Gary Wayne Robertson v. Lori Vanhooser Robertson - Concurring ( 1998 )

IN THE COURT OF APPEALS
AT KNOXVILLE FILED
November 9, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
GARY WAYNE ROBERTSON, ) C/A NO. 03A01-9711-CV-00511
)
Plaintiff-Appellee, )
)
)
)
)
v. ) APPEAL AS OF RIGHT FROM THE
) HAMILTON COUNTY CIRCUIT COURT
)
)
)
)
)
LORI VANHOOSER ROBERTSON, )
) HONORABLE W. NEIL THOMAS, III,
Defendant-Appellant. ) JUDGE
For Appellant For Appellee
LEROY PHILLIPS, JR. SHERRY B. PATY
Phillips & Caputo Paty, Rymer & Ulin, P.C.
Chattanooga, Tennessee Chattanooga, Tennessee
O P I N IO N
AFFIRMED IN PART
1
MODIFIED IN PART
REVERSED IN PART
REMANDED Susano, J.
This is a divorce case. The trial court granted Lori
Vanhooser Robertson (“Wife”) a divorce on the ground set forth at
T.C.A. § 36-4-101(3)1; awarded the parties joint custody of their
16-year-old son; ordered Gary Wayne Robertson (“Husband”) to pay
Wife child support of $387 per month plus 21% of part of
Husband’s future increases in net income; awarded Wife
rehabilitative alimony of $250 per month for 12 months, beginning
with the month of October, 1997; divided the parties’ property
and debts; denied Wife’s request for attorney’s fees; and made
other decrees not relevant to a resolution of the issues now
before us. Wife appealed, raising issues that present the
following questions for our review:
1. Is the trial court’s division of the
parties’ marital assets and marital debts
equitable?
2. Did the trial court err in awarding joint
custody rather than joint custody with
primary custody in Wife?
3. Did the trial court err in deviating from
the Child Support Guidelines?
4. Is Wife entitled to periodic alimony in
futuro rather than the rehabilitative alimony
awarded by the trial court?
5. If rehabilitative alimony is appropriate,
is the trial court’s award of $250 per month
for 12 months adequate?
1
T.C.A. § 36-4-101(3) provides as follows:
The following are causes of divorce from the bonds of
matrimony:
* * *
(3) Either party has committed adultery.
* * *
2
6. Is Wife entitled to an award against
Husband for her reasonable attorney’s fees,
both at the trial level and on this appeal?
I. Division of Property and Debts
A trial court is vested with broad discretion in
dividing marital property. Kincaid v. Kincaid, 912 S.W.2d 140,
142 (Tenn.App. 1995). The exercise of that discretion will not
be disturbed on appeal unless “the distribution lacks proper
evidentiary support or results from an error of law or a
misapplication of statutory requirements and procedures.”
Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn.App. 1990). A
trial court’s task is to divide marital property in an equitable
fashion, see T.C.A. § 36-4-121(a)(1), giving due regard to the
factors set forth at T.C.A. § 36-4-121(c).
“Trial courts have the authority to apportion marital
debts in the same way they divide the marital estate,” i.e., in
an equitable manner. Mahaffey v. Mahaffey, 775 S.W.2d 618, 623
(Tenn.App. 1989). If equitable, debts should follow the assets
to which they are related. Mondelli v. Howard, 780 S.W.2d 769,
773 (Tenn.App. 1989).
The evidence in this case pertaining to property and
debts, practically all of which was stipulated or otherwise
agreed to by the parties, reflects the following regarding the
parties’ marital property and marital debts:
3
Marital residence, less mortgage (net value) $26,300
Husband’s TVA retirement 43,823
1986 Ford Bronco 3,200
1994 Toyota Camry LE, less debt (net value) (1,623)
1984 GMC S-15 truck 1,800
Furnishings with Wife 3,915
Furnishings with Husband 3,255
“Rusty” the dog - no value given _______
$80,670
Less: Other debts 68,983
Net marital estate $11,6872
=======
The trial court divided the marital property and marital debts as
follows:
Wife
Marital residence subject to mortgage $26,300
1994 Toyota Camry LE subject to debt (1,623)
Furnishings with Wife 3,915
Portion of other debts (22,081)
$ 6,511
=======
Husband
Husband’s TVA retirement $43,823
1986 Ford Bronco 3,200
1984 GMC S-15 truck 1,800
Furnishings with Husband 3,255
“Rusty” the dog
Portion of other debts (46,902)
$ 5,176
=======
As is obvious from the above, the parties were burdened
with substantial debt. The trial court carefully assigned the
parties’ various obligations so as to match them with the assets
to which they were associated. The parties’ debts that were not
related to specific assets were divided in a fashion that gave
due regard to how and why the debts were created.
2
While the trial court found a net marital estate of $16,428, the figure
used in this opinion -- $11,687 -- tracks the essentially undisputed facts.
4
Wife asked the trial court to award her the house, and
the court complied with her request. She asked for the full
equity in the house in lieu of her interest in the TVA
retirement. She suggested that the TVA pension be awarded to
Husband. While Husband was awarded two vehicles, one of them --
the Bronco -- was not operable.
Wife complains that Husband received a disproportionate
share of the marital assets; but this fact, while true, begs the
question. The real issue is whether the trial court equitably
divided the net assets of the parties, i.e., marital assets less
marital debts. It is abundantly clear that the division of the
net assets is fair and equitable to Wife. This is particularly
true in view of the fact that Husband was “saddled” with $46,902
of the parties’ “other debts” of $68,983. This equitable
distribution to Wife can also be seen in the fact that she
received 55.7% of the net marital assets.
The evidence does not preponderate against the trial
court’s division of marital property and marital debts. See Rule
13(d), T.R.A.P. We find no abuse of the trial court’s
discretion.
II. Custody
The trial court awarded the parties joint custody of
their minor3 child, Joshua David, who was 16 years old as of June
2, 1997, the date of the hearing below. As of that date, Joshua
3
At the time of the hearing, the parties’ other child -- Christopher
Joseph -- was 21 years old and had attended Auburn University for three years.
5
had been passed to his junior year in high school. The trial
court’s judgment on the subject of custody is limited to the
following:
The parties are granted joint custody of
their minor child, Josh Robertson and the
parties shall share the responsibility of
caring for their minor child and shall
cooperate with each other in this regard for
the best interest of the parties’ minor
child.
The judgment does not address the subject of the child’s primary
residence or visitation times with the other parent.
In this case, it is clear that the parties’ minor child
had lived with Wife from the date of the parties’ separation up
to the date of the hearing. There is no proof in the record
indicating that this is going to change.4 In view of this, and
in order to memorialize the situation as it existed at the time
of the hearing, we agree with Wife that the trial court’s
judgment should be modified, effective the date of its entry --
October 8, 1997 -- to reflect that the parties are awarded joint
custody with primary residential custody being with Wife. In
view of the chid’s age, we do not believe it is necessary or
appropriate, in this case, to set forth the specifics of the
child’s visitation with Husband. There is reason to believe,
based on the record before us, that father and son can and will
find a “comfort level” as to their time together. There is
4
We recognize that the trial court’s judgment states that “the parties
shall share the responsibility of caring for their minor child,” but there is
no reason to believe that the child will, in fact, spend half of his time with
Husband. The Guidelines focus on where a child is actually living, and not on
the legal label -- such as joint custody -- decreed by a court. See
Tenn.Comp.R. & Regs., ch. 1240-2-4-.02(6).
6
nothing in the record to indicate that Wife is inclined to
interfere with this relationship, and she is admonished not to do
so.
III. Child Support
On the subject of child support, the judgment provides,
in pertinent part, as follows:
[Husband] shall pay to [Wife] the sum of
$658.00 per month as child support through
September, 1997 based on his annual gross
income of $52,000.00 per year directly to
[Wife]. Beginning October, 1997, [Husband’s]
child support obligation will be $387.00 per
month. The $387.00 per month child support
to be paid by [Husband] is calculated by
taking the difference between [Husband’s]
present base salary of $52,000.00 and
[Wife]’s anticipated base salary of
$22,000.00 and setting the amount based on
the guidelines after taking the difference in
these two (2) salaries.
To the extent that [Husband’s] gross income
exceeds the amount of $52,000.00, child
support will be increased by twenty-one
percent (21%) of the increase in net income
prior to September, 1997 and twenty-one
percent (21%) of the increase difference in
the net incomes of the parties after that
date.
We find and hold that the trial court’s approach in crafting the
child support award is erroneous as a matter of law; and,
furthermore, that it is based on a finding of fact that is
contrary to the weight of the evidence.
A.
7
Child support is addressed extensively at T.C.A. § 36-
5-101. In subsection (a)(1) of that statute, the court is
directed to “set a specific amount [of child support].”
(Emphasis added). In subsection (a)(2)(A) of the same code
provision, the following can be found:
Courts having jurisdiction of the subject
matter and of the parties are hereby
expressly authorized to provide for the
future support of a spouse and of the
children, in proper cases, by fixing some
definite amount or amounts...
(Emphasis added). These provisions clearly reflect the intent of
the legislature that child support be set in a definite dollar
amount. See the unreported case of Lovan v. Lovan, C/A No.
01A01-9607-CV-00317, 1997 WL 15223 (Court of Appeals at
Nashville, January 17, 1997).
In the case at bar, the trial court set a specific
amount of support -- $658 per month through September, 1997, and
thereafter $387 per month -- but it then awarded additional child
support based on a percentage, i.e., 21%, of an amount to be
determined in the future. It is clear from the applicable
statute and case law that this approach does not conform to the
legislative mandate.
In the Lovan case, the trial court ordered the obligor
to pay $1,783 per month as child support for two minor children
based on a monthly income of $8,000. It further directed that he
pay the obligee, as additional child support, 32% of any income
in excess of $96,000 per year. In vacating the child support
8
award based on future increases in income, this court said the
following:
We believe that the trial court exceeded its
authority in ordering an automatic adjustment
in child support based upon a percentage of
the husband’s future income as determined by
his income tax return. While the child
support guidelines create a rebuttable
presumption as to the correct amount of child
support, based upon the obligor’s income,
Tenn.Code Ann. § 36-5-101(a)(2)(A) only
authorizes the courts to provide for the
future support of a spouse or of the children
“... by fixing some definite amount or
amounts to be paid in monthly, semimonthly or
weekly installments, or otherwise, as
circumstances may warrant ....”
Such a definite obligation provides the
dependent children with a predictable amount
of support, and enables the obligor to
shoulder a known burden. If the obligor’s
income should increase or decrease
substantially, then either party may apply to
the court for a modification of the child
support obligation. In view of the existence
of a well-established mechanism for
adjustment of child support, the court’s
action, although well-intentioned, amounts to
an extension of its authority beyond the
mandate of the legislature.
1997 WL 15223 at **4-5. (Emphasis in Lovan). To the same effect
is the unreported case of Smith v. Smith, C/A No. 01A01-9705-CH-
00216, 1997 WL 672646 (Court of Appeals at Nashville, October 29,
1997) wherein a panel of the Middle Section of this court
disapproved of a child support award calculated, in part, based
on “32% of any future bonus or commission” of the obligor. 1997
WL 672646 at **1.
The trial court in the instant case erred when it
partially based the child support award on a percentage of a
portion of Husband’s future increases in income.
9
10
B.
We also find that the trial court erred when it
established child support based upon the parties’ relative
earnings. While this approach -- sometimes referred to as the
“income shares approach” -- has been adopted in some states5, it
has not been adopted in Tennessee. The Child Support Guidelines
(“Guidelines”) contemplate that support will be calculated based
solely upon the income of the “parent with whom the child(ren) do
not primarily live.” Tenn.Comp.R. & Regs., ch. 1240-2-4-.03(1).
It is clear that the income of the parent with whom the children
live does not play a part in the calculation contemplated by the
Guidelines:
The child support award is based on a flat
percentage of the obligor’s net income as
defined in paragraph (4) below depending on
the number of children for whom support is
being set in the instant case. While the
income of the obligee should not be
considered in the calculation of or as a
reason for deviation from the guidelines in
determining the support award amount, the
formula presumes that the obligee will be
expending at least an equal percentage of net
income as that of the obligor for the support
of the children for whom support is sought.
Tenn.Comp.R. & Regs., ch. 1240-2-4-.03(2). (Emphasis added).6
While the trial court is authorized to deviate from the
Guidelines-calculated child support, see T.C.A. § 36-5-101(e)(1),
5
Under the “income shares approach,” the child support obligation of the
obligor is based upon an analysis that focuses on the parties’ relative
earnings. See, e.g., Saleem v. Saleem, 494 S.E.2d 883, 886 (Va.App. 1998);
Fink v. Fink, 462 S.E.2d 844, 853 (N.C.App. 1995); and Voishan v. Palma, 609
A.2d 319, 321 (Md. 1992).
6
The basic theory underlying the Guidelines is that a child is entitled
to share in the obligor’s standard of living as established by that parent’s
income, regardless of the child’s minimum needs. Nash v. Mulle, 846 S.W.2d
803, 805 (Tenn. 1993).
11
it must do so in a way that is consistent with the deviation
principles found in the Guidelines. See Jones v. Jones, 930
S.W.2d 541, 545 (Tenn. 1996).
It is clear that a court is permitted to make a
downward deviation from the Guidelines-calculated support if an
obligor “demonstrates that he/she is consistently providing more
care and supervision...than contemplated” by the Guidelines.
Tenn.Comp.R. & Regs., ch. 1240-2-4-.04(1)(b); but this provision
does not authorize a deviation in the instant case because there
is absolutely no evidence to indicate that the necessary factual
predicate is present here. On the contrary, the evidence tends
to support a conclusion that Husband is with his son less than
the amount of time contemplated by the Guidelines.
There is simply no evidence in this case supporting a
downward deviation. See Jones, 930 S.W.2d at 544-546.
C.
The trial court determined that the child support
analysis should be based upon a finding that Husband’s gross
annual income was $52,000, his annual salary for regular hours.
We find and hold that this determination is contrary to the
weight of the evidence.
Husband had worked at the Tennessee Valley Authority
(“TVA”) for 20-plus years. For the period 1993 - 1996,
inclusive, his annual gross TVA income, including overtime, had
been as follows:
12
1993 $50,960
1994 54,341
1995 62,397
1996 76,333
His gross income to May 11, 1997, was $22,437.
In 1995, Husband earned overtime pay of approximately
$12,000; in 1996, his overtime amounted to approximately $25,000.
He testified that he had some 650 hours of overtime in 1996. He
indicated that this figure was unusually high because of overtime
work he performed in connection with a severe power outage. He
did not expect that much overtime in the future; however, he
acknowledged that he had worked 90 hours of overtime in the first
five months of 1997.
Husband estimated that he would have $250 of monthly
overtime in the future.
The trial court determined that it was appropriate to
fix Husband’s child support based solely on his regular salary of
$52,000. It then fixed child support, utilizing an approach that
we have found to be legally flawed in two separate respects.
Under the Guidelines, overtime is included in the
definition of “gross income.” Tenn.Comp.R. & Regs., ch. 1240-2-
4-.03(3)(a). “Variable income such as...overtime pay...should be
averaged and added to the obligor’s fixed salary.” Tenn.Comp.R.
& Regs., ch. 1240-2-4-.03(3)(b).
13
We recognize that there may be cases where overtime in
the past should not be factored “into the mix” in establishing an
obligor’s net income. For example, if the evidence clearly
reflects that the obligor will not be earning overtime in the
future, it would be unjust to base child support on a figure that
includes such overtime. In those cases, it is appropriate to set
child support based on the known, predictable income. If
unexpected overtime is later experienced by the obligor and
results in a “significant variance,” see T.C.A. § 36-5-101(a)(1),
as defined by the Guidelines, the court is then in a position, on
petition to modify, to increase the previously-set amount of
child support.
In the instant case, it appears that overtime is a
fairly predictable part of the obligor’s income stream. He may
not experience overtime to the extent that he did in 1996, but
there is every reason to believe that he will work a certain
amount of overtime in the future. In fact, he acknowledged at
trial that he was working some overtime in 1997. While this
testimony is credible and supported in the record, we cannot
accept his testimony that he was only earning approximately $250
per month in overtime pay. The evidence indicates otherwise.
We believe that there are at least two approaches to
accurately calculate Husband’s anticipated income, including
overtime. In the first approach, we begin by observing that he
had worked 90 hours of overtime in the first five months of 1997.
At that rate, he could expect to work 216 hours for the full
year. 216 hours is 33% of the overtime hours worked in 1996,
i.e., 650 hours. One-third of his 1996 overtime pay, i.e.,
14
$25,000, is $8,333. When this is added to his base pay of
$52,000, we are left with an anticipated annual gross income from
TVA of $60,346.
The second approach focuses on Husband’s testimony that
he earned $22,436 through May 11, 1997. His earnings of $22,436,
including overtime, through the first 4.35 months of the year,
extrapolate out to $61,892 per year.7
We believe it is appropriate to use the lesser of these
two figures, i.e., $60,346. This breaks down to a gross income
of $5,028 per month. The Guidelines-calculated child support for
a man earning at this rate of gross pay is $761 per month.8 This
is the correct amount of child support in this case, and there is
no basis for a downward deviation. The trial court’s judgment is
modified to reflect that Husband’s child support obligation is
$761 beginning with the month of September, 1997.
IV. Alimony
The trial court awarded rehabilitative alimony of $250
per month for 12 months. This apparently was based, at least in
part, on the trial court’s determination that Husband’s earning
capacity was $52,000 gross per year. We find and hold that the
evidence preponderates against the trial court’s finding that
rehabilitative alimony of $250 per month for 12 months is a
proper and adequate award in this case.
7
$22,436 is to 4.35 months as $61,892 is to 12 months.
8
The chart accompanying the Guidelines reflects child support of $757
for one child for a man earning a gross monthly income of $5,000. $761 is to
$5,028 as $757 is to $5,000.
15
The issue of alimony is one that addresses itself to
the sound discretion of the trial court. Loyd v. Loyd, 860
S.W.2d 409, 412 (Tenn.App. 1993). “The decision is factually
driven and requires a balancing of the [statutory] factors.” Id.
at 412. See T.C.A. § 36-5-101(d)(1). Of all the factors in the
statute, need, ability to pay, and relative fault have been
identified as the most important. Bull v. Bull, 729 S.W.2d 673,
675 (Tenn.App. 1987). We will not second-guess the trial court
unless there is a showing of an abuse of discretion. Aaron v.
Aaron, 909 S.W.2d 408, 411 (Tenn. 1995).
The relevant statute, T.C.A. § 36-5-101, clearly
reflects a bias in favor of rehabilitative alimony. Id. at
subsection (d)(1); but it is also clear that rehabilitative
alimony, as contrasted to periodic alimony in futuro, is only
favored in those cases where rehabilitation is feasible. Id.
The alimony analysis begins with the threshold
determination of whether or not the spouse requesting alimony is
“economically disadvantaged, relative to the other spouse.” Id.
If the requesting spouse does not fit within this description --
“economically disadvantaged, relative to the other spouse” -- he
or she is not entitled to spousal support and the alimony inquiry
goes no further.
In the instant case, it is clear that Wife is
“economically disadvantaged” vis-a-vis Husband. He has
demonstrated the ability to earn at least in the $60,000-plus
range. In 1996, he earned $76,333. His job seems relatively
16
secure. On the other hand, Wife, who delayed her career in order
to serve as homemaker, wife, and parent, is just now getting
started, at the age of 42, in her chosen field of education. She
started that career in August, 1997, at an annual gross salary of
$22,500. Prior to that, she had only worked as a non-degreed,
substitute teacher for four or five years, earning some $3,000-
$4,000 per year. She received her degree in education in
December, 1996, after completing some three and a half years of
undergraduate college with a perfect 4.0 grade point average. It
is clear that Wife wants to work and plans to work.
Since Wife is “economically disadvantaged, relative to
[her] spouse,” id., we next turn to the question of whether
rehabilitation is “feasible in consideration of all relevant
factors, including those set out in [T.C.A. § 36-5-101(d)(1)].”
Id. In order to answer this question, we must first answer
another “shorthand” question: Rehabilitated to what? We believe
it is clear that this question, in this case, must be answered in
the context of “[t]he standard of living of the parties
established during the marriage.” T.C.A. § 36-5-101(d)(1)(I).
In this 20-year-plus marriage, the parties enjoyed a standard of
living that was funded by an above-average income -- in the range
of $62,000-$76,000 in the last two years of the marriage -- plus
the borrowing power associated with income at that level.
We recognize that not every economically-disadvantaged
spouse is entitled to alimony. This is true regardless of
whether such a spouse can or cannot be rehabilitated. In the
final analysis, the question of whether such a spouse is entitled
to alimony, and, if so, in what amount and for what duration,
17
depends upon a careful weighing of the factors set forth in
T.C.A. § 36-5-101(d)(1)(A)-(L). For example, there may be a case
where the relative fault of the requesting spouse is so egregious
as to militate against any spousal support; or such as to warrant
an award of spousal support in an amount less than that requested
or needed. In any given case, all relevant factors must be
considered in determining whether an award of alimony is
appropriate.
When Wife’s present economic situation is measured
against the parties’ standard of living established during their
relatively long marriage, it is clear that Wife, by her own
efforts, cannot even remotely approach her prior economic
position. This being the case, we find that Wife cannot be
rehabilitated as contemplated by T.C.A. § 36-5-101(d)(1). Hence,
we now turn our attention to the subject of alimony in futuro.
In view of her relatively small salary and her pre-
separation lifestyle, Wife has a demonstrated need for alimony.
While Husband has been burdened with substantial debt, we believe
that he has the ability to pay some periodic alimony in futuro,
albeit not enough to completely return Wife to her prior standard
of living. The amount decreed in this opinion will, however,
allow Wife “to more closely approach her former economic
position,” Aaron, 909 S.W.2d at 411.
The trial court’s judgment is modified to provide that
Husband will pay periodic alimony in futuro at the rate of $250
per month beginning with the month of October, 1997, said alimony
to continue at that rate so long as Husband is obligated to pay
18
child support; and to further provide that in the month following
the last month for which he has a child support obligation, his
periodic alimony in futuro obligation will increase to $600 per
month. This obligation will continue until the remarriage of
Wife or the death of either party, whichever of these three
events occurs first.
In setting Wife’s entitlement to periodic alimony in
futuro without a definite termination date, we have considered
“[t]he relative earning capacity, obligations, needs, and
financial resources” of the parties, see T.C.A. § 36-5-101(d)(1)
at factor (A); “[t]he relative education and training” of the
parties and the income that each can expect in the future, id. at
factor (B)9; “[t]he duration of the marriage” -- 22 years plus,
id. at factor (C); the parties’ ages -- each 42 years old, id. at
factor (D); the parties’ standard of living during their
marriage, id. at factor (I); their relative contributions to the
marriage, id. at factor (J); and the egregious fault10 of Husband
which has deprived wife of her standard of living, id. at factor
(K). These matters, taken together, militate in favor of
periodic alimony in futuro without a definite ending date.
V. Attorney’s Fees
Wife seeks attorney’s fees, both for services rendered
at the trial court level and on this appeal.
9
While Wife has more education than Husband, his work experience is
almost certain to produce more income than Wife’s education degree.
10
The trial court’s finding that Husband had engaged in a year-and-a-
half-long, adulterous relationship with a co-worker is supported by the
evidence.
19
An award of attorney’s fees at trial can be based on a
number of rationales.
The courts of this state long ago recognized their
authority to award legal expenses in child support cases. Graham
v. Graham, 140 Tenn. 328, 334-35, 204 S.W. 987, 989 (1918). The
recovery of attorney’s fees in custody matters is also authorized
by statute. T.C.A. § 36-5-103(c). The statute specifically
provides that such an award is “in the discretion of [the]
court.” Id.
Legal expenses can also be awarded in the nature of
alimony. Dover v. Dover, 821 S.W.2d 593, 595 (Tenn.App. 1991).
In awarding fees under this approach, the court should consider
the factors set forth at T.C.A. § 36-5-101(d)(1)(A)-(L).
Kincaid, 912 S.W.2d at 144. The primary focus is on whether the
requesting spouse has the ability to pay his or her own fees;
and, if not, whether the other spouse has the resources to do so.
Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn.App. 1992).
Decisions pertaining to the awarding of fees as alimony address
themselves to the sound discretion of the trial court, and will
not be disturbed on appeal unless there has been an abuse of that
discretion. Lyon v. Lyon, 765 S.W.2d 759, 762-63 (Tenn.App.
1988).
An appellate court is authorized to award attorney’s
fees in a divorce case for legal services rendered on appeal.
See Seaton v. Seaton, 516 S.W.2d 91, 93 (Tenn. 1974). See also
Ragan v. Ragan, 858 S.W.2d 332, 333-34 (Tenn.App. 1993).
20
We find and hold that the trial court abused its
discretion in failing to award Wife attorney’s fees. Because of
the difference in the parties’ incomes, and in view of the fact
that Husband’s misconduct was the cause of this divorce and
resulting litigation, we believe that it is appropriate that
Husband pay at least some portion of Wife’s legal expenses. We
also believe that Wife is entitled to fees on this appeal as the
prevailing party, said fees to be set by the trial court. On
remand, the trial court will set fees to be paid by Husband in
such amount as it may find just. Seaton, 516 S.W.2d at 93-94;
Folk v. Folk, 357 S.W.2d 828, 828-29 (Tenn. 1962).
VI. Conclusion
The trial court’s decrees regarding custody, child
support, and alimony are modified. The trial court’s judgment
with respect to Wife’s request for attorney’s fees is reversed.
In all other respects, the judgment is affirmed. Costs on appeal
are taxed to the appellee. On remand, the trial court will
modify its judgment to incorporate the changes reflected in this
opinion, and will determine the legal fees to which Wife is
entitled.
________________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
Don T. McMurray, J.
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