would be illusory."). Issues of modification, therefore, are subject to a factually driven material and substantial change test. Bogan , 60 S.W.3d at 727. The exception provided by Robinette is consistent with the recognition that the Code provides "the trial court elasticity of action necessary to meet the equities of the case." Waddey , 6 S.W.3d at 233 (quoting Rogers v. Rogers , 795 S.W.2d 667, 668 (Tenn. 1990)). This elasticity, however, is limited by express provisions in the Code, such as that requiring a showing of a substantial and material change in circumstance which justifies the modification of an alimony award. Such limitations on the Court's ability to modify awards of alimony specifically are noted by this Court in Loria and the Supreme Court in Crabtree . In Loria , we stated, "the Court retains the authority to make appropriate adjustments in keeping with changing circumstances and developments ." Loria v. Loria , 952 S.W.2d 836, 838 (Tenn.Ct.App. 1997) (emphasis added). In Crabtree , the Supreme Court noted, "rehabilitative alimony may be modified if the recipient's prospects for economic rehabilitation materially change ." Crabtree , 16 S.W.3d 356, 360 (Tenn. 2000) (emphasis added). I therefore respectfully disagree with my colleagues that "it is not necessary to show a substantial and material change in circumstances to modify a temporary, open-ended award of rehabilitative alimony." Accordingly, I must dissent from the majority to this extent.