                IN THE COURT OF APPEALS OF TENNESSEE

                               AT JACKSON               FILED
                                                    September 30, 1998
                ___________________________________________

ROBBIE ANN STAVELY HENDRIX, )                  Cecil Crowson, Jr.
                                               Appellate C ourt Clerk
                            )
     Plaintiff-Appellee,    ) Madison Chancery No. 51335
                            )
v.                          ) Appeal 02A01-9712-CH-00303
                            )
BILLY GENE HENDRIX,         )
                            )
     Defend ant-App ellant. )




      APPEAL FROM THE CHANCERY CO URT OF MADISON COUNTY
                    AT JACKSON, TENNESSEE




               THE HONORABLE JOE C. MORRIS, CHANCELLOR




For the Plaintiff-Appellee:              For the D efendan t-Appellan t:

Middlebrooks & Gray, P.A.                James S. Hayw ood, Jr.,
Jackson, Tennessee                       Brownsville, Tennessee




                          AFFIRMED AND REMANDED




                                         HERSCH EL P. FRAN KS, J.


CONCUR:

W. FRANK CRAW FORD, P.J., W.S.

ALAN E . HIGHERS , J.
                                         OPINION




               In this divorce action, the Trial Judge granted the wife a divorce,

ordered the defenda nt to pay alimon y in the amou nt of $40 0.00 a mo nth, and ch ild

support for one child in the amount of $750.00, and attorney’s fees for the wife in the

amount of $1,634.67. He also ordered the husband to pay certain debts of the

marriage. On appeal, the husband seeks a reversal of the decree for alimony, payment

of the marital debts and attorney’s fees to the wife. He also seeks a reduction in the

amount of child support awarded by the Trial Judge.

               The parties have been married twice, first in 1969, divorced in 1977 and

remarried in 1978, and separated near the end of 1993. One child at the time of the

divorce was a minor, born on August 28, 1981. Also at the time of the divorce, the

wife was residing at Brownsville, Tennessee, and the husband in California. At the

time of the divorce the wife was earning a gross monthly income of $1,560.00, and the

husband was not employed. He had a history of earning in excess of $5,000.00 per

month, and the wife testified that the major indebtedness of the parties was due to the

husba nd’s pu rchase s of an autom obile, fu rniture a nd item s for his person al use.

               The Trial Judge set the alimony and child support based on the

husba nd’s ea rning c apacity, w hich is a uthoriz ed by statu te. See Tennessee Code

Annotated §36-5-101 et seq. Need, and the ability to pay are the principal criteria for

award ing alim ony. Lloyd v. Lloyd, 860 S.W.2d 409 (Tenn. App. 1993). Applying the

factors set forth in Tennessee Code 36-5-101(d) for awarding alimony, we find the

record supports the Trial Judge’s award of alimony. The relative earning capacity of

the parties is substantially unequal. The educational level of the parties is similar, but

the husband’s work, experience and training is superior. The parties are the same age

and both are in good health and had a relatively long marriage. The Trial Judge found
the husband to be at fault for the breakup of the marriage. The wife testified that she

and her daughter had monthly living expenses in excess of $2,700.00. The award of

alimony was within the Trial Court’s discretion, and we will not disturb this award on

appeal.

               After judgment was entered awarding child support, but before the

judgment became final, the husband filed a motion to reconsider and attached a letter

from an e mployer in C alifornia w hich states tha t the husban d had bee n employed with

that company and would be earning $40,000.00 per year. The husband offered no

eviden ce at the time the motion was h eard, an d the T rial Judg e overr uled the motion .

The award of child support is appropriate on the evidence in this record. The

evid ence befo re the Tri al Judge establish ed th at the husb and had a “ea rning cap acity”

in excess of $5,000.00 per month, and it is appropriate for the Trial Judge to use

earning capacity as a gauge for setting support, unless the spouse can demonstrate that

he or she can no longer earn that income through no fault of their own. We affirm the

judgmen t of the Trial C ourt on the is sue of ch ild support. H oweve r, the husban d is

granted leave to reapply for a reduction if he can demonstrate, by a preponderance of

the evidence, that he has acted in good faith and cannot find gainful employment that

approximates in amount the history of his past earnings.

               Finally, courts ha ve the discre tion to mak e awards to help a spo use to

pay legal e xpens es and c osts in a d ivorce c ase. Fox v. Fox, 657 S.W.2d 747, 749

(Tenn . 1983) . Here, th e wife lacked suffici ent fun ds to pa y her lega l expen ses. See

Houghland v. Houghland, 844 S.W.2d 619, and she would either deplete her

resourc es, or be require d to bor row m oney to p ay her leg al bills. See Harwell v.

Harwe ll, 612 S.W .2d 182, 18 5 (Ct. Ap p. 1980). T he amou nt of fees a nd costs is

reasonable and the award was a proper exercise of the Trial Judge’s discretion. The

evidence does not p reponde rate against th e Trial Co urt’s finding s. T.R.A.P . Rule

13(d).
              We affirm the judgment of the Trial Court for the foregoing reasons, and

remand w ith cost of the appeal asse ssed to app ellant.




                                            __________________________
                                            Herschel P. Franks, J.


CONCUR:




___________________________
W. Frank Crawford, P.J.




___________________________
Alan E. Highers, J.
