1

FILED

November 9, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS

AT KNOXVILLE

GARY WAYNE ROBERTSON, ) C/A NO. 03A01-9711-CV-00511

)

Plaintiff-Appellee, )

)

)

)

)

v. ) APPEAL AS OF RIGHT FROM THE

) HAMILTON COUNTY CIRCUIT COURT

)

)

)

)

)

LORI VANHOOSER ROBERTSON, )

) HONORABLE W. NEIL THOMAS, III,

Defendant-Appellant. ) JUDGE

For Appellant For Appellee

LEROY PHILLIPS, JR. SHERRY B. PATY

Phillips & Caputo Paty, Rymer & Ulin, P.C.

Chattanooga, Tennessee Chattanooga, Tennessee

O P I N I O N

AFFIRMED IN PART
1

T.C.A. § 36-4-101(3) provides as follows:

The following are causes of divorce from the bonds of

matrimony:

* * *

(3) Either party has committed adultery.

* * *

2

MODIFIED IN PART

REVERSED IN PART

REMANDED Susano, J.

This is a divorce case. The trial court granted Lori

Vanhooser Robertson (“Wife”) a divorce on the ground set forth at

T.C.A. § 36-4-101(3)1; awarded the parties joint custody of their

16-year-old son; ordered Gary Wayne Robertson (“Husband”) to pay

Wife child support of $387 per month plus 21% of part of

Husband’s future increases in net income; awarded Wife

rehabilitative alimony of $250 per month for 12 months, beginning

with the month of October, 1997; divided the parties’ property

and debts; denied Wife’s request for attorney’s fees; and made

other decrees not relevant to a resolution of the issues now

before us. Wife appealed, raising issues that present the

following questions for our review:

1. Is the trial court’s division of the

parties’ marital assets and marital debts

equitable?

2. Did the trial court err in awarding joint

custody rather than joint custody with

primary custody in Wife?

3. Did the trial court err in deviating from

the Child Support Guidelines?

4. Is Wife entitled to periodic alimony in

futuro rather than the rehabilitative alimony

awarded by the trial court?

5. If rehabilitative alimony is appropriate,

is the trial court’s award of $250 per month

for 12 months adequate?
3

6. Is Wife entitled to an award against

Husband for her reasonable attorney’s fees,

both at the trial level and on this appeal?

I. Division of Property and Debts

A trial court is vested with broad discretion in

dividing marital property. Kincaid v. Kincaid, 912 S.W.2d 140,

142 (Tenn.App. 1995). The exercise of that discretion will not

be disturbed on appeal unless “the distribution lacks proper

evidentiary support or results from an error of law or a

misapplication of statutory requirements and procedures.” 

Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn.App. 1990). A

trial court’s task is to divide marital property in an equitable

fashion, see T.C.A. § 36-4-121(a)(1), giving due regard to the

factors set forth at T.C.A. § 36-4-121(c).

“Trial courts have the authority to apportion marital

debts in the same way they divide the marital estate,” i.e., in

an equitable manner. Mahaffey v. Mahaffey, 775 S.W.2d 618, 623

(Tenn.App. 1989). If equitable, debts should follow the assets

to which they are related. Mondelli v. Howard, 780 S.W.2d 769,

773 (Tenn.App. 1989).

The evidence in this case pertaining to property and

debts, practically all of which was stipulated or otherwise

agreed to by the parties, reflects the following regarding the

parties’ marital property and marital debts:
2

While the trial court found a net marital estate of $16,428, the figure

used in this opinion -- $11,687 -- tracks the essentially undisputed facts.

4

Marital residence, less mortgage (net value) $26,300

Husband’s TVA retirement 43,823

1986 Ford Bronco 3,200

1994 Toyota Camry LE, less debt (net value) (1,623)

1984 GMC S-15 truck 1,800

Furnishings with Wife 3,915

Furnishings with Husband 3,255

“Rusty” the dog - no value given _______

$80,670

Less: Other debts 68,983

Net marital estate $11,6872

=======

The trial court divided the marital property and marital debts as

follows:

Wife

Marital residence subject to mortgage $26,300

1994 Toyota Camry LE subject to debt (1,623)

Furnishings with Wife 3,915

Portion of other debts (22,081)

$ 6,511

=======

 Husband

Husband’s TVA retirement $43,823

1986 Ford Bronco 3,200

1984 GMC S-15 truck 1,800

Furnishings with Husband 3,255

“Rusty” the dog

Portion of other debts (46,902)

$ 5,176

=======

As is obvious from the above, the parties were burdened

with substantial debt. The trial court carefully assigned the

parties’ various obligations so as to match them with the assets

to which they were associated. The parties’ debts that were not

related to specific assets were divided in a fashion that gave

due regard to how and why the debts were created.
3

At the time of the hearing, the parties’ other child -- Christopher

Joseph -- was 21 years old and had attended Auburn University for three years.

5

Wife asked the trial court to award her the house, and

the court complied with her request. She asked for the full

equity in the house in lieu of her interest in the TVA

retirement. She suggested that the TVA pension be awarded to

Husband. While Husband was awarded two vehicles, one of them --

the Bronco -- was not operable.

Wife complains that Husband received a disproportionate

share of the marital assets; but this fact, while true, begs the

question. The real issue is whether the trial court equitably

divided the net assets of the parties, i.e., marital assets less

marital debts. It is abundantly clear that the division of the

net assets is fair and equitable to Wife. This is particularly

true in view of the fact that Husband was “saddled” with $46,902

of the parties’ “other debts” of $68,983. This equitable

distribution to Wife can also be seen in the fact that she

received 55.7% of the net marital assets.

The evidence does not preponderate against the trial

court’s division of marital property and marital debts. See Rule

13(d), T.R.A.P. We find no abuse of the trial court’s

discretion.

II. Custody

The trial court awarded the parties joint custody of

their minor3 child, Joshua David, who was 16 years old as of June

2, 1997, the date of the hearing below. As of that date, Joshua
4

We recognize that the trial court’s judgment states that “the parties

shall share the responsibility of caring for their minor child,” but there is

no reason to believe that the child will, in fact, spend half of his time with

Husband. The Guidelines focus on where a child is actually living, and not on

the legal label -- such as joint custody -- decreed by a court. See

Tenn.Comp.R. & Regs., ch. 1240-2-4-.02(6).

6

had been passed to his junior year in high school. The trial

court’s judgment on the subject of custody is limited to the

following:

The parties are granted joint custody of

their minor child, Josh Robertson and the

parties shall share the responsibility of

caring for their minor child and shall

cooperate with each other in this regard for

the best interest of the parties’ minor

child.

The judgment does not address the subject of the child’s primary

residence or visitation times with the other parent.

In this case, it is clear that the parties’ minor child

had lived with Wife from the date of the parties’ separation up

to the date of the hearing. There is no proof in the record

indicating that this is going to change.4 In view of this, and

in order to memorialize the situation as it existed at the time

of the hearing, we agree with Wife that the trial court’s

judgment should be modified, effective the date of its entry --

October 8, 1997 -- to reflect that the parties are awarded joint

custody with primary residential custody being with Wife. In

view of the chid’s age, we do not believe it is necessary or

appropriate, in this case, to set forth the specifics of the

child’s visitation with Husband. There is reason to believe,

based on the record before us, that father and son can and will

find a “comfort level” as to their time together. There is
7

nothing in the record to indicate that Wife is inclined to

interfere with this relationship, and she is admonished not to do

so.

III. Child Support

On the subject of child support, the judgment provides,

in pertinent part, as follows:

[Husband] shall pay to [Wife] the sum of

$658.00 per month as child support through

September, 1997 based on his annual gross

income of $52,000.00 per year directly to

[Wife]. Beginning October, 1997, [Husband’s]

child support obligation will be $387.00 per

month. The $387.00 per month child support

to be paid by [Husband] is calculated by

taking the difference between [Husband’s]

present base salary of $52,000.00 and

[Wife]’s anticipated base salary of

$22,000.00 and setting the amount based on

the guidelines after taking the difference in

these two (2) salaries.

To the extent that [Husband’s] gross income

exceeds the amount of $52,000.00, child

support will be increased by twenty-one

percent (21%) of the increase in net income

prior to September, 1997 and twenty-one

percent (21%) of the increase difference in

the net incomes of the parties after that

date.

We find and hold that the trial court’s approach in crafting the

child support award is erroneous as a matter of law; and,

furthermore, that it is based on a finding of fact that is

contrary to the weight of the evidence.

A.
8

Child support is addressed extensively at T.C.A. § 36-

5-101. In subsection (a)(1) of that statute, the court is

directed to “set a specific amount [of child support].” 

(Emphasis added). In subsection (a)(2)(A) of the same code

provision, the following can be found:

Courts having jurisdiction of the subject

matter and of the parties are hereby

expressly authorized to provide for the

future support of a spouse and of the

children, in proper cases, by fixing some

definite amount or amounts...

(Emphasis added). These provisions clearly reflect the intent of

the legislature that child support be set in a definite dollar

amount. See the unreported case of Lovan v. Lovan, C/A No.

01A01-9607-CV-00317, 1997 WL 15223 (Court of Appeals at

Nashville, January 17, 1997).

In the case at bar, the trial court set a specific

amount of support -- $658 per month through September, 1997, and

thereafter $387 per month -- but it then awarded additional child

support based on a percentage, i.e., 21%, of an amount to be

determined in the future. It is clear from the applicable

statute and case law that this approach does not conform to the

legislative mandate.

In the Lovan case, the trial court ordered the obligor

to pay $1,783 per month as child support for two minor children

based on a monthly income of $8,000. It further directed that he

pay the obligee, as additional child support, 32% of any income

in excess of $96,000 per year. In vacating the child support
9

award based on future increases in income, this court said the

following:

We believe that the trial court exceeded its

authority in ordering an automatic adjustment

in child support based upon a percentage of

the husband’s future income as determined by

his income tax return. While the child

support guidelines create a rebuttable

presumption as to the correct amount of child

support, based upon the obligor’s income,

Tenn.Code Ann. § 36-5-101(a)(2)(A) only

authorizes the courts to provide for the

future support of a spouse or of the children

“... by fixing some definite amount or

amounts to be paid in monthly, semimonthly or

weekly installments, or otherwise, as

circumstances may warrant ....”

Such a definite obligation provides the

dependent children with a predictable amount

of support, and enables the obligor to

shoulder a known burden. If the obligor’s

income should increase or decrease

substantially, then either party may apply to

the court for a modification of the child

support obligation. In view of the existence

of a well-established mechanism for

adjustment of child support, the court’s

action, although well-intentioned, amounts to

an extension of its authority beyond the

mandate of the legislature.

1997 WL 15223 at **4-5. (Emphasis in Lovan). To the same effect

is the unreported case of Smith v. Smith, C/A No. 01A01-9705-CH00216, 1997 WL 672646 (Court of Appeals at Nashville, October 29,

1997) wherein a panel of the Middle Section of this court

disapproved of a child support award calculated, in part, based

on “32% of any future bonus or commission” of the obligor. 1997

WL 672646 at **1.

The trial court in the instant case erred when it

partially based the child support award on a percentage of a

portion of Husband’s future increases in income.
10
5

Under the “income shares approach,” the child support obligation of the

obligor is based upon an analysis that focuses on the parties’ relative

earnings. See, e.g., Saleem v. Saleem, 494 S.E.2d 883, 886 (Va.App. 1998);

Fink v. Fink, 462 S.E.2d 844, 853 (N.C.App. 1995); and Voishan v. Palma, 609

A.2d 319, 321 (Md. 1992).

6

The basic theory underlying the Guidelines is that a child is entitled

to share in the obligor’s standard of living as established by that parent’s

income, regardless of the child’s minimum needs. Nash v. Mulle, 846 S.W.2d

803, 805 (Tenn. 1993).

11

B.

We also find that the trial court erred when it

established child support based upon the parties’ relative

earnings. While this approach -- sometimes referred to as the

“income shares approach” -- has been adopted in some states5, it

has not been adopted in Tennessee. The Child Support Guidelines

(“Guidelines”) contemplate that support will be calculated based

solely upon the income of the “parent with whom the child(ren) do

not primarily live.” Tenn.Comp.R. & Regs., ch. 1240-2-4-.03(1). 

It is clear that the income of the parent with whom the children

live does not play a part in the calculation contemplated by the

Guidelines:

The child support award is based on a flat

percentage of the obligor’s net income as

defined in paragraph (4) below depending on

the number of children for whom support is

being set in the instant case. While the

income of the obligee should not be

considered in the calculation of or as a

reason for deviation from the guidelines in

determining the support award amount, the

formula presumes that the obligee will be

expending at least an equal percentage of net

income as that of the obligor for the support

of the children for whom support is sought.

Tenn.Comp.R. & Regs., ch. 1240-2-4-.03(2). (Emphasis added).6

While the trial court is authorized to deviate from the

Guidelines-calculated child support, see T.C.A. § 36-5-101(e)(1),
12

it must do so in a way that is consistent with the deviation

principles found in the Guidelines. See Jones v. Jones, 930

S.W.2d 541, 545 (Tenn. 1996).

It is clear that a court is permitted to make a

downward deviation from the Guidelines-calculated support if an

obligor “demonstrates that he/she is consistently providing more

care and supervision...than contemplated” by the Guidelines. 

Tenn.Comp.R. & Regs., ch. 1240-2-4-.04(1)(b); but this provision

does not authorize a deviation in the instant case because there

is absolutely no evidence to indicate that the necessary factual

predicate is present here. On the contrary, the evidence tends

to support a conclusion that Husband is with his son less than

the amount of time contemplated by the Guidelines.

There is simply no evidence in this case supporting a

downward deviation. See Jones, 930 S.W.2d at 544-546.

C.

The trial court determined that the child support

analysis should be based upon a finding that Husband’s gross

annual income was $52,000, his annual salary for regular hours. 

We find and hold that this determination is contrary to the

weight of the evidence.

Husband had worked at the Tennessee Valley Authority

(“TVA”) for 20-plus years. For the period 1993 - 1996,

inclusive, his annual gross TVA income, including overtime, had

been as follows:
13

1993 $50,960

1994 54,341

1995 62,397

1996 76,333

His gross income to May 11, 1997, was $22,437.

In 1995, Husband earned overtime pay of approximately

$12,000; in 1996, his overtime amounted to approximately $25,000. 

He testified that he had some 650 hours of overtime in 1996. He

indicated that this figure was unusually high because of overtime

work he performed in connection with a severe power outage. He

did not expect that much overtime in the future; however, he

acknowledged that he had worked 90 hours of overtime in the first

five months of 1997.

Husband estimated that he would have $250 of monthly

overtime in the future.

The trial court determined that it was appropriate to

fix Husband’s child support based solely on his regular salary of

$52,000. It then fixed child support, utilizing an approach that

we have found to be legally flawed in two separate respects.

Under the Guidelines, overtime is included in the

definition of “gross income.” Tenn.Comp.R. & Regs., ch. 1240-2-

4-.03(3)(a). “Variable income such as...overtime pay...should be

averaged and added to the obligor’s fixed salary.” Tenn.Comp.R.

& Regs., ch. 1240-2-4-.03(3)(b).
14

We recognize that there may be cases where overtime in

the past should not be factored “into the mix” in establishing an

obligor’s net income. For example, if the evidence clearly

reflects that the obligor will not be earning overtime in the

future, it would be unjust to base child support on a figure that

includes such overtime. In those cases, it is appropriate to set

child support based on the known, predictable income. If

unexpected overtime is later experienced by the obligor and

results in a “significant variance,” see T.C.A. § 36-5-101(a)(1),

as defined by the Guidelines, the court is then in a position, on

petition to modify, to increase the previously-set amount of

child support.

In the instant case, it appears that overtime is a

fairly predictable part of the obligor’s income stream. He may

not experience overtime to the extent that he did in 1996, but

there is every reason to believe that he will work a certain

amount of overtime in the future. In fact, he acknowledged at

trial that he was working some overtime in 1997. While this

testimony is credible and supported in the record, we cannot

accept his testimony that he was only earning approximately $250

per month in overtime pay. The evidence indicates otherwise.

We believe that there are at least two approaches to

accurately calculate Husband’s anticipated income, including

overtime. In the first approach, we begin by observing that he

had worked 90 hours of overtime in the first five months of 1997. 

At that rate, he could expect to work 216 hours for the full

year. 216 hours is 33% of the overtime hours worked in 1996,

i.e., 650 hours. One-third of his 1996 overtime pay, i.e.,
7

$22,436 is to 4.35 months as $61,892 is to 12 months.

8

The chart accompanying the Guidelines reflects child support of $757

for one child for a man earning a gross monthly income of $5,000. $761 is to

$5,028 as $757 is to $5,000.

15

$25,000, is $8,333. When this is added to his base pay of

$52,000, we are left with an anticipated annual gross income from

TVA of $60,346.

The second approach focuses on Husband’s testimony that

he earned $22,436 through May 11, 1997. His earnings of $22,436,

including overtime, through the first 4.35 months of the year,

extrapolate out to $61,892 per year.7

We believe it is appropriate to use the lesser of these

two figures, i.e., $60,346. This breaks down to a gross income

of $5,028 per month. The Guidelines-calculated child support for

a man earning at this rate of gross pay is $761 per month.8 This

is the correct amount of child support in this case, and there is

no basis for a downward deviation. The trial court’s judgment is

modified to reflect that Husband’s child support obligation is

$761 beginning with the month of September, 1997.

IV. Alimony

The trial court awarded rehabilitative alimony of $250

per month for 12 months. This apparently was based, at least in

part, on the trial court’s determination that Husband’s earning

capacity was $52,000 gross per year. We find and hold that the

evidence preponderates against the trial court’s finding that

rehabilitative alimony of $250 per month for 12 months is a

proper and adequate award in this case.
16

The issue of alimony is one that addresses itself to

the sound discretion of the trial court. Loyd v. Loyd, 860

S.W.2d 409, 412 (Tenn.App. 1993). “The decision is factually

driven and requires a balancing of the [statutory] factors.” Id.

at 412. See T.C.A. § 36-5-101(d)(1). Of all the factors in the

statute, need, ability to pay, and relative fault have been

identified as the most important. Bull v. Bull, 729 S.W.2d 673,

675 (Tenn.App. 1987). We will not second-guess the trial court

unless there is a showing of an abuse of discretion. Aaron v.

Aaron, 909 S.W.2d 408, 411 (Tenn. 1995).

The relevant statute, T.C.A. § 36-5-101, clearly

reflects a bias in favor of rehabilitative alimony. Id. at

subsection (d)(1); but it is also clear that rehabilitative

alimony, as contrasted to periodic alimony in futuro, is only

favored in those cases where rehabilitation is feasible. Id.

The alimony analysis begins with the threshold

determination of whether or not the spouse requesting alimony is

“economically disadvantaged, relative to the other spouse.” Id. 

If the requesting spouse does not fit within this description --

“economically disadvantaged, relative to the other spouse” -- he

or she is not entitled to spousal support and the alimony inquiry

goes no further.

In the instant case, it is clear that Wife is

“economically disadvantaged” vis-a-vis Husband. He has

demonstrated the ability to earn at least in the $60,000-plus

range. In 1996, he earned $76,333. His job seems relatively
17

secure. On the other hand, Wife, who delayed her career in order

to serve as homemaker, wife, and parent, is just now getting

started, at the age of 42, in her chosen field of education. She

started that career in August, 1997, at an annual gross salary of

$22,500. Prior to that, she had only worked as a non-degreed,

substitute teacher for four or five years, earning some $3,000-

$4,000 per year. She received her degree in education in

December, 1996, after completing some three and a half years of

undergraduate college with a perfect 4.0 grade point average. It

is clear that Wife wants to work and plans to work.

Since Wife is “economically disadvantaged, relative to

[her] spouse,” id., we next turn to the question of whether

rehabilitation is “feasible in consideration of all relevant

factors, including those set out in [T.C.A. § 36-5-101(d)(1)].” 

Id. In order to answer this question, we must first answer

another “shorthand” question: Rehabilitated to what? We believe

it is clear that this question, in this case, must be answered in

the context of “[t]he standard of living of the parties

established during the marriage.” T.C.A. § 36-5-101(d)(1)(I). 

In this 20-year-plus marriage, the parties enjoyed a standard of

living that was funded by an above-average income -- in the range

of $62,000-$76,000 in the last two years of the marriage -- plus

the borrowing power associated with income at that level.

We recognize that not every economically-disadvantaged

spouse is entitled to alimony. This is true regardless of

whether such a spouse can or cannot be rehabilitated. In the

final analysis, the question of whether such a spouse is entitled

to alimony, and, if so, in what amount and for what duration,
18

depends upon a careful weighing of the factors set forth in

T.C.A. § 36-5-101(d)(1)(A)-(L). For example, there may be a case

where the relative fault of the requesting spouse is so egregious

as to militate against any spousal support; or such as to warrant

an award of spousal support in an amount less than that requested

or needed. In any given case, all relevant factors must be

considered in determining whether an award of alimony is

appropriate.

When Wife’s present economic situation is measured

against the parties’ standard of living established during their

relatively long marriage, it is clear that Wife, by her own

efforts, cannot even remotely approach her prior economic

position. This being the case, we find that Wife cannot be

rehabilitated as contemplated by T.C.A. § 36-5-101(d)(1). Hence,

we now turn our attention to the subject of alimony in futuro.

In view of her relatively small salary and her preseparation lifestyle, Wife has a demonstrated need for alimony. 

While Husband has been burdened with substantial debt, we believe

that he has the ability to pay some periodic alimony in futuro,

albeit not enough to completely return Wife to her prior standard

of living. The amount decreed in this opinion will, however,

allow Wife “to more closely approach her former economic

position,” Aaron, 909 S.W.2d at 411.

The trial court’s judgment is modified to provide that

Husband will pay periodic alimony in futuro at the rate of $250

per month beginning with the month of October, 1997, said alimony

to continue at that rate so long as Husband is obligated to pay
9

While Wife has more education than Husband, his work experience is

almost certain to produce more income than Wife’s education degree.

10The trial court’s finding that Husband had engaged in a year-and-ahalf-long, adulterous relationship with a co-worker is supported by the

evidence.

19

child support; and to further provide that in the month following

the last month for which he has a child support obligation, his

periodic alimony in futuro obligation will increase to $600 per

month. This obligation will continue until the remarriage of

Wife or the death of either party, whichever of these three

events occurs first.

In setting Wife’s entitlement to periodic alimony in

futuro without a definite termination date, we have considered

“[t]he relative earning capacity, obligations, needs, and

financial resources” of the parties, see T.C.A. § 36-5-101(d)(1)

at factor (A); “[t]he relative education and training” of the

parties and the income that each can expect in the future, id. at

factor (B)9; “[t]he duration of the marriage” -- 22 years plus,

id. at factor (C); the parties’ ages -- each 42 years old, id. at

factor (D); the parties’ standard of living during their

marriage, id. at factor (I); their relative contributions to the

marriage, id. at factor (J); and the egregious fault10 of Husband

which has deprived wife of her standard of living, id. at factor

(K). These matters, taken together, militate in favor of

periodic alimony in futuro without a definite ending date.

V. Attorney’s Fees

Wife seeks attorney’s fees, both for services rendered

at the trial court level and on this appeal.
20

An award of attorney’s fees at trial can be based on a

number of rationales.

The courts of this state long ago recognized their

authority to award legal expenses in child support cases. Graham

v. Graham, 140 Tenn. 328, 334-35, 204 S.W. 987, 989 (1918). The

recovery of attorney’s fees in custody matters is also authorized

by statute. T.C.A. § 36-5-103(c). The statute specifically

provides that such an award is “in the discretion of [the]

court.” Id.

Legal expenses can also be awarded in the nature of

alimony. Dover v. Dover, 821 S.W.2d 593, 595 (Tenn.App. 1991). 

In awarding fees under this approach, the court should consider

the factors set forth at T.C.A. § 36-5-101(d)(1)(A)-(L). 

Kincaid, 912 S.W.2d at 144. The primary focus is on whether the

requesting spouse has the ability to pay his or her own fees;

and, if not, whether the other spouse has the resources to do so. 

Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn.App. 1992). 

Decisions pertaining to the awarding of fees as alimony address

themselves to the sound discretion of the trial court, and will

not be disturbed on appeal unless there has been an abuse of that

discretion. Lyon v. Lyon, 765 S.W.2d 759, 762-63 (Tenn.App.

1988).

An appellate court is authorized to award attorney’s

fees in a divorce case for legal services rendered on appeal. 

See Seaton v. Seaton, 516 S.W.2d 91, 93 (Tenn. 1974). See also

Ragan v. Ragan, 858 S.W.2d 332, 333-34 (Tenn.App. 1993).
21

We find and hold that the trial court abused its

discretion in failing to award Wife attorney’s fees. Because of

the difference in the parties’ incomes, and in view of the fact

that Husband’s misconduct was the cause of this divorce and

resulting litigation, we believe that it is appropriate that

Husband pay at least some portion of Wife’s legal expenses. We

also believe that Wife is entitled to fees on this appeal as the

prevailing party, said fees to be set by the trial court. On

remand, the trial court will set fees to be paid by Husband in

such amount as it may find just. Seaton, 516 S.W.2d at 93-94;

Folk v. Folk, 357 S.W.2d 828, 828-29 (Tenn. 1962).

VI. Conclusion

The trial court’s decrees regarding custody, child

support, and alimony are modified. The trial court’s judgment

with respect to Wife’s request for attorney’s fees is reversed. 

In all other respects, the judgment is affirmed. Costs on appeal

are taxed to the appellee. On remand, the trial court will

modify its judgment to incorporate the changes reflected in this

opinion, and will determine the legal fees to which Wife is

entitled.

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Charles D. Susano, Jr., J.

CONCUR:

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Houston M. Goddard, P.J.

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Don T. McMurray, J.