IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

ASSIGNED ON BRIEFS MAY 4, 2012

LINDA HAUN SCARBROUGH v. GARY LYNN SCARBROUGH

Direct Appeal from the Chancery Court for Meigs County

No. 4351 Jayne Crowley, Chancellor

No. E2011-01854-COA-R3-CV-FILED-JUNE 4, 2012

Wife appeals the trial court’s classification of property and its division of marital property

following the parties’ divorce. She also argues that Husband failed to demonstrate his need

for spousal support and that the award exceeds Husband’s actual need. We affirm the

decision of the chancery court. We find it appropriate to award Husband his attorney fees

incurred on appeal, and we remand to the trial court for a determination of such fees

reasonably incurred.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

and Remanded

ALAN E.HIGHERS,P.J.,W.S., delivered the opinion of the Court, in which DAVID R. FARMER,

J., and HOLLY M. KIRBY, J., joined.

Felisha B. White, Seymour, Tennessee, for the appellant, Linda Haun Scarbrough

D. Mitchell Bryant, Athens, Tennessee, for the appellee, Gary Lynn Scarbrough
OPINION

I. FACTS & PROCEDURAL HISTORY

Gary Lynn Scarbrough (“Husband”) and Linda Haun Scarbrough (“Wife”) married

in Tennessee in 1985. A few years later, the couple moved to Florida where Husband

eventually began working as a police officer. Approximately five to six years after Husband

began working at the police department, Wife also became employed as a police officer

there. In 1996, after five years on the job, Wife was involved in a work-related vehicle

accident, which left her both physically and psychologically unable to continue working. As

a result, Wife began receiving a pension as well as worker’s compensation and care taking

“attendant care benefits.” Husband soon retired in order to care for Wife.

In 1998, the couple returned to Tennessee. In June 2010 fifty-nine year old Wife

petitioned the Meigs County Chancery Court for a divorce from sixty-one year old Husband.

Husband filed an Answer and Counter-Complaint seeking spousal support based upon an

alleged disparity between the parties’ incomes.

Following a divorce trial in June 2011, the trial court declared the parties divorced and

it divided their assets, as set forth in a June 17, 2011 Memorandum Opinion. In its

Memorandum Opinion, the trial court noted the long-term length of the marriage, the parties’

similar ages, and the unlikelihood that either party would return to work due to poor health.

The trial court found that “[e]ach party receives comparable pension and Social Security

income monthly[,]” but that Wife also receives additional monthly income: $1,830.00

worker’s compensation and $3,640.00 to be used for attendant care. Moreover, the trial court

found that “[b]oth parties made the choice, during the marriage, to have husband leave his

employment with a police department in order to provide attendant care for wife after her

automobile accident. By doing so husband lost the potential of greater pension and Social

Security benefits.”

The court then made the following awards: to Husband, $335.00 separate property

and $45,080.00 marital property; to Wife, $2,010.00 separate property and $7,010.00 marital

property. Additionally, noting “husband’s demonstrated need, [and] wife’s current ability

to pay,” the trial court awarded Husband transitionalspousalsupport of $1,000.00 per month,

for sixty months. The trial court awarded each party his own pension and it allowed Wife

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to retain $60,180.00 in worker’s compensation benefits she received during the parties’

separation–from July 1, 2010 through May 31, 2011.

On July 6, 2011, a stay was entered from the $1,000.00 per month spousal support payment. 

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Wife filed a “Motion to Alter or Amend Judgment and/or for Relief from Judgment

or in the Alternative, for a New Trial” challenging the trial court’s division of the marital

estate and its award of spousal support–both the amount and duration. Following a hearing,

the trial court entered an Order, on July 22, 2011, overruling Wife’s motion for a new trial,

but reducing Husband’s spousal support award from $1,000 per month to $700.00 per

month. Wife timely appealed to this Court.

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II. ISSUES PRESENTED

Wife presents the following issues for review, as summarized:

1. Whether the trial court erred in classifying Wife’s $60,180.00 worker’s compensation

benefits as marital property subject to equitable division;

2. Whether the trial court erred in dividing the marital estate; and

3. Whether the trial court erred in awarding spousal support to Husband.

Additionally, Husband presents the following issue:

4. Whether Husband should be awarded his attorney fees on appeal.

For the following reasons, we affirm the decision of the trial court. We find it appropriate

to award Husband his attorney fees incurred on appeal, and we remand to the trial court for

a determination of such fees reasonably incurred.

III. DISCUSSION

A. Classification of Property

On appeal, Wife argues that the trial court erred in classifying as marital property all

of the $60,180.00 she received during the parties’ separation. According to Wife, this sum

included worker’s compensation benefits, attendant care benefits, pension payments, and

Social Security payments. Wife argues that because she received the worker’s compensation

benefits in monthly installments, as opposed to in a lump sump, only the money she has not

The previous stay regarding spousal support was extended pursuant to the trial court’sJuly 22, 2011 2

Order. 

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yet spent–$7,000.00–may be classified as marital property. However, she further argues that

the remaining $7,000.00 includes payments from her pension and from Social Security,

which she argues, should be subtracted. Additionally, she contends that some portion of the

$60,180.00 sum included attendant care benefits, which she argues are not properly classified

as marital property.

“Questions regarding the classification of property as either marital or separate . . . are

inherently factual.” Owens v. Owens, 241 S.W.3d 478, 485 (Tenn. Ct. App. 2007) (citing

Current v. Current, No. M2004-02678-COA-R3-CV, 2006 WL 656791, at *1 (Tenn. Ct.

App. Mar. 15, 2006); Bilyeu v. Bilyeu, 196 S.W.3d 131, 135 (Tenn. Ct. App. 2005), perm.

app. denied (Tenn. June 12, 2006); 19 W. Walton Garrett, Tennessee Practice: Tennessee

Divorce, Alimony and Child Custody § 15:3, at 324 (rev. ed.2004)). Therefore, we review

the trial court's classification of property with a presumption of correctness and will not

overturn those factual findings unless the evidence preponderates against them. See Owens,

241 S.W.3d at 485; Tenn. R. App. P. 13(d) (2011).

1. Classification of Worker’s Compensation Benefits

“As a general rule, assets acquired by either spouse during the marriage are presumed

to be marital property.” Owens, 241 S.W.3d at 485 (citations omitted). A party attempting

to classify as separate property an asset acquired during the marriage bears the burden of

proof by a preponderance of the evidence. Id. at 485-86 (citing Goulet v. Heede, No. E2000-

02535-COA-R3-CV, 2002 WL 126279, at *5 (Tenn. Ct. App. Jan. 31, 2002); Dunlap v.

Dunlap, 996 S.W.2d 803, 814 (Tenn. Ct. App. 1998)).

As relevant to this appeal, the term “marital property” “means all real and personal

property, both tangible and intangible, acquired by either or both spouses during the course

of the marriage up to the date of the final divorce hearing and owned by either or both

spouses as of the date of filing of a complaint for divorce . . . and including any property to

which a right was acquired up to the date of the final divorce hearing[.]” Tenn. Code Ann.

§ 36-4-121(b)(1)(A). “Marital property” “includes recovery in . . . worker’s compensation

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. . . for . . . wages lost during the marriage[.]” Tenn. Code Ann. § 36-4-121(b)(1)(C).

“Separate property” includes “[p]roperty acquired by a spouse after an order of legal separation 3

where the court has made a final disposition of property.” Tenn. Code Ann. 36-4-121(b)(2)(F). Wife does

not argue, and we find no indication that, this statutory provision is applicable to the instant case. 

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a. Attendant Care Benefits

Wife apparently does not dispute that the attendant care benefits are a type of worker’s

compensation recovery. But, she seems to argue that even though they are a type of worker’s

compensation, the attendant care benefits are not “marital property” because they do not

represent lost income, but instead are paid to provide Wife with 24-hour care. However, the

evidence at trial indicated that Husband retired from his position with the police department

in order to provide such care for Wife, and that the attendant care benefits were based upon

the income Husband lost to do so.

In her brief to this Court, Wife argues that “If the court is going to consider [the

attendant care] money as income to [Wife], it would also have to consider the expense of

paying someone for twenty-four (24) hour care.” While Wife’s argument is logical, the

evidence does not demonstrate that Wife actually expends such money toward care. Wife

testified that she gives the attendant care money to her son, with whom she lives, because he

“takes [her] everywhere [she] need[s] to go.” Wife acknowledged her son has no specialized

medical training and that she is able to walk, to groom herself, to fix light meals, to drive a

vehicle “for short periods[,]” and to garden and paint. Wife does not suggest, nor does the

evidence indicate, that Wife’s son has foregone other employment to care for Wife.

Moreover, the attendant care checks are payable to Wife and nothing has been done to name

Wife’s son as her attendant care provider. Based upon the foregoing, we find that the

evidence does not preponderate against the trial court’s classification of the attendant care

benefits paid during the parties’ separation as marital property subject to equitable division,

and we further find that the trial court was not required to offset Wife’s alleged care

expenses.

b. Monthly Worker’s Compensation Payments

In her brief to this Court, Wife claims that “[t]he court cannot divide property that is

not owned by the parties, or in possession of one or both of the parties, at the time of the

divorce.” Thus, Wife argues that because Wife allegedly expended all but a small portion

of the monthly worker’s compensation benefits she received during the parties’ separation,

only the portion not yet expended may be classified as marital property. As support for this

argument, Wife briefly cites the case of Brock v. Brock, 941 S.W.2d 896, 900 (Tenn. Ct.

App. 1996). Brock states the general principle that “property once owned by a spouse, either

as separate property or marital property, but not owned by either spouse at the time of

divorce, is not subject to classification and division or distribution when the divorce is

pronounced.” 941 S.W.2d at 900 (footnote omitted). However, Brock involved a party

seeking to carve out separate property from the marital estate to compensate for assets owned

prior to the marriage, but no longer owned at the time of the divorce. Id. at 901. It did not

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involve worker’s compensation benefits paid and spent during the pendency of a divorce.

We reject Wife’s assertion that the trial court could not credit to her, as marital

property, worker’s compensation benefits received and spent by her during the parties’

separation. The statutory definition of “marital property” does not compel the limitation that

Wife suggests. Again, “marital property” is statutorily defined to include

all real and personal property, both tangible and intangible, acquired by either

or both spouses during the course of the marriage up to the date of the final

divorce hearing and owned by either or both spouses as of the date of filing of

a complaint for divorce . . . and including any property to which a right was

acquired up to the date of the final divorce hearing[.]

Tenn. Code Ann. § 36-4-121(b)(1)(A) (emphasis added). As our Supreme Court has

explained, the statute is properly interpreted to classify as marital property “all property

owned as of the date of filing of the complaint for divorce or acquired up to the date of the

final divorce hearing.” Larsen-Ball v. Ball, 301 S.W.3d 228, 233 (Tenn. 2010) (emphasis

added); see also id. (noting the General Assembly’s intent to permit parties to acquire marital

property as late as the date of the final divorce hearing). Here, Wife clearly acquired the

right to receive worker’s compensation benefits prior to the final divorce hearing and she,

in fact, received the benefits at issue during the pendency of the divorce. Wife may not

simply convert the worker’s compensation benefits paid into her own separate property by

expending such benefits prior to the final divorce hearing.

2. Classification of a Portion of Pension and Social Security Benefits as Marital

Property

With regard to property classification, Wife finally argues that the trial court erred in

failing to deduct from the $60,180.00 figure, her pension and Social Security benefits

allegedly included therein. Consistent with Wife’s Affidavit of Monthly Income and

Expenses, the trial court found that Wife receives $1,830.94 per month in worker’s

compensation benefits. Regarding attendant care benefits, Husband submitted a document

to the trial court claiming that Wife receives $3,640.00 per month in attendant care benefits,

but Wife testified at trial that she receives monthly attendant care benefits of only $3,360.00.

In its Memorandum Opinion, the trial court found, consistent with Husband’s assertion, that

Wife receives $3,640.00 per month in attendant care benefits. However, the check stubs,

which are included in the record before us, indicate that this finding was in error. The check

stubs reveal that Wife receives the lesser of the two sums asserted: $1,680.00 bi-weekly or

$3,360.00 per month.

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Together, Wife receives $5,190.94 per month in worker’s compensation and attendant

care benefits. This monthly amount multiplied by the eleven-month separation period from

July 1, 2010 through May 31, 2011, totals $57,100.34 in worker’s compensation and

attendant care benefits–a difference of $3,079.66 as compared to the trial court’s calculation.

We address the effect of such error, if any, below.

B. Division of Marital Property

Having considered Wife’s contentions regarding classification, we now address

whether the trial court erred in dividing the marital property. After a trial court classifies and

values property, “the trial court’s goal is to divide the marital property in an essentially

equitable manner.” Owens, 241 S.W.3d at 489-90 (citing Tenn. Code Ann. § 36-4-121(a)(1);

Miller v. Miller, 81 S.W.3d 771, 775 (Tenn. Ct. App. 2001)). However, “equitable” does not

necessarily mean “equal.” See id. at 490 (citing Robertson v. Robertson, 76 S.W.3d 337, 341

(Tenn. 2002); Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn. 1996)).

In dividing a marital estate, the trial court should not act mechanically, but instead it

should carefully weigh the relevant factors set forth in Tennessee Code Annotated section

36-4-121(c). Once property is classified as marital property, we must give “great weight”

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In equitably dividing marital property, the trial court is to consider “all relevant factors” including: 4

(1) The duration of the marriage;

(2) The age, physical and mental health, vocational skills, employability, earning capacity,

estate, financial liabilities and financial needs of each of the parties;

(3) The tangible or intangible contribution by one (1) party to the education, training or

increased earning power of the other party;

(4) The relative ability of each party for future acquisitions of capital assets and income;

(5)(A) The contribution of each party to the acquisition, preservation, appreciation,

depreciation or dissipation of the marital or separate property, including th contribution of

a party to the marriage as homemaker, wage earner or parent, with the contribution of a

party as homemaker or wage earner to be given the same weigh if each party has fulfilled

its role;

(B) For purposes of this subdivision (c)(5), dissipation of assets means wasteful

expenditures which reduce the marital property available for equitable distributions and

which are made for a purpose contrary to the marriage either before or after a complaint for

divorce or legal separation has been filed.

(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 circumstances of each party at the time of the division of property is to

become effective;

(continued...)

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to the trial court’s division of such jointly-owned property, and we will presume the

correctness of the division unless the preponderance of the evidence is otherwise. Barnhill

v. Barnhill, 826 S.W.2d 443, 449-50 (Tenn. Ct. App. 1991) (citations omitted). “‘We are

disinclined to disturb the trial court’s [division of marital assets] unless the distribution lacks

proper evidentiary support or results in some error of law or misapplication of statutory

requirements and procedures.’” Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007) (quoting

Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996)). “[I]t is not our role to

tweak the manner in which a trial court has divided the marital property.” Owens, 241

S.W.3d at 490 (citing Morton v. Morton, 182 S.W.3d 821, 834 (Tenn. Ct. App. 2005)).

Instead, we are to determine whether the trial court utilized the appropriate legal standards,

whether it employed logic and reason in weighing the appropriate factors, and whether its

ultimate division is equitable. Id. (citing Jolly v. Jolly, 130 S.W.3d 783, 785-86 (Tenn.

2004); Gratton v. Gratton, No. M2005-01964-COA-R3-CV, 2006 WL 794883, at *7 (Tenn.

Ct. App. Mar. 28, 2006); Kinard v. Kinard, 986 S.W.2d 220, 231 (Tenn. Ct. App. 1998)).

Again, the trial court expressly awarded Husband $45,080.00 in marital property and

it awarded Wife $7,010.00 in marital property. Wife contends that this division was

inequitable because she alleges, as compared to her, Husband has less monthly expenses,

Husband has more disposable income, and Husband has a “more valuable separate estate[.]”

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However, in so arguing, Wife overlooks the additional $57,100.34 in marital property

awarded to her by the trial court.

As stated above, in its Memorandum Opinion, the trial court noted its consideration

of many of the applicable statutory factors, including: the duration of the marriage; the

(...continued) 4

(9) The tax consequences to each party, costs associated with the reasonably foreseeable

sale of the asset, and other reasonably foreseeable expenses associated with the asset;

(10) The amount of social security benefits available to each spouse; and

(11) Such other factors as are necessary to consider the equities between the parties.

Tenn. Code Ann. § 36-4-121(c). 

Wife contends that “[Husband’s] mother recently passed away, leaving to [Husband] and his 5

brothers the home where [Husband] is currently residing.” However, at trial, Husband testified that he will

be required to split his Mother’s estate, which includes “[a] little bit of furniture” and a small house for

which his mother paid $40,000, with his four brothers. He further testified that the Estate owes

approximately $8,000.00 in funeral expenses. Wife has failed to produce specific evidence regarding her

claim as to the value of Husband’s interest in his mother’s estate. However, it appears that such interest is

insubstantial, and at any rate, that it is comparable to Wife’s separate property valued at $2,010.00. 

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parties’ ages, physical and mental health; the parties’ employability and ability for future

income; the parties’ income, expenses, and separate property; and the negative effect of

Husband’s early retirement to care for Wife on his pension and Social Security benefits.

According to his “Income and Expense Statement,” each month Husband receives a

$775.00 pension and $900.00 in Social Security income, for a total income of $1,675.00.

Husband’s expenses, which the trial court found reasonable, total $2,229.00. When

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Husband’s spousal support of $700.00 per month is added, Husband’s income totals

$2,375.00, leaving a surplus of $146.00. In contrast, Wife’s monthly income from her

pension, Social Security, worker’s compensation, and attendant care benefits totals

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$6,656.85. Her monthly expenses, including the $700.00 spousal support to Husband, total

$3,047.75, leaving a monthly surplus of $3,609.10. We simply find no support for Wife’s

argument that the trial court erred, to her detriment, in dividing the parties’ marital property.

C. Spousal Support

Next, we address Wife’s claims of error regarding the $700.00 per month transitional

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spousal support award to Husband. Specifically, Wife argues that Husband failed to

demonstrate his need for the award, and that the award exceeds Husband’s actual need. We

review the trial court’s award of spousal support under the abuse of discretion standard. Tait

v. Tait, 207 S.W.3d 270, 275 (Tenn. Ct. App. 2006) (citing Herrera, 944 S.W.2d at 385).

Under this standard, we will uphold the trial court’s determination, irrespective of our

inclination to decide the issue differently, so long as the trial court’s decision is within the

range of acceptable alternatives. See id. (citing White v. Vanderbilt Univ., 21 S.W.3d 215,

223 (Tenn. Ct. App. 1999)).

In considering an award of spousal support, the trial court is to consider a number of

factors:

(1) The relative earning capacity, obligations, needs, and financial resources

This amount does not include the $500.00 “anticipated” rent expense, as Husband testified that he 6

is not currently paying rent. 

As explained above, the attendant care checks are payable to Wife, and the evidence supports their 7

classification as income to Wife. 

The trial court initially awarded Husband $1,000.00 per month, but the amount was later reduced 8

to $700.00 per month.

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of each party, including income from pension, profit sharing or retirement

plans and all other sources;

(2) The relative education and training of each party, the ability and

opportunity of each party to secure such education and training, and the

necessity of a party to secure further education and training to improve such

party’s earnings capacity to a reasonable level;

(3) The duration of the marriage;

(4) The age and mental condition of each party;

(5) The physical condition of each party, including, but no limited to, physical

disability or incapacity due to a chronic debilitating disease;

(6) The extent to which it would be undesirable for a party to seek employment

outside the home, because such party will be custodian of a minor child of the

marriage;

(7) The separate assets of each party, both real and personal, tangible and

intangible;

(8) The provisions made with regard to the marital property, as defined in §

36-4-121;

(9) The standard of living of the parties established during the marriage;

(10) The extent to which each party has made such tangible and intangible

contributions to the marriage as monetary and homemaker contributions, and

tangible and intangible contributions by a party to the education, training or

increased earning power of the other party;

(11) The relative fault of the parties, in cases where the court, in its discretion,

deems it appropriate to do so; and

(12) Such other factors, including the tax consequences to each party, as are

necessary to consider the equities between the parties.

Tenn. Code Ann. § 36-5-121(i). Although all relevant factors must be considered, the two

most important factors are the disadvantaged spouse’s need and the obligor spouse’s ability

to pay. Gonsewski v. Gonsewski, 350 S.W.3d 99, 110 (Tenn. 2011) (citing Riggs v. Riggs,

250 S.W.3d 453, 457 (Tenn. Ct. App. 2007).

As stated above, the trial court initially awarded Husband $1,000.00 per month in

transitional spousal support, but following a hearing on Wife’s “Motion to Alter or Amend

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Judgment and/or for Relief from Judgment or in the Alternative, for a New Trial,” it reduced

the award to $700.00 per month. The support reduction was based upon Husband’s inclusion

of a $500.00 per month rental payment in his Income and Expense Statement, which he

acknowledged that he was not currently paying due to his ability to reside rent-free in his

mother’s home following her death. On appeal, Wife argues that because Husband’s

expenses decreased by $500.00, the spousal support necessarily should have been reduced

by $500.00–not merely by $300.00. Wife also argues that Husband should not have been

allowed to include a $250.00 per month attorney fee expense in his Income and Expense

Statement, because she contends, Husband failed to submit an affidavit verifying the total

amount of attorney fees owed, so as to demonstrate that the expense would not terminate

prior to the sixty-month support period.

At the trial of this matter, Husband testified that following his mother’s recent death,

his four brothers allowed him to begin living in her home rent-free in exchange for his

upkeep and maintenance of the home, as well as for his $50.00 per month payment towards

his mother’s funeral expenses. However, Husband “ha[d] no idea how long” he would be

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able to continue living there, as he stated that “It just depends on if one of [his four brothers]

decides he wants his money out of it.”

In its Memorandum Opinion, the trial court found the expenses listed by the parties

to be “reasonable[,]” and such expenses included Husband’s $250.00 per month attorney fee

payment. Additionally, Husband’s Income and Expense Statement, which included the

attorney fee payment, contained a “Verification” by Husband, under oath, of the Statement’s

accuracy. We find no basis for overturning the trial court’s determination with regard to the

reasonableness of Husband’s attorney fee expense. Moreover, Wife has cited no authority,

nor have we found any, requiring the trial court’s spousal support reduction to directly

correspond to the $500.00 amount not presently owed. Considering the potential temporary

nature of Husband’s living arrangement, his funeral expense obligation, and his monthly

surplus of only $146.00 even with the $700.00 spousal support, we find no abuse of

discretion by the trial court in its mere $300.00 per month reduction of Husband’s spousal

support.

D. Attorney Fees

The funeral expense statement was not included on Husband’s Income and Expense Statement.

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Finally, we address Husband’s request for attorney fees on appeal. In divorce cases,

this Court may award appellate attorney fees to an economically disadvantaged prevailing

party. Boggs v. Boggs, No. M2006-00810-COA-R3-CV, 2007 WL 2353156, at *6 (Tenn.

Ct. App. Aug. 17, 2007).

In appropriate circumstances, appellate courts may award prevailing parties

their legal expenses incurred on appeal. These awards are generally withheld

when both parties have been at least partially successful. Smith v. Smith, 984

S.W.2d 606, 610 (Tenn. Ct. App. 1997); Young v. Young, 971 S.W.2d 386, 393

(Tenn. Ct. App. 1997). Decisions regarding a request for attorney’s fees on

appeal in a divorce case should be made using the same factors in Tenn. Code

Ann. § 36-5-101[i] used to determine whether a spouse should receive an

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award for legal expenses incurred in the trial court. Kincaid v. Kincaid, 912

S.W.2d [140, 144 (Tenn. Ct. App. 1995)]. These awards should be viewed as

spousal support. Smith v. Smith, 912 S.W.2d 155, 161 (Tenn. Ct. App. 1995);

Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn. Ct. App. 1988). Thus, parties

may be entitled to an additional award for their legal expenses if they

demonstrate that they lack sufficient funds to pay their legal expenses or that

they would be required to deplete other needed assets to do so. Brown v.

Brown, 913 S.W.2d [163, 170 (Tenn. Ct. App. 1994)]; Kincaid, [] 912 S.W.2d

at 144.

Id. (quoting Fox v. Fox, No. M2004-02616-COA-R3-CV, 2006 WL 2535407, at *11 (Tenn.

Ct. App. Sept. 1, 2006)).

Husband suggests on appeal that he lackssufficient funds to pay his appellate attorney

fees, and the record reflects his economic disadvantage in comparison to Wife. Although

both parties are similarly situated with regard to their monthly expenses and their inability

to work, Wife’s collective worker’s compensation benefits afford her significantly more

income than Husband. Again, Husband is subsisting with only a $146.00 monthly surplus.

Accordingly, we find it appropriate, based upon Husband’s success on appeal, Husband’s

need, and Wife’s ability to pay, to award Husband his attorney fees on appeal.

The factors were previously listed in section 36-5-121(d)(1). 10

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IV. CONCLUSION

For the aforementioned reasons, we affirm the decision of the chancery court. We

find it appropriate to award Husband his attorney fees incurred on appeal, and we remand to

the trial court for a determination of such fees reasonably incurred. Costs on appeal are taxed

to the appellant, Linda Haun Scarbrough, and her surety for which execution may issue, if

necessary.

_________________________________

ALAN E. HIGHERS, P.J., W.S.

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