Judy Lynn Patterson Conner v. Billy Ray Conner

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE FILED February 9, 2000

Cecil Crowson, Jr. Appellate Court Clerk E1999–02289-COA-R3-CV JUDY LYNN PATTERSON CONNER, ) C/A NO. 03A01- 9903-CV-00095 ) Petitioner-A ppellant, ) HAM ILTON CIRCU IT ) vs. ) HON. JACQUELINE E. SCHULTEN, ) JUDGE BILLY RAY CONNER, ) ) AFFIRMED AS MODIFIED Respondent-Appellee. ) AND REMANDED

SHER RY B. PA TY, PAT Y, RYM ER & U LIN, P.C., Chattano oga, for Petitioner- Appellan t.

LESLIE B. McWILLIAM S, Chattanooga, for Respondent-Appellee.

O P I N IO N

Franks, J.

In this divorce action the wife has appealed and raises issues as to the amount of the alimony award and the division of marital property. The husband obje cts to an aw ard o f alim ony in futuro and the Order requiring him to pay $2,047.20 for the w ife’s atto rney’s fe es.

The parties were m arried in 197 0. At the tim e the wife was 16 yea rs old with a ninth grade education. The husband was age 22, and had an eighth grade educa tion. Tw o childr en we re born to the m arriage , both of whom are now adults. *2 The you ngest c hild con tinues to reside in the ma rital resid ence w ith the w ife.

At the time of trial, the husband’s income was $31,200.00 per year plus occasio nal bon uses. T he wif e has ne ver bee n emp loyed ou tside the home .

Following trial, the wife was granted a divorce on the grounds of inappropriate marital conduct, and was awarded the marital residence. The husband was awarded an equity interest in the residence in the amount of $11,500.00. The wife is to satisfy the lien within seven years of the order, or upon the sale of the residence, her remarriage or death, whichever occurs first. The husband was awarded his 401(k) plan maintained through his employment. Spousal support for the wife was set at $40 0.00 per m onth for o ne yea r and then $300.00 per m onth as alimony in futuro.

Trial courts have broad discretion to determine w hether spousal suppo rt is need ed and , if so, its n ature, am ount, an d durat ion. See Garfinkel v. Garfinkel, 945 S.W.2d 7 44, 748 (T enn. Ct. A pp.1996 ); Jones v. Jones, 784 S.W.2d 349, 352 (Tenn. Ct. App. 1989). The two most important factors in considering alimony, are the demons trated need of the disad vantaged spouse an d the obligo r spouse’s a bility to pay. See Kinard v. Kinard, 986 S.W.2d 220 (Tenn. Ct. App. 1998). Alimony is not intended to provide a former spouse with relative financial ease, but the award must be ma de in su ch a w ay that the spouse s appro ach eq uity. Long v. Long, 968 S.W.2d at 292, 295 (Tenn . Ct. App. 1997).

The evidence establishes that the wife needs support. She testified her monthly expenses total $962.00. While there is no evidence that the wife cannot work, it is unlikely that she will be able to earn enough to meet all of her needs, taking *3 into acco unt h er lim ited e ducation , bac kgro und and age. Acc ordingly, a limo ny in futuro was proper in this case. As to the amount of alimony awarded, we are required to take into ac count the h usband’s ability to pay. The hu sband ha d a net mo nthly income o f $1,768.9 9, which f igure includ ed deduc tions for he alth insuranc e and his 401(k). He lists his monthly expenses at approximately $1601.83. This includes estimated rent cost of $400 per month and utilities of $150 per month. At the time, he was living rent free at his employer’s place of business, but he would have to move once th e divor ce proc eeding s were conclu ded.

The Court ob viously found some o f the husband’s ex penses were unnecessary in making the award of alimony. We conclude that the award of $400.00 per month was appropriate, but we do not believe it should be reduced to $300.00 after twelve mon ths. Of course, if there are m aterial change of cond itions, the award may be increased or decreased at any time.

The wif e insists she sh ould have been aw arded the h ouse in fu ll or, in the alternative, that she should not have to pay off the equity within seven years.

Trial courts have wide discretion in the manner in which marital proper ty is divide d, and th eir decis ions are accord ed grea t weigh t on app eal. Wade v. Wade, 897 S.W .2d 702, 71 5 (Tenn. C t. App. 199 4); Wallace v. Wallace, 733 S.W.2d 102, 106 (Tenn. Ct. App. 1987). The Trial Court's decision on the distribution of marital property is presumed correct unless the evidence preponderates otherwise. Wallace v. Wallace, 733 S.W.2d 102, 106 (Tenn. Ct. App. 1987)

Tennessee Code Annotated § 36-4-121(c) sets forth the criteria which the courts of this state should consider in making an equitable distribution of marital *4 property. Considering all the factors, we conclude that the Court’s distribution of marital property was equitable, and we affirm.1

In determin ing whe ther to awa rd attorney’s fee s, the Trial Co urt should consider the relative factors set forth in T .C.A. §36-5-101 (d)(1), which factors gov ern the aw ard of a limony. Houghland v. Houghland, 844 S.W .2d 619, 62 3 (Tenn. C t. App.1992). W here the wife dem onstrates that she is financially unable to affo rd counsel, and where the husband has the ability to pay, the court may properly order the husba nd to pa y the wif e's attorn ey's fees. Harwe ll v. Harwe ll, 612 S.W.2d 182, 185 (Tenn. Ct. App .1980).

The husband argues that the wife was granted a greater portion of the marital property and she should pay her own attorney’s fees. He also argues that the wife “has not even bothered looking for a job”. While the wife was awarded a greater percentage of the assets, she did not receive any liquid assets to pay her fees. She has no income, while the husband earns over $30,000 a year. We find no abuse of discretio n by the T rial Cou rt in aw arding attorney’s fees to t he wif e.

We affirm the judgment of the Trial Court, as modified, and remand with the c ost o f the appeal assessed o ne-h alf to each party.

__________________________ Herschel P. Franks, J.

CONCUR: 1

The marital house was valued at $33,000.00 at the time of the divorce.

___________________________ Houston M. Godd ard, P.J.

___________________________ D. Michael Swiney, J.