# FILED Feb. 3, 1997 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT

OF APPEA LS OF TEN NESSEE WESTER N SECTION AT J ACKSON

______________________________________________________________________________ GEORGEANNE M. HOFER Shelby Chancery No. 23216-1 C.A. No. 02A0

1-9510-CH-00210 Plaintiff, Ho n. Ne al Small v. JAMES PATRICK H OFER Defe nda nt. DAVID E. CAYWOOD and DARRELL D. BLANTON, Memphis, Att orneys for Plaintiff. ROS COE A. FE IL D, JR ., Me mph is, A ttorne y for Defe nda nt.
AFFIRMED Opinion filed:

______________________________________________________________________________ TOMLIN, Sr. J. Georgeanne M. Hofer (“Wife”) fi led sui t fordivorce i n the Chancery Court of Shelby County agai nst James P. Hofer (“Husband”) se eking a di vorce, di visi on of marital property and ali mony. Following a bench trial the chancel lor awarded Wife a divorce on the groun d of inapp ropriate m arital conduct. In ad dition, he aw arded W ife rehabil itative al imony for thr ee years, ordered Husband t o pay a porti on of Wife’s fee s and expenses as alimony in solido and div ided the m arita l pro per ty b etw een the p artie s.
Both Husband and W ife have appealed. Husband has set f orth some seven issues for our consideration. They are as follows:
I. Whether the tri al court erred i n findi ng two investment accounts owned by the Husband pri or to the marriage, were marital property when the Husband exclusi vely controll ed the account s and the onl y deposit s to the accounts were proceeds from his other separatel y owned properties als o held by the Husband prior t o the marria ge. II. In the al ternative, even if the tri al court correctly dete rmined the acco unts to be m arital pro perty, w hethe r the trial co urt erred in failing to subtra ct the origi nal val ues in the accounts and the deposi t fr om the Huckleberry s ale bef

ore divi ding the r emainder as marit al property. III. In the al ternative, whether the tri al court ’s divi sion of the investment accounts was erroneous even i f the court corr ectl y determined the accounts t o be marital property. IV. The tri al court

erred i n holding that proce eds from the sa le of prop erty ow ned b y H usba nd p rior to m arriage beca m e m arital pro perty2 when the proceeds were placed i n an investment account ti tled t o and control led only by the husband. V. W hethe r the trial co urt erred in failing to app ly the la w o f con tracts to a reconci liation agree ment and determined tha t the pr operty owned by Husband prior t o the marria ge was marital property when both parti es testifi ed thatan reconci liation agree ment had been entere d into by the parti es in which Wife agre ed to st op smoking marijuana i n exchange for Husband adding Wife’s name to his house and both parties testifi ed that W ife did n ot stop sm okin g m arijuan a after H usba nd ad ded W ife’s na m e to his prope rty. VI. W hether trial court erred in aw arding reha bilitative alimony to W ife wh en m arriage had b een o f relative ly sho rt dura tion; W ife had prev iously removed m ore than $10, 000.00 in c ash from joi nt account s and removed most of the f

amily furni ture when the parti es separ ated; and at the time of the divor ce, Wife was gainf ully employed i n same professi on as she had been at the time of the marriages and was l iving on her lover’ s property. VII. W hether an a ward o f attorney fees w as approp riate when W ife recei ved substa ntialpendente l ite s upport dur ing the s eparat ion and was gainful ly employed in herprofess ion and li ving on her l over’s pr operty at the ti me of the divorc e.
W ife has presen ted two issu es for our co nsideration: W hether the trial court erred by f

inding that (1) Husband’s busi ness was enti rely the separat e property of Husband and by not fi nding that the inc rease i n value duri ng marriage was marita l property; and (2) the aut omobiles of Husband were hi s sole a nd separat e property not withst anding his admission that the majority of same were m arit al property. Forthe reasons he reinafter stated, we find no error an d affirm.
The basic f

acts ar e undisput ed. The parties were marri ed in 1987 and separated in September 1993. No children were born of the marriage. At the ti me of the
m arriage W ife w as 29 and H usba nd w as 41 . Hu sban d w orke d at P iling an d R epair Corporati on (“P and R”), whic h was a family-owned busi ness tha t Husband had purchased f

rom his parent s prior

to the marri age. Wife held s everal jobs duri ng the
m arria ge, in clud ing wo rkin g fo r H usb and at P & R.
Prior t o the marria ge Husband had purchased a hous e in Mem phis l ocated at 1705 Autumn A venue, (he reaft er the “ Autumn” property). Husband took ti tle t o the house in hi s own name. In 1989, subse quent to the marriage, Husband transf erred ownership of the house to the parti es joi ntly. At about thi s ti me the parti es had3

expe rience d m arital difficu lties, to the e xtent th at W ife had filed for d ivorce . W hile there is a dispu te as to th e exa ct natu re of w hat tran spired , Hu sban d agr eed to and d id trans fer t itl e of the hous e into both their names. As we shall se e, t he circ umstances
surr oun din g th is tran sac tion m ake up o ne o f the issu es o n ap pea l.
Prior t o Husband marrying Wife in the c ase befor e us, Husband and hi s former wif e ha d pu rch ase d a h om e in M em phi s on Hu ckle ber ry S treet (“H uck lebe rry” ). Pursuant t o the te rms of the di vorce decr ee enter ed in thi s former marriage , the Hu ckleb erry p rope rty w as sold . This to ok p lace d uring the m arriage of H usba nd to W ife. The funds fr om the sale of the Huckleberr y property were paid overto Husband in February 1994, shor tly af ter s eparat ion of Husband and Wife. The r amificat ions of this tr ans actio n w ill be exa m ined furth er in this o pin ion
. On appe al our s cope of rev iew is de no vo u pon the rec ord in the trial co urt. A ll findi ngs of fac t made by that court come to thi s courtaccompanied by the pre sumption of corr ectness , and, absent an e rror of law, unl ess we find that the evidence prepon derates again st these findings, w e m ust affirm. T .R.A.P. 13 (d).

I. The Classification and Distribution of the Marital Property.
For the sake of conveni ence and judi cial economy, inasmuch as the f irst four issues on ap peal presen ted by H usband and the tw o issues presen ted on ap peal by W ife deal w ith the c lassificatio n and divisio n of th e partie s’ m arital pro perty, w e w ill consoli date them into one major is sue and tr eat each part se parate ly.
This state is a d ual pro perty s tate, disting uishin g betw een m arital and sepa rate pro per ty. Barnhill v. Barnhill, 826 S.W.2d 443, 456 ( Tenn. App. 1991). T.C.A. § 36-4- 121(a) pr ovides onl y for the divis ion of marit al property, thus itis i ncumbent upon the trial c our t to firs t clas sify t he p rop erty of th e pa rties. McClellan v. McClellan , 873 S.W.2d 350 (Tenn. App. 1993) (Citi ng Batson v. Batson , 769 S.W.2d 849, 856 ( Tenn. App. 1988)).
In the cont ext of this cas e the par ties ’ proper ty is eithe r “marita l” or “s eparat e.”4

“Separate property” is defined i n T.C.A. § 36-4-121(b)(2)(A-D ) as follows: (2) “Separate property” means: (A) A ll real and person al property ow ned by a spouse before the marria ge; (B) Property acquire d in exchange f or proper ty acqui red before the marriage; (C) Income from and appreci ation of property owned by spouse befor e marriage except when characterized as mari tal pr operty under subdivi sion (b) (1); and (D) P rope rty acq uired b y a sp ouse at any time by g ift, bequ est, dev ise or d escen t.
W e begin our consideration of this issue by addressing the fir st two sub-issues, deali ng with the c lassi fication by the c ourt of two invest ment accounts owned by Husband as marital property rather than as s eparat e property. Husband contends that a s he owned these account s prior to marrying Wife, they constitut e separat e property.
One we sh all identify as the A .G. Edw ards acco unt and the other as the H illiard Lyons account. At the ti me of the marriage the A.G. Edwards account had abalance of $56,801.52. By the same token, the Hilli ard Lyons accounthad a balance of $39 ,800 .00. During the cour se of the marriage, Husband deposit ed in exces s of $209, 000.00 into the Edw ards’ a ccou nt. Th ese d epos its cam e from his inco m e earn ed in h is employm ent atP and R. During the same period, he withdrew $183,000. 00 from the A. G. Edwa rd s a cc oun t. Thi s i nc ome e ar ne d by Hus ba nd a s a di re ctre su lt of hi s o wn efforts c onstitu ted m arital pro perty a s it wa s acq uired d uring the m arriage , pursu ant to T.C .A. § 3 6-4-1 21(b )(1)(A ). On ce H usba nd co m m ingled these m arital asse ts with his separat e asset s, the enti re accountbecame a m arit al ass et in our opinion. Further more, during the marriage Husban d withdrew funds previously deposited from these accoun ts, with these w ithdraw als bein g use d for th e ben efit of bo th partie s. The re is no thing in the rec ord to show tha t Husband tr eated any of the funds in thes e accounts as though he consider ed them to be separ ate.
In Pope v. Pope , 1988 W L 74 615 (Ten n. A pp. 19 88), the m iddle se ction o f this court dealt w ith issues similar to thos e before u s. In affirming th e trial court’s5

j ud gme nt

t ha t ce r t ai n p r op ert y o wn ed by Hu s ba nd pri ort o the ma r r i ag e h ad be co me marital property as a res ult of comm ingli ng and/or transmutati on, the court s tate d: [t]wo related doctrin es of c om m unity p rope rty hav e m ade th eir appe aranc e in the m arital pro perty c ases. T he first o f these is comm ingli ng, accor ding to which s eparat e property becomes m arit al prop erty if ine xtricab ly m ingled with m arital pro perty o r with the sep arate property of the other spouse. If the separat e property continue s to be seg reg ated or c an b e trac ed in to its p rod uct, c om m ing ling doe s no t occ ur. The seco nd d octrine is that of tra nsm utation . This o ccurs wh en se parate prop erty is trea ted in su ch a w ay as to give evide nce o f an inte ntion th at it beco m e m arital pro perty. O ne m ethod of cau sing tra nsm utation is to pur cha se p rop erty wit h se par ate fu nds but to tak e title i n jo int te nan cy. This m ay also be do ne by placin g sep arate p rope rty in the nam es of b oth spouses. The rati onale under lying both of thes e doctri nes is that deal ing with prop erty in th ese w ays c reates a rebu ttable p resum ption o f a gift to the m arital estate . This p resum ption is base d also upo n the p rovisio n in many m arit al property st atute s thatproperty acquire d during the marriage is pre sumed m arit al. The presumption can be r ebutte d by evidence of circumstanc es or communications cl early i ndicat ing an intent tha t the property remain separate. Qu otin g H .Cla rk, The Law of Domestic Relations§ 16.2 (2d ed. 1987). See al so Sturgis v. Sturgis , 663 S.W.2d 375, 379 ( Mo.App.1983)
The chancell or found that the A.G. Edwards account was marit al property and divided i t 50/50 between the part ies. The court al so found tha t the Hil liar d Lyons account was marit al property, but divided i t 60% to Husband and 40% to W ife. At the time of the d ivorce , the ba lance of the A .G. E dw ards a ccou nt w as ap prox im ately $85,000.00 a nd the Hill iard Lyons ac count some $136,000. 00. It is cl ear fr om the record that the re was extens ive commingling of f unds by Husband during the course of the marria ge and thatfunds were withdrawn from these account s to be use d for the ben efit o f the par ties. T his is sue is ac cor din gly wit hou t m erit. Next, Husband c ontends that even if the trial courtwas correct in treati ng these two investment accounts as marital property, nonet heless the court erred i n treating the proc eeds from the sale of w hat is kn ow n as th e H uckle berry prop erty as a m arital asse t, and not tr eati ng it as Husband’s sol e and separa te property. The f acts s urroundi ng Hu ckle ber ry a re th ese : Hu sba nd h ad b een m arrie d an d di vor ced prio r to m arry ing W ife. The divo rce de cree in Hu sban d’s for m er m arriage had c ertain p rovisio ns pe rtaining to the dis posit ion of what was the marital resi dence in that marria ge. After the marria ge6

of H usb and and W ife, th e pa rties li ved in th e H uck lebe rry p rop erty for a sho rt tim e. Circumstances de veloped re lati ve to the priordivorce that cal led fora sale of the Hu ckle ber ry p rop erty , wit h H usb and and his fo rm er w ife d ivid ing the p roc eed s eq ually
. This wa s don e. Ha lf the pro ceed s we re paid to H usba nd, w ho d epos ited the se fun ds in the H illiard -Ly ons acc oun t.
At this time, al though Husband and Wife were separa ted, they were still “man and wife.” Husband’s conte ntion her e is that ina smuch as the parties were s eparat ed pending a hear ing and divor ce, that marit al ri ghts had t erminated as of the dat e of separation. Thi s is not

the la w as we know it. When Husband deposited these procee ds in an inve stment accountwhich had been uti lize d for al l int ent and purpos es by the parti es duri ng their

marriage for

the deposi ting of

income earned by Husband and for the fundi ng of expenses and other a ctivi ties of the parties , the Huckleberry pr oceeds becom e m arital property by v irtue of this com m ingling, and the c hancellor so fo und. In
our o pinion the ev idenc e doe s not p repo nder ate ag ainst this f inding and th us w e hold that this iss ue is w ithout m erit.
Hu sban d con tends in the a lternativ e that e ven if th e trial cou rt correc tly determined that the two invest ment accounts were marit al property, none thele ss the court erred in i ts manner of di viding these two account s as part of the over all di visi on of the marit al property to the parti es. The re cord ref lect s thatthe A.G. Edwards
acco unt w as div ided e qually and th e H illiard Ly ons a ccou nt w as aw arded 60% to Hu sba nd a nd 4 0% to W ife.
Our statutes pr ovide tha t in di vorce case s the court shal l equit ably divi de the marital property of the parties . T.C.A. § 36- 4-121(a) (1991). An equitabl e divis ion how eve r is no t nec essa rily a n eq ual o ne. Barnhill v. Barnhill, 826 S.W.2d 443, 456 (Tenn. App. 1991) . In that regard thi s courtin Barnhill stat ed:
Trial courts are aff

orded wide dis creti on in divi ding the i nteres ts of parti es in jointly ow ned p rope rty. A ccord ingly, th e trial cou rt’s distribu tion w ill be given great weight on appeal, and will be presumed to be co rrect unless we find the pr eponderance of the evi dence is otherwise.7

Id. At 449. The appella te court s are gener ally di sincl ined to di sturb atri al court ’s divi sion of marital property unless the distribution lac ks proper e videnti ary support or resul ts fr om
an e rror o f law or a m isap plica tion of th e sta tuto ry re qui rem ents and pro ced ure s. Thompson v. Thompson , 797 S.W .2d 599, 60 4 (Ten n. App . 1990).
In sta ting hi s case, Husband reli es in good measure on Batson v. Batson , 769 S.W.2d 849, 858 (Tenn. App. 1988) , cont ending tha t inas much as this was a marri age of short durati on the marit al property shoul d not have been di vided equal ly and the parti es should ha ve been rest ored to their pr e-marriage f inanci al condi tion. In our opinion, Batson is di sti nguishabl e for at least two reasons. First , the majority of the marital estat e in Batson cons isted of an inc rease in the va lue of H usba nd’s s epara te pro per ty d urin g th e co urse of th e m arria ge. S eco ndl y, Batson did not i nvolve the issues of tra nsm utati on o r co m m ing ling
. In this c ase the record reflects th at Hu sban d has a m uch g reater e arning capa city and abil ity t o accumulate ass ets i n the future. Furthermore, Wife was shown to have made som e contri bution t o the marria ge, which i ncluded gener al homemaking duties such as co okin g, clean ing, an d carin g for tw o step -childre n as w ell as tak ing p art in various acti viti es with Husband. Husband paid tr ibute t o her, s tati ng that s he was “the CEO of a major househo ld.” In our opinion the evidence does not preponderate against the tr ial co urt’s find ing s in th is reg ard . Th is issu e is a cco rdin gly wit hou t m erit. In regard to the distribution of marital property by the trial court , Wife contends, that the trial cou rt erred in finding that H usba nd’s b usine ss, P an d R , was entirely his separat e property and, i n fail ing to f ind that the inc rease i n value of the busines s during the marria ge was marital property, thus subject to equit able di visi on. The fi rst a spect of this issue is a no n-issue inasm uch a s W ife con cede s in he r brief an d there is noth ing to the contrary that the business , P and R, was owned solel y by Husband. The only i ssue we have to consi der is whether or not the inc rease i n value of the busines s during t he marriage, determined t o be $45,010. 00, would be subj ect t o a marital divis ion if the8

record would r eflec t that W ife had s ubstantiall y contri buted to the incre ase in val ue pursuan t to T.C.A . § 36-4-12 1(c)(5). After review ing the record in this regard, we are of th e op inio n th at the evid enc e do es n ot p rep ond erate aga inst th e tria l cou rt’s fin din g. This issue is w ithout m erit.
Finall y, Wife complains that the chancell or err ed in fi nding that the col lect ion of Austin-H ealey autom obiles wa s Husb and’s sepa rate property altho ugh in H usband ’s Local R ule 15 A ffidavit or Propo sal of Settlem ent, Husb and stated that they were marital property. We find thi s to be a non- issue, for the finaldecree of the chancel lor did n ot as W ife con tends , find the se au tom obiles to Hu sban d’s sep arate p rope rty, but to the c ont rary aw ard ed th em to H usb and as a furth er d ivisio n of m arita l pro per ty. Further more, in the divis ion of marit al property, we not e thatthe chancel lor awarded the 1988 Celi ca to Wife. Thi s iss ue is r esolved i n favor of Husband. II. The Alleged Reconciliation Agreement. By way of background, the parti es maritalresi dence, known as the “Autumn prop erty” w as fou nd b y the c hanc ellor to b e m arital pro perty. H e aw arded 50% to Husband and 50% to W ife. Husband contends that under the circ umstances then a nd there e xisting at the tim e W ife’s na m e w as pu t on the title, the en tire interes t in this pro per ty sh oul d ha ve b een aw ard ed to him
. The record reflects th at the A utum n pro perty w as pu rchas ed by Hu sban d prio r to the marria ge. Tit le was take n in his name alone. In 1989, Husband had W ife’ s name adde d to the title. Hu sban d con tends that his w illingne ss to co nvey one h alf intere st in this property to Wife was because of a“reconci liation agree ment” entered i nto between the parties dur ing thei r marriage. He furthercontends that Wife subsequently breac hed this agreement and that under contr act l aw as a resul t of this bre ach he should be awarded outri ght ti tle t o this property. The natur e of the “ breach” that Husband contends t ook place was Wife promising, priorto the c onveyance, t o stop smoking marijuana and her

subsequentfail ure to s top. Here f ollows Husband’s testimony about the ci rcumstances s urroundi ng the tr ansferof ti tle t o the Autumn property:9 Q: (by opposing counsel) An d the house stayed in your nam e until August of 19 and 89? A: (b y def enda nt) Th at’s co rrect. Q: And then what happened the n? A: W ell, when Georgeanne wanted something, she would deny me, even speaking t o me, let al one sex, and s he wanted that house in hername badly, and she went si x weeks without, here agai n, even speaking to me, and she kne w I wa s go ing to b uy t hat W est R ang e [W est R aine s] pr ope rty. So, h ere ag ain, just to try to br ing so m e pea ce ba ck in th at hou se, I finally relented and put a quitclai m d eed when I signed the paper on the W est Range [West Raines] prope rty. On the other hand, W ife’s versi on of this real est ate transacti on is as follows: Q: (by opposing c ounsel) Tell me what you tol d him or tellme w hat you told hi m w hy he must trans fer the title of that house t o you in ‘89, whenever itwas transf

erred. A: (b y M rs. Ho fer) I w asn’t trea ted as a wife and I wo uld like this marriage t o work, and I wasn’t a joint at tha t point

on any accounts except for the m arital joint account, and I d idn’t think that w as fair. I took care of him. I t ook care of hi s chil dren. I would drop the charges [of divorce] if he wo uld learn to m ake this a com plete m arriage and c ontrol his tem per, watch his dr inking, star t counsel ing, we’d go t ogether, and to make joint on th e hou se an d to ea se up on m e a little bit. Q: D id yo u offe r to stop sm okin g m arijuan a at this p oint? A: Yes, I di d. Q: B ut yo u did n’t? A: N o, sir. Q: Okay, now, he did notknow, though, you ha d been to an attorney and had not-- you had fil ed for di vorce, but you told hi m that you would drop the char ges, but

he didn’t

know it. How did tha t happen? A: I tol d him I had fil ed for di vorce. Q: O kay, th at’s w hen y ou to ld him that if he wo uld tran sfer the hou se to you , you w ould drop the div orce. Is that righ t? A: I tol d him after I had fil ed for di vorce. Itold hi m about fili ng for divorce.
Neither Husband norW ife t esti fied about enteri ng into any ki nd of “reconc ili ation agreement,” a s now claimed by Husband. Rather , Husband tes tif ied in e ssence that this tr ans actio n to ok p lace in an attem pt b y hi m to n orm alize their strain ed r elatio nsh ip.10

The evide nce d oes n ot prep ond erate a gains t the ch ance llor’s find ing. W e hold that this issue is w ithout m erit. III. The Issue of Rehabilitative Alimony.
Husband contends that the chancell or err ed in awardi ng W ife r ehabil itative alimo ny in the am ount of $8 00.00 pe r mo nth for thirty-six m onths. Trial cou rts are giv en w ide d iscre tion in aw ard ing alim ony . Houghland v. Houghland, 844 S.W.2d 619 (Tenn. App. 1992) . The appell ate cour ts shoul d defer t o a tri al court ’s award of alim ony unl ess th e ev iden ce in that c our t pre pon der ates aga inst it. Luna v. Luna , 718 S.W.2d 673 (Tenn. App. 1986). Need of the i nnocent spous e and the abi lity to pay of the ob ligor sp ouse are tw o of th e m ost im portan t factors in determ ining th e app ropria te
am oun t of a lim ony . Barnhill v. Barnhill , 826 S .W .2d 44 3, 455 (Ten n. A pp. 19 91). F ault is als o an oth er su bsta ntiv e fac tor in dete rm inin g an alim ony aw ard
. Duncan v. Duncan , 668 S.W .2d 5 68 ( Te nn. A pp. 1 984 ).
The record r eflec ts that Husband maintai ned a sati sfact ory income str eam from which he could af

ford t o pay rehabi lit ative alimony in the sum awarded. In addi tion, W ife’s ex pens es gre atly ex ceed her av erage m onth ly net in com e. To coun ter this Husband contends that the fact that Wife withdr ew $10,000.00 fr om the parti es’ j oint savings a ccount and the rela tivel y short na ture of the marria ge should pr eclude an alim ony aw ard
. Prior t o making this award, the chancel lor not ed thatthere was pl enty of f ault on both sides, o bserv ing tha t the rec ord re flected that H usba nd h ad on occa sion b eaten his wife and on another occasi on forced her to fi nd refuge with her mother while wearing nothing b ut her night clothe s. He also n oted that H usband drank ex cessively. In additi on to the withdrawing of f unds as here inabove not ed, Wife smoked marijuana on a regular basi s, and af

ter s eparat ion fr om H usband and pri or to the divorce she “had been living a lmo st openly w ith another m an.” No netheless, the cou rt saw fit to awa rd the divor ce to Wife on the gr ounds of inappropri ate marit al conduct . There has been no appeal t aken from the awardi ng of the di vorce to Wife on these grounds. W e note that11

this findi ng by the court comes to us with a pr esumption of correctne ss and we cannot say that t he e vid enc e pr epo nde rates aga inst it. W e res olv e this issu e in f avo r of W ife. IV. Alimony In Solido
The court bel ow awarded W ife attorney f ees in the amount of $15,000. 00, plus $1,196.00 i n expenses. The award of att orney fees in a case such as this i s conside red an ali mony in solido aw ard
. Gilliam v. Gilliam , 7 76 S .W. 2d 8 1 ( Ten n. App . 1 988 ). On appeal the a ppellate courts w ill not interfere with the trial court’s decision to award attorney fees exc ept where there is a clearshowing thatthe court reached the wrong conclusi on, with the resul t that manifest i njust ice would be done i f the award was allow ed to stan d. Hanover v. Hanover, 775 S.W.2d 612, 618 ( Tenn. App. 1989). The affi davit f

iled i n support of

W ife’ s clai ms for att orney fees demonstrates the subst antia l effor t that

had to be expended on be half of W ife bec ause of the litigious conduct of Husband. A contempt peti tion had t o be fil ed because Husband fai led to c omply with a
cour t order relative to tem pora ry sup port. A M otion to Co m pel w as filed d ue to Hu sban d’s failu re to pr oper ly resp ond to disco very requ ests. W ife fou nd it ne cessa ry to defend a Motion to Quash, which was denied. W ife’ s discove ry deposi tion l asted t wo, fu llei ght -h our

da ys , n ea rl y a s l ong as th e tri al it se lf . U nde r the se ci rc umst an ce s, we are of the opinion that the tri al court did not abus e its discr etion i n awarding the attorney fees an d costs com plained of. The judgment of the t

rial court i s affi rmed in all respect s. Cost s in this caus e on app eal a re tax ed to Hu sba nd, f or w hich exe cutio n m ay is sue if ne ces sary .

_________________________________________ TOMLIN, Sr. J.

_________________________________________ CRAWFORD, P. J. (CONC URS)

_________________________________________12 FARMER, J. (CONC URS)