# FILED

Au gust 27, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

______________________________________________ CAROL ANN LINDSEY, Plaintiff-Appellee, Sumner Circuit No. 15155-C Vs. C.A. No. 01A01-9702-CV-00079 WILLIAM HENRY LINDSEY, Defend ant-App ellant.

_______ ____________________________________________________________________ _ FROM THE SUM

NER COUNTY CIRCUIT COURT THE HONORABLE THOMAS GOODALL, JUDGE

Michael W. Edwar

ds of Hen dersonvi lle For Appellee Dennis W . Powers; McClella n, Powers , Ehmling & D ix, P.C. of G allatin For Appellant

AFFIRMED AND R

EMANDED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: DAVID R.FARMER,

JUDGE HOLLY KIRBY L ILLARD, JU DGE1 Husband admitted at trial that his and Wife’s retirement benefits we re approximately eq

ual.

2 Husband testified that the rental property was worth $75,000.00.

3 In her deposition, Wife stated that the apartments could possibly be rented for between $900.00 and $1,200.00 per month. 2 This is an a

ppeal fr om a Final Decree of Divorce entere d October 3, 1996. Def endant, William Henry Lindsey (Husband), appeals from the judgment of the tria l cou rt awarding alimony in solido and attorney’s fees to plaintiff, Carol Ann Lindsey (Wife)

. The parties were married on April 5, 1974. One child wa s born to the m arriage o n November

27, 1976, but she is no

longer a minor. The

daughter curren tly lives with

Wife in a rentedtwo-bedroom apartment in Portland, Tennessee. Wife does not r eceive any fina ncial help from the daughter for the apartment. At the time of the hearing, Wife was forty-one ye ars old. Wife is employed by United Structures of America and has been for ele ven years. She al so has a part-time job at National Catalog and does catering. Her net take-home pa y is $2,263.37 per mont h. Wife has a 401k through United Structures worth $4,641.95. Husband was forty-three years old at the time of the hea ring. Husband is employed at Golden Rod Dairi es and hisweekly ta ke-home pay is $443.96. Husband is also providedwith

a company ve hic le, but must pay personal miles each quarter of approximately $100.00. Husband has a retirement plan through Golden Rod, including a certifica te of depos it worth $2,00 0 .00. He also h as an indi vidual re tirement accoun t through Fa

rmers Ba nk worth $2,000.00. 1 The parties o wn rental pro perty in Portland, Tennessee. The fair market value of the rental property i s approxi mately $65,000.00, 2 and the property has an outstanding mortgage balance of $10,332.00 that will be paid off in two and one-half years . There

are thr ee units in the buildin g, and the

total rent received each month is $500.00. One of the units in the renta l propert y is rented to Wife’s mother and father, and the othe r two are rented t

o Wife’s brother and his family. T

he parti es rece

ive $200. 00 per mon

th from Wife’s parents and $300.00 pe

r month from Wife’s brother

as rent. Ho wever, the fair market r ental on t he prope rty is app roximate ly $650.00 per month. 3 The parties also have a 50% interest in a mini-storage building in Portland. The ministorage is worth $187,500. 00, with a mortgage balance of approximately $70,000.00. Husband’s4 The real estate was valued at $45,700.00 in Husband’s gr andmother’s last will and testamen t.
5 We note that Wife testified that it did not work, as such tactics rare ly do. 3 mother lent additional money to Husband and his brother for the mini-storage building. The debt to Husband’s mother has a current balance of $19,551.56. W ife knew that

Husband borrowed

some money from his parents, but did not know the amount. Husband also owes his brother $12,000.00 for the parties’ one-half interest in the mini-storage prope rty. The parties lived in a house in Portlandfor eleven years. Husband’s mother inherited the house from Husband’s grandmother, so the parties never paid rent or a mortgage payment. The parties only had to

pay the ta

xes and th e utilities . The par

ties made improveme

nts to the house totaling between $5,000.00 and $6,000.00. At the time of the hearing, the value of the home was approximately$80,000.00. When Husband’s mother inherited the hous e, it was worth $45,700.00. 4 Wife drives a 1987 Grand Fury automobile that is worth $1,500.00. The car has more than 100,000 miles on the odometer. Husband normally drives his company truck, but he also drives the parties’ 1994 Mustang that is worth approximately $6,000.00. The parties maintained separate acc ounts at Farmers Bank. At the time of the hearing, W ife had approximately $250.00 in her account. During discovery, Husba nd’s bank accoun t held $4,078.00, but at the time of the divorc e he aring, H usband te stified th at the ac count hel d only $2,500.00. The parties also had various marital debt including debt with Capitol One Visa, Farmers Bank, and the Internal Revenue Service. Neither of the parties had any subs tant ial assets before the marriage. Husband was unfaithful during the marriage, which led Wi fe to file for divorce. Wife told Husband that

she had an affair in 1975, but later stated that it was not true and that she o nly told him tha

t to make h

im jealous

. 5 On February 13, 1996, Wife filed a complain t for abs olutedivorce

against H

usband in which she alleges irreconcilable differe nces. On May 10, 1996 , Wife filed an amended complaint adding the allegation that Husband was guilty of in appropr iate mar ital cond uct. On April12, 1996, Hu sband fil ed an an swer to both compla ints that a

dmits irre concila

ble differe nces, but denies that he is guilty of inappropriate marital conduct. After a bench trial on September

25, 1996, the trial court entered a final decre e of divorce on October 3, 1996. In the4

decree, the trial court awarded Wife an absolute divorce on the grounds of inappropriate marital conduct. The tria l court a warded the rent al prope rty in Portland, Tennessee to Wife and ordered her to assume the mortgage. The trialcourt found that the rental property was worth $65,000.00 witha mortgage in the amount of $10,322.00 for a net equity of $54,668.00. The trial court awarded the mini-storage building to Husband and ordered him to assume the encumbrance . The trial court found that the mini-storage was worth $187,500.00 with an encumbranc e of $70,000.00. Husband’ s net equity in the min i-storag e was $58,750.00 at the time of the trial court’s decision. The trial court awarded Husband’s retireme ntplan through Golden Rod Dairies and the individual retirement account with Farmers Bank to Husband, and the trial court awarded Wife ’s 401k with United Structures of America to Wife. The court found these awar ds to be substa ntially equ al to each other. The trial court divided the remaining marital prope rty, including the marital debt, and awa rded $25,000.00 as alimony in solido , $995.50 i n discretionary costs, and $4,380.00 in attorney’s fees to Wife. Husband appeals the judgment of the trialcourt and presents two issues for review: 1) whether the trial court erred in awarding Wife $25,000.00 a s alimony in solido , and 2) whether the trial cou

rt erre d in awarding Wife her attorney’s fees of $4,380.00 as alimony in solido

. Wife present s an additional issue: whether this Court should consider a n additional award of attorney’s fees to defray Wife’ s legal expenses incurred on appeal. Since this case

was tried by the court sitting without a jury, we review the case de novo upon the rec ord with a

presumpt

ion of cor

rectne ss of the f

indings o f fact by the trial cou rt. U nless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d). In his first issue, Husband argues that the trial court abused its discretion in awarding $25,000.00 to Wife as alimony in solido . In the final decree of divorce, the tr ial court stated: The Court finds that through the Wife’s efforts, she has contributed to the appreciation in valueof over thirteen thousand three hundred seventeen and 00/100 dollars ($13,317.00)

. In ord er to adjust the inequities of the marital estate between the parties, the Court f

inds that th

e Husban d’s sepa

rate es tate woul d include this house [the residence] and hereby awards to the Wife as ali mony in solido . . . the sum of twenty-five thousand an d 00/100 ($25,000.00). The Court cons ider s the Wife’s contribu t ion to the appreciation in value of the mini storage5 b uildings and the f

act that t hese buil dings wer

e awar ded to th e Husband and will continue to appreciate in value and gene r ate income, as well as the fact that the Wife will need to secu re dependa ble transportation due to the fact her motor vehicle has over one hundred thousand (100,000) miles and the Husband’s motor veh

icle has fifty thou sand (50, 000.00) mi les. Trial courts ha

ve broad discreti on in divi ding the marital estate upon divorce. Loyd v. Loyd , 860 S.W.2d

409, 411 ( Tenn. Ap

p. 1993); Lancaster

v. Lancaster , 671 S.W.2d 501, 502 (Tenn. App. 1984). T.C.A. § 36 -5-101( d)(1) pr ovides: It is the intent of the general assembly that a spouse who i s economic ally disadvan

taged, r elative t o the oth er spo use, be rehabilitatedwhenever possible by the g ranting of an order for payment of rehabilitative, tempor ar y support and maintenance. Where there is such relative eco n omic disadvantage and rehabilitation is not feasible in consideration of all relevant factor s, includi ng those

set out in this subsection, then the court may grant an order for

payment of support

and maintenance on a long-term basis or un til the death or remarriage of the recipient e xcept as otherwise provided in subdivision (a)(3). Rehabi litativ e support and maint

enance is a sepa rate class of spousal support as distinguished from alimony in sol ido and periodic alimony. In determining whether the granting of an ord e r for payment of support and maintenance to a party is appropriate, an d in determining the nature, amount, length of term, and manner of payment, the court shall consider all relevant factors, inc luding: ( A) The relative earning capacity, obligations, needs, and financial resources of each party, including income fr om pension, profit sha ring or r etireme nt plans a nd all othe

r source s; (B) The relative education and training of eac h party, th

e ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training t

o improve

su ch party’s earning capacity to a reasona ble level; (C) The duration of the marriage; (D) The age and mental condition of each pa rty; (E) The physi cal conditi on of each party, including, but not limited to , p hysical d

isability o

r incapa city due t

o a chron

ic debilitating disease; (F) The exte

nt to which

it would be undesirable for a party to seek employment

outside the home because such party will be custodian of a minor child of the marriage; (G) The sepa

rate as sets of e ach par

ty, both real and persona

l, tangible and intangible; (H) The provisions mad e with r egard to the marital property as defined in § 36-4-121; (I) The standard

of living the parties established during the6 marriage; ( J) The ex tent to which each party has made such tangible and intangible contrib ut ions to the marriage as monetary and homemaker

co ntributions, and tangible and intan gibl e contributions by a party to the educ at ion, training or increased earning power of the other party; (K) The relative fault of the parties in cases where th

e court, in its discretion, deems it appropriate to do so; and (L) Such other factors, including the tax consequences to each pa rty, as are necessa

ry to cons ider the

equities b etween

th e parties. T.C.A. § 36-5-101(d)(1) (1994). Need and the ability to pay are t he critical factors in setting the amount of an alimony award. Smith v. Smith , 912 S.W.2d 155, 159 (Ten n. App. 19 95); Lancaster , 671 S.W.2d at 503. In Lancaster , this Court stated:

Alimony is not and never ha s been int ended by our legis lature to be punitive. See McClung v. McClung , 29 Tenn. App. 580, 198 S.W.2d 820, 82 2 (1947). Nor do we believe it was intended simply as an aw ard for

virtue. I t is not desi g n ed to serve as an annuity for the wife; or as P rofessor Clark has stated “[t]he purpose of alimony

is to car e for the wife’s needs after divorc e, notto provide her with a life-time profit-sharing plan.” H. Clark, Law of Domestic Relations § 14.9(4) (1968). Lancaster , 671 S.W.2d at 503. The propriety of

awarding alimony as well as the adequacy of the amount awarded depends upon the unique facts of e ach case. Butler v. Butler , 680 S.W.2d 467, 470 (Tenn. A pp. 1984) . The amount of alimony to be awarded is a matter for the tria l court’s discretion in view of the particular circumstances of the ca se, andthe appellate courts are notinclined to alter the awards except where the record reflects that such discretion has been abused. Gilliam v. Gilliam , 776 S.W.2d 81, 86 (Tenn. App. 1988). Husband argues that the trial court abused its discretion in awarding Wife alimony in solido because she did not substantially contribute to the appreciation in value of the re sidence or the mini-storage property. The undisputed evidence shows that the parties contributed $5,000.00 to $6,000.00 to the upkeep of the residence and that Wife helped

in the home’s maintenance. The record shows that Wife did contribute to the appreciation in value of the reside nce. The trial court foundthat the house had a fair market value of $66,683.85 at the time of the inheritance and a value of $80,000.00 at the time of the divorc e. Therefore, the trial court found that the appreciation in valueover the course of the marriage wa s $13,317.00. However,6 It appears that the trial court misread Husband’s gra ndmother’s last will and testament. The last will and testament lists the value of her real estate as $45,700.00 a nd the value of her personal property as $66,683.85.

7 There w as no test

imony that H

usband wo

uld event ually inhe rit the hou se or would actually share in the appreciation. 7 the record shows that the house had a fair marke t value of $45,700. 00 at the time of the inheritance. 6 The actual appreciat ion in val ue during the marriage was therefore $34,300.00. Thus, the amount of the appreciation was even grea ter than the amou nt that the trial court considered in rendering its decision. Wife testified that she worked fo r the m ini-stora ge busine ss by keep ing the boo ks, writin g checks, and making deposits. The business was also able to build the mini-storage buildings for less m

oney bec ause

Wife use d her disc ount withUnited Structures to purchase preengineered

metal buildings. The record does notindicate how much t

he mini-st

orage pr operty appreciated

in value, nonetheless, the evidence shows that Wife contributed to the mini-storage business. Husband also argues that the trial court abused its discretion in awarding the alimony in solido because the residence is not part of his separate estate. We agre e that the record shows that the re sid ence is owned by Husband’s mother and is not a part of his separ ate estate. Nonethele ss, we believ e that the trial court could have considered the fa ct that Husband may continue to live there rent free and might be able to experienc e the benefits of the appreciation, 7 while Wife is f orced to rent a two-bedroom apartment for her and the parties’ daughter. This fa ct goes directly to the needs of the parties and Husband’s ability to pay. Husband next argues that Wife did not demonstrate the need for the award of the alimony in solido

. Wife testified that she could “meet [her] monthly bills, yes, but it’s on a very tight budget.” Wife works three jobs to make ends meet on her “tight budget.” T he evidence shows that Wife has $25 0.00 in the b ank and that her car needs to be re placed. Husband argues that Wife does not need the aw ard becau se she owns an income producing property, but is not charging the fair

market r ental. He also point s out that th

e mortga ge balance will

be eliminated in two and one-half years. Wife could make a few hundred dollars more a month on the rent and, in two and

one-half years, will have a

greate r cash f low. Howe

ver, this does not su

bstantially affect her need for assistanc e or support now. We believe that Wife demonstrated a need for an award of

alimony. In addition, without8 The proof showed that Husband and his brother paid their par ents some interest, but did not have a written agreement, a payment schedule , or a deadline. Additionally, the proof was not clear that Husband was individually liable on the debt. 8 the alimony in solido , Husband was awarded more of the marital assets than Wife. Husband’s infidelit y precipitated this divorc e, and we bel ieve that he should not be placed in a better position tha

n Wife f ollowing th

e division of the ma

rital ass ets. Finally, Husband argues that there is no proof that he has the ab ility to pa y the award. However, the evidence shows that Husband’s bank account held $2,500.00 and that he operated

on a cash basis. Husband would deposit his paycheck, keep some cash, and then pay bills and live on cash payments only . Husband did not pro vide an a

ccountin g of his ex

penses, b ut i t appears that Husband meets his cash flow needs. In additio n, Husband is provided a company truck and lives rent-fr

ee in his mother ’s home. Husband argues that the trial court did not consider his debt to hi s parents on the mini-storage building. We note that the proof was not clear that the d ebt was f or the mini -storag e building or was even rea

lly a debt

. 8 In addition, the trial court did

not consid

er that th e mini-st o rage was income-producing property. Although Husband also operates on a tight budget, we believe that he has the ability to pay the award. We hold that the tr

ial cour t did not ab use its disc

reti on in ord ering Hu sband to pa y $25,000. 00 in alimony in solido to Wife. In his second issue, Husband argues that the trial court abused its discretion by awarding Wife $4,380.00

in attorne

y’s fee s. In dete

rminin g whethe r to award attorney’s fees, the trial court should again co nsider the relev ant fac tors in T.C.A. § 36-5-101(d)(1). Kincaid v. Kincaid , 912 S.W.2d 140, 1 44 (Tenn. A pp. 1995) . When the wife dem

onstrate s that she

is financ ially unable to affor d counsel, and whe

n the husba

nd has the

ability to pay , the cour

t may prop erly order the husba nd to pay the wife’s attorney fees. Id . An awa rd of atto rney’s f ees is wit hin the sound discretion of the trial court, and unles s the evid ence pr eponder ates aga inst the aw ard, it will not be dist

urbed on appeal. Id . A spouse with adequate property and income is not entitled to an award

of additional alimony to compensate for attorney’s fees and expenses. See Duncan v. Duncan , 686 S.W.2d 568 (Tenn. App. 1984). As noted above, Wifedoes not have adequate property and income to pay he r attorney’s fees. The trial court could consider the factors in T.C.A. § 36-5-101(d)(1) , including the relative fault of the parties. Husband’s actions started the divorce proceedings, and we believe that the trial court did

not abuse its discretion by ordering Husband to pay Wife’s a ttorney’ s fees in

those9

procee dings. Cons idering a ll of the c ircumsta

nces, Husband should be required to pay Wife’s attorney’s fees. Wife, in her only issue, asks this Co urt to award her legal expenses for de fending this appeal. Considering the division of marital property and the respective income of the par ties, we believe it is appropriate for the parties to pay their own attorney fees incurred on appeal. The judgme

nt of the tr

ial cour t is affir med. This c ase is remanded to the trial court for such further proceedings as may be neces sary. Costs of this appeal are assessed against the appella nt.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ DAVID R.FARMER,

JUDGE

____________________________________ HOLLY KIRBY L ILLARD, JU DGE