Session April 9, 2019
from the Chancery Court for Shelby County No. CH-15-0482
JoeDae L. Jenkins, Chancellor
a divorce case. Husband filed for divorce after 20 years of
marriage. Following a three-day trial, the trial court
determined Wife could not be rehabilitated and ordered
Husband to pay $9, 700 per month in alimony in
futuro. We conclude that the trial court erred by
failing to consider Wife's earning capacity in setting
Husband's alimony obligation. Accordingly, we modify
Husband's alimony obligation by the amount of Wife's
earning capacity as determined by the trial court. Affirmed
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court is Affirmed as Modified and
Capparella and Kimberly Macdonald, Nashville, Tennessee, for
the appellant, Richard Alan Pearson.
Gattas Coleman and Timothy M. Ginski, Memphis, Tennessee, for
the appellee, Christen Creighton Pearson.
Armstrong, J., delivered the opinion of the court, in which
John W. McClarty and Arnold B. Goldin, JJ., joined.
Richard Alan Pearson ("Husband") and Appellee
Christen Creighton Pearson ("Wife") were married on
May 27, 1995. At the time of the divorce, Husband was 51
years old, and Wife was 58 years old. Wife has three children
from a prior marriage, and the parties have two children,
both of whom are now adults.
neither party graduated from college, Husband began working
for his family business in 1985. The family business was
eventually bought by Husband's current employer, Ram Tool
& Supply. In 2013, Husband began travelling extensively
for work managing multiple stores in Texas and a store in
Memphis. In 2014, Husband leased an apartment in New
Braunfels, Texas and travelled between Memphis and Texas.
While in Texas, Husband began an affair with another woman.
April 10, 2015, Husband filed a complaint for divorce
alleging inappropriate marital conduct and irreconcilable
differences as grounds. At or around the time he filed the
complaint for divorce, Husband moved in with his paramour. On
September 9, 2015, Wife filed an answer and counter-complaint
for divorce. In her pleading, Wife denied inappropriate
marital conduct on her part but alleged that irreconcilable
differences existed and that Husband was guilty of
inappropriate marital conduct. In August 2017, Wife filed an
amended complaint for divorce alleging adultery as an
additional ground for divorce.
trial was held on November 1 and 2, 2017 and January 24,
2018. As this was a long term marriage, two of the major
issues at trial were Wife's need for alimony and
Husband's ability to pay it. Husband was the sole
provider during the parties' marriage earning an average
of $358, 459.54 per year. His income was comprised of two
components: (1) his base salary; and (2) his annual bonus.
Typically, Husband took a monthly draw in anticipation of his
annual bonus. To support his contention that his future
bonuses would not be comparable to those received in years
past, Husband introduced a letter from his employer
("Ram Letter"). As discussed below, the letter
warned Husband that he should review his monthly draw amount
so that he would not face a negative balance for his 2017
bonus. The trial court sustained a hearsay objection from
Wife's attorney and refused to admit the letter into
she was a stay-at-home mother during the parties'
marriage, at the time of the divorce, Wife was working
part-time at Starbucks, where she earned $9.00 per hour. The
trial court determined that due to Wife's advanced age,
lack of professional experience, and prior academic record,
Wife could not be rehabilitated. However, the trial court
also determined that Wife had an earning capacity of $28,
000.00 per year. According to the trial court's findings
of fact and conclusions of law, which it filed on June 7,
2018, Wife needed $9, 700.00 per month to sustain a lifestyle
similar to that enjoyed during the marriage. The trial court
ordered Husband to pay $9, 700.00 per month in alimony in
futuro. Husband appeals.
presents three issues for review; however, we perceive that
there are 2 dispositive issues, which we state as follows:
1. Whether the trial court committed reversible error in
sustaining Wife's hearsay objection to the Ram Letter.
2. Whether the trial court erred in calculating either the
type and or the amount of alimony.
Standard of Review
case was tried by the court sitting without a jury. As such,
we review the trial court's findings of fact de
novo on the record with the presumption that those
findings are correct, "unless the preponderance of the
evidence is otherwise." Tenn. R. App. P. 13(d). We
review the trial court's conclusions of law de
novo with no presumption of correctness. Gonsewski
v. Gonsewski, 3 ...