1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The Court, with the

concurrence of all judges participating in the ca se, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no prec edential value. When a case is decided by memora ndum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case

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# FILED

May 9, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

______________________________________________ LINDA GAIL RAY, FROM THE WAYNE COUNTY CHANCERY COURT, No. 9400 Plaintiff-Appellee, THE HONORABLE JIM T. HAMILTON, JUDGE Vs. C.A. No. 01A01-9608-CH-00360 AFFIRMED BILLY GENE RAY, Paul Bates ; Boston, Ba tes & Holt Defend ant-App ellant. of Lawrenceburg, For Appellee Robert D. Massey of

Pulaski, For Appellant

_____________________________________________________ _______________________ MEMORANDUM OPINION 1

___________________________________________________________________________ CRAWFORD, J. This is a divorce case. Defendant, Billy Gene Ray (Husband), appeals fr om the judgment of the trial court dividing the marital property and awardingalimony to t he plaint iff, Lind a Gail Ray (Wife). On January 6, 1995, Wife filed a Complaint f

or Divorc e alleging that Husb and was g uilty of inappropriate marital conduct including adultery and mental and physical cruelty. The complaint prayed f or an abs olute divo

rce, an equitabl e division of the marital property, alimony, custody of

the part ies’ minor

child, ch ild suppor

t payment s, and attor

ney’s fees. On February 6, 1995, Husband filedan Answe r that de nied that he was gu ilty of ina ppropria te marital conduct butadmitted that the parties had irreconcilable difference s. He also fileda Counter-Complaint for Divorce alleging that Wife was guilty

of inappr opriate marital c onduct. In his cou ntercla im, Husband sought an absolute divorce from Wife, custody of the parties’ minor c hild, child s uppor

t payments , attorne

y’s fee s, and an

equitabl e division

of the ma

rital ass ets. The case was tried before the cha ncery court, sitting without a j ury, on September 6, 1995. The record does not contain a transcript of the e vidence. Instead, the trialcourt adopted a Statement of Evidence proposed by Wife, which we quote:2 The parties w ere mar

rie d on December 23, 1972. They had both resi ded in Wa

yne County

up to the time the divorce was granted. The couple had three children with two bo ys who are now adults and a daughter who was in high school at the time of the divorce. The plaintiff has bee n working a s a waitr ess in Co llinwood making approximately $5.00 per hour since the separation. She has no high school d iploma nor any vocational training. During the

time of the marriage, defendant admitted that his wife worked as a homemaker and that s he cooke d meals, kept clean clothes, kept a cl ean hous e and did a good job looking after the children. The defendant admitted to having numerous affa irs while the parties were married. He also admitted that prior to the divorce he had been living with a 19 year old girl in the parties’ homeon the Tennessee River in Clifton, TN. Said paramour bore him a baby son o n May 17, 1 995. He a dmitted to b egin ning t o li ve with her in June of 1994. He also admitted t o having a sexual relationship with her as soon as they met. The house that the defendant and his paramour were living in at the time of the divorce was new, it had new furniture, new appliances including a dishwasher. He supported his paramour and provided her with an automobile to drive. Plaintiff, on the othe

r hand, li ved in the parties’ original marital residence which was in need of repairs. The stove did not w orkprope rly nor did the refrigerator. The hot water he ater needed repair and she did not have a lawn mower to cut the yard. In addition, the washer and dryer at the marital residenc e were inoperable. The de fendant never bought a dishwasher for the plaintiff during the entire time of their marriage. The parties ’ daughter was sleeping in a broken bed at the time of the divorce. The defendant had yet to repair that bed. During the entire year and three months separation prior to the divorce, it was admitted that the p ara mour lived with the defenda nt, she hadnever worked and the defendant ha d supported her. At the time of

the divor ce, the d

efenda nt was 47 y ears old and his para

mour was a

pproxima te ly 20 years ol d. He als o admitted to putting crush-rock on the dri veway a

t the new home after the s eparat ion. Defendant also admitted to having other affairs prior to his current one. As to his teenage da ughter, who is an outstanding student at Collinwood High School, he had not seen or talkedto her

in over a year. H e has not s ent her a ny gifts, cards or made c ontact wi th her. D urin g the time the children were in s chool, defendant admitted that he never went to school to check on any of

the child ren’s pr ogress. During the course of the marriage, def endant admitted that he had struck plaintiff

on numerous occasions. Plaintiff has had her nose broken b y the def

endant. Plaintiff recently suffered a

severe cut

and stab w ound to her leg durin g a strugg le wit h th e defendant at the marital prop erty on the river. After stabbing the plaintiff in the leg, he drove her to the hospital but stopped ha

lf-way t o tell her that he didn’tlove her anymoreand didn’t have any use for her and that he wasn’t going to live with her anymore. The defenda

nt is a self-employed

contractor and has been in the busine ss of doing telephone construction work under the name of Billy Ray Contracting. From 1990 until the date of the trial, he admitted that Billy Ray Contra

cting had had rec eipts well in excess of $1,000 ,0 00.00. In 1990, he received $224,732.153 from C & C Contracting alone. In 1991 he had grossreceip ts of $259, 606.92 which provided for a total profit of $52,083.56 after depreciationand interest payments. In 1992, he w as pa id $221,985.81 alone from Ryan Lopez. Defendant acknowledged that in 1993 he had over $77,000.00 worth of net income and claimed a total depreciation of assets in the amount of $57,589.00. In 1994, Bi lly Ray Cont racting had grossreceip ts in the amount of $286,421.00. He claimed to have had expenses of $117,701. 0 0 but never

provided any docu

mentation for those expenses despi te agreei ng to do so in his deposition. He a

lso acknowledged

the depreciationin 1994 of $51,728.00. He agreed th at in 1994 he had a total income of $68,861.00. As to the depreciations that he c laimed on all his inc ome taxes, he agreed that said depreciations were not actual cash outlays but just losses he was a llowed to t

ake on hisincome ta

xes. Plaintiff and defendant indicated that the net worth of the m arit al assets were worth well over $225,000.00 (Exhibit 8, December

1994, pre pa red and sworn to by Mr. Ray six months after the parties’ separation). The parties ow n ed three pieces of real estate which included themarital residence, a two acre tract in the Collinwoo d city limits upon which a garage was located and out of which the defenda nt’s business oper

ated and real es tate in Clifton al ong the river consisting of the one acre tract upon which a new home h as been b uilt. Defendant

testifie d to the va

lue of his business machinery and tools. He agreed that the values on Exh ibi t 6 were c orrect

. He also testified that he borrowed $80,000.00 against the p rop erty and against equipment

that was already paid off after separating from the plaintiff. The t r ial court granted an absolute divorce to Wife and dismissed Husband’ s counterclai m. The trial court found that the parties’ minimum net worth at the time of th e separation was between $220,000.00 and $225,000.00 and t hat Husband owed less than $50,000.00 on a

note secured by two bulldozers. The trial court divided the marital property and awarded Wife alimony i n solido in the amount of $65,000.00, rehabilitative alimony in the

amount of $250.0 0 per we ek for f ive year s, and $6,000 in attorney’s fees. The tria l court a lso required Husband t

o obtain me dical insu

rance f or the be nefit of Wife fo r five ye ars and t

o name Wife as the irrevocable beneficiary o n his existing life insurance policies for a period of five years. The tria

l court gr anted cu stody of the partie s’ only mino r child to Wife wit h reasona ble visitation to Husband and ordered Husband to pay $187.00 per wee k in child support. Finally, the trial court enjoined Husband from contacting, molesting, harassing, or interfering with Wife. Husband appeals from this order of the trial court and prese nts two issues for

review: 1) whether the trial court erred in its determination re l ating to the equitable division of marital assets and marital debt; and 2) whether the trial court er red in its award of alimony.4 Since this case was tried by the court sitting without a jury, we review the case de novo upon t he reco

rd with a p

resumptio n of corr

ectnessof the findings of f act by the

tr ial court

. Unless the evide

nce pre pondera tes agai nst the findings, we must affirm, absent error of law. T.R.A.P. 13(d). The weight, faith, and cre dit t o be given to any witn

ess’s tes timony lie i n the firs t instance with the trier o f f act, and the credibility accorded will be given grea t weight by the appellate court. Mays v. Br ighton Bank , 832 S.W.2d 347, 352 (Tenn. App. 1992). In the first issue, Husbandasserts that the trial court’s judgment is void of reasoning, that the record lacks sufficient findings of the value of the marital assets by the trial court, and that t he trial cou rt erred in its division of the assets and debts. He also asserts that the trial court incor rectlytook fault into consideration when dividing the assets. He argues that our review shoul d b e de novo without a presumption of correctness because the trial court’s ruling lacks sufficient findings. We believe that the statement of the evidence re veals little dispute of the material facts and

in this light, the trial court’s judgment sufficiently outlines its findings so that a presum ption of c orrect

ness appl ies. The trial court awarded Wife the marital re sidence, the furniture and appliances in the residence , and the 1992 Chevrolet Silverado, as her share of the marital property with a value of approximately $72,000.00. The trial cour t award ed Husband the Clifton property, the business property, the furniture an d appliances in the Clifton property, and the bulk of the personal propert

y (which is mostlyused in Husband’s business) to Husband. Husband assumed all of the debt on the real estate including $24,500.00 from the original marital property, leaving a net award to Husband of approximately $87,462.45. The trial court awarded Wife $65,000.00 as alimony in solido and specifically stated that the alimony in solido was awarded to Wife “in order to obtain an equitable division of the marital estate.” Trial courts have broad discretion in dividing the marital estate upon divorce. Kincaid

v. Kincaid , 912 S.W.2d 140, 142 (Tenn. App. 1995). In Batson v. Batson , 769 S.W.2d 849 (Tenn. App. 1988), this Court discussed the equitable division of marital property:

T enn.Code Ann. § 36-4-121(a) provides that mari ta l2 Wife was awarded the original marital home, the Che vrolet Silverado, and $65,000.00 in alimony in solido. In a personal financial statement that was considered by the trial court, Husband stated that the original marital home was worth $60,000.00 and that the Chevrole t Silverad o was wor

th $12,000 .00. The t

otal of W ife’s aw ard is thu s approximately $137,000.00 or approximately 61% of the marital estate. 5 propert y should be divide d equitably without regard to fault. It gives a tria

l cour t wide discretion in adjusting and adjudicating the parties’ rights an d intere sts in all join tly owned property. Fi sherv. Fisher , 648 S.W.2d 244, 246 (Tenn.19 83)

. Accordingly, a trial court’s division of the mari tal est ate is entitled to great weight on appeal, Edwards v. Edwards , 501 S.W.2d 283, 288 (Tenn.Ct.App. 1973), andshould be presumed to be proper unless the evidence preponder ates otherwise. Lancaster

v . Lanc aster , 671 S.W.2d 501, 502 (Tenn.Ct.App. 1984); Hard

in v. Hardin , 689 S.W.2d 1 52, 15 4 (Tenn.Ct.App.1983). A trial court’s division of marital property is to be guided by the factors containe d in Tenn.Code Ann. § 36-4-121(c). However, an equitable property division is not nece ssa rily an equal one. It is notachieved by a mechanical application of the statutory factor s, butrather by conside

ring and w eighing th

e most relevant factors in light of the unique facts of the ca se. Batson , 769 S.W.2d at 859. It is not disputed that the v alue of the marital estate is deemed to be more than $225,000.00. From our

review of the record, it appears tha t Wife was awa

rded app roximate ly $137,000.00 of the as sets. 2 There is no showing that the tr ial cour t incorrectly cons idered f

ault in the division of the marital assets. The evidence does not preponderate against the trial court’s findings, and we f

ind no err or in the tr

ial cour t’s divisio n of the ma

rital ass ets. In his second issue, Husband argues that the award of rehabilitative alimony and attorney’s fees to Wife is improper in light of the division of the marital property and the award of alimony in solido. He claims that he is not in a position to pay the amount of the award. The trial court aw arded W

ife $250. 00 per week as re habilitat ive alimon

y for a pe riod of f ive year s. The trial court stated, “The court specifically finds that the plaintiff lacks a high school diploma, has no vocational skills and has a severely limited earning capacity. Conversely, the defendant has generated gross revenues appr oximating $400,000.00 annually in the recent past.” In his answe

rs to interrogatories, Husband stated that his 1993 and 1994 incomes were bothbetwee

n $40,000. 00 and $50 ,000.00. H owever , the St at ement of Evidence states, “He agreed that in 1994 he had a total income of $68,861.” In additio n, Husband acknow ledged in6

the Statement of Evidence that his income was reduced on pape r because of business deductions and that t he deductions wer

e not act ual cash outlays. The factors used to determine the proper a mountof maintenance and support are found in T.C.A. § 36-5-101( d) (1996). As a general matter, the courts set the amount of a support award based on the needs of

the innoc ent spouse

and on the ability of the obligor spouse to pay. Batson , 769 S.W.2d at

861. If one spouse is economically disadvantaged compared to the othe r, the courts are generally inclined to provide some type of support. The record

indicate s that the t

rial c ourt considered the necessary factors, and the evidence does not prepo nderate

against the findings of

the trial court. The trial court correctly deter mined that Wife shouldbe awarded rehabilitative alimony, and the rec ord reveals that Husband has the ability to pay this award. Finally, Husband argues that the award of attorney’s fees is also improper in light of the other awards, and he claims that he does not have the ability to pay Wife’s attorney’s fees. The trial court ordered Husband to pay $6,000.00 for Wife’ s attorney’s fees. The trial court said, “In awarding said attorney fee, the court notes that the def e ndant, Billy Gene Ray, contested the custody of the pa

rties’ minor daugh

te r in his a

nswer and counterclaim although the proof indicated that he had no contact with her since the parties’ separation.” Attorney fee awards are trea ted as alimony. Kincaid , 912 S.W.2d at 144. In determining whether to award attorney’s fe es, the tr ial cour t should ag ain consi der the r elevant factor s in T.C.A

. § 36-5-101(d)(1). Id . Where the wife demonstrates that she is financia lly un able t o afford counsel, and where the husband has the ability to pay, the court may properly order the husband to pay the wife’s attorney fees. Id . These awards are within the sound discretion of the trial court, andunless the evidence preponderates aga inst the award, it will not be disturbed on appeal. Id

. In the case at bar, we cannot say that the evidence preponderates against the a ward of attorney’s fees to Wife, and we believe that Husband has the ability to pay the award. Accordingly, the judgme nt of the tr

ial cour t is affir med in all respec ts. Costs of

this appeal are assessed against the appe llant.

_________________________________7 W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ HOLLY KIRBY L ILLARD, JU DGE