Vera Elizabeth Thomas v. Kenneth Lamar Thomas

IN THE COURT OF APPEALS OF TENNESSEE FILED AT KNOXVILLE March 15, 2000

Cecil Crowson, Jr. Appellate Court Clerk

VERA ELIZABETH TH OMAS, ) C/A NO. E1999-00563-COA-R3-CV ) Plaintiff-Appellee, ) HAMILTON CHANCERY ) vs. ) HON. W . FRANK BROW N, III ) CHANCELLOR KENNETH LAM AR THOMA S, ) ) AFFIRMED AND Defend ant-App ellant. ) REMANDED

SANDRA J. BOTT, Chattanooga, for Plaintiff-Appellee. DAV ID W. N ORT ON, C hattanoog a, for Def endant-A ppellant.

O P I N IO N

Franks, J.

In this divorce action, the husband appealed from the award of alimony to the w ife.

The w ife wa s 49 years old at the time of trial, and the hus band w as 52. The parties have been married for 28 years, with three adult children.

At the conclusion o f the trial, the Court awarded wife alimony in futuro and attorney’s fees, and made a division of the marital property. The husband filed a Motion to Alter or Amend, which resulted in the Court’s lowering the amount of alimony previously awarded to $2,750.00 for February 1999, $2,250.00 per month for

March through August 1999, $1,750.00 per month from September through December 1999, a nd $1,5 00.00 p er mon th therea fter, unt il her rem arriage or death .

The husband’s brief on appeal contains a statement of the issues presented for appe al, and includes an issue w hich asks “[w]h ether the Trial Court erred in awarding the wife a disproportional share of the parties assets.” The remainder of the brief, however, contains no argument with regard to this issue.

Rule 6 of the Rules o f the Cou rt of App eals of Te nnessee sta tes that:

(a) Written a rgumen t in regard to e ach issue o n appeal sh all contain:

1. A statement by the appellant of the alleged erroneous action of the trial court which raises the issue and a statement by the appellee of any action of the trial court w hich is relied u pon to correct the alleged error, with citation to the record where the erroneous or corrective action is recorded.

2. A statement showing how such alleged error was seasonab ly called to the atten tion of the trial ju dge with citation to tha t part of th e rec ord w here appellan t's challenge of the alleged error is recorded.

3. A statement reciting wherein appellant was prejudiced by such alleged error, with citations to the record showing where the resultant prejudice is recorded.

4. A statement of each determinative fact relied upon with citation to the record where evidence of each such fact may be found.

(b) No complaint of or reliance upon action by the trial court will be considered on appea l unless the arg ument the reon con tains a specif ic reference to the page or pages o f the record where su ch action is recorded. No assertion of fact will be considered on appeal unless the argument upon such assertion contains a reference to the page or pages of the record where evidence of such fact is recorded.

Not only do es husban d’s brief fail to provide the necessary statem ents and refere nces to the re cord as en umerated , it fails to set forth a ny argumen ts in suppo rt of this is sue. Th us, the iss ue will n ot be co nsidere d by the C ourt. See Forde

v. Fisk Un iversity, 661 S.W.2d 88 3 (Tenn. Ct. Ap p. 1983). 1

As to the issue of alimony, we review the Trial Court’s finding of fact de novo with a presumption of correctness. T.R.A.P. Rule 13(d). No presumption of correct ness atta ches to the Tria l Court ’s conc lusions of law .

The Trial Court found that the wife needed alimony, due to her lack of income and her health problems, as well as the long duration of the marriage, the parties’ relative earning capacities in the future and the standard of living enjoyed during the marriage. The Trial Court did encourage the wife to get secretarial or other training so she could generate some income for herself, and this was the reason that the Court allowed for a decrease in alimon y after a certain period of time. The C ourt further found that the husband had the ability to pay alimony to the wife.

The wife testified she had been treated for depression, an ulcer, colitis, hypoglycemia and glaucoma. In this 28 year marriage, the wife testified she had not worked outside of the home in more than twenty years, and that she had tried to find employment since the parties separated, but had met with no success.

The hus band testifie d that he w orked fo r Fletcher B right Com pany until 1995, and then became self-employed. Although his income with Fletcher Bright had been significantly higher, the Trial Court found the husband’s net income since becoming self-employed had averaged around $50,000.00 per year. The evidence does not preponderate against the Court’s finding that the wife had a need for alimony and that the husband had the ability to pay. T.R.A.P. Rule 13(d ).

The parties’ tax returns for the last three years demonstrated that husba nd’s av erage yea rly net inco me w as appr oxima tely $50.0 00.00 a nd incr easing . Wife had no recent job experience, and had no marketable skills or prospects of emplo yment.

Husband argues that the Court should have awarded wife rehabilitative alimony rather than alimony in futuro. Tenn. Code Ann. §36-5-101 makes clear that there is a pref erence fo r rehabilitative a limony, but the c ourts may gra nt alimony in futuro where rehabili tation is n ot feasi ble. Long v. Long, 968 S.W .2d 292 (T enn. Ct. App. 1 997). See also Brown v. Brown, 1990 W L 1409 12 (Tenn . Ct. App. 1 990); Crabtree v. Crabtree, 1998 WL 382210 (Ten n. Ct. App. 1998).

Ford v. Ford, 952 S.W.2d 824 (Tenn. Ct. App. 1996), and Long v. Long,

We also note that the husband failed to set forth the proper tabulation of marital property required by Rule 15 of the Rules of the Court of Appeals of Tennessee.

968 S.W.2d 292 (Tenn. Ct. App. 1997), teach that is improper to award rehabilitative alimony wh ere rehabilitatio n is not feas ible. These c ases and o thers deal w ith situations w here one s pouse w as so econ omically disad vantaged when c ompared with the other sp ouse, that the spouse co uld not be e conomic ally rehabilitated. Sim ilarly here, rehabilitation is not feasible because of the great earnings disparity between the parties. Wife is almost 50 years old, has health problems, no marketable skills, and no real job experience. The Trial Court properly considered all of the factors when making th e award o f alimony to the wife, and we affirm the judgm ent.

Wife has asked this Court to make an award of her attorney’s fees incurre d on the appea l, which we ca n do, if p roper. See Seaton v. Seaton, 516 S.W.2d 91 (Te nn. 197 4). Atto rney fees are con sidered as addi tional alim ony. Ford, and Long, Keisler v. Keisler, 1997 WL 427026 (Ten n. Ct. App. 1997). W e conclude the record establishes a basis to award the wife her reasonable attorney’s fees incurred on the appea l. See Sane lla v. Sanella , 993 S .W.2d 73 (Te nn. Ct. A pp. 199 9).

The judgment of the Trial Court is affirmed and upon remand, the Trial Court w ill set the wife’s reasonab le attorney’s fees for her rep resentation o n appeal, and the a mou nt w ill be awa rded agai nst th e husban d as a dditiona l alim ony.

The cost o f the appe al is assessed to the appellan t.

__________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Charles D. Susano, Jr., J.

___________________________ D. Michael Swiney, J.