# FILED
June 22, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON

FRANK GREEN BUTLER, JR., ) ) Plaintiff/Counter-

Defendant, ) Chester County No. 9198 Appellee, ) ) v. ) ) Appeal No. 02A01-9807-CH-00184 MELODY DIANE BUTLER, ) ) Defendant/Counter-Plaintiff, ) Appellant. ) APPEAL FROM THE CHANCERY COURT OF CHESTER COUNTY

AT HENDERSON, TENNESSEE THE HONORABLE JOE C. MORRIS, CHANCELLOR

For the Defendant/Counter-Plaintiff, For the Plaintiff/Co unter-Defenda

nt, Appellant : Appellee : Angela R. Scott Frank Green Butle r, Jr., Pro Se Henderson, Tennessee (Did not file a brief)

AFFIRMED

HOLLY KIRBY LILL

ARD, J.

CONCUR: W. FRANK CRAWFORD, P. J., W.S. ALAN E. HIGHERS, J

.OPINION

This is a divorce case. The trial court awarded custody of the minor children to the wife, divided the marital estate, overruled the wife’s motion for sanctions and motion for contempt, and declinedto award attorney’s fees to either party. The wife now appeals the trial court’s division of marital property, the denial of her motions, and failur

e to award her a

ttorney’s fees.

We affirm. Plaintiff/Appellee, Frank Green Butler, Jr. (“Husband”), and Defendant/Appellant, Melody Diane Butler (“Wife”

), were marrie

d for approximate

ly nine years. Wife was fifteen years old and pregnant at the time of the marriage; Husband was eighteen years old. At trial, Wife was twenty-five years old and Husband was twenty-seven years old. During the part ie s’ marriage, three minor children were born, Frank Butler in 1989, Chasity Butler in 1991, and Tristen Butler in 1997. The children were e

ight, seven, and on

e year old respe

ctively at the time

of trial. The parties separated

in July, 1997. On August 27, 1997, Husband filed for divorce, citing inappropriate

marital conduct o

r in the alternative irreconcilable differences. Wifefiled a countercomplaint for divorce, als

o citing inappropr

iate marital cond

uct or in the alter

native irreconc

ilable differences.

Husband works full time for Interna tio nal Paper making $10.89 per hour and on occasion does odd jobs for Chester County Independent. Wife works full time

for C&R Grocery and makes $ 5.75 per hour. Hus band completed te

nth grade. Wife b

egan ninth grade

but sto ppe d attending school when she became pregnant. A temporary restraining order was issued on September 19, 1997, which prohibited Husband from harassing Wife, from destroying or disposing of marital or separate property, from altering, canceling or a llo wing insurance policies to lapse, from removing the minor children from Wife’s custody, from interfering in the children’s school matters, and from exercising visitation while under the influence of alcoholic beverages. A permanent restraining order was lat er issued to the sa me effect. Temporary sole custody of the children was awarded to Wife pending the divorce action, by agreed order of the parties. Husband agreed to pay $565 per month child support during the divorce proceedings. On December 8, 1997, Wife filed a motion for contempt

alleging that Husband disposed of real estate belonging t

o the parties, caused

property to be encumbered, and forged and transferred title to Wife’s car in v

iolation of the Tem

porary Restraini

ng Order. The co

ntempt petition also alleged that Husband paid child support sporadically, creating hardship for Wife and the children.2

Wife made several attempts to obtai n discovery fr om Husband. On September 19, 1997, Wife served Husband w ith discovery req

uests. A motion to comp el discovery was filed on December

8, 1997 for failure to res p ond to the discovery requests. In response, the trial court ordered that the discovery requests be answered by December 24, 1997. A secondmotion was filed by Wife on February 5, 1998 because of Husband’s continued failure to respond to discovery. The trial court then allowed Husband a c ontinuance until February 19, 1998. Wife alleges that Husband’s answers to the discovery requests, received in February, 1998, were incomp lete and did not contain requested in formation regarding Husband’s financial affairs. Wife sought attorney’s fees for the motions. Husband admitted that he had hit Wife onat least one occa sion and that he “to

ok a belt and [ ] whipped her.” He had three convictions for driving under the influence. The parties separated several times before their final separation in July, 1997 when Husband kicked Wife out of the marital home. He said that he kicked Wife out of the home because

he received a te

lephone call

informing him that Wife had been unfaithful to him. Wife admitted that during the course of the marriage she had had four adul

terous relationsh

ips. During the parties’ marriage, they purchased a mobile home and seventeen acres of land for the marital residence. After the parties separated, Husband remained in the marital home for several months and then moved in with his mother. Wife moved into another trailer purchased for her by her parents. In his

deposition, Husband stated that eight and one-half acres of the parties’ land was foreclosed

on after the parties separated because the parties were s ix months behind in their payments. He asserted that thedeficiency occ urred before th

e parties separ

ated and that,

before the separation, Wife was aware that the payments were behind. At trial, Husband testifiedthat he was approximately three months in arrears on the payments for the parties’ mobil

e home and approx

imately two mo

nths in arr ears on the payments for the parties’ remaining land. He asserted that he did not have the money to ma

ke the monthly payme

nts and was trying to ho ld onto the property until the divorce proceedings concluded. Although the parties owedapproximately $20,000 on the mobile home, Husband contende d that it was worth o

nly ten to fiftee n thousand dollars. A t trial, evidence

indicated that the

total equity in the pa

rties’ property was approximately six thousand dollars. Husband testified tha t he would no t be able to

come up with the approximately three thousand dollars needed to pay Wife her share of the equity.3

During the marriage, the parties borrowed fundsfrom First State Bank. At trial, the amount owedwas approximately $12,000. This amount include d funds borrowed

to finance Wife ’s car, to pay one of Husban d ’s DUI fines, and for the installation of a well on the parties’ property. The parties also financed a freezer at Term City, incurring monthly payments of $60. After t he bench trial, the trial court awarded the parties a divorce under Tennessee Code Annotated§ 36-4-129, as stipu lated at trial. The

parties also

stipulated that Wif

e would receive

sole custody of the parties’ children, and that Husband would pay

$134 per week ch

ild support, maintain health insurance on the children, and maintain a $50,000 life insurance policy for the benefit of the children. Medical expenses not covered by insurance were ordered split between the parties. The parties stipulated that Wife would assume the marital debt owed to First State Bank, but that Husband would pay Wife $100 per month, represent

ing a division of mar

ital debt, until the p

arties’ debt to First State Bank was satisfied. The pa rties stipulated th

at they would

retain their individual vehicles and the personal pro perty currently in their possession, with pos session of the par ties’ freezer expressly

given to Wife. The trial court ordered Wife to assume the $60 monthly payment

on the freezer. The trial court ordered that the parties’ mobile home and 6.9 acres of real estate be sold, with the proceed

s split equally

between the parties, reasoning that the parties were behind and the property

would be foreclosed on if it were not sold. The trial court overruled Wife’s two motions for sanctions and contempt. Each party was ordered to pay his or her own attorn

ey’s fees. From th

is order, Wife now

appeals. On appeal, Wife contends that the tri al court e rred in its division of the marital property. Wife also challenges the trial court’s decision to overrule her motion for sanctions and motion for contempt. Additionally, Wife asserts that the trial court erred in failing to award her attorney’s fees at the trial level and seeks attorney’s fees on appeal. Husband did not file an appellate brief. Our review of this case is de novo upon the record with a presumption of correctness of the findings of fact by the trial court. See Tenn. R. App. P. 13(d). No presumption of correctnes s attaches to the trial court’s conclusions of law. See Carvell v. Botto ms , 900 S.W.2d 23, 26 (Tenn. 1995). Wife first asserts that the trial court erred in dividing the marital estate. Wife asserts that the trial court’s order gave W ife more than one-half of the marital debt, but less than one-half of the marital property. As stated above, the trial court awarded Wife her car, all personal property in her4

possession, the parties’ freezer, and one-half of the sale proceeds f

rom the sale of the

mobile home and land. The $60 monthly payment on the fre ezer was alloc ated to Wife. Wif

e was ordered to

assume the $12,000 First State Bank debt, but the trial court ordered Husband to pay $100 per month

un til the deb t was paid, which was one-half of the monthly note owed to First State Bank. Wife contends that a more equita ble division would a

ward Husband the

mobile home

along with

the entire debt thereon because he is more capable of making the payment. An appellate court may alter the trial court’s division of p roperty only if the trial court misapplies the law or if the e vid ence prepon derates against the trial court’s factual findings. See Wade v. Wade , 897 S.W.2d 702, 715 (Tenn. App. 1994). Under Tennessee Code Annotated § 36-4-121, many factors are considered in the division of marital property, including the length of marriage, theage, employabilit y, and earning ca

pacity of the parties, and the contributions of each party to the marriage. See Tenn. Code A nn. § 36- 4- 121(c) (1996). In Harrington v. Harrington , 798 S.W.2d 244, 245 (Tenn. App. 1990), this Court stated that t

he “own ership of the marital estate should be presumed to be equal until proven otherwise.” In Barnhill v. Barnhill , 826 S.W.2d 443, 449 (Tenn. App. 1991), the Court held that “marital property should be equitably divided without regard to fault. An equitable division, however, is not necessarily an equal one. Trial courts are afforded wide discretion in dividing the interest of parties in jointly-owned property.” In this case, the parties stipulated to the entire prop erty division exce

pt the sale of the p

arties’ mobile home and land and Wife’s assumption of the Term City freezer debt. Considering Husband’s obligation to pay half of the debt to First State Bank, the debt to Term City was the only marital item notsplit equally between the parties. Wife has the fre ezer, and it is not

inequitable to allo

cate the debt to her. The trial court’s division of the marital property is consistent with the factors set forth in Tennessee Code Annotated § 36-4 -121. Althou gh Husband has slightly more education and a slightly higher earning cap acity, both parties are struggling financially. The evidence does not preponderate

against the trial court’s division of marital property and allocation of marital debt, and we affirm the trial court on this issue. Wife also argues that the trial court erred in overruling her motion for sanctions and motion for contempt. She cite

s Rule 37.02 of the T

ennessee Rules of C ivil Procedure in support of her argument:5 If a deponent; a party; an officer, director, or managing agent of a party; or, a person designated

under Rule 30.02(

6) or 31.01 to testif

y on behalf of a pa

rty fails to obey an order to provide or permit discovery, including an order made un der Rule 37.01 or Rule 35, or if a pa rty fails to obey an order entered under Rule 26.06, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: * * * In lieu of any of the foreg

oing orders or in a

ddition thereto, th

e court s hal l require the party failing t

o obey the order or the attorney advisingthe party or both to pay the reasonable expenses, including attorney's fee s, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances ma

ke an award of e

xpenses unjust. Tenn. R. Civ. P. 37.02. Wife asserts that because thetrial court made no finding that Husband was justified in failing to respon d to discovery, the trial court should have awarded her at

torney’s fees. Wife contends that Husband’s failure to adequately r espond to di scovery protracted the litigation and increased Wife’s attorney’s fees.

“ ‘On appeal, the exercise of discretion by a trial court in imposing sanctions will not be d isturbed in the absence of an affirmative showing of abuse.’ ” State ex rel. Comm'r, Dep’ t o f Transp. v. Cox , 840 S.W.2d 357, 367 (Tenn. App. 1991) (quoting Brooks v. United Unif. Co. , 682 S.W.2d 913, 915 (Tenn. 1984)). “The authority to impose sanctions for abuse of the disco very processderives from the rules and the court's inh erent powers.” Mansfield v. Mansfie ld , No. 01A01-9412-CH-0058, 1995 WL 643 329, at *5 (Tenn. App. Nov. 3, 1995) (citing Lyle v. Exxon Corp . , 74 6 S.W.2d 694, 698-99 (Tenn. 1988)). W

here there has b

een discovery a

buse, the most

common sanctions are monetary. See id. Under Rule 37 of the Tennessee Rules of Civil Procedure, sanctions ordinarily can only be applied for a failure to comply with an order of the court. See Cate

v. Samsonite Furniture Co. , No. 03A01-9406-CV-00228, 1994 WL 706620, at * 2 (Tenn. App. Dec. 19, 1994) (citing Strickland v. Strickla nd , 618 S.W.2d 496, 500 (Tenn. App. 1981)). The party seeking discovery, therefore, must first obtain an order requiring the delinquen t party t o respond to discovery, and only then can seek sanctions for the violation of that order. See id. In this case, the tria

l judge held two hearings on Wife’s motions for sanctions and for contempt for failure t o respond to discovery. An order entered after the first hearing directed Husband to respond to Wife’s discovery by December 24, 1997. Subsequent to the second hearing, the trial judge granted Husband a continuance and ordered him to respond to discovery by February 19, 1998. Neither hearing was made part of the re cord on appeal. I n the absence of an adequate record on this issue, we presume that the fa ct s support the decision of the trial judge. See In re6

Watson , No. 176, 1990 Tenn. App. LEXIS 695 (Oct. 3, 1990). Wife has not demonstrated that the trial court abused its discre tion in failing to award s anctions. The dec

ision of the trial c

ourt is affirmed on this issue. Finally, Wife seeks attorney’s fees incurred at the trial and appellate level. She asserts that she lacks funds sufficient to pay for her legal representation. “The decisionto award attorney’s fees to a party in a divorce proceeding is within the sound discretion of th e trial court and will not be disturbed on appeal unless the evidence preponderates against such a decision.” Storey v. Storey , 835 S.W.2d 593, 597 (Tenn. App. 1992). In Fox v. Fox , 657 S.W.2d 747, 749 (Tenn. 1983), th e court held: The right to an allowance of legal expenses is not absolute. It is conditioned upon a lack of resources to prosecute or defend a suit in good faith. This rule is to enable the wife, when destitute of means of her own, to obtain justice and to prevent its deni

al. If a spouse

does not have separate property of her own which is adequate to defray the expenses of suit, c

ertainly she should not be de

nied access to

the courts becau

se she is unable to procure counsel. Id. at 749 (citation omitted). While it is clear that Wif

e has little funds w

ith which to pay her le

gal fees, Husban

d likewise has minimal funds. Husband’s financial ability was conside red by the trial c

ourt in its decision t

o deny Wife her attorney ’s fees as evidenced by the trial court’s statement during the discussion of attorney’s fees that, “These people don’t have any money.” We cannot say that the trial court abused its discretion in declining to award Wifeattorney's fees. The decision of the trial court is affirmed on this issue.

Wife also requests attorney's fees on appeal. This request is denied. The decision of the trial court is affirmed. Costs are taxed to Appellant, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:7

W. FRANK CRAW

FORD, P. J., W.

S.

ALAN E. HIGHERS, J.