### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 29, 2001 Session
LINDA KINARD v. JOHN ANDERSON KINARD Appeal from the Chancery Court for Rutherford County No. 94DR-318 Robert E. Corlew, III, Chancellor

No. M2000-00674-COA-R3-CV - Filed May 10, 2002

Upon remand from earlier appeal, the tria l court determined (1) Husband owed Wife pa st due alimony without interest; (2) Husband owed Wifeadditional $47,933.50 on note with interest from 30 days after th

e entry o f the Cour

t of Appe als opinion until the amount is paid; (3) Husband was notrequire d to rele ase the r esidenc e as coll a teral on the home equity loan; (4) Husband retained ownership of the insurance policy; (5) no attorney’s fees were awarded to either party. Wife filed a second a ppeal to dispute the de cision of

the trial court and to deter

mine the d ate at wh

ich postjudgmentinterest begins to accrue, whe ther hu sband should be re quired to dischar ge the hom

e equity l oan, whether husband should be restricted in use of life insurance policy, and whether attorney’s fees should have been awarded. For the following reasons, we affirm the decision of the trial court in regards to the attorney’s fees, life insurance policy, and home equity loan and reverse the decision of the tri al court

with resp ect to pos t-judgmen t interes t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed in Part, Reversed in Part and Remanded
P ATRIC IA J. C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILL IAM B. C AIN , J., joined. William Kennerly Burger, Murfreesboro, Tenne ssee, for the appellant, Linda Kinard. Daryl M. South, Murfreesboro, Tennessee, for the a ppellee, John Anderson Kinard.
OPINION
This is the second appeal involving this divorce that ended a long-term marriage. See Kinar d
v. Kinard , 986 S.W.2d 220 (Tenn. Ct. App. 1998). In order to foster an understanding of all the issues on appeal, a recitation of relevant facts from both the trial court hear ing and the first appeal is in order.-2- I. Facts
Mr. and Ms . Kinard

were ma rried in 1964. Mr. Kinard isa pharma cist, and Ms. Kinard is trained as a school teacher although she hasnot worked in this profession since 1965. During the m arriage, the couple bought a pharmacy which later grew to a chain of nine drugstores known a s Drug Centers, Inc.
After some marital difficulties in the ea rly 1990s, Mr. Kinard filed suit in Chancery Court for Rutherford County seeking a div orce ba sed on irr econcil able dif

ferenc es and ina

ppropria te marital conduct. Ms. Kinard counterclaimed and filed for a divorce from bed and board. Following a bench trial, the final decree was issued in 1995 declaring the parties d ivorced in accor dance w ith Tenn. Code Ann. § 36-4-129(b), dividing the marit al estate , and den

ying Ms. Kinard’s request for an award of attorney’s fees.
The first appeal followed shortly thereafter. Ms. Kinard raised numerous objections relating to t he manner in which the divorce was granted, the division of the marital proper ty, the spousal support a ward, a nd the tria

l judge’s refusa

l to order Mr. Kinar

d to pay he

r legal e xpenses.
On appeal, this court

ordered that

a $145,95 2 note be r

estored to its fac e amount. The note had been made by Drug Centers, Inc. and was pa yable to Mr. an d Ms. Kinard. The note was awarded to Ms. Kinard after the trial court reduced the amount by $47,000 to reflect a $35,000 debt Mr. Kinard o wed to Dr

ug Center s and a $1 2,000 adv ance of corpora te funds u sed to pur

chase Ms

. Kinard’s Mercedes. Kinard , 986 S.W.2d at 231. On appeal we determined that the trial court err ed in reducing the amount of the note awarded to Ms. Kinard whe n the evidence showed that the Mercedes was a gift and Mr. Kinard c ould produ ce no pro of of the $35,000 de

bt. Beca use of the se modifica tions, Mr. Kinard owed an additional $47,933.50 to Ms. Kinard. In addition, while confirming the award of the marital residence to Ms. Kinard, this cour tordered Mr. Kinard to pay the home equity loan secured by the marital residence, the proceeds of w hich had been

used by him primarily for “speculative investments” and personal use. Id . at 233. The trial court had awarded rehabilitative alimony of $1000 per

month for thi rty-six months to Ms. Kinard, but this court modified the award so that she received $2000 per month until she reached sixty-five years of age. Id

. at 235. Th

is court d irecte d that t

he divorce decree be modified and r emanded the cause to the trial court for further proceedings consistent with its opinion.
This court gr anted Ms. Kinard’ s petition t o rehea r to dete rmine whe

ther the court should reinstat e Mr. Kinar

d’s pendente

lite obligation

to maintain a $150,000 life insurance policy to ensure that his spousal support obligation would be met in the event of his death. In its order, this court stated:
While

we did not overlook the trial court’s award of the existing Equitable Life InsurancePolicy to Mr. Kinard, we have determined that our August 5, 1998 opinion should be modified to provide that Ms. K inar d is entitle d, at her option, either to spousal support in the amount of $2000 per month with no co ntinuing in

terest in Mr.1 There was te sti mony at the heari ng that Mr. Kinar d had del iver ed a chec k for t he $47 ,933 .50 to his at torney after th is cou rt’s dec ision. It wa s not d eliver ed to M rs. Kin ard. On appeal, both si des argue the r eason for and eff ect of bo th these circum stances. -3- Kinard’s E quitabl e Life Insurance Policy or to spousal support in the amount of $1800 per mont h along with Mr. Kinard’s continuing obligation to maintain the Equitable Lif e Insurance Policy in effect in order to secure the payme

nt of his spousal support obligation.
Id

. at 236. Ms. Kinard choseto receive $1800 per month in accordance with the second option. Mr. Kinardwas from

that time f

orward under a c ontinuin g obligation to maintain the life insurance policy in order to secure the payment of his spousal support obligation.
Several months late

r, Ms. Kina

rd filed in the trial court a motion for statu s determination in which she raised, inter alia , the issue s of unpai d alimony a nd intere st, the $47,933.50 judgment plus interest , the husband’s home equity loan secure d by her house, and the ownership of the life insurance policy. The trial court held a heari ng at which the parties testified and produced documentary evidence. Upon hearing the proof, the trial court ordered Mr. Kinar

d to pay pa st due alim

ony, but did notaward intere st on the past due amounts. The court then ordered Mr. Kinard to pay the $47,933.50 with i nterest f rom 30 days after the date of issuance of this court’s opinion until the amount was paid. 1 In his letter to counsel, the Chancellor stated: Although there is limited case authority suggesting that upon subsequent decision of an Appellate Court judgments rendered by Appellate Cour t s draw int

erest retroa ctively to the date of the en try of the judgment by the Trial Court, the court finds no equity in such a ruling in the present case. Certainly no par ty could have known the decision of the Appellate court until such was rend ered, a nd it is unreaso nable

to expec t that pay ment would have been previously made. The Court finds it reasonable, however, absent stay of execution or payment of judgment due into the handsof the cl erk, to di rect tha t unless the money judgment ispaid within thirtydays of the entry of the order, the party entitled to receive the funds is entitled to interest at the statutory rate.
The court de clined to

order the husband

to release the residence as collater al on the loan he was ordere d to pay stating, “We must contemplate that it was the intention of the Court o f Appea

ls to require the repayment of that note according to its terms.” Regarding the insurance policy, the court s aid, “[T]he plaintiff [Ms. Kinard] seeks an or der modifying the policy of insurance, either placing the Plaintiff

in t he position of owner of that policy or otherwise restricting the policy. Modification in either regard is another matter which is in appropr

iate at th is stage of the proceeding, and this request is respectfully denied.”2 M s. Kinard a cknowledges that she r ecei ved payment of $47,933. 50 plus int eres t for the pe riod follow ing th is court ’s opi nion.

3 Although Ms. Kinard li sts this as an is sue, she makes no mention of inter est on t

he unpaid ali mony in her brief to thi s cour t. Simil arl y, Mr. Ki nard makes no argument on t he i s s ue
. To t he ex t en t t he al i mon y a t i s s ue wa s i n the s ame procedural post ure as the a ddit ional monetary a ward on the loan, the s ame princ ipl es and r esul t appl y, exce pt that t he beginning date f

or computation of i nterest is t he date the a limony payment was due. -4- On appeal, Ms. Kinar

d raises the following issues : (1) whe ther she is entitled to interest on the $47,933.5 0 from the

date of t he divorc e decree to the da te of payment; 2 (2) whe

ther she is entitled to interest on unpaid alimony from the date of

accrua l to the da te of payment; 3 (3) whether the trial court erred

by not requiring Mr. Kinard to discharge the home equity loan secured by the residen ce awarde d to Ms. Kina rd; (4) w hether t he trial c ourt err

ed by ref using to re strict Mr

. Kinard’s ability to pledge, cash, or otherwise defeat the life insurance policy payable to Ms. Kinard; and (5) whe

ther Ms. K

inard shouldhave been awarded attorney’ s fees. For the fo llowing re asons, we reverse thedecision o f the trial court with respect to post-judgment interest, and affirm the decision of the tri al court

with resp ect to the

loan, life insuranc e policy, and attor ney’s fees.
II. Post- judgment in

terest
We now turn to Ms. Kinard’s assertion that the trial court erre d on remand by declinin g to award her post-judgment interest from the date of entry of the original divorce decree inconsiste

ntly with the holding in Inman v. Inman , 840 S.W.2d 927 (Tenn. Ct. App. 1992).
A party’s right to post-judgment interest is based on its entitlement to the use of proceeds of a judgment. West Am. Ins. Co. v . Montgom ery , 861 S.W.2 d 230, 232 (Tenn. 199 3); Vooys v. Turner , 49 S.W.3d 318, 322 (Tenn. Ct. App. 2001). The purpose of post-judg ment inter

est is to co mpensate a successful plaintiff for being deprived of the compensa tion for its loss between the time of the entry of t he judgment awarding the compensation until the payment of the judgment by the defenda nt. Vooys , 49 S.W.3d at

322; Kaiser Aluminum & Chem. Corp. v. Bonjorno , 494 U.S. 827, 835-36, 110 S. Ct. 1570, 1576, 108 L. Ed. 2d 842 (1990). Accordingly, a party wh o enjoys th

e use of funds tha t should ha

ve been paid over to another

partyshould pay

interest on the re tained f unds. L ucius v. City of M

emphis , 925 S.W.2 d 522, 526 (Tenn. 199 6); Stinnett v . Stinnett, No. E2000

- 00121-COA-R3-CV, 2000 Tenn . App. LEX IS 606, at * 11 (Tenn . Ct. App. Se pt. 7, 2000) (no Tenn. R. App. P. 11 application filed).
The right to post-judgment inter est is stat u tory. Owens v. S

tate , 710 S.W.2d 518, 518-19 (Tenn. 1986); Tallent v. Cates , 45 S.W.3d 556, 563 (Ten n. Ct. App. 2000); Bedwell v . Bedwell , 774 S.W.2d 953, 956 (Tenn. Ct. App. 1989). Tenn. Code Ann. § 47-14-12 2 provide s that inte rest “sh all be computed on every judgment from the day on which the jury o

r the cou rt, sitting without a jury, returned the verdict without regard to a motion for a new trial.” This statute is mandatory and trial courts are not f

ree toignore it. Vooys v. Turner , 49 S.W.3d at 322; Inman v. Inman , 840 S.W.2d at 932; Bedwell v . Bedwell , 774 S.W.2 d at 956. T he fail ure o f a trial

court’s judgment o

r decree to-5-

specify post-judgmentinterest does not abrogate the obligation imposed by the statute. Tallent v. Cates , 45 S.W.3d at 563. The effect on post-judgment interest of

an appellate cou

rt decisi on is gover

ned, in the

first instance, by Tenn. R. App. P. 41:
If a judgmen

t for mone

y in a civi l case i s affirmed or the appeal is dismissed, whatever interest is allowed by law shall be payable computed from the date of

the verdict of the jury or the equivalent determination by the court in a non-jury ca se, which date shall be set forth in the judgment entered in the trial court. If a judgment is modified or reversed with a direction that a judgment for money be entered

in the trial court, the mandat

e shall c ontain instructions with respect to allowance of interest

. In the first

appeal, this cour

t modifie d the tria

l court’s judgment in several respects, the relevant change awarding Ms. Kina

rd an add itional $47 ,933.50, but the appellate opinion did not give any instr

uctions r egardin g post-jud

gment inte

rest on this additional award. Mr. Kinard argues that Rule 41 ga

ve this court discretion to order that the post-judgment interest run from a date other than the date of the trial court’s judgment. That argument is supported by our holding in Inman v. Inman , 840 S.W.2d 927 (Tenn. Ct. App. 1992), wherein we interpreted Tenn. R. App. P. 41 to “mean that if the ap pellate c ourt dee

ms that its a

ction re quires th at intere st be compute d other than as required by statute, the judgment of the appellate court should so state.” Id . at 932. However, we exercised no such discretion at that time.
Mr. Kinard also argues that this court’s silence as to when post-judgment interest began gave the trial court discretion to make that determination. However, this court has dete rmined oth

erwise and has held that a

bsent app ellate

court orders directing differently, the statutory interest from the date of the trial court judgment will apply. Inman , 840 S.W.2d at 932. Inman addressed exactly the issue raised by Mr. Kinard herein. In the first appea l bet ween the

partie s in Inman , this court modified the trial

court’s distributi on of mar ital prope rty but did

not provide instructions regarding post judgment interest. In the second appeal, this court determined that Ms. Inman

was entit led to interest at the statutory rate from the date of the original divorce decree until paid. Id . at 933. T his court reaffirmed the principles of Inman in Wade v. Wade , 897 S.W.2d 702 (Tenn. Ct. App. 1994), when it stated: [I]tis the rule in Tennessee that “when a judgment is rendered in the trial court originall y or by dir

ection f rom the a ppellate courts, the statute [Tenn. Code Ann. § 47-14-121] providesthat the ju dgment shall automatically accrue interest at the statutory rate unl ess t

he court specifies that ‘its action requires that interest be computed other than as required by statute.’” Inman v. Alexander , 871 S.W.2d 153, 154 (Tenn. A

pp. 1993) . This court has further held that “judgment on appeal, when recorded in the App ellate Court, stands in the place of the judgment of the Trial Court, a nd the leg al situati on is as if t he judgme

nt so rec orded ha

d been or iginall y4 For non-cash asse ts, the Wade court also foll owed Inman by re quir ing th e trial co urt to c ond uct a h earin g to

determine app rop riate interes t or da ma ges to ma ke u p fo r loss o f use o f such assets. Wade , 897 S.W .2d a t 720

. See also Bea ty v. Be aty , No. 01A01-9704- CH-00173, 1997 Tenn. App. LEXIS 622 (Tenn. Ct. App. Sept . 27, 1997) (no Tenn. R. App. P. 11 appli cati on fil ed) (de scribing the Inman and Wade holdings as to non -cash assets as da ma ges for the loss of u se an d be nefit u nde r the p rincip les of re stitution .)

5 We are not u nsy mp athetic to the t ria l cour t’s obser vati ons re gardi ng the e quit y of appl ying pos t-j udgment interest to a peri od of time before t he obligat ion was est ablis hed by a ppe llate opinion. However, we int erpret t he cases discuss ed above as givi ng dis cretion t o weigh suc h equit ies to t he appel lat e court

making the modifi cati ons and li miti ng that discre tion t o the ti me the modificati on is mad e. In addi ti on, as noted t hroughout, the pur

pose of post -judgment int eres t i s t o compensat e for loss of t he use of the money. -6- rendered by the Trial Court.” Inman v. Inman , 840 S.W.2d 927, 932 (Tenn. App. 1 992). Theref

ore, Wif e is entitl ed to the s tatutory interest o n the tria l court’ s judgment as modified by this opinion.
In Inman v. Inman , this cour t and the Su

preme Cou

rt m odified the trial court’s division of the marital estate, and the Wife was awa rded ca sh, real

propert y, stocks, bonds, and a note. Inman v. Inman , 840 S.W. 2d at 931. This court found that the Wi fe shoul d be gran

ted statut ory inter est on the cash aw ard as w ell as principal, interest , dividends, and rent on the other assets, all from the date of the divorce decree. Wife in this case is entitled to the same consideration. Husband has enjoyed the use, control, and benefit of the marital assets that have not bee n trans f erred t o Wife dur ing this ap

peal. 4
Wade , 897 S.W.2d at

720. Base d upon the se reported opinions, we cannot conclude other than that Ms. Kinard is entitled to post-judgment interest on the modification which included an additional $47,933.50 to her

award at thestatutory rate of 10% per annum from the date of the divor ce decree in the trial

court. 5 Accordingly, we reverse the dec ision of the trial court with respect to the postjudgment in

terest. III. Payment of Loan Secured By Residence and Ownership of the Insurance Policy
The divorce decree

entered by the trial court

awarde d possessi on of the marital r esidenc e to Ms. Kinard subject to the indebtedness thereon. In the first app eal, this court affirmed the award of the residence, but directed that Mr. Kinard “should be responsible for paying the home equity loan.” Ki na rd v. Kinard

, 986 S.W.2d at 233. Although Ms. Kinard would prefer that the home be unencumbered, the earlier opinion of this cour t did not require Mr . Kinard to release it. The court simply ordere d that Mr. Kinard p ay the de bt and the trial cou rt interp rete d that order to mean that the loan should be paid “according to its terms.” We find no reve rsible error in that ruling. Similarly, in this cou

rt’s Ord er on Petition to Rehe ar, we a llo we d Ms. Kina

rd to ele ct to receivea lesser amount of spousal support and kee p a contin uing inter est in Mr. Kinard’s insurance p olicy as death beneficiary; we did not award Ms. Kina rd an ownership interest in the insuranc e-7-

policy. Id . at 235. In this appeal she is seeking to have restrictions placed on Mr. Kin ard’s a

bility to borrow against the equity of the policy. If we were to grant M s. Kinard

an owner ship inter

est in the policy, it

would alter the distribution of marital property. We agree with the tri al court

that these modifications are inappropriate in view of the finality of this court’s ea rlier decision. IV. Attorney’s Fees
Ms. Kinard argues that attorney’s fees have been incurred in her efforts to protect her intere sts, and that M

r. Kinar d should be

ordere d to pay tho se fees . In her f irst appe al Ms. Kinar d req uested that Mr. Kinard be required to pay her legal e xpenses both at trial and o n appeal. W e deniedthat reli ef, dete

rmining tha

t Ms. Kinar

d should be responsible for her

own lega l fees pr imarily because she had received

sufficie nt funds to

enable h er to pay those expenses. Kinard , 986 S.W.2d at 235.
We have previously determined that an award of a ttorney’s fees is treatedas alimony. See Smith v. Smith , 912 S.W.2d 155, 161 (Tenn. Ct . App. 199 5); Gilliam v. Gilliam , 776 S.W.2d 81, 86 (Tenn. Ct. App. 1988). The decision to award attorney’s fees lies within the sound discre tion of the trial judge; Aaron v. Aaron , 909 S.W.2 d 408, 411 (Tenn. 199 5); Brown v. Brown , 913 S.W.2d 163, 170 (Tenn. Ct. App. 1994), and we will not int erfer e withthe trial judge’s decision unless the evidence preponderates against it. Batson v. Batson , 769 S.W.2d 849, 862 (Tenn. Ct. App. 1988). A party is entitled to at torney’s fees when he or she lacks suff icient funds to pay his or her legal expenses or would b e requir ed to deplete other

assets to do so. Brown , 913 S.W.2 d at 170; Kincaid v. Kincaid

, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995).
In the appeal currently before us, Ms. Kinard has asked that Mr. Kinard b e held re sponsible for attorney’s fees for activity since t his cou rt’s last

opinion. T

his reque st is based

upon Ms. Kinard’s as sertion that Mr. Kinard “failed to assume the initiative required of him in effecting transfers.” Ms. Kinard also asserts that the issues she raised had remained unresolved until she took action in the trial court. We see no basis for reve rsing the trial court’sexerci se of its di scretion in denying Ms. Kinard’s attorney fee request. She ha s assets to e nable he r to pay th

ese fee s. Additionally, an awar

d of attor ney’s fees on app eal is ge nerally inapprop riate wh en both pa

rties to the appeal have been partially successful. Phillips v. Phil lips , No. M1999-00212-COA-R3-CV, 2000 Tenn. App. LEX IS 485 at *30 (Tenn. Ct. App. July 27, 2000) (no Tenn. R. App. P. 11 application filed) (citing Storey v. Storey , 835 S.W.2d 593, 598 (T e nn. Ct. App. 1992)). Accordingly, we affi

rm the de cision of

the trial court wit h respect to attorne

y’s fee s, and also decline to award such fee s resultin g from thisappeal.
V. Conclusion
In conclusion, we affirm

the decision of the trial court with respect to the home equity loan, the life insurance policy, and the award of attorne y’s fees. We reverse the decision of the trial court with respect to post-judgment interest. Ms. Kinard is entitled to post-judgment interest on the6 Mr. Kinard pai d Ms. Kinar d $47,933. 50 plus int eres t fr om the dat e of t his court ’s f

irs t appe ll ate opini on modifying the or igi nal di stribut ion of marit al pr opert y. Thus, it appears the a mount now due is for t he peri od from the entr y of t he ori ginal judgment, Septe mber 7, 1995, to ent ry of t his court ’s opi nion, August 5, 1998. -8- $47,933.50 award

from the date of the divorce decree until the date it was paid. 6 The costsof this appeal are taxed to equally between the parties. The cau se is remanded to the trial court for any further proceedings which may be nece ssary.

___________________________________ PATRICIA J. COTTRELL, JUDGE