JoAnne Pollock v. Donnie F. Pollock ( 1998 )

JOANN POLLOCK, )
) Lawrence Chancery
Plaintiff/Appellee, ) No. 7856-96
)
VS. )
) Appeal No.
DONNIE F. POLLOCK, ) 01A01-9706-CH-00271
)
Defendant/Appellant. )
FILED
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE February 6, 1998
APPEAL FROM CHANCERY COURT OF LAWRENCECecil W. Crowson
COUNTY
AT LAWRENCEBURG, TENNESSEE Appellate Court Clerk
HONORABLE ROBERT L. JONES, JUDGE
W. Charles Doerflinger, Esquire
P.O. Box 692
Lawrenceburg, TN 38464
ATTORNEY FOR PLAINTIFF/APPELLEE
Randy Hillhouse, Esquire
FREEMON, HILLHOUSE & HUDDLESTON
P.O. Box 787
Lawrenceburg, TN 38464
ATTORNEY FOR DEFENDANT/APPELLANT
AFFIRMED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
JOANN POLLOCK, )
) Lawrence Chancery
Plaintiff/Appellee, ) No. 7856-96
)
VS. )
) Appeal No.
DONNIE F. POLLOCK, ) 01A01-9706-CH-00271
)
Defendant/Appellant. )
OPINION
The defendant, Donnie F. Pollock, has appealed from the judgment of the Trial Court
awarding the plaintiff a divorce on grounds of adultery and inappropriate marital conduct,
awarding plaintiff, $8,000.00 alimony in solido and $500.00 per month alimony until she reaches
65 years or one of the parties dies; ordering defendant to pay $2,400.00 of plaintiff’s attorneys
fees, and distributing the marital estate and liability for debts.
Defendant presents two issues, the first of which is the award of alimony.
The parties were married 31 years. Their only child is an adult. The wife is 50 years old,
holds a high school diploma and worked as a seamstress in a shirt factory for 22 years. After 14
years with her last employer, she resigned because she was unable to maintain the required
production speed of 10,000 operations per day. She is now taking medication for depression
under orders of her physician.
The husband has been employed by a machinery manufacturer for 19 years. He holds a
“desk job” at $39,000.00 per year.
The wife testified that her needs included the following:
Utilities ............. $215 to 225 per month
Food .................. $200 to 300 per month
Medicine ............ $40
Clothing ............. No stated amount
Make-up ............. No stated amount
Entertainment ..... No stated amount
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The sum of the specific amounts stated above is $455.00 to $565.00, which is sufficient
to support the award of $500.00 per month alimony.
Trial Courts exercise broad discretion in respect to the amount and duration of spousal
support, and such decisions are entitled to great weight on appeal. TCA § 36-5-101(d)(I); Wilson
v. Moore, Tenn. App. 1996, 929 S.W.2d 367.
Appellant complains that alimony, if allowed, should be rehabilitative and limited. No
evidence is cited or found to support a finding that the wife is presently rehabilitable. Her
testimony convinced the Trial Judge that, at the time of trial, she was not able to work. The
periodic alimony remains within the control of the Trial Court which has the power to modify
it at any time changed circumstances justify. TCA § 36-5-101(a)(I).
Appellant’s second issue complains of the award of $2,400.00 attorneys fee “when the
appellee had the ability to pay.” Appellant cites evidence of the wife’s former earnings, but no
evidence of any earnings at the time of trial. No evidence is found that, at the time of trial, any
funds were available to plaintiff for the payment of her counsel. The allowance of attorneys fees
in a divorce action rests within the sound discretion of the Trial Judge which will not be
disturbed on appeal in the absence of a clear showing of error. Aaron v. Aaron, Tenn. 1995, 909
S.W.2d 408.
The allowance of attorneys fees to a spouse is not in order where the spouse is possessed
of adequate property or income to pay for legal services. Duncan v. Duncan, Tenn. App. 1984,
686 S.W.2d 568.
Where the spouse demonstrates inability to afford counsel, attorneys fees may be property
allowed. Kincaid v. Kincaid, Tenn. App. 1995, 912 S.W.2d 140.
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The judgment of the Trial Court is affirmed. Counsel fees on appeal are awarded to the
wife in an amount to be ascertained by the Trial Court on remand. Costs of this appeal are
assessed against the appellant and his surety. The cause is remanded to the Trial Court for
further proceedings.
AFFIRMED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
____________________________
BEN H. CANTRELL, JUDGE
____________________________
WILLIAM C. KOCH, JR., JUDGE
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