Session: December 6, 2017
from the Circuit Court for Sumner County No. 2014-CV-1366 Joe
divorce, the husband appeals the trial court's award of
alimony in futuro, the amount of alimony awarded, and the
allocation of marital debt. Concluding that the evidence does
not preponderate against the trial court's findings and
that the trial court did not abuse its discretion in applying
relevant legal principles, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
F. Bloom, Nashville, Tennessee, for the appellant, Charles
Melanie R. Bean, Lebanon, Tennessee, for the appellee, Pamela
M. Howey Tooley.
D. Bennett, J., delivered the opinion of the Court, in which
Frank G. Clement, Jr., P.J., M.S., and W. Neal McBrayer, J.,
D. BENNETT, JUDGE
AND PROCEDURAL BACKGROUND
Joseph Tooley ("Husband") and Pamela M. Howey
Tooley ("Wife") were married on February 19, 1991.
At the time of trial, they had one minor child from the
marriage, Noah, born in January 2000, and one adult child who
is severely disabled, Caitlyn,  born in February
1994. After twenty-three years of marriage,
Husband filed for divorce on two grounds. He also filed a
petition seeking a conservatorship for Caitlyn, which the
trial court consolidated with the divorce action. Wife filed
an answer and counter-complaint based on three grounds.
with filing her answer, Wife filed a motion seeking pendente
lite support, adoption of her temporary parenting plan,
exclusive use of the marital home, and an order requiring
Husband to make certain repairs to the home. The trial court
entered an agreed order on May 14, 2015, in which the parties
agreed that Husband would have access to the marital home,
make specified repairs to the marital home, and pay Wife
$250.00 per week. The parties further agreed that Wife would
receive Caitlyn's Supplemental Security Income
("SSI") benefit in the amount of $733.00 per month
and would be responsible for food, fuel, clothing, and school
expenses, as well as the minimum payments on the credit cards
listed in her name.
trial court heard the case on November 10, 2016. As a
preliminary matter, the court heard from the guardian ad
litem ("GAL") in the conservatorship action. The
GAL described Caitlyn as "emotional, " explaining
that she has outbursts and "throws fits" when there
are disruptions to her schedule, such as when strangers come
into the home. In regard to Caitlyn's level of
disability, the GAL stated that she "has the ability to
do some things, but she needs help with a lot of
things." For example, she needs help getting dressed
because "certain items of female clothing can be a
challenge for her" and, while Caitlyn is capable of
feeding herself, she is unable to prepare her own meals. The
GAL reported that Caitlyn is "semi-verbal" but
difficult to understand. When asked by the trial court about
Caitlyn's need for daily supervision, the GAL responded
that "she basically needs to have an adult with her at
time of trial, Husband was fifty-eight years old. He has a
high school diploma and works as a service technician for
Cushman & Wakefield earning $22.15 per hour. He testified
that he has worked for Cushman & Wakefield for seventeen
years and does not anticipate any promotions or pay raises.
According to Husband, the parties struggled financially
throughout the marriage. He was the sole financial provider
for the family and worked as much overtime as possible. Seven
years prior to trial, the parties discussed Wife obtaining
employment in order to assist the family financially. Husband
explained that Wife considered enrolling in an online program
to learn how to do medical billing or medical transcription
so she could work from the home; however, she did not pursue
this training during either the marriage or the parties'
agreed that Caitlyn needed someone to take care of her. He
testified that Noah, not Wife, usually acted as Caitlyn's
primary caregiver because Wife exercised three or four hours
per day. During cross-examination, however, he admitted that
the only care he knew that Noah provided for Caitlyn was
assisting Wife in the tasks of cooking breakfast, changing
the television channel, and turning on Caitlyn's iPad.
Husband admitted that he had only gone to the marital
residence to visit with Caitlyn and Noah a maximum of fifteen
times between January and November of 2016. He acknowledged
that he needed to visit Caitlyn more consistently so she
could become more comfortable with his visits.
Husband testified that Wife amassed over $20, 000 in credit
card debt. He stated he was unaware of the amount of the debt
or the number of credit cards Wife had been using until
discovery. Husband attributed the large debt to Wife's
shopping addiction. He introduced into evidence photographs
of closets full of clothing, some still in wrappers, and
shopping bags full of more clothes that still had the sales
tags on them.
was forty-seven years old at the time of trial. She attended
college for three years but did not graduate. Prior to the
marriage, Wife worked at Toys R Us earning $6.00 per hour.
During the marriage, she did not work outside the home.
Instead, she acted as the primary caregiver for the
parties' children. Wife testified that she homeschooled
Noah and served as Caitlyn's primary caregiver. In
December 2011, Wife was diagnosed with breast cancer.
Although she had no active cancer at the time of trial, she
was still undergoing reconstructive treatment. She denied
having a shopping addiction, explaining that most of the
clothes in the photographs submitted by Husband were items
she had gathered for a consignment sale. She stated that the
photographs were taken close to Christmas and the items with
tags still on them were purchased as presents for their
admitted that, during the marriage, she and Husband discussed
her completing online classes for medical billing or medical
transcription. According to Wife, she completed paperwork
with a career institute to take the online classes and then
asked Husband to pay for them, but he refused. Wife stated
that she inquired about Pell grants to pay for the classes
and learned that she did not qualify "because of
income." After Husband filed for divorce, Wife again
researched online classes for medical billing or medical
transcription. She testified that, even if she took the
online classes, there was no guarantee that she would obtain
employment that would permit her to work from home. She
further testified that she could not work outside of the home
because she needed to care for Caitlyn at home.
explained that she could not hire someone to watch Caitlyn
because Caitlyn does not respond well to strangers or
unfamiliar situations. She agreed with the GAL's
description of Caitlyn's response to strangers and
attributed the emotional outbursts to Caitlyn's need for
"structure and routine." To avoid emotional
outbursts, Wife must prepare Caitlyn days in advance before
deviations in her routine occur, such as attending dental
appointments. Wife prepares Caitlyn by talking to her
beforehand and relaxing her by persuading Caitlyn "to
color pictures for people." Despite this preparation,
Caitlyn sometimes still has emotional outbursts when her
routine is altered. Wife explained that Caitlyn's
outbursts also can sometimes occur in response to simple
matters such as dressing her: "If you go to get her
dressed - go get her to get her clothes on, she may throw it
back at you. . . . She'll get upset so sometimes you just
have to walk away and then come back and try again, walk
away, come back and try it again." Finally, Wife stated
that, even if Caitlyn did not respond negatively to strangers
or unfamiliar situations, she still could not hire someone to
watch Caitlyn because she could not afford to do so.
trial court entered a final decree of divorce on February 22,
2017. In the final decree, the trial court appointed Wife as
the conservator of Caitlyn, established her as the primary
residential parent, and adopted her proposed parenting plan,
pursuant to which Father had eighty days of parenting time
per year. The court found that Caitlyn is "severely
disabled" as contemplated by Tenn. Code Ann. §
36-5-101(k)(2) and ordered Husband to pay $1, 140 per
month in child support. The trial court awarded Wife the
marital residence, stating that she would be responsible for
the $95, 466.57 mortgage associated with the property. In
regard to the parties' marital debt, the court ordered
that Wife would be responsible for $5, 240 of credit card
debt and Husband would be responsible for the remaining
marital debt, which was $48, 000. Wife would also be
responsible for a separate debt in the amount of $41,
Finally, the trial court awarded Wife alimony in futuro in
the amount of $1, 300 per month.
appeal, Husband presents the following issues for our review:
whether the trial court abused its discretion (1) in awarding
Wife alimony in futuro, (2) in determining the amount of
alimony, and (3) in requiring Husband to pay the consumer
credit card debts incurred by Wife.
presents only one issue: whether she should be awarded her
attorney fees incurred on appeal.
review of the trial court's findings of fact is de novo
with a presumption that the findings are correct unless the
evidence preponderates otherwise. Tenn. R. App. P. 13(d);
Nelson v. Nelson, 106 S.W.3d 20, 22 (Tenn. Ct. App.
2002). Evidence preponderates against the trial court's
findings of fact when it "support[s] another finding of
fact with greater convincing effect." Hopwood v.
Hopwood, No. M2015-01010-COA-R3-CV, 2016 WL 3537467, *4
(Tenn. Ct. App. June 23, 2016) (citing Walker v. Sidney
Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App.
2000)). We review a trial court's conclusions of law de
novo, according them no presumption of correctness.
Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001);
Nelson, 106 S.W.3d at 22.
court has "broad discretion to determine whether spousal
support is needed and, if so, its nature, amount, and
duration." Owens v. Owens, 241 S.W.3d 478, 493
(Tenn. Ct. App. 2007). As the Tennessee Supreme Court has
[A] trial court's decision regarding spousal support is
factually driven and involves the careful balancing of many
factors. Kinard v. Kinard,986 S.W.2d 220, 235
(Tenn. Ct. App. 1998); see also Burlew, 40 S.W.3d at
470; Robertson v. Robertson,76 S.W.3d 337, 340-41
(Tenn. 2002). As a result, "[a]ppellate courts are
generally disinclined to second-guess a trial judge's
spousal support decision." Kinard, 986 S.W.2d
at 234. Rather, "[t]he role of an appellate court in
reviewing an award of spousal support is to determine whether
the trial court applied the correct legal standard and
reached a decision that is not clearly unreasonable."
Broadbent v. Broadbent,211 S.W.3d 216, 220 (Tenn.
2006). Appellate courts decline to second-guess a trial
court's decision absent an abuse of discretion.
Robertson, 76 S.W.3d at 343. An abuse of discretion
occurs when the trial court causes an injustice by applying
an incorrect legal standard, reaches an illogical result,
resolves the case on a clearly erroneous assessment of the
evidence, or relies on reasoning that causes an injustice.
Wright ex rel. Wright v. Wright,337 S.W.3d 166, 176
(Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d
328, 335 (Tenn. 2010). This standard does not permit an
appellate court to substitute its judgment for that of the
trial court, but "'reflects an awareness that the
decision being reviewed involved a ...