Sullivan v. Sullivan

• Decision Date: 07 August 2002
• Citation: 107 S.W.3d 507
• Parties: Kenneth W. SULLIVAN v. Linda R. SULLIVAN.
• Court: Tennessee Court of Appeals

107 S.W.3d 507

Kenneth W. SULLIVAN v. Linda R. SULLIVAN.

Court of Appeals of Tennessee, at Nashville.

August 7, 2002 Session.

September 5, 2002.

Application for Permission to Appeal Denied by Supreme Court February 3, 2003.

Patricia R. Young, Brentwood, Tennessee, for the appellant, Kenneth W. Sullivan.

Ernest W. Williams and Anna E. Freeman, Franklin, Tennessee, for the appellee, Linda R. Sullivan.

OPINION

DAVID R. FARMER, J., delivered the opinion of the court, in which W. FRANK CRAWFORD, P.J., W.S., and HOLLY K. LILLARD, J., joined.

This appeal arises from a divorce action. The plaintiff/appellant appeals the division of marital property, award of alimony in futuro, amount of alimony, and award of attorney's fees. We affirm the award of alimony as modified herein, affirm the division of property, and reverse the award of attorney's fees.

Kenneth and Linda Sullivan were married in 1976 and have two adult children. Mrs. Sullivan holds a BS in education and home economics, with a focus on interior design. Dr. Sullivan is a family practice physician. The couple spent most of their married life in Louisiana, relocating to Tennessee in 1995. The couple was separated and reconciled twice prior to this action, including a 1999 separation during which Mrs. Sullivan filed for divorce in Tennessee.

In September of 1999, Dr. Sullivan filed a complaint for divorce alleging irreconcilable differences and/or inappropriate marital conduct. Mrs. Sullivan admitted irreconcilable differences, denied inappropriate conduct, and counter-complained on the grounds of adultery and cruel and inhuman treatment. Mrs. Sullivan sought permanent alimony (including medical insurance), payment by Dr. Sullivan of all debts, and attorney's fees. Dr. Sullivan admitted to having a relationship after the parties' separation, but denied other fault allegations. The marital home was sold in December of 1999 and the proceeds were deposited with the Williamson County Clerk and Master.

When Dr. Sullivan filed his complaint, he was employed as a physician by the Franklin Medical Center with a base salary of $135,000. The Center closed in April of 2000 and Dr. Sullivan began a private practice which lost $68,000 in 2000. In April of 2001, Dr. Sullivan accepted a position with a pain management clinic at a salary of $110,000. He submits that the debts from his private practice were $93,000. Mrs. Sullivan worked early in the marriage, and has worked part time in interior design. Mrs. Sullivan suffers from scoliosis and arthritis, and has undergone several surgeries to her feet. Dr. Sullivan suffers from back problems and has mild coronary artery disease.

The trial court granted Mrs. Sullivan a divorce based on adultery and inappropriate marital conduct. The court awarded Mrs. Sullivan long-term alimony of $3,500 per month until death, remarriage or age 65, plus medical insurance premiums. Dr. Sullivan was ordered to maintain a life insurance policy of $350,000, with Mrs. Sullivan designated as the beneficiary. The court awarded each party their separate property. Mrs. Sullivan received marital property valued at $139,069. The court allocated debt of $7,062 to Mrs. Sullivan. Dr. Sullivan was awarded property valued at $120,706, including a credit of $16,758 for pendente lite support. Dr. Sullivan was allocated $153,357 of debt. The court further allocated $17,000 of the proceeds from the sale of the marital home to pay Mrs. Sullivan's attorney's fees, and $10,000 of the proceeds to pay Dr. Sullivan's attorney's fees.¹

Issues

Dr. Sullivan raises the following issues, as we perceive them, for our review:

(1) Whether the court erred by awarding permanent alimony rather than rehabilitative alimony.

(2) Whether the award of alimony is excessive.

(3) Whether the property award is equitable.

(4) Whether the court erred by awarding her attorney's fees.

Mrs. Sullivan seeks modification of the alimony award to continue until remarriage or death and attorney's fees for this appeal.

Standard of Review

To the extent these issues involve questions of fact, our review of the trial court's ruling is de novo with a presumption of correctness. Tenn. R.App. P. 13(d); e.g., Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn.2000). We may not reverse the trial court's factual findings unless they are contrary to the preponderance of the evidence. Id. With respect to the court's legal conclusions, however, our review is de novo with no presumption of correctness. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000). We give great weight to the factual findings of the trial court which rest on determinations of witness credibility. Randolph v. Randolph 937 S.W.2d 815, 819 (Tenn.1996). Accordingly, we will not reevaluate a trial judge's assessment of witness credibility absent clear and convincing evidence to the contrary. Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.1999).

The Award of Alimony

Dr. Sullivan contends that the trial court erred in awarding Mrs. Sullivan permanent rather than rehabilitative alimony, and further contends that the amount of alimony is excessive. Mrs. Sullivan submits that the amount is not excessive, but that alimony should be awarded until death or remarriage. We review matters of alimony under an abuse of discretion standard. If the discretionary decision is within a range of acceptable alternatives, appellate courts will not substitute their decision for that of the trial court simply because the appellate court would have chosen a different alternative. White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn.Ct.App.1999). We review the trial court's discretionary decisions to determine: (1) whether the decisions are supported by the facts in evidence; (2) whether the trial court identified and applied the applicable legal principles; (3) whether the trial court's decisions are within the range of acceptable alternatives. Id.

Whether an alimony award is appropriate is dependent on the facts and circumstances of each case. The need of the recipient spouse, followed by the obligor's ability to pay, are the primary considerations in the determination of an award of alimony. Lancaster v. Lancaster, 671 S.W.2d 501, 503 (Tenn.Ct.App. 1984); Goodman v. Goodman, 8 S.W.3d 289, 295 (Tenn.Ct.App.1999). In making its determination of an alimony award, the court must balance several statutory factors including those enumerated in section 36-5-101(d)(1) of the Tennessee Code.² The trial court has broad discretion in determining the type, amount, and duration of alimony based upon the particular facts of each case. Kinard v. Kinard, 986 S.W.2d 220 (Tenn.Ct.App.1998). The amount of alimony is largely within the discretion of the trial court. Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn.2001). This Court is not inclined to alter a trial court's award of alimony absent a finding of an abuse of discretion. Id.

Our statutes express a preference for an award of rehabilitative alimony. Tenn.Code Ann. § 36-5-101(d)(1)(2000); Crabtree v. Crabtree, 16 S.W.3d 356, 358 (Tenn.2000). 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 and remain self-sufficient. Loria v. Loria, 952 S.W.2d 836, 838 (Tenn.Ct.App.1997); Burlew, 40 S.W.3d at 470-71. Rehabilitative alimony is intended to promote the self-sufficiency of the disadvantaged spouse by allowing him/her to acquire additional job skills, education, or training. Kinard, 986 S.W.2d at 234.

Rehabilitative alimony is appropriate where the trial court finds that the recipient, disadvantaged spouse can be economically rehabilitated. Crabtree, 16 S.W.3d at 360. Where the court has determined that economic rehabilitation is not feasible and long-term support is therefore necessary, the court may award permanent, or in futuro, alimony. Id. at 359. The trial court is afforded wide discretion in the determination of whether rehabilitative or in futuro alimony should be awarded. Id. at 360.

The trial court awarded Mrs. Sullivan alimony in futuro of $3,500 until death, remarriage or age 65. In light of the length of this marriage, the work histories of the parties, their educational backgrounds, age and health status, we believe the award of alimony in futuro is appropriate. Upon review of the record, however, we believe that amount of alimony awarded is excessive. Dr. Sullivan earns an annual salary of $110,000, and there has been no finding in this case of voluntary underemployment. We find that Dr. Sullivan's ability to pay does not exceed $2,000 per month, and accordingly modify the amount of alimony in futuro to that amount. In light of Mrs. Sullivan's work history and health, and the relative earning capacities of these parties, we also modify the award to be payable until death or remarriage.

Division of Marital Property

Courts are required to divide marital property equitably, not equally, penny for penny. See Ellis v. Ellis, 748 S.W.2d 424, 427 (Tenn.1988). An equitable division of property must reflect consideration of the factors enumerated in the Tennessee Code. The Code provides that in determining an equitable distribution of property, the trial court shall consider:

(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 a homemaker, wage earner or parent, with the contribution of a party as a homemaker or wage earner to be...