# FILED Nov. 3, 199 5 Cecil Crow son, Jr. Appellate Court Clerk 

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

JOSEPH F. MANSFIELD, ) ) Plaintiff /Appella nt, )

) Williamson Chancery ) No. 21482 VS. ) ) Appeal N o. ) 01-A-01- 9412-CH- 00587 DEBORAH ANN WILLS MANSFIELD, ) ) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR WILLIAMSON COUNTY

AT FRANKLIN, TENNESSEE THE HONORABLE HENRY DENMARK BELL

For the Plaintiff/

Appellant : For the Defendant/Appellee : Robert T odd Jackson Mary Frances Lyle Nashville, Tennessee Bru ce, We ath ers, Corl ey, Dughm an & Ly le Nashville, Tennessee



## AFFIRMED AND REMANDED

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

## O P I N I O N

This appeal involves a divorce that ended a brief, unhappy mar riage. Both the husband and t

he wife soug hta divorce

in the Chan cery

Court for Willia mson Cou nty. The tria

l court, sitting wit

hout a jury , declar

ed the par ties divorc ed and directed the husband t

o pay c ertain p re-divor

ce debts a

nd to continue

makin g pendente lite support pay ments until thewife received her share of the incre ase in the parties’ net worth

during the m

arriage . The tr

ial cou rt later or

dered the husband to pay the wife an additional $4,405 for the legal expenses she incurred to compe l comp liance w ith her disc overy requests. The husba

nd insists on this appeal that the tr

ial court s hou ld not h ave required him to assum e the debts the wife incurred prior to the divorce or to pay the wi fe’s discovery-relate d legal expenses. We hav e determ ined that th e evidence

supports the

tria l co urt’s decision on b oth issues a nd, there fore, a

ffirm the judgm

ent.
I. Joseph F. Mansfield

met D eborah Ann Wills Mansfield on a blind

date in August 1986. Mr. Mansfiel d was ten years olde r than Ms. Mansfield , and both parties had been mar

ried before. Mr . Mansfi eld was employ ed by C apitol Records in Holly wood, Ca

lifornia, and Ms. M ansfield worked f or a m usic publishi ng and artist manageme nt com

pany in Nashville . She al so o wn ed a small inter est in a personnel agency. The parties dated sporadically and decided to marr y after Mr. Mansfield

accepte d a job in N ashville w ith Liber ty Re cords.
The parties mar

ried in T ennessee on June 30, 1 990. Accom panied by Ms. Mansfield ’s minor

son from

her fir st mar

riage, t hey m oved into a ho me in Brentwo od that Mr. Mans field purchased shortly before the m arriage. Mr. Mansfield

later left Liberty Records t o start his own busines s as a marketing consultant

to various r

ecord lab els in Nas hville. M s. Mansf ield stopped

working befor e the mar

riage to c oncentrat

e on her hous ehold respo nsibilities . She al so supported Mr. Mansf

ield’s c onsulting busin ess.1 The mo nt hl y pendente lite support included ( 1) paymen t of $1,200 , (2) the

monthly pay ments for Ms. Ma

nsfield’ s 1991 Mer

cedes, ( 3) Ms. Man sf

ield ’s automobile insurance premiums, and (4) medical insurance for Ms. Mansfield.

-3- Although the m arriage

appeare d outwardly successful, it was troubled from the very b egi nni ng. Con fli cts qui ckl y arose st emming fro m Mr. Mans field ’s int erest in pornography and his insistence that Ms. Mansfield wear sex uall y provocativ e clothes while entertaining business guests. Ms. Mansfield, for her part, was extr

emely je alous of Mr . Mansf ield and s uspicious about his marital fidelity. The parties had heate d and, on oc casion, ph ysica lly violent ar

gument s. Mr. Mansfield sued for divorce in August 199 0 but dism issed the compl aint one month later after Ms. Mansfield agreed to m oder ate h er suspici ons about his faithfuln ess.
Mr. Mansfiel d filed a s econd divor ce com plaint in Jul y 1992 and obtained
an order re straining M s. Mansf ield from harassing him an d from

dest royi ng or dissipatingmarital assets. Ms. M ansfield counterclaimed for divorce in February 1993. A short ti me la

ter, Ms. Mansfiel d and her son m oved out of the marital home. Ms. Mans field re quested the trial court ’s perm

ission to re move f

urnishings from the house a nd also sought an order directing Mr. Mansfield to provide her withfunds to est ablish a

separate residence. On April 19, 1993, the trial court entered an order directing Mr. Mansfiel d to pay Ms. Mansfiel d $5,200 to e stablish
a separate residence and permitting Ms. Mansfield to enter the hom e to rem ov e specifichousehold fu

rnishings. Prepara tion for trial was delayed because Mr . Mansfiel d and his lawyer refused to respond to Ms. Mansfield’s discovery requests. In Septem ber 1993 Ms. Mansfield

requeste d pendente li te support and an order d

irecting Mr. Mansf

ield to complete discovery. Mr. Mansfield retained new counsel, and on October 11, 1993, the trial court directed Mr. Mansfiel d to com plete his r

esponses to M s. Mansfield ’s discovery

requests a

nd to pay Ms. Mansf

ield pendente li te support for five m onths. 1-4- On the day following the entry of the order granting Ms. Mansf

ield pendente lite support, Mr. Mansf ield petiti oned to holdMs. Mansfield in criminal contem ptfor three violations of the July 1992 restraining order

. In December 1993, the trial

court foun d that Ms. Mansfiel d had violate d the restraining order
on two occasions and imposed two concurrent 10-day sentence s on her. The trial courtsuspended the sentences and placed Ms. Mansfield on unsupervised probation.

Ms. Mansfie ld cha nged lawyers in February 1994. The trial court eventually

heard the proof in the divorce case over f ive days in

late Mar ch and early April 1994. In a final divorce decr ee file d on May 2, 1994, the trial court declared the parties divorced pursuant to Tenn. Code Ann. § 36-4-129(b) (1991). ItawardedMs. Mansfield her 1991 Mercedes as well as $75,000 representing her share of the incr

ease of t he parties’ combi ned net wo rth during t he ma rriage. The trial court alsodirected

Mr. Man sfield to be

responsible

for all de bts incurr ed prior to October 11, 1 993, e xcept fo r the debt related to Ms. Mansfield’s automobile, and ordered Mr. Mansf

ield to cont

inue payingMs. Mansf

ield $1,200

per month and to c ontinu e ma

king her aut

omobile paym ents until he

had paid the

$75,000 judgm ent.

In addition

to adjudicating the financial matters relating t o the divorc e, the trial court aw arded Ms. Mansfiel d reasonable attorneys’ fees incurred to compel Mr. Mans field

to com ply wi th the discove

ry ru les but dire cted that t he awar d be reduced by the attorneys’ fees Mr. Mansfiel d incurred with rega rd to the co ntemp t proceedin gs against Ms . Mansfi eld. The trial cour t conducted

another he aring on the attorn eys’ fees issue in June 199 4 and filed an order on July 13, 1 994 , directingMr. Man sfie ld to pay Ms . Mansfi eld an addi tional $4,4 05 “as the expense o f enforcement of d iscovery issu es during the divo rce proceedi ngs.”

II.

We turn firs t to the aw ard of $4, 405 to Ms. Mansfiel d for the legal expenses she in cur red to comp el Mr. Mansfield to comply with the discovery rules. Mr.-5-

Mansfield

takes issue with this a

ward bec ause it inc luded servi ces not dir ectly related to the pre paration a nd presenta

tion of the S eptem

ber 1993 m

otion to compel and because the p roof suppor ting the re quest for t

hese fee s was not su fficient ly detailed. We have determ ined that the evidence does not preponder at e against the trial court’ s conclusion

that Ms. M ansfield i s entitled t o rece ive an additional $4,405 bec ause of Mr. M ansfield’ s failure to respond

to her tim

ely a nd proper disc overy

requests.
A.

Two months after Mr. Mansf ield file d hi s divorce c ompla int, Ms. Mansfield ’s lawyer prepared and served interr ogatories and a requ est for production

of docum ents on Mr. Mansfield. This discoveryinvolved the financial aspects of the par

ties’ m arriage and sought ro utine infor

matio n that woul d provide
acompl ete pictur

e of the pa rties’ financia

l position for use in negotiat

ions or tria

l. Ms. Man sfi eld’s lawyer did not press for responses to these requests after Mr. Mansfield ’s attorney informe d him that the pa rties we re discuss ing a possible reconcili ation.

Ms. Mansfiel d’s law yer r

enewed his request s for discov ery i n January 1993 after his client i nformed h im tha t reconci liation wa s not possible . Whe n he received no response from Mr

. Mansfield’s lawyer , Ms. Mansfield’s lawy er prepared a mot

ion to compel Mr. Mansfiel d to answe r the disco very r

equests and informed Mr. Man sfield’ s lawy er that the motion would not be heard until March 2, 199 3, in ord er to pro vid e ampl e ti me to p rov ide the dis cov ery vo lun tari ly. Followinga conver sation with opp osin g cou nsel in lat e Febru ary, Ms. M ansfi eld’s lawyer pre par ed a nd fil ed a n o rde r ex ten di ng th e ti me for r esponding to hi s discovery requests t

o March 12, 1993.
O n March 10, 1993, Mr. Mansfield’s lawyer provided his advers ary w it h
apartiall y com

pleted, u nsigned dra

ft of his client’ s answer s to the inte rrogator ies. He stated tha

t he could not

provideany of

the requested documents because they
were contained in a filing cabinet th at Ms. Ma ns field had r

emoved from

Mr.2 Although the record contains twenty authorizations, Ms. Mansfield' s lawyer discusses only seventeen in his te stimony . The disc repancy isnot signi ficant. -6- Mansfield ’s home. Since Ms. Mansf i eld h ad no t take n any of Mr. Man sfiel d’s financial documents, her lawy er and one of his paralegals prepared seventeen 2 separate authorizations permitting them to gai n dir ect acc ess to Mr. Man sfiel d’s accounts. Ms. Mans field’ s lawy er m ailed thes e docum ents to his adve rsar y f

or Mr. Man sfield’ s signature . Mr. M ansfield’ s lawy er did not r eturn the s ig ne d authoriza tions to Ms. Mansfield’s lawye r despite r epeat ed assura nces that h e would do so.
On Ju ly 7, 1993, Ms. Mansfield’s law yer filed a m otion to compel Mr. Mansfield

to execute

the author

izations. On the ev e of the hearing of

the motion , Mr. Mansfiel d’s law yer i nform ed his adversary that Mr. Mansfield had delivered three boxes of doc ument s to his office and that he was prepared to turn them over to Ms. Mansfiel d’s law yer w ithout even examining them . Follow ing a hearing on July 13, 1993, the t

rial cour t directe d Mr. Ma

nsfield to execute the

release s.
Ms. Mansfiel d’s law yer ob tained the three boxes of unidentified documents from Mr. Mansfiel d’s law yer a nd requeste d one of

his parale gals to inve ntory a nd catalogu e the documents. T hey soo n discovere d that the bo xes contain ed ma ny reco rds th at t hey had no t re qu est ed a nd th at t hey di d n ot con tai n ma ny of t h e records that they

had reque sted. Sor

ting through t

he docum

ents took approximately

three day s beca use the docu ments were neither iden tified nor catalogue d.

Ms. Mansfield’s lawyer

co ntinued to pr ess his adversary to return the signed authoriza tions for access to Mr. Mansfield ’s accounts. In early August 1993, he sent Mr. Man sfield’ s lawy er a twopage list of missi ng d ocume nts . After receivin g no satisfa

ctory response , M s. Mansf

ield’s l awye

r filed a motion to com pel Mr. Man sfield to c omply with the pr

ior discove

ry or ders and torecove r sanctions, includi ng attorn eys’ fees, for Mr. Ma nsfield’ s failure to com ply wi th the earlier discovery

orders.3 Sixteen of these hours represented work by Ms. Mansfield’s former lawy er, and 60.25 of these hours re present ed work p erformed by

the lawy er’s pa raleg al.

-7- Mr. Mansfield retained n ew lawyers shortl y thereafter. His new lawyers participated in the Oc tober 4, 1 993 hearingof allthe pendingmotion s, includi ng Ms. Mansfield ’s motio n to co mpel di scov ery. At th e heari ng, Ms . Mans field ’s lawyer presented an affidavit stating that prior t o October 4 , 1993, he had expended 7.75 hours in conn ectionwith the efforts to obtain discovery from Mr. Mansfield

and that his paralegal had spent fifteen ho urs for the same purpose. On October 11, 1993, the trial court dire cted Mr. Mansfiel d to provide M s. Mansf ield withcopies of all his financial documents and or dered Ms. Mansfiel d to provide Mr. Mansfiel d witha “m

aster lis t of m

issing docum

ents.” T he trial c ourt took Ms. Mansfield ’s request f

or sanctio ns for fa

ilure to respond to he

r discover y requ ests under advis emen

t.
Mr. Mansfiel d’s res ponsiveness to Ms. Ma nsfield’ s discovery

requests improveddramatically after he ch anged lawyers. Howeve r, a paralegal w orking for Ms. Mansfiel d ’s l awye r wa s re qu ire d t o s pen d a s ig ni fic ant amou nt of t ime after the October 1993 hearing reconciling the contents of the thre e b oxes of documents with Mr . Mansfi eld’s di scovery responses and prepar

ing the “master list of m issing docum

ents” orde

red by the trial court.
Based on the evidence presented at the divorce he aring , the tr

ial court issued a me mora

ndum opi nion c o ncluding tha t Ms. Man sfield wa s entitled t o reasonabl e attorney s’ fee s relatingto com pelling Mr. Mansfiel d to c o mply with the discovery rules but that this recovery should be reduced by the attorney s’ fees Mr. Mansfiel d incurre d in prosec uting thecrim inal conte mpt ch arges aga inst Ms. Mansfield

. The tria

l court lef t the parti es to negoti ate the a mount of this aw ard but left open the possibility of another hearing if they could not agree.

Th e trial court conducted another hearing when the parties rea ched a n impas se on the am

ount of attorneys ' fees. Ms. Mansfield’s form er lawyer stated thathe and

his paralegal spent 80.25 3 hours rela ting to their

efforts to obtain an d4 Ms. Mansfield’s form er lawy er state d that his r

egular rate was $150 per hour and that his paralegal’s hourly

rate was $65 per

hour. The total cost of the lawyer’s time was $2,400 (16 hrs. × $150), and the total cost of the paraleg al’s time was $4,176.25 (64.25 hrs. × $65).

5 Mr. Mansfield’s lawyer sta ted that he devoted 12.6 hours to theconte mpt p roceed ings and that his normal rate was $125 per hour. -8- decipherMr. Man sfield’ s discovery responses and that the

total billi ngs for

these services was $6,5 76.25. 4 Mr. Man sfield ’s lawyer s tated that

his bill for

the services connecte d with the c ontem pt procee ding was $1, 575. 5 He also t ook issue with the am

ount of Ms. Mansfiel d’s atto rneys ’ fees because t hey w ere no t documen ted in adequate detail and because they included time that ordinar il y would have been spent even if Mr. M ansfield’ s discovery responses had not

been dilatory and in adequ ate. Th e tria l cou rt red uced M s. Man sfiel d’s requested fees to $5,580 and Mr. Mansfield’s requested fees to $1,175 and accordingly awarded Ms. Mansfiel d $4,405

.
B.
The Tennessee Rules of C ivil Proce dure prom ote the discove

ry of relevant , non-privileged information prior to tria l. Pettus v. Hurst , 882 S.W .2d 783, 78 6 (Tenn. Ct. App. 1993); Wright v . United Servs. A uto. Ass’n , 789 S.W .2d 911, 91 5 (Tenn. Ct. App. 1990). Pr oper discov ery pr

omotes econom

y and e fficienc y by helping to identify and narrow the issues for trial. See Airline Constr., Inc. v. Barr , 807 S.W .2d 247, 26 3 (Tenn. Ct. App. 1990). It also does a

way with tria

l by ambus h by eliminating the elem ent of surprise. Hood v. R oadt ec, Inc. , 785 S.W. 2d 359, 362 (T enn. Ct. App. 1989) ; Ingram v. Phillips , 684 S.W. 2d 954, 958 (Tenn. Ct. App. 19 84).
Trial courts have broad authority in discover

y matters, including the

scope of discover y, Benton v. Snyder , 825 S.W.2d 409 , 4 16 (Ten n. 1 99 2), th e ti me permitted for discov ery, Payne v. Ramsey , 591 S.W.2d 434, 436 (Tenn. 1979); Mastersv. Rish ton , 863 S.W .2d 702, 70 7 (Tenn. Ct. App. 1992), and the impos ition of sa nct ion s fo r abu se o f di sco ver y. Brooks v. United U niform Co. , 682 S.W. 2d 913, 915 ( Tenn. 198 4). De cisions wi th regard to these m

atte rs a re dis cret ion ary.6 Tenn. R. Civ. P. 37.02(D).

7 Tenn. R. Civ. P. 37.02(A).

8 Tenn. R. Civ. P. 37.02(C).

9 Tenn. R. Civ. P. 37.02(C).

10 Tenn. R. Civ. P. 37.01(4); Tenn. R. Civ. P. 37.02.
-9- The discovery

rules wou ld be ineff

ectual if courts did not have the authori ty to impose sanctions f

or their abuse. 8A

Charles A . Wri ght, et al

. Federal Practice and Procedure

§ 2281 (2d ed. 1994). T hu s, the Tennesse e Rules of Civil Procedure authorize

serious sa

nctions against pe

rsons who se ek to evade

or thwart full andcandid disc overy , includingbeing found i n contem pt, 6 having designated facts be taken as e stablished, 7 striking ple adings, 8 dismis sing an act ion or cla i m or granting a

judgm ent by defaul t, 9 or assessing e xpenses and attorney s’ fee s. 10 Thesesanctions s erve a three-fold purpose: (1) to sec ure a par ty’ s comp liance w ith the discovery rules, (2) to deter other litigants from

violating the

discovery

rules, and (3) t o punish part

ies who vio late the di scovery rules. Electro nic Data Sys. Corp. v. Tyso n , 862 S.W .2d 728, 735 (Tex. Ct. App. 1993). Monetary sanctions
servethe additional purpose of providing compensation for the expenses caused by the inapp ropriate co nduct. Carlucc i v. Pi per Aircr aft Corp. , 775 F.2 d 1440, 1453 (11th Cir. 1985).
The authority

to impo se sanctio ns for abus e of the di scovery p rocess derives from the rules and the court’ s inherent powers. Lyle v. Exxon Co rp. , 746 S.W .2d 694, 698-99 (T enn. 1988) ; Strickland v. Strickland, 618 S.W .2d496, 501 (T enn. Ct. App. 1981). Courts may fashion sanctions that are c omm ensuratewith a party’s conduct. Pettus v. Hurst , 882 S.W. 2d at 787. Mo netary sanctions a

re now the most comm

on san cti on for disc overy

abuse. W hen mo netary

sanctions i nclude legal expenses, the appropriate amount of legal expenses should be d e termined using the relevant portions of Tenn. S. Ct. R. 8, DR 2- 106(B), the rule gene rally used by courts wh en they

are req uired to aw ard reas onable attorney s’ fee s.
C.11 Clients are not bound by t heir lawye

r’s ag reemen t to dismiss their suit with prejudice unless they

have authorized or acquiesced in the dismissal. Absar v. Jones , 833 S.W.2d 86, 89 (Tenn. Ct. App. 1992).
-10- Mr. Man sfi eld doe s no t de ny th at d isc ove ry abuses o ccurred between January and October 1993. He asserts, however, that monetary sanctions w ere not warrantedbecause (1) his former law yer was res ponsible for

the abuses , (2) Ms. Mansfield

did not adequ ately

doc u ment h er claim

ed expense s, and (3) Ms. Mansfield ’s claimed expenses involved ro ut ine discove ry m atters, not just th e costs incident tothe prepara tion and presenta tion of the S eptem

ber 1993 m

otion to com pel. We find litt

le me rit in these

claim s.
C LIENT ’ S R ESPONSIBIL ITY FOR L AWYER ’ S C ONDUCT
Mr. Man sfie ld attem

pts to avoid t

he mon etary

sanctions by

layingthe responsibil ity for th e di sco ver y abu ses at h is for me r lawy er’s f eet. We will not perm ithim to distance himself fr om his form

er lawyer because the rec ord indicates that he wa s not com

pletely innocent w ith regar

d to the untimely and i ncompl ete interroga tories, the failure to return the signed authorizations to gain acc ess to his financial records, and thefailure to respond t

imely and appropr

iately to the requ est for produc tion of docum

ents.
Clients in civil pr

oceedings c annot easily avoid the consequ ences of

actions of their vol untarily cho sen attorn eys. Link v. Wabash R.R. , 370 U.S. 626, 633-34, 82 S. Ct. 1386, 1390 ( 1962); Johnson v. Allis Chal mers Corp. , 470 N. W.2d 85 9, 867-6 8 (Wis. 1991). Except for cer tain circumstances not at issue here, 11 a lawyer’s conduct dur

ing the cour se of

litigation is attributable to and

binding on his or her clien t. Hart v. First Nat’l Ba nk , 690 S.W .2d 536, 53 9 (Tenn. Ct. App. 1985). Thus, our

courts hav e found that

clients ar e responsib le for the

manne r in which their lawyer init iated a bad check case, Coffee v. Peterbilt of Nashville, Inc. , 795 S.W. 2d 656, 659

- 60 (Tenn. 1990), and for their lawy er’s f

ailure to p ursue adequate discovery

and to insist

on a jury trial. Memphis

Bd. of R ealtors v. Cohen , 786 S.W.2d 951 , 952-53 (Ten n. Ct. App. 198 9).-11- Tenn. R. Civ. P. 37.01 (4) and T enn. R. Civ. P. 37.02 perm itim posing monetary sanctions f

or discover

y abuse against a p arty, the party ’s law yer, or both. Thesesanctions m

ust relate directly to the part

icular ty pe of abuse

involved in

the
case and must not b e excessiv e. The punish ment, in other wor ds, must f it the cri me and mu st be visite d upon the cr imina l. Acco rdi ngl y, as the Supreme Court of Texas has noted,

The trial cour

t must at least a

ttemp t to d e term

ine whether the offensive conduct is attributable to counsel onl y, or to the party

only, or to both. This we recognize will not be an easy ma

tter i n many instances. On the one hand, a la

wyer cannot shield his [ or her] client fr om sanctions; a pa rty mu st bea r so me responsibil ity fo r its coun sel’s disc overy abuses wh en it is or s hould be aware of counsel ’s conduc t and the vio l ation of discovery rules. O n the other

hand, a pa

rtyshouldnot be punished for

counsel’ s conduct in whic h it i s not implicated

apart fr om hav ing entr

uste d to counsel its legal representat

ion. Transamer

ican Natural Gas

Corp. v. Pow ell , 811 S.W .2d 913, 91 7 (Tex. 1991).
The root cause

of the disc overy

problem s in this cas e was Mr. M ansfi eld’s insistence throughout

most of 1993 that he could not com ply wi th Ms. Man sfiel d’s discovery requests b ecause she had tak

en a filingcabinet containing his financial records. Ms. Mans field

repeate dly denied taking a ny of Mr. Man sfield’ s records , and her denial was substantiated in July 1993 when Mr. Mansfield turned over three boxes containing many of the requested records. T he fact thatMr. Man sfield insisted that he did

not have records that were actually in his possess ion warrants concludingthat he w as direct ly re sponsible for ma

ny of t he discover

y dela ys and thathe was a

ware of his former la wyer’s in adequ ate res pons es to Ms. Man sfiel d’s discovery requests.
D OCUMENTATION OF THE L EGAL E XPENSES
Mr. Mansfield also argues that the trial court should have d enie d Ms. Mansfield ’s claim for m

onetary sanctions because she d id no t present a dequate proof of the additional legal expenses she incurred as a result of the discovery-12-

abuse. He bases his argument on this court ’ s unpublished opinion in Gentry v. Gentry , App. No. 85-318-II, slip op. at 11-1 2, 11 T.A.M. 50-8, 1 T .F.L.L. 3-8 (Tenn. Ct. App. Oct. 16, 1986) ( No Tenn. R. App. P. 11 appl ication fi led) whe rein
we vacated a

n award o f attorneys' fees in a divorce c ase beca

use of the absence o f
afully developed r

ecord containing evidence of the nature of

the ser vices rendere d, the tim

e spent rendering them, or any of the other f

actors lis ted inTenn. S. Ct. R. 8, DR 2-106 (B).

Mr. Mansfiel d’s brie f accura telystates the rationale of the Gentry v . Gentry decision, but it does not go far enough because Gentry v . Gentry is no longer controllingprecede nt in Tenne ssee. T wo years after the Gentry decision, the Tennessee Supreme Court heldthat a ful ly deve loped rec ord of the n ature of the services rend ered was n ot a prer equ isi te t o an awar d of att orn eys ’ fees and t hat trial courts cou ld mak

e proper a ttorney s’ fee

awards based on the ir fam iliarity with the case and with the factors in Tenn. S. Ct. R. 8, DR 2-106(B). Kahn v. K ahn , 756 S.W.2d 685, 696-97 (Tenn. 1988).
The trial judge who imposed the m onetary sanctions in this case pres i ded atthe divorc e trial a

nd was als o involved w ith portions o f the pre-trial discovery squabbles. In addition , the par ties parti cipated in

a hearing dur

ing which M s. Mansfield ’s form

er lawyer was examin ed and cro ss-exam ined at len gth concernin g the cost of

the additional work required by the discoveryabuses. T he lawyer als o p rov id ed a n i temi zed st ate me nt detai ling all the services provided from October 199 1 throug h January 199 4. The stat emen t containe d adescripti on of each ser vice and the date on

which it was rendered. It also contained the total number of hours s pent but did not b reak down the time required for each particular service. The stat

emen t of servic es render

ed and Ms. Mansf

ield ’s former l awyer’s testim ony enabled the trial court to identify the additional services required by the discovery abuse, todeterm ine the re aso nab le amount of time these services required , and to calculate their cost. Accordingly, w e find that the trial court had before it suffic ient evide nce to assess a financial sanction against Mr. Mansfiel d.12 Admiral Theatre Corp. v. Douglas Theatre Co. , 585 F.2d 877, 899 (8th Cir. 1978).

13 In re Air Crash Disaster Near Chicago, Ill. on May 25, 1979 , 90 F.R.D. 613, 621 (N.D. Ill. 1981).

14 United States v. National Medical Enters., Inc. , 792 F.2d at 911. -13- S ERVICES B EYOND T HOSE N ORMALLY R EQUIRED
As a final matter, Mr

. Mansfiel d insists tha t the monetary

sanctions require him to reim burse Ms. Mansfiel d for lega l service s she would have received even if he had not im

peded the di scovery

process a nd thatthe sancti ons should incl ude onlyreasonab le attorneys’ fees inc ident to the prepara tion, fili ng, and pre sentation of the motion to compel. T his ar gum ent refl ects an ina ppropriately nar

row understand

ing of the trial court’s authori ty t o impos e monetary sanctions f or discovery abuse.
The trial cour

t has conside

rable discretion in determ ining the appropria teness of mo netary

sanctions

. Shipes v. Trinity In dus. , 987 F.2 d 311, 323 (5th Cir. 1993 ); United States v. National Medical Enters., Inc. , 792 F.2 d 906, 910-11 (9th Cir. 1986). While Tenn. R. Civ. P. 37.01(4) is limited to the expenses incurred in obtain ing an ord er compelling d iscovery, Tenn. R. Civ. P. 37.02 broadly extends to a

ll “re asonable e xpenses, i ncluding attorney ’s fee s, cause d by the fail ure [to compl y with the dis cov ery o rd er]. ” The “ reasonabl e expenses ” contemplated

by the rule include the expenses required to em ploy othe r me ans to obtainthe inform

ation sought t

o be discovere d. Thus, federal courts, a pplyinga rule substantial lyidentical to Tenn. R. Civ. P. 37.02, have im posed sanctions f

or (1) the costs of

taking a se cond deposit

ion when a

party impr operly refuses to file the first depo sition, 12 (2) the c osts of taking a deposition after a party impr operly destroyeda report , 13 and (3) the costs stemming from a lawy er's disc ouraging witnesse s to provide documents. 14

Ms. Mansfiel d incurre d addition al legal expenses because of Mr. Mansfield ’s refusal to provide appropria

te response s to her inte

rrogator ies and her request for produc tion of docum ents. T he se ex penses re late to (1) drafting a nd presentingthe three

motion s to com

pel, (2) drafting t

he orders gr an ting the-14-

motions to compel, ( 3) prepar ing and pres enting the a uthorizati ons to obtain
access to Mr. Mansfield’s accounts after he refused to produce h is financial records, (4) exam

ining and ca

taloguing the

three boxes of unsor

ted docum

ents belatedly provided by Mr. Mansfiel d, and (5) preparin g the m aster lis t of missi ng documents ordered by the tri al c ourt. Ms. Mansfiel d’s evidence am ply documentedthe cost of the se services and provide d the trial court wit h an am ple evidentiary basis to determ ine the re asonablene ss of the cl aime d expenses i n light of Tenn. S . Ct. R . 8, DR

2-106(B) . We find that th e record supports the

tria l court ’s decision th at Ms. Mansfield incurred $5,580 in additional legal expenses because of the disc overy

abuses att

r i butable to Mr. Mansfield and his former lawyer.

III.

Mr. Mansfiel d also take s issue withthe trial court’ s decision to require him to be responsi

ble for a pproxim ately

$11,955 of debts Ms. Mansfield incurred between the tim

e she and he

r son moved out

of the m arital hom

e and the da

te she beg an to r ecei ve a limo ny pendente li te . He insists that thes e debts we r e “excessive, unreasona

ble, and u ncontrolle d” and that requiringhim topay them would be inequitable. We disagree.
A.
The Mansfields continued to live in the marital home af ter Mr. Man sfield filed for divorc e in July 199 2. Ms. Mansf ieldand her so n mo ved ou t o f th e ho me in March 1993 , and one m onth later she reque sted the tr

ial court’ s perm

ission to
remo ve certain household fur nishings fro m her

form er residence and al so requeste d
an order dir

ecting Mr . Mansfi eld to provi de her add itional fun ds to he lp her establish a separa te household . The tr

ial court ordered Mr. Mansf ield to pay

Ms. Mansfield

$5,200 to help defray her moving expenses and other expenses related to establis hing a separate househo ld.-15- Ms. Mansfield also purchased on cr editapproxim ately $11,955 wo rth of additional furnishi ngs, applia nces, an d clothing. After she lost her job with Greenw ood Music in August 1993, she requested the trial court to order Mr. Mansfield

to p ay her ali mony pendente li te and to provi de her wi t h additi onal funds to pay her lawy er. On October 11, 1993, the trial court directed Mr. Mansfield

to pay Ms. Mansf

ield $1,200

per month for fi ve months and to pay her an additiona

l $2,000 for

her legal expenses.-16- The trial cour

t divided the

mar ital prope rty a nd allocat ed the parties'debts as follow s: S EPARATE P ROPERTY & D EBT

Husband Wife Assets 1. Premarital furniture ? 1. Premarital furniture ? 2. House $ 453,000 2. Royalty Interests for Will/Clement ? 3. Mercedes 40,000 3. Inte rest in Al can Music ? 4. Chemical

Bank I RA 12,850 4. Inte rest in Pri de Music ? 5. CenFed I

RA 81,925 6. Cap. Solid Gold Sav. 80,965 7. Dean Witter 13,500 $ 682,240 ?

Debts 1. Home M ortgage $ 323,000 Total Sep. Prop. $ 359,240 Total Sep. Prop. ?

M ARITAL P ROPERTY & D EBT Husband Wife Assets 1. Furni shin gs $ 54,835 1. Furni shin gs $ 12,150 2. Increase in Home Equ ity 47,000 2. 1991 Mercedes 27,800 3. Bank Ac counts 13,045 3. Bank Ac counts 645 4. Increase /

Retireme nt Accts. 69,460 5. Increase /

Dean Witte

r Acct. 15,475 6. Handleman Stock 5,625 7. STS Acct. 2,195 8. Woodmont C/C Me

mbership 23,000 9. Song Bonus 25,000 10. Phantom Records Bonus 5,000 $ 260,635 $ 40,595

Debts 1. Sears $ 5,580 1. Car loan $ 26,000 2. Sears 2,275 3. McClures 1,245 4. Sprintz 2,675 5. Dillards 180 $ 11,955 $ 26,000 Total Marital Prop. $ 248,680 Total Marital Prop. $ 14,595 Cash Award ($ 75,000) Cash Award $ 75,000 NET DISTRIBU TION $ 173,680 NET DISTRIBU TION $ 89,595-17- B.
Trial courts hearing divorce cases are frequently called upon to appor

tion the parties’ debts since few married couples today aredebt-free. The process used to allocate debt is similar to the one used to distribute se parate and marital pro per ty, Mondelli v . Howard, 780 S.W.2d 769, 773 (Tenn. Ct. App. 1989); Mahaffey v. Mahaffey , 775 S.W.2 d 61 8, 623 (T enn. Ct. App. 1989) , and the allocatio n of debt gen erally follows th e division of the property. Hanover v. Hanover , 775 S.W.2d 612 , 614 (Tenn. Ct . App. 1989).

In most divorce cases, the trial court firs t clas sif ies the part ies ’ pro per ty, then awards each par

ty thei r separa te proper ty , andthen divides the marital propert y between the parties in an equi table manner. Batson v. Batson , 769 S.W. 2d 849, 856 (T enn. Ct. App. 198 8). Af ter dividing the property, the trial courtmust c lassify

the parties’ debt and then must a pportion the

debt betw een the parties in a just and equitable manner. Hanover v. Hanover , 775 S.W .2d at 614. Debts freq uen tly fo llow their related assets, b ut they

need not be

divided in precisely the same manner as the assets

. Mondelli v . Howard, 780 S. W.2d at 773. In addition to t

he factor s in Tenn. Code Ann. § 36-4-121( c) (1991 ), trial c ourts dividing debt should c onsider (1) the party who incurred

the debt, (2) the

purpose of the debt, (3) the party

or partie s who benef

itted from the debt, and (4) the

party better ab le to assum

e the debt. Mahaffey v. Mahaffey , 775 S.W .2d at 624.
Trial c ourts have wide lati tude in allocat ing debt, a

nd appellate courts are hesitant to second-guess their dec isions as l ong as the de bt has been properly classified and then divided in a fair and equita

ble ma nner. D eterm

ining whether debt has been divided fa

irly a nd equitably

requires appellate

courts to c onsider the trial court’ s allocati on of the de bt in light of

the division of proper ty and t he provision, if any , for spou sal support. Accordi ngly, Tenn. C t. App. R 15 requires parties who take i ssue with t he alloca tion of marital de

bts to include

with their15 Mr. Mansfield’s lengthy brief included a table that included just the five disputed debts. It would have been better practice to list all the parties’ de bts and assets in the table. Including only the disputed debts does not provide the reviewing court withan overv

iew of the manner in whic h the tria

l court divided the entire marital estate. Ms. Mansfield’s brief contained no tabulation of any sort.
-18- brief a tabular summ ary of the classi fication a

nd division of

the partie s' debts a

nd assets. 15

C.
The debts chal lenged by

Mr. Man sfield we

re incurr ed by M s. Mansf

ield whileshe was establishing a new residence after she m oved out of the marital home. W hile she was the chief beneficiary of these expenditures, her purchases
were consistent with the types of furnishings the parties had purcha sed earli er for the mar ita l home , andthe total a mount of the charg es was only a fraction of t he cost of th e furnishi ngs that Ms. Mansfiel d left in th e house fo r Mr. Mansfiel d.

Ms. Mansfield incurred th ese deb ts at a time when Mr. Mansfiel d was not payingali mony pendente li te , and Mr. Mansf ield coul d more

easily repay these debts after M s. Mansf

ieldlost her j ob in August 1 993. Becau se of M r. Mans field ’s superior earning pow er and bec ause hereceive d the bul k of the marit al p rop erty, we conclude that the trial court did not act ine quitably

by re quiring Mr. Mansfiel d to assum e responsib ility f

or Ms. Ma

nsfield’ s pre-divor

ce debts.
IV.
As a final ma tter, Mr. Mansfield takes issue with the portion of the trial
court’s Jul y 1 3, 1994 orde r direct ing him to pay Ms. Mansf

ield $2,400 represe nting the ali mony pendente li te paym ents for Mar

ch and April 1994 . He now argues thatMs. Mansf ield did not ne ed these

funds beca

use he paid her the $75,000 ordered by the t rial court in late Apri l 1994. We find that Mr. Mansfiel d has waived his opportunity to challenge this award on appeal b ecause he did not take issu e with it in the trial co urt.-19- The October

1993 order requiredMr. M ans fiel d to pay al imon y pendente lite payments for only five months. T hus, his obligation to pay Ms. Mansfi eld alimo ny pendente li te expired with his fifth payment in February 1994. The trial
was delayed because Ms. Ma n sfield changed lawyers. Following the divorce hearing, the trial court directed Mr. Man sfield to c ontinue to pa y Ms. Mansfiel d $1,200 per mo nth and to p ay her car note until he paid her the $75,000 for her contributio ns to the appr eciation i n the value of h is separate property. Mr. Mans field

paid Ms. Mansfield the entire $75,000 in late April 1994 thereb y avoiding any c ontinuing oblig ation to make monthly payments of any sor t to Ms. Mansfield

.
Ata hearing in June 1994, Mr. Mansfield’s lawy er informed the trial court that he couldnot

determine if y ou meant that support sta

rts for April, when You

r Honor issued the

mem orandum , or if it goes b ack to March

. Andif Your H onor say s that it d oes, then I’ ll advisemy

client, and he’l l have to pay the difference. He’s got a good track re cord showing that he will pay whateve r this Cour

t orders. In response t

o this statement, the trial

court dete

rmine d t hat it had intended that the pay ments should rela te back to M arch 1994.

Tenn. R. App. P. 36(a) provides that relief on appeal should not

be granted to parties who are responsible for an error in the tria

l court or who faile d to take whatever action wa s reasona

bly ava ilable to prevent or

nullify the harm ful effect of the error. Rather

than asser

ting that requiring the $1,200 payments for March and April would be error, Mr. Mansfiel d’s law yer s imply sought clar

ification of the judge’s mem

orandum an d, upon receiving that clarification, stated that Mr. Mansfield

would “pay the diff

erence.” This concession in the trial court places the propri ety of

the awa rd bey ond Mr. Ma

nsfield’ s reach on

appeal.-20- V.
Ms. Mansf

ieldasserts that she in entitled to an additional award to defray her legal expenses both in the trial court and on appeal. The trial court has a lready awardedMs. Mansfield a judgment for her additional a ttorney s’ fee s brought about by Mr. Mansfiel d’s disc o very abuse and also awarded her $2,000 for her legal fees pendente li te . Under the fact s and circumstances of this ca se, we have determined

that these

awards are suff

icient and that Ms. Mansfiel d is not entitled to receive an additio nal award for h er legal exp enses at tri al or on app eal.

An additional award f

or legal e xpenses is a

pp ropr iate in a d

ivorce ca se when an econom

ically disadvantaged spouse la

cks suffic ient funds to pay f or his
or her legal rep resentati on. Ingram v. Ingram , 721 S.W .2d 262, 26 4 (Tenn. Ct. App. 1986). It

is inappropr

iate, how ever, w

hen the re questing spous e is able t o pay his or her lawy er either from his or her own earnin gs or from the assets received in the divorce

. Inman v. Inman , 811 S.W.2d 870, 874 (Tenn. 1991); McCarty v. McC arty , 863 S.W .2d 716, 72 2 (Tenn. Ct. App. 1992); Thompson v. Thompson , 797 S.W .2d 599, 60 5 (Tenn. Ct. App. 1990). T he trial c ourts have broad discretio nary a

uthority with rega rd to these

awards, and their

decisions w ill not be disturbe d on appe al unless they a re contra ry to t he preponde

rance of the evid ence. Fox v. Fox , 657 S.W.2d 747, 749 (Tenn. 1983); Houghland v. Houghland , 844 S.W .2d 619, 623 (Tenn

. Ct. App. 1992); Hardin v. Hardin , 689 S.W.2d 152, 154 (Tenn. Ct. App. 1983).

Ms. Mansfiel d is em

ployabl e and has m

arketabl e skills as aresu lt of her broad experien ce in the m usic busines s. She also o wns roy alty r ights that, by her
own evidence, produce income of approximately $900 per month. Inaddition, she has receive d $75,000from Mr. Mansfiel d in pay ment f or her con

tributions to the increase in the value of Mr. Mansfield’s sep arate a ssets duringthe partie s’ marriage. In light of

th e assets she h as rece ived as well as the trial court ’s findings concerni ng her ear ning capacit

y, w e decline

to awar d Ms. Mans field additional f

unds to help de fray

her legal expenses.VI.
The judgm

ents are affirme d, and the case is remanded to the tria

l court for whatever further proceedin gs may

be required . We tax the cos ts of this a ppeal to JosephF. Mansf

ield and his surety

for which execution, if necessary, m ay issue.

____ _________________

______ ______ _ WILLIAM C. KOCH, JR., JUDGE
CONCUR:

_________________

_________________ HENRY F. T ODD, P.J., M.S.

_________________

_________________ SAMUEL L. LEWIS, JUDGE