### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVI LLE Se pte m be r 23, 200 4 S es sio n
LYDIA ANN BI SHO P WATKI NS v. W IL LI AM C. WATKI NS, JR.

Appeal f romthe Chancer y Court for Claiborne County No. 14,113 John McAfee, Judge

No. E2003-03050-COA- R3-CV - F ILED DECEMBE R 14, 2004

L y dia Ann B ishop W atkins (“Wife” ) filed f or divorce from Willi am C. Watkins, J r., (“ Husband” ) afte r thirty -five y ear s of marri ag e. The Trial Court awa rded Wife a

divorce and distributed the marital prope rty . The Trial Court also conclude d that Wife was not ec onomically disadvantag ed and ref used to awa

rd her any alimony

. The Trial Court order ed each party to be re sponsible for his or her attorney

fee s. Wi fe a

ppeals c laiming the T rial Court’s distribution of the marital prope rty was inequitable, the Trial Court erre d by not a war ding her alimony in futuro, and the T rial Court err ed by not requiring Husband to pay her attorney ’s fe es. We aff irm the judg ment of the Trial Court.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Chancery Court

Aff irm ed; Case R em anded

D. M I CH A EL S WI NEY , J ., delivere d the opinion of the court, in w hich C H A RLES D. S US ANO , J R ., and S HAR ON G. LEE , J J ., joined.

Re be c c a A. B e ll, Kn oxvil le , T e nn e sse e , f or the Ap pe lla nt L

y dia An n B ish op Watkin s.

David H. Stanife r, Tazewe ll, Tennessee , for the A ppellee William C. W atkins, J r.-2- OP IN ION

Bac kgr ound

This liti g ation beg an in Ma rch of 2003 when Wife filed a complaint seeking a divorc e fr om H us ba ndon theg ro und of a du lte ry . I n th e a lte rn a tiv e , Wif e c la ime d th a t ir

re c on c ila ble differ ence s had arisen betwe en the pa rties, who had be en mar

ried for over thirty -five y ear s. The parties had no minor children when t he case was tried. Wife soug ht a divorce , an equitable division of the marital property , alimon y , an d pay ment of her attorney fee s. Husband filed a n answe r and counter claim. Husband de nied committing adultery and claimed he was e ntitled to a divorce ba sed on Wi fe ’s al l ege d inappropria te marital c onduct. I n the alternative, Husba nd also claimed tha t irrec oncilable diff

ere nces ha d arisen.

The trial wa s held in la te October and ear ly November

of 2003. When the divorce was g rante d, both parties we re f ifty -five y ear s old and in relatively g ood health. Husba nd has bee n employ ed with the United States De partment of A g riculture ( “USD A”) since 1970. Husba nd has a hig h school education and thirty to forty hours of c olleg e cla sses that he “ took throug h my work.” Husband’s base salary was $53,000, althoug h with overtime he e arne d in excess of $80,000 in 2002.

Wife g raduated from high school and attended two y ear s of business colleg e. Prior to moving to Tenne ssee in 198 6, Wife worked a pproxi mately

thirteen y ear s for a

g rain e levator
c omp a ny a s a bo ok ke e pe r a nda c c ou nta nt. I n 19 86 , Hu sb a nd ’s e mpl oy me nt re qu ir e d the pa rt ie s to move to Tenne ssee. Appr ox i m at el y s i x to eig ht months after moving to Tennesse e, the pa rties opened a business in Middlesboro, K entucky , known as First Place Tr ophies which sold trophies and provided e ng raving and scr een printing ser vices a nd the like. Wife worke d only at Fir st Pl ace Trophies for

the next seventeen y ear s and continued to wor k there at the ti m e o f t ri al

. Wife was almost exclusively responsible for running this business on a day to day basis, including hiring a nd training new e mploy ees, e tc.

The Tr ial Court awar ded Wife a divorc e base d on Husband’s admitted adultery . The Trial Court c oncluded that the contributions of eac h of the parties to the marria g e a n d acquisition of assets had been relatively equal. Wit h reg ard to the pr operty distribution, t he Tria l Court awar ded Wife the marital re sidence and all of the equity in the residenc e, but also held her responsible for

the mortg ag e. The residenc e wa s valued a t $130,000 with an out s t an d i n g m o rtg ag e of 53,972.34,
re su lti ng in a

ne t a wa rdto Wi fe a s to the ho us e of $7 6, 02 7. 66 . Wif

e wa s a wa

rd e d the ho us e ho ld furnishing s which the Tr ial Court valued at $20,000. The Trial Court also aw arde d Wife “$11,000 that is in The Fa

rmers a nd Miners B ank ac count or whic h is held in a cashier’ s chec k.” W ife wa s awa r d e d h e r p e n s io n p la n f

r o m a p r e v io u s e mp lo y e r w h ic h w o u ld e n ti tl e h e r to r e c eive $125 pe r mon th at r e tir e me nt. With re g ard to the pa rt ie s’ bu sin e ss, the Tria l Cou rt de te rm ine d th e bu sin e ss was worth $425,000, but had debt totaling $200,000, the reby resulting in a net value of $225,000. The T r ia l C o u r t d e te r mi n e d th e b u s in e s s ’ li q u id a te d v a lu e to b e b e tw e e n $ 1 2 5 , 0 0 0 a n d $ 1 5 0 , 0 0 0. Wife was aw arde d the ent i re interest in the business and likewise w as held re sponsible for the bu sin e ss d e bts

.-3- Husband wa s awa

rded the entire $50,975 c ontained in his thrift savings plan a nd a Chry sler Sebring valued at $7,500. Whi le Husband is not elig ible for s o ci al s ecurity retire ment benef its, he is eligible whe n he re tires for f eder al civil service retire men t benef its in l ieu of socia l
security . The a mount of Husband’ s p r o je c te d future monthly

retire ment benef

it from his civil service plan is approximate l y$3,000. The Trial Court determined tha t the combined pre sent value of Hu sb a nd ’s thrif

t ac c ou nt an d his ci vil se rv ic e re tir e me nt wa s $ 11 7, 60 4. Hu sb a ndwa s a wa rd e d a ll of his retire ment benef

its with one ex ception. More specific ally , the Trial Court stated:
[I ]n order to insure that [Wi fe] can c ontinue the same insura nce cover ag e throug h [Husband’s] federa l employ er [Wife] s hall be
awa rded only th e nec essary

portion of this retireme nt plan to insure [W ife] will continue to have insuranc e cove rag e.
After distributing the marital property , the Trial Court concluded that Wife wa s not economica lly

disadvantag ed or othe rwise e ntitled to any alimony . T h e Trial Court also held that
eac h party

was re sponsible for his or her own attorne y

fee s.
Wif e app e a ls r a isi ng th re e iss ue s. F ir st, Wif e c la ims the Tria l Co urt f a ile d to equitably distribute the marital prope rty

. Wife’s second issue is her c laim that the Trial Court er red when it re fused to aw ard he r alimony . Wife as k s this C ourt to awa rd her alimony in futuro in the
a mou nt o f $ 2, 50 0 p e r m on th. F ina lly , Wif e c la ims the Tria l Co urt er re d whe n it he ld he r r e sp on sib le for he r own a ttorney

fee s.
Discussion

The fa ctual finding s of the Tria l Court are acc orded a presumption of cor

rec tness, and we will not overturn those fac tual finding s u nless the evidenc e pre ponderates ag ainst them. See Te nn . R. Ap p. P. 1 3( d) ; Bogan v. Bogan , 60 S.W .3d 721, 727 (Tenn. 2001). Wit h respe ct to leg al issues, our re view is conduc ted “unde r a pur e de novo standard of revie w, according no defe renc e to the conclusions of law made by the lower courts.” So uth e rn Con str uc tor s, In c
. v
. Lou do n Co un ty Bd. Of Educ. , 58 S.W .3d 706, 710 (Tenn. 2001)

.

We first discuss the Trial Court’s division of the marital property . Tenn. Code Ann. § 3 6- 4- 12 1( c ) r e qu ir e s a tr ia l c ou rt

to c on sid e r a ll r e le va nt f a c tor s w he n ma

kin g a n e qu ita

ble dis tr ibu tio n o f m ari ta l pr op e rt y , in c lud ing :

(1) The duration of the ma rriag e; (2 ) T h e a g e , p h y s i c a l a n d m e n t a l h e a l t h , v o c a t i o n a l s k i lls , employ ability , earning c apac i ty , estate, f inancial liabilities and fi na nc ia l ne e ds of

e a c h o f the pa

rt ie s;-4- (3) T h e tangible or

intang ible contribution by one (1) party

to the
e d u c a t i o n , t r a i n i n g o r

i n c r e a s e d e ar n i n g p o w e r

o f t h e o t h e r p ar t y; (4) The rela tive ability

of ea ch party

for f uture a cquisitions of capital assets and inc ome; (5) The contribution of ea ch party to the acquisition, prese rvation, app re c ia tio n, de pr e c ia tio n o r d iss ipa tio n o f the mari ta l or

se pa rate p ro p er t y , including the contribution of a pa rty to the marria g e as ho me make r, wa g e e arn e r o r p are nt, wi th the c on tr ibu tio n o f a pa rt y as homemake r or wa g e ea rner to be g iven the same weig ht if eac h party has fulfilled its role;
( 6 ) T h e v a l u e o f

t h e s e p ar a t e p r o p e r t y o f

e a c h p ar t y; (7) The estate of

eac h party

at the time of the ma

rriag e; (8) The ec o n o m ic circ umstances of eac h party

at the time the division of property

is to become e ffe ctive; (9) The tax consequence s t o ea ch party , costs associate d with the
re a so na bly fo re se e able sa le of

the asset , a ndoth e r r e a so na bly fo re se e able e xpe ns e s a sso c ia te d w ith the a sse t; (10) The amount of social security benef its available to ea ch spouse; and (11) Such other

fac tors as ar e nec essary to consider the equ ities be tw e e n th e pa

rt ie s.
A trial court has wide discr etion in dividing t h e i n tere st of the parties in marital property

. Ba rn hil l v . B ar

nh ill , 826 S.W .2d 443, 449 (Tenn. Ct. App. 1991). A s noted by this Court in King v. King , w h e n d i v i d i n g m ar i t a l p r o p e r t y:

Th e tr ia l c ou rt ’s g oa l in e ve ry div or c e c a se is to div ide the partie s’ marita l e s tate in a ju s t a n d e q u it ab le ma n n e r
. T h e d iv is io n of the estate i s not render ed inequitable simply beca use it is not mathematica lly

equal, Cohen v. Cohen , 937 S.W .2d 823, 832 (Tenn. 19 96 ); El lis v . E lli s , 7 48 S.W. 2d 42 4, 42 7 (T e nn
. 19 88 ), or be c a us e e a c h p ar t y d i d n o tr e c e i v e a s h ar e o f e v e r y i t e mo f

m ar i t a l p r o p e r t y. Br own v . B ro wn , 9 13 S.W. 2d[163 ] at 16 8.

. . . I n th e fi na l a na ly sis , the justness of a pa

rticular division o f the marital property and-5- allocation of ma

rital debt depends on its final results. See Thompson v. Thompson , 797 S.W .2d 599, 604 (Tenn. A pp. 1990).

K ing v. King , 9 8 6 S

. W

. 2 d 2 1 6 , 2 1 9 (T en n
. C t

. Ap p
. 1 9 9 8 ) ( q u o t i n g R o s e b e r r y v
. R o s e b e rry , No. 03A01-9706-CH- 00237, 1998 Tenn. App. LEXI S 100, at *11-12 (Te nn. Ct. App. Feb. 9, 1998) , no appl. perm. appeal filed

). As noted pre vio u s l y , t he Tria l Court found the business to have a net value of $225,000, and a liquidated value be tween $125,000 a nd $150,000. The primary disag ree ment betwee n the parties is w hether these values assig ned by the Trial Court included the $200,000 debt of t he busi ness. Husband claims that these values encompa ssed the debt, so the business wa s a net asset to Wife in the stated amounts. Wife, howeve r, cla ims that the va lues assig ned by the Trial Court do not take into acc ount the debt. Wife claims the $200,000 in de bt should be subtracte d from the values a ssigne d by

the Trial Court, resulting in the net value of the business being only

$25,000, and its liquidated value be ing a net liabilityof betwe en $50,000 to $75,000.

Th e c ur re nt v a lue of

the mar ita l pr op e rt y

a wa rd e d to Hu sb a ndis $ 12 5, 10 4. Th is fig ure is ar

rived at simply by adding the cur rent va lue of his re tirement plans ($117,604) and the c ar ($7,500). I f Husband is c orre ct that the Tria l Court included the business debt when a ssigning values to the business, Wi fe’ s property awa rd would include: t he net value of the business ($225,000), the net value of

the marital re s idence ($76,027.66), the house hold furnishing s ($20,000), a nd the $11,000, all of which totals $332,027.66. I f we acc ept Husband’ s arg ument that the Trial Court
c on sid e re d th e de bt w he n v a lui ng the bu sin e ss, a nd we c on sid e r the liq uid a te d va lue of the bu sin e ss as opposed to its net value, the n Wife’s property aw ard w ould be betwe en $232,027.66 and $257,027.66. We note that these totals do not inc lude two items. First, they do not include a c urre nt value f or Wife’s pension fr om her previous employ er as no such value was assig ned to that asset by the Trial Court. Second, they do not take into acc ount any social sec urity

retire ment that Wife may
re ce i v e. Fo r t h e p as tt wo y ea rs W i fe p ai d i n t o t h e s o ci al s ec u ri t y re t i re m en ts y s t em v i a w i t h h o l d i n gs from her pay chec ks from the business. There was no testimony at trial reg arding the curr ent value of W ife’s social security retire ment benef its, if any , or t he amount Wife could expect to rec eive at re tir e me nt. We emph a size thi s p oin t be c a us e Hu sb a nd ’s c ivi l se rv ic e re tir e me nt i s a be ne fi t he wi ll
rec eive in lieu of soc ial security retire ment and wa s t h e l arge st component of his property awa rd. As Hu sb a nd ’s c ivi l se rv ic e re tir e me nt i s p ro pe rl y c on sid e re d in de te rm ini ng his o vera ll pr op e rt y awa rd, it is onlyfair to c onsider Wife’s socia l security retire ment as we ll.

I f W ife is corr ect in her arg ument that the Trial Court did not take into ac count the bu sin e ss d e bt w he n a ssi g nin g the va lue s to the bu sin e ss, th e n th e ov e ra ll p ro pe rt y dis tr ibu tio n is drama tically differ ent. Whil e Husband’s overa ll a war d would rema in the same, i.e. , $ 1 2 5 , 1 04, Wife’s total awa

rd would be r educe d by

$200,00 0

. T h u s, if Wife’s arg ument is corre ct, when considering the over all net value of the business, her a war d would total $ 1 3 2 , 0 27.66. When considering the liquidated value of the business, Wife’s total would be re duced f urther to be tween $32,027.66 and $57,027.66. Rely ing on these figur es, W ife claims the overa ll property distribution was inequitable

.T h e ac t u al s al e pr i ce wa s $175, 000, bu t W i fe wa s pe r mi t t ed by t h e con t r ac t t o c ol l ec t a ppr ox i mat el y $8, 000 1 in o u tstan d ing a c c o u n ts re c e iva b le

. -6-

I n s up po rt of he r a rg ume nt that the Tria l Cou rt did no t take int o a c c ou nt the bu sin e ss debt, Wife filed a Motion to Consider Post J udg ment Fa cts with this C ourt. I n this mot ion, Wi fe
c la ims that on Ap ri l 22 , 20 04 , sh e so ld the bu sin e ss fo r $ 18 3, 00 0, bu t th e pu rc ha se r d id n ot a ssu me any of t he $200,000 debt for which W ife remains responsible. I n other words, Wife claims to have 1 sold the business for a ne t loss of $17,000. Ba sed on this sale price , Wife arg ues that the Trial Court
s imp ly c o u ld n o t ha v e in c lu d e d th e b u s in e s s d e b t w h e n it w a s a s s ig n in g v a lu e s to th e b u s in e s s
. We reje ct this arg ument for two pr imary rea sons. First, Wife has off ere d no evidenc e that the sa le was
commerc ially

rea sonable. Sec ond, at trial Wife testified that the g ross sales for the business in 2002
wer e $425,721, and Wife enter ed into e vidence the business tax re turn verifying this amount. The
sa le s in 20 02 , th e re fo re , a ve ra g e d a lit tle ov e r $ 35 ,4 75 pe r m on th. Wif e wa s run nin g the bu sin e ss a t th e tim e of

tr ia l on No ve mbe r 3 , 200 3, wh e n s he wa s a wa rd e d th e e nti re int e re st i n th e bu sin e ss. W ife testified at trial that the inventory in the store as of

three wee ks prior to the trial wa s $2 82 ,7 17 .4 8, wh ic h r e pr e se nte d th e c os t of the inv e nto ry , a s o pp os e d to its re ta il v a lue . A t th a t sa me time there w as $200,000 in debt. Wife sold the business 5 1⁄2 months after the tria l. I f business sales in l a te 20 03 a nd e arl y 20 04 we re ro ug hly the sa me a s th e y we re in 2 00 2, Wif

e wo uldha ve ha d g ro ss s a l e s t o t a l i n g o v e r

$ 1 9 5 , 0 0 0 i n t h o s e f

i v e a n d o n e
- h a l f m o n t h s a f t e r t h e t r i a l a n d b e f

o r e t h e s a l e
. In her Motion to Consider Post Judgment Fa cts, Wife makes a bsolutely no mention of what ha

ppened to the money , if any , g ener ated f rom post-trial sales up until the time the business was sold. We do
no t kn ow if

Wif e ke pt the se fu nd s or wh a t hap pe ne d to this mon e y
. Sin c e Wif e c la ims the bu sin e ss de bt r e ma ine d th e sa me thr ou g ho ut thi s 5 1⁄2 mon th pe ri od , a ll we do kn ow is that Wif e didno t us e the se fu nd s to pay of

f an y of the $2 00 ,0 00 de bt. As the se “ fa c ts” are no t of the ty pe app ro pr ia te to be conside red a s post judgment fa cts, we de ny Wife’s Motion to C onsider Post J udg ment Fa cts.
We now undertake to determine whether the values assig ned to the business by the Trial Court included the $200,000 de bt. As mentioned above , Wife testified at trial, befor e she kne w wh o w ou ld r e c e ive the bu sin e ss i n th e pr op e rt y div isi on , th a t th e c os t of

the inv e nto ry

in the bu sin e ss was $282,717.48. Wife also testified tha t the equipment in the business was worth over $70,000, and she be lieved the va lue of the g oodwill to be $50,000. This i n fo rm ati on was re lied upon by Ra lphCart e r (“ Cart e r” ), a c e rt if ie d pub lic a c c ou nta nt an d the on ly e xpe rt wi tne ss t o te sti fy

a t tria l. Ac c or din g to C art e r, the bu sin e ss h a d $ 28 2, 71 7 in inv e nto ry , $70 ,7 70 in e qu ipm e nt a ndfi xtur e s, $14,500 in acc ounts rece ivable, g oodwill worth $50,000, cash in the a mount of $4,00 0 , and a pic k-up truck worth $4,000, thereby resulting in gr oss assets t o t aling $425,987. Acc ording to Carter, the business also had $200,000 in cor responding debt, resulting i n a net value of $225,987, “to be e x act.” Ba sed on Wife’s testimony and that of Carte r, it is abundantly clea r to this Court that the Trial Court considere d the business debt whe n it determined that the business ha d a net value of $225,000, and a liquidated value of $125,000 to $150,000.

B e c a us e we c on c lud e that th e bu sin e ss d e bt c le arl y w a s c o n sid e re d b y

the Tria l Co urt, it n e c e ssa ri ly fo llo ws that wh e n us ing the ne t va lue of the bu sin e ss, the Tria l Co urt’ s o ve ra ll p ro pe rt y distribution t o W i fe t otaled $332,027.66, and the overa ll property distribution t o Husband totaled-7-

$125,10 4

. From a perc entag e standpoint, Wife was a war ded 72.6% of the marital prope rty , and Husband wa s awa

rded the rema ining 27.4%. I f we utiliz e the liquidated value of the business instead of the ne t va lue , Wif

e ’s tot a l a wa

rdis b e tw e e n $ 23 2, 02 7. 66 a nd$2 57 ,0 27 .6 6, wh ic h e qu a te s to betwee n 65% and 67.3% of the total prope rty

.

When ma king the property distribution, the Trial Court disc ussed all of the re levant fa c tor s c on ta ine d in Te nn . Co de An n. § 3 6- 4- 12 1( c ). On e of the ma ny fa c tor s to be c on sid e re d is the overa ll he alth of the parties. At trial, Wife claimed that due to he r ag e (55) a nd her he alth, she no longe r wa s able to run the busine ss and intended to sell it. I t is for this re ason that the pa rties and the Trial Court discussed bot h the bus iness’ net value as well as its liquidated value. Wife testified that sh e ha s lymph e de ma , a con dit ion wh ic h af fe c ts he r low e r extr e mit ie s. Wif e so ug ht t o a dmi t in to e vid e nc e a

le tte r by a ph y sic a l th e ra

pis t di sc us sin g Wif

e ’s c ur re nt c on dit ion . H us ba nd ’s c ou ns e l di d
no t ob je c t to the a dmi ssi on of

thi s do c ume nt, statin g “ [r]e a lly the le tte r he lps ou r po sit ion .” B e c a us e there was no objec tion, the Trial Court allowed the letter to be admitted, notwithstanding the Trial Court’s conce rn over

its admissibili ty under the Tennesse e Rules of Evidenc e. I n any event, whe n dis c us sin g Wif

e ’s me dic a l c on dit ion , th e Tria l Co urt st a te d a s f oll ow s: [T]he Cou rt

is n ot g oin g to g ive a

tr e me nd ou s a mou nt of

we ig ht t o that document. [I t would be] differe nt if y ou had a doct o r or the de po sit ion of

a do c tor or so me thi ng a lon g tho se lin e s. Ap pa re ntl y [W ife] has some difficulties, obviously s h e’ s testified to that, but sh e ’s ha d th os e dif

fi c ult ies pr ior , w a y

be fo re sh e e ve n g ot i nto thi s busine s s
. I

did make a note at least during the oper ation of the business she ca n find time to sit down ....

I n s ho rt , the Tria l Court fou nd that Wife ’s he a lth wa s not suc h tha t she c ou ld n ot c on tin ue to o pe rate the bu sin e ss s uc c e ssf

ull y , a ndwe ho ld tha t th e pr e po nd e ranc e of the e vid e nc e do e s no t we ig h a g a ins t this finding.

A f

ter considering the Trial Court’s over all property distribution i n light of the various fa c t o r s s e t f

o r t h i n T e n n
. C o d e A n n
. § 3 6

- 4

- 1 2 1 ( c ) , w e ar e u n ab l e t o c o n c l u d e t h a t t he pr op e rt y distribution was inequitable or t hat t he Trial Court otherwise abused it s discretion when distributing the parties’ marital prope rty . We affir m the Trial Court’s distribution of the marital prope rty

.

We next addre ss whether the Trial Court er

red w hen it refused to awa rd Wife alimony . Be cause the amount of alim ony to be awa rded, if a ny , is within t he sound discre tion of the trial court in lig ht of the particu l ar ci rcumstances of the c ase, a ppellate c ourts will not alter such
awa rds abse nt an abuse o f discre tion. Lindsey v. Lindsey , 976 S.W .2d 175, 180 (Tenn. Ct. App. 1997). The fac tors to be considered in deciding whether to awar d alimony

are contained in Te nn. Code Ann. § 36-5- 101(d)( 1)(E) and include:-8- (i) The rela tive earning c apac ity , obliga tions, needs , an d financ ial
resour ces of

eac h party

including inc ome from pension, profit sharing
or re tir e me nt p la ns a nda ll o the r s ou rc e s; (ii) The rela tive education a nd training of ea ch party , the ability and opportunity

of each party to secure such educ ation and training, a nd the ne c e ssi ty

of a pa rt y to s e c ur e fu rthe r e du c a tio n a ndtr a ini ng to imp ro ve su c h p art y ' s e arn ing c apa c ity to a re a so na ble le ve l; (iii) The duration of the marriag e; ( i v ) T h e a g e a n d m e n t a l c o n d i t i o n o f e a c h p ar t y; (v) The phy sical condition of ea ch party , including, but not limited to, phy sical disability

or inca pacity due to a c hronic de bilitating disease; (vi) The extent to which it would be undesirable for a party to seek employ ment outside the home bec ause suc h party will b e custodian of a minor c hild of the marriag e; (v ii ) Th e se pa

ra te a sse ts o f e a c h p art y , b othre a l a ndpe rs on a l, tang ible and intang ible; (viii) The provisions made w ith rega rd to the marital prope rty as define d in § 36-4-121; (ix) T h e s ta n d ar d o f li v in g o f th e p ar ti e s e s ta b li s h e d d u ring the marria g e; (x) The extent to which eac h party has made such tang ible and intang ible contributions to the marria g e as mone tary and homemake r c on tr ibu tio ns , a nd ta ng ibl e a nd int a ng ibl e c on tr ibu tio ns by a pa rt y to t h e e d u c a t i o n , t r a i n i n g o r

i n c r e a s e d e ar n i n g p o w e r

o f t h e o t h e r p ar t y; (xi) Th e re la tiv e fa

ult of th e part ies i n c a se s w he re the c ou rt , in its discretion, dee ms it appropriate to do so; and
( xii ) Su c h o th e r f

a c to r s , in c lu d in g th e ta x c o n s e q u e n c e s to eac h pa rt y , a s a re ne c e ssa

ry to c on sid e r the e qu iti e s b e tw e e n th e pa rt ie s.
In addition to the fore go i n g, T en n
. C o d e A n n
. § 3 6 -5 -1 0 1 (d )( 1 )( B) & ( C )( S upp. 2004)
re c e ntl y wa s a me nd e d a ndno w p ro vid e s a s f oll ow s:-9- (B ) The g ener al assembly finds that the contributions to the marria g e as home maker or pare nt are of equa l dignity and importanc e as ec onomic contribu tions to t he mar riag e. F urther, w here one (1) spouse suffe rs ec onomic detriment for the benefit of t he mar riag e, the gen er al as s em b l y fi n d s t h at t h e eco n o m i ca l l y d i s ad v an t age d s p o u s e's sta nd ard of

liv ing a ft e r the div or c e sh ou ld b e re a so na bly c omp ara ble to the standard of

l i v i n g en

joy ed during the marriag e or to the post-divorce standard of living ex pecte d to be ava ilable to the other spouse, considering the re l evant statutory fac tors and the e quities be tw e e n th e pa

rt ie s. (C) It is the intent of the g ener al assembly that a spouse who is economica lly

disadvantage d rela tive to the other spouse, be reha bilitated wheneve r poss ible by the g ranting of an or der f or pay ment of reha

bilitative, tempor ary support and maintena nce. T o be reha bilitated means to ac hieve, with reasonable eff ort, an e arning
ca p ac i t y t h at w i l l p er m i tt h e e co n o m i ca l l y d i s ad v an t age d s p o u s e's standard of

living af ter the divorc e to be reasona bly compar able to the standard of

living enjoy ed during the marriag e, or to the post-divorce standard of

living expected to be availabl e t o the other spouse , considering the re levant statutory fac tors and the equities betwe en the parties. W h ere there is relative e conomic disadva ntag e and
re ha bil ita tio n is no t f

e a sibl e in c on sid e ratio n o f a ll r e le va nt f a c tor s, including those set out in this subsec tion ( d), the c ourt may g rant a n or de r f or pa y me nt o f s up po rt

a ndma int e na nc e on a long -t e rm ba sis
or un til the death or remarria g e of the re c ipi e nt e xce pt a s o the rw ise provided in subdivision (a )(3)

. An awa rd of periodic a limonymay be made e ither in addition to a reha bilitation award, where a spouse may be partially

reha b ilitated as define d in this subdi vision (d)(1)( C), or instead of a

reha bilitation awa

rd, where rehabilitation is not feasible. When appropriate, the court may also awa rd transitional alimony

as provided in subdivision (d)(1)( D).

When review ing a

trial court’ s decision re g arding alimony , we usua lly beg in by examin i n g t h e income and expenses of the pa rties. As noted pre viously , Husband’s ba se annua l income wa s $53,000, but with overtime he has earned as much a s $80,000. At trial, Wife filed an “Af fidavit of Ly dia Ann B ishop W atkins’ Monthly Ex penses a nd Salary as Evidence in Demand for Alimony .” This af

fidavit shows monthlyexpenses of appr ox imately $3,200, not inc luding Wife’s attorney fee s. Wi fe a dmitted, however , that some portion of the e x penses in the af fi davit wer e rela ted to the business and we re not he r per sonal expenses. Oddly enoug h, and notwithstanding the title of the aff

idavit, Wi fe did not include the amount of her monthlyincome in this affida vit.-10- Wife’s 2002 income tax return showe d g ross income of $37,000. Wife testified that she lea rned in July of 2001 that Husband was having an aff air. Approxim ately

one month later, Wife beg an draw ing pay chec ks from the business in the we ekly amount of $1,200, “be fore taxes.” The fo llo wi ng is a

sma ll p ortio n o f Wi fe ’s c ro ss- e xami na tio n a t tria l: Q

. So f

o r 2 0 0 2 th e e n ti r e y e ar a t $ 1 , 2 0 0 a w e e k is $ 6 6 , 4 0 0 for that y e ar, is tha t c or

re c t?

A. I f y ou sa y s it is. I

do n’ t ha ve my

c a lc ulator , b ut I

a m g oin g to say that is. Q. And y ou have r epre sented to the Court in 2002 ... [t ]hat y ou pa id y ou rs e lf

$3 7, 00 0; i s th a t c or

re c t?

A. Whatever my

W-2 is what I

am basing that on, but y ou reme mber Idid not alway s write my self a pay chec k every wee k.... All I would be able to do a nd tell y ou the truth is look at myledg ers that my bo ok

ke e pe r ha s a nd te ll y ou the e xac t da te s th a t I wr ote tho se chec ks. I mean, I can’ t – how do y ou expect me to re m em b er t wo y e ar s a g o ?

After this discussion, t he Tria l Court understanda bly was confuse d as to how much Wife actua lly

was e arning and instructed the attorney s to clear this matter up. When Wi fe w as aske d to be more de tailed, she testifie d that she wrote herse lf che cks in the amount of $1,200 pe r we ek 75% of the time, or

39 wee ks out of the y ear
. Thus, based on Wife’ s own testimony , the Trial Court specific ally

found th at Wife’s annua l income for the past two y ear s actua lly was “ $46,800 befor e taxes.” During closing argu m en t s, Wi fe’ s counsel indicate d that Wife wanted to sell the business and that she a lso wanted a limonyin the amount of $2,500 per month b ec ause she was economica lly

disadvantag ed. The following discussion then took place:

TH E COU RT: She ’s pu lle d $1, 20 0 a we e k f or 75 pe rc e nt o f the tim e just based on her

testimonyalone whic h equate d to [ almost] $50,000 l a s ty e ar
. N o w h o w i s i tt h a ts h e ’ s e c o n o m i c a l l y d i s a d v a n t a g e d ?

MS. B E LL : W e ll , if

Y o u r H o n o r d o e s [o r d e r

th e p ar ti e s to ] s e ll the business she’s not g oing to ha ve any employ ment ....
THE COURT: That make s no sense to me....
MS. B E LL : [S ]h e ’ s 5 5 y e ar s o ld , th is is th e ti me s h e s h o uld be retiring , should be kicking back a nd living the g ood life basica lly

....-11- THE COURT: [S ]he’s been in this bus i n es s for 17 y ear s.... She appea rs to be a very savvy lady , y our client. She’s very brig ht. She’s
ve ry int e lli g e nt a nd a ve ry

g oo d b us ine ss w oma n. ... I thi nk sh e ’s a very g ood business woman and I don’t understand the theory behind liquidating the business.

Th e Tria l Cou rt c le arl y wa s tr ou ble d b y Wif e ’s po sit ion that sh e wa nte d th e bu sin e ss sold, which would eliminate her $46,800 in annual income, and at the same time be a war ded $2,500 per month in alimony

so she could pay her basic bi lls. Acc ording to the Trial Court, “It’s sort of like y ou want y our ca

ke and [to] eat it too, s ay ing, Well, let’s just liquidate it and let’s knock him in the head a nd take ha lf his retireme nt and eve rything e lse.” The Trial Court sp ecifically found that Wife’s curr ent income f

rom the business was suf ficient to pay

her monthly

expenses.
Counsel for Husba nd phrase d this iss ue bef ore the Trial Court as follows: “Can y ou quit a job to draw a limony ? ” Certa inly , no one would arg ue that Husband could quit his job where he has w orked f

or over 30 y ear s and demand Wife pa y him alimony . Wife and Husband both ha d jobs. W hile we understand Wife’s wish to retire f rom her job a nd have H usband fund he r re tirement by pay ing he r alimony

while he c ontinues to work at his job, this Court, as did the Trial Court, finds
no rea son under the sta tute or ca se law to g rant this wish. The re ality of the situation is that neither party will be retiring or “kicking back and living the g ood life.” Be cause the Trial Court conc luded that Wife’s phy sical condition did not prevent he r fr om opera ting the business, a conclusion we have aff irmed, the Trial Court acte d well wit hin its discretion when it considere d Wife to have a n annual income of $46,800 when i t was in the proc ess of de termining whether alimony should be awa

rded to Wi fe.

We can summarize the ba sic fac ts after the property distribution as follows: H usband is 55, has an annua l income of $53,000 to $80,000, and prope rty valued at $125,104, most of which is his federa l civil service r etireme nt and cannot be li quidated. Wife is 55, has a business with a net value o f $ 2 2 5 , 0 0 0 w h ic h e n ab le s h e r to e ar n a n a n n u a l i n c o me o f $ 4 6 , 8 0 0 , o th e r

a s s e ts totaling $107,027.66, a pension fr om her pre vious employ er w orth $125 per month at retirement, a nd social
se c ur ity re tir e me nt v a lue d a t so me un kn ow n a mou nt. I t is lik e ly that ne ith e r o f thes e part ies wil l enjoy t h e standard of

living that they

enjoy ed while mar

ried, whic h is often what ha ppens af ter a divorce

. See, e .g., Robertson v. Robe rtson , 76 S.W .3d 337, 340 (Tenn. 2002) (“ The pa rties' incomes and asse ts will not alway s be sufficie nt f or them to achieve the same standa rd of living afte r divorce that they enjoy ed during the marriag e. See Crabtree , 1 6 S. W.3 d a t 35 9- 60 .” ). I n li g ht o f the se fa c ts, we c annot conc lude that the Tria l Court abused its discret i o n when it found Wife wa s not e c on omi c a lly

dis a dv a nta g e d a s c omp are d to Hu sb a nd . We do no t be lie ve Wif e is e c on omi c a lly disadvantag ed as c ompare d to Husband simply beca use he ea rn s s o mewhat more money than she does. The income disparity is not so si g nificant that he can be expected to enjoy a hig her standa

rd of livi n g t h an s h e will. This is even mor e appa rent whe n considering that Wife was aw arde d the
mari ta l r e sid e nc e a nd a ll of the e qu ity in that pr op e rt y , a s we ll a s the va st m a jority of the ho us e ho ld furnishing s. Husband had no c ash fr om the sale of the marital residence to use in purcha sing a new home, and ve ry

littl e, if a ny , of the pa

rties’ household f

urnishings to put i n a h o m e s hould he-12-

pu rc ha se on e
. Hu sb a ndwo uldha ve to i nc ur a sig nif ic a nt a mou nt o f d e bt j us t to be able to l ive in a house e quivalent to the house W i fe wa s aw ar d ed, and he then would have to incur additional expense to have it furnished. Wife, obviously , will not have to do this.

After considering all of the rele vant fac tors and revie wing the finding and re asoning of t he Tria l Court in detail, we conc lude that the evide nce doe s not preponder ate a g ainst the Trial Cou rt ’s re le va nt f

ind ing s a ndthat th e Trial Cou rt didno t a bu se its dis c re tio n w he n it re fu se d to
awa rd Wife any alimony

. Having found no abuse of discretion or other error by the Trial Court, we
a f f i r mt h e T r i a l C o u r t ’ s r e f

u s a l t o a w ar d W i f

e a l i m o n y.
The fina l issue is W ife’s c laim that the Trial Court erred whe n it required he r to pay her ow n attorney

fee s. Attorney

fee awa rds ar e trea ted as alimony

. Gilliam v. Gilliam , 776 S.W .2d 81 , 8 6 ( Te nn . Ct . A pp . 1 98 8) . I n d e te rm ini ng wh e the r t o a wa rda tt orney

fe e s, a tr ia l c ou rt

sh ou ld consider the rele vant fac tors set forth in T enn. Code Ann. § 36-5- 101(d)( 1)(E) , su pr a
. Awar ds of attorney fee s are within the sound discretion of the t rial court, and will not be disturbed on a ppeal
u nless the evidenc e pre ponderates ag ainst the awa rd. Kin c aid

v . Ki nc aid , 9 1 2 S. W. 2 d 1 4 0 , 144 (Tenn. Ct. App. 1 9 95). Afte r considering a ll of the rele vant fa ctors, including Wife’s nee d and Hu sb a nd ’s abil ity

to p a y , w e c on c lud e the Tria l Cou rt did no t e rr in r e qu ir ing e a c h p art y

to p a y his or her own attorne y

fee s.
Conclusion The judg ment of the Tr ial Court is aff irmed and this c ause is r emande d to the Trial Cou rt fo r c oll e c tio n o f the c os ts b e low . Co sts on app e a l are a sse sse d a g a ins t th e Ap pe lla nt, L y dia Ann B ishop W atkins, and her surety

.

____________________________________

D. MI CHAEL

SW I NEY, JUDGE