Paula J. Byrant vs. Johnny Alan Bryant
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IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 8, 2009 Session
PAULA J. BRYANT v. JOHNNY ALAN BRYANT
Appeal from the General Sessions Court for Roane County
No. 9244A
Jeff Wicks, Judge
No. E2009-01838-COA-R3-CV - FILED JANUARY 11, 2010
Paula J. Bryant (“Wife”) filed suit seeking a divorce from Johnny Alan Bryant (“Husband”)
following a marriage of over twenty-one years. The parties were able to resolve all
significant issues prior to trial except the amount and duration of alimony Wife would
receive. Following a trial, the Trial Court awarded Wife rehabilitative alimony in the amount
of $850 per month for a period of eighteen (18) months, then $500 per month for the next
sixty (60) months. We affirm the Trial Court’s award of rehabilitative alimony to Wife, but
modify the award and order Husband to pay rehabilitative alimony to Wife for a period of
twenty-four (24) months in the amount of $850 per month. As modified, the judgment of the
Trial Court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General
Sessions Court Affirmed as Modified; Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which C HARLES D. S USANO,
J R., and JOHN W. M CC LARTY, J.J., joined.
James S. Smith, Jr., Rockwood, Tennessee, for the Appellant, Johnny Alan Bryant.
Martin W. Cash, Jr., Kingston, Tennessee, for the Appellee, Paula J. Bryant.
OPINION
Background
Wife filed a complaint seeking a divorce from Husband on the ground of
adultery. More specifically, Wife alleged that in September of 2008, Husband moved out of
the marital residence after informing Wife that he was involved in a sexual relationship with
a coworker. Alternatively, Wife sought a divorce based on irreconcilable differences.
Husband answered the complaint and admitted that he was involved in a sexual
relationship with a coworker. Husband then filed a counterclaim asserting that Wife was
guilty of cruel and inhuman treatment. As an alternative basis for divorce, Husband also
alleged that irreconcilable differences had arisen between the parties.
The parties have two children, only one of whom is a minor. The minor child
currently is fifteen years old.
Prior to trial, Wife filed an affidavit of income and expenses showing monthly
expenses of $2,217. Wife had no monthly income as she was not employed outside of the
home and was home-schooling the parties’ minor child. Husband also filed an affidavit of
expenses which showed monthly expenses of $2,454. Husband’s affidavit did not show the
amount of his monthly income.
The parties mediated this case and were able to reach an agreement on almost
everything. The parties agreed that Wife would be designated as the minor child’s primary
residential parent. The parties also agreed on a schedule for Husband’s co-parenting time,
that Husband would pay child support in the amount of $797 per month, and that Husband
would maintain health insurance on the minor child.
The parties also agreed on how to equitably divide the marital assets. The
mediated settlement agreement is vague with respect to the property distribution. Wife
received the house 1 and everything in the house except a gun cabinet, juke box, and
Husband’s personal effect and financial papers. Wife received a 1999 Dodge and a 1998
1
There was considerable disagreement at trial pertaining to what the parties actually had agreed to
at mediation with respect to the equity in the marital residence. The Trial Court interpreted the mediated
settlement agreement as follows: “[T]he house is awarded to the wife with no equity going to the husband
on that.” As best we can tell from the record, there was approximately $18,000 in equity in the marital
residence, but tax consequences made it disadvantageous to sell the house in the near future. Although none
of this is directly at issue on appeal, the division of marital property is a factor to be considered in an award
of alimony, and we note the parties’ single biggest marital asset was awarded solely to Wife.
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Windstar. Husband received a 1996 Ford F150 truck. In addition, Wife was awarded
separate property she had received from an inheritance. The record does not indicate the
exact amount of the separate property awarded to Wife because she had made some
purchases with this separate property, and the record does not indicate the value of what was
purchased.
The only issue that the parties were unable to resolve in mediation was the
amount and duration of alimony Wife was to receive. This sole remaining issue was tried
in March 2009. Prior to trial, counsel for Husband acknowledged that Husband did not “take
issue with the fact that some rehabilitative alimony is probably necessary here.”
Wife was the first witness at trial. Wife testified that she has been homeschooling the younger child for the past nine years. Wife testified that she was employed
part-time at K-Mart when she married Husband in 1987. Wife worked outside the home only
sporadically during the marriage as her primary responsibility was to stay home and raise the
children and take care of the home. Wife had income nine of the last twenty-three years. For
those years where at least some income was earned, Wife’s annual income ranged from a low
of $165 to a high of $7,273.
Wife currently is enrolled in school. According to Wife:
Q
What are you studying to be now?
A
It’s business system technologies. You can go for an
administrative assistant. I’ve chosen to do that along
with medical and accounting. . . .
Q
Okay. How much more time until you matriculate?
A.
If I’m pushing myself I could probably – anywhere
between nine and twelve months, but that is pushing it.
In twelve I expect to graduate.
Q.
All right. And after you graduate, do you intend to get a
job?
A.
Yes. . . .
Q
Okay. Now, do you have any idea what your income will
be?
-3-
A.
Not right off. It might start at ten. I have a young lady
that works in Oak Ridge that will try to help me, and
most likely start out between $15.00 to $17.00 an hour,
if I can get in where she’s at.
In addition to being responsible for caring for the children and the house, Wife
also took care of the yard. Wife testified that she had monthly expenses of $2,217, which is
consistent with her affidavit of income and expenses previously filed with the Trial Court.
Based on the mediated settlement agreement entered into before trial which resolved most
of the issues, the parties agreed at that time that Husband’s monthly income was $4,583.
Wife was not actively employed.
Husband also testified at trial. Husband testified that his monthly expenses
were “about $2,450.” Husband is a mechanic and drives a dump truck. At the time of trial,
Husband was earning $13.80 per hour. Husband had been working a lot of overtime, but has
no way of knowing if the overtime will last because of various factors, including available
jobs, the weather, etc. Husband testified that with a lot of overtime, he earned “54
something” in 2008.
Following the trial, a final judgment was entered by the Trial Court which
provided as follows:
1.
2
The parties have stipulated that both parties are entitled
to a divorce one from the other based upon Tennessee
Code Annotated Section 36-4-129.2 Each party is
therefore awarded the divorce and the parties are hereby
restored to all rights and privileges of single persons.
Tenn. Code Ann. § 36-4-129 (Supp. 2009) provides as follows:
Stipulated grounds and/or defenses – Grant of divorce. – (a) In all
actions for divorce from the bonds of matrimony or legal separation the
parties may stipulate as to grounds and/or defenses.
(b) The court may, upon stipulation to or proof of any ground of divorce
pursuant to § 36-4-101, grant a divorce to the party who was less at fault or,
if either or both parties are entitled to a divorce or if a divorce is to be
granted on the grounds of irreconcilable differences, declare the parties to
be divorced, rather than awarding a divorce to either party alone.
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2.
The parties’ agreed upon permanent parenting plan has
been approved by the Court and entered as the Order of
this Court.
3.
The parties’ Settlement Agreement . . . is incorporated
into this Final Decree of Divorce as if [fully] set forth
verbatim herein.
4.
During the marriage, [Husband] was the financial
provider. The parties have stipulated that [Husband]
earns $4,583.00 per month and [Wife] does not presently
have an income. [Wife’s] normal monthly expenses are
$2,217.00 per month and [Husband’s] normal monthly
expenses are $2,454.00 per month. [Wife] is currently in
school and will graduate in nine to twelve months.
Alimony is, in part, based upon one party’s need and the
other party’s ability to pay. The parties are now living
separate from one another. The Court therefore finds
that [Wife] is in need of rehabilitative alimony and
[Husband] has the ability to pay the alimony.3
5.
The Court hereby awards [Wife] rehabilitative alimony
in the amount of $850.00 per month to be paid for the
first eighteen (18) months following entry of the Final
Decree of Divorce. The Court further awards [Wife]
rehabilitative alimony in the amount of $500.00 per
month for five years (60 months) following the
expiration of the first eighteen (18) months following
entry of the Final Decree of Divorce. The total period of
rehabilitative alimony is seventy eight (78) months. . . .
(footnotes added)
Husband appeals raising the following issue, which we take verbatim from his
brief:
3
For some unknown reason, the beginning of paragraph 4 is cut-off from the copy of the final
judgment contained in the record. We, therefore, are beginning this paragraph with the first complete
sentence contained in the copy that we have been provided.
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Whether the Honorable Trial Court erred in awarding [Wife]
rehabilitative alimony in the amount of $850.00 per month for
eighteen months and an additional $500.00 per month for five
years following the eighteen months, for a total period of
rehabilitative alimony of seventy-eight (78) months.
Wife argues that the Trial Court’s award should be affirmed. In addition, Wife
requests that she be awarded her attorney fees incurred on appeal.
Discussion
This Court reviews a trial court’s decision with respect to an award of alimony
under an abuse of discretion standard. See Garfinkel v. Garfinkel, 945 S.W.2d 744, 748
(Tenn. Ct. App. 1996)
The pertinent statute is Tenn. Code Ann. § 36-5-121(i) (2005) which provides
as follows:
(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:
(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;
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(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.
“The two most important factors a trial court must consider are the need of the
disadvantaged spouse and the obligor spouse’s ability to pay.” Mimms v. Mimms, 234
S.W.3d 634, 638 (Tenn. Ct. App. 2007) (citing Bratton v. Bratton, 136 S.W.3d 595, 604
(Tenn. 2004)).
Other statutory factors we must consider in this case are set forth in Tenn. Code
Ann. §§ 36-5-121(c)(2) and (d)(2) (2005) which provide:
(c)(2) The general assembly finds that the contributions to the
marriage as homemaker or parent are of equal dignity and
importance as economic contributions to the marriage. Further,
where one (1) spouse suffers economic detriment for the benefit
of the marriage, the general assembly finds that the
economically disadvantaged spouse’s standard of living after the
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divorce should be reasonably comparable to the standard of
living enjoyed during the marriage or to the post-divorce
standard of living expected to be available to the other spouse,
considering the relevant statutory factors and the equities
between the parties.
***
(d)(2) It is the intent of the general assembly that a spouse, who
is economically disadvantaged relative to the other spouse, be
rehabilitated, whenever possible, by the granting of an order for
payment of rehabilitative alimony. To be rehabilitated means to
achieve, with reasonable effort, an earning capacity that will
permit the economically disadvantaged spouse’s standard of
living after the divorce to be reasonably comparable to the
standard of living enjoyed during the marriage, or to the
post-divorce standard of living expected to be available to the
other spouse, considering the relevant statutory factors and the
equities between the parties.
When considering the applicable statutory factors set forth above, we agree
with the Trial Court that an award of rehabilitative alimony to Wife was necessary.
However, we think the duration of rehabilitative alimony awarded to Wife was excessive
under the facts of this case. The record establishes that Wife was set to graduate in nine to
twelve months following the date of trial. Wife testified that after graduation, she “most
likely” would be earning $15.00 to $17.00 per hour. At the time of trial, Husband was
earning $13.80 per hour. Thus, within a matter of one year, Wife likely will be making more
per hour than Husband. As discussed previously, Wife was awarded all of the parties’
interest in the marital residence and almost everything in the house that the parties had
accumulated during the lengthy marriage. Wife had separate property; Husband did not.
Based on the foregoing, we believe it is necessary to modify the award of
rehabilitative alimony made to Wife. The judgment of the Trial Court is modified to reflect
an award of rehabilitative alimony for a period of twenty-four (24) months in the amount of
$850 per month. This two year period of rehabilitation should be more than sufficient,
according to Wife’s testimony, to allow her both to graduate as well as to allow her
additional time to find a job and establish herself in her new profession so that her standard
of living after the divorce should be reasonably comparable to Husband’s expected postdivorce standard of living. As modified, the judgment of the Trial Court is otherwise
affirmed. See Booker v. Booker, No. M2005-01455-COA-R3-CV, 2006 WL 3044154, at *4
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(Tenn. Ct. App. Oct. 26, 2006) (“Considering the two most critical factors in making an
award of alimony, the ‘real need’ of the spouse and the ability of the obligor spouse to pay,
as well as the remaining statutory factors set forth in T.C.A. § 36-5-121(i), this Court holds
that an award of rehabilitative alimony of $500 per month for 60 months is appropriate. This
period coincides with Wife’s five-year education plan.”).
In light of the modification we have made to the award of rehabilitative
alimony, we do not find it appropriate to award Wife attorney fees incurred on appeal.
Conclusion
The judgment of the Trial Court is modified to award Wife rehabilitative
alimony for a period of twenty-four (24) months in the amount of $850 per month. As so
modified, the judgment of the Trial Court is affirmed. This case is remanded to the Trial
Court solely for collection of the costs below. Costs on appeal are taxed to the Appellee,
Paula J. Bryant, for which execution may issue, if necessary.
_________________________________
D. MICHAEL SWINEY, J.
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