FILED

May 5, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

GEORGE WEATHERBY SICKLER, III, )

)

Plaintiff/Appellant, ) Appeal No.

) 01-A-01-9710-CV-00571

v. )

) Williamson Circuit

CLETUS JOY SICKLER, ) No. 96014

)

Defendant/Appellee. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR 

WILLIAMSON COUNTY

AT FRANKLIN, TENNESSEE

THE HONORABLE HENRY D. BELL, JUDGE

PATRICIA A. McDADE

227 Bridge Street

Franklin, Tennessee 37064

ATTORNEY FOR PLAINTIFF/APPELLANT 

REBECCA E. BYRD

306 Public Square

Franklin, Tennessee 37064

ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AS MODIFIED,

AND REMANDED

WILLIAM B. CAIN, JUDGE
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OPINION

This appeal involves the division of property and the award of alimony

as between parties who were married for many years. On appeal, the appellant

is challenging the trial court's characterization of certain property as marital

property, the trial court's division of the marital estate, and the trial court's failure

to award both periodic alimony as well as attorney fees and costs to the wife.

The decision of the trial court is affirmed with regard to certain matters and

reversed with regard to others.

I. FACTS

George and Cletus Sickler were married for 27 years when their

marriage ended by final decree entered October 8, 1996. At the time of the trial,

Mr. Sickler ("the Husband") was 50 years old and Ms. Sickler ("the Wife") was

49 years old. The parties are the parents of one adult child who was born in the

first year of their marriage. 

The Husband testified that he has a degree in journalism. His

professional experience has been primarily in the field of employee and

marketing communicationswithsome newspaper reporting experience. His most

recent employment was with Northern Telecom where he worked for 13 years

before being laid off in October 1995. Though the Husband began at Northern

Telecom at an annual salary of $42,000, he made over $70,000 for each of the

last three years in this job. 

The Husband testified that he sought another job within Northern

Telecom prior to his termination. Finding no opportunity at Northern Telecom,

the Husband and some partners began a business, Stealth Laboratories, which

manufactured and marketed securityproducts. TheHusband was working almost

full-time on this business out of an office in the home that he shared with the

Wife. He testified that he saw Stealth as the best career opportunity for someone

that was his age.
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The Husband claimed that he invested approximately $32,000 of his

separate funds into Stealth. At the time of trial, Stealth had not become

successful enough for the Husband to draw any income from it. By April of

1996, the Husband had begun to actively search for other employment again. He

testified that, at the time of the trial, he was living with his father in Dallas and

supporting himself through loans from his father.

At trial, the Wife testified that she was within one year of obtaining a

bachelor's degree. She had stopped college shortly after marriage in order to stay

home with the parties' child. She had been employed in journalism on a parttime basis for many years. She claims that this field has changed such that

employers now prefer to hire part-time and temporary workers and pay at rates

that are inadequate for her to support herself. The Husband testified that

throughout the marriage, the Wife expressed a desire to have a professional

career "whether it was working in the home, book writing, or doing news

gathering or PR work." However, though he felt she was very capable, he said

she always had a difficult time implementing her plans.

It is undisputed that the Husband received some $75,000 during the

course of the marriage from gifts and inheritances. The Husband concedes that

$50,000 of this money was used for marital purposes; however, he claims that the

rest of the money remained his separate property. Beginning in 1977, the

Husband opened various separate bank accounts in his name alone. He claims

that he deposited all such funds into these separate accounts and that no marital

funds were put into them. On the other hand, the Wife maintains that she was

active in helping to choose the items upon which the funds were expended and

that the items were subsequently used for family entertainment purposes.

By court memo entered March 11, 1997 and court order entered June

3, 1997, the court divided the parties' property and its debts. The court found

that all assets claimed by either party to be marital property were marital assets

subject to equitable division. The court's memo acknowledged the Husband's

contention that he began treating $25,000 of his $75,000 inheritance as separate

property by purchasing musical instruments for his exclusive hobby. However,
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the court found that "the evidence preponderates against [the H]usband's

contention that the funds in question had become, by agreement of the parties,

his separate property and his contention that collecting musical instruments had

become his personal and separate hobby." With regard to Stealth Laboratories,

the court provided that the loss of marital funds invested to date would be

divided half to each party. 

In addition, the court found that this was an appropriate case for

periodic alimony to be awarded to the Wife. However, since the Husband was

unemployed with no substantial investment income, the court reserved ruling on

this issue of alimony pending a substantial change in the Husband's financial

circumstances. The Court of Appeals dismissed the appeal for lack of a final

judgment because the order reserved judgment on the issue of alimony. The trial

court responded by issuing an Order Nunc Pro Tunc on April 3, 1998 which

asserted that the court had adjudicated all matters necessary for the divorce of the

parties and the division of the marital estate, that this case was an appropriate

case for periodic alimony to the Wife and that the Husband was unable to make

periodic alimony because he was unemployed through no fault of his own. The

court reserved jurisdiction to make an appropriate award of alimony to the Wife

if and when there is a material and substantial change of circumstances.

II. CLASSIFICATION OF PROPERTY

The majority of this appeal is devoted to the trial court's alleged

wrongful classification of all of the parties' property as marital property. Trial

court decisions regarding classification and division of property in divorce

actions are reviewed de novo, with a presumption of correctness unless the

evidence preponderates against the same. Tenn. R. App. P. 13(d); Farrar v.

Farrar, 553 S.W.2d 741, 743 (Tenn.1977). "Since [Tennessee Code Annotated

section] 36-4-121(a) (1991) vests trial courts with wide discretion with regard

to classifying and dividing property, Fisher v. Fisher, 648 S.W.2d 244, 246

(Tenn.1983), these decisions are entitled to great weight on appeal." Wilson v.

Moore, 929 S.W.2d 367, 372 (Tenn. App. 1996). We therefore review the lower

court's decision with a proper degree of deference.
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As Tennessee statutes provide only for the division of marital property,

the court must first correctly classify the property of the parties as either marital

or separate before proceeding to its equitable division. Batson v. Batson, 769

S.W.2d 849, 856 (Tenn. App. 1988). With regard to this distinction, the code

provides as follows:

(1) (A) "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 . .

.

(B) "Marital property" includes income from, and

any increase in value during the marriage of, property

determined to be separate property in accordance with

subdivision (b)(2) if each party substantially contributed to

its preservation and appreciation and the value of vested

pension, retirement or other fringe benefit rights accrued

during the period of the marriage.

(C) As used in this subsection, "substantial

contribution" may include, but not be limited to, the direct or

indirect contribution of a spouse as homemaker, wage earner,

parent or family financial manager, together with such other

factors as the court having jurisdiction thereof may

determine. . . . 

(2) "Separate property" means:

(A) All real and personal property owned by a

spouse before marriage;

(B) Property acquired in exchange for property

acquired before the marriage;

(C) Income from and appreciation of property

owned by a spouse before marriage except when

characterized as marital property under subdivision (b)(1);

and

(D) Property acquired by a spouse at any time by

gift, bequest, devise or descent.

Tenn. Code Ann. § 36-4-121 (1996).

After determining that property is separate property pursuant to the

statute, the court must decide whether that property became part of the marital

estate because the parties treated it in such a manner. This court has recognized

such a possibility by adopting the doctrines of transmutation and commingling.

Transmutation is described as follows:

[Transmutation] occurs when separate property is treated in
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such a way as to give evidence of an intention that it become

marital property. One method of causing transmutation is to

purchase property with separate funds but to take title in joint

tenancy. This may also be done by placing separate property

in the names of both spouses. The rationale underlying both

these doctrines is that dealing with property in these ways

creates a rebuttable presumption of a gift to the marital

estate. This presumption is based also upon the provision in

many marital property statutes that property acquired during

the marriage is presumed marital. The presumption can be

rebutted by evidence of circumstances or communications

clearly indicating an intent that the property remain separate.

Batson, 769 S.W.2d at 858 (citing 2 H. Clark, The Law of Domestic Relations in

the United States § 16.2, at 185 (1987)); see also Barnhill v. Barnhill, 826

S.W.2d 443, 452 (Tenn. App. 1991). The second doctrine "is commingling,

according to which separate property becomes marital property if inextricably

mingled with marital property or with the separate property of the other spouse.

If the separate property continues to be segregated or can be traced into its

product, commingling does not occur." Pope v. Pope, 1988 WL 74615 at *3

(Tenn. App. 1988) (quoting H. Clark, The Law of Domestic Relations 16.2 (2d

ed.1987)).

In contending that the trial court misclassified separate property as

marital property, the Husband presented nineteen disputed items, seventeen of

which are antiques. The majority of these antiques are musical instruments

though a clock, a slot machine, a coin operated picture viewer and a 1927

Chevrolet Touring Car are included among them. The Husband has fastidiously

presented evidence that he maintained certain inherited and donated funds

separate from the marital funds and that these traceable separate funds were used

to purchase all of these antique items. He asserts that he "enjoyed rebuilding

antique mechanical objects. There is no evidence [the] Wife shared this interest,

and no evidence of any other use of the property." 

As stated, the trial court held that "the evidence preponderates against

[the H]usband's contention that the funds in question had become, by agreement

of the parties, his separate property and his contention that collecting musical

instruments had become his personal and separate hobby." We interpret the trial
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court's decision to mean that, regardless of the separate source of the funds, they

were transmuted by the parties' treatment of them. To reiterate, "[transmutation]

occurs when separate property is treated in such a way as to give evidence of an

intention that it become marital property." Batson, 769 S.W.2d at 858. Indeed,

in Batson, the court found that though the husband used separate funds to

purchase a house, evidence supported that this house was marital property partly

because the record failed to indicate that the house was ever treated as separate

property. Id. at 858. In the instant case, we find that the evidence supports the

trial court's conclusion that the antique items were treated as if they were marital

property.

The Wife testified that from the beginning and throughout the course

of their marriage, she and the Husband had both enjoyed antiques. Together,

they traveled to flea markets, antique stores and auctions. They even organized

a company for the purpose of buying antiques and selling them wholesale to

antique dealers. She testified that both she and the Husband saw these antique

items as investments which could be sold later should they need the money.

They bought a few items with the specific intent to sell them. They would

discuss "ball park figures" before going to purchase items. The Wife testified

that the Husband never told her that these items were coming from his funds or

that they were his purchases. 

With regard to the music devices in particular, the Wife stated that she

and the Husband had both always been interested in music and together became

interested in acquiring "musical things." While her husband alone restored the

instruments, she participated in searching publications and mailers for deals and

in traveling to auctions and flea markets to find and purchase these items. When

asked what she did while her husband worked on the musical equipment, the

Wife testified that she "was running the household . . . cleaning house, doing

laundry, cooking meals, taking care of our son, doing whatever else needed to be

done at the house." The Wife especially was interested in the musical

instruments for enjoyment purposes: the parties displayed the items throughout

their house and they played certain instruments for musical entertainment. 
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In addition to the musical instruments and other antiques, the Husband

claims that the First American Stock and the Delaware Fund were incorrectly

classified by the lower court as marital property. With regard to the former, the

Husband claims that he used separate funds from an Employee Credit

Association account to purchase Heritage Federal Bank Stock in the amount of

$1506.50. This bank merged with First American Bank resulting in the Husband

receiving 211 shares of First American Bank Stock. As the Wife points out, the

Husband testified that the funds in the Employee Credit Association account

were primarily travel reimbursement checks from his business at Northern

Telecom. It is clear that whatever the Husband earns during the marriage is

marital property. Wade v. Wade, 897 S.W.2d 702, 716 (Tenn. App. 1994). Thus,

the travel reimbursement monies which were the primary substance of the

Employee Credit Association account were marital property. Any other funds

that were put into this account were commingled with this marital property and

thus became marital property. We therefore find that the evidence does not

preponderate against the trial court's finding that the First American Stock was

marital property.

Turning to the Delaware Fund, the Husband testified that he received

the initial shares of this fund from his family. Its initial value was $2,256.00.

The parties made no contributions of any kind to the fund throughout the

marriage. The number of the shares had reached 2,078.46 by December 1996 at

which time the parties agreed that each would be assigned 260 shares. The

Husband main-tains that the remaining shares which total 1,558.46 are his

separate property. The Wife claims that the Delaware Fund was transmuted

because it was listed as a family asset on an application for a residential loan to

refinance the parties' house and because it was listed as dividend income on the

parties' joint income tax returns. It is undisputed that the funds initially used to

open the Delaware Fund were from the Husband's family and that neither party

did much, if anything, to increase this account during the marriage. We do not

find that the corpus of the Delaware Fund was transmuted simply because the

fund was listed as an asset on an application to refinance the marital home or

because the capital gains from the fund were treated as joint income for tax

purposes. Accordingly, the Delaware Fund remained the separate property of the
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Husband.

Also, the Husband challenges the court's finding with respect to Stealth

Laboratories, a limited liability company started by the Husband and three

partners. Without making any disposition of the interest in Stealth, the court

divided the loss of the funds invested in Stealth half to each party. The Husband

claims that the court erred. He testified that he joined the Stealth group on a

part-time basis in September of 1994 which was ten months prior to leaving his

full-time job at Northern Telecom in October of 1995. He stated that he

discussed Stealth with the Wife who was initially very supportive. At the time

of trial, Stealth had failed to provide any income but the Husband still saw

potential in this business venture and continued to work to make it successful.

The Husband testified that he made an initial investment of $5000 into Stealth

out of personal funds and that he had put at least $32,000 more into Stealth since

that time. He admitted that $5000 of the money put into Stealth came from

marital funds but claims that the use of this money, without more, did not

transform the property into marital property. 

It is undisputed that Stealth was the Husband's sole employment after

he left Northern Telecom and for a period of time while he was still married to

the Wife. Along with the aforementioned funds, he put all of his energy and time

for work into this endeavor. As stated above, whatever the Husband earns during

the marriage is marital property. Wade, 897 S.W.2d at 716. Therefore, any gain

or loss from this business venture up until the time of trial was marital property.

To the extent that the Husband put separate funds into Stealth, these funds were

commingled. Therefore, the court did not err in finding that the investment in

Stealth was marital property at the time of the divorce. However, we do not find

any basis for the trial court's allocation of one-half the "loss of marital funds

invested to date" to each party. It is undisputed that, at the time of trial, Stealth

had provided no income. Thus, the money invested is gone. It is not, in the

words of the code, "owned by either or both spouses as of the date of the filing

of the complaint for divorce." Tenn. Code Ann. § 36-4-121(b)(1)(A)(1996).

As stated, the trial court did not award Stealth to either party. We find
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that to force these parties to maintain a business relationship through Stealth

seems less than ideal. Therefore, it is our conclusion that an equitable

distribution of this estate requires that Stealth be awarded to the Husband. The

Husband is clearly the party with the experience and expertise to conduct this

business. See Loyd v. Loyd, 860 S.W.2d 409, 412 (Tenn. App. 1993). We

remand this case for the trial court to value and divide the interest in Stealth at

the time of divorce. 

There are nearly two hundred separate documentary exhibits in this

case, almost all being directed to a meticulous tracing of funds through various

bank accounts in an effort by the appellant to establish that numerous items of

personal property are his separate property, rather than marital property. In the

final analysis, transmutation is a matter of intention " . . . when separate property

is treated in such a way as to give evidence of an intention that it become marital

property." Batson v. Batson, 769 S.W.2d 849, 858 (Tenn. App. 1988). This

presents a credibility determination to be made by the trial court. 

On the one hand the Husband testified:

THE COURT:

Q. I have one question for this witness and that is:

As I understand it, since 1982, you transferred funds from

Third National Bank checking account with your and her

name both on it? You were the only one that wrote the

checks on it. Did you transfer that to a Credit Association

account, right?

A. I established my employee Credit Association

account, Your Honor, in 1989.

Q. Was that the year of the transfer?

A. Yes, sir.

Q. Is that the year she moved down here?

A. I think --

MS. MCDADE: Let me try to explain it.

BY THE COURT:

Q. You set up a separate savings account. What did

you do?

A. All right, sir. When I moved down from

Pennsylvania, I established a Third national Bank account,

which I used for everything at Northern Telecom. When my

wife came down two months later or thereabouts, I

established another --

Q. Third National?
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A. -- checking account with Third National Bank of

Nashville. And that became the marital account into which

all my paychecks went. I retained the original Third National

Bank account as my business account to process all my travel

reimbursements and motels, as well as for any independent

funds.

Q. And in that was also your separate funds?

A. Yes, sir.

Q. All right. At some time, you did make a transfer

from that account --

A. In 1989.

Q. I guess what I really want to ask you is: Did you

discuss with your wife the fact that you had set up a separate

account and that your ancestral funds were staying there and

not going to the family?

A. Yes, sir.

Q. What was the discussion you had?

A. The discussion was, I wanted to maintain the

individual integrity of my own money, for one thing.

Secondly, I established the Employee Credit Association

checking account, I believe at the time when I transferred

from the Northern Telecom facilities at Highland Ridge by

the airport to the Metro Center location.

Q. You told your wife what you've told us?

A. Yes, sir.

Q. And was she agreeable?

A. It happened, Your Honor.

In direct contravention of the foregoing testimony by the Husband the

trial court had before it the testimony of the Wife, stating in part:

Q. Okay. And the last page, October the 10th of '79?

A. I believe that's on this other page. Yes. And it

says Wallin Trust and it's in my handwriting.

Q. And, again, during any of these deposits, did he

make any effort to segregate these funds?

A. No. The only thing he would do is, if I didn't get

them deposited the day they came in or as soon after, he

would be, well, why didn't you get that taken care of. I told

you to do that. But other than that, there was nothing else

said. He works near the bank. He said I have more time

since I stayed at home. So I was the one who took care of the

banking when I could and did all of that.

Q. Did he ever tell you, please, make sure you put

this in my separate account; this is my money?

A. Never.

Q. Or words to that effect?

A. Never. It was never to the fact that it was separate

money. It was never discussed. He would say things like
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this is really helping us out, you know; we couldn't do some

of the things we're doing without this money from my family.

But it was always we and ours.

 * * *

Q. Now, you've heard Mr. Sickler's testimony about

his separate savings account and transfers he would make

from his separate savings account into the marital account to

cover checks he wrote for paying for musical equipment.

Did he ever make transfers from that account for other

reasons to cover the marital account expenses or whatever?

A. If there was something that we wanted to buy, and

we needed the money, yes. Some of that money -- I believe

some of the money he had put in that account that we would

wound up using to put the addition -- I believe he testified to

that, to put the addition on our house. So it was used for

whatever. And the musical instruments were used for the

family. I mean, they weren't just used for him. We all

enjoyed them. We all played them.

Q. When did you first learn that he considered those

funds to be his separate funds?

A. When he told me that he wanted a divorce.

Q. So before that time, he hadn't told you, these are

my funds; they're earmarked especially for me?

A. No.

Faced with this massive record and this directly conflicting testimony,

the trial judge held: 

During the first fourteen years of the marriage, all of the

property acquired by either party from any source was

commingled and used for family purposes. Part of this

property was gifts of money to and by inheritances by

husband in the combined amount of $75,000. Husband

concedes that $50,000 thereof was devoted to family

purposes, including the acquisition of a residence titled to the

parties jointly. Husband contends that after the parties

moved to Tennessee, he began to treat the remaining $25,000

as his separate property and that musical instruments bought

with part of these funds were his exclusive hobby. Husband

cites no authority for the proposition that assets which have

become marital property by the conduct of the parties can be,

in effect, converted into separate assets by the unilateral

intention and/or action of a spouse. The court finds and

concludes that the evidence preponderates against Husband's

contention that the funds in question had become, by

agreement of the parties, his separate property and his

contention that collecting musical instruments had become

his personal and separate hobby. 
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The burden rests upon the appellant under Rule 13(d) of the Rules of

Appellate Procedure to establish that the evidence in the record preponderates

against these findings of fact by the trial judge. With the exception of the

Delaware Fund, the Husband fails to carry his burden despite massive efforts on

his part. 

Where, as in this case, the determination of the issues of fact

depends largely upon the credibility of the two adversary

parties and the case is tried upon oral testimony, the findings

of the trial judge are entitled to great weight since he saw the

witnesses face to face and heard them testify. This is true

because he was in a much better position than we are to

judge the value of their evidence. 

Crouch v. Crouch, 385 S.W.2d 288, 291 (Tenn. App. 1964).

Even apart from the court's classification of the property, the Husband

submits that the court's division of the marital property was inequitable.

Pursuant to statute, the trial court had the duty to reach an equitable division of

the marital property, taking into consideration the factors established in section

36-4-121(c) of the Tennessee Code. The Husband's complaint is based upon the

court's alleged failure to consider several particular circumstances in dividing the

property. One of these was that the Wife withdrew $29,000 from the parties'

joint account at the inception of the proceedings. Another was that the court

failed to take into account the Husband's obligation pursuant to a pendente lite

order to reimburse the Wife the sum of $3,748.77 which represented one half of

the mortgage payments made by the Wife during the pendency of the divorce

proceeding.

As for the Wife's withdrawal of $29,000 from the parties' joint account,

her testimony was that she expended this money on marital debt including the

parties' mortgage and credit card debt. As for any other inequality of the

property division, this court has held that "[a] trial court's division of property

need not be equal to be equitable. Batson v. Batson, 769 S.W.2d 849, 859 (Tenn.

App. 1988). "As a general matter, courts will evaluate the fairness of a property

division by its final results." Bookout v. Bookout, 954 S.W.2d 730, 732 (Tenn.
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App. 1997) (citing Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn. App.

1990)). In its memorandum opinion, the court noted that it "awarded the wife the

larger share of marital assets because of her lesser earning capacity and her need

for rehabilitation by obtaining a college degree." We do not find that the

evidence preponderates against this finding.

III. ALIMONY

Before we address the issue of alimony, we turn to the Wife's assertion

that the trial court erred in establishing both her and the Husband's earning

capacities. As stated the court found the Husband's earning capacity was

$60,000 per year. The Wife asserts that the Husband's earning history is $70,000

per year. The Husband did testify that his salary was around $70,000 for the

three years prior to losing his job at Northern Telecom where he had begun work

some thirteen years earlier at a salary of $42,000. Though he said that he

expected to find a job with a salary comparable to the one he was making before

termination, there was no direct proof that a job with such a salary would be

available to him. Indeed the proof was that, at the time of trial, the Husband had

been out of work for over a year. He was over fifty years old. He testified that

for someone who had been displaced at his age and with his skills, it typically

takes at least two years to find a corporate job and that would be at two thirds to

half of his former salary. At the time of the trial, the Husband was pouring his

time and energy into a start-up company for which there was no established

earning capacity. In light of these circumstances, we do not think that the court

abused its discretion in stating that the Husband's earning capacity was $60,000.

The court found theWife's earning capacity was about $25,000 per year

with a college degree. She testified that she had three years toward a Bachelor

of Arts degree. She testified that at the time of the trial she was earning $240 per

month taking care of her grandchildren. Her work history included sewing and

free lance writing for several newspapers. From 1984 to 1994, the Wife worked

between 20-35 hours per week doing contract work for the Tennessean at $8.50

per hour plus mileage. The Wife asserts in her brief that her income history is

approximately $12,000 to $13,000 per year and that her earning capacity should

be modified to $12,000. Again, we find no error on the part of the trial court.
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The Wife presents a figure that is approximately half of what the trial court

found. However, the Wife's figure is based upon an income history during which

she worked approximately half of a full-time load without a college degree. We

therefore find that the court did not abuse its discretion in finding that the Wife

is capable of earning $25,000 per year.

Regarding the issue of alimony, the Wife argued on appeal that the trial

court erred by not establishing an immediate award of alimony. The court found

that based upon the statutory considerations, the 27-year duration of the

marriage, and the Wife's lesser earning capacity, this was an appropriate case for

periodic alimony. However, the court's opinion was that with the Husband

"presently unemployed and with no substantial investment income, . . . it is not

appropriate to make an alimony decree under the present circumstances of the

parties." The court thus reserved the alimony issue pending a substantial change

in the Husband's financial circumstances.

As with the division of marital property, the trial court is vested with

great latitude in making a determination involving alimony. Bull v. Bull, 729

S.W.2d 673, 675 (Tenn. App. 1987). "The decision is factually driven and

requires a balancing of the factors listed in [Tennessee Code Annotated section]

36-5-101(d)." Lloyd v. Lloyd, 860 S.W.2d 409, 412 (Tenn. App. 1993). Of these

factors, "[t]he need of the spouse to whom alimony is awarded and the ability of

the other to pay are two dominant factors to consider when deciding a proper

award of alimony." Young v. Young, 971 S.W.2d 386, 391(Tenn. App. 1997).

Among the statutory factors are "(A) [t]he relative earning capacity, obligations,

needs, and financial resources of each party, including income from pension,

profit sharing or retirement plans and all other sources [and] (B) [t]he 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 earning capacity to a reasonable

level [and] (C) the duration of the marriage; . . . [and] (G) [t]he separate assets

of each party, both real and personal, tangible and intangible." Tenn. Code Ann.

§ 36-5-101(d)(1) ( A), (B), (C) & (G) (Supp. 1998). 
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By its award of periodic alimony, the trial court made the determination

that as between these parties "there is such relative economic disadvantage and

rehabilitation is not feasible." Tenn. Code Ann. § 36-5-101 (Supp. 1998). The

proof was that the Wife was approximately 50 years old, that she did not have a

college degree and that she did not have significant work experience. The

Husband had a college decree and had enjoyed a successful career in his field

until the time that he was laid off from his job. The court found that the

Husband's earning capacity was $60,000 per year whereas the Wife's was

$25,000 per year. These circumstances indicate that an award of periodic

alimony was appropriate and accordingly we affirm the trial court's decision that

the Wife needs periodic alimony. 

However, despite its determination that this was an appropriate case for

periodic alimony, the trial court did not make such an award. Rather it reserved

ruling on the issue pending a change in the Husband's financial circumstances.

In so doing, the court stated that "with [the] Husband presently unemployed and

with no substantial investment income, it is not appropriate to make an alimony

decree under the present circumstances of the parties." While it is true that the

Husband was presently unemployed and living with his father at the time of trial,

his own Rule 15 statement indicated that he received $150,533 in marital

property. In light of the finding that periodic alimony is appropriate, we find that

the Wife should have been given an in solido award out of the Husband's marital

estate during the period that the Husband was unemployed. Thus, for the time

period between June 3, 1997 when the trial court's order came down and the

present time, we award an in solido amount to the Wife in the amount at $10,000

which represents $100 per week for this time period. In addition, we remand this

case to the trial court to set an amount of periodic alimony based upon the

Husband's earnings under his present circumstances.

IV. ATTORNEY FEES AND COSTS

In the Wife's next issue, she asserts that the trial court erred in not

granting her an award for attorney fees and discretionary costs. The court

ordered that the Husband and Wife should each be responsible for the payment

of their own attorney fees and discretionary costs. An award of such fees is
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within the sound discretion of the trial court and will not be disturbed unless the

evidence preponderates against it. Umstot v. Umstot, 968 S.W.2d 819, 824

(Tenn. App. 1997). We do not find that the evidence preponderates against the

trial court's decision. 

On appeal, the Wife claims that she has no liquid assets with which to

pay these fees and costs. However, the evidence shows that neither party has

sufficient liquid assets and that both parties will have to deplete their assets to

pay their own attorney fees. As stated above, the Husband is unemployed, living

with his father, and borrowing money to pay his own expenses. He is no better

position to pay the attorney fees than the Wife. Certainly "where the wife

demonstrates that she is financially unable to 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." Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. App.

1995); see also Tenn. Code Ann. § 36-5-101(I) (1991). However, this is not the

case here. We affirm the court's decision to require each party to pay his own

attorney fees.

V. CONCLUSION

In conclusion, we find the evidence supports the trial court's finding

that all assets other than the Delaware Fund and Stealth Laboratories were

marital assets subject to equitable division by the court. Furthermore, the court's

division of the marital property was equitable. We find that Stealth Laboratories

as well as the Delaware Fund should be awarded solely to the Husband. With

regard to Stealth, we remand this case to the trial court such that the Husband's

interest in Stealth at the time of the divorce can be valued and divided. With

respect to periodic alimony, we uphold the court's decision that the evidence

supports the need for a periodic alimony award at this time. We remand for the

trial court to set an amount which is appropriate under the Husband's present

circumstances. We also award $10,000 as an in solido amount to cover the

period of time from the trial to the present. We affirm the trial court's decision

disallowing attorney fees and costs to the Wife. In light of this holding, we deny

the Wife's request for attorney fees and costs on appeal. Tax the costs of this

appeal to both parties equally. 
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____________________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

_______________________________

BEN H. CANTRELL, P.J., M.S.

_______________________________

WILLIAM C. KOCH, JR., JUDGE