MEMORANDUM OPINION1

This appeal stems from divorce proceedings between Stacy Lofton (“Wife”) and James Lofton (“Husband”), parties who remarried on December 28, 2009.2 Litigation Wife was disabled and drew less than $1,000.00 per month and “has $2,029.00 of reasonable expenses.” With respect to Husband’s ability to pay, the trial court took issue with the amount of payroll deductions claimed by him. In relevant part, the court held as follows:

[Husband’s] affidavit shows $3,556.75 per month in payroll deductions. This same amount is in his affidavit for the October 7, 2019 hearing. The Court previously questioned this amount as being accurate and added back into this net income voluntary 401(k) and other deductions.

Husband subsequently filed a notice of appeal in this Court on September 29, 2020.

In his brief, Husband raises two issues. First, he generally challenges the trial court’s division of the parties’ estate. Second, he challenges the trial court’s award of alimony to Wife. With respect to Husband’s first issue, we note that “[t]his Court gives great weight to the decisions of the trial court in dividing marital assets.” Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007). As noted earlier in this Opinion, the trial court acknowledged in its final decree of divorce that the parties had generally “separated and divided their household and personal property” and, as to other specific property then unresolved, awarded Wife a 2006 Chevrolet truck and a television and awarded Husband a lawn mower. The court’s order further indicated that the parties had agreed to pay their respective credit card debts, and Husband was ordered to be responsible for a federal tax liability. The future proceeds from the sale of the parties’ marital residence were to be equally divided. Wife was also awarded 33% of Husband’s work savings plan account and 33% of Husband’s “Tier II” railroad retirement pension benefits accumulated as of January 3, 2020. “The trial court is empowered to do what is reasonable under the circumstances and has broad discretion in the equitable division of the marital estate,” id. at 328, and here, having reviewed the record transmitted to us on appeal, we discern no abuse of discretion in the court’s overall division.

In connection with our conclusion on this matter, we find that Husband’s apparent primary grievance with respect to the trial court’s division—its handling of his retirement benefits—is misplaced. Husband contends that Wife is not entitled to any of his annuity railroad retirement benefits because the parties were married less than ten years at the time of trial. Respectfully, we are of the opinion that the argument Husband attempts to make conflates requirements concerning entitlement to a “divorced spouse annuity” with the issue with which the trial court dealt, i.e., the partition of Husband’s benefits. The entitlement to an annuity as a divorced spouse is an entirely separate issue from a court’s decision to partition an employee’s benefits and is something that is not even subject to judicial resolution by a state court. Indeed, as explained in a publication prepared by the Office of General Counsel for the United States Railroad Retirement Board,

Under the [Railroad Retirement Act] the former spouse of an employee may become eligible for a divorced spouse annuity in his or her own right. . . . . [N]o state court may determine the entitlement of a person to a divorced spouse annuity. In order to be eligible for a divorced spouse annuity, the former spouse must meet certain statutory requirements[.]

United States Railroad Retirement Board Office of General Counsel, Attorney’s Guide to the Partition of Railroad Retirement Annuities 18, rrb.gov/sites/default/files/2020- 10/partition.pdf.

Although the ten-year marriage requirement referred to by Husband is a requirement for a divorced spouse annuity, see 20 C.F.R. § 216.52 and 20 C.F.R. § 222.22,4 it simply is inapplicable to a court’s ability to partition a railroad employee’s annuity incident to a final decree of divorce. The same publication from the Railroad Retirement Board referenced above makes this clear and specifically notes that length of a marriage between parties “is not relevant as to whether the divisible components of an employee’s annuity are subject to division by the court.” United States Railroad Retirement Board Office of General Counsel, Attorney’s Guide to the Partition of Railroad Retirement Annuities 17, rrb.gov/sites/default/files/2020-10/partition.pdf.

Although Husband’s specific issue pertaining to the division of his railroad retirement annuity thus has no merit,5 our review of the matter has prompted a cause for concern about the sufficiency of the trial court’s order in light of the applicable federal regulation, 20 C.F.R. § 295.3, which sets forth the criteria dictating under what conditions the Railroad Retirement Board will honor a court decree or property settlement. The criteria under that regulation are as follows:

(1) The court decree or property settlement must provide that the spouse or former spouse is awarded payments from railroad retirement annuities payable to the railroad employee. (2) The court decree or property settlement must specify an amount to be paid to the spouse or former spouse. (3) The court decree or property settlement must obligate the Board to make payments directly to the spouse or former spouse. (4) The court decree or property settlement must clearly identify both the employee and the spouse or former spouse to whom payments are to be made. (5) The court decree or property settlement submitted to the Board must be a recently certified copy of the document filed with the court. Where the award is made in an order modifying an[] earlier court decree, copies of both the original decree and the subsequent order must be furnished. In the case of a court-approved property settlement, both the settlement and any decree or order incorporating or approving the settlement must be provided.

20 C.F.R. § 295.3 (emphasis added). As is evident above, the court decree must, among other things, “obligate the Board to make payments directly to the spouse or former spouse.” Id. Here, the trial court’s order is noticeably deficient in this regard, as it directs Husband’s employer to make an award to Wife rather than obligate the Board to make payments. The court’s order is accordingly vacated on this matter, and the issue is remanded to the trial court solely for the entry of an order that satisfies the criteria in 20 C.F.R. § 295.3.6 In no way should our vacation of the order on this issue be construed as a signal that we disagree with the intended substantive disposition. The problem that exists is merely one of drafting, and the order should simply be redrafted to be in compliance with the applicable federal regulation noted above.

We turn next to the trial court’s alimony award. “There are no hard and fast rules for spousal support decisions.” Anderton v. Anderton, 988 S.W.2d 675, 682 (Tenn. Ct. App. 1998). Moreover, “[t]rial courts have broad discretion to determine whether spousal support is needed and, if so, its nature, amount, and duration.” Id. We are “generally disinclined to second-guess a trial court’s spousal support decision unless it is not supported by the evidence or is contrary to the public policies reflected in the applicable statutes.” Id. Although there is a legislative preference for awarding transitional alimony or rehabilitative alimony as opposed to alimony in solido or alimony in futuro, Gonsewski v. Gonsewski, 350 S.W.3d 99, 109 (Tenn. 2011), long-term support can be appropriate in specific cases. Alimony in futuro, which was awarded by the trial court in this case, “may be awarded when the court finds that there is relative economic disadvantage and that rehabilitation is not feasible.” Tenn. Code Ann. § 36-5-121(f).

The trial court found in this case that Wife was “economically disadvantaged in relation to [Husband’s] earning power” and was “not subject to rehabilitation.” As it later noted, she was “disabled,” drew less than $1,000.00 per month, and had $2,029.00 of reasonable expenses. In light of her economic disadvantage and need, the absence of rehabilitation prospects, and Husband’s resources and ability to pay, the trial court determined it was appropriate that Husband be ordered to pay $1,000.00 per month for Wife’s support. As we perceive it, Husband’s criticisms of this award are leveled on two principal fronts. One, Husband questions the trial court’s finding with regard to rehabilitation, arguing that the “finding that Wife . . . could not be rehabilitated was an abuse of discretion.” By attacking the court’s finding on rehabilitation, he seeks to undermine a foundation for awarding long-term support. Husband also argues that the trial court’s finding that he has the ability to pay the alimony awarded was “clearly erroneous.”

With respect to the trial court’s finding concerning rehabilitation and its related finding that Wife was disabled, we fail to see how the court committed an “abuse of discretion,” as Husband submits,7 by finding that she could not be rehabilitated. As it is, the record contains evidence sufficiently supporting the court’s factual finding. As noted in the “Statement of Evidence” prepared by the trial court, Wife testified that she was receiving Social Security disability benefits because of injuries she sustained during a tornado that flipped the parties’ mobile home three times while she sheltered in the bathtub. Wife suffered multiple injuries and underwent multiple back surgeries. Wife testified that her back injuries negatively affected her ability to sit and stand and caused tenderness to her toes, and she further testified that she had a medical restriction to lift no more than ten pounds. She testified that she had to use a pillow for comfort while driving and would periodically stop and rest during travel. According to her testimony, she was unable to become gainfully employed due to her injuries and surgeries. To the extent that the trial court appears to have accredited Wife’s testimony that her lack of gainful employment at the time of trial was a result of her injuries, we find no basis to disturb the trial court’s findings concerning her disability and her inability to be rehabilitated. See Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987) (“Where the trial judge has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, on review considerable deference must still be accorded to those circumstances.”).

Although there is evidence supporting the determination that Wife has a need for support, cannot be rehabilitated, and is disabled, Husband maintains that he lacks the ability to pay the amount awarded to Wife. We disagree, and in light of our conclusion on this matter, Wife’s relative economic disadvantage, and the above discussion, we discern no abuse of discretion in the trial court’s award of alimony. Husband voices an alleged inability to pay, but the record reflects that the court took issue with the amount of claimed payroll deductions represented on the affidavit Husband submitted at trial. The trial court took specific issue with the deductions which were discretionary, stating in relevant part that it had “previously questioned [the total claimed deductions]” and therefore “added back into this net income voluntary 401(k) and other deductions.” In short, Husband’s represented inability to pay was a result of his own decision to make a number of significant voluntary deductions, such as to his retirement savings. Based on a 2019 pay stub introduced at trial, Husband’s total earnings as of October 13, 2019 were $61,021.73. This equates to approximately $6,449.45 per month.^[8] Eliminating consideration of the voluntary deductions with which the trial court took issue, Husband had approximately $1,560.61 in monthly taxes deducted from his paycheck, $242.00 deducted per month for medical insurance, and $348.13 deducted per month for a loan obligation. These deductions total $2,150.74, a figure that is in stark contrast to the figure claimed by Husband in light of other voluntary deductions he took. If we further take what appears to be a union dues deduction into account, which appears to average $92.21 per month,9 Husband clearly has the ability to pay the alimony awarded to Wife even when accepting the totality of the other claimed expenses on his affidavit, which were $3,287.30. Indeed, taking the monthly earnings of $6,449.45 and subtracting the monthly taxes, medical insurance deduction, loan obligation deduction, and union dues deduction, Husband is left with $4,206.50. When you add Husband’s monthly veteran’s benefit in the amount of $478.87 and then subtract the claimed $3,287.30 in general expenses,10 there is still $1,398.07 left available to Husband.

In light of the above discussion, the judgment of the trial court is generally affirmed, with the sole exception that we vacate the court’s partition of Husband’s railroad retirement annuity benefits solely for the entry of an order in compliance with 20 C.F.R. § 295.3. As should be evident from our prior discussion, we take no issue with the court’s intended property division relative to Husband’s railroad retirement annuity. Rather, the matter must simply be remanded to achieve compliance with 20 C.F.R. § 295.3, including the use of language obligating the Railroad Retirement Board, not Husband’s employer, to make payments to Wife of the awarded Tier II benefits. s/ Arnold B. Goldin ARNOLD B. GOLDIN, JUDGE