### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE March 8, 2001 Sessi

on

AMY LYNN BL

ANKENSHIP v.

CARL SCOTT BLANKENSHIP

A Direct Appeal from the Chancery Court for Williamson County No. 26488 The Honorable Russ Heldman, Judge

No. M2000-01483-COA-R3-CV - Filed April 23, 2001

Husband appeals a final decree o f div orce terminating a marriage of ten y ears, presenting issues regarding th

e trial court’s f

inding of contemp

t, confiscation of

his guns , al imo ny, division of marital assets and debts, and attorneys fees. We vacate in part , modify in part, and affirm as modified.

Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Chancery Court is Vacated in Part,

Modified in Part, and Affirmed as Modified

W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in whichA LAN E. H IGHERS , J. and H OLLY K IRBY L ILLARD , J., joined.
Virginia Le

e Story, Fr

anklin, For Appe

llant, Carl Scott Bl

ankenship
Rebecca E. By

rd, Franklin, Fo

r Appellee, Amy

Lynn Bl ankenship

OPINION

Amy Lynn Bl ankenship

(“Wife”) and

Carl Scott Blanke

nship (“Husband”

) were married

in Alabama in July of 1989. Four children w er e born of this marriage: twin boys, age eig ht years, a third son, age four years , and a daugh ter, age two years a t t he time of trial. At the time of the marriage, Husband was attendi ng medical s chool and W ife was comp leting a degree in secondary education. Wife graduated in December 1989 and began teaching in January of 1990. The parties moved to Vestavi, Alabama where Husband began his first yea r of residency

tr aining, and Wife continued to teach school. Twin boys, Peter Carl and Andrew Scott, were born February 6, 1992, while the parties resided in Al abama. Wife quit teaching in December 1991 and has not worked outside the home since t hat time. In July of 1992, the partie

s and their two chil

dren moved to Nashvi lle, Tenn essee, where H usband continued h

is residency . In 1995, the f amily moved to Gadsden, Alabama, where Husband was an associate in an anesthesiology group. A third chi ld, Elijah Luke, was born on

January 30, 1996. Ellie Marie, the p arties’ fourth c

hild, was born on Ap

ril 22, 1998.-2-

The family then moved back to Nashville, where Husba n d completed a fellowship at Vanderbilt Medical University and was employ ed by a medical group. Wife filed for a divorce in September

of 1999, allegin

g grounds of ir

reconcila b le difference

s, adultery, and inappropria te marital conduct. O n October14, 1999, Husband filed an answer and counter-complaint alleging irreconcilable

differences. On October 19, 1999, the trial court heard Wife’s motion for

temporary support and Husband’s motion for joint custody of the children, visitation, and for dismissal of the previously

issued restraining order. By order filed Octobe r 20, 1999, the trial court

stated that it had

come to the court’s attention that Husband had guns and ammunition in the trunk of his car, and that there was also another gun loca te d in the marital residence, now occupied by Wife. The order “requested ” Husband t o turn the guns over the Williamson County Sheriff’s Department and “requested” Wife turn over the gun in th e residence to th

e Williamson County

Sheriff’s Depa

rtment. On October 27, 1999, the court entered an order on the pending motions, which states in pertinent part:

1. The Temporary Restrain ing [Or der] entered by this Court on September

7, 1999, shall be modified so as to allow Husband

to drive to th e home in order to pick up the children for his visitat ion

. Husband shall not be allowed to enter the residence a t 501 0 Ashby Drive, Williamson County, Tennessee. In all oth er respects the Temporary

Restraining Ord

er shall remain in

full force and e

ffect.

2. Husband shall immediately remove the two f irear ms from the trunk of his car a

nd turn them into the

Williamson County

Sheriff’s Department. Wife shall take the remaini n g firearm in the parties’ residence and turn it over to her counsel, who will then turn it into the Williamson County

Sheriff’s Depa

rtment.

* * *
5. All other requests for relief in Husband’s Motion are denied.

6. Wife shall be responsible for the payment of the mortgage a nd utilities at the parties’ home and the payment of the lease on the Ford Expedition which she shall be entitled to drive.

7. Husband shall main

tain health

insurance for Wife and

the parties’ minor children and t

he par ties shall divide equally all uncovered health expenses.

8. Husband shall be responsib le for making the

payments on the debt to the Internal Revenue Service.1 In the orde r, th e tria l court “request ed” Husband to t

urn over hi

s guns an

d ammuniti

on to the Wil

liamson County Sheriff’s Department and “ordered” the department “to hold and keep sai d guns and ammu

nition in it s custody pending fur ther order s of the court.”

-3-

9. As child support,

Husband shall pay

the amount of $3,43 5 a month based upon Husband’s base salary of $130,000 a y ear.

10. Husband shall pay alimony to Wife in the am ount of $1,565 a month.

* * *

13. Husband shall pay Wife $1,5 00 a tto rney’ s fe es w ith in 3 0 da ys from the date of entry of this Order in order to allow her to prosecute her case.

On April 12, 2000, Wife filed a petition for civil contempt for Husband to show cause why he shoul d n ot be held in contempt for his failure to make any pay ments to the Internal Revenue Service and his fa

ilure to pay

health care expe

nses.

A non -ju ry tr ial was hel d on May 8 and 9, 2000. On May 17, 2000, the trial court entered

an order granting an absolute divorce to Wife on the grounds of inappropriate marital conduc t and adultery and dismissing Hus

band’s counter-

claim. The order provided that pursuant to stipulation, Wi fe was awarde d custody of the four minor children, Husband was granted visitation, Husband

was ordered to pay child support in the amount of $3,551.00 per month, based on his 1999 salary and bonus totaling $134,118.00, Husband was orde red to maintain

health insurance for the children, and to be resp onsible fo r one-half of Wife’s medical bills through the date of the entry of the f inal divorce. The order further enjoined Husbandfrom having firearms or ammunition in his residence

or custody or control for “as long as he lives,” and provided that the temporary injunction entered

on October 20, 1999, was made permanent, without qualification. 1 In addition, the trial court found Husband in contempt of court and ordered that he “shall be incarc

erated in the Willia

mson County Jail until such time as he has purged himself by submitting the appropriate pay ment to the Internal Revenue Service for the 1998 tax liability.” Bond was set at $6,000 pending appeal.

Husband has appealed, raising seven issues as stated in his brief:

I. Whether the trial court erred in holding Husban

d in contempt for failure to pay the I

RS whe n Wife refused to sign the taxes and thereforeprevente

d Husb and from establish ing a paym

ent schedule to the IRS for th

e subject debt?

II. Whether the trial court erred in seizing Husband’s guns, placing themin the custody of the Williamson County Sheriff’s Depa

rtment?-4- III. Whether the trial court erred in a warding the divorce on the grounds of adult

ery and ina

ppropriate marit

al conduct?

IV. Whether the trial cou rt e rred in gr ant ing W ife ali mon y in futuro ?

V. Whether the trial court erred in failing to allocate some of the marital debt to Wife

and in the division of

the marital asset

s?

VI. Whether the trial cour t erred in granting Wife attorney’s fees when Husband had already paid $3,000.00 from

funds that Wife had stolen from his paycheck and had already paid an additional sum of $1,500.00 toward her att or ney’s fee

s pursuant to the pe

ndente lite order?

VI I. Whether appellan

t should be awarde

d his attorney

fees with costs of ap peal taxed to app elle e?
Regarding Husband’s first issue, he contends that purs uant to the penden

te lite order, he was to make payme

nts to the Internal Revenue Service on a tax debt. Husband asserts that at the trial, bothhe andWife testified that his tax returns were not complete and that Wife would not sign the return. Husband testified

that pursuant to a d

iscussion with

his accountant, it

was his understanding that no official tax debt existed until the tax return had been filed. Husband understood that upon filing his tax return, he was to submit a proposed repayment plan and the Internal Revenue Service would either approve or modify the repay ment schedule. Husband contends that he did

not have the ability to make payments toward the tax debt until an official debt actually existed. At the time of trial, no debt existed due to Wife’s refusal to sign the tax return. Husband requests that this Court either order Wife t o sign the 1998 joint tax return and to pay one-half of the tax debt, or in the alternative, if Husband is required to file as married filing separately, that Wife still be required t

o pay one half of the tax debt.

Wife asserts that

Husband has intentionally not paid the tax debt and that his failure to pay the debt placed

her in fear of losingher home. Wife asserts that Husband’s ability to make pay ment to the Internal Revenue Service was not contingent upon her signing the tax returns and that Husband has willfully failed to adhere to the trial court’s order of October 27, 1999.

In order for a cou

rt to properly

find contempt, it must find willful disobedience, resistance,

or interference on the part of the person found in contempt. Ahern v. Ahern, 15 S.W. 3d 73, (Tenn. 2000). In addition, th

e court must find tha

t the party to

be held in contempt

had the ability

to pay at the time the funds were due, and that the failure to pay was willful. Id. at 79. Civil contempt is the incarceration of a party in order to compel perfor mance of the court’s orde

r, and the party

is said to have “the key

s to the jail” and can purge the contempt through compliance with the court’s order. Id. (Citing Garrett v. Forest Lawn Memorial Gardens, 588 S.W.2d 309, 315 (Tenn. Ct. App. 1979). Civil contempt is only available when the party char ged has the ability to

comply with

the-5-

court’s order at

the time of

the contempt hear

ing. T.C.A. § 29-9

-104 (“(a) I

f the contempt con

sists in an omission to perf

orm an act which it

is yet in th

e p ower of the person to perform, he may be imprisoned until her perfor ms it.”) “[I]t is sa

id that a civil contempt is one where a person refuses

or fails to comply

withan order of thecourt and punishme nt is meted out for th

e benefit of a pa

rty li tigant. Shiflet v. State, 217 Tenn. 690, 693, 400 S.W.2d 542, 543 (1966). On the other hand, a criminal contempt is punitive in nature, and the proceeding is to “vindicate the authority of the law and the court as an organ of society.” Id.

In McCray v. McCray , No. 01-A- 01-9704-CH00170, 1997 WL 772140 (Tenn. Ct. App. Dec. 17, 1997), the Middle Section of the Tennessee Court of Appeals

reversed the order of the trial court which held a husband in contempt for failure to p ay child support and alimony. In so ruling, the McCray Court found, inter alia, that since both par ties agreed tha

t th e amount of arrea

rages must be recalculated, it would be impossible to decide what it would take for the

husband to purge

himself of contempt, thus the civil contempt could not stand. Id. at * 9.

In the instant case, Husband testified that he included $500.00 per mont h on hi s monthly expenses, but t hat am ount w as bas ed on a n esti mate t hat th e tota l debt to th e In tern al Revenue Service was $20,000. Husband testified that

the actual debt for 1998 and 1999 taxes was $13,113. Husband filed a 1999 separate return with an initial payment of $300.00 and was to pay

$250.00 per month on that debt, however, neither the 1998 return nor payment voucher have been filed, nor has he received any notice from the I nternal Revenue Service regarding the debt for the 1998 taxes. The record contains an unsigned 1998 tax return prepared for Husband and Wife designated as “married filing jointly.” The form indicates that where parties are filing jointly “BOTH must sign.” It appears that the 1998 return has not been filed, and a repayment schedule for the parties’ 1998 taxes debt has notbeen established. Although Husband’s testimony indicates that he is aware of the total amount of the tax debt, there is currently no monthly pay ment schedule. The trial court’s order precipitating the charge of

contempt states:

8. Husband shall be responsib le for making the

payments on the debt to the Internal Revenue Service.

Th e record establishes that there is no payment schedule for the 1998 taxes. Th e orde r provides that Husband shall be responsible for payment and the proof is clear that Husband has not deniedhis responsibility. Accordingly, we find that Husband has not willfully disobeyed the court order, and the trial court’s order holding Husband in contempt must be vacated.

Husband’s second issue addr esses whether th

e trial court err

ed in seizing his g

uns and pla

cin g themin the custod y o f the Williamson County Sheriff’s Department. After a hearing held on October 19, 1999, the trial court filed an order stating that during the hearing, it came to the court’s attention that Husband was carrying loaded guns in the trunk of his car, and

that there was a loaded gun at the partie

s marital home. The

order states in pa

rt:2 As previously noted in footnote 1 of the opinion, Husband was not enjoined in any manner by the t rial court but was “req uested” to tu rn over wea pons to the W illiamson Co unty Sherif f’s Depar

tment. If the

re is an injunct ion to remain in full force as provide d by this order, it i s an ord

er to t he sher iff ’s depa rtment to hol d and kee

p the f irear ms pending fur ther order s of the court.

-6-

Because of the v olatile testimony presented, including testimony

co n cerning his past threat ag ainst a lover, bec

ause Dr. Blanke

nship wantedto be able to pick up his children at his residence to exercise pendente lit e visitation, and bec ause Ms. Blanken

ship is in reasonab

le fear of Dr. Blankenship, who has been untruthful with her during the marriage, and for other reasons, the Court requested Dr. Blankenship and his attorney to turn over the guns and ammunition located in the trunk of his car parked in a parking lot ne

xt to the Williamson County Courthouse

to the Williamson County Sheriff’s Department for said Department’s ke

eping pending

further Orders

of this Court. Atthis time, the Court is reasonably suspicious of this litigant who does not needto c arry loade

d guns in his car tr

unk towards the co

urthouse while he is to appear for

a contested divorceand custody case. The Courtalso requested Ms. Blankenship to turn over the gun located at the marital residence to her attorney who shall then turn the gun over to said Departmen

t.

The trial court’s order entered October 27, 1999, specifically or dered Husband t o remo ve two firearms from his trunk and to tur n the m into the Williamson County Sheriff’s Department. The May 17, 2000 order

states: “In a

ddition, Husband is

enjoined from having firearms or ammunition in his residence or in his custody or control as long as he lives. The temporary injunction entered October 20, 1999 is made permanent, without qualification.” 2

The final order entered

in this case

on October 13, 2000, provides, as pertinent to Husband’s firearms, as fol

lows:

4. Husband’s affidavit filed August 8, 2000, states as follows: “That I will place the firearms and ammunition whic h have been in the custody of the Williamson Coun ty Sheriff’ s Department with m y Father at his home be ing Mr. George Blankenship, 6010 Silver Lake Circle, Pinson, AL, 35216 and my Father accep ts the care of the

se items.” The Court accep

ts Husband’s sworn

state ment a nd expects him to comply with it. He s hall do so. The Williamson Coun ty Sheriff’s Department shall permit George

Blankenship to pick up Husband’s guns and ammunit ion, non e of which shall be in the possessi on of

Husband during his exercise of visitation with the minor children. Husban

d shall cause safety locks to be secured on all his guns as he promised. The prior injunction concerning Husband’s-7- accessto his guns and ammunition contained in paragraph 7 of the Order of May 17, 2000, is therefore modified and this parag ra ph replaces the same

and constitutes the final injunction on this issue of access to said guns and ammunition.
Although we have so

me diffic ulty in understa nding the exa ct st atus of the matter at the present time, it appears that the trial court expects Husband’s guns to be out of his possession and control and in the possession and control of his father pro bab ly ad infinitum

. We have examined the record in this case and fi

nd no justif

icat ion for confiscation of Husband’s guns in the first place; althou gh, he sho uld have been adm onished for trans

porting loaded w

eapons in his vehic

le and in keeping loaded guns which might be accessible to the children. If the trial c ourt’s present or

der is construedto enjoi n Husband from having possession of his guns, the injunction should not have been issued and will be vacated.

Husband’s third issue addresses whether the trial court erred in awarding the divorce on the grounds of adultery and inappropriate marital conduct. Husband a sserts that he confessed his

only adulterous relationship to Wife , and that she forg

ave his conduct, a

nd thereafter t

he partie s conce ived their fourth child. Husband contends that he is thereby afforded the complete def ense of condonation under Tennessee Law. Husband avers that both parties have been guilty of inappropriate marital conduct, and that the divorce should have been granted on those grounds. On the other hand, Wife admits that she forgave Husband for one adulterous relationships, however contends that she did not forgiveor condone subsequent adulterous relationships of which she became aware in December of 1998.

Pursuant

to T.C.A. § 36-4-101 (3) adultery by either party is grounds

for divorce. Adultery

can be proved by

circumstantial e

vidence without di

rect proof of illi

cit inte rcourse. Gilliam v. Gillia m, 776 S.W.2d 81, 84 (1988) (citing Canning v. Canning, 59 Tenn. App. 678, 443 S.W.2d 502, 505-06 (Tenn. Ct. App. 1968). T.C.A. § 36-4-112 provide s defenses to

adultery inclu ding a bar where “complai

nt h as admi tted the defendant into conjugal society and embraces af ter knowledge of the criminal ac t,” referred t

o in Tennessee ca

se law as “condonation”. In Gilliam v. Gillia m, 776 S.W.2d at 85, the Court held that condonation is not a valid defense where 1.) the husband did not make full disclose to the wife regarding the num ber of his paramours; 2.) the husband fraudulently induced wife to resume marital relations; and 3.) the husband secr etly engaged in adulterous relationships after the alleged condonation. Id. at 85. Condonation of an act is not possible until the act is known to have occurred. Jane Doe v. John Doe, 59 Tenn. App. 108, 438 S.W.2d 353, 357 (1968).

In the instant case the trial court found that both inappropriate marital conduct and adultery were valid gr ounds for t he divorce s tating:

Wife’s allegation as to inappropriate marital co ndu ct on the part of Husband are sustained by the proof and Husband is guilty of such inappropriate

conduct toward Wife as to render cohabitation unsafe and improper. In addition, Husband is guilty of adultery which, even-8- if condoned, was non

ethelessrevived by

his subsequent misconduct towards Wife.

The trial court erred in finding that Husband’s adultery was revived by his subsequent misconduct. As expressed by this Co urt in Newsom v. Newsom, No. D1506 4-2 R.D., 1 989 WL 153881 (Tenn. Ct. App. Dec. 20, 1989):

It is well settled law in this state that adultery, once condoned,cannot thereafter be relied upon as a ground for divorc e. Mc Clung v. McClung, 29 Tenn. App. 580, 198 S.W.2d 820 (1946). Unlike cruel and inhuman treatment, adultery is wiped out and n ot subje ct to revival after condonation has occurred. See Doe v. Doe, 59 Tenn. App. 1 08, 438 S.W.2d 353 (1968); Humphreys v. Humphreys, 39 Tenn. App. 99, 281 S.W.2d 270 (1958).

* * *

The above-cite

d ca ses stand for the proposition that cruel and inhuman treatment, not adultery, even though forgiven , maybe revi ved by su bse que nt a cts of cr uel ty.

Id. at *2.

However, we believe the trial court’s error is harmless. Upon a review of the record, we find tha talthough Wife forgave Husband for his affair in Gadsden, Alabama, she was una w are of th e details of that affair and other indiscretions that followed until his confession in December of

1998. In addition, there were indiscretions by Husband committed prior to Wife’s alleged condonation of which she was not aware until December of 1998. No forgiveness or condonation followed Wife’s discovery o

f Husband’s addit

ional acts.

Husband denies further acts of adultery, however admits to several indis cretions that occurred prior to Wife’s allege

d condonation in

cluding a two month period during Husband’s surgical residency in Birmingham that he was “fl irtatious with a nur se,” and an involv

ement with a nurse duri ng his anesthesia residency in Nashville. These involvements took place before the parties moved to Ga dsden, and Husband testified that he did not admit to them at the time of t hei r
occurrence.
Upon a review of

the record, we find that Wife was not fully aware of the extent of Husband’s indiscretions at th e time of her alleged condonation. Wife stated that Husband admitted to the affair in Gadsden, but that she was not aware “of the sordid details” or “that they did it in the operating room,” and stated “these types of things are unacce ptable to me.” Additionally, at the time of the alleged condonation, Wife was unaware of Husband’s involvements with other women. The testimony of the Wife indicates that until December of 1998, Husband had only reveal an isolated-9-

adulter ous affair to

her, and had not fully disclosed the facts surrounding the affair , nor had he disclosed that his involvemen t w ith ot her women was not limited to that one isolated affair. Therefore, Wife could not have condoned th

e infidelit

y of her Hus

band where she w

as not fully

awareof the nature and extent of Husband’s behavior. See Doe v. Doe . 438 S.W.2d at, 357, and Gilliam v. Gilliam, 776 S.W.2d at 85.

Husband testified otherwise, claiming that Wife was fully aw

are of the detai

ls of his affair in Gadsden, and questioned him extensively regarding that involvement. However, in its order of May 17, 2000,

the trial court fo

und that Wife was a c

reditable witnes s, while Husband wa s not.

When the resolution of th e issues in

a case depends upon the truthfulness of witnesses, the trial judge who has the opp ortuni ty to observe the w itnesses in their ma

nner and demean

or while testifying is in a far better position than this Court to decide those issues. McCaleb v. Saturn Corp.
, 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker , 957 S.W.2d 834, 837 (Tenn. App. 1997). The weight, faith, and credit to be given to anywitness’s testimony lies in the first instance with the trier of fact, and the credibility accorded will be given great weight by the appellate court. Id .; In

re Estate of Walton v. Yo

ung , 950 S.W.2d 956, 959 (Tenn. 1997). Accordingly, we defer to the trial court’s finding with regard to the trut hfulness of the witnesses and find that Wife’s alleged condonation is not a defense to Husband’s adultery.

Husband’s fourth issue addresses whether the trial court erred in granting

Wif e al imo ny in futuro

. Husband asse

rts that r ehabilitative alimony would be a more appropriate award give n the fact that Wife has earned a degree and a teaching certific ate. Husban d cont ends that parties contemplatedthat Wife would have a career outside of the home, a nd that the pa rties retired her studentloan during the marriage. On appeal, Husband asks that the trial court’s award of alimony in futuro of $2,500.00 per month be reversed and short-term rehabilitative alimony be awa rded.

Guidelines for

the determination of alimony are set forth in T.C.A. § 36-5-101 (d) (Supp. 1997). The trial court is aff orded wide discr

etion concerning

the award of alim

ony, and an appel

late court should reverse th

e trial court’s f

indings only in

inst ances in which this discretion “has manifestly

been abused.” Ford v. Ford
, 952 S.W.2d 824, 827 (

Tenn. Ct. App. 1997) ; Hanover v. Hanover
, 775 S.W.2d 612, 617 ( Tenn. Ct. App. 1989) . Although there is no absolute formula for determining an award of alim ony, the need of the spouse seeking support is one of the more importantfactors. The obligor spouse’s ability to pay is also a factor to consider, Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. Ct. App. 1989), as well as fault of the obligor spouse in the termination of the marriage. Gilliam v. Gilliam, 776 S.W.2d at 86.

Te nnessee courts have shown a preference for rehabilitative alimony over other types o f alimony because onegoal is to ultimately sever the ties between the parties so they will no longer be dependent upon one another and can "be relieved of the impediments incident to the di ssolved marriage...." Herrera v. Herrera, 944 S.W.2d 379, 387 (Tenn. Ct. App. 1996) (citing Self v. Self
, 861 S.W.2d 360, 361 (Tenn.1993)). A spouse who is eco nomically disadvantaged, a

s compared to the other spouse, should be rehabilitated wherever possible, by an award of rehabilitative, temporary alimony. T.C.A. § 36-5-101(d)(1). According to the statute, alimony in futuro should be awarded-10-

where there is relative economic disadvantage bet ween the partie s and rehabilitati

on of the less fortunate spouse is not feasible. Self, 861 S.W.2d at 361.

In York v. York, No. 01-A-01 -9104-CV00 131, 1992 WL 181710(Tenn. Ct. App. July 31, 1992), the Middle Section of the Tennessee Court of Appeals affirmed the lower court’s award

of rehabilitative alimony in a divorce action involving facts similar to those in the case at bar stating that “Tenn. Code Ann. § 36-5-101(d) embodies a pol icy favoring rehabilitative support for economically

disadvantaged spouses.” Id. at *6. In York, the parties had been married twe

nty-six yearsand had three minor children. The husband was a doctor who c

ompleted his

medical training while the wife worked as a school teacher. Like Ms. Blankenship, Ms. York stopped teaching after her first child was born and remain ed at home until the time of the divorce. Ms. York, forty-four yearsold at the time of trial, was awarded a divorce on the grounds of cruel and inhuman treatment and adultery. She was

also a warded sole custody of the three children and Dr. York wa s directed to pay $1,250 per month alimony for seventy -two months and $90,000.00 to de fray leg al expenses. In the instant case, the trial court made the requisite finding fo r an awar d of ali mon y in futuro
, stating that there was an economic disadvantage and tha t rehabilitation of Wife is not feasible. The record revea ls t hat Wife was 34 years old at the t ime of trial. She has earn ed a BA degree and a teaching certificate, and worked as a teacher before the parties’ c hildren where born. We recognize that the Wifemust return for some additional training to earn a teachi ng certificat

e in Tennessee, and that her earning capacity as a tea cher is far below that of Dr. Blankenship, still, we do not agree with

the trial court

that Wife cannot be

rehabilitated. Wif

e should be allowe

d to remain at home until the youngest child, two years old at the time of the trial, is established in school. I n addition, Wife should be provided withtemporary supp ort to allo w her time t o gain furth er training, making her more market

able in the work force as a teacher or in another professio n of her choo sing. Wife also needs time an d support while adj usting to a standa rd of living belo

w wha t she was accustomed to during th e marriage to Dr. Blankenship. See York, at *6. Accordingly, we modify the award of the trial court awarding Wif e al imo ny in futuro of $2,500.00 per month and award Wife $2,500.00 per month

rehab ilit ative alimo ny for t en years . In so holding, we note the finding of our Supreme Court that “[o]nce awarded, rehab ilita tive alimony may be modified if the recipient’s prospects for economic r ehab ilitation materially change. If reha bilitation is not feasible, the trial court may t hen mak e an a ward of al imo ny in futuro .” Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000).

In his fifth issue, Husband argue s that the trial cou

rt erred in its division of the ma

rital assets and debts. Husband contends that Wife was awarded the house, her vehicle, and the lion’s share of the personal property, while Husband was awarded his ve hicl e and a small amount of personal property and all of the debts, including the tax debt, although it was clearly marital. On Appea l
, Husband submits that the Wife should be required to pay one-half of the marital debts including the outstanding taxes incurred during the marriage.

With regard to the division of the marital estate the Court in King v. King, 986 S.W.2d 216, (Tenn. Ct. App. 1998) stated:-11- We recognize that the divisionmade by the trial court is not entirely e qual division. I

t is well-settled, h

owever, that:

The trial court's g

oal in every

divorce case

is to divide the parties' marita

l estate in a just an

d equitable

manner. The division of the e state is not rendered inequitable

simply beca

use it is not mathema

ti cal ly equal, Co hen v. Cohen, 937 S.W.2d 823, 832 (T enn.19 96); Ellis v. Ellis , 748 S.W.2d 424, 427 (Tenn.1988), or because each par tydid not receive a share of ever y item of marital property. Brown v. Brown
, 913 S.W .2d [1 63] at 168. Marital d ebts should, where possible, f

ollow their

associated asse

ts, Mondelli v. Howard, 780 S.W.2d 769, 773 (Tenn.App.1989), and sho uld be apportioned by considering th e reason for the debt, the party who benefittedfrom the debt, and th e part y better ab

le to

assume the debt. Mahaffey v. Mahaffey, 775 S.W.2d [618] at 624. In the final analysis, the justness of a particular divisio n of the marital property and allocation of

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

Id. at 219 (quo ting Roseberry v. R oseberry, No. 03 A01-9706-CH-002 37, 1998 WL 47944

(Tenn.Ct. App. Feb. 9, 1998) (citations omitted)).

While we agree with Husband that the debt owed to the Internal Rev

enue Service is

marital debt, upon a consideration of the factors enumerated in T.C.A. § 36-4-121, we find that the trial court’s division of the marital estate meets the criteria referred to by the King Court. Wife is in need of the marital home and the larg er vehicle as she has custody of the four minor children. The tax debt was incurred while Husband was the sole bread winner for t h e parties and their children, the refore, he is responsible for taxes on his income earned during the marriage. In a dd ition
, Husband has the ability

to pay the de

bt, while Wife would

be required draw from funds awarded for her support and the support of the children in repaying the debt. In the division o f assets and debts
, the trial court is affirmed. Finally we ad dres s th e awa rd o f at tor neys fees. A n award of attorney fees is the equivalent of alimony in solido

. Herrera v. Herrera, 944 S.W.2d at 390; Cranford v. Cranford , 772 S.W.2d at 52. The decision whether or not to award attorneys fees is within the sound discretion of the trial court and "will not be disturbed upon appeal unless the evidence preponderates against such a decision." Kincaid v. Kincaid, 912 S.W.2d 140, 144 ( Tenn. Ct. App. 1995) ; see Rule 13(d) Tenn. R. App. P. In deciding whether to award attorneys fees, the trial court should consider the relevant factors enumerated in T.C.A. § 36-5-101(d).-12-

Where the court awards the wife enough alimony in solido to meet her needs and attorneys fees, it may not be proper for th e trial court to make an additional award of alimony in solido for payment of the wife's attorneys fees. Umstot v. Umstot, 968 S.W.2d 819, 824 (Tenn. Ct. App. 1997); and Duncan v. Duncan , 686 S.W.2d 568, 573 (Tenn. Ct. App. 1984). Awards of attorneys fees are appropriate, however, when the spouse se eking them lacks a

dequate funds to

pay his or her

own legal expenses, Houghland v. Houghland, 844 S.W.2d 619, 623 ( Tenn. Ct. App.1992) ; Ingram v. Ingram, 721 S.W.2d 262, 264 (Tenn. Ct. App. 1986), or wou

ld be required to d

eplete his

or her resources in paying these ex penses. See Brown v. Brown, 913 S.W.2d 163, 170. (Tenn. Ct. App. 1994). Where one party has been awarded additional funds for maintenance and

support and such funds are intended to provide the party with

future income, th

e party need not b

e required to pay legal expenses by using funds awarded to provide for future support. Batson v. Batson , 76 9 S.W. 2d 849, 862 (Tenn. Ct. App. 1988). Thus, where the wife has demonstrated that she isunable to pay counsel, and where the husband has the ability to pay, the court may order the husband to pay the wife's attorneys fees. Harwell v. Harwell, 612 S.W.2d 182, 185 ( Tenn. Ct. App.1980) ; Palmer

v. Palmer, 562 S.W.2d 833, 839 (Tenn. Ct. App.197 7); and Ligon v. Ligon, 556 S.W.2d 763, 768 (Tenn. Ct. App.1977).

Husband contends that he h as paid $3,000.00 of

Wife’s attorneys fees which were included in fun ds t hat Wif e st ole fro m hi s pa y chec k an d $1 ,50 0.0 0 of Wif e’s att orn ey f ees pursuant to a pendente lite order. Ho wever, w e find that the previous payment of Wife’s attorney s fees by Husband did not preclude the trial court from requiring him to pay additional funds towards Wife’s att orn eys fees. Wife’s award of support was determined based on her monthly expenses. Requiring her to bear the additi

onal burden of at

torneys fe

es would deplete f

unds in tended fo r her future support and rehabilitatio

n. Evidence does

n ot prepo nderate against the trial court’s award of attorneys fees to Wife, therefore we find that the trial court did not err in awarding Wif e at tor neys fees.

In sum, the or der holdin g Husband in cont empt is vacated. I

f the trial court’ s order is construedin any manne

r to c onfiscate Husba

nd’s firearms, it

is vacated, and H

usband’s proper

ty shallbe returned to him

forthwith by the Williamson County Sheriff’s Department. The trial court’s decreeis modified by de let ing t he aw ard o f al imo ny in futuro and awarding Wife $ 2,500 per month rehabilitative alimony for ten year s. The decree is in all o

ther respects a

ffirmed. Each pa

rty shall be responsible for their attorneys’ fees on appeal. Costs of the appeal a re assessed to appellant, Carl Sco tt B lan ken shi p, a nd h is s uret y.

__________________________________________ W. FRANK CRAWFORD, PRES IDING JUDGE, W.S

.