# FILED February 6, 1998 Cecil W. Crowson Appellate Cou rt Clerk JOANN POLLOCK, ) ) Lawrence Chancery Plaintiff/Appellee, ) No. 7856-96 ) VS. ) ) Appeal No. DONNIE F. POLLOCK, ) 01A01-9706-CH-00271 ) Defendant/Appellant. )

IN THE COURT OF AP PEALS OF TENNESSEE MIDDLE SECTION AT NASH VILLE APPEAL FROM

CHANCERY COURT OF LAWRENCE COUNTY AT LAWRENCEBURG, T ENNESSEE HONORABLE ROBERT L. JONES, JUDGE

W. Charles Doerflinger, Esquire P.O. Box 692 Lawrenceburg, TN 38464 ATTORNEY FOR PLAINTIF F/APPELLEE Randy Hillhouse, Esquire FREEMON, HILLHOUSE & HUDDLESTON P.O. Box 787 Lawrenceburg, TN 38464 ATTORNEY FOR DEFENDANT/APPELLANT



### AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE WILLIA M C. KOCH, JR., JUDGE-2-

JOANN POLLOCK, ) ) Lawrence Chancery Plaintiff/Appellee, ) No. 7856-96 ) VS. ) ) Appeal No. DONNIE F. POLLOCK, ) 01A01-9706-CH-00271 ) Defendant/Appellant. )



## O P I N I O N The defendant, Donn

ie F. Pollock, has a

ppealed from the

ju d gment of the Trial Court awarding the plaintiff a div orce on ground

s of adultery

and inappropria

te marital conduc

t, awarding plaintiff, $8,000 .0 0 alimony in solido and $500.00 per month alimony until she reaches 65 years or

one of the partie

s dies; ord eri ng de fend ant to p ay $2 ,40 0.0 0 ofpla int iff ’s a tto rneys fees, and distrib

uting the marital

estate and liabili

ty for debts .
Defe nda nt p res ent s tw o is sue s, t he fi rst of w hic h is the awar d ofali mon y.
The parties were married 31 years. Their only child is an adult. The wife is 50 years old, holds a high school diploma and worked as a seamstress in

a shirt factory

for 22 yea

rs. After 14 yearswith her last employer, she resigned because she wa s unable to maintain the required production speed of 10,000 operations per d ay. S he is now taking medication for depression under orders of her physician.
The husband has beenemployed by a machinery manufacturer

for 19 yea

rs. He holds a “desk job” at $39,000.00 per year.
The wife tes tified tha t her needs i ncluded th e followin g: Utilities ............. $215 to 225 per month Food .................. $200 to 300 per month Medicine ............ $40 Clothing ............. No stated amount Make-up ............. No stated amount Entertainment ..... No stated amount-3- The sum of the specific

amounts stated above is $455.00 to $565.00, which is sufficient to s upp ort the awar d of $50 0.0 0 pe r mo nth ali mon y.
Trial Courts exerc

ise broad discretion in respect to the amount and duration of spousal support, and such decisions are entitled to great weight on appeal. TCA § 36-5-101(d)(I ); Wilson v. Moore, Tenn. App. 1996, 929 S.W.2d 367. Appellant complains that

alimony, if a

llowed, should

be rehabilitative and limited. No evidenceis cited or f

ound to suppo rt a finding that the wife is presently rehabilitable. Her testimonyconvinced the Trial Judge that, at the time of trial, she wa s not able to wo rk. The periodic alimony remains within the control of the Trial Court which has the power to modify it at any time changed circumstances justify. TCA § 36-5-101(a)(I). Appellant’s second issue complains of the award of $2,400.00 attorneys fee “when the appellee hadthe ability to pay.” Appe

llant cites eviden

ce of the wife’s

former earning

s, but no evidenceof any earnings at the time of trial. No evidence is found that, at the time of trial, any funds were available

to plaintiff for the payment of her counsel. The allowance of attorney s fees in a divorce action rests within the sound discretion of the Tri al Ju dge which will not be disturbed on appeal in the absence of a clear showing of error. Aaron v. Aaron , Tenn. 1995, 909 S.W.2d 408.
The allowance of

attorneys fees to a spouse is not in order where the spouse is possessed of adequate property or income to pay for le gal services. Duncan v. Duncan , Tenn. App. 1984, 686 S.W.2d 568.
Where the spouse demonstrates inability to afford c ounsel, att orn eys fees may be prop erty allowed. Kincaid v. Kincaid , Tenn. App. 1995, 912 S.W.2d 140.-4- The judgment of the T

rial Court is

affirmed. Counsel fees on appeal are awarded to the wife in an amount to be ascertained b y the Tr ial Court on remand. Costs of this appeal are assessedagainst the appellant and his surety. The cause is reman ded to the Tr ial Court for further procee

dings. 

### AFFIRMED AND REMAND ED .

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR:

____________________________ BEN H. CANTRELL, JUDGE

____________________________ WILLIA M C. KOCH, JR., JUDGE