### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE August 29, 2001 Sessio

n LONNIE H. WILDER v. LESLIE PERKINS WILD ER Direct Appeal from the Chancery Court for Claiborne County

No. 12,615 Hon. John McAfee, Judge

FILED SEPTEMBER 24, 2001
No. E2000-03184-COA-R3-CV

In this divorce case, the

Trial Court

awarded husband attorney’s fees aga inst wife. On appeal, we reverse. Tenn. R. App. P.3 Appe al as of Right; Judgme

nt of the Chancery Co

urt Reversed.
H ERSCHEL P ICKENS F RANKS , J ., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and C HARLES D. S USANO , J R ., J., joined.

Cecilia S. Petersen, Knoxville, Tennessee, for Appellant, Leslie Perkins Wilder. Johnny V. Dunaway, L

aFollette, Tennessee, for Appellee, Lonnie H. Wilder.

OPINION

In this divo rce action, the sole is sue on appea l is whethe r the Trial J udge abused his discretion in orde

ring the wife to p

ay $18,000. 00 of the husband’ s attorney’ s fees.
The parties were m arried in 1989, and one child was born in June of 1995. The h usband is a safety inspection supervisor for a coal mining company , earning appro ximatel y $65,000.00 a year. The

wife is an elementary school teacher, earning approximately $32,000.00 a year. D uring the ma

rriage, the pa

rties acquired a

home which has an e

quity of appr

oximately $36,000.00, various items of personalty, and retirement accounts of $30,000.00 for the husband and the wife’s retirement of approximately $8,000.00.

The wife became sexually involved with a local school official in December, 1995,1 The Court commented that he was familiar with the husband’s counsel and had practiced

extensively with him. He noted that when he (the Judge) was practicing he could not get $300.00 per hour.

-2- andthe husbandfirst became suspicious of the wife in June of 1999. In August 1999,he confronted herwith his suspicions of her infidelity, which she initially denied. He then hi red a privat e investigator, and in

September of 1999 filed a divorce complaint. On September 14, 1999, a hearing was held for a Temporary Restraining Order, whe re the wife denied e xtra-ma rital affairs, w

ith custody of the child remaining with the husband. In the ensuing months, t he parties had great difficulty cooperating as to the wife’s visitation.

On February 1,2000 , a lengthy hearing was held to gra nt the divorce. The wife’s counsel attempted to stipulate that husband was entitled to a divorce on the grounds of

adultery, but husband’s counsel insisted on a full hearing on fault. At the conclusion, a

divorce was gr

anted to the husband on the grounds of adultery, temporary c ustody remained with husband, and the wife was ordered to pay temporary child support.
The Court also granted

a Rule 35 Motion for a psychiatric examination of the wife, basedupon her statement about committing suicide when the parties first sep arated, but stressed
more significantly, her

more serious problem with “love addiction”. In ordering the examination, the Court felt that

“something must be wrong with her” and that she had a “deep-seated problem that has to be dealt

with” because of her multiple affairs. The Judge commented that “her behavior doesn’t seem natural . . . because of its pattern and consistency over f ive years”.
At another h earing on Nove mber 16, 2000, the parties announced that all issues regarding permanent custod

y, child support, and prope

rty division had been settled. The terms of the settlement distributed $71,292.00 of the marital assets to husband, and $35,700.00 in marital assets to wife. Each par

ty was to receive $ 18,000.00 in the eq uity in the marital residence, with the husband retaining possession. The parties further agreed that time would be shared equally w ith the child, and that neither party would pay the othe r child support.
The income and expense statements filed show that thehusband had a gross inco me of $5,400.00 per month and expenses of $2,770.00, for a net income of $2,630.00 per month. The wife earns approximately $1,800.00 per month and has expenses of $2,200.00 per month. At that hearing, the Court heard testimony on the remai ning issue of attorney’s fees. Wife had incurred $18,000.00 i n attorney’s fees and $2,000.00 for the Rule 35 psy chiatric examination. The Court found that although her fees and expenses were reasonable, she was not entitled to an award due to her misconduct. The husband testified that he had incurred $39,360.00 in attorney’s fees, $7,870.00 for the invest igators fees , and $2,45 0.00 for cou rt reportin g fees. No bil ling s tatement s were submitted in support of the husband’s attorney’s fees. The Court took judicial notice that the husband’s counsel charged $300.00 per hour, 1 which is not the tra ditional, reasona

ble rate for that loc ali ty. The husband was then awarded $18,000.00 which “would include the investigator

’s fees,-3-

that would include the attorney’s fees, whatever

is outstanding, or

anything. ” The award cou ld then be set off against the wife’s equity in the marital home.

The Court gave its reasons for this ruling, stating that the proceedings were created because of the wife’s adultery, opining that had the divorce been filed on no-fault gro

unds, clearly eachspouse would pay

its own attorney’s fees . He said that the husband was entitled to this fee because “this was all being motivated because of his ex-wife’sbehavior in this case. ” The Judge went on to comment that “af ter taking into c

onsideration the f

ault in this case, ta

king into consideration - and I’m also looking at Mr. Wilder coming in here and basically agre eing to settle this case. It’s clear from the e videntiary

hearin gs that we’ve ha

d that Mr. Wilder, at

least to this point, held to high ground . . .”.

An award of attorney’s fees in divorce cases is tre ated as a form of

spousal support, andthe award is characterized as alimony in solido

. Sannella v. Sannella, 993 S.W.2d 73, 76; Smith
v. Smith , 984 S.W.2d 606 (Tenn. Ct. App. 1997); and Anderton v. Anderton , 988 S.W.2d 675, 682 (Tenn. Ct. App. 198 8); Gilliam v. Gilliam, 776 S.W.2d 86 (Tenn. Ct. App. 1988).

The Trial Court has wide discret i on to award attorney’s fees. Upon review, this Court will not interfere with an award, except upon a showing of abuse of discretion, where the evidence preponderates against the awa rd, and a manifes

t injustice will be do

ne if the Trial Court’s decision is allowed to stand. Long v. Long , 957 S.W.2d 825 (Tenn. Ct. App. 1997); Kincaid v. Kincaid , 912 S.W.2d 144 (Tenn. Ct. App. 1995); Elliot v. Elliot , 825 S.W.2d 92, (Tenn. Ct. App. 1991); and Butler v. Butler , 680 S.W.2d, 470 (Tenn. Ct. App. 1984).

Spousal support decisions require a “careful balancing” of the factors set fort h in Tenn. Code Ann. §36-5-101(d)(1). Anderton, 683. Of those factors, the Courts have held that the most important are real need of the disadvantaged spouse, a demonstrated financial inab ilit y to obtain counsel, and the a

bility of the o

bligor spouse to

pay. Cranford v. Cranford , 772 S.W.2d 50 (Tenn. Ct. App. 1989). If a party has adequate pr operty and income from which to pay the ir own expenses, and after consideration of all relevant factors, it may not be appropriate to award attorney’s fees. Umst

ot v. Ums tot , 968 S.W.2d 124 (Tenn. Ct. App. 1997); Houghland v. Houghland , 844 S.W.2d 623 (Tenn. Ct. A pp. 1992); Duncan v. Duncan , 686 S.W.2d 573 (Tenn. Ct. App. 1984).
In t his case, the Trial Judge did not engage in the analysis and balancing of the statutory factors in making the award, never addressing the issue of the husband’ s need and the wife’s ability

to pay. While t

he Judge did state

that he considered “the totality of the circumstances”, he nonetheless focu

ses singularly

upon the wife’s be

havior and fault i

n co mmitting adultery. The recordis devoid of any indication that the Judge considered the husband’s financial need or th e wife’s ability to pay, which are the two cornerstones of the balancing test. Gilliam at 86. The husband did not carry the burden of showing that he

could not afford t

o retain counsel. Moreover, the Cour t’s aw ard increased the disparity of the property settlement to approximately 90/20 distribution in the husband’s favor.2 Counsel cites wife’s perjury which occurred early in the

case but the impac

t on the ultimate issue was minimal. While the wife’s perjury is a serious matter,generally speaking, the doctrine of “clean hands” i

s not applicable in

determining whe

ther to award att

orney’s fe es.

-4- It is well settled that while fault is a factor to be consider ed, i t must not be applied in a punitive manner

against a guilt

y party in determi

ning the aw ard of alimony. Gilliam , at 81; Fisher v. Fisher , 648 S.W.2d 246 (Tenn. 1983). In Duncan , 571-572, this Court specifically rejected t he notion of “punitive alimony”, noting that while alimony may be reduced due to a spouse’ s misconduct,unneed ed alimony may not be added to punish a guilty spouse. Id. We have stated “alimony is not and never has been intended by our legislature to be punitive. (Citations omitted). Nor do we believe it was int ended s imply as an award for virtue.” Lancaster v. Lancaster , 671 S.W.2d 501, 503 (Tenn. Ct. App. 1984). The punitive nature of this ruling is

further demonstrated by setting the awa

rd at $18,000.00 to

the husband, the exact amount of the wife’s equity in the house. This amount has no ratio nal relationship to

the husband’s fe

es and expenses,

and represen ts the single most valuable

asset received by the wife. Further evidence of the Court’s intent to punish the wife is demonstratedby requiring her to undergo a psy chiatric evaluation for conduct that “doesn’t
seem natural” to the Judge. The exam was ordered, despite overwhelming testimony that the wife was a go od mot her to the child, and the Court disregarded the holding of Varley v. Varley, 934 S.W.2d 63 9, 667 (Tenn. Ct. App. 1996), and Mimms v. Mimms , 780 S.W.2d 739 (Tenn. Ct. App. 1989), which held that se

xual infidelity

is relevant in

a child custody determination, only as it relates to the matter of neglect of the child and affecting the child’s best interest. The wife was requir

ed to undergo the expense of an evaluation, despite the Court’s acknowledgment the chi ld was in no danger, there was no concern for the safety of the child in the mother’s presenc e, and the testimony of all witnesses, including the husband, that the wife was a good and attentive mother.

The husband advances the “clean hands ” doctrine to suppor t the award, which we find to be withoutmerit. 2 The evidence preponderates that the award of attorney ’s fees to the husband against the wife was based upon fault, and in making the award the Court abused its discretion under the statute. The husband i s in a significantly better financial situation than the wife and has the ability to pay attorney’s fees. To punish the wif e by depriving her of the

single most valuable marital asset would only serve to impoverish her and adversely affect her ability to provide for the child.
Acco rdi ngly, we reverse the Judgment of the Trial Court and remand, with

the cost of the appeal assessed to the appellee, Lonnie H. Wilder.

_________________________ H ERSCHEL P ICKENS F RANKS , J.