1Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the

concurrence of all judges participating in the case, may affirm, reverse or modify the actions of

the trial court by memorandum opinion when a formal opinion would have no precedential

value. When a case is decided by memorandum opinion it shall be designated

"MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for

any reason in a subsequent unrelated case. 

FILED

November 12, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

WESTERN SECTION AT JACKSON

 ______________________________________________

LaSALLE DUDLEY, FROM THE SHELBY COUNTY

CHANCERY COURT No. 023348-3

Plaintiff-Appellant, The Honorable D. J. Alissandratos,

Chancellor

Vs. C.A. No. 02A01-9705-CH-00104

REVERSED IN PART, AFFIRMED

IN PART

RAYE P. DUDLEY, David E. Caywood, Marc E. Reisman

Causey, Caywood, Taylor, McManus

& Bailey of Memphis, For Appellant

Defendant-Appellee. Sherrie Miller of Memphis, For 

Appellee

____________________________________________________________________________

MEMORANDUM OPINION1

___________________________________________________________________________

CRAWFORD, J.

This is a divorce case. Appellant Lasalle Dudley appeals the order of the trial court

awarding ex-wife Raye Dudley alimony in futuro of $250 per month and $2,500 in attorney fees.

The parties were married in July 1961 and separated in June 1993 after nearly thirty-two

years of marriage. Mr. Dudley filed a Complaint for Divorce in October 1993 alleging

irreconcilable differences. Mrs. Dudley filed an Answer and Counter-Complaint for Divorce

alleging that Mr. Dudley was guilty of inappropriate marital conduct and adultery. On December

8, 1993, the Shelby County Divorce Referee ordered Mr. Dudley to pay temporary alimony in the

amount of $600 per month, which he paid to Mrs. Dudley until the trial on November 28, 1995.

The trial court granted Mrs. Dudley an absolute divorce on January 23, 1996 on the grounds of

inappropriate marital conduct. The final decree, inter alia, awarded Mrs. Dudley the marital

residence which had equity of $73,200; one of the three automobiles owned by the Dudleys

(value=$5,000); and 80% of the home furnishings. Mr. Dudley received the additional two autos

(aggregate value = $5,000) and 20% of the home furnishings. Each party kept their respective

retirement funds. In addition, Mrs. Dudley was awarded alimony in futuro in the amount of $250

per month as well as $2,500 in attorney fees.

Mr. Dudley appeals the judgment of the trial court awarding alimony in futuro and
2

 In the affidavit filed with the court, Mr. Dudley’s net income was listed as

$1,994.00 per month. This amount was miscalculated. Applying the income, tax and social

security figures provided, the correct amount should be $1,869.38.

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attorney fees. He asserts that Mrs. Dudley only sought alimony in solido in the amount of

$14,400.00 to be paid $600.00 per month for 24 months, and there was no showing of a need for

alimony in futuro. Mr. Dudley also asserts that it was improper to award Mrs. Dudley attorney

fees when she was awarded a disproportionate share of the marital property and had sufficient

funds to pay her own fees. 

Affidavits filed before trial showed Mr. Dudley’s net income to be $1,8692 per month and

his expenses to be $1,931--thus leaving a $62 monthly deficit. Mrs. Dudley’s net income was

$2,081 per month and her expenses were listed as $2,220--thus leaving a $139 monthly deficit.

 There is no transcript of the proceeding, but a Statement of Evidence and Proceedings was filed

pursuant to T.R.A.P. 24(c). The statement provides in substantial part as follows:

 This divorce case came on to be heard in Part III of the

Chancery Court of Shelby County, Tennessee on November 28,

1995. The parties stipulated to grounds allowing Mrs. Dudley to

receive an Absolute Divorce on grounds of inappropriate marital

conduct. Lasalle Dudley admitted to committing adultery during

the marriage.

 At the hearing on this matter, no witnesses took the stand and

no Exhibits were introduced into evidence. The Chancellor

reviewed the pay records of both parties, the attendance records of

Mrs Dudley, a real estate appraisal performed on the parties’

marital residence, documents relating to the parties’ retirement

benefits, and the deposition of Dr. Keith Dawson Williams which

was filed with the Court. The pay records and retirement/ pension

documents reviewed by the Court were documents subpoenaed

during the pendency of the trial. They did not reflect the actual

information as of the date of trial. Mr. Dudley’s pay and

retirement/pension records were accurate as of August, 1994. Mrs.

Dudley’s pay and retirement/pension records were accurate as of

March, 1995. counsel for Mrs. Dudley subpoenaed the Keeper of

Records for the United States Post Office to bring updated

information on the payroll and retirement/pension benefits of Mr.

Dudley to trial, but the Keeper of Records did not appear. The

Court also reviewed the pleadings in the Record including the

Affidavits submitted by the parties, their Pre-Trial Memoranda and

their Proposed Rulings. There was no Court Reporter present at

the hearing.

 The parties in this case were married on July 22, 1961. There

were no minor children at the time of trial. At the time of trial,

Mrs. Dudley was 55 years old and Mr. Dudley was 56 years old.

 The parties owned one piece of real estate, the marital

residence, located at 1025 Bluebird Road in Memphis, Tennessee.

The parties agreed at trial that the value of the marital residence

was $170,000.00. There were two mortgages resulting in the

house having an approximate equity of $73,200.00. The house has
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four bedrooms, three baths and over 4,000 square feet of living

area. The monthly note on the first mortgage was $1,035.00 and

the monthly note on the second mortgage was $150.00.

 The Trial Court ordered Mr. Dudley to pay eighty percent

(80%) of the marital debt, excluding debts relating to the marital

residence. Mrs. Dudley was awarded the marital residence. There

were no other marital debts at the time of trial.

 During the marriage, Mrs. Dudley developed spinal stenosis.

The deposition of her treating physician, Dr. Keith Williams, spine

surgeon at Campbell Clinic in Memphis Tennessee, was taken on

August 1, 1995 and the deposition was filed with and considered

by the Trial Court. The Deposition is part of the Trial Record and

will be part of the Record on Appeal. Dr. Williams testified, in

part, that Mrs. Dudley had a 26% impairment rating to the body as

a whole.

 Each party was allowed to retain their own respective

retirement/pension benefits.

 Mrs. Dudley was awarded eighty percent (80%) of the

household furnishings.

 Mrs. Dudley began working for Federal Express in 1984. Mrs.

Dudley has retirement benefits through Federal Express including

a pension, a 401K retirement plan, a stock purchase plan, a profit

sharing plan and an optional savings plan. The value of Mrs.

Dudley’s retirement/pension benefits as shown on the documents

presented to the Court were as follows: Profit Sharing Plan -

$789.79; Retirement Savings Plan - $14,331.59; employee Stock

Ownership Plan - $830.76. According to the documents, if Mrs.

Dudley were to elect to receive payments at her normal retirement

date of October 1, 2000, the monthly accrued benefit payable as a

life annuity would be $431.33 giving this benefit a present value

of $42,948.00. The year prior to separation, Wife earned

approximately $26,000.00.

 The documents subpoenaed by counsel for Mrs. Dudley and

presented to the Court showed Mr. Dudley had a retirement

account through his employer the Memphis Bulk Mail Center of

the United States Post Office, which had a value of $12,992.00.

This value was as of August 11, 1994. The year prior to the

parties’ separation, Husband earned approximately $52,000.00.

 The Court in making its ruling, specifically stated that it was

considering the length of the marriage of the parties, the relative

earning capacity of the parties, the health of the parties, and the

fault of the parties.

Since this case was tried by the court sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the trial court.

T.R.A.P. 13(d). However, the only factual finding evident in the divorce decree is that the trial

court found that the facts alleged in the Counter-Complaint were true as to the necessary elements

for a divorce on grounds of inappropriate marital conduct. Without findings of fact made by the

trial court, a presumption of correctness cannot attach. Kelly v. Kelly, 679 S.W.2d 458, 460 (Tenn.
4

App. 1984). 

The factors used to determine the proper amount of maintenance and support are found

in T.C.A. § 36-5-101(d) (1996). “As a general matter, the courts set the amount of a support

award based on the needs of the innocent spouse and on the ability of the obligor spouse to pay.”

Batson v. Batson, 769 S.W.2d 849, 861 (Tenn. App. 1988). If one spouse is economically

disadvantaged compared to the other, the courts are generally inclined to provide some type of

support. T.C.A. § 36-5-101(d).

The Statement of Evidence and Proceedings establishes that the trial court stated

specifically that it considered the length of the marriage of the parties, their relative earning

capacity, the health of the parties, and the fault attributable to each. The trial court has broad

discretion in awarding alimony, and there is nothing in the record to indicate that the trial court

did not consider the proper factors. Upon review of the facts in evidence we find no abuse of

discretion in awarding alimony in futuro in this case in the amount of $250 per month. 

Mr. Dudley’s next contention on appeal is that the trial court erred in awarding Mrs.

Dudley $2,500 in attorney fees. Attorney fee awards are treated as alimony. In determining

whether to award attorney fees, the trial court should again consider the relevant factors in T.C.A.

§ 36-5-101(d)(1). Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. App. 1995). However, if the

final decree awards wife sufficient funds out of which her needs and attorney fees can be

reasonably met, then an award of attorney fees is inappropriate. Wade v. Wade, 897 S.W.2d 702

(Tenn. App. 1994). In the case at bar, Mrs. Dudley was awarded the vast majority of the marital

estate. Considering the disproportionate distribution of marital property, we do not believe an

award of attorney fees is justified. 

The decree of the trial court awarding attorney fees is reversed, and the decree is, in all

other respects, affirmed. Costs of appeal are assessed equally between the parties.

___________________________

W. FRANK CRAWFORD

PRESIDING JUDGE, W.S.

CONCUR:

_______________________________

DAVID R. FARMER, JUDGE

____________________________________

HEWITT P. TOMLIN, JR.

SENIOR JUDGE
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