# FILED

March 05, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT JACKSON

KIMBERLEY DIANE SNY DER SIEGEL)

) Plaintiff/Appellee, ) Shelby Chancery No. D-25669-3 ) v. ) ) Appeal No. 02A01-9708-CH-00198 DAVID A. SIEGEL, ) ) Defendant/Appe

llant. )

)

APPEAL FROM THE CHANCERY COURT OF SHELBY COUNTY

AT MEMPHIS, TENNESSEE

THE HONORABLE C. NEAL SMALL , CHANCELLOR

For the Plaintiff/Appellee : For the Defendant/Appellant : Kimberley D

iane Snyder

Siegel, Pro Se Hal Gerber Cordova, Tennessee Memphis, Tennessee

AFFIRMED IN P

ART, REVERSED IN PART, AND REM

ANDED

HOLL Y KIR BY LI LLA RD, J.

CONCURS: W. FRANK CRAWFORD, P. J., W.S. DAVI D R. FAR

MER, J.OPINION

This is a divorce case. The trial court a warded most of the

marital property

to the wife and most of the marital debt to the husband, andordered the husband to pay rehabilitative alimony and child support as well as a portion of the wife’s attorney’s fees. The husband appeals. We affirm the division of marital property and debts and the award of attorney’s fees, and reverse a nd remand on the issues of alimon

y and child support

. Kimberley Diane Snyder Siegel (“Wife”) and David A. Siegel (“Husband”) were married in 1989. Two children were born during the eight year marriage, Joshua and Stephanie, who were ages five and three at the time of trial. Wife was thirty-one and Husband was thirty-six years old at the time of trial. Husband is a licensed attorney. Wife has a BS degree in Edu cati on. During the parties’ marriage, Wife was a full time homemaker who took care of the minor children. On May 25, 1995, Wife filed a complaint for divorce in the Chancery Court of Shelby County. Husband filed

a counter-complaint for divorce on June 22, 1995. Wife sough t fu ll custody and Husband sought joint custody of the children. After the parties separated, W ife worked as a merchandiser with Nabisco Foods until the entire division was terminated. At the time of trial, Wife was unemployed. The divorce proce e dings were protracted and contentious. During the pendency of the divorce proceedings,

Wife filed four petitions for scire facias. These petitions alleged that Husband violated court orders by f

ailing to pay tempor

ary child support, failing to

reimburse Wife for medical expenses not covered by insurance, failing to pay attorney’s fees for representation of the children’s interests, failing to maintain insurance coverage, and fa iling to pay the mortgage on the parties’ residence, which was or d ered as tempora ry alimony. Husban

d filed one petition

for contempt, alleging that Wife interf

ered with Hus band’s visitation with the children, used threatening and abusive language, and struck Husband. Husband had two pre-trial substitutions of counsel and one post-trial substitution and represented himself for a short time. Wife had one pre-trial substitution of counsel and re

presents hersel

f on appeal. From 1992 until July, 1996, Husband was a member of the Memphis law firm of Wampler, Pierce and Siegel. On July 1 6, 1996, he began a solo practice. Before starting his solo practice, Husbandaveraged appr

oximately $2759 pe

r month in net income

from Wampler, Pie

rce and Siegel. Husband’s total gross draws from his solo practicefrom July 16, 1996 to December 31, 1996 were $23,937.97, or $4787.59 per month. In addition, Husband received approximately $3107.53 over the five month period,

which was not i

ncl uded in the $23,937.97 figure. The parties disputed2

whether this should be included in Husband’s earnings. Wife asserts that much of this was for personal expenses which should have been included in Husband’s draws. Hu s band also had net income from the band he played in of $250 per month. The marital debts were disputed at trial. Wife testified at trial that at the time of the parties’ separation, the marital de bts w ere approximately seven thousand dol

lars. Husband ori

ginally claimedapproximately eight thousand dollarsof jointmarital debt, alth ough later he sta

ted that this figurewas a

mistake. By

trial, however,

Husband was clai

ming over forty

thousand dollars of

debt. Wife testified that Husband incurred this excess debt post-separation for his own living expenses. Husbandadmitted that at least some of the debt he owed to his firm was du e to his erra tic office hours and poor attendance. Husband, however, testified that Wife transferred ten thousand dollars of joint credit

card debt to an account solely in Husband’s name and that $10,700 of debt owed to his old law firm was used for living expenses during the marriage. Husbandinitially indicated an intent to litigate the custody of the parties’ children. Consequently, counsel for Wife prepared to litiga

te the issue of cus

tody. On the first da

y of trial, however, Husbandinformed Wife that he was not going to litigate custody and stipulated that Wife would have custody. The trial court entered a final decree of divorce on March 26, 1997 in favor of Wife on the grounds of inappropriate marital conduct. The trial court gave Wife custody of the t w o minor children. Husband was ordered to pay $1275 pe r month in ch ild support, $1097 pe r month rehabilitative support

for twenty-four

months, and $25,000

in attorney fees to Wife. The trial court basedthe child support award on Husband’s gross income for the final five months of 1996 when Husbandwas engaged

in his solo practice, reasoning that Husband’s prior employment at Wampler, Pierce and Siegel was not representative of his income. The trial court found that Husband did not applyhimself when he was working with Wampler, Pierce and Siegel because of the large amount of time he spent

fighting the divorce. It was undisputed that Husband earned $23,937.97 during the last five months of 1996.

To this amount,

the trial court added $3107.53 for expenses not included in the $23,937.97 figure. Accordingly, the trial court calculated Husband’s monthly g

ross income from his law practice

to be $5409.10. Aft

er adding $250 per

month for Husband’s inc

ome from his band, the trial court concluded that Husband’s gross monthly income for child support purposes was $5659.10. In support of the award o f attorney’s fees, the trial court found that Husband “went3

overboard” while he w as repr esenting himself and “insisted on litigating every matter.” The trial court found that Husband ’s conduct nece ssita ted sever al contempt petitio ns that would not othe

rwise have been necessary. The trial court also ordered Husband to maintain health insur ance for the children and a $150,000 life insurance policy on himself. The trial court retained the parties’ prior division of personal property except that it awarded the minor children a bedroom suite, armoire, and piano, and awarded Husband his drum se

t and c amcorder. The trial court also awarded Husband his law practice, his pension, and $1500 cash. Wife was awarded the marital residence. The Court reasoned that the majority of the down payment came from Wife’s side of the family and that she needed a decent home in which to ra

ise the children. Inaddition, Wife was awarded two hundred twenty-five shares of Odwalla, Inc. stock, and one hundred shares of Telular stock. Responsibility was given to Husband for all of the parties’ marital debt with the exception of the remaining balance of $13,500

on Wife’s c ar and the remaining balance of $95,000 on the marital residence. The trial court reasoned that Wife had no way to pay the debts and that Husband went “overboard” in running up debts during the parties’ separation. On June 9, 1997, approximately three months after the trial, Husband filed a Chapter 7 bankruptcy petiti on in the United States Bankruptcy Court, Western District of Tennessee. On January 9, 1998, Husband and the bankruptcy trustee entered into an agreed order, in which Husband relinquished all ow nership interest in the marital home and the personal property located therein. The order allowed Wife, as the secured creditor, to assume full ownership of the prope rty. Wife asserts that, subsequent to the agreed order, Husband quitclaimed the parties’ marital residence to her as well as his interest in the parties’ Odwalla and Telular stocks. On appeal, Husband disputes the trial court’s distri bution of marital property, the computation of the rehabilitative alimony and child s upport, and the award of attorney’s fee

s to Wife. Wife asserts that Husband’s appeal is frivolous and asks this Court to award her attorney’s fees and expens

es incurred for

this appeal.1 The factors to be considered in dividing marital property are: (1) The duration of the marriage; (2) The age, phy sical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the pa rties; (3) The tangible or int

angible contribut

ion by one (1) par

ty to the education, training or increased earning power of the other party; (4) The relative abi

lity of each part

y for future acquisitions of capital assets and income; (5) The contribution of each party to the acquisition, preservation, appreciationor dissipation of the marital or separate property, including the contribution of a party to the marriage as homemaker, wa

ge earner or pa

rent, with the contribution of a party as home maker or wage e

arner to be given

the same weight if each party has fulfilled its role; (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 cir

cum stances of each party at the time the division of property is to become effective; (9) The tax consequences to each party; and (10) Such other factors as are necessary to consider the equities between the parties. Tenn. Code Ann. § 36-4-121(c) (1996). 4 Husbandfirst argues on appeal that the trial court erred in its division of mar ital property. A trial court is aff

orded wide discr

etion when dividing

the marital prope

rty, and its

distribution will be given “great weight” on appeal. See Ford v. Ford , 952 S.W.2d 824, 825 (Tenn. App. 1996). The trial court’s distribution of marital property will be reviewed de novo and will be presumed correct unless the evidence preponderates otherwise. See Barnhill v. Barnhill , 826 S.W.2d 443, 449-50 (Tenn. App. 1991); Lancaster v. Lancaster , 671 S.W.2d 501, 502 (Tenn. App. 1984). Husbandasserts on appeal that Wife received e

ighty-fiv e percent of the

marital assets, wh

ile he received only

fiftee n percent. He argues that the tri al c our t’s div isi on o f ma rit al p rop ert y does

notproperly take int

o account the fa

ctors listed in Tennes see Code Annotated § 36-4-121(c). 1 Husbandnotes that the parties were only married for six ye ars when they

separated, theparties are young, educated and employabl e, the par ties have equal e xpenses and assets,

and neither part

y contributedto the educationa l needs of the other. Husband asks this Court to order the sale of the marital residence when the youngest child turns eighteen or, in the alternative, that Wife be ordered to give Husband his equitable share when the youngest child turns eig hteen, based

on the value of the residence at the time of the divorce decree. Husbandrequests that all other assets be awarded to him except for Wife’s car.5

Wife argues that Husband gave up a ll interest in

the marital resid

ence and partie

s’ stocks when he filed bankruptcy. Wife contends that the Agree

d Order Granting

Relief from the Au

tomatic Stay and Abandoning Property filed in the bankruptcy action relinquished to Wife, as the secured creditor, all of Husba nd’s rights in any real and personal property located at the parties’ marital residence. Wife points out that, subsequent to this order, Husband quitclaimed the marital residence and the stocks to her. Wife also argues that

the equity in

Husband’s law pr

actice offsets t

he equity in the marit

al residence and tha t th ese t wo a sse ts c ons tit ute the maj ori ty of the part ies ’ pr ope rty. Fin all y, Wife asserts that Husband failed to put before the trial court his request that the court order the marital home sold when the parties’ youngest child reaches e ighteen years old. Husband poin ts to no place in the record in which he raised to the trial court his current request that the marital home be sold when theyoungest child turns eighteen. Therefore, the issue may not be raised on a

ppeal. See T

ennesee Dep’t of Human Serv. v. Defriece , 937 S.W.2d 954, 960 (Tenn. App. 1996). The trial court reasoned that it should award Wife the marital residence bec

ause “the majori

ty of the dow n pa ymen t ca me f rom her s ide of t he fa mil y” and because of her need for

an appropriate homein which to raise the children. Tennessee Code Annotated § 36-4-121(d) directs that “special consideration” be gi ven to t he p art y wit h cu sto dy of minor chil dren when awarding the marital residence. Wife was a homemaker during the parties’ marriage and, except for a sho rt period of employment

at Nabisco after the pa

rti es separated, has not worked since before the birth of the parties’ first child. Clear

ly Husband has greater income and earning potential than Wife, as well as

a greater ability to accumulate assets in the future. See Tenn. Code Ann. § 36-4-121(c)(4) (1996). An equitable

division of marital property need not be an equal division of the property. See Barnhill

v. Barnhill , 826 S.W.2d 443 , 449 (Tenn. App. 1991). Considering the record as a whole, the evi den ce do es n ot p repo nde rat e aga ins t th e tr ial cou rt’ s di vis ion of t he p art ies ’ ma rit al p rop ert y. The record on appeal contains Husband’s post-divorce filings in the United States Ba nkruptcy Court. In the bankruptcy preceding, Husband gave up all his interest in the par ties ’ marital residenceand personal property therein. Wife claims that he should therefore be precluded from raising these issues on appeal. We need not consider the bankruptcy pr

oceedings in this

case,2 These factors are:

6

however, because we find that the evidence preponderates in favor of the trial court’s award of the marital residence to Wife. Husbandnext asserts

that the trial court erred in ordering Husband to pay all of the parties’ marital debt except for the remaining balance on Wife’s ca r and the remaining mortgage on the marital residence. This ruling, Husband asserts, f orce d him into bankruptcy. In a divorce proceeding, trial courts have broad discretion in dividing the marital estate. As with dividing marital property, broad discretion is acco rd ed to a trial court’s division of marital debt. See Herrera v. Herrera , 944 S.W.2d 379, 389 (Tenn. App. 1996). From the parties’ testimony at trial, it appears that the marital debt incre ase d significantly after the separation. Wi

fe testified that

Husband incurre

d this post-separation debt for his own living expenses. Husband admitted that at least some of the debt he owed to his firm w

as due to his

erratic office hours and poor attendance. Husband, however, testified that app roximately

twenty thousand dollars was joint debt used for expenses during the marriage. The trial court determined that all of the debt was marital debt and, therefore, that it was unnecessary to ascertain which party incurred the debts. According to the trial court, Wife had no means to pay off any of the debt. Furthermore, “Mr. Siegel . . . went o

verboard in runn

ing up debts in the

last several month

s befo re this divorce was heard.” The factors to be considered in apportioning marital debt are: “(1) which party incurred the debt and the reas on f or t he d ebt , (2 ) wh ich part y benefitted from the loan, and (3) which party

is better able to assume the debt.” Mahaffey v. Mahaffey , 775 S.W.2d 618, 624 (Tenn. App. 1989) ( citations omitted). The rec ord contains evide

nce indicating t

hat the majority

of the debts wer e incurred by Husband for his benefit. Clearly Husba nd is better able to pay the debt. Under these circumstances,

the evidence does not

preponderate against the trial court’s division of

the parties’ debts. The decision of the trial court dividing the marital property and debts is affirmed. Husbandnext contends tha t the trial court e

rred in its computation of rehabilitative alimony and child support. The trial court is afforded wide discretion concerni ng the award of alimony because the dete rm ination of the amou

nt and duration is a

factual issue ba

sed on the factor

s in Tennessee Code Annotated § 36-5-101(d)(1). 2 See Herrera , 944 S.W.2d at 387-88. The trial court’s(A) The relative earning capacity, obligations, needs, and financial resources

of eachparty, including income from pension, profit sharing or retirement plans and all other source

s; (B) The relative education an d t raining of each party, the ability and opportunity

of each party to secure such education and training, and thenecessity of a party to secure further education and training to improve such party's earning capacity to a re

asonable level; (C) The duration of the marriage; (D) The age and mental condition of each party; ( E) T he physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease; (F) The extent to which it would be undesirable for a par t y to seek employment

outside the home be

cause such part

y will be custodian of a

minor child of the marriage; (G) The separate assets of each part y, both real and personal, tangible and intangible; (H) The provisions made with regard to the marital property as defined in § 36-4-121; (I) The standard of living of the parties established during the marriage; (J) The extent to w hich each party has ma de such tangible a

nd intangible contributions to the marriage as monetary and homem aker contributio ns, and tangible and intangible

contributions by a party to the education, training or increased earning power of the other party; (K) The relative fa

ult of the parties in cases where the court, in its discretion, deems it appropriate to do so; and (L) Such other factors, including the tax consequences to each party, as are necessary to co

nsider the equitie

s between the par

ties. Tenn. Code Ann. § 36-5-101(d) (Supp. 1998).

7 findings regarding alimony should be reversed only in instances in which this discret ion “h as manifestly

been abused.” Hanover v. Hanover , 775 S.W.2d 612, 617 (T enn. App. 1989); see also Herrera , 944 S.W.2d at 388. An award of child support is reviewed in accordance with Rule 13(d) of the Tennessee Rules of Appellate Procedure with a presumption of correctness as to factual findings. See Ford v. Ford , No. 02A01-9507-CH-00153, 1996 WL 560258, at *2 (Tenn. App. Oct. 3, 1996). There is no presumption of correctness for the trial court’s conclusions of law. See Carvell v. B ottoms , 900 S.W.2d 23, 26 (Tenn. 1995). The factors considered in calculating child support awards are found in guidelines published by the Tennessee Department of Human Services. See Tenn. Comp. R. & Regs. 1240-2 -4-.03 (1994). Under these guidelines, child support is based on a percentage of the non-custodial parent’s net income. See Tenn. Comp. R. & Regs. 1240-2 -4- .03 (1994). Thus, the determination of the amount of bot h alimony and child support are based, at least in part, on the trial court’s finding as to the party’s net income or “earning capacity.” Husbandargues that the amounts of alimony and child support awarded we re excessive base d8

on the trial court’s incorrect determination of his income. The trial court based its calculations of alimony and child support on the last five months of 1996. The trial court accepted Wife’s figures showing Husband’s gross in come was $5659.10 per month during the last five months of 1996. As noted above, Husband’s income increased considerably during the last five months of 1996 when he left his law firm and began practicing as a solo practitioner. Husband asserts t hat the increase

in his compensation duri n g the last five months of 1996 was due to two significant contingent fee settlements. He argues that the trial court erred in calculating alimony and child support b

ased only

on his increased income from the last five months of 1996 rather than

his average inco

me over the entire year of 1996. In

support of this argument, Husband cites the criteria for deviation from the Tennessee Child Su

pport Guidelines: In cases where ini

tial support is

being set, a judgment must be entered to include an amount due for monthly s upport fro m the date of the child’s birth or date of separation or date of abandonment whichever is appropriate, until the current support order is entered. This amount must be calculated based upon the guidelines using the averageincome of

the obligor over the past two years and is presumed to be correct unless rebutted by either party. Tenn. Comp. R. & Regs, Rule 1240-2-4-.04(1)(e) (amended Oct. 1997). Wife argues that Husband’s earnings during the last

five months of 1996 a

ccurately represent his current and future earnings and, thus, are the proper basis for alimony and child support. The trial court based

its calculations on the last five months of 1996 because it concluded that Husbandwas not making as much during the first few months of 1996 as he was capable of making. The trial court stated, “As a matter of fact, it may very well be that one reason his income appeared so low is that he didn’t work at making money, he worked at fighting this divorce.” Testimony at trial indicated that, during the first part of 1996 at his law firm, Husband would often come into work at 10:00 a.m. and leave at 2:00 p.m. The trial court determine d, therefore, th

at Husband’s inco

me prior to his switch to private practice was not representative of his future earning capacity. The guidelines instruc

t courts to averag e income over the last two years when entering an initial child support order. See Mayfield v. Ma yfield , No. 01A01-9611-CV-00 501, 1 997 WL 210826, at *6 (Tenn. App. A pr. 30, 1997); see also Yates v. Yates , No. 02 A01-970 6-CH-00122, 1997 WL 746377, at *5 (Ten n. App. Dec. 4, 1997); Tenn. Comp. R. & Regs. 1240-2-4-.04(1)(e) (amended Oct. 1997). “Under

the Child Support Guidelines, this average amount is presumed to be correct unless it isrebutted by either party.” Yates , 1997 WL 746377, at *5. Wife sought to rebut9

this presumption by emphasizing that Husband’s income increa sed drastically afte r his change to solo practice. Considering the record as a whole, it appears that the trial court erred in basing its calculation of alimony and child supp ort only on Husband’s inco me for the last fiv

e months of 1996. Wh

ile Husband clearly underperformed while at Wampler, Pierce & Siegel, it is also undisputed that the greater earnings in the latter half of 1996 were at le

ast partially due t

o two large settlements. There is no indication whether Husband will con ti nue to receive la rge settlements on

a regular basis. However, a calculation of child support based on Husband’s earnings during the last two years, as indicatedunder the child support guidelines, would be erroneous under the facts and circumstances of this case. It is undisputed tha t Husband did poorly

while at his forme

r law firm. Husba

nd also testified that his overhead decreased whe

n he went into solo pr

actice. If the la

st t wo ye ars of Husband’s income were utilized to calculate chi

ld support, unfair emphasis w ould be placed on h

is prior lower ear

nings. Based on the e

ntire record, it

appears that Husband’s earnings for the entire twelve months of 1996 best reflect his income and earning capacity for the purpose of determining child support and alimony . We reverse the trial court’s award of alimony and child support and remandfor a determination of alimony and child

support based on Husband’s income for the entire year of 1996. On remand, the income considered should include the compensation from Wampler, Pierce & Siegel, the compensation from Husband’s solo p ractice , the personal expenses that Husbandfailed to

include in his

draw from his solo practice, and Husband’s income from his band. Finally, Husband argues that the trial court erred in ordering him to pay a portion of Wife’s attorney’s fees. Of Wife ’s total attorney’s fees of over $43,000, Husband was ordered to pay $25,000. The trial court is afforded great discretion

concerning whe

ther to award att

orney’s fees in

a divorce case. See Aaron v. Aaron , 909 S.W.2d 408, 411 (Tenn. 1995). On appeal, the trial court’s decision is normally not reversed except upon a showing of an abuse of that discretion. Id.; see also Long v. Long , 957 S.W.2d 825, 827 (Tenn. App. 1997).10

Husbandasserts that the award of attorney’s fees was excessive because the

hourly charges

were excessive for routine matters and the time plaintiff’s counsel spent on the case did not bear

a reasonable

relation to the size of the estate. Husband provided twoaffidavits from attorneys in the community

supporting his contentions. Hu sband acknowled

ges that his

request for custody of the parties’ children was not d ropped until immedia

tely before the t

rial, but ar gues that, becau se discovery was not pursued on this issue, Wife “could not possibly h ave thought that cu

stody was a real issue.” Prior to trial, the tria l court reserve d attorney’s fee

s to Wife on sever

al pre-trial matt

ers, including her first three petitions for scire facias and Husband’s failure to comply with discover y requests. The tri

al court explaine

d its final award o

f attorney fees

to Wife as follows : In this case, the court would be inclined to make the attor ne ys fees frankly very low considering the fact that there was no

t much to really

fight over in the way of property and debts and all and, you know, you need only so much time to decide who is going to have custody and things like that, but in this case, frankly, Mr. Siegel I think just went overboard, especi ally whil e he was representing himself. He insisted on litigating every matter. He in effe ct leads the c ourt to at least require what I would call a fair, but maybe moderate amount of fees to be paid by him to his wife’s attorney. There are three things in addition to the usual that the court has to weigh in setting fees. There are three things in this case that the court would comment on. Number one, I have neve

r seen affidavi

ts from what you migh

t call pi llars of the legal community of this

city that has put in writing an opinion of what the fees ought to be as we have in this case. Number two, overkill. I think from the very first

hearing the court expressed rightin open court its great concern with Mr. Siegel’s conduct and how it was bound to affect the outcome of the divorce and the rulings of the court, so that c

ertainly I’m sure he got the point and

he finally did

get an attorney, but, then, on the other hand, you just don’t need to

prove things that

are not in dispute or that the court’s already pretty well ruled on. There is just no nee d in it. If Mr. Siege

l hadn’t been so

difficult to deal with, even f

rom the court’s st

an dpoint, that [sic] the fees in a case with no more money that’s involved than tha t’s involved here would be quite low, but the courtwill set the attorney fees that Mr. Siegel is responsible for at twenty- fiv e thousand dollars. Now, one reasonthat it is as high as it is, is because of the needless contempt petitions that were filed. And I don’t mean that they were not justified. I am s

imply saying that they shouldn’t have been made necessary by Mr. Siegel’s actions. So, I think the twenty-five thousand dollar fee is reasonable in this particular case. In this case, the evi

dence does not ind

icate that the tri

al court abuse

d its discreti on by ordering Husband to pay part of Wife’s attorney ’s fees. Wife’s earning capacity is substa

ntially less than Husband’s, particularly after functioning for several years as homemaker a nd primary care g iver for the parties’ children. The main asset that Wife received in this case, the marital residence, cannot be easily used to pa

y for her attorne

y’s fees. Moreover, our rev iew of the record indicates no abuse of discretion in the amount of11

attorney’s fees awarded. The record supports the trial court’s observa

tion that Husband’ s difficult behavior made the litigation unduly conten tious. In addition, Husband’s cavalier argument that Wife “could not possibly have thought that custody was a real issue” is unconvincing. Wife’s counsel had

no choice except to

prepare to litigate the issue of custody. When custody became “not a real issue,” Husband’s reque

st for custody shoul

d have been volun

tarily dismissed. To

permit it to remain an issue until immediately be fore the trial sug

gests questionable trial tactics and supports the amount of attorney’s fees awarded to Wife. Wife argues that Husba

nd’s a ppea l was frivolous and seeks attorney’s fees and other expenses related

to the appeal. Wife represented herself pro se on appeal, but seeks her expenses. However, as noted above, Husband pr evails on appeal o

n some of the issues

he raises. Under

these circumstances, Wife’s request for attorney’s fees and expenses must be denied. In sum, the evidence does notpreponderate a gainst the trial co

urt’s division of ma

rital assets and debts, and the trial court is affirmed on these issues. We find that the trial court erred in basing its calculationof alimony and chil d support on Husban

d’s income only

for the months in the latter part of 1996 in which he was in solo law practice. Consequently, we reverse the trial court’s holding

on these issues and r emand for r ecalculation of alimony and child support based on Husband’s income for the entire year of 1996. We affirm the award to Wife of $25,000 in attorney’s fees for proceedings at the trial court level. Wife’s request for attorney’s fees and costs on appeal is denied. The decision of the trial court is affirmed in part, reversed in part, and remanded to thetrial court for further proceedings consistent with this Opinion. Costs are taxed equally to Appellant and Appellee, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

DAVID R. FARMER, J.