Yvonne Waters v. Donald Waters ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 30, 2015 Session
YVONNE WATERS v. DONALD WATERS
Appeal from the Circuit Court for McMinn County
No. 2013-CV-267 J. Michael Sharp, Judge
No. E2014-01768-COA-R3-CV-FILED-AUGUST 20, 2015
This divorce action involves a marriage of twenty-seven years‟ duration. Both parties
were employed outside the home throughout the marriage. The parties kept their finances
separate during the marriage, maintained separate bank accounts, and divided household
expenses equally. At the time of trial, the wife had accumulated a significantly larger
amount of money, despite having a much lower earning capacity. The trial court
therefore determined that the wife had made a greater contribution to the marital estate
and awarded her approximately 68% of the marital estate upon divorce. The court further
awarded the wife her attorney‟s fees and costs. The husband timely appealed. We affirm
the trial court‟s division of the parties‟ marital property. We reverse the trial court‟s
award of attorney‟s fees incurred at trial to the wife, but we affirm the award of
discretionary costs in the amount of $2,713. The wife‟s request for an award of
attorney‟s fees on appeal is denied.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed in Part, Reversed in Part; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., C.J., and JOHN W. MCCLARTY, J., joined.
Philip M. Jacobs, Cleveland, Tennessee, for the appellant, Donald Waters.
D. Mitchell Bryant, Athens, Tennessee, for the appellee, Yvonne Waters.
OPINION
I. Factual and Procedural Background
This divorce action was filed on August 5, 2013, by the plaintiff, Yvonne Waters
(“Wife”), against the defendant, Donald Waters (“Husband”). The parties were married
in 1987 after cohabitating for ten years, and they separated in May 2013. No children
were born of the marriage. At the time of trial, Wife was seventy-seven years old and
Husband was sixty-seven years of age.
Wife maintained two jobs throughout the marriage. Her full-time employment
during the week was as a food service manager for an elementary school. In addition,
Wife was employed on a part-time basis as a cashier and hostess in a restaurant on the
weekends. Wife held both jobs at the time of trial. Husband was self-employed as a
long-haul truck driver for a substantial portion of each year. According to Husband, he
typically enjoyed approximately six weeks off per year, but as Wife explained, Husband
actually only worked seven to eight months annually. The proof demonstrated that Wife
earned a combined gross income of approximately $21,000 to $26,000 per year during
the four years prior to trial. Husband reported gross income of approximately $72,000 to
$93,000 during the same time period but claimed to have substantial business expenses
related to depreciation, taxes, fuel, and vehicle repairs.
Wife testified that in May 2013, Husband left the marital residence for
approximately two weeks. She was unaware of his whereabouts. When he returned, he
told Wife that he had found another woman he could not live without. Husband denied
this characterization of the parties‟ conversation, however, stating that he merely
informed Wife he wanted a divorce. Husband subsequently vacated the marital residence
and moved into a home formerly owned by his deceased mother.
During trial, Wife‟s counsel questioned Husband regarding an alleged paramour,
Ms. C., who was shown to visit Husband‟s home frequently. Husband denied that he and
Ms. C. had been intimate, stating that they were just friends and often went fishing
together. Ms. C. also dismissed characterization of the relationship as intimate, likewise
claiming that she and Husband were merely friends. Having met Husband in May 2013,
Ms. C. admitted that the two had been on trips and had dined out together. When asked,
Ms. C. related that she could not remember if Husband had ever told her he loved her.
The private investigator hired by Wife testified that he served Ms. C. with a subpoena on
the eve of trial at Husband‟s residence and that his associate filmed the couple leaving the
residence together on the morning of trial. The private investigator also presented
pictures of the two at Husband‟s home on various occasions.
The parties presented evidence that neither of them entered the marriage with any
significant assets. Specifically, Wife had $15,000 from a divorce settlement while
Husband possessed a truck. The parties maintained separate finances both prior to and
during the marriage, with each party owning his or her own separate bank accounts.
During the marriage, the parties purchased real property and built a home thereon. The
associated costs were divided equally. The parties in equal fashion contributed to the
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monthly expenses related to the home, including taxes, insurance, and utilities. Under
their agreed arrangement, Husband paid said expenses while Wife reimbursed him for her
share. According to the parties, Wife was frugal with her money and saved as much as
possible in her bank accounts, certificates of deposit, and individual retirement account.
As additional income, Wife had been receiving social security benefits for several years
by the time of trial. She emphasized never having spent “one penny” of those benefits.
While Husband also received social security benefits in addition to his
employment income, he failed to save or accumulate funds as diligently as Wife.
Consequently, Husband did not possess total amounts in his bank accounts equivalent to
Wife‟s at the time of trial. Although Husband claimed to have contributed money to
Wife‟s accounts, Wife denied this claim. Husband could present no proof of such
deposits. When questioned, Wife testified that she was solely responsible for the
purchase of all groceries during the marriage, as well as buying clothing for Husband and
gifts for family members. According to Wife, she had paid all expenses related to the
marital residence since Husband had left.
Following the presentation of proof, the trial court entered an order granting a
divorce to Wife on the basis of Husband‟s adultery and inappropriate marital conduct.
The trial court specifically found that while Wife and the private investigator were
credible witnesses, Husband and Ms. C. were not. The court then examined the
applicable statutory factors regarding an equitable division of marital assets, choosing to
adopt Wife‟s proposed distribution. Accordingly, the court directed the parties to sell the
marital residence and divide the proceeds equally. The court also awarded numerous
certificates of deposit and bank accounts to Wife along with the bulk of the parties‟
personalty. Wife maintained a Tennessee Consolidated Retirement System retirement
fund, of which the court awarded 66.25% to Wife and 33.75% to Husband. In its overall
distribution of the remaining marital property, the trial court awarded approximately 68%
of the assets to Wife and roughly 32% to Husband. In addition, the trial court awarded
Wife $11,563 in attorney‟s fees and costs. Husband has appealed the trial court‟s final
judgment.
II. Issues Presented
Husband presents the following issues for our review, which we have restated
slightly:
1. Whether the trial court erred in its division of the marital estate.
2. Whether the trial court erred in awarding Wife her attorney‟s fees at trial.
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Wife presents an additional issue:
3. Whether Wife should receive an award of attorney‟s fees incurred in defending
this appeal.
III. Standard of Review
In a case involving the proper classification and distribution of assets incident to a
divorce, our Supreme Court has elucidated the applicable standard of review as follows:
This Court gives great weight to the decisions of the trial court in
dividing marital assets and “we are disinclined to disturb the trial court‟s
decision unless the distribution lacks proper evidentiary support or results
in some error of law or misapplication of statutory requirements and
procedures.” Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App.
1996). As such, when dealing with the trial court‟s findings of fact, we
review the record de novo with a presumption of correctness, and we must
honor those findings unless there is evidence which preponderates to the
contrary. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993). Because trial courts are in a far better position
than this Court to observe the demeanor of the witnesses, the weight, faith,
and credit to be given witnesses‟ testimony lies in the first instance with the
trial court. Roberts v. Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App.
1991). Consequently, where issues of credibility and weight of testimony
are involved, this Court will accord considerable deference to the trial
court‟s factual findings. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct.
App. 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co., 984
S.W.2d 912, 915 (Tenn. 1999)). The trial court‟s conclusions of law,
however, are accorded no presumption of correctness. Langschmidt v.
Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).
Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007).
Further, as this Court has previously held:
Because Tennessee is a “dual property” state, a trial court must
identify all of the assets possessed by the divorcing parties as either
separate property or marital property before equitably dividing the marital
estate. Separate property is not subject to division. In contrast, Tenn.
Code Ann. §36-4-121(c) outlines the relevant factors that a court must
consider when equitably dividing the marital property without regard to
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fault on the part of either party. An equitable division of marital property is
not necessarily an equal division, and §36-4-121(a)(1) only requires an
equitable division.
McHugh v. McHugh, No. E2009-01391-COA-R3-CV, 2010 WL 1526140 at *3-4 (Tenn.
Ct. App. Apr. 16, 2010) (internal citations omitted). See also Manis v. Manis, 49 S.W.3d
295, 306 (Tenn. Ct. App. 2001) (holding that appellate courts reviewing a distribution of
marital property “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.”).
IV. Distribution of Marital Estate
Husband asserts that the trial court erred in its equitable division of the parties‟
marital property. The issue requires a review of the applicable statutory provisions.
Tennessee Code Annotated § 36-4-121 (2014) provides in pertinent part:
(a)(1) In all actions for divorce or legal separation, the court having
jurisdiction thereof may, upon request of either party, and prior to any
determination as to whether it is appropriate to order the support and
maintenance of one (1) party by the other, equitably divide, distribute or
assign the marital property between the parties without regard to marital
fault in proportions as the court deems just.
***
(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,
except in the case of fraudulent conveyance in anticipation of filing, and
including any property to which a right was acquired up to the date of the
final divorce hearing, and valued as of a date as near as reasonably possible
to the final divorce hearing date. In the case of a complaint for legal
separation, the court may make a final disposition of the marital property
either at the time of entering an order of legal separation or at the time of
entering a final divorce decree, if any. If the marital property is divided as
part of the order of legal separation, any property acquired by a spouse
thereafter is deemed separate property of that spouse. All marital property
shall be valued as of a date as near as possible to the date of entry of the
order finally dividing the marital property.
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(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 and unvested
pension, vested and unvested stock option rights, retirement or other fringe
benefit rights relating to employment that accrued during the period of the
marriage.
(C) “Marital property” includes recovery in personal injury, workers'
compensation, social security disability actions, and other similar actions
for the following: wages lost during the marriage, reimbursement for
medical bills incurred and paid with marital property, and property damage
to marital property.
(D) As used in this subsection (b), “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.
***
(c) In making equitable division of marital property, the court shall consider
all relevant factors including:
(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 the 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 weight if each party has fulfilled its role;
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(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 the division of
property is to become effective;
(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.
It was undisputed at trial that virtually all of the parties‟ property was marital.
Separate property included a few small items of personalty and Husband‟s interest in the
home where he was residing, which formerly was owned by his deceased mother. The
trial court therefore examined the above factors in order to determine how to fashion an
equitable distribution of the marital assets. Husband asserts that the trial court erred in
awarding the bulk of the marital estate to Wife, arguing that the trial court improperly
relied upon Husband‟s fault and placed too much emphasis on Wife‟s frugality. Further,
Husband argues that the trial court erroneously found that Husband had a greater earning
capacity than Wife because his employment expenses negated most of his income.
Following a thorough review of the evidence and the statutory factors, we conclude that
the trial court properly considered the proof and the appropriate statutory factors to effect
an equitable distribution of the parties‟ marital assets.
We note initially that the trial court did not consider the parties‟ fault in making its
equitable distribution of marital assets. See Tenn. Code Ann. § 36-4-121 (a)(1) (“In all
actions for divorce or legal separation, the court having jurisdiction thereof may . . .
equitably divide, distribute or assign the marital property between the parties without
regard to marital fault in proportions as the court deems just.”). Rather, the trial court
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examined each appropriate statutory factor in turn, noting at the outset that the parties‟
twenty-seven-year marriage was of lengthy duration. The court found that for both
parties, their overall physical health and mental health were excellent. With regard to the
parties‟ vocational skills and earning capacities, the court determined that both parties
were employed outside the home throughout the duration of the marriage. The court also
found Wife to be an excellent worker, having held her primary job for thirty-nine years
and her secondary position for twenty-six years. Similarly, the court found that Husband
had also held the same trucking job for many years. Observing that most people would
be “slowing down” if experiencing Wife‟s advancing years, the court determined that
although Wife maintained her employment at both jobs, she could not continue to do so
indefinitely.
Continuing in its analysis, the trial court concluded that statutory factor number
three (contribution by one party to the education, training or increased earning power of
the other party) was inapplicable to this action. Regarding factor number four, the court
found great disparity between the parties‟ earning capacities. In specific terms, the court
determined that Husband‟s gross income was more than three times that of Wife in most
years, which trend would most certainly continue in the future. The court also
determined that Husband would enjoy a greater number of years to continue earning
income than Wife, based on the age disparity between the parties.
With regard to factor number five, the trial court found that although both parties
had contributed to the marital estate, Wife‟s contribution was greater based on her
frugality and ability to save money. Bearing in mind the parties‟ “unique” financial
arrangement of keeping their monies separate throughout the marriage, the court
explained that Wife had saved a much larger amount of money than had Husband, despite
her limited income. The court again observed that Husband earned three to four times as
much as Wife. Although Husband clearly incurred expenses related to the operation of
his truck, according to the court, there was no evidence that those expenses would “come
anywhere near dissipating his personal income to a level anywhere near what Mrs.
Waters was making.” The court continued in its findings, stating in pertinent part:
In fact, the court finds, based upon all of the evidence before the court, that
Mr. Waters‟ net disposable income is and has always been far greater than
the net disposable income of Mrs. Waters throughout the marriage. It is
obvious to the court, that Mr. Waters simply chose to live a much more
affluent lifestyle when he was on the road, or even when he wasn‟t on the
road, given the equal expenditures of the parties for household items and
given the relative amounts that each of the parties saved during the course
of the marriage. . . . In addition, the court finds that Mrs. Waters also served
as the homemaker, and kept and maintained the home for the couple during
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this 26 plus year marriage.
As previously referenced, by the time of trial neither party owned a significant
separate estate. Moreover, at the time of the marriage, the parties‟ respective separate
estates were similar in value. The trial court determined factor number eight (present
economic circumstances) in this instance to be duplicative of factor number five
(contributions and dissipation). The court also found factor number nine (tax
consequences) to be inapplicable. Regarding factor number ten, social security benefits,
the court determined that while both parties were receiving such benefits, the evidence
demonstrated that Wife received a slightly greater monthly benefit than Husband.
Finally, concerning factor number eleven, “other factors as are necessary to
consider the equities between the parties,” the trial court again noted that Wife had saved
a much greater amount of money than Husband throughout the marriage by being frugal
and employing a more modest lifestyle. The court thus adopted Wife‟s proposed division
of the parties‟ bank accounts and certificates of deposit by awarding Wife the accounts
and certificates in her name and awarding Husband his accounts and certificates. Further,
the court ordered that Wife‟s Tennessee Consolidated Retirement System account be
awarded 66.25% to Wife and 33.75% to Husband, based upon Husband‟s suggestion. In
the overall distribution of marital property, without including Wife‟s Tennessee
Consolidated Retirement System account, the trial court awarded approximately 68% of
the marital estate to Wife and 32% of the marital estate to Husband.
The evidence does not preponderate against the trial court‟s findings. Husband
demonstrated a significantly greater earning capacity than Wife, and the ten-year
difference in their ages would likely afford Husband a longer period of time within which
to earn income and accumulate assets. Wife demonstrated an exemplary ability to save
money, resulting in a larger contribution by her to the marital estate. In the future, Wife
may well be required to utilize those savings in order to defray her living expenses.
Our review of the evidence in this matter, considering the statutory factors
delineated in Tennessee Code Annotated § 36-4-121(c), leads us to the conclusion that
the trial court‟s division of marital property is equitable. As previously stated, “This
Court gives great weight to the decisions of the trial court in dividing marital assets and
„we are disinclined to disturb the trial court‟s decision unless the distribution lacks proper
evidentiary support or results in some error of law or misapplication of statutory
requirements and procedures.‟” See Keyt, 244 S.W.3d at 327 (quoting Herrera v.
Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996)). The court‟s equitable division of
marital property holds proper evidentiary support, and we find no error of law in the
court‟s application of the statutory requirements and procedures. Ergo, we affirm the
trial court‟s equitable distribution of the marital estate.
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V. Attorney‟s Fees at Trial
Husband also asserts that the trial court erred in awarding Wife $11,563 to
compensate her for attorney‟s fees and costs incurred in this action. As our Supreme
Court observed in Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011):
It is well-settled that an award of attorney‟s fees in a divorce case
constitutes alimony in solido. The decision whether to award attorney‟s
fees is within the sound discretion of the trial court. As with any alimony
award, in deciding whether to award attorney‟s fees as alimony in solido,
the trial court should consider the factors enumerated in Tennessee Code
Annotated section 36-5-121(i). A spouse with adequate property and
income is not entitled to an award of alimony to pay attorney‟s fees and
expenses. Such awards are appropriate only when the spouse seeking them
lacks sufficient funds to pay his or her own legal expenses, or the spouse
would be required to deplete his or her resources in order to pay them.
Thus, where the spouse seeking such an award has demonstrated that he or
she is financially unable to procure counsel, and where the other spouse has
the ability to pay, the court may properly grant an award of attorney‟s fees
as alimony.
(Internal citations omitted). Further, this Court has stated:
Our review of an award of attorney‟s fees is guided by the principle that
“„the allowance of attorney‟s fees is largely in the discretion of the trial
court, and the appellate court will not interfere except upon a clear showing
of abuse of that discretion.‟” Mimms v. Mimms, 234 S.W.3d 634, 641
(Tenn. Ct. App. 2007) (quoting Taylor v. Fezell, 158 S.W.3d 352, 359
(Tenn. 2005)). “Reversal of the trial court‟s decision [regarding] attorney
fees at the trial level should occur „only when the trial court applies an
incorrect legal standard, reaches a decision that is illogical, bases its
decision on a clearly erroneous assessment of the evidence, or employs
reasoning that causes an injustice to the complaining party.‟” Church v.
Church, 346 S.W.3d 474, 487 (Tenn. Ct. App. 2010).
Hernandez v. Hernandez, No. E2012-02056-COA-R3-CV, 2013 WL 5436752 at *8
(Tenn. Ct. App. Sept. 27, 2013).
The statutory scheme regarding alimony states in pertinent part:
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(i) In determining whether the granting of an order for payment of support
and maintenance to a party is appropriate, and in determining the nature,
amount, length of term, and manner of payment, the court shall consider all
relevant factors, including:
(1) The relative earning capacity, obligations, needs, and financial
resources 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 not 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
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(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.
Husband argues that the trial court improperly based the award of attorney‟s fees
solely on his fault. Conversely, Wife contends that the trial court also considered her
lower earning capacity and advanced age, including her inability to continue working at
the same pace indefinitely. Our review of the record in this matter, however,
demonstrates that Husband appears to be correct.
Regarding its award of attorney‟s fees, the trial court stated in pertinent part:
The court finds that Mr. Waters is guilty of inappropriate marital conduct as
set out above. There is no question that Mrs. Waters has been a faithful and
devoted wife, and an extremely hard worker throughout the entirety of this
marriage. There is also no question that Mr. Waters began an inappropriate
marital relationship, at a minimum in May of 2013, and at a maximum
possibly before that. The court finds that Mr. Waters continues in this
inappropriate marital relationship, and the court finds that Mr. Waters was
intentionally untruthful with the court regarding this issue, as well as being
intentionally untruthful with Mrs. Waters regarding this issue. Based upon
all of the court‟s findings, the court holds that Mrs. Waters is entitled to
have her attorney fees and all of the court costs fully paid by Mr. Waters.
The trial court‟s order reveals a singular focus upon Mr. Waters‟s fault without specific
consideration of the other statutory factors. As this Court has often explained, a trial
court speaks through its written orders, and the appellate courts review only the trial
court‟s written orders. See In re Conservatorship of Alexander v. JB Partners, 380
S.W.3d 772, 777 (Tenn. Ct. App. 2011). Further, as stated in Gonsewski, 350 S.W.3d at
105, “Such awards are appropriate only when the spouse seeking them lacks sufficient
funds to pay his or her own legal expenses, or the spouse would be required to deplete his
or her resources in order to pay them.” Such is not the circumstance in the case at bar
inasmuch as Wife was awarded a large share of liquid assets with which she could pay
her attorney‟s fees. Therefore, we reverse the trial court‟s award of attorney‟s fees to
Wife.
We note, however, that the trial court‟s award to Wife of $11,563 also included
court reporter fees and other court costs that are allowable, in the court‟s discretion, to the
prevailing party pursuant to Tennessee Rule of Civil Procedure 54.04. We find no abuse
of discretion in the allowance of these costs to Wife. We therefore modify the total
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award from $11,563 to $2,713, subtracting the attorney‟s fees award of $8,850.
VI. Attorney‟s Fees on Appeal
Wife seeks an award of attorney‟s fees on appeal, stating that the alimony factors
weigh in favor of an award of additional fees. Wife asserts that due to her advanced age,
her comparatively lower earning capacity, and Husband‟s fault, she should not have to
bear the cost of defending against Husband‟s appeal. As this Court has stated:
[I]t is in the sole discretion of this court whether to award attorney‟s fees on
appeal. As such, when this Court considers whether to award attorney‟s
fees on appeal, we must be mindful of “the ability of the requesting party to
pay the accrued fees, the requesting party‟s success in the appeal, whether
the requesting party sought the appeal in good faith, and any other equitable
factor that need be considered.”
Parris v. Parris, No. M2006-02068-COA-R3-CV, 2007 WL 2713723 at *13 (Tenn. Ct.
App. Sept. 18, 2007) (quoting Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 WL
22071454 (Tenn. Ct. App. Sept. 3, 2003)) (other internal citations omitted).
We are mindful of the fact that Husband was moderately successful on appeal, and
we again note that Wife was awarded substantial liquid assets in the divorce from which
to pay her attorney‟s fees incurred during appellate review. Therefore, we conclude that
this is not an appropriate case for an award of attorney‟s fees on appeal.
VII. Conclusion
For the reasons elucidated above, we affirm the trial court‟s equitable distribution
of the parties‟ marital property. We reverse the trial court‟s award of attorney‟s fees to
Wife, and we subtract $8,850 from the trial court‟s award of fees and costs totaling
$11,563, thereby modifying that award to the amount of $2,713. We deny Wife‟s request
for an award of attorney‟s fees on appeal. Costs on appeal are assessed one-half to the
appellant, Donald Waters, and one-half to the appellee, Yvonne Waters. This case is
remanded to the trial court, pursuant to applicable law, for collection of costs assessed
below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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