FILED

August 5, 1998

Cecil W. Crowson

Appellate Court Clerk

 IN THE COURT OF APPEALS

AT NASHVILLE

JON HOSCHEIT, ) SUMNER CHANCERY

 ) C. A. NO. 01A01-9709-CH-00493

 Plaintiff-Appellee )

 )

 )

 )

 )

 )

vs. ) HON. TOM E. GRAY

 ) CHANCELLOR

 )

 )

 )

 )

 )

JOHANNA G. HOSCHEIT, ) AFFIRMED AND REMANDED

 )

 Defendant-Appellant )

F . DULIN KELLY, CLINTON L. KELLY and ANDY L. ALLMAN, Kelly & Kelly,

Hendersonville, for Appellant.

JOHN R. PHILLIPS, JR., Gallatin, for Appellee.

O P I N I O N

McMurray, J.
2

This action began with a complaint filed by the appellee, Jon

Hoscheit, (husband) seeking an absolute divorce from the appellant,

Johanna G. Hoscheit (wife). After a bench trial, the court entered

a final judgment granting an absolute divorce, custody of th e

parties' minor child to the father, dividing the marital estate and

awarding alimony to the wife. From the judgment of the trial court

the wife has appealed. We affirm the judgment of the trial court.

The wife presents the following issues for our consideration:

1 . The trial court erred in calculating the amount of

alimony in futuro needed by the defendant/appellant

per month in order to meet her needs and retain

some semblance of the lifestyle she was accustomed

to living.

2 . The trial court erred in requ iring the defendant/appellant to dissipate her share of the marital estate in order to pay her attorney's fees.

3 . Wife would request the court to award her attorney's fees for prosecuting this appeal.

W e enter upon our review of this case de novo upon the record,

with a presumpt ion o f correctness of the findings of fact by the

trial court. Unless the evidence preponderates against the

findings, we must affirm, absent an error of law. See Rule 13(d),

Tennessee Rules of Appellate Procedure. No presumption attaches to

conclusions of law. Adams v. Dean Roofing Co. , 715 S.W.2d 341, 343

(Tenn. Ct. App. 1986).
3

The court awarded to the wife all equity in the parties'

house. Additionally, the court decreed that the husband, pending

the sale of the property, would pay th e monthly payments on the

home in the amount of $1,548.00 for the months of May, June and

July, 1997. He was further ordered to pa y $725.00 per month

directly to the wife for support and alimony. Beginning in August

1997 or upon the sale of the house , whi chever occurred first, he

was ordered to pay $1,500.00 per month as alimony in futuro to the

wife and further providing for termination of the alimony contingent upon circumstances not material to this appeal. The court

also ordered the husband to maintain health insurance on the wife

for a period of 24 months beginning in June of 1997.

Upon appellant' s moti on to alter or amend the judgment, the

court ordered the husband to pay spousal support in the amount of

$2,150.00 per month until the sale of the parties home. Upon the

sale of the home, the husband's obligation to pay alimony in futuro

was reduced to the sum of $1,500.00 per month.

T.C.A. § 36-5-101(d)(1) provides:

I t is the intent of the general assembly that a

spouse who is economically disadvantaged, relative to the

other spouse, be rehabilitated whenever possible by the

g r a n ting of an order for payment of rehabilitative,

temporary support and maintenance. Where there is such

relative economic disadvantage and rehabilitation is not
4

feasible in consideration of all relevant factors,

inc ludi n g those set out in this subsection, then the

court may grant an o rder f or payment of support and

maintenance on a long-t erm ba sis or until the death or

remarriage of the recipient except as otherwise provided

i n subdivision (a)(3). Rehabilitative support and

maintenance is a separate class of spousal support as

distinguished from alimony in solido and periodic

alimony. In determining whether the granting of an order

for payment of support and maintenance to a party is

appropriate, and in determining the nature, amount,

length of term, and manner of payment, th e cour t shall

consider all relevant factors, including:

(A) The relative earning capacity, obligations, needs,

and financial resources of each party, including income

from pension, profit sharing or retirement plans and all

other sources;

(B) The relative education an d tr aining of each party,

the ability and opportunity of each party to secure such

education and training, and the necessity of a party to

secure further educati o n and training to improve such

party's earning capacity to a reasonable level;

(C) The duration of the marriage;

(D) The age and mental condition of each party;

(E) The physical condition of each party, including, but

not limited to, physical disability or incapacity due to

a chronic debilitating disease;

(F) The extent 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 separate assets of each party, both real and

personal, tangible and intangible;

(H) The provisions mad e wi th regard to the marital

property;

(I) The standard of living the parties established during

the marriage;

(J) The extent to which each party has made such tangible

and intangible contributions to the marriage as monetary
5

and homemaker contributions, and tangible and intangible

contr ibut ions by a party to the education, training or

increased earning power of the other party; 

(K) The relative fault of the parties in cases where the

court, in its discretion, deems it appropriate to do so;

and

(L) Such other factors, including the tax consequences to

each party, as are necessary to consider the equities

between the parties.

Upon consideration of all the above factors, as applied to the

facts of this case, we are of the opinion the trial court's award

o f alimony is appropriate. While all of the above circumstances

must be considered by the court, in this case, some critical

attention must be given to the physical and mental condition of the

wife and the degree of fault attributable to her in the breakup of

the marriage.

The record reflects that the wife, in general, met her share

o f the marital responsibilities until she was seriously injured in

a n accident. The accident resulted in an onset of illness including

fibro-myalgia and narcolepsy. Thereafter sh e too k substantial

doses of pain medication but asserts that she was nevertheless

unable to obtain complete relief from the pain. She asserts that

she began taking alcohol in conjunction with the pain medication in

a n effort to obtain relief. It seems clear that the combination of

pain medication and the excessive use and abuse of alcohol and the
6

wife's erra tic behavior as a result thereof, contributed to the

deterioration of the marriage. This fact alone, however, was not

the entire cause of the failure of the marriage. The wife also

engaged in extramarital affairs including one of some seven years

duration with the husband's former boss. While the husband did not

become fully aware of the affair between his wife and former boss

until after this action was instituted, this circumstance,

nevertheless, does n ot d etract from the wife's misconduct in

engaging in the affair.

The court granted an absolute divorce to the husband on the

grounds of inappropriate marital conduct. Suffice it to say that

the court was justified in so doing and we do not deem it necessary

t o set out in detail the conduct of the wife which was, without

questi o n , inappropriate. We have briefly discussed the wife's

misconduct solely for the purpose of showing that T.C.A. § 36-5-

101(d)(K) relating to the relative fault of the parties as a factor

i n determining an award of alimony is a proper consideration. In

view of the wife's physical condition, it seems clear that this is

a n a pprop riate case for alimony in futuro. It is likewise clear

from the record that some of the wife's conduct about which the

husband complains is responsible for at least a part of the wife's

poor physical condition. While the trial court apparently made no

finding nor reference to fault in awarding alimony, we find that
7

the record would justify a finding that this is an appropriate case

in which consideration to fault should be given.

In any event, the record does not support a finding that the

trial court abused its discretion is making an award of alimony.

I t is well-settled that in awarding alimony, th e m ost important

factor to consider is the need of the spouse who is awarded alimony

followed by the ability of the obligor spouse to pay. Campanali v.

Campanali , 695 S.W.2d 193, 197 (Tenn. App. 1985). Here the record

i s clear that the Wife has the need for alimony and the Husband has

the ability to pay. In awarding alimony, the facts and circumstances of each case must govern. Rush v. Rush , 33 Tenn. App. 496,

232 S.W.2d 333 (1949). Fault, need, and ability to pay are

essential considerations. Gilliam v. Gilliam , 776 S.W.2d 81,

(Tenn. App. 1988). The award of alimony is in the sound discretion

o f the trial court and will not be disturbed on appeal absent a

manifest showing of an abuse of discretion. Ingram v. Ingram , 721

S.W.2d 262, 264 (Tenn. App. 1986).

Perhaps the most informative and concise statements relating

to an award of alimony are found in Dudenhoeffer v. Dudenhoeffer ,

wherein it is stated:

... trial courts have broad discretion in determining whether to award alimony and in determining the
8

amount and duration of alimony. Aaron v. Aaron , 909

S.W.2d 408, 410 (Tenn. 1995); Brown v. Brown , 913 S.W.2d

163, 169 (Tenn. Ct. App. 1994); Loyd v. Loyd , 860 S.W.2d

409, 412 (Tenn. Ct. App. 1993); Houghland v. Houghland ,

844 S.W.2d 619, 621 (Tenn. Ct. App. 1992); Lancaster v.

Lancaster , 671 S.W.2d 501, 503 (Tenn. Ct. App. 1984). As

a general rule, we are disinclined to alter a trial

court ' s awa rd of alimony unless it is not supported by

the evidence or is contrary to the public policy embodied

i n the applicable statutes. Brown , 913 S.W.2d at 169;

Gilliam v. Gilliam , 776 S.W.2d 81, 86 (Tenn. Ct. App .

1988); Ingram v. Ingram , 721 S.W.2d 262, 264 (Tenn. Ct.

App. 1986).

The decisio n to award alimony is factually driven

and requires a balancing of the factors enumerated in

T.C.A. § 3 6-5-101(d)(1). Denton v. Denton , 902 S.W.2d

930, 932 (Tenn. Ct. App. 1995); Loyd , 860 S.W.2d at 412.

The need of the spouse to whom alimony is awarded and the

ability of the other to pay are two dominant factors to

consider when deciding a proper award of alimony. Kincaid

[v. Kincaid] , 912 S.W.2 d [140 ] at 144; Smith v. Smith ,

912 S.W.2d 155, 159 (T enn . Ct. App. 1995); McCarty v.

McCarty , 863 S.W.2d 716, 720 (Tenn. Ct. App. 1992); Loyd ,

860 S.W.2d at 412; Gilliam , 776 S.W.2d at 86; Lancaster ,

671 S.W.2d at 503. Moreover, the fault of a spouse in

precipitating a divor ce is also a consideration when

determining an alimony award. T.C.A. § 36-5-101(d)(1)(K);

Gilliam , 776 S.W.2d at 86.

A wife [or husband] w hose marriage has been shattered by [a spouse's] misconduct should not be left in a

financial condition inferior to [the] economic situation

prior to the parties' divorce. Aaron , 909 S.W.2d at

410-1 1 ; Gilliam , 776 S.W.2d at 86; Shackleford v.

Shackleford , 611 S.W.2d 598, 601 (Tenn. Ct. App. 1980).

However, in recognizing the premise that a divorce should

not economically prejudice an innocent spouse, this idea

must be temper ed by the statutory factors set forth in

T.C.A. § 36-5-101(d)(1). Brown , 913 S.W.2d at 169-70.

Dudenhoeffer v. Dudenhoeffer , 1997 Tenn. App. LEXIS 460, 1997 WL

367671.
9

Here, the evidence clearly supports both the trial court's

award of alimony and the amount awarded. We find no abuse of

discretion. Accordingly, we find no merit in the wife's issue

relating to alimony.

A s to the wife's issue relating to attorney's fees at the

trial level, the court made a spec ific finding that she had been

awarded sufficient liquid assets to pay her own attorney fees.

The decision to award attorney's fees to a party in

a divorce proceeding, and the amount thereof, are largely

within the trial court's discretion and will not be

disturbed upon appeal unless the evidence preponderates

against such a decision. Batson v. Batson , 769 S.W.2d

849, 862 (Tenn. App. 1988); Lyon v. Lyon , 765 S.W.2d 759,

762-63 (Tenn. App. 1988).

Houghland v. Houghland , 844 S.W.2d 619 (Tenn. App. 1992).

In this case, the evidence does not preponderate against the

t rial court's finding. The trial court did not abuse its dis -

cretion in denying an award of attorney's fees for services

rendered in the trial court. Further, we find that this is not an

appropriate case for an award of attorney's fees on appeal.
1 0

The judgment of the trial court is affirmed in all respects.

Costs are assess ed to the appellant and this case is remanded to

the trial court.

 ________________________________

 Don T. McMurray, Judge

CONCUR:

___________________________________

Houston M. Goddard, Presiding Judge

___________________________________

Charles D. Susano, Jr., Judge
 IN THE COURT OF APPEALS

AT NASHVILLE

JON HOSCHEIT, ) SUMNER CHANCERY

 ) C. A. NO. 01A01-9709-CH-00493

 Plaintiff-Appellee )

 )

 )

 )

vs. ) HON. TOM E. GRAY

 ) CHANCELLOR

 )

 )

 )

JOHANNA G. HOSCHEIT, ) AFFIRMED AND REMANDED

 )

 Defendant-Appellant )

JUDGMENT

This appeal came on t o be hear d upon the record from the

Chancery Court of Sumner County, briefs and a rgument of counsel.

Upon consideration thereof, this Court is of opinion that there was

no reversible error in the trial court.

The judgment of the trial court is affirmed in all respects.

Costs are asses sed t o the appellant and this case is remanded to

the trial court.

___________________________________

 Don T. McMurray, Judge

___________________________________

 Houston M. Goddard, Presiding Judge

___________________________________

 Charles D. Susano, Jr., Judge