# FILED September 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT NASHVILLE

_______________________________________________________ ) AMY L. JOHNSON , ) Sumner County Chancery Court ) No. 95D-40 Plaintiff/Appellee. ) ) VS. ) C.A. No. 01A01-9708-CH-00410 ) HAROLD G. JOHNSON , ) ) Defendant/Appe

llant. ) )

______________________________________________________________________________ From the Chancery Court of Sumner County at Ga llatin. Honorable Tom E. Gray, Chancellor

Curtis M. Lincoln , Hendersonville, Tennessee Attorney fo

r Defendant/App

ellant. Robert G. Ingrum

, PHILLI PS & INGRUM, Gallatin, Tennessee Attorney for Plaintiff/Appellee.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) LILLARD, J. : (Concurs)1 This marriage w as the second for

both parties. Husb

and’s first divorc

e was final in March 1988 and Wife’s divorce from her first husband was final in August 1988.

This is a divorce case. Harold G. Johnson (Hu sband) a nd Amy L. Johnson (Wife)
were married on October 22, 1988 when he was47 andshe was 20 years old. 1 During the marriage, the parties adopted a son, Justin, born January 11, 1991. In April 1997, the trial court entered a final decreedeclaring the parties divorced pursuant to T.C.A. § 36-4-129. Husband has appealed from the final decree , challengi ng th e cor rect nes s of the tri al c our t’s deci sio ns r egar din g chi ld c ust ody, alimony and classificationand division of the marital estate. For the reasons hereinafter expressed, we affirm.

The record reflec ts that this marr iage of approximately nine yea rs was rather tumultuous from the outset with the parties separat ing a t least twice, one time for almost a year, before finally separating in January 1995. Wife admitted to two extr a-marital affairs during the marriage. Wife has a G.E.D. degree and is a licensed c

osmetologist. She c

urrently wo

rks on a parttime basis (two days per week, earning $150) and also a ttends college part-time taki n g certain prerequisite

courses so

that she can beaccepted into a two year nursing progr am. In July 1989, Wife
was diagnosed with ov

arian cancer f

or which she unde

rwent surgery

and chemothera

py. She is currently in remission. Wife has also been diagnosed with “nonspecific autoimmune condition,” described by her treating p hysician, Dr. W alker, as “o ne of the chr onic fatigu e type synd romes.” Husbandis self-em ployed and duri ng the marria ge operated Johnson Ma chine and Tool, un

til its sale in 1993. A new business, Pilot Machine, was begun in 1994.

The parties took custody of Justin sho rtly after his birth, but finalization of the adoption w as d ela ye d until 1993 due to the ir marital diffic

ulties. The partie

s were require

d to undergo counseling after their separation in December 1991 and an ord er of reconciliation was entered in December

1992. It is not disputed

that Wife has been the primary caretaker of the child.

The marital residence was purchased on October 6, 1988 for $ 156,500. Husband use d $106,000 of

his separate funds as a down payment and the parties obtained a loan for the remaining amount. The deed was recorded November 7, 1988 in Husband’s name only. Othe r realty purchased during the marriage includes approximately 7.73 acres located adjacent to the marital residence, a2 Of this figure, $200,000 represented the fair market value of the marital residence as found by the

trial court. The c

ourt reduced this

figure by $106,000, repre

senting the sepa

rate funds utilized by Husband in its purchase, to arrive at a net of $94,000 which represented marital pro pert y.

3 The record ref

lects that the cou

rt believed this ne

cessary in order to extend the

award if she had not rece

ived “her cash”

in the division of mar

ital assets. condominium, and a

n additional 63 acr

es. Only the

latter was titled i

n both parties’ na

mes.

Th e tri al court entere

d a final decree

of divorce awar

ding sole custody

of Justin to Wife with specifiedvisitation to Husband. Husband was ordered to pay $842.10 per month as child support, to maintain health i nsurance on the c

hild and pay

one-half of his h

ealth exp enses not covered by insurance. The cou

rt determ ined the separate property of both parties with Husband receiving a retirement ac

count in the amount o

f approximately

$17,000, all monies realized from the saleof Johnson Machine a nd Tool, approximate

ly $99,000 in a pre-marital

bank account, $9 ,800 in automobiles,certain royalties from Husband’s business and various other items of pers ona lty. Wife received her separate property consisting of personal clothing, items of jewelry and “personal memorabilia.” The court awarded marital property to Husband consisting of a 1993 pick-up truck valuedat $22,000, an Oldsmobile valued at $2,000, a Ford tractor valued at $2,200, an IRA in the original amount of $2,000 inv ested by Hus

band in 1994 plus inte

rest to date, horses and

tack valued at a pproximately $13,000 and all realty of the parties, valued by the trial court at $4 05,000. 2 Husbandwas also awarded household furnishings totaling approximately $16,000. Wife received household

furnishings totaling approximately $11,000, a Blazer valued at $9,500, $3,000 from the saleof tack and $19,000 representing funds that she previously removed fr om the parties’ joint bank account after the separ

ati on. Wif

e’s division of assets also included a cash award of $172,000, secured by li ens placed on all the real property. Wife was awarded rehabilitative alimony in the amount of $698 per month f

or a sixmonth period or until her remarriage, with the court expressly reserving the right

to review the matter at the end of the period. 3 Wife was also awarded $16,830 in attorney ’s fees.

Husband presents

the following issu

es on appeal:

I. The trial court e

rred in granting cust

ody of the min

or child to the wife.II. The trial court erred in dividing the marital assets; erred in failin g to determine that Wife had seriously depleted the mari ta l es tatewhile Husband had increased it and

erred in faili

ng t o determine that much of what the court found to

be marital assets, was act ually purchased by Husband’s separate property , the refore, makin g it s epar ate pro pert y. III. The trial court e

rred in awarding Wife

her attorney

fees. IV. The trial court e

rred in granting rehabilitative

alimony to the wife.

Our standard of review in this matter is pursuant to Rule 13(d) T.R.A.P. which provides for a de novo review accompanied by a presumption of correctne ss of the trial cou rt’s findings of fact, unless a preponderance of the evidence is otherwise. E.g., Whitaker v. Whitaker , 957 S.W.2d 834, 838 (Tenn. App. 1997). The first issue we address is that of child custody. The court in Whitaker addressed the various factors established by both case

law and statute wh

ich assist the courts in makin

g decisions of c

hild custody:

In child custody

and visitation cases, the welfare and best interests of a child are the paramount considerations and the rights, desires, and interests of the parents become secondary. Neely v. Neely , 737 S.W.2d 539, 542 (Tenn.App.1987). In Bah v. Bah , 668 S.W.2d 663 (Tenn.App.1983), the Court established some

guidelines for making the determination

of best interest: We adopt what

we believe is a

common sense appro ach to custody, one which we will call the doctrine of “comparative fitness.” The param o unt concernin child

custody cases is the welf

are and best interest of the child. Mollish v. Mollish , 494 S.W.2d 145, 151 (Tenn.App.19 72). There are

literally thousands of things that mu st be taken into consideration in the lives of young children, Smith v. Sm it h , 188 Tenn. 430, 437, 220 S.W.2d 627, 630 (1949), a nd thes e factors must be reviewed on a comparative approach:

Fitness for custo dia l responsibil ities is large ly a comparative matter. No human being is deemed perf

ect , hence no human can be deemed a p erfe ctly fit custodian. Necessarily, therefore, the courts must determine which of two or more availab le custodians is more or less fit than other

s. E dwards v. Edwards , 501 S.W.2d 283, 290-91 (Tenn.App.1973) (emphasis supplied). Bah , 668 S.W.2d at 666.The trial court must als o consider the fa

ctors as set forth i n T.C.A. § 36-6-106 (1996): 36-6-106. Child custody. -- In a suit for a nnulment, divorce, separate maintenance, or in any other pr oceed ing requiring the court to make a custody determination regarding a m inor child, such determination shall be made upon the basis of the best interest of the child. The court shall co nsider all relevant factors including the followi ng where applicable: (1) The lov e, a ffection and emotional t ies existing between

the parents an d child; (2) The disposition of the paren ts to provide the child w ith food, c lothing, medical care, e ducation and other necessary care and the

degree to which a parent ha s been the primary caregiver; (3) The importance of continuity in the child’s life and the l e ngth of time the child has lived in astable, satisfactory environment; (4) The stability of the family un it o f the parents; (5) The mental and physical health of the parents; (6) The home, school andcommunity record of the child; (7) The reasonable pre fere nce of the child if tw elve (12) years of age or olde r. The court may hear the preference

of a younger child upon request. The preferences of o l der children sho u ld normally be given greater weight than those of younger children; (8) Evidence of physical

or emotional abuse to the child, to the other parent or to any other person; and (9) The character

and behavior of any other pers on w ho resides in or freq u ents the home of a parent and s u ch person’s interactions with the child.

Whitaker , 957 S.W.2d at 837-38.

With the foregoingin mind, we consider the following proof that was before the trial court on this issue. As her

etofore noted, Wif

e is in remission from ovarian cancer and suffers from
an autoimmune condition symptomized by, inter alia , sleep disturbance, colitis, persistent low grade fever, night sw

eats and chronic

fatigue. Dr. Wa

lker described Wi

fe’s condition as :Pr ob ably a chronic reaction of your body in a situation very similar to arthritis. . . . it’s a chronic inflammatory disease. It is a disease that is readily impr

oved with some of th

e anti-inflamma

torymedicines, but it is not a

disease which is completely treatable. The symptoms can be improved with some medicines, and that’s basically what I’ve been doing over the last several months when I’ve been treating Ms. Johnson.

Walker did not believe Wife ’s condition to be “ totally debil

itating,” but maintained that it was complicatedby her past m edical problems a

s well as silicone b

reast imp lantations which she received in 1986 and were subsequently rem oved in 1994. Walker described Wife’s present condition as “stable at the condition she is in no

w. I think she is

well controlled with medication.” Walker has also treated Wife for depression. When asked whether Wife’s physical condition would disqualify her from taking care of a young c hild, Walker responde d, “[a] s far as specific medical conditions, like am I suspicious that she might blackout, am I suspicious that she’s going to have a heart attack, am I worried

about her not having good thinking skills? No, sir.” Walker agreed that Wife’s predisposition to fatigue and malaise would naturally be enhanced by caring for a small child, stating: “[i]f you are predisposed to fa tigue and malaise, then anything that causes fatig ue and malaise would accentuat

e it. Sure.” Wife testified that “sometimes”her illness has prevented her from participating in certain activities and that she continues to receive treatment from Dr. Walker whenever she has “a flare up.”

Wife testified that

for the first year of Justin’s life she did not work outside the home. Withinthe next two ye

ars, Justin spent a couple of days a week at “Kiddy Kampus” because Wife believedit important that “he learn to share and be around other children . . . .” Wife stated that Husbandagreed that such activity benefited their son. During the second year of Justin’s life, Wife andHusband wereseparated. The separation wasprecipitated by a December 1991 incident which, as related by Wife, occurred upon her arrival home, whe reby Husband “tied me up, tied my hands behind my back, dr

ug me back to the bedroom . . . and threw me down and choked me. I thought he was going to kill me.” Justin was in the home in his crib at the time. Wife ultimately ran out of the home toa neighbor’s ho use for assistanc

e. Husband did not c

ontradict Wife’s t

estimony in thi

s regard, but merely stated that he had “handled that wrong” and “w as wrong.” He explained that he “hadseen [Wife] slash her wrist when she was not drun k . She was drunk on this occasion.” He continued, “pa

rtly for h er protection and for Justin’s protection, I admitted I was wrong . . .Afterwards in counseling I said I want to make sure this n ever happens again, and it didn’t ever happen again and neve

r will. I apologized for it, and I did my very

best to make restitution in every way I could.”

Husbandstated that during this period of time, both he and Wife were doing drugs. Wife admitted to being a social drinker and that she had experimented with cocaine andmarijuana
on one o ccasion. Husband disputed this, testifying that both parties used alcohol, marijua na an d cocaine on a regular ba

sis in 1991. He state

d that he ceased

usin g these drugs in 1992 when the parties reconciled after nearly a one y ear separation.

Wife also related an incident regarding a May 1996 birthday party for her ne phew. Wife’s sist er had prepa red a b irthd ay party f or her son at Moss- Wrigh t Park . It was to be a western theme, with ponies for

the children to ride. Justin had receive d an invitation to the

party in the

mail and, according to Wife, was very excited and wanted to attend. As it happened, the date for the party fellon a weekend when Husband was to have visitation. It was agreed, however, that Justin could attendthe party

and that Husband would bring him and pick him up afterwards. Numerous relatives of Wife’s attended the party, including her great-grandmother, parents and their respective spouses
as well as her siblings an d their children. Wife arrived at the party in a car belonging to he r boyfriend, Mike Williams. Williams did not attend the party. Thereafter, Justin arrived wit h Husbandwho became very upset upon seeing

Williams’ vehicle. H

usband continued t

o dri ve, circling around the area where the party was being held but would not let Justin exit the vehicle or attendthe party. According to Wife, Justin was upset and crying. Husband then exited the park with Justin in tow and travele

d to Williams’ home. A heated exchange between Williams and Husband follow ed w ith Williams ultimately hitting Husband. Justin remained in Husband’s vehicle and observed the entire incide

nt. Husband does not deny that he then asked Justin to take a picture of him with blood on his fac

e and stating to hi

mthat “this may help us.” The police and an ambulance
were calledto the scene. Wife also arrived. Th

e parties dispute

whether Husband

allowed Wife to comfort the child w

ho, admittedly

, was in tears and

upset.

Husbandexplained thatupon his arrival to the park and observing Williams’ vehicle, he became upset because Williams and Wife had previously “flaunt[ed] their loving and carry ing onin front of me and Justin.” He admitted that he did not know for sure whether Williams was at the part y. He denied that Justin be gan to cry because he could not attend the party . He stated that he simply informed the child that

they would in

stead go to the sa

ddle club. Accor

ding to Husband, one of Justin’s favorite a

ctiv itie s is participating in equestrian events. Instead of going straig ht there, however, they

went toWilliams’ home. Husband attempted to explain his actions bystating, “[i]t
was probably another one of those mistakes I’m ca pable of ma

king, which is to let frustration get ahold of me once in a while, and plus her flaunting . . . .” Husband stated that he became further upset upon seeing the p

arties’ vehicle

at Williams’ residence. He stated, “I just didn’t like the idea of it sitting there. Jus

tin didn’t like the id

ea of it sitting the

re.” Husband sa

id that J ustin crie d because Williams had gotten in Husband’s truck and thr own several items , including came ras, outside. Husband said that after thealtercation, he explained to the child that everything was alright andthat he was not hurt. He maintained that “[Justin] was happy at that point. He was satisfied that [my injuries] didn’t hurt. . . . He was satisfied that I was okay. And not only did he stop crying, but he was okay. . . .” Husband also ack nowledged that l

ater that evenin

g he drove to

Wife’s residence with Justin and placed a bandage on her door that read “thanks.”

Wife testified that on the following day Husban d arrived at her

apartment with Justin to bring him back fr

om visitation and ra

n into the back of Wil

liams’ v ehicle. According to Wife, Justin was present in the truck with Husband when the a ccident occurr ed. Husband denied ever hitting Williams’ vehicle, but the p arties agree th at the police were called to the scene. Husband admitted calling the police on several occasions when he suspected that either there was something wrong inside Wife’s apartment or that she had been drinking. He further admitted calling the police
on at least four separate occasions complaining of problems in Wife’s home because there had been “unrelated

males in the house.” Husband explained that he believed his actions “helps keep [Wife] straight.” He was asked how he knew unrelated males had been present in the home and answered, “[w]ell, you go over there and y ou park, and you see, for example, Bobby Rankin’s truck there or you see [Williams’] truck .

. . .” Husband said

that Just in had “cried to sleep b

etween [Wife’s] boyfriends.”

The parties also des cribed the other’s behavior at various football games in which Justin partici pa ted. Wife stated that Husband always came to the games with a video came ra and“u sed it as a means of harassment.” Husband admitted carrying a video camera to the footbal l games, stating that it was for his own protection and that he videoed Wife and Williams acting inappropriately towards one another, flaunting their sexuality and taunting him in this regard.

Husbandmaintains thathe has been a positive influence on the child. When asked why he is better fit to

have custody of

Justin, Husband declared: “[t]here is a big difference in the lifestyles t

hat they lea

d over there and

the lifestyl

e that Justin

leads at home. At home Justin goes to church. I re

ad to him. We work on math. . . . He feels free, and he feels hap

py. . . . And Justi

n is a very special kid, and he’s also a very intelli

gent kid. And in

this two years, I have not dated and I have not drank. I have stay ed at home with my

horses, my guitar, and I just wait and live for the moments he gets back there.” Husband stated that he would pay for Justin’s private school tuition if he could attend the school Husband had chosen, Day Spring Acade my. As for

the private school Wife had chosen which was nearer to her home, Husband stated that he was unsureabout paying for his child’s attendance there, stating that he would have to review its curriculum and tuition costs, but would consider the

school.

Tim Lynch, a clinical psy

chologist, testified that

he treated Husba

nd once in

August 1995 and once ag ain in July 1996. He did not forese

e any probl

ems with Husband pa

renting his child butindicated that Husband had a tendency to be somewhat overprotective of his son. Ly nch believed t his proble m could be re solved wit h addition al counseli ng.

Husbandargues on appe

al that he is

comparatively more fit to have custody of Just

in because he is older, more settled, has already participated in the raising of two children and spends whatever time he has available with Justin. He contends that the proof establishes that Wife on the other hand is at an age in life where her own well being and ha

ppiness take precedence. Husband assertsthat Justin “ is [his] life.” Wife counters that Husband’s reasons for seeking custody are not necessarily

directed at Justin’ s best interests, but rather to fulfill his own needs which include hurting Wife.

After

careful reviewof the record before us, we are in agreement with the trial court that Wife is the more fit custodian for Justin. We do not doubt either party’s love for the ir child.4 Two of Wife’s classes are video courses taken at home and the other two, which require

her actual attendance in class, comprise approximately five hours of her time pe r week. The record clearl

y convince

s us, however, tha

t Husband has succeed ed in involving Justin in the parties’ marital difficulties. In Varley v. Varley , 934 S.W.2d 659 (Tenn. App. 1996), this court said:

It goes wit hou t sa ying t hat in m any, if not most, cases of divorce, one may expect a certain amount of animosity between the d iv orcing parties.
. . . However, when children are involved, it is imperative that the parents set aside their hostilities where the children are concerned, for the sake of the children.
Varley , 934 S.W.2d at 668. In the present case, the trial court expressly found neither party credible. However, certa

in incid ents were related to the trial court where the parties are in agree ment. The first incident pertained to Husband’s tying Wife up as she arrived home one evening when Justin was in the home. We also ha ve the birthday

party incid

ent where there

can be no quest

ion but that Husbandclearly put

his anger and hostilities toward Wife above the best interests and

needs of his young son. The birthday party was a time for celebration and from all indication it was an event that Justin was looking forward to attending. Instead, he was brought to the party and allowed to observe the activities but not allowed to attend. Instead of riding ponies a

nd playing

with his friends, Justi

n
was privy to an

altercationbetween his father and Wife’s boyfriend resulting in his father r eceiving
a bloody face

which he was asked to photograph. Clearly, Husband’s actions and ne gative behavior directed towardWife have indirec tly affec ted Justin and cannot

be in the child’ s best inte

rests. We
can find no excuse for a pa rent to allow his/he

r child to become e

mbroiled in the divo

rce “battles” of the parents. From the record, it appears tha t Justin has witnessed numerous confrontations between hi s parents rega rding this divorc

e and that most all ha

ve come about by

the actions o f Husbandwho has not seen fit to address his hostilities toward Wife outside the prese nce of his child. The record does not indicate similar actions on Wife’s behal f. It also disturbs this court that Husbandhas expressedno remorse in allo wing his child to observe these unfortunate events or any concern as to what effect they may have on Justin in the future.

The record indicates that Wife has pri mari ly cared for Jus tin during h is life. Al though Wife endures a

chronic illness, th

e record does no

t suggest that she is physically incapable of ca ring for the child, nor do we find Wife’s present work/school schedule to interfere wi th Justin’s ca re. 45 This amount includes household furnishings which were valued according to Wife’s

Exhibit 6 in the trial. T

he trial court pla

ced no value on the

se particular ite

ms. Justin pr esently atte

nds kindergart

en and Wife testifi

ed that day c

are is available . There is also undisputed evidence in the record that Wife’s extended family members are close a nd that Justin has many playmates within the family. This is not to say that all of Wife’s behavior is to be commended. There has beendrug use and numerous boyfriends. The record, howe ver, does not suggest that

Wife, despite these actions, has neglected her son. In ruling from the bench, the trial c ourt expressed some concern over th

e fact that Wife ha

d allowed her boy

friend(s) to

discipline the child, butnoted that
none had ever physically struck him. The trial court warned that Wife was to discipline and control the child, not any boyfriend. We reiterate here that Husband a

nd Wife should be in charge of disciplining their own son and we encourage Wife to re frain from allowing such action by any boyfriend in the future. We conclude that custody of Justin was properly awarded to Wife.

We next consider the issue regarding the trial court’s classification and division of the marital property. The trial court is afforded wide discretion in dividing the marital estate upon divorce. T.C.A. § 36-4-121(c) requires an equitable distribution of the marital ass

ets, according

to the factors identified therein. Loyd v. Loyd , 860 S.W.2d 409, 411-12 (Tenn. App. 1993). According to Husband, the tria

l court valu

e d the total marital estate at $381,500 and his separate estate at approximately

$115,000 for a total of approximately $496,000 which he asserts is less than the total value of his

premarital estate. Husband argues that because his net worth fell during the course of the marriage, it w as improper for the court to award Wife over half of what the court found to be marital assets. He further asserts that Wife in no way contributed or acted to preserve the four piece s of realty and argues therefore that these properties should have been classified as part of Husband’s separate estate.

The record indicate s th at th e trial court valued the entire marital estate at approximately

$4 00,000. 5 Of this amount, Wife received approximately $42,000 and Husband approximately

$367 ,000. Wife, however, was awarded an additional $172,000 in cash, reducing Husband’s award to approximately $195,000.

The bulk of the marital estate is the real property. The trial court fo und all f our ofthese

properties marital despite th e fact that only

one is titled to both pa

rties jointly

and Husband’s claim that his separate assets were used to purchase each of the properties. The record reflects that all properties were

purchased durin

g the marriag

e, with the exception of the marital residence which
was purchased 16 days prior. The 63 acres was purchased for a pproximately $90,000in May 1991. The approximately 8 acres was pur chas ed i n Feb ruar y 199 0 fo r $1 7,5 00. Fin all y, the condominium was purchased in August 1993 for $42,000, according to Husband.

In arriving at Husband’s pre-marital estate, the trial court

found that Husband

came into this marriage with approximately $100,000 in cash. The court expressly stated that he took

this amount “into consideration in looking at the division of the marital estate.” As Wife poin ts out, $106,000 of Husband’s separate funds was used as a down payment on the marital residence which would account for most of Husband’s pre-marital cash assets . Husband al so came int o the marria ge withJohnson Machine and Tool which the tria

l court in his first d

ivorce case

valuedat $243,000. Husbandtestified that he sold Johnson Machine and Tool for $400,000 on December 2, 1 993. Thus, all four properties were

purchased prior

to the sale

of this business. Husband also testified that he paid cash for all the realty, with the exception of the $50,000 note on the marital home.

We cannot agree

with Husband’s argument that a ll of the realty

was purchased w

ith his separate assets with the intent that they remain separate. None of the a ssets used to purcha s e these four properties (with the exception of the $106,0 00 paid to ward the purchase of the marital residence) are clearly

traceable to his

premarital asse

ts. Th e properties’ total purchase prices far exceed the amount of his pr e-marital cash a

ssets and the busine

ss from which he re

ceiv ed th e majority of h

is income was not sol

d until after all four of the purchases. The record indicates that Wife contributed monet

arily to the marriage, although her employment throughout was never more than part-time. The record further indicate s that the p

arties ma intained a joint bank

account. We thereforeare not persuaded that the properties were purchased solely with separate funds with the intent that they remain a part of Husband’s separate estate.

This court is unclear how Husband arrives at a figure of ap

proximately

$500,000 as representing the parties’ tota l separate and ma

rital estate. Nor

is it clear to

this court how he can arrive at a loss in his pre-marital net worth. He maintai ns that he came into the marriage with an6 This figure includes the gross amount of proceeds from the sale of Johnson Machine and

Tool and does not take into consideration the tax consequences of the sale. estate of $527,980 plus $123,789.60, if including the amount of royalties which the court determined to be his separate property but acquired during the mar riage, for a total of $651,769.60. The record before us does not support Husband’s calculations. Husband came into

this marriage w

ith $1 16,180.90 representin

g a cash disbursement from his prior divorce proceeding (this figure includes approximately

$17,000 from a retirement account), $123,789.60 from royalties, $243,000 representing the value of Johnson Machine and Tool as determined in the prio r divorce he aring, plus approximately

$10,000 in

automobiles for a total pre-marital estate of approximately $490,000. The present litigation resulted in Hus b and receiving, as his separate property, asse ts totaling approximat ely

$650,000. 6 We conclude that no error was committed by the trial court in it s cla ssi fic ati on a nd d ivi sio n of mar ita l pr ope rty.

We discuss Husband’s final two issues together. He has argued that the t rial court erred in awarding Wife rehabilitative alimony plus a portion of her attorney’s fees. The trial court has broad discretion in making these awards. Loyd , 860 S.W.2d at 412-13. The decision is based upon the particular facts of the case and requires a balancing of the factors listed in T.C.A. § 36-5- 101(d). Need and the abil ity to pay are the most criti

cal factors. Id
. at 412. Husband asserts that
no alimony should be awarded b ecaus e he paid Wife a total of $17,300 in alimony during the pendency of the trial, which was delayed twice at Wife’s request. As to the award of attorn

ey’s fees , Husbandcontends that Wife received sufficient funds from

the divorce with w

hich to pay th

ese fees. The trial court awarded Wife rehabilitative alimony in the amount of $698 per month for a six month perio d or until her remarriage. The record indicates that Wife presently works part-time earning approximat ely

$150 per week. She also attends college on a part-time basis. The record further
re flects that Wife suffers from an autoimmune condition which causes chronic fatigue and other symptoms

for whichshe requires medication. Dr. Walker testified that it would be difficult for Wife to maintain a 40 hour per week job due to her medical co ndition. Although Husband’s annual income tax returns for the years

1988-96 indicate a gross annual income of approximately $30,000 (with the exception of 1993 which return reflects an income of approximately $250,000 due to the saleof Husband’s business), Husband’s own testimony and the amount of marital assets distributed sugges ts a different annual income. We find that Husband is capable of paying the amount o frehabilitative alimony awarded and that the record supports Wife’s need for suc h an awar d. We further find no error in the award of attorney’s fees. Howe ver, we deny

Wife’s request for any award of her attorney

’s fees incurre

d in this appeal.

The judgment of the tr

ia l court is hereby

affirmed and this

cause remande

d thereto for any further proceedings necessary a nd consistent with this opinion. Costs are assesse d against Hus ban d, f or w hic h ex ecut ion may i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LILL ARD, J. (Concurs)