1 Rule 10 (C ourt of App eals). Memorandum Opinion . -- (b) The Court , with the

concurrence o f alljudges parti cipating i n the cas e, may affirm, revers e or modif y the act ions of the t rialcourt by memorandum opinio n when a formal o pini on would have no precedenti al value. When a case is d ecided by memorandum opi nion i t shal l be des ignat ed "MEMO RAND UM O PINION," shall not be p ubli shed, and shallnot be cited or reli ed on for any reaso n in a subseque nt unrelated case

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# FILED

Novemb er 12, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OFAPPEALS OF TENNESS EE WESTERN SECT ION AT JACKS ON

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_ LaSA LLE DU DLE Y, FROM THE SHELBY C OUNTY CHA NCER Y CO URT N o. 023348-3 Plaintiff-A ppella nt, The H onorable D . J. Alissandratos, Chancell or Vs. C.A. No. 02A01-9705- CH-00104 REVERSED IN PART, AFFI RMED IN PART RA YE P . DUD LEY , David E. Caywood, Marc E. Reisman Causey, Caywood, Tayl or, McManus & Bailey of

Memphis, For Appellant Defendant-Appel lee. Sherrie Miller of Mem phis, For Appellee

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________ MEMORANDUM OPI NION 1

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_______ CRAWFO RD, J. This is a divorce c ase. A ppellant Lasall e Dudley appeals the order of the t rial court awarding ex-wife Raye Dudl ey ali mony in futuro of $250 per month and $2,500 in attorney fees.

The parties were married i n July 1961 and separ ated i n June 1993 af te r n early th irty -two years of marriage

. Mr. D udley fi led a Complai nt for Divorce i n October 1993 all eging irreco ncilab le diff

erences. Mrs. Dud ley fil ed an Answer and Counter-Complai nt for Divorce alleg ing that

Mr. Dudley was guil ty of inappro priate marital conduct and adult

ery. On December 8, 1993, the Shel

by County Di vorce Referee ordered Mr. Dudl ey to pay t emporary ali mony in t

he amount of $600 per m onth, w hich h e paid to Mrs. Dudley unt il the t rialon November 28, 1995. The tri al court

granted Mrs. Dudley an absolut e divorc e on January 23, 1996 on the grounds of in appropri at e marital condu ct. The final decree , inter alia, awarded Mrs. Dudley the mari tal resid ence which had equi ty of $ 73,200; one of t he three automobil es owned by th e Du dleys (value=$5,000); and 80% of the home furnishings. Mr. Dudley recei ved the addi tion al two autos (agg rega te value = $ 5,000) and 20% of the home fur

nishi ngs . Each party kept t heir respecti ve reti rement funds. In addi tion , Mrs. Dudl ey was awarded ali mony in futuro in t he amount of

$250 per mo nth as well as $2,50 0 in attorney fees. Mr. Du dle y appeals the j udgment of t he tri al court

awarding al imony in futuro and2 In the affid avit fil ed with t

he court , Mr. Dudley’ s net income was lis ted as $1,994.0 0 per month. This amount was miscal culat ed. Applyi ng the i ncome, tax an d social securi ty fi gures pr ovided, the cor rect amount

should be $1,869. 38. 

### 2 atto rney fees. He assert s that Mrs. Dudley on l y soug ht a limony in sol ido in t he amount of $14,400. 00 to be paid $600 .00 per m onth for 24 m onths, and there was no showing of a need for alimony in futuro . Mr. Du dley also assert s that it was improper to award Mrs. Dudley attorney fees when she was awarded a dispr oporti onate sh are of t he marit al prope rty and had suff icien t funds to pay he r own fee s. Affid avits filed before tri al showed Mr. Dudl ey’s net income to be $1,869 2 per month an d his expe nses to b e $1,9 31--th us leav ing a $6 2 mo nthly de ficit. Mrs . Dud le y’s ne t i ncome was $2,081 per

mont h an d he r e xpe ns es wer e l is te d as $2, 220

-- th us le avi ng a $13 9 mo n thly def icit. Ther e is no trans cript

of theproceedi ng, but

a Statement of Evi dence and Procee dings was fil ed pursuant to T.R .A.P. 24(c). Th e statemen t provides in substantial part as follows:

This divorcecase came on t o be heard i n Part III of the C hance ry Court of

Shelby Coun ty, Tennes see on November 28, 1995 . The p arties stipu lated to g roun ds allow ing M rs. Du dley to receive anAbsolute Divorce on grounds of inappro priate marital cond uct. Lasa lle Dudley admit ted t o committing adul tery dur ing the marri age. At the h earing o n thi s matter, no wit nesses t ook the s tand and no Exhibi ts were i ntrodu ced int o evidence. The Chancell or reviewed the pay records of bot h parti es, t

he attendance record s of Mrs Dudley , a real estate appraisa l perf ormed on the parties’ mar ita l resi dence, document s rel atin g to t he parti es’ ret

irement benefits, and the d eposit ion of Dr. Kei thDaws on Wi ll ia ms which was filed w ith the Court. The pay record s and ret irement/ pensio n docu me nts reviewed by t he Court were doc umen ts s ubpoenaed during the p endency of t he tri al. They did not

refl ect t he actual information as of the date of trial. Mr. Du dley’s pay and reti rement/p ensionrecords were accu rate as of Aug ust, 1994. Mrs. Dudley’s pay and retirement/ pension records were accurat e as of March, 1995. coun sel forMrs. Dudley s ubpoenaed the Keeper of Records for t

he United Stat es Post Office to bring updated information on the payroll and retirement/pension benefits of Mr. Dudley to trial, but the Kee per of Rec ords d id not a ppear . The Court also reviewed the pleadi ngs in the Record incl uding t he Affid avits su bmi tted by the pa rti es, t heir Pre-Trial

Memoranda and their P rop osed Ruli ngs. There was no Court Reporter

present at the hearing. The p arties in this c ase w ere m arried on July 22, 1961. There were no minor children at t he time of tri al. At the t ime of t rial , Mrs. Dudley was 55 years ol d and Mr. Dudley was 5 6 years ol d. The part

ies owned one piece of real es tat e, the mari tal resid ence, located at 1025 Bluebi rd Road in Memphis, Tennessee. The parti es ag ree d at t

rialthat the value of t

he marit al res idence was $170,000. 00. There were t wo mortga ges resul ting in t he house havin g an a ppro xima te equity of $73,2 00.00. The house has

### 3 fourbedrooms, t

hree bath s and over 4,000 squ are fee t of li ving area. The mont

hly note on the fir st mortgage was $1,035. 00 and the monthly note on the seco nd mortgage was $ 150.00. The Tri al Court

orde red M r. Dudley to pay ei ghty per cent (8 0%) of the marital debt, exc luding debts re lati ng to t he marit al resid ence. Mrs. Dudley was aw arded the marital resi dence. There we re no o ther m arital de bts at the tim e of trial. Durin g the marr ia ge, Mrs . Du dley dev eloped spinal stenosis. The deposi tionof hertreat ing phys ician , Dr. Keit

h Willi ams, spi ne surgeon at Cam pbell C linic in Memphis Tennessee, was taken on August 1, 1995 and t

he deposi tionwas filed w ith and consi dered by the Tri al Court . The Deposi tionis par t of t he TrialRecord and will be part of the Re cord on A ppeal. Dr. W illia ms tes tified, in part, that Mrs. Dudley had a 26% impairment rati ng to t he body as a whole. Each part

y was all owed to ret ain t heir own re spec ti ve retirement/pen sion benefits. Mr s. Du dle y was awarded eight y percent

(80%) of t

he househo ld furnishings. Mrs. Dud ley began working fo r Federal Ex press in 1984. M rs. Dudley has ret

irement benefit s through FederalExpress incl uding a pensio n, a 401K retirement pl an, a stock purchaseplan, a prof it sharin g plan and an optional savings plan . The value o f Mrs. Dudley’s retirem ent/pe nsion b enef its as show n on the docu me nts presented to the Court were as fol lows: Profi t Sh aring P lan - $789.79; Retirement Savings Plan - $14,33 1.59; employee St ock Ow nersh ip Plan - $830.76 . Accord ing to the docum ents, if M rs. Dudley were to el ect t o receivepaym ents at her normal ret irement date of October

1, 2000, the monthly ac crued be nefit payable as a life annuit

y would be $431. 33 givi ng thi s benefi t a p res ent val ue of $42,948. 00. The year prior to sep arati on, Wife earned approximately $26, 000.00. Th e do cume nt s s ubp oen aedby cou ns el fo r Mr s. Du dley and presented to the Court sh owe d Mr . Dudley had a retirement accountthroug h his employer t he M em phis Bulk Mail Center of the United States Post

Office, which had a value of $12, 992.00. This value wa s a s of August 11, 1994. The year pri or to t he parti es’ separ atio n, Husband earned approxi mately $52 ,000.00. T he Court i n making i ts r ulin g, speci fical ly st ated t hatit wa s consider ing the l ength of

the marri age of t

he parti es, t

he relat i ve earning capacit

y of th e parti es, t

he heal th of th e parti es, and t he fault of the parties. Since thi s case was tri ed by the co urt s itt ing wit hout a j ury, we revi ew the case de novo upon the rec ord w it h a pres ump tion of co rrectn ess of the finding s of fac t by the trial c ourt. T.R.A.P. 13 (d). However, the only f actualfindi ng evident

in t he divor ce decree i s that the t rial court found t

hat t he facts all eged in t

he Counter- Complaint

were true as to the ne cessa ry elem ents fora divorce on grounds of inap propriate ma rital conduct. Without findi ngs of f act made by t

he tri al court, a presum ption of correctne ss cannot attach. Kelly v . Kelly , 679 S. W.2d 458, 460 (Tenn.

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App. 19 84). The factors used t o determine the proper amount of m aint en ance and suppor t are f ound in T.C .A. § 36-5-101(d) (1996). “As a general matter, t he courts set t

he amount of a suppor t award based on the n eeds of t he innocent

spouse an d on the ability of the obligor spouse to pay.” Batson v. Bats on , 769 S.W .2d 849, 861 (Tenn. A pp. 1988). If one sp ouse is econ omic ally disadvan taged compared to t he other , the courts are general ly i ncli ned to pr ovide s ome type of support. T.C.A. § 36-5-101(d). The Statement of Evi dence and Procee dings e stabl ishes that the t rialcou rt s tated spec ifically that it considered the length of the m arriage of the pa rties, the ir r elati ve earnin g capacity, the hea lth of the p arties, an d the fa ult attributab le to each . The tr ial court ha s broad discr etio n in awardi ng alimo ny, an d there is nothing in the record to i ndicate that the tri al court did not consi der the proper fa ctors . Upon revi ew of the f acts i n evidence we find no abu s e o f discr etio n in awardi ng ali mony in futuro in this case in the amoun t of $250 per m onth. Mr. Dudley’s next contention on appeal i s that t he trial court erred i n a warding Mrs. Dudley $2,50 0 in attorney f ees. Attorney fee awards are treated as alimony. In determining whetherto award at

torney f ees, t he tri al cou rt

sh oul d ag ai n co ns id er th e r el eva nt fa ct or s i n T. C.A. § 36-5-101 (d)(1). Kinca id v. Kin caid , 912 S.W.2d 140, 144 (Tenn. A pp. 1995). However, if the finaldecree awards wi fe suff ici ent funds out

of which her

needs and at

torney f ees can be

reaso nably met, then an a ward o f attorney fees is inappro priate. Wade v. Wade , 897 S. W.2d 702 (Tenn. App. 1994). In thecase at bar, M rs. Dudley w as awa rded the vast majori ty of t he marit al esta te. Conside ring t

he disp roportionat e dist ribut ion of marital

propert y, we do not

be liev e a n

awa rd of attorney fee s is justifi ed. The decree of t

he tri al court awa rding a ttorney fees is re verse d, and the dec ree is, in a ll other respec ts, affirmed. Costs of app eal are assessed equally betw een the parties.

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__________ W. FRANK CRAWFORD PRESIDING JU DGE, W .S. CONCUR:

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______________ DAVID R. FARMER, J UDGE



### ____________________________________ HEWITT P. TOMLIN, JR. SENIOR JUD GE

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