### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
KENNETH HERBERT ABERNATHY v. KELLIE MICHELLE ABERNATHY
Direct Appeal from the Circuit Court for Wilson County

No. 1654 Clara Byrd, Judge

No. M1999-00891-COA-R3-CV - Decided June 27, 2000

Inthis divorce action, Kenneth Herbert Abernathy (Father) appeals the trial court’s final judgment
aw ardingKellie Michelle Abernathy (Mother) custody of the parties’ five-year-old son, imposing certain conditions on the Father’s visitation with the child, ordering the Father to pay $8819 to the Mother for her portion of the equity in the marital home, and ordering the Fa ther to pay $5064 of the Mother’s attorney’s fees. We decline to address the Father’s issues regarding the conditions placed
on his visitation with the child because, at oral argument,

the Father’s co

unsel conceded t

hat these issues were resolved by a subsequent order of the trial court removing the visitation condi tion s. In all other respec

ts, we affirm the

trial court’s judg

ment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of t

he Circuit

Court A ffirmed; and Remanded

F ARMER , J., delivered the opinion of the court, in which H IGHERS , J., and L ILLARD , J., joined. Jon S. Jablonski, Nashville, Tennessee, for the appellant, Kenneth Herbert Abernathy.

Jessica Daw n Dugger and Greg

ory S. Gill, Lebano

n, Tennessee, fo

r the appellee, K

ellie Michelle Abernathy.

OPINION

The Father initiated

this action in

January 1998 when he filed

a complaint for div

orce against the Mother alleging

the grounds of ir

reconcilable di

fferences and

inappropriate ma

rital conduct. See Tenn. Code Ann. § 36-4-101(11), (14) (Supp. 1999). According to the Father’s complaint, this was the Father’s first marriage and the Mother’s third marriage. The Father’s complaint sought custody of the parties’ minor child, a son born in January 1994. The Father asked th

e trial court to

award him certain property, including, inter alia , all interest in the marital home and th

e Father’s b

us iness, Aircraft Acrylic Repairs, Inc

.

### -2-

The Mother filed

an answer and a

counter-complaint for divorce in which she sought custody of the parties’ child. In addition to the same grounds alleged in the Father’s complaint, the Mother asserted that the Father w

as guilty of

habitual drunken

ness and that he abused illegal drugs. See Tenn. Code Ann. § 36-4-101(10) (Supp. 1999). The Mother ask ed the trial court to make an equitable division of the par

ties’ real and pe

rsonal property

. The Mother also

asked for an

award of attorney’s fees.

InMarch 1998, the trial court entered anagreed order granting the Mother temporary custody of the parties’ child, setting forth the Father’s visitation rights, and awarding the Father possession of the marital residence pending the final divorce hearing. Pursuant to a motion filed by the Mother, the trial court later enter ed an order re quiring t he part ies and the child to submit to psychological evaluations.

After conducting a trial in March and Apri l 1999, the trial court entered a final judgment awarding the Mother

a divorce on the g

round of inapprop

riate marital co

nduct. As pertine

nt to this appeal, the trial court’ s judgmen t awarded custody of the parties’ child to the Mother, imposed certain conditions on the Father’s visitation with the child, ordered the Father t o pay $8819 to the Mother for her portion of the equity in the marital home, and ordered the Father to pay $5064 of

the Mother’s attorney’ s fees. With rega rd to the condit

ions placedon the Father’s visitation with the child, the trial court’s judgment required the parties and

the child to attend behavioral modification counseling with

Lori Drake-Bunch,specified that the amount of additional visitation that the Father
was awarded would de pend upon the Fat

her’s coopera

tion with

Drake- Bunch and her recommendations , reserved the issue of the Father’s summer visitation schedule pending the court’s receipt of Drake-Bunch’s report, and required that the Father’s visitation with the child be s upe rvised by the Father’s mother.

Onappeal, the Father contends that the trial cour t e rred in (1) awarding custody of the parties’ child to the Mother, (2) ordering the Father to participate in counseling with Lori DrakeBunch as a prerequisite to the court’s setting a summer visitation schedule, (3) requiring the Father’s visitation with the child to be supervised by the Father’s mother, (4) valuing the parties’ residence, and (5) ordering the Father to pay a por tion of the Mother’s attorney’s fees. I. Custody Award

Our review of the trial court’s custody decision is governed by rule 13(d) of the Tennessee Rules of Appellate Procedure

. See Ruyle v. Ruyle, 928 S.W.2d 439, 441 (Tenn. Ct. App. 1996); Koch v. Koch , 874 S. W .2d 571, 575 (Tenn. Ct. App. 1993). Rule

13(d) requires t

his court, in conducting a de novo review of t he reco rd, to presume that the trial court’s factual findings are correct, unless the evidence in the record preponderates otherwise. SeeTenn. R. App. P. 13 (d). In applying this standard of review, we are mindful that “[t]rial courts are vested with wide discretion inmatters of child custody” and that “the appellate courts will not interfere except upon a

showing of erroneous exercise of that discretion.” Koch , 874 S.W. 2d at 575. Because “[c]ustody and vi sitation determinations of ten hinge on subtl

e factors, inclu

ding the parent

s’ deme anor an d

### -3-

credibility

during t he divorce proceedings themselves,” appellate courts “are reluctant to secondguessa trial court’s decisions.” Gaskill v. Gaskill , 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). The courts’ paramount concern in a custody case is the welfare a nd best interest of the parties’ minor children. See Ruyle , 928 S.W.2d at 441; Koch , 874 S.W.2d at 575. This deter mination necessa

rily turns on the particular facts of each case. See Koch , 874 S.W.2d at 575.

Inmaking its custody decision, the trial court is required to eng

age in a “comparative

fitness” analysis. Gaskill

, 936 S.W.2d at 630. Tha t is, the court is re

quired to determin

e which parent is

a comparatively

more fit custodian

than the other. See id . This factually-driven inquiry require s the court to carefully weigh, inter alia , the following c onsiderations: (1) The love, affection and emotional ties e

xisting between the

parents and child; (2) The disposition of the pa rents to provide the child w ithfood, clot hing, medical care, education and other necessary care and the degr ee to which a

parent has been the primary caregiver; (3) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment; . . . (4) The stability

of the family

unit of the parent

s; (5) The mental and phy sical health of the

parents; (6) The home, school and community record of the child; (7) The reasonable preference of the child if twelve (12) years of age or older. . . . (8) Evidence of p hys ic al or emotional abuse to the child, to the other parent or to any other person; . . . . (9) The character

and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child; and (10) Each

parent’s past and potential for future performance

of parenting responsibilities,

including the willingness and abi lit y of each of the pa rents to facilitate and encourag

e a close and con

tinuing parent-

child relationship

between the child and the other parent, consistent with the best interest of the child. Tenn. Code Ann. § 36-6-106 (Supp. 1999).1 Although this provision specifically enjoined both parties, we note that the record contains no evidence that

the Mother has use

d illegal drugs.


### -4- Onappeal, the Father contends that the trial court erred in awarding custody of the child to the Mother

because the evidence

at trial established that the Father is the more stable parent and that the Fath er “deals with” t he child more appr

opriately. The Father point

s to evidence that he ha s owned his own business since 1994 and that he has provided well for the family, whereas the Mother has had several different jobs during the same time period and has remained financially dependent
on others. The Father also cites the testimony of several witnesses, including the M other, who indicated that the Father exerts greater control over the child’s behavior than does the Mother. Despite the favorable evidence supporting the Father’s custody request, we conclude that the trial court did not err in awarding custody of the parties’ child to the Mother. The evidence at trial demonstrated

that both the Mother and the Father are lov ing parents

who are very

involved in their child’s life. In making its custody decision, however, the trial c ourt indicated that it was particularly concerned

with the chi ld’s behav ioral probl ems an d each paren t’s re spons e to th ese pr oblem s. In awarding custody to the

Mother, the court

found that the Mothe

r was o pen to the avenue of counseling and the court-appointed psychologist’s recommendations that the child be evaluated for attention deficit hyperactivity disorder and oppositional def iant disorder. Incontrast, the court found that the Father’s attitude indicated that he was not open to the psychologist’s recommendations. The trial court’s comments a

lso indicated that the court was concerned by evidence of the Father’s illegal drug use, and in its final judgment, the court included a

provision enjoining both parties “from using
or possessing any illegal drug in the presence of the minor child.” 1 In conducting its comparative fitness analysis, the trial court indicated that these two factors weighed in favor of awarding custody to the Mother.

We conclude t

ha t the evidence does not preponderate against the trial court’s custody decision. Although much of the evidence at trial was disputed, virtually all of the witnesses agreed that the child exhibited behavioral problems both at home and at school. The Mother testified that the child was “a h

andful.” At pres

chool, the child of

ten sat in “time out”

for failing or r

efusing to listen to his teachers’ instructions and for running ar

ound the school inste

ad of stayin

g with his class. Other witnesses described the child as “rambunctious,” “hypera ctive,” and

even “uncontrollable.” The psycholog

ist appointed by

the court to

evaluate the parties and their son recommended that the child be evaluated for attention deficit hyperactivity disorder and oppositional defiant disorder. The Mother testified that she

agreed with the

psycholog

ist’s recommenda

tions for further

evaluations.

Incontrast, the Father demonstrated less willingness

to acknowledge the seriousness of the child’s behavioral problems or to seek approp

riate guidance

from professiona

ls in dealing with t

hese problems. When asked if the child needed counseling for his behavioral problems, the Father’s only response was that the child “

needed his

daddy.” On one occasion, the Mother convinced the Father to attend a counseli

ng session to addr

ess the child’s be

havioral problem

s. Instead of focusing on the subject of the counseling session, the Father insisted on explaining to the counselor why he and the Mother w ere div orcing. When the counselor tried to redirect the Father’s focus to his son’s2 The Father’s statement apparently referred to his suspicions that the Mother

was engaging in an adulterous affair with a long-time friend. Despite hiring a private investiga

tor and paying him $3000 to investigate the Father’s suspicions, the Father was unable to present any proof to support these allegation

s.

3 The Father previously had testified that he occasionally whipped the child with a belt. The Father explained that, “ [e]arly

on, years ago, when he [the child] was like two and a half years old, I broke a switch off a tree two or three times. . . . After that, I ain’t got no problem.”


### -5- behavioral problems, the Fa ther responded b

y stating th

at t he r eason the parties were there was because the Mother could

not “keep her legs closed.” 2 At trial, the Fath er admitted that he

made this statement to the coun selor, alt hough he disputed the Mother’s testimony that the child was present when the statement was made. The Father also admitted telling the counselor that he did notneed
a woman telling him how to raise his son. The Father testified that he made this statement after the counselor told him that whipping a child with a belt was inappropriate. 3
As for the Father’s alleged drug and alcohol use, the Mother testified that the Father drank excessively

a nd s ometimes smoked marijuana. The Mother found marijuana and a pipe in the Father’s bathrobe pocket and rolling papers on the floorboard of the Father’s truck. The Father drank at least one six-pack of beer every day . On one occasion, the Father took prescri ption pai n medicationfrom the Mother’s purse. When the Mother confronted the Father about his use of illegal drugs, the Father def

ended his behavio

r, insisting that hi

s drug use was not “such a big deal” and that it was “okay to party eve

ry once in awhile.” The parties separated after a December 1997 argument inwhich the Mother a

gain confronte

d the Father abo

ut his drug use . The Fathe r initially denied using drugs. As the confrontation progressed, however, the Father retrieved a plastic bag gie and pipe from his truck and showed them to the Mother.

The Father denied being a regular drug user, and he testified that all of his work-related drug
screens had been negative. The Father admitted, however, that he had smoked marijuana

as recently
as December 19 97. The Father admitted that t he Mother once f

ound a bag of mar

ijuana in his bathrobe pocket; ho wever, the Fa ther claime d that he fou nd the bag in his driveway where one of his employees dropped it. The Father also admitted that the Mother found two pipes containing marijuana among the Father’s personal belongings; however, the Father claimed that the pipes were merely souveni rs from his youth. Finally, the Father a dmitted that he took some of the Mother ’ s prescription pain medication from her purse.
Moreover, the Father acknowledged that he s ometimes dr ank in the child’s presence. For example, the Father and a friend drank beer when they took their children ou

t on the friend’s b

oat. The Father also drank Wild Turkey when he took his son to the bowling alley. Acc ording to the Father, he did not drink to exc ess, and he drank

only one and

one-half to two c

ases of beer p er month, not the six-pack -per-day habit desc ribed by the

Mother. The Fath

er testified that

, if necessary , he would

“give up anything” for his son, including drinking; however, he also testified that he would not give up drinking unless the trial court ordered him to do so.

### -6-

We conclude that th e foregoing evidence supported the trial court’s decision to award custod y of the child to the Mother. As we previously indicated, in making its custody decision, the trial cour t
was required to consider, among other factors, the disposition of the parents to provide the child with medical and other necessary care and the mental and phy sical health of the parents. SeeTenn. Code Ann. § 36-6-106(2), (5) (Supp. 1999). The foregoing evid ence directly related to both of

these factors. As i ndi cat ed b y the Fath er’s own tes tim ony, the Father was less willing than the Mother to seek professional guidance i n dealing wit h the son’s behavioral problems. In fact, the Father appeared reluct ant to a dmi t th at t he s on h ad an y sign ifi cant beh avi oral pro ble ms. Add iti ona lly, although the Father contended that his alcohol and drug use did not adversely impact the child, we believe that the trial court properly c

onsidered this evi

dence when the c

ourt evaluated th

e parties’ comparative fitness to have custody of this child.

II. Visitation Condit

ions

Inhis second

and third issues, the Father challenges certain aspects of the trial court’s final judgment regarding hi

s visitation with the child. Specifically, the Father contends that the trial court erred in ordering him to

participate in co

unseling with L

ori Drake-Bun

ch as a prerequisite

to the court’s setting a summer v isitation schedule

and in requiringthe Father’s vis itation with the chil

d to be supervised by the Father’s mother.

We decline to addre

ss these issues because, at oral argument, the Father’s counsel conceded that these issues were

resolved by

an agreed ord

er entered in

December 1999 whereby the trial court removed the foregoing conditions on the Father’s visitation with t he ch ild. See, e.g. , Donegan v. Donegan , No. 01A01-9709-CH-00469, 1998 WL 639113, at *2 (Tenn. Ct. App. Sept. 14, 1998) ( no perm. app. filed

) (recognizing that cus tody issu e raised on appeal was moot where trial court’s subsequent

decision created different custody situation). Moreover, upon reviewing the record, we find no indication that the Father o bject ed to these conditions below, although he had several opportunities to do so. See, e.g. , Smith v. Smith , No. 03A01-9603-CV-00078, 1996 WL 591181, at *3 (Tenn. Ct. App. Oct. 11, 1996) ( no perm. app. filed ) (holding that father waived i ssu e regarding condition prohibitin

g father from e

xposing child

to c igarette smoke

by not objec

ting to condition below).

III. V aluatio n of Mar ital Hom e
As for the trial court’s valuation of the parties’ residence, theFather contends that the trial court erred in accepting John Ma

ssa’s “as-is”

appraisal of $114,000 because Massa testified that he deducted only $17,500 f

rom the home’s val

ue to remedy

its structural pro

blems. The Fathe

r suggests that Massa, a residen

tial real estate

appraiser, was

not qualified to tes

tify to the cost of repairing the home. The Father insists that the trial court instead should have accepted the repair estimate of the Father’s expert, Barry

Stafford, who tes

tified that the hous

e needed over $2

4,000 worth

of structural repairs. The evidence showed that the house needed struct ural r epairs because water had flooded the underside of the house and damaged its foundation.4 Rule 703 contains th e following provisi

ons:
Bases of opinion testimony b y experts.

– The facts or data in the particular
case upon which an expert bases an opinion or inference may be those perceived by
or made known to the expert at or before the hearing. If of a

type reasonably

relied upo n by experts in the particular field in forming opinions or inferencesupon th e subject, the facts or data need not be admissible in evidence. The court shall disallow testimony in the form of an opinion or inference if t he u nderlying facts o

r data indicate lack of

trustworthiness.

Tenn. R. Evid. 703.


### -7- We conclude that

this issue lacks merit. At trial, John Massa testified that he was a certified appraiser of residential real estate. Massa appraised the parties ’ residence at $ 114,000. Massa testified that he appraise

d th e p roperty in an “as is” condition, taking into account the structural problems that were brought to his attention by the Father. Massa deducted a bout $17,500 from the home’s value because he estimated that this amount would be required to rem edy t he home’s structural problems. Massa talked to several different contractors and builders in the area, and he relied on their opinions to arrive at a repair estimate.

On cross-examination , the Father’s counsel asked Massa why he disreg arded Barr

y Stafford’ s repair estimate of over $

24,000. Massa res

ponded by expl

aining that, in his

opinion, the home did not need all o f the repairs inc luded in Stafford’ s estimate. Massa a lso testified that so

me of th e repair costs included in St

afford’s estimate appeared excessive. Although the Father’s counsel attempted to impeachMassa concerning the bases for his repa ir e sti mat e of $ 17, 500 , si gnif ica ntl y, the Father’s counsel raised no objection to the admissibility of Massa’s testimony

. Under evidentiary rule 703, “an

expert witness may base an opinion upon matters that are not of his personal knowledge and that otherwise co

nstitute inadmissible hearsay if those matters are of
a type reasonably relied upon by experts in that field.” State v. Abbott , No. 02C01-9311-CC-00263, 1995 WL 422810, at *4 (Tenn. Crim. App. July 19, 1995), perm. app. denied (Tenn. Dec. 28, 1995) (citing Tenn. R. Evid. 703). 4 In the present case, the Father’s counsel did not challenge Massa’s qualifications to testify as an expert in

the field of appraising residential real estate. Massa testified that, in appraising the parties’ residence, he necessarily relied upon the repair estimates of several contractors and builders in the area. Although

Ma ssa’ s testimony did not explicitly address the requirements

of rule 703, his

testimony sug

gested that the c

ontractors’ and

builders’ repair estimates
were matters of a type reasonably relied upon by experts in his field. Under these circumstances, we reject the Father’s ar

gument that the tr

ial court was req

uired to reject Ma

ssa’s appraisal

just because it was based, in pa

rt, upon informatio

n provided by

area contract

ors and builders.

Had the Father

raised a contemporaneous objection to the admissibility of Massa’s testimony regarding the cost of re pairing the residence, pe rhaps Massa would

have testified mor

e fully regarding the sources of his repair estimate and whether this information constituted matters of a t ype5 We note that, in his closing argument, t he Fath er’s counsel argued that Massa’s estimate was

“pure hearsay.” In light of counsel’s failure to raise a hearsay objection during Massa’s testimony,
we believe that this

argument went to the weight that should be given Massa’s testimony rather than to its admissibility.


### -8- reasonably

relied upon by

experts in his field. In the absence of such an objection, however, we decline to reverse the trial court’s jud gment wherein it adopte d Massa’s apprai

sal of the parties ’ residence. See Abbott, 1995 WL 422810, at *4 (concluding that

trial court did not c

ommit reversible
error inallowing pharma

cist to testify

about therapeuti

c values of spec

ific drugs where pharmacist’s testimony was based

upon information he obtained from doctor and where appellant failed to enter contemporaneous objection to admissibility of testimony). 5
IV. Attorney’s Fe

e Award

We also reject

the Fath er’s con ten tio n th at t he t ria l co urt erre d in ord eri ng hi m to pay a portion of the Mother’s attorney’s fees. On appeal, the Fa ther contends that the trial court’s award of attorney’s fees constituted an award of ali mon y in solido and that, pursuan t to this court’s holding in Alesh ire v. Aleshi

re , 642 S.W.2d 729, 733 (Tenn. Ct. App. 1981), the award was improper because the Father has no cash assets with which to pay the award and b ecaus e al imo ny in solido may not be aw

arded from futur

e earnings.

We believe t

hat the Father’s argument misconstrues this court’s holding in Aleshire . In Aleshire , we held that, as a gen eral rul e, al imo ny in solido should be paid out of the obligor spouse’s present estate and should not be awarded out of an expectation of the obligor’s future earnings. See Aleshire , 642 S.W.2d at 733. Contrary to the Father’s suggestion, however, Aleshire does not stand for the proposition tha

t a limon y in solido must be paid out of the obligor spouse’s “cash assets.” Rather, Aleshire

refers to the obligor’s “present estate.” See id . For purposes of paying an award of ali mon y in solido , the obligor spou se’s prese nt e sta te m ay include the obligor’s share of the marital property, the obligor ’s separate p roperty, and any equity therein. See Coke v. Coke , No. 02A01-9210-CV-00279, 1993 WL 477016, at *4 (Tenn. Ct. App. Nov. 15, 1993) ( no perm. app. filed ).
Moreover, even if the obligor spouse has no “present estate,” Aleshire does notprohibit the trial court from awarding alimony in solido . In Aleshire , we explained that extreme circumstances could ari se w here the tri al c our t mi ght f ind it n eces sar y to r equ ire the obl igor to p ay al imo ny in solido from future earnings. See Aleshire , 642 S.W.2d at 733. As examples, we cited two possible scenarios, including the situ

ation where “a s

pouse intentionally disposed of his or her tang

ible assets inorder to

dep riv e th e ot her s pou se o f al imo ny in solido ” and the situation where “a spouse entered into the marriage solely to have his or her spouse work and provide him or her with an education.” Id

. In subsequent decisions, we have recognized additional situat ion s, such as where the obligor spousereceived the be

nefit of certain

bank lo ans wh ich later were discharged in bankruptcy, see Marler v. Marler , 1986 WL 1146, at *2 (Tenn. Ct. App. Jan. 28, 1986) ( no perm. app. filed ), where the obligor spouse

disposed of marital assets without informing the other spouse, see Houghland v.

### -9-

Houghland

, 844 S.W.2d 619, 622-23(Tenn. Ct. App. 199 2), and where the

recip ient spouse incurred debts to educate herself so that she could become self-supporting, see Da y v . Day , 931 S.W.2d 936, 939 (Tenn. Ct. App. 1996). Even if the Father has no present estate from

whi ch t o pa y ali mon y in solido , we conclude that circumstances e

xist in this case which

support the trial c

ourt’s award of

attorney’ s fees. At

trial, the Father’s counsel conceded that many of the problems that th

e attorney s in this case “had to deal with were cause

d by [the Fath

er’s] behavior.” The Father’s counsel also conceded that the Father “probably should be responsible for some, but not all, of [the Mother’s] attorney fees.” Under these circumstances,

we conclude that the trial court did not err i n or deri ng th e Fat her t o pa y a portion of the Mother’s attor

ney’s fee s.

Inany event,

regardless of

the propriety

of an award of attorney’s fees as ali mon y in solido , we conclude that the trial cou rt w as au tho riz ed b y sta tut e to ord er t he Fa the r to pay a portion of the Mother’s attorney’s fees. See Beem v. Beem , No. 02A01-9511-CV-00252, 1996 WL 636491, at *8- *9 (Tenn. Ct. App. Nov. 5, 1996) ( no p erm. app. fil ed ). Tennessee Code Annotated section 36-5-103(c) provides that

[t]he plaintiff

spouse may recover from the defendant spouse, and the spouse
or other person to whom the custody of the child, or children, is awarded may

recover fromthe other spouse r

easonable attorney fees

incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudicationof the custody or the change of custody

of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be

fixed and allowed by the court, before whom such action or proceeding is pending, in the

discretion of the

court. Tenn. Code Ann. § 36-5-103(c) (Supp. 1999). As indicated by its language, section 36-5-103(c) a uthorizes an award of

attorney’s

fees in custody proceedings “both upon the original divorce hearing and at any subsequent hearing.” Id

. Inawarding attorney’s fees pursuant to section 36-5

- 103(c), the trial court may consider proof of inability to pay, but “

ability to pay should not be the controlling consideration.” Sherrod v. Wix , 849 S.W.2d 780, 785 (Tenn. Ct. App. 1992). Such awards are de signed “not primarily for the benefit of the custodial parent but rather to facilitate a child’s access to the courts.” Id . at 784.

Inthe present case, t

he pr imary issue litigated by the parties wa s the custody of the minor child. Inasmuch as the trial court’s final judgment awarded custody of the child to the Mother, we conclude tha t th e tr ial cou rt p oss ess ed t he au tho rit y t o order the Father to pay a portion of the Mother’s attorney’ s fees incurred below. We further

conclude that t

he Mother ’s request for an additional awar d of

att orn ey’s fees on a ppe al h as m eri t. A ccor din gly, we remand this ca use to the trial court to determine

and award a rea

sonable fee for

the time and expense

s of the Mo ther’ s

### -10-

attorney on appeal. See Holt v. Holt , 995 S.W.2d 68, 78 (Te

nn. 1999); D v. K

, 917 S.W.2d 682, 687 (Tenn. Ct. App. 199 5); Akins v. Akins , 805 S.W.2d 377, 379-80 (Tenn. Ct. App. 1990).

The trial court’s judg

ment is affirmed,

and th is cause is remande d for the trial cou

rt to conduct a hearing

to determine the Mo

ther’s reasona

ble attorney’ s fees incurred on appeal. Costs of this appeal are taxed to the appellant, Kenneth Herbert Abernathy, for which execution may issue if n eces sar y.