# FILED
July 16, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

GARY LeROY

CURTIS, )

) Plaintiff /Counter- Defenda

nt/ ) Appellant , ) ) Davidson C ircuit ) No. 93D -2870 VS. ) ) Appeal N o. ) 01A01-9508- CV-00385 JANE WELTHA (WILLIA MS) ) CURTIS, ) ) Defendant/Counter-Plaintiff/ ) Appellee. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE MURIEL ROBINSON, JUDGE

For Gary L eRoy Curt

is : For Jane Weltha

(Willia ms) Curti s : R. Eddie Davidson Jack Norman, Jr. Nashville, Tennessee Nashville, Tennessee Thomas F . Bloom Nashville, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appeal inv olves the

dissolution of

a marri age of tw o persons w ho lived together as husband and wife for over thirty years but who were legally married for only ten yea

rs. Foll owing a bench tr

ial, the Fourth

Circuit C ourt for D avidson County gra nted the w ife a divor ce, divided the mar

ital esta te, and directed th e husband to pay the w ife long-t

erm spousa

l s upp ort and defray the wife’s legal expenses in the divor

ce proce eding. O n this ap peal, the husband asse

rts that the trial courtshouldnot have dismissed his complaint for divorce, that the wife was not entitle d to long-te

rm spousal support, th at the tri al court’ s division of the marital estate w as inequita ble, and t ha t the wife was not entitled to recover her legal expenses in the d

ivorce lit igation. We affir

m the fina

l judgment.
I. Gary LeRoy Cu

rtis met J ane Welt

haCurtis in 19 60 at a

dance hal l in East Nashville. Mr. Curtis was ninetee n ye ars old and had completed the sev enth grade. Ms. Curt

is was a 24-year- old high school

graduate who was m arried w ith two children. They began living togetherin 1961, and their only child was born in July 1962. Ms. Curtis eventually divorced her first hu sband in June 196 9. The parties considered themselves to be married and held themselves out to the public as husband and wife from the very beginning of their re lation ship, even though they were not

legally ma rried. Their son’s birth certificate indicated that they were marrie d, and they filed joint tax returns as if they w ere mar ried. Mr . Curtis and Ms. C urtis eventually mar ried in L as Vegas in August 198 1.
Both parties w ere empl oyed during most of their time toget

her. Mr . Curtis, an electrician by trade, worked f or various employers until he went into busine ss for himself in 1979 or 1980. He closed his fi rs t two busine sses beca use of problems with the Internal Revenue Se rvice ove r his e mployees’ withholding taxes but later started S tar Ele ctric Com pany, a bus iness emplo y ing three electric ians, including Mr . Cur tis and hi s son. In 1990, Mr. Curtis built a ninehole golf cours e and drivi ng range on l eased prop erty in As hland C ity . Even though the golf course has not been profitable, Mr. Curtis views it as a source of-3-

retirem ent employment and income. For her part, Ms. Curtis worked at Aladdi n Industries , Inc. and

May Hosie

ry Mills. Later, she starte d h er o wn cleaning business called the

Finishing T ouch Cleaning Company and also kep t the books for Mr. Cur

tis’s busine sses. A s a result of their j oin t eff orts, the parties accumulated a modest marital estate c onsisting pri marily of various parcels of real property i n East N ashville a nd Cheatha

m County.
The parties se

parated i n February 1992 when Mr. Curtis moved into a trailer on a lot that the parties owned in Cheatha m County. Mr. Cur

tis filed f or divorce in August 1993, and Ms. C urti s responded with a counterclaim for divorce. In August 1994, the t

rial cour t directe d Mr. Cur

tis to pay Ms . Curtis $1,700 per month in pendente lite

support and t

o be respons ible for t

he mortgage payments on the homeplace where Ms. Curtis was still living and on another piece of rental property in East Nashville.
The trial court modified its pendente lite support order three months later to clarify the alloca

tion of the re sponsibility f or the parties’ major debts. The trial courtspecifically determined that Ms. C urtis should b e responsib le for paying the first mortgage on the homep lace and a nother note

to a family acquainta

nce. T he trial court also determined thatMr. Cur tis’s monthly support obli gation should be decr eased to $1,176. 68 per month in January

1995 when th e note to the family acquaintance would be paid off.
The trial court heard the evidence on March 1 5, 1995. O n April 19, 1995, the trial court entered a final decreedismissing Mr. Curt is’s divorc e complai nt and granting Ms. Curt

is a divorce on the ground

of inappro priate ma

rital cond uct. Th e trial court alsodirected

Mr. Cur tis to pay Ms . Curtis $1,176.64 p er month in long termspousal support. T he trial court also divided the marital property which consisted of theparties ’ real e state holdi ngs and Mr. Curtis’s business and directed Mr. Cur tis to pay $7, 945.00 to de fray Ms. Curtis’s legal expenses.

II. T HE D ISMISSAL OF M R . C URTIS ’ S D IVORCE C OMPLAINT1 The courts cannot grant a divorce based on irreconcilable differenc es if the grounds for divor ce are contested or denied, Tenn. Code Ann. § 36-4-103( e) (1996), or if the pa rties hav e failedto make “a dequa te and suf ficient p rovision b y written

agreem ent . . . fo r the equ itable settlement of any property rights between the parties.” Te nn. Code Ann. § 36-4-103(b). -4- The threshold issue for our consideration relates to the trial court ’ s dismi ssal of Mr. Curtis’s complaint for divorce at the close of his pro of. Mr

. Curtis asserts t

hat he prove d grounds for divorce because Ms. Curtis had “caused or contributed to a financial quagmi re which permeated the parties’ marital relations hip.” We

have determin ed that the trial court correctly determined that Mr. Curtis’s proof did not substantiat

e his claim

of inappro priate ma

rital cond uct.
Mr. Curtis init

ially sought a divorce because of irreconcilable differences underTenn. Code A n n. § 36-4- 101(11) (19 96) or, in the alter native, b ecause of inappropri ate marital

conduct unde

r Tenn. Code Ann. § 36-4-102( a)(1) ( 199 6 ). Ms. Curtis con

tested Mr . Curti s’s irreconc ilable dif ference s claim. After the parties were unable to agree o n the division of their m arital pr

operty 1 , the ca se went to trial on Mr. Cu

rtis’s re quest for

a divorce on the ground

of inappro priate marital conduct and Ms. Curtis’s request either for a divorce from bed and board or a divorc e on the gro und of inappr opriate m arital c onduct.
Mr. Curtis’s proof wit

h regard t o his grounds f

or divorce

related solely to Ms. Curtis’s skills, or lack of s kills, as a bookkeeper. He asserted that her inabilityto document a

nd keep tra

ck of the withholding taxes for his employees precipitated serious problems with the Intern a l Revenue Service and that the se problems eventuall y caused him to close his first tw o businesses . At the close of Mr. Curtis’s proof, th e trial c ourt grant ed Ms. Cu

rtis’s mot io n for a “directed verdict” o n the grou nd that h e had failed to subst antiate gr ounds fo r divorce.
We will tre at Ms. Cu

rtis’s mot ion as a mot

ion for in voluntary dismissal underTenn. R. Civ. P. 41.02(2) since motions for a direc ted verdicthave no place in nonjury tr

ials. City of Columbi a v. C.F.W. Constr. Co ., 557 S.W. 2d 734, 740 (Tenn. 1977). Unlike a mot ion for dir

ected ver dict, a T enn. R. Civ. P. 41. 0 2(2) motionrequires the tri al court simply to weigh and evaluate the plaintiff’s evidence in the same

way it w ould review

the eviden ce at the

close of all the pr oof and to grant

the motion i f the plaintiff has failed to make out a prima facie case. Smith v. Inman Realt

y Co., 846 S.W.2d 819, 82 3-24 (Tenn. C t. App. 1992 ). Our-5-

task on appeal i s to review

the trial court’s de cision to grant the mot ion using the familiar standard of review in Tenn. R. A pp. P. 13(d).
The grounds for

divor c e are control led by st atute. Perrin v. Perrin, 201 Tenn. 354, 367, 2 99 S.W.2 d 19, 24 ( 1957); Clothier v . Clothie r, 33 Tenn. App. 532, 538, 232 S.W.2d 363, 366 (1950). The divorce ground of “i nappr opriate marital conduct” a

uthorized b y Tenn. C od e Ann. § 36-4-102( a)(1) ( 1996) is synonymous w ith “cruel and inhuman tre atment” a nd “conduct

towards t he spouse as renders c ohabitation

unsafe an d improper .” The type of con duct war

ranting a divorce pursu ant to Te nn. Code Ann. § 36-4-102(a)(1) includes conduct that willfully and persistently causes unnecessary suffering

. See Baber v. Baber, 205 Tenn. 681, 682- 683, 330 S.W.2d 307, 30 8 (1959); W. Walton Garrett , Divorce, Alimony and Child Cus tody § 6-3(1) (1 996).
Whilethe evidence calls into question Ms. Curtis’s ability as a bookkeeper, itdoes not subst antiate

Mr. Curtis’s claim that her shortcomings as a bookkeeper amounted toa willfu l and persi stent eff ort onher part to cause him unnecessary sufferin g. The rec ord contain s no evidenc e that Ms. Curtis purposely made errors in the calcu lation and pa

yment of Mr . Curtis’ s employee s’ withhol ding taxes i n order to i nflict suf

fering on Mr. Curt

is. On th e other ha

nd, the re cord conta

ins evidence of Mr. Curtis’s indifference and infidelity. Accordingly, the evidence does not preponde

rate aga inst the tri al court’ s conclusion s th at Ms. Curtis had substantiated her clai mof inappro priate ma rital cond uct, whi le Mr. C urtis had not.
III. T HE D IVISION OFTHE M ARITAL P ROPERTY AND D EBT
We turn next tothe manne r in which

the trial court di vided the partie s’ marital property and allocated the marital debt. Mr. Curtis asserts that the trial c ourt’s disposition of

these mat

ters wa s inequitabl e because it did not giv e appropria te wei ght t o the reas ons for par t of the deb t and to his c ontributions to the preserva

tion of prope

rty Ms. C urtis inherited during the m arriage . We ha ve determined that the manner in which the tri al court divide d the mari tal proper ty and allocated the marital debt is essentially equitable.-6- A.
Most of the ca pital assets acquire d by the parties while they lived together as husband and

wife co nsisted of i nterests in real pr operty. T hey purcha sed their home on Delaw are Ave nue in East Nashville in 1978 or 1979. Their evidence at trial placed a value on

this property of between $55,000 and $75,000. There is an $18,000 first mor

tgage on the

house, as w ell as a $2 7,000 seco nd mortgage securing the loan required to satisfy an Internal Revenue Service claim.
The parties purc hased t wo lots on Chapmansboro Road in Cheatham County in 1980 for $8,000. Some time later, they purcha sed a third lot adjacent to th eir other two lots for $14,000. There are two trailers on these lots, and Mr. Curtis is presently

living in the

trailer located on

the third l ot. The

parties va

lue the first two lots and tra

iler at between $6, 600 and $10,0 00 and the va lue of the third lot w ith traile

r at betw een $14,00 0 and $17,300

.
In 1981 Mr. C urtis and hi s brother -in-law purchased

ten acre s of
u n developed property in Cheatham County. After Mr. Curtis’s brother-in-law died, Ms. Curtis acquired the interests of four of the brother-in-law’s children. At the time of the tri al, the partie s owned nine acres of the proper

ty. The y placed a value on this property o f between $4,500 and $10,000.
In 1990, Mr . Curtis constructed a nine-hol e golf cour se and driv ing range on leased pr

operty in Cheatha

m County. The enterpri se has yet t o earn a pr

ofit, but Mr. Cur tis anticip ates that t

he golf cour se will pr

ovide him with

income an d constructi ve activity a

fter he r etires f rom his ele ctrical business. The part ies valued Mr. Cur

tis’s inter est inthe golf co urse, inc luding equipm ent and personal property , at between $1 ,413 and $ 15,000.

Finally, Ms. Curtis and her sister inherited a house on W ard Aven ue in East Nashville following their mother’ s death. Ms. Curtis bought out her sister’s interest using $8,000 made available by Mr. Curtis after her sister threatened t o have the property s old. The house was used as rental proper ty during the m arriage2 Th e net valu e of the marital estate is the value of the marital proper ty less the marital debts.
3 Ms. Curtis testifi ed thatthe fair market value of the house on Delawa re Avenue was $55,000, while Mr. Curtis stated that the house was worth $75,000.

4 Mr. Curtis valued G ary’s Golf Course at $1,413, while Ms. Curtis asserted that the interest was worth $15,000.

5 Mr. Curtis valued Star Electri c at $4,324, while Ms. Curtis valued the company at $70,000.

6 The trial court determined that Ms. Curtis should receive the house on Delaw are Avenue, the house on Ward Avenue, and two of the three lot s on Chapman sboro Roa d in Cheatham County.

7 The trial cou

rt awar ded Mr. Cu

rtis one of the lots on Chapmansboro Road, the nine acres of undeveloped

property in Cheatham County, Mr. Curtis’s interest in Gary’s Golf Course, and Star Electric. -7- an d is in need of repair. The parties placed a value on the house o f betwee n $25,000 and $30,300. Ms. Curt is’s son fr om her fir st marri age is curre ntly living in the house rent free.
The parties’ evidence of the value o f the ir property varies widely. Mr. Curtis as serted at trial tha t the net va

lue 2 of the mar

ital esta te is $94,6 37, while Ms. Curtis val ued the marital estate at $153,800. This diff

erence i s due to the parties’ contradictory testimony c oncerning t he fair m arket value of the house on DelawareAvenue, 3 the value of Mr. Curtis’s interest in Gary’s Golf Course, 4 and the value of Mr. C urtis’s int erest in Star Electric. 5 The trial court determined that Ms. Curtis shoul d recei ve proper ty valued between $95, 300 and $106, 600 6 and thatMr. Cur

tis should re ceive property wor th betwe en $33,037 a

nd $103,500. 7 The trial courtalso direc ted Ms. C urtis to be r esponsible f

or the first mor

tgage on the Delaw are Ave nue house an d determi ned that Mr . Curtis shouldbe responsi ble for the se cond mortga

ge on the pr

operty.

B.
Trial court s have br oad discretion in dividin g marital property a

nd in allocatin g marital debt. T enn. Code Ann. § 36-4-121( a) (1991) ; Fisher v. Fisher ,-8-

648 S.W.2 d 244, 246 (T enn. 1983) (division of marital property) ; Cut

si nger v. Cutsinger, 917 S.W. 2d 238, 243 ( Tenn. C t. App. 1995) (holding that mari tal debts shouldbe apportioned in the same way thatmarital property i s divided); Yaffee v. Yaffee, Shelby La

w No. 16 , 1989 WL 76310, at *2 (Tenn. Ct. App. July 12, 1989), perm. app. denied

(Tenn. Oct. 2, 1989) (holdi ng that tria l courts ha

ve discretion to apportion t

he marita l debt). Accordi ngly, appe llate cour ts ordinar ily defer to the trial court’s decisions in these matters unless they are incon sistent wi th Tenn. Code Ann. § 36-4-121(c) or are unsupported by a preponderance of the evidence. Brown v. Brown, 913 S.W. 2d 163, 168 ( Tenn. C t. App. 1994); Mahaffe y v. Mahaffey, 775 S.W.2d 618, 622 (Tenn. Ct. App. 1989).
The trial cour

t’s goal in every divor

ce case is to divide

the parties’ marital es tate in a just and equitable manner. The division of the estate is not rendered inequitable

simply bec ause it is no tmathematic ally equa l, Cohen v. Cohen , 937 S.W.2 d 823, 832 (Tenn. 1996); Ellis v. Ellis, 748 S.W.2d 424, 427 (Tenn. 1988), or because each party did not receive a share of every item of marital property. Brown v. Brown, 913 S.W. 2d at 168. M arital de bts should, where possib le, foll ow their associate d assets, Mondelli v. Howard, 780 S.W. 2d 769, 773 (Tenn. Ct. App. 1989), and should be apportioned by consider ing the rea son for the

debt, the party who benefitted from the deb t, and the par ty better a

ble to assum

e the debt. Mahaffey v. Mahaffey, 775 S.W.2d at 624. In the finalanalysis, the justness of a particular division of t

he marita l property and alloca

tion of marit al debt

depends on its final r esults. See Thom pson v. Thom

pson, 797 S.W. 2d 599, 604 (T enn. Ct. App. 1990)

. C.
Mr. Curtis ta

kes issue with thre e aspects of thetrial cour t’s division of the marital estate. First , he argues that he shou ld not be re sponsible fo r the $27, 000 second mortgage on the Delaw ar e Avenue property because this debt was incurred to s atisfy tax

problems c aused by Ms. Curtis’s bookkeeping e rrors. Secon d, h e complains that the tr

ial court d

id not reco gnize that

the partie s used $8,00 0 of marital funds to buy out Ms. Cur tis’s siste r’s in teres t in the Wa

rd Avenue property. Third, he insists that it would have been “more equitable ” to award hi m all three lots on Chapm ansboro Roa d in Cheath am County.-9- The trial cour

t didnot err by requiring Mr. Cur tis to be re sponsiblefor the $27,000 second mor

tgage on the Dela ware A venue prope

rty. This debt arose

out of Mr. Cur tis’s busine ss and was incurred for busine ss purposes. The debt was not due to any intentional waste or dissipation of assets by Ms. Curtis. Since Mr

. Curtis receive d the busines s andis betterable to assume this debt, the trial court had adequ ate basis t o require h im to be resp onsible for it.
This record pr

ovides no bas is for

us to c onclude that the trial court’s divisionof the marital estate did not take into consider ation the use of marital funds to preserve

Ms. Curt is’s inter est in the W ard Aven

ue proper ty or the overa ll fairness of the divis ion of prope rty. Th e evidence

concerni ng the value of th e propertyvaried sig nificantl y, and both p arties pr ovided th e tr ial court w ith no valuation evidence o ther than t heir own subjective opinions. T

he recor d contains some basis for concluding that Mr. Curtis’s estimate of thevalue of S tar Ele ctric is low and tha

t Ms. Cur tis’s estim ate of the

value of G ary’s Go lf

Course is high. Withthese adju stments, itappears t hat the divi sion of

the net marital estate was essential ly equal and, accordingly, was equitable under the c ircumsta

nces of thi s case.
IV.

T HE L ONG -T ERM S POUSAL S UPPORT A WARD
Mr. Curtis also takes issue with the trial cour

t’s decisi on to requir

e him to pa y long- term spousa

l support in t

he amount of

$1,176.64 per month un til Ms. Curtis’s death or remarriage. While he concedes that Ms. Curtis may need support becaus e she is in a more debilitated condition, he argues that the trial court considered only Ms. Curtis’s need without consideri n g his ability to pay. T

he record contains nobasis for determini ng that the tr ial court f ailed to co nsider the applicable

factors in Tenn. Code Ann. § 36-5-101( d)(1) (19 96) when i tset spousal support in this case. Decisions concerning spousal support depend on the unique facts of each case andrequire a thoughtful balancing of many factors, including those identified in Tenn. C ode Ann. § 36-5-10 1(d)(1). Hawkins v . Hawki ns, 883 S.W. 2d 622, 625 (Tenn. Ct. App. 1994); Loyd v. L oyd, 860 S.W. 2d 409, 412(Tenn. Ct. App. 1993).8 The award is essentially similar to Mr. Curtis’s modified pendente lite supp or t

obligation. -10- The trial courts have broad discretion in determ i ning whether to award spousal support, as well as the nature, dur ation, and amount of the supp ort. W

ilson v. Moore, 929 S.W. 2d 367, 372 ( Tenn. C t. App. 1996). A s a general matter, the appellate courts are disinclined to alter a trial court’s decision regarding spousal su pport unless th e evidence d oes not s upport i t or it is i nconsis tent wi th th e policies embodied in

the applicab le statut es. Brown v. Brown , 913 S.W. 2d at 169; Gilliam v. Gill iam, 776 S.W.2d 81, 86 (Tenn. Ct. App. 1988). Spousal support decision s are not in tended to be punit ive. Brown v. Brown, 913 S.W.2 d at 169; McClung v. McClung , 29 Tenn . App. 5 80, 584, 198 S.W. 2d 820, 822 (194 6). T hey are intended to assist the economically disadvantaged spouse to become as self-sufficient as possible, and, when economical rehabilit ation is not fea sible, to m itigate to the great

est extent practica ble, the harsheconomic re alities o f divorce. Brown v. Brown, 913 S.W. 2d at 169. T he most common fa cto rs influen cing spousal support dec isions contin ue to be the need of the spous e seeking s upport and th e ability of the oblig or spo use to pay. Crain v. Crain, 925 S.W. 2d 232, 234 ( Tenn. C t. App. 1996); Hawkins v . Hawki ns, 883 S.W. 2d at 625.
Mr. Cur tis made it

clear bot h before a

nd during the

trial that he w ished to avoidpaying any type of suppor t to Ms. Cu

rtis. At one point, he even offe red to give her practically all the marital property in return for not being required to pay her spousal suppor

t. The t rial cour t did not adopt

this proposa

l. While Mr. Cur tis now states that he is willing to pay temporar y support for

a reasona ble period, h e asserts thatrequiringhim to conti nue to pay Ms . Curtis $1,176.64per month 8 until her death or remarriage is unfair because he is unable to pay it and beca use th e trial court has also required him to b e responsib le for the Southe

rn Financ ial debt.
Mr. Curti s is cu rrently fifty-six years old and has no physical or mental impairments thatimpede his ability to work. He has operatedhis own electrical business for over fiftee n years. D espite his limited formal education, the trial courtspecifically found that he was an “astute businessman.” Despite the income reported on his 1994 tax returns, Mr. Cu r tis testified that he “always made real-11-

good money” and that i n some year s he earne d $45,000 to $5 0,000 afte r taxes. Ms. Curtis, on the o ther hand, is somewhat impaired because of her back injury and has lim

ited employ ment skills

. Based on the evidence with regard to the length o f the mar riage, t he age and health of the par

ties, and the partie s’ respec tive abilit ies to ear n in co me and to acquire capital assets, we cannot say that the trial court erredby determining that Mr. Curtis cou ld pay $1,17 6.64 per month in long-t e rm spousal suppor

t. This awardremains within the trial court’s jurisdiction; acco r dingly, Mr . Curtis will always have the pr

erogative to request

an adjustment in his sup por t obligation should his abi lity to ear

n income or

Ms. Curt is’s needs change ma

terially.
V. T HE A WARD FOR A TTORNEY ’ S F EES
Mr. Curtis insi sts that the tr ial court e

rred by re quiring him t

o pay $7,945 of Ms. Curt is’s legal expenses a

t trial. At the sa

me time, Ms. Curtis asserts that Mr. Curtis shoul d be requir ed to defray her leg al e xpenses for this appeal. We have determin ed that the

trial cour t did not err i n awarding Ms. Curtis her legal expenses at trial; however, we have determined thatshe should be

responsible

for her own a ttorney’s fees on ap peal.
The courts con sider an a

ward for legal expenses in a

divorce proceeding as an additio nal supp ort award. Gilliam v. Gill iam, 776 S.W. 2d at 86; Rask ind v. Raskind, 45 Tenn. A

pp. 583, 60 1, 325 S. W.2d 617, 625 (1959). These awards are appropria te when an e con omical ly disadvant aged spouse lacks fund s to pay his or her legal ex penses. Harwell v. Harw ell, 612 S.W. 2d 182, 185 ( Tenn. C t. App. 1980), but are ina

ppropriate

when the spouse requesting the award is able to pay his or her ow n lawyer

either f rom earnings o r from

the assets receive d as a res ult of the divo rce. Inman v. Inman, 811 S.W. 2d 870, 874 (T enn. 1991) ; McCarty v. McCarty, 863 S.W.2d 716, 722 (Tenn. Ct. App. 1992).
Ms. Curtis is c urrently s ixty years old. She will require the modest property awardedher as a r

esult of the divor

ce to suppor

t her when she is no long er able to work. He r work f

utur e is somewhat clouded because o f her bac k injury, a nd-12-

according ly, we do not f

ind that the

trial court erred in awarding her an additional $7,945 to defra

y her lega

l expens es. However, we have determined that Mr. Curtis should not be r

equired to p ay more than $7,945 for Ms. Curtis’s legal represe ntationin this case . Acco rdin gly, we deny Ms. Curtis’s request for an additio nal award to d efray her leg al expens es on thi s appeal.
VI. M S . C URTIS ’ S R EQUEST FOR A F RIVOLOUS A PPEAL
As afinal mat

ter, Ms. Curtis has requested this court to award her damages for a frivolou s appeal under Tenn. Code Ann. § 27 -1-122 (1980). Appeals are consi dered frivolous f

or the purp ose of aw arding dam ages if they are devo id of merit or if they have little pr

ospect that

they would ever be su ccessful

. Combusti on Eng’ g, Inc. v. Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978); Industrial Dev. Bd. of Tullahoma v. Hancock, 901 S.W. 2d 382, 385 ( Tenn. C t. App. 1995). While being partially successful on appeal places a c a se beyond Tenn. Code Ann. § 27-1-122, see Pittman v. Lasco Indu s., Inc., 908 S.W. 2d 932, 937 (Tenn. 1995), being unsuccessful does not necessarily indicate that an appeal is frivol ous.
We must alwa

ys balance t

he right toseek appellate review of a trial court’s decision withthe concern over the waste of resources and delay c aused by app eals brought for stra tegic rea sons not rel ating to the merits of the issues i nvolved in the case. While Mr . Curtis has not been successf ul on this a

ppeal, w e have determined that his issu es are genuine and tha t he did not pursue t

his appeal for the purpose o f delay. Accord ingly, we deny Ms. C urtis’s r equest for damages f

or a frivolou s appeal.
VII.
We affirm

the judgmen

t and rema

nd the case

to the trial courtfor whatever further proceedi ngs may be r

equired. We tax th e costs of t his app eal to Gary LeRoy Curtis and his surety for which execution, if necessary, may issue.-13- ____________ __ ______________ WILLIAM C. KOCH, JR., JUDGE
CONCUR:

_________________

_______________ HENRY F. TODD, P.J., M.S.

_________________

_______________ SAMUEL L. LEWIS, JUDGE