IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

September 14, 2016 Session

SHANE SETH GHORLEY v. BRANDI LYNN GHORLEY

 Appeal from the Chancery Court for Monroe County

No. 18,203 Jerri S. Bryant, Chancellor

No. E2015-02051-COA-R3-CV – Filed November 10, 2016

This appeal, which stems from a divorce action, involves issues of child support and an 

award of attorney’s fees. The father asserts error in the trial court’s decision to award to

the mother attorney’s fees in the amount of $25,000 as alimony in solido. The father also 

argues that his co-parenting time with the children was not properly calculated when 

setting his child support obligation. Following our thorough review of the evidence in 

light of the statutory factors, we conclude that the trial court properly awarded $25,000 

for attorney’s fees to the mother as alimony in solido. We also determine, however, that 

the permanent parenting plan order entered by the trial court contains an internal 

inconsistency. We therefore vacate the permanent parenting plan order and remand to the 

trial court for entry of an appropriate and internally consistent permanent parenting plan

order.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed in Part, Vacated in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Joseph H. Crabtree, Jr., Athens, Tennessee, for the appellant, Shane Seth Ghorley.

Peter Alliman, Madisonville, Tennessee, for the appellee, Brandi Lynn Ghorley.

OPINION

I. Factual and Procedural Background

The father, Shane Seth Ghorley (“Father”), filed a divorce action against the 

mother, Brandi Lynn Ghorley (“Mother”), in the Monroe County Chancery Court on 
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September 5, 2013. Mother and Father were married in 1997 and separated in April 

2013. The parties had three children, one of whom had reached the age of majority by 

the time of trial. 

The record encompasses numerous pretrial pleadings filed by both parties, 

including various motions for contempt and motions for restraining orders. This highly 

contentious case was eventually tried over three non-consecutive days on December 8, 

2014; December 15, 2014; and January 12, 2015. Several witnesses testified, including 

Mother, Father, and the parties’ three children. At the conclusion of the trial, the court 

awarded an absolute divorce to Mother upon the court’s finding that Father was at greater 

fault for the parties’ divorce based upon his inappropriate marital conduct. The trial court

also found that Father had been repeatedly in contempt of the court’s prior orders for 

such actions as communicating with Mother through the children, failing to make support 

payments in a timely manner, and failing to return the children from co-parenting on 

time.

The trial court designated Mother as primary residential parent of the two minor 

children. In the permanent parenting plan order (“PPP”) signed by the judge, Mother was 

awarded 212 days of co-parenting time annually, with Father enjoying 153 days of coparenting time. In its oral ruling from the bench, the court announced a two-week,

rotating schedule with Mother’s having care of the children on Monday, Tuesday, Friday, 

Saturday, and Sunday of one week and Father’s having care of the children on 

Wednesday through Friday morning of that week. During the following week, Mother 

was to have care of the children Monday through Thursday, and Father was to have coparenting time Friday through Sunday, which the court stated would provide Father coparenting time consisting of five out of every fourteen days with the children. The court 

also awarded to Father four non-consecutive weeks of co-parenting time during the 

summer. Based on Father’s representation in his proposed parenting plan that his gross 

monthly income was $6,400 per month, the trial court set Father’s monthly child support 

obligation at $932 per month pursuant to the applicable child support guidelines. 

The trial court ordered that the parties retain joint ownership of the marital 

residence, with Mother to reside therein until the youngest child reached the age of 

eighteen or graduated from high school, whichever event occurred last. The court 

additionally ordered that during that time, Father would continue paying the $115 

monthly mortgage payment as part of the court’s alimony award to Mother. The court 

also ordered that following the youngest child’s graduation/emancipation, the home 

would be sold and the proceeds equally divided between the parties. The court 

specifically divided the parties’ other marital assets and debts. Regarding spousal 

support, the court awarded Mother additional alimony of $150 per month for a period of 
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eighteen months, determining that she maintained a need for alimony and that Father had 

the ability to pay.

Mother subsequently filed a motion for attorney’s fees and discretionary costs, 

supported by respective affidavits. Mother sought fees in the amount of $27,650 and 

costs of $2,078. In an order dated May 28, 2015, the trial court awarded to Mother 

attorney’s fees in the amount of $25,000, explicitly finding this amount to be reasonable. 

The court also awarded costs of $2,078. Father subsequently filed a motion to alter or 

amend the judgment, asserting, inter alia, that he did not have the ability to pay the 

amount of attorney’s fees awarded. Thereafter, the trial court entered an order on 

September 14, 2015, by which the court affirmed its earlier findings that Father had the 

ability to pay alimony and that Mother had the need for such an award. The court 

determined that Mother was economically disadvantaged compared to Father and that 

even if Mother obtained full-time employment, she could not meet her financial needs. 

The court denied the motion to alter or amend, again determining the amount of the fee 

award to be reasonable, while also noting that Father had not challenged the 

reasonableness of the fees. Father timely appealed.

II. Issues Presented

Father presents the following issues for our review, which we have restated 

slightly:

1. Whether the trial court erred by awarding to Mother attorney’s fees 

without determining whether Father had the ability to pay such fees.

2. Whether the trial court erred in the amount of reasonable attorney’s 

fees awarded.

3. Whether the trial court erred in its calculation of child support 

because the court did not properly include the total number of days 

annually that Father spends with the children.

III. Standard of Review

As our Supreme Court has explained regarding an award of attorney’s fees 

pursuant to an absolute divorce:

It is well-settled that an award of attorney’s fees in a divorce case 

constitutes alimony in solido. See Tenn. Code Ann. § 36-5-121(h)(1) 

(“alimony in solido may include attorney fees, where appropriate”); 
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Herrera v. Herrera, 944 S.W.2d 379, 390 (Tenn. Ct. App. 1996). The 

decision whether to award attorney’s fees is within the sound discretion of 

the trial court. Crabtree [v. Crabtree], 16 S.W.3d [356,] 361 [(Tenn. 

2000)]; Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995). 

As with any alimony award, in deciding whether to award attorney’s fees as 

alimony in solido, the trial court should consider the factors enumerated in 

Tennessee Code Annotated section 36-5-121(i). A spouse with adequate 

property and income is not entitled to an award of alimony to pay 

attorney’s fees and expenses. Umstot v. Umstot, 968 S.W.2d 819, 824 

(Tenn. Ct. App. 1997). Such awards are appropriate only when the spouse 

seeking them lacks sufficient funds to pay his or her own legal expenses, 

see Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn. Ct. App. 1992), 

or the spouse would be required to deplete his or her resources in order to 

pay them, see Harwell v. Harwell, 612 S.W.2d 182, 185 (Tenn. Ct. App. 

1980). Thus, where the spouse seeking such an award has demonstrated 

that he or she is financially unable to procure counsel, and where the other 

spouse has the ability to pay, the court may properly grant an award of 

attorney’s fees as alimony. See id. at 185. 

Gonsewski v. Gonsewski, 350 S.W.3d 99, 113 (Tenn. 2011).

Determinations regarding child support are reviewed under an abuse of discretion 

standard. See Mayfield v. Mayfield, 395 S.W.3d 108, 114-15 (Tenn. 2012); Richardson v. 

Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005). “This standard requires us to 

consider (1) whether the decision has a sufficient evidentiary foundation, (2) whether the 

court correctly identified and properly applied the appropriate legal principles, and (3) 

whether the decision is within the range of acceptable alternatives.” State ex rel. Vaughn 

v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). To the extent that we need also 

review the factual findings of the trial court, we presume those findings to be correct and 

will not overturn them unless the evidence preponderates against them. See Tenn. R. 

App. P. 13(d); Morrison v. Allen, 338 S.W.3d 417, 425-26 (Tenn. 2011). “In order for 

the evidence to preponderate against the trial court’s findings of fact, the evidence must 

support another finding of fact with greater convincing effect.” Wood v. Starko, 197 

S.W.3d 255, 257 (Tenn. Ct. App. 2006).

IV. Award of Attorney’s Fees

Father contends that the trial court erred by making no finding that Father had the 

ability to pay attorney’s fees. Father also argues that the amount awarded was excessive 

and unreasonable. We will address each of these issues in turn.
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A. Award of Attorney’s Fees as Alimony in Solido

Father asserts that he demonstrated to the trial court that his net income was only 

$3,486 per month. According to Father, after subtracting his regular living expenses plus 

his court-ordered monthly obligations of $932 in child support, the $115 mortgage 

payment on the marital residence, and $150 in alimony, he has a monthly deficit of over 

$860. Mother asserts that Father’s gross monthly income was properly found to be 

$6,400 per month by the trial court. Mother contends that, based upon Father’s actual 

income amount determined by the court, Father has the ability to pay his court-ordered 

obligations and the amount of attorney’s fees awarded.

In making the discretionary decision regarding whether to award attorney’s fees, 

the trial court should consider the factors enumerated in Tennessee Code Annotated § 36-

5-121(i). Gonsewski, 350 S.W.3d at 113. Such awards are appropriate only when the 

spouse seeking them lacks sufficient funds to pay his or her own legal expenses or the 

spouse would be required to deplete his or her resources in order to pay those expenses. 

Id. Tennessee Code Annotated § 36-5-121(i) (2014) provides the following factors for 

consideration in making an award of alimony in solido:

(1) 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;

(2) The relative education and training 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 education and training to improve such 

party’s earnings capacity to a reasonable level;

(3) The duration of the marriage;

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

(5) The physical condition of each party, including, but not limited to, 

physical disability or incapacity due to a chronic debilitating disease;

(6) 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;

(7) The separate assets of each party, both real and personal, tangible and 
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intangible;

(8) The provisions made with regard to the marital property, as defined in § 

36-4-121;

(9) The standard of living of the parties established during the marriage;

(10) The extent to which each party has made such tangible and intangible 

contributions to the marriage as monetary and homemaker contributions, 

and tangible and intangible contributions by a party to the education, 

training or increased earning power of the other party;

(11) The relative fault of the parties, in cases where the court, in its 

discretion, deems it appropriate to do so; and

(12) Such other factors, including the tax consequences to each party, as are 

necessary to consider the equities between the parties.

Following our thorough review of the record, we agree with Mother that the trial 

court properly determined Father’s gross monthly income to be at least $6,400. At trial, 

Father proffered as an exhibit a proposed permanent parenting plan and child support 

worksheet, and in both documents Father represented his gross monthly income as 

$6,484. In addition, Father’s November 21, 2014 paycheck stub was entered as an 

exhibit. This paycheck stub evinced that Father’s net income for one week was $1,454, 

with his gross income for that week exceeding $2,000. Multiplying Father’s gross 

weekly income reflected on the paycheck stub by four weeks yields a gross monthly 

income substantially greater than $6,400. Furthermore, multiplying Father’s weekly net 

income amount by four weeks would yield a monthly net income significantly more than 

Father’s claimed amount of $3,486 per month.

By means of calculation, if the amount of Father’s gross monthly income,

determined by the trial court to be $6,400, is multiplied by twelve months, the product 

would result in Father’s gross annual income being $76,800. According to Father’s 

paycheck stub, his actual gross income earned through November 15, 2014, was $68,836. 

The difference between these amounts is approximately $8,000, which Father would 

easily earn during the remaining six weeks of 2014 at the demonstrated weekly amount of 

over $2,000. Father testified that he had been employed by Hope Industries for twenty 

years prior to trial. Ergo, there was no basis for the trial court to conclude that Father’s 

income would change or decrease. Based upon the proof presented to the trial court, we 

conclude that the trial court did not err in determining Father’s gross income to be $6,400 

per month. 
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Our careful review of the evidence also supports the conclusion that Father has the 

ability to pay alimony based on his income and expenses. The trial court ordered Father 

to pay alimony to Mother for eighteen months in the amount of $150 per month. Father 

was also ordered to pay the monthly mortgage payment regarding the marital residence in 

the amount of $115 until the parties’ youngest child reaches the age of eighteen or 

graduates from high school, whichever event occurs last. In addition, the trial court

ordered Father to pay $932 in child support pursuant to the Child Support Guidelines.

1

 

Father’s court-ordered obligations therefore total $1,197 per month.

In addition to the above, through his affidavit of income and expenses entered as 

an exhibit at trial, Father represented that his personal living expenses totaled $1,731 per 

month, including the $500 in monthly rent he claimed as owed to his father.2 Therefore, 

Father has demonstrated monthly expenses totaling less than $3,000. We also consider

that in the division of marital assets and debts, the trial court assessed to Father combined 

marital debt totaling approximately $4,000, an amount Father should be capable of 

satisfying considering his income.

Regarding Father’s claimed monthly financial deficit, deducting a reasonable 

amount for tax withholdings from Father’s gross income of at least $6,400 per month

leaves a surplus of funds after the payment of his monthly expenses, including child 

support and spousal support.3 We therefore conclude that Father had the ability to pay 

the alimony award of attorney’s fees in the amount of $25,000, plus $2,078 in expenses. 

Although Father has not taken issue with any of the other factors applicable to an award 

of attorney’s fees as alimony in solido, upon our careful review of the record, we 

determine that the evidence relative to the applicable factors militates in favor of the 

 

1

It is also noteworthy that none of these court-ordered obligations are long term. Mother testified that the 

youngest child should graduate from high school a few months after her eighteenth birthday, which will 

occur in December 2018.

2 The trial court questioned the existence of a rent expense inasmuch as Father was unable to demonstrate 

that he had ever paid rent to his father.

3 We note that Father filed an amended affidavit of income and expenses concomitant with his motion to 

alter or amend, which reflected the payment of approximately $200 additionally per month for 

homeowner’s insurance and property taxes on the marital residence and a health insurance policy for 

Mother, these being items the trial court ordered Father to pay in the divorce judgment. In addition, 

Father claimed an increased amount of living expenses for himself. Because Father was never subject to 

cross-examination regarding this affidavit and it is unclear whether the trial court considered it, we do not 

find it appropriate to consider these amounts, see Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003), 

except to note that the relatively small amount of additional court-ordered responsibilities would not 

affect our overall determination regarding Father’s ability to pay alimony.
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award made by the trial court. We affirm the trial court’s determination that Father 

should pay a portion of Mother’s attorney’s fees as alimony in solido.

B. Amount of Attorney’s Fee

Father argues that the amount of the trial court’s award of attorney’s fees to 

Mother is excessive and unreasonable. Father specifically points out that Mother’s 

counsel billed for thirty-two hours of preparation for a hearing that was subsequently 

continued at Mother’s request. Father asserts that Mother’s counsel also billed for 

another thirty hours of preparation before the trial. According to Father, the billed fees 

were excessive because no novel legal issues existed and the parties’ estate was modest.

As Mother notes, a trial court has great discretion in setting the amount of 

attorney’s fees awarded. See Owens v. Owens, 241 S.W.3d 478, 496 (Tenn. Ct. App. 

2007) (“[T]he appellate courts will ordinarily not interfere with an alimony in solido 

award for attorney’s fees unless the trial court did not appropriately exercise its discretion 

based on the facts.”). As this Court explained in Owens, “A trial court fails to exercise its 

discretion properly when its decision is not supported by the evidence, when it applies an 

incorrect legal standard, when it reaches a decision which is against logic or reasoning 

that causes an injustice to the party complaining.” Id. Mother contends that the trial 

court reduced the amount of fees sought to an amount the court explicitly deemed to be 

reasonable in making its award and therefore did not abuse its discretion.

Tennessee Supreme Court Rule 8, Rule of Professional Conduct 1.5(a) sets forth 

the factors to be considered in determining the reasonableness of attorney’s fees, 

providing:

(a) A lawyer shall not make an agreement for, charge, or collect an 

unreasonable fee or an unreasonable amount for expenses. The 

factors to be considered in determining the reasonableness of a fee 

include the following:

(1) the time and labor required, the novelty and difficulty 

of the questions involved, and the skill requisite to 

perform the legal service properly;

(2) the likelihood, if apparent to the client, that the 

acceptance of the particular employment will preclude 

other employment by the lawyer;

(3) the fee customarily charged in the locality for similar 
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legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the 

circumstances;

(6) the nature and length of the professional relationship 

with the client;

(7) the experience, reputation, and ability of the lawyer or 

lawyers performing the services;

(8) whether the fee is fixed or contingent;

(9) prior advertisements or statements by the lawyer with 

respect to the fees the lawyer charges; and

(10) whether the fee agreement is in writing.

In the case at bar, the trial court established the award of attorney’s fees by 

reducing $2,650 from the amount originally sought to account for time expended by 

counsel in communication with the client. The court specifically found the amount of 

$25,000 to be a reasonable fee award. We note that Father submitted no proof to 

demonstrate that the award of fees was unreasonable. Mother’s counsel supported his fee 

claim with an appropriate affidavit, which set forth his opinion that the time spent on the 

matter was necessary and reasonable, his representation that he contemporaneously and 

accurately recorded his time, and his opinion that his billing rate was within the 

customary rate charged in the area for the type of case. Mother’s counsel also described 

his extensive experience in the field of practice.

Father filed no response regarding the fee affidavit or billing statement to 

demonstrate that the amount sought was excessive. In fact, in Father’s motion to alter or 

amend that was filed after the fee award was entered, Father only argued that he did not 

have the ability to pay the award and that the “contentious” actions of both parties led to 

“numerous, unnecessary” filings and court hearings. Reviewing the evidence presented 

in light of the above factors, we conclude that the trial court did not abuse its discretion in 

setting the amount of attorney’s fees and expenses awarded to Mother.
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V. Child Support

Finally, Father argues that the trial court erred in its calculation of days with 

regard to his co-parenting time, which in turn resulted in a purported error in the 

calculation of the amount of his child support obligation. As outlined in the trial court’s 

oral ruling, the parties’ PPP was intended as a two-week rotating schedule, with Father to 

enjoy co-parenting time with the children from Wednesday afternoon to Friday morning 

one week and from Friday afternoon through Sunday evening the following week. Father 

posits that the trial court erroneously counted his co-parenting time from Wednesday 

afternoon to Friday morning as only one day instead of two. Father bases his position on 

the following comment by the court: “Dad picks them up after school on Wednesday, 

and he returns them to school Friday morning. That counts as one day, because there’s 

only one 12-hour period that he gets that count.” Mother contends that the trial court 

ultimately credited Father with five days out of every fourteen because the court noted at 

the conclusion of its ruling regarding the two-week rotating schedule “[t]hat gives Dad 

five out of the 14 days with the children.” Mother posits that the total number of days 

credited to Father on the PPP is accurate.

As Father correctly references, the Tennessee Child Support Guidelines provide 

the following useful definition:

“Days” -- For purposes of this chapter, a “day” of parenting time occurs 

when the child spends more than twelve (12) consecutive hours in a twentyfour (24) hour period under the care, control or direct supervision of one 

parent or caretaker. The twenty-four (24) hour period need not be the same 

as a twenty-four (24) hour calendar day. Accordingly, a “day” of parenting 

time may encompass either an overnight period or a daytime period, or a 

combination thereof.

Tenn. Comp. R. & Regs. 1240-02-04-.02(10). Therefore, based on this definition and the 

oral ruling announced by the trial court, Father would have co-parenting time of five days 

out of every fourteen.

The PPP actually signed and entered by the trial court, however, contained a 

different schedule for week two than that announced in the court’s previous oral ruling. 

The PPP provides the following with regard to week two:

The Mother shall have the children on Monday and Tuesday. The Father 

shall have the children on Wednesday, Thursday, Friday, Saturday and 

Sunday, with him receiving the children after school on Wednesday, 

insuring the children get to and from school during his co-parenting time, 
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until 6:00 p.m. on Sunday. During non-school days, the Father shall pick 

the children up on Wednesday at 6:00 p.m. until Sunday at 6:00 p.m.

According to this provision, rather than Mother’s exercising co-parenting time with the 

children on Wednesday and Thursday during the second week of the rotation as the trial 

court stated in its oral ruling, those days would be part of Father’s co-parenting time

pursuant to the schedule contained in the PPP. Under such an arrangement, Father would 

have seven out of every fourteen days with the children rather than five. This would 

result in Father’s exercising co-parenting time for a significantly greater number of days

than the 153 days per year set forth in the PPP. We therefore determine that the day-today schedule provided significantly differs from the total number of days stated, thus 

rendering the PPP internally inconsistent. 

Because we cannot reconcile the internal inconsistency in the PPP between the

written two-week rotation schedule and the total number of annual days awarded to each 

parent, we have no choice but to vacate that order and remand this issue to the trial court 

for entry of an appropriate and internally consistent PPP. See, e.g., In re Anthony J.H., 

No. M2011-01839-COA-R3-JV, 2012 WL 5258245, at *3 (Tenn. Ct. App. Oct. 23, 

2012). Upon remand, the trial court should also ensure that the total annual days of coparenting time awarded to Father is appropriately reflected upon the respective child 

support worksheet.

VI. Conclusion

For the foregoing reasons, we affirm the trial court’s award of attorney’s fees to 

Mother as alimony in solido. We vacate the permanent parenting plan order entered by 

the trial court due to an internal inconsistency, and we remand for entry of an appropriate 

and internally consistent permanent parenting plan order. Costs on appeal are assessed to 

the appellant, Shane Seth Ghorley.

 

_________________________________ 

THOMAS R. FRIERSON, II, JUDGE