Burlew v. Burlew

• Citation: 40 S.W.3d 465
• Decision Date: 20 February 2001
• Docket Number: 98-01177
• Parties: SUZANNE KAY BURLEW v. BRAD STEVEN BURLEWIN THE SUPREME COURT OF TENNESSEE AT MEMPHIS
• Court: Tennessee Supreme Court

SUZANNE KAY BURLEW v BRAD STEVEN BURLEW

No. M1998-01177-SC-R11-CV

IN THE SUPREME COURT OF TENNESSEE AT MEMPHIS

November 14, 2000 Session

Filed February 20, 2001

Appeal by permission from the Court of Appeals, Western Section Chancery Court for Shelby County: No. D-26813-II

Floyd Peete, Jr., Chancellor

The issue in this divorce case concerns the type and amount of alimony that should be awarded to the Wife. The trial court awarded her $220,000 of alimony in solido to be paid out in decreasing amounts over eight years, and declined to award her rehabilitative alimony. The Court of Appeals affirmed the trial court's in solido award but remanded the case to the trial court to award rehabilitative alimony of at least $1,000 per month for a reasonable period of time. Before this Court, the Husband/appellee argues that rehabilitative alimony is unnecessary and that the alimony in solido award is excessive. The Wife/appellant counters that the in solido award was not excessive; indeed, she argues that she should have been awarded alimony in futuro. We hold that the trial court properly awarded alimony in solido rather than alimony in futuro. We also hold that the trial court did not err in denying the Wife's request for rehabilitative alimony. Thus, we affirm in part and reverse in part the decision of the Court of Appeals.

Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the

Court of Appeals Affirmed in Part; Reversed in Part.

Frank F. Drowota, III, J., delivered the opinion of the court, in which , E. Riley Anderson, C.J., Adolpho A. Birch, Jr., Janice M. Holder, and William M. Barker, JJ. joined.

Stevan L. Black and Vickie Hardy Jones, Memphis, Tennessee, for the appellant, Suzanne Kay Burlew.

William W. Dunlap, Jr., Memphis, Tennessee, for the appellee, Brad Steven Burlew.

OPINION

Suzanne Kay Burlew, the appellant (Wife), and Brad Steven Burlew, the appellee (Husband), were married in 1972 in Flint, Michigan. In 1998, at the time of trial, she was forty-five years old and he was forty-seven. At the beginning of their marriage, the Husband worked for General Motors as an engineer and the Wife studied to obtain a Bachelor of Science degree in nursing. Two years later she began work as a registered nurse and he enrolled in a program to complete prerequisites for medical school while he worked part-time. The next year they moved to Chicago where he enrolled in medical school at Northwestern University and she began new employment.

In 1979, the parties moved to Detroit where the Husband completed an internship, residency, and fellowship in cardiology. The Wife continued to work full-time as a nurse. The next year they started to experience marital problems. The Husband admitted that he had an extramarital affair but promised he would not have other affairs. The parties recommitted to their marriage.

The Wife worked until 1986, and her income was used to pay for living expenses as well as the Husband's medical school expenses. During this time she also obtained a Master's degree in nursing, attending classes on a part-time basis and utilizing a tuition reimbursement plan provided by her employer. In 1986, they moved to Memphis where the Husband accepted a teaching position with the University of Tennessee and joined a private medical practice with the UT Medical Group. The Wife began attending law school at the University of Memphis. She obtained her degree and passed the bar exam in 1989.

During this time the parties unsuccessfully attempted to conceive a child; the Wife had several miscarriages. In 1989, she finally became pregnant. After what was considered a high-risk pregnancy she gave birth to Geoff, the parties' only child. They agreed that she would remain at home to raise Geoff.

The Husband had a second affair in 1993. They again decided to remain married, but in 1995 the Wife learned that he was spending time with another woman. He denies having a sexual relationship with her. In 1996, the Wife filed for divorce, alleging irreconcilable differences and inappropriate marital conduct. The Husband counterclaimed on the same grounds.

The trial court awarded a divorce to the Wife on the ground of inappropriate marital conduct and made various rulings with respect to child custody, visitation rights, attorney fees, and other matters. The court also awarded the Wife alimony in solido. Before discussing this award, and the Court of Appeals' decision, it will be useful to outline the parties' financial and employment status as shown in the trial court record. At the time of trial in 1998, the Husband was a tenured associate professor of medicine at the University of Tennessee, for which he earned $93,000 per year. He also earned $101,300 from his work for the UT Medical Group, and $9,000 as a consultant. His gross income was therefore $203,300 per year. The Wife, at the time of trial, was studying to obtain an M.B.A. degree. She testified that she decided to pursue this degree when she realized that her skills were dated after having stayed home to raise Geoff. While raising Geoff she briefly held two part-time nursing positions, but this was only to obtain her license. She had no source of income other than what she received from her Husband. The parties agreed prior to trial that the division of marital property would be as follows: $377,400 to the Wife (60.7%) and $223,700 to the Husband (39.3%).

Both parties presented expert testimony on the Wife's financial situation. Robert Winfield, a certified financial planner, testified for the Wife that the Husband could pay $3,500 per month in alimony and $2,100 per month in child support. Winfield assumed that the Wife's earning capacity was $30,000 per year and that she would work part-time until Geoff reached the age of twelve. He testified that this amount in alimony and child support, plus $1,000 per month in rehabilitative alimony, would be necessary to prevent the Wife from depleting her share of the marital property. The Husband presented the testimony of William H. Watkins, a certified public accountant. Watkins testified that if the Wife earned $30,000 per year, her net annual income with child support would not require her to encroach upon her share of the marital property. The Husband also testified that the Wife could earn $35,000 to $65,000 per year.

A final area of testimony relevant to this appeal is the Wife's admission that she used over $61,000 in joint marital funds before the trial began. She spent most of this money on her attorneys, the completion of her M.B.A, and Geoff's private school tuition. The Husband also paid her $5,000 per month in temporary child support and alimony while the trial was pending, totaling $105,000.

The trial court ordered the Husband to pay $2,100 per month in child support, as well as Geoff's education expenses of $7,032 per year. The court also awarded the Wife alimony in solido in the amount of $220,000. The Husband was ordered to pay this amount in installments: $45,000 the first year, reduced by $5,000 each subsequent year, ending after eight years. The court required the Husband to pay for the completion of the Wife's M.B.A. degree.

Both parties appealed numerous issues to the Court of Appeals, including the trial court's award of alimony in solido. The Wife contended that the court erred in failing to award her alimony in futuro rather than alimony in solido. The Husband contended that the alimony award was excessive.

The Court of Appeals affirmed the trial court's decision on all issues except that it also awarded the Wife rehabilitative alimony. The trial court's order makes no mention of rehabilitative alimony, but the court implicitly considered and rejected the Wife's request for such alimony because her expert, Winfield, specifically testified that she needed rehabilitative alimony so as not to deplete her share of the marital property.

In ordering rehabilitative alimony the Court of Appeals noted that the Wife worked while the Husband attended medical school and completed his internship, residency, and fellowship and that she moved several times in furtherance of his career, causing her to forfeit certain retirement benefits. The court also noted that the parties agreed she would stay home to raise Geoff. Thus, although she obtained several degrees with his financial support, by their agreement she did not seek outside employment; her old skills are dated, and she has been unable to utilize her new skills. The court noted that although the Wife's earning capacity is unclear based on the trial record, it is substantially less than the Husband's capacity. The court also noted that the Husband's inappropriate marital conduct contributed to the termination of the marriage. Based on these factors, the long duration of the marriage, and the standard of living enjoyed by the parties during the marriage, the court remanded the case to the trial court for a "determination of when Wife could reasonably be expected to attain an income level commensurate with her education and for an award of rehabilitative alimony in an amount not less than $1,000 per month."

We granted the parties' applications to appeal to consider whether the Court of Appeals erred in its rulings concerning alimony, namely, that the trial court properly awarded the Wife $220,000 alimony in solido to be paid out in decreasing amounts over eight years, and that the trial court should have awarded rehabilitative alimony.¹

ANALYSIS

Standard of Review

Appellate review of findings of fact by the trial court are de novo upon the record of the trial court accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d). If the trial court has not made findings of fact with respect to the relevant factors an appellate court must conduct its "own independent review of the record to determine where the preponderance of the...