IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 30, 2015 Session

YVONNE WATERS v. DONALD WATERS

 Appeal from the Circuit Court for McMinn County

No. 2013-CV-267 J. Michael Sharp, Judge

No. E2014-01768-COA-R3-CV-FILED-AUGUST 20, 2015

This divorce action involves a marriage of twenty-seven years‟ duration. Both parties 

were employed outside the home throughout the marriage. The parties kept their finances 

separate during the marriage, maintained separate bank accounts, and divided household 

expenses equally. At the time of trial, the wife had accumulated a significantly larger 

amount of money, despite having a much lower earning capacity. The trial court 

therefore determined that the wife had made a greater contribution to the marital estate 

and awarded her approximately 68% of the marital estate upon divorce. The court further 

awarded the wife her attorney‟s fees and costs. The husband timely appealed. We affirm 

the trial court‟s division of the parties‟ marital property. We reverse the trial court‟s 

award of attorney‟s fees incurred at trial to the wife, but we affirm the award of 

discretionary costs in the amount of $2,713. The wife‟s request for an award of 

attorney‟s fees on appeal is denied.

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

Affirmed in Part, Reversed in Part; Case Remanded

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

SUSANO, JR., C.J., and JOHN W. MCCLARTY, J., joined.

Philip M. Jacobs, Cleveland, Tennessee, for the appellant, Donald Waters.

D. Mitchell Bryant, Athens, Tennessee, for the appellee, Yvonne Waters.

OPINION

I. Factual and Procedural Background

This divorce action was filed on August 5, 2013, by the plaintiff, Yvonne Waters 

(“Wife”), against the defendant, Donald Waters (“Husband”). The parties were married 
2

in 1987 after cohabitating for ten years, and they separated in May 2013. No children

were born of the marriage. At the time of trial, Wife was seventy-seven years old and 

Husband was sixty-seven years of age.

Wife maintained two jobs throughout the marriage. Her full-time employment 

during the week was as a food service manager for an elementary school. In addition, 

Wife was employed on a part-time basis as a cashier and hostess in a restaurant on the 

weekends. Wife held both jobs at the time of trial. Husband was self-employed as a 

long-haul truck driver for a substantial portion of each year. According to Husband, he 

typically enjoyed approximately six weeks off per year, but as Wife explained, Husband 

actually only worked seven to eight months annually. The proof demonstrated that Wife 

earned a combined gross income of approximately $21,000 to $26,000 per year during

the four years prior to trial. Husband reported gross income of approximately $72,000 to 

$93,000 during the same time period but claimed to have substantial business expenses 

related to depreciation, taxes, fuel, and vehicle repairs. 

Wife testified that in May 2013, Husband left the marital residence for 

approximately two weeks. She was unaware of his whereabouts. When he returned, he 

told Wife that he had found another woman he could not live without. Husband denied 

this characterization of the parties‟ conversation, however, stating that he merely 

informed Wife he wanted a divorce. Husband subsequently vacated the marital residence 

and moved into a home formerly owned by his deceased mother. 

During trial, Wife‟s counsel questioned Husband regarding an alleged paramour, 

Ms. C., who was shown to visit Husband‟s home frequently. Husband denied that he and 

Ms. C. had been intimate, stating that they were just friends and often went fishing 

together. Ms. C. also dismissed characterization of the relationship as intimate, likewise

claiming that she and Husband were merely friends. Having met Husband in May 2013, 

Ms. C. admitted that the two had been on trips and had dined out together. When asked, 

Ms. C. related that she could not remember if Husband had ever told her he loved her. 

The private investigator hired by Wife testified that he served Ms. C. with a subpoena on 

the eve of trial at Husband‟s residence and that his associate filmed the couple leaving the 

residence together on the morning of trial. The private investigator also presented 

pictures of the two at Husband‟s home on various occasions.

The parties presented evidence that neither of them entered the marriage with any 

significant assets. Specifically, Wife had $15,000 from a divorce settlement while

Husband possessed a truck. The parties maintained separate finances both prior to and 

during the marriage, with each party owning his or her own separate bank accounts. 

During the marriage, the parties purchased real property and built a home thereon. The 

associated costs were divided equally. The parties in equal fashion contributed to the 
3

monthly expenses related to the home, including taxes, insurance, and utilities. Under 

their agreed arrangement, Husband paid said expenses while Wife reimbursed him for her 

share. According to the parties, Wife was frugal with her money and saved as much as 

possible in her bank accounts, certificates of deposit, and individual retirement account. 

As additional income, Wife had been receiving social security benefits for several years 

by the time of trial. She emphasized never having spent “one penny” of those benefits. 

While Husband also received social security benefits in addition to his 

employment income, he failed to save or accumulate funds as diligently as Wife. 

Consequently, Husband did not possess total amounts in his bank accounts equivalent to 

Wife‟s at the time of trial. Although Husband claimed to have contributed money to 

Wife‟s accounts, Wife denied this claim. Husband could present no proof of such 

deposits. When questioned, Wife testified that she was solely responsible for the 

purchase of all groceries during the marriage, as well as buying clothing for Husband and 

gifts for family members. According to Wife, she had paid all expenses related to the 

marital residence since Husband had left.

Following the presentation of proof, the trial court entered an order granting a 

divorce to Wife on the basis of Husband‟s adultery and inappropriate marital conduct. 

The trial court specifically found that while Wife and the private investigator were 

credible witnesses, Husband and Ms. C. were not. The court then examined the 

applicable statutory factors regarding an equitable division of marital assets, choosing to 

adopt Wife‟s proposed distribution. Accordingly, the court directed the parties to sell the 

marital residence and divide the proceeds equally. The court also awarded numerous 

certificates of deposit and bank accounts to Wife along with the bulk of the parties‟ 

personalty. Wife maintained a Tennessee Consolidated Retirement System retirement 

fund, of which the court awarded 66.25% to Wife and 33.75% to Husband. In its overall 

distribution of the remaining marital property, the trial court awarded approximately 68%

of the assets to Wife and roughly 32% to Husband. In addition, the trial court awarded 

Wife $11,563 in attorney‟s fees and costs. Husband has appealed the trial court‟s final 

judgment.

II. Issues Presented

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

slightly:

1. Whether the trial court erred in its division of the marital estate.

2. Whether the trial court erred in awarding Wife her attorney‟s fees at trial.
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Wife presents an additional issue:

3. Whether Wife should receive an award of attorney‟s fees incurred in defending 

this appeal.

III. Standard of Review

In a case involving the proper classification and distribution of assets incident to a 

divorce, our Supreme Court has elucidated the applicable standard of review as follows:

This Court gives great weight to the decisions of the trial court in 

dividing marital assets and “we are disinclined to disturb the trial court‟s 

decision unless the distribution lacks proper evidentiary support or results 

in some error of law or misapplication of statutory requirements and 

procedures.” Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 

1996). As such, when dealing with the trial court‟s findings of fact, we 

review the record de novo with a presumption of correctness, and we must 

honor those findings unless there is evidence which preponderates to the 

contrary. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston, 854 

S.W.2d 87, 91 (Tenn. 1993). Because trial courts are in a far better position

than this Court to observe the demeanor of the witnesses, the weight, faith, 

and credit to be given witnesses‟ testimony lies in the first instance with the 

trial court. Roberts v. Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App. 

1991). Consequently, where issues of credibility and weight of testimony 

are involved, this Court will accord considerable deference to the trial 

court‟s factual findings. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. 

App. 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co., 984 

S.W.2d 912, 915 (Tenn. 1999)). The trial court‟s conclusions of law, 

however, are accorded no presumption of correctness. Langschmidt v. 

Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).

Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007). 

Further, as this Court has previously held:

Because Tennessee is a “dual property” state, a trial court must 

identify all of the assets possessed by the divorcing parties as either 

separate property or marital property before equitably dividing the marital 

estate. Separate property is not subject to division. In contrast, Tenn. 

Code Ann. §36-4-121(c) outlines the relevant factors that a court must 

consider when equitably dividing the marital property without regard to 
5

fault on the part of either party. An equitable division of marital property is 

not necessarily an equal division, and §36-4-121(a)(1) only requires an 

equitable division.

McHugh v. McHugh, No. E2009-01391-COA-R3-CV, 2010 WL 1526140 at *3-4 (Tenn. 

Ct. App. Apr. 16, 2010) (internal citations omitted). See also Manis v. Manis, 49 S.W.3d 

295, 306 (Tenn. Ct. App. 2001) (holding that appellate courts reviewing a distribution of 

marital property “ordinarily defer to the trial judge‟s decision unless it is inconsistent 

with the factors in Tenn. Code Ann. § 36-4-121(c) or is not supported by a preponderance 

of the evidence.”). 

IV. Distribution of Marital Estate

Husband asserts that the trial court erred in its equitable division of the parties‟ 

marital property. The issue requires a review of the applicable statutory provisions.

Tennessee Code Annotated § 36-4-121 (2014) provides in pertinent part:

(a)(1) In all actions for divorce or legal separation, the court having 

jurisdiction thereof may, upon request of either party, and prior to any 

determination as to whether it is appropriate to order the support and 

maintenance of one (1) party by the other, equitably divide, distribute or 

assign the marital property between the parties without regard to marital 

fault in proportions as the court deems just.

* * *

(1)(A) “Marital property” means all real and personal property, both 

tangible and intangible, acquired by either or both spouses during the 

course of the marriage up to the date of the final divorce hearing and owned 

by either or both spouses as of the date of filing of a complaint for divorce, 

except in the case of fraudulent conveyance in anticipation of filing, and 

including any property to which a right was acquired up to the date of the 

final divorce hearing, and valued as of a date as near as reasonably possible 

to the final divorce hearing date. In the case of a complaint for legal 

separation, the court may make a final disposition of the marital property 

either at the time of entering an order of legal separation or at the time of 

entering a final divorce decree, if any. If the marital property is divided as 

part of the order of legal separation, any property acquired by a spouse 

thereafter is deemed separate property of that spouse. All marital property 

shall be valued as of a date as near as possible to the date of entry of the 

order finally dividing the marital property.
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(B) “Marital property” includes income from, and any increase in value 

during the marriage of, property determined to be separate property in 

accordance with subdivision (b)(2) if each party substantially contributed to 

its preservation and appreciation, and the value of vested and unvested 

pension, vested and unvested stock option rights, retirement or other fringe 

benefit rights relating to employment that accrued during the period of the 

marriage.

(C) “Marital property” includes recovery in personal injury, workers' 

compensation, social security disability actions, and other similar actions 

for the following: wages lost during the marriage, reimbursement for 

medical bills incurred and paid with marital property, and property damage 

to marital property.

(D) As used in this subsection (b), “substantial contribution” may include, 

but not be limited to, the direct or indirect contribution of a spouse as 

homemaker, wage earner, parent or family financial manager, together with 

such other factors as the court having jurisdiction thereof may determine.

* * *

(c) In making equitable division of marital property, the court shall consider 

all relevant factors including:

(1) The duration of the marriage;

(2) The age, physical and mental health, vocational skills, employability, 

earning capacity, estate, financial liabilities and financial needs of each of 

the parties;

(3) The tangible or intangible contribution by one (1) party to the 

education, training or increased earning power of the other party;

(4) The relative ability of each party for future acquisitions of capital assets 

and income;

(5)(A) The contribution of each party to the acquisition, preservation, 

appreciation, depreciation or dissipation of the marital or separate property, 

including the contribution of a party to the marriage as homemaker, wage 

earner or parent, with the contribution of a party as homemaker or wage 

earner to be given the same weight if each party has fulfilled its role;
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(B) For purposes of this subdivision (c)(5), dissipation of assets means 

wasteful expenditures which reduce the marital property available for 

equitable distributions and which are made for a purpose contrary to the 

marriage either before or after a complaint for divorce or legal separation 

has been filed.

(6) The value of the separate property of each party;

(7) The estate of each party at the time of the marriage;

(8) The economic circumstances of each party at the time the division of 

property is to become effective;

(9) The tax consequences to each party, costs associated with the 

reasonably foreseeable sale of the asset, and other reasonably foreseeable 

expenses associated with the asset;

(10) The amount of social security benefits available to each spouse; and

(11) Such other factors as are necessary to consider the equities between the 

parties.

It was undisputed at trial that virtually all of the parties‟ property was marital. 

Separate property included a few small items of personalty and Husband‟s interest in the 

home where he was residing, which formerly was owned by his deceased mother. The 

trial court therefore examined the above factors in order to determine how to fashion an 

equitable distribution of the marital assets. Husband asserts that the trial court erred in 

awarding the bulk of the marital estate to Wife, arguing that the trial court improperly 

relied upon Husband‟s fault and placed too much emphasis on Wife‟s frugality. Further, 

Husband argues that the trial court erroneously found that Husband had a greater earning 

capacity than Wife because his employment expenses negated most of his income. 

Following a thorough review of the evidence and the statutory factors, we conclude that 

the trial court properly considered the proof and the appropriate statutory factors to effect

an equitable distribution of the parties‟ marital assets.

We note initially that the trial court did not consider the parties‟ fault in making its 

equitable distribution of marital assets. See Tenn. Code Ann. § 36-4-121 (a)(1) (“In all 

actions for divorce or legal separation, the court having jurisdiction thereof may . . . 

equitably divide, distribute or assign the marital property between the parties without 

regard to marital fault in proportions as the court deems just.”). Rather, the trial court 
8

examined each appropriate statutory factor in turn, noting at the outset that the parties‟ 

twenty-seven-year marriage was of lengthy duration. The court found that for both 

parties, their overall physical health and mental health were excellent. With regard to the 

parties‟ vocational skills and earning capacities, the court determined that both parties 

were employed outside the home throughout the duration of the marriage. The court also 

found Wife to be an excellent worker, having held her primary job for thirty-nine years 

and her secondary position for twenty-six years. Similarly, the court found that Husband 

had also held the same trucking job for many years. Observing that most people would 

be “slowing down” if experiencing Wife‟s advancing years, the court determined that 

although Wife maintained her employment at both jobs, she could not continue to do so 

indefinitely.

Continuing in its analysis, the trial court concluded that statutory factor number 

three (contribution by one party to the education, training or increased earning power of 

the other party) was inapplicable to this action. Regarding factor number four, the court 

found great disparity between the parties‟ earning capacities. In specific terms, the court 

determined that Husband‟s gross income was more than three times that of Wife in most 

years, which trend would most certainly continue in the future. The court also 

determined that Husband would enjoy a greater number of years to continue earning 

income than Wife, based on the age disparity between the parties.

With regard to factor number five, the trial court found that although both parties 

had contributed to the marital estate, Wife‟s contribution was greater based on her 

frugality and ability to save money. Bearing in mind the parties‟ “unique” financial 

arrangement of keeping their monies separate throughout the marriage, the court 

explained that Wife had saved a much larger amount of money than had Husband, despite 

her limited income. The court again observed that Husband earned three to four times as 

much as Wife. Although Husband clearly incurred expenses related to the operation of 

his truck, according to the court, there was no evidence that those expenses would “come 

anywhere near dissipating his personal income to a level anywhere near what Mrs. 

Waters was making.” The court continued in its findings, stating in pertinent part:

In fact, the court finds, based upon all of the evidence before the court, that 

Mr. Waters‟ net disposable income is and has always been far greater than 

the net disposable income of Mrs. Waters throughout the marriage. It is 

obvious to the court, that Mr. Waters simply chose to live a much more 

affluent lifestyle when he was on the road, or even when he wasn‟t on the 

road, given the equal expenditures of the parties for household items and 

given the relative amounts that each of the parties saved during the course 

of the marriage. . . . In addition, the court finds that Mrs. Waters also served 

as the homemaker, and kept and maintained the home for the couple during 
9

this 26 plus year marriage.

As previously referenced, by the time of trial neither party owned a significant 

separate estate. Moreover, at the time of the marriage, the parties‟ respective separate 

estates were similar in value. The trial court determined factor number eight (present 

economic circumstances) in this instance to be duplicative of factor number five

(contributions and dissipation). The court also found factor number nine (tax 

consequences) to be inapplicable. Regarding factor number ten, social security benefits, 

the court determined that while both parties were receiving such benefits, the evidence 

demonstrated that Wife received a slightly greater monthly benefit than Husband. 

Finally, concerning factor number eleven, “other factors as are necessary to 

consider the equities between the parties,” the trial court again noted that Wife had saved 

a much greater amount of money than Husband throughout the marriage by being frugal 

and employing a more modest lifestyle. The court thus adopted Wife‟s proposed division 

of the parties‟ bank accounts and certificates of deposit by awarding Wife the accounts 

and certificates in her name and awarding Husband his accounts and certificates. Further, 

the court ordered that Wife‟s Tennessee Consolidated Retirement System account be 

awarded 66.25% to Wife and 33.75% to Husband, based upon Husband‟s suggestion. In 

the overall distribution of marital property, without including Wife‟s Tennessee 

Consolidated Retirement System account, the trial court awarded approximately 68% of 

the marital estate to Wife and 32% of the marital estate to Husband.

The evidence does not preponderate against the trial court‟s findings. Husband 

demonstrated a significantly greater earning capacity than Wife, and the ten-year 

difference in their ages would likely afford Husband a longer period of time within which 

to earn income and accumulate assets. Wife demonstrated an exemplary ability to save 

money, resulting in a larger contribution by her to the marital estate. In the future, Wife 

may well be required to utilize those savings in order to defray her living expenses. 

Our review of the evidence in this matter, considering the statutory factors 

delineated in Tennessee Code Annotated § 36-4-121(c), leads us to the conclusion that 

the trial court‟s division of marital property is equitable. As previously stated, “This 

Court gives great weight to the decisions of the trial court in dividing marital assets and 

„we are disinclined to disturb the trial court‟s decision unless the distribution lacks proper 

evidentiary support or results in some error of law or misapplication of statutory 

requirements and procedures.‟” See Keyt, 244 S.W.3d at 327 (quoting Herrera v. 

Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996)). The court‟s equitable division of 

marital property holds proper evidentiary support, and we find no error of law in the 

court‟s application of the statutory requirements and procedures. Ergo, we affirm the 

trial court‟s equitable distribution of the marital estate.
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V. Attorney‟s Fees at Trial

Husband also asserts that the trial court erred in awarding Wife $11,563 to 

compensate her for attorney‟s fees and costs incurred in this action. As our Supreme 

Court observed in Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011):

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

constitutes alimony in solido. The decision whether to award attorney‟s 

fees is within the sound discretion of the trial court. 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. 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 them. 

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.

(Internal citations omitted). Further, this Court has stated:

Our review of an award of attorney‟s fees is guided by the principle that 

“„the allowance of attorney‟s fees is largely in the discretion of the trial 

court, and the appellate court will not interfere except upon a clear showing 

of abuse of that discretion.‟” Mimms v. Mimms, 234 S.W.3d 634, 641 

(Tenn. Ct. App. 2007) (quoting Taylor v. Fezell, 158 S.W.3d 352, 359 

(Tenn. 2005)). “Reversal of the trial court‟s decision [regarding] attorney 

fees at the trial level should occur „only when the trial court applies an 

incorrect legal standard, reaches a decision that is illogical, bases its 

decision on a clearly erroneous assessment of the evidence, or employs 

reasoning that causes an injustice to the complaining party.‟” Church v. 

Church, 346 S.W.3d 474, 487 (Tenn. Ct. App. 2010). 

Hernandez v. Hernandez, No. E2012-02056-COA-R3-CV, 2013 WL 5436752 at *8 

(Tenn. Ct. App. Sept. 27, 2013).

The statutory scheme regarding alimony states in pertinent part:
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(i) 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, the court shall consider all 

relevant factors, including:

(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 

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

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

necessary to consider the equities between the parties.

Tenn. Code Ann. § 36-5-121. 

Husband argues that the trial court improperly based the award of attorney‟s fees

solely on his fault. Conversely, Wife contends that the trial court also considered her 

lower earning capacity and advanced age, including her inability to continue working at 

the same pace indefinitely. Our review of the record in this matter, however, 

demonstrates that Husband appears to be correct.

Regarding its award of attorney‟s fees, the trial court stated in pertinent part:

The court finds that Mr. Waters is guilty of inappropriate marital conduct as 

set out above. There is no question that Mrs. Waters has been a faithful and 

devoted wife, and an extremely hard worker throughout the entirety of this 

marriage. There is also no question that Mr. Waters began an inappropriate 

marital relationship, at a minimum in May of 2013, and at a maximum 

possibly before that. The court finds that Mr. Waters continues in this 

inappropriate marital relationship, and the court finds that Mr. Waters was 

intentionally untruthful with the court regarding this issue, as well as being 

intentionally untruthful with Mrs. Waters regarding this issue. Based upon 

all of the court‟s findings, the court holds that Mrs. Waters is entitled to 

have her attorney fees and all of the court costs fully paid by Mr. Waters. 

The trial court‟s order reveals a singular focus upon Mr. Waters‟s fault without specific 

consideration of the other statutory factors. As this Court has often explained, a trial 

court speaks through its written orders, and the appellate courts review only the trial 

court‟s written orders. See In re Conservatorship of Alexander v. JB Partners, 380 

S.W.3d 772, 777 (Tenn. Ct. App. 2011). Further, as stated in Gonsewski, 350 S.W.3d at 

105, “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 them.” Such is not the circumstance in the case at bar

inasmuch as Wife was awarded a large share of liquid assets with which she could pay 

her attorney‟s fees. Therefore, we reverse the trial court‟s award of attorney‟s fees to 

Wife.

We note, however, that the trial court‟s award to Wife of $11,563 also included 

court reporter fees and other court costs that are allowable, in the court‟s discretion, to the 

prevailing party pursuant to Tennessee Rule of Civil Procedure 54.04. We find no abuse 

of discretion in the allowance of these costs to Wife. We therefore modify the total 
13

award from $11,563 to $2,713, subtracting the attorney‟s fees award of $8,850.

VI. Attorney‟s Fees on Appeal

Wife seeks an award of attorney‟s fees on appeal, stating that the alimony factors 

weigh in favor of an award of additional fees. Wife asserts that due to her advanced age, 

her comparatively lower earning capacity, and Husband‟s fault, she should not have to 

bear the cost of defending against Husband‟s appeal. As this Court has stated:

[I]t is in the sole discretion of this court whether to award attorney‟s fees on 

appeal. As such, when this Court considers whether to award attorney‟s 

fees on appeal, we must be mindful of “the ability of the requesting party to 

pay the accrued fees, the requesting party‟s success in the appeal, whether 

the requesting party sought the appeal in good faith, and any other equitable 

factor that need be considered.”

Parris v. Parris, No. M2006-02068-COA-R3-CV, 2007 WL 2713723 at *13 (Tenn. Ct. 

App. Sept. 18, 2007) (quoting Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 WL 

22071454 (Tenn. Ct. App. Sept. 3, 2003)) (other internal citations omitted).

We are mindful of the fact that Husband was moderately successful on appeal, and 

we again note that Wife was awarded substantial liquid assets in the divorce from which 

to pay her attorney‟s fees incurred during appellate review. Therefore, we conclude that 

this is not an appropriate case for an award of attorney‟s fees on appeal.

VII. Conclusion

For the reasons elucidated above, we affirm the trial court‟s equitable distribution 

of the parties‟ marital property. We reverse the trial court‟s award of attorney‟s fees to 

Wife, and we subtract $8,850 from the trial court‟s award of fees and costs totaling 

$11,563, thereby modifying that award to the amount of $2,713. We deny Wife‟s request 

for an award of attorney‟s fees on appeal. Costs on appeal are assessed one-half to the 

appellant, Donald Waters, and one-half to the appellee, Yvonne Waters. This case is 

remanded to the trial court, pursuant to applicable law, for collection of costs assessed 

below.

 

_________________________________ 

THOMAS R. FRIERSON, II, JUDGE