IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 25, 2012 Session

JANET CHARLENE HOOBERRY v. RONALD SCOTT HOOBERRY

Appeal from the Chancery Court for Humphreys County

No. 2007-CV-205 George C. Sexton, Judge

No. M2011-01482-COA-R3-CV - Filed June 20, 2012

Wife filed a complaint against Husband seeking a legal separation or, in the alternative, an

absolute divorce. Husband counter-claimed for a divorce. Both Wife and Husband alleged

the other had engaged in marital misconduct. The trial court awarded Wife a legal separation

for two years, ordered Husband to pay Wife $1,500 per month as alimony during that period,

and divided the marital estate between the parties. The trial court refused Wife’s request for

attorney’s fees. Wife appealed, claiming the trial court erred by failing to award her alimony

in futuro, a larger portion of the marital estate, and her attorney’s fees. We affirm the trial

court’s judgment in all respects. First, the statute addressing legal separation directs the trial

court to make a final and complete adjudication of the parties’ support rights following the

parties’ legal separation when the court awards the parties an absolute divorce. Thus, Wife’s

request for alimony in futuro is premature. Second, Wife failed to show the court’s division

of marital property was inconsistent with the factors set forth in Tenn. Code Ann. § 36-4-

121(c) or was not supported by a preponderance of the evidence. Third, Wife failed to

establish that the trial court abused its discretion in denying her request for attorney’s fees.

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

BEN H. CANTRELL, SR. J., delivered the opinion of the Court, in which FRANK G. CLEMENT,

JR., and RICHARD H. DINKINS, JJ., joined.

Clifford K. McGown, Jr., Waverly, Tennessee, for the appellant, Janet Charlene Hooberry.

Douglas Thompson Bates, III, Centerville, Tennessee, for the appellee, Ronald Scott

Hooberry.
OPINION

I. BACKGROUND

The parties in this case were married for approximately eight and a half years when

Janet Charlene Hooberry (“Wife”) filed a Complaint for Legal Separation/Divorce. The

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parties did not have any children together. As grounds for her complaint, Wife alleged

Ronald Scott Hooberry (“Husband”) had engaged in inappropriate marital conduct and the

parties had developed irreconcilable differences. Wife suffers from multiple sclerosis and

requested, in addition to an award of alimony and attorney’s fees, that Husband be required

to maintain medical insurance for her on both a temporary and permanent basis.

Husband filed an Answer and Counter-Complaint in which he denied Wife’s

allegations of inappropriate marital conduct. Husband admitted Wife suffers from multiple

sclerosis and is unable to work, but he alleged Wife should not be awarded alimony due to

the short duration of the marriage. As Counter-Plaintiff, Husband alleged Wife was guilty

of inappropriate marital conduct and asked the court to grant him a divorce. Wife answered

Husband’s counter-claim, denying she had engaged in any wrongful conduct and asking the

court to dismiss Husband’s counter-claim.

Eleven months after Wife filed her Complaint For Legal Separation/Divorce, the

parties attempted a reconciliation to try to make their marriage work, and the trial court

entered an Order of Reconciliation. The attempt at reconciliation was unsuccessful,

however, and on March 30, 2009, Husband asked the court to recommence the divorce

proceedings.

The parties tried their case on October 29, 2010. Wife was fifty-two years old at the

time of trial, and Husband was forty-eight years old. Wife’s testimony was uncontroverted

that she suffers from multiple sclerosis and epilepsy, and she testified that she is unable to

work or obtain medical insurance. Wife also testified she does not qualify for social security

disability insurance. Wife submitted as an exhibit a list of her monthly expenses that totaled

$2,498. Wife testified that she was seeking a legal separation rather than a divorce so that

she could continue to receive medical coverage through Husband’s employer.

Husband testified he wanted a divorce rather than a legal separation because the

parties had already tried to make the marriage work, to no avail. He acknowledged Wife’s

health issues and did not contest Wife’s testimony that she was unable to work or to obtain

The parties were married in April 1999 in Tennessee, but due to a failure to file the marriage 1

certificate properly, they remarried the following year in Florida.

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medical insurance due to her preexisting conditions. Husband confirmed Wife’s testimony

that Wife would not be eligible for medical insurance under his employer’s policy once the

parties were divorced.

II. TRIAL COURT’S JUDGMENT

The trial court issued its Final Order on November 29, 2010. The court stated the

following, inter alia:

1. Each party is entitled to a divorce pursuant to T.C.A., Sec. 36-4-129;

however the Court decrees as follows:

A. The parties are declared to be legally separated for a period of

two years and during this period HUSBAND shall pay to WIFE

the sum of ONE THOUSAND, FIVE HUNDRED AND

NO/100 ($1,500) DOLLARS per month as alimony. Each

payment shall be mailed or delivered by the 15th of each month.

B. During the parties’ legal separation, HUSBAND will be

required to provide medical insurance coverage for WIFE.

. . . . .

8. Remaining court costs shall be split equally and each party shall pay

their own attorney’s fee.

Wife filed a motion for a new trial or for the court to alter or amend its judgment,

which the court denied. This appeal followed. Wife argues on appeal that the trial court

erred in failing to award her alimony in futuro, in light of her multiple sclerosis, and in failing

to award her attorney’s fees. She also contests the court’s division of marital property.

III. LEGAL SEPARATION

Although neither Husband nor Wife addressed the effect of the trial court’s

declaration that the parties were to be legally separated for two years, we find that was an

important aspect of the court’s order and explains why the trial court did not address

Husband’s obligation for alimony or other support following the two-year legal separation

period.

Tennessee Code Annotated has a section entitled “Legal Separation,” which provides

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as follows:

(a) A party who alleges grounds for divorce from the bonds of matrimony may,

as an alternative to filing a complaint for divorce, file a complaint for legal

separation. Such complaint shall set forth the grounds for legal separation in

substantially the language of § 36-4-101 and pray only for legal separation or

for such other and further relief to which complainant may think to be entitled.

The other party may deny the existence of grounds for divorce but, unless the

other party specifically objects to the granting of an order of legal separation,

the court shall declare the parties to be legally separated.

(b) If the other party specifically objects to legal separation, the court may,

after a hearing, grant an order of legal separation, notwithstanding such

objections if grounds are established pursuant to § 36-4-101. The court also

has the power to grant an absolute divorce to either party where there has been

an order of legal separation for more than two (2) years upon a petition being

filed by either party that sets forth the original order for legal separation and

that the parties have not become reconciled. The court granting the divorce

shall make a final and complete adjudication of the support and property

rights of the parties. However, nothing in this subsection (b) shall preclude

the court from granting an absolute divorce before the two-year period has

expired.

(c) Legal separation shall not affect the bonds of matrimony but shall permit

the parties to cease matrimonial cohabitation. The court may provide for

matters such as child custody, visitation, support and property issues

during legal separation upon motion by either party or by agreement of

the parties.

(d) Notwithstanding this section, a party who can establish grounds for divorce

from the bonds of matrimony pursuant to § 36-4-101 shall be entitled to an

absolute divorce pursuant to the provisions of this chapter.

Tenn. Code Ann. § 36-4-102 (2010) (emphasis added).

Once Wife and Husband have been legally separated for two years, either party may

petition the court for an absolute divorce to be granted to Wife or for the parties to be

declared divorced. Tenn. Code Ann. §§36-4-101(a)(15), 36-4-102(b), and 36-4-129(b)

(2010); see Abney v. Abney, 433 S.W.2d 847, 849-50 (Tenn. 1968) (once parties are legally

separated, absolute divorce may be granted only to party who obtained legal separation); Hill

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v. Hill, 2008 WL 1822453, at *6 (Tenn. Ct. App. Apr. 23, 2008) (where appeals court

determined trial court improperly ordered the partieslegally separated, appeals court declared

parties divorced pursuant to §36-4-129(b) because wife sought legal separation rather than

divorce and husband engaged in inappropriate marital conduct); Teague v. Teague, 2007 WL

1574291, at *4 (Tenn. Ct. App. May 31, 2007) (although either husband or wife may seek

divorce pursuant to express terms of §36-4-102(b), divorce may only be granted to party who

obtained legal separation).

The trial court ordered the parties to be legally separated for two years. Neither

Husband nor Wife has appealed this portion of the trial court’s order. Moreover, neither

Husband nor Wife has challenged the monthly order of support the trial court ordered

Husband to make to Wife throughout the parties’ separation. After the parties are separated

for two years, section 36-4-102(b) provides them an opportunity to seek an absolute divorce.

See Joiner v. Joiner, 1998 WL 426887, at *2 (Tenn. Ct. App. July 29, 1998) (statute as well

as case law require a party to petition the court for absolute divorce once parties are declared

to be legally separated) (citing Abney v. Abney, 456 S.W.2d 364 (1970)).

Although the trial court did not address future orders of support it may award when

either Husband or Wife seeks an absolute divorce, the statute specifies that it “shall make a

final and complete adjudication of the support . . . rights of the parties.” See Teague, 2007

WL 1574291, at *3 (when parties who have been legally separated are awarded absolute

divorce, trial court is directed to adjust the support and property rights of the parties).

The case Joiner v. Joiner, 2001 WL 329529 (Tenn. Ct. App. March 28, 2001), also

involved a legal separation and is instructive. The parties in that case signed an agreement

providing for a final division of their marital property and a support order in which the

husband agreed to pay the wife $300 per month until her death or remarriage. Id. at *1. The

trial court held a hearing to make sure the terms of the agreement addressing the parties’

property division and support were fair. Id. When the husband later filed a petition for an

absolute divorce, the wife argued she should not be bound to the terms of the agreement she

had made earlier. Instead, she contended that the express terms of section 36-4-102 required

the trial court to make a final and complete adjudication of the support and property rights

of the parties when the court granted an absolute divorce. Id. at *3. The trial court rejected

the wife’s argument and refused to hold an evidentiary hearing to determine for a second

time the parties’ property division and support obligations because the wife did not allege

there were any new facts for the court to consider that were not in evidence earlier when the

trial court held a hearing to determine the fairness of the party’s agreement. Id. at *3-4.

The Joiner wife appealed the trial court’s refusal to hold a second evidentiary hearing.

This court reviewed the statutory language of section 36-4-102(b), and after applying the

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language to the facts, affirmed the trial court’s judgment. Id. at *4-6. The Joiner court noted

that “the parties initially sought an absolute divorce and agreed to such divorce, but

attempted to simply delay its effective date by a few months. The support and property

division were intended to be final.” Id. at *4. The Joiner court explained:

Although in most cases an evidentiary hearing will be required at the

time an absolute divorce is awarded, that is not always true. In many cases, an

order granting a divorce from bed and board is not intended to make final

disposition of the parties’ property. In those situations, the parties seek a legal

separation without knowledge that a reconciliation will not be successful.

Then, property distribution and support awards at the beginning of a legal

separation are not intended to be a final adjudication of such issues if a

reconciliation does not occur. The trial court opined that “a final property

hearing will usually be required,” since such a hearing is usually necessary for

a re-examination of the temporary award of property and support made upon

the grant of divorce from bed and board.

Id. at *4.

The Joiner parties wanted to be legally separated for three and a half months before

becoming divorced because the wife would not qualify for Medicare for three and a half

months, and her husband’s employer would not continue to maintain her on its insurance

policy once she was divorced. Id. at *1. The parties did not anticipate a reconciliation and

had no other reason to seek a legal separation rather than an absolute divorce. Id. at *4-5.

The facts of the case at bar are similar to the extent Wife sought a legal separation

rather than a divorce so that she could remain on Husband’s employer’s insurance policy for

as long as possible. Although Husband and Wife, like the parties in Joiner, did not

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The undisputed testimony was that once Husband and Wife were divorced, Husband’s employer 2

would not continue to provide medical insurance to Wife. The trial court recognized this by stating the

following from the bench after the close of evidence:

[B]ased upon the proof, everybody is going to know, will know why I’m doing what

I’m doing. First of all, I’m going to say that the parties are entitled to a divorce based upon

. . . 36-4-129. That’s basically where the Court finds that both parties are entitled to a

divorce.

And I’m going to order that both of them, being entitled to a divorce, I’m going to

order that they be legally separated for a period of two years. During which time the

(continued...)

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anticipate a reconciliation, the trial court did not address the amount of alimony Husband

would pay to Wife once the two-year period of legal separation had passed. Unlike Joiner,

the trial court in this case specified only that Husband was to pay Wife $1,500 during the

parties’ legal separation. The court did not state Husband would pay a different amount

following the two-year legal separation or that Husband would not be required to pay any

amount at that time. The court simply did not address Husband’s future alimony obligations.

In light of the statute’s express provision for a determination of the parties’ support

rights when two years have passed and the parties are entitled to an absolute divorce, we

believe it is premature to address the type of support to which Wife may be entitled before

the two-year period has passed. Once one or both parties petition(s) the court for an absolute

divorce and the trial court has an opportunity to hear additional evidence and determine the

type and amount of support that is appropriate based on the circumstances existing at that

time, one or both parties will have the opportunity to appeal the award if one or both parties

is/are unhappy with the court’s order.

Accordingly, we affirm the trial court’s judgment requiring Husband to pay Wife

$1,500 during the parties’ legal separation and hold the trial court did not err in failing to

award Wife alimony in futuro. The trial court will have an opportunity to address Wife’s

request for alimony in futuro once the parties return to the trial court seeking an absolute

divorce.

IV. PROPERTY DIVISION

Wife next contends the trial court erred in failing to award her a larger portion of the

marital estate. Husband introduced as an exhibit at trial a schedule listing the parties’ marital

assets and debts and proposing a way for the court to divide the property between the parties.

The court adopted Husband’s proposal, and Wife now complains that “[t]he division adopted

by the trial Court provides for Mr. Hooberry to receive $16,658.82 more than half of the total

value of property and Mrs. Hooberry to receive $16,658.99 less than half of the total value

of property.”

When dividing marital property, the trial judge’s goal is to divide the marital property

in an equitable manner. Manis v. Manis, 49 S.W.3d 295, 306 (Tenn. App. Ct. 2001). “A

division is not rendered inequitable simply because it is not precisely equal, or because each

party did not receive a share of every piece of marital property.” Kinard v. Kinard, 986

S.W.2d 220, 230 (Tenn. Ct. App. 1998). A trial court should use the factors listed in Tenn.

(...continued) 2

husband will keep insurance on the wife and continue to pay her $1,500 a month. 

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Code Ann. § 36-4-121(c) as a guide when dividing a marital estate.

“Trial judges have wide latitude in fashioning an equitable division of marital

property, and appellate courts accord great weight to a trial judge’s division of marital

property. Thus, we will ordinarily defer to the trial judge’s decision unless it is inconsistent

with the factors in Tenn. Code Ann. § 36-4-121(c) or is not supported by a preponderance

of the evidence.” Manis, 49 S.W.3d at 306 (citing Long v. Long, 957 S.W.2d 825, 828

(Tenn. Ct. App. 1997)).

Wife does not challenge Husband’s valuation of the parties’ property that the court

adopted, nor does she suggest how the court should have divided the parties’ property

differently. Instead, she complains that she should have been awarded “an additional

$16,658.82 from proceeds of marital property.” Wife attached to her brief a document

entitled “Wife’s Proposed Summary of Property Division” (“Wife’s Proposed Division”).

A review of Wife’s Proposed Division leaves us with more questions than answers, however,

and does not advance Wife’s cause.

In Wife’s Proposed Division, Wife lists cash that the court awarded to Husband in the

amount of $75,097.81, but she does not explain how she arrived at this figure. The parties

owned four parcels of real property that were sold in July 2010, and Husband was awarded

$17,048.91 in cash from these sales. There was another parcel of property sold during the

parties’ reconciliation, and Husband received $1,000 from that sale. Deducting $18,048.91

from $75,097.81 leaves a cash amount of $57,048.90 that Wife alleges the court awarded to

Husband that is unaccounted for in Wife’s Proposed Division.

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Another problem with Wife’s Proposed Division is her treatment of the parties’ joint

debts. The court determined that Husband was responsible for satisfying the parties’ joint

debts that totaled $23,607. Wife does not contest this allocation to Husband, but she failed

to deduct that amount from the net amount awarded to Husband, as she should have. Once

the parties’ joint debts are deducted from Husband’s award, our calculations show the court

awarded Wife a larger portion of the marital estate than Husband. Husband does not

complain he should have been awarded more than he was, however, so we have no cause to

investigate the court’s award further.

Wife does not explain how the trial court’s division of the parties’ marital assets is

inconsistent with the factors set forth in Tenn. Code Ann. § 36-4-121(c) or is not supported

Husband has a deferred income account worth $38,000 that the parties agree is Husband’s separate

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property, and Wife has two parcels of real estate that the parties agree constitute Wife’s separate property. 

The values of these separate properties should not be considered in the division of the parties’ marital assets.

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by a preponderance of the evidence as she must to prevail on her claim that the court erred

in failing to award her a larger portion of the marital estate. Upon a review of the record we

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do not find the trial court abused its discretion in dividing the parties’ marital estate. We

therefore affirm the trial court’s judgment in this regard.

V. ATTORNEY’S FEES

Wife’s final argument on appeal is that the trial court erred in refusing to award her

the attorney’s fees she incurred at trial. Husband points out that Wife did not put on evidence

at trial or inform this court of the amount of attorney’s fees she is seeking to recover.

Husband also claims that Wife unduly delayed several of the proceedings at the trial court

level, and to the extent she incurred high legal bills, she has no one to blame but herself.

This court has explained the standard for awarding attorney’s fees in a divorce action

as follows:

In a divorce action, an award of attorney’s fees is treated as additional

spousal support. See 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). The

decision to award attorney’s fees lies within the sound discretion of the trial

judge, see Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995); Brown v.

Brown, 913 S.W.2d 163, 170 (Tenn. Ct. App. 1994), and we will not interfere

with the trial judge’s decision unless the evidence preponderates against it.

See Batson v. Batson, 769 S.W.2d 849, 862 (Tenn. Ct. App. 1988). A party is

entitled to attorney’s fees when he or she lacks sufficient funds to pay his or

her legal expenses or would be required to deplete other assets to do so. See

Brown v. Brown, 913 S.W.2d at 170; Kincaid v. Kincaid, 912 S.W.2d 140, 144

(Tenn. Ct. App.1995).

Earls v. Earls, 42 S.W.3d 877, 890 (Tenn. Ct. App. 2000); see Gonsewski v. Gonsewski, 350

S.W.3d 99, 113 (Tenn. 2011) (“The decision whether to award attorney’s fees is within the

sound discretion of the trial court.”) (citations omitted); Edmisten v. Edmisten, 2003 WL

21077990, at *16 (Tenn. Ct. App. May 13, 2003) (need of spouse requesting attorney’s fees

is most important factor to consider); (Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn. Ct. App.

1988) (award of attorney fees in divorce action is form of alimony). If a party has adequate

property and income, she is not entitled to an award of alimony to cover her attorney’s fees

While it appears that the trial court made a permanent division of the parties’ property rather than

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a temporary division, as the court was entitled to do pursuant to the language of Tenn. Code Ann. § 36-4-

102(c), the parties have not raised this as an issue.

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and expenses. Gonsewski, 350 S.W.3d at 113; Edmisten, 2003 WL 21077990, at *16.

When the trial court in this case was issuing its ruling from the bench following the

trial, it stated, “I’m not going to award any attorney’s fees. She doesn’t have the ability to

pay them to begin with.” Then, in the Final Decree the court ordered:

8. Remaining court costs shall be split equally and each party shall pay

their own attorney’s fee.

In her brief, Wife argues the trial court erred by not awarding her attorney’s fees after

finding she was incapable of paying these fees. Wife does not offer any reasoning to support

her argument and relies exclusively on the trial court’s statement that she is incapable of

paying these fees.

The Supreme Court has stated that a party is not entitled to an award of alimony to

cover her attorney’s fees and expenses if she has adequate property and income to pay these

amounts. The evidence at trial showed that during the pendency of the parties’ divorce/legal

separation proceedings, Husband was ordered to pay the parties’ monthly credit card

statements, Husband was ordered to pay Wife $1,500 each month, Wife was given the

exclusive right to the home where she was living, and Husband continued to provide Wife

with medical insurance through his employer. In addition, Wife testified that she receives

rental income each month in the amount of at least $400 on her separate property. Wife did

not present evidence that she was unable to pay her attorney’s fees and expenses as they

became due or that she would deplete her resources to cover these expenses.

Although Wife did not present evidence of the amount she has incurred in attorney’s

fees and expenses, the record suggests she would have incurred less had she conducted

herself differently during the proceedings below. For example, by Order dated October 29,

2010, the trial court ordered Wife to permit Husband to retrieve certain items of his personal

property from the residence where she was living. Wife apparently prevented Husband from

retrieving two of his guns, which led Husband to file a motion for contempt against Wife.

Then, after the parties had agreed to sell certain parcels of real estate they owned, Wife

refused to sign the paperwork. This led Husband to file a motion asking the court to compel

Wife to sign the necessary documents for the sales to be completed. Finally, once the parties’

trial was scheduled, Wife came into court four days before the trial was supposed to begin

seeking a continuance, which the court denied. There is no doubt Wife could have avoided

some of the legal fees she incurred had she acted differently during the pendency of her case.

This court will not interfere with the trial court’s decision not to award Wife her

attorney’s fees absent a clear showing by Wife that the court abused its discretion. Fickle v.

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Fickle, 287 S.W.3d 723, 737 (Tenn. Ct. App. 2008) (citations omitted). To show the trial

court abused its discretion, Wife would have to show the court applied an incorrect legal

standard or made a decision that is against logic or reasoning or that resulted in an injustice

to her. Edmisten, 2003 WL 21077990, at *17. “The abuse of discretion standard does not

permit the appellate court to substitute its judgment for that of the trial court.” Id. (quoting

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)).

Wife’s reliance on the trial court’s statement that she does not have the ability to pay

her attorney’s fees and expenses does not relieve her of the obligation to make a “clear

showing” that the trial court abused its discretion in refusing to award her the fees. Wife

failed to submit evidence of the amount of fees she was seeking, and she failed to show she

was unable to pay them without depleting her resources. Accordingly, we affirm the trial

court’s judgment denying Wife’s request for an award of attorney’s fees and expenses.

Lastly, Wife asks that we award her the attorney fees she incurred on appeal. This

court has discretion to decide whether or not to award a party attorney’s fees on appeal.

Moran v. Willensky, 339 S.W.3d 651, 666 (Tenn. Ct. App. 2010) (citing Archer v. Archer,

907 S.W.2d 412, 419 (Tenn. Ct. App. 1995)). In considering such a request, we consider the

requesting party’s ability to pay the fees, the requesting party’s success on appeal, whether

the appeal was taken in good faith, and any other equitable factors relevant in the case.

Moran, 339 S.W.3d at 666 (citing Darvarmanesh v. Gharacholou, 2005 WL 1684050, at *16

(Tenn. Ct. App. July 19, 2005)). Considering the relevant factors in this case, we decline to

exercise our discretion to award Wife her attorney’s fees incurred in this appeal.

VI. CONCLUSION

For the reasons discussed above, we affirm the trial court’s judgment in all respects.

Costs of this appeal shall be assessed against the appellant, Janet Charlene Hooberry, for

which execution shall issue if necessary.

_____________________________

BEN H. CANTRELL, SR. JUDGE

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