SHELLEY (DOUGLAS) STEVENSON,    )
                                )
     Plaintiff/Appellee,        )      Appeal No.
                                )      01-A-01-9506-CV-00230
v.                              )
                                )      Davidson Circuit
MICHAEL KINGSTON STEVENSON,     )      No. 93D-3651
                                )
     Defendant/Appellant.       )
                                                      FILED
                                                          December 18,
               COURT OF APPEALS OF TENNESSEE                  2001
                MIDDLE SECTION AT NASHVILLE           Cecil Crowson, Jr.
                                                          Appellate Court Clerk


     APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

                   AT NASHVILLE, TENNESSEE


           THE HONORABLE MURIEL ROBINSON, JUDGE




MIKE W. BINKLEY
150 Second Avenue North, Suite 300
Nashville, Tennessee 37201
     ATTORNEY FOR PLAINTIFF/APPELLEE



JACK NORMAN, JR.
213 Third Avenue North
Nashville, Tennessee 37201

NADER BAYDOUN
JOHN I. HARRIS, III
Suite 2420, Nashville City Center
511 Union Street
Nashville, Tennessee 37219-1716
     ATTORNEYS FOR DEFENDANT/APPELLANT




                      AFFIRMED as MODIFIED
                          and REMANDED
                                               SAMUEL L. LEWIS, JUDGE
                      MEMORANDUM OPINION1
          This is an appeal by defendant, Michael Kingston Stevenson

(Husband), from the trial court's award of alimony in solido,

alimony in futuro, the amount of child support award, and the award

of additional alimony in solido of $9,700.00 for plaintiff, Shelly

Sue Douglas Stevenson's (Wife), attorney's fee.



          The parties were married in 1982 and have two sons of the

marriage, one thirteen and the other eleven. The parties separated

in September 1993.



          At the time the parties married, and until 1984, they lived

in a studio apartment located in some mini warehouses which were

owned by Husband's parents and brother.          The parties had lived at

the studio apartment prior to their marriage.



          From 1984 to 1991 they lived in Key West, Florida at some

property owned by the Husband's parents and brother while the

Husband worked for the parents and the brother to reconstruct and

remodel the property.      In 1991 the parties moved back to Nashville

and moved into the Husband's parents home which is divided into

separate apartments.



          The Husband has a high school education and approximately

two years of college.        He quit college in 1977 and began doing

general repair maintenance and construction work for his parents

and brother.    He has continued to work for his parents and brother


      1

Court of Appeals Rule 10(b):
      The Court, with the concurrence of all judges participating in the
      case, may affirm, reverse or modify the actions of the trial court
      by memorandum opinion when a formal opinion would have no
      precedential value. When a case is decided by memorandum opinion it
      shall be designated "MEMORANDUM OPINION," shall not be published,
      and shall not be cited or relied on for any reason in a subsequent
      unrelated case.

                                       2
doing this type of work since 1977.              He initially earned between

three and six dollars per hour working for his parents and in

addition, his parents provided him and his Wife a place to live.

In 1992 the Husband started receiving a salary of $200.00 per week

from his father in addition to having living accommodations and

utilities furnished as well as access to a vehicle.              The Wife also

worked for the Husband's family "the whole time" the parties were

married.   Their joint tax returns for 1986 through 1991 show a

combined   net    annual   income     which      ranges   from   $5,293.00   to

$10,975.00.



        The parties had lived together before they married, and the

Wife therefore knew where they would live and what type of career

her Husband had in mind after the marriage.           She knew that he owned

no property.       The property is owned by Husband's parents and

brother and was acquired by them prior to the time that the parties

married.   There is no evidence the Husband ever invested any money

in any of the properties owned by the parents or his brother.



        The Husband's parents are now in their seventies and he does

not believe      they   would   be   able   to   maintain   their   investment

properties if he took a job independent of them.            He has not sought

other employment because he feels an obligation to take care of his

parents and because he believes that he would be unable to net any

more working for a third party because his living expenses would be

greater and would not be taken care of as they are at the present

time.



        In early 1992, the Wife applied for Medicaid after she had

learned that she had a brain tumor and because of her concern of

the financial drain that treatment might put on the "family."                She

was advised at the time she applied for Medicaid that she also

qualified for food stamps and AFDC.

                                       3
         The Wife has two years of college and will complete Baptist

Hospital's LPN program in May 1995.              Her medical problems do not

prevent her from being employed.              She has had various jobs since

she and the Husband separated in which she earned $6.00 to $8.75

per hour.



         The Husband insists that his income should be calculated

exclusively by his reported salary of $800.00 per month plus his

food    and   lodging,    and   that    his    earning     capacity   should     be

determined exclusively by his opinion that he would be able to earn

only $400.00 per week in the open labor market.                    Husband also

asserts that because the Wife is obtaining her license as a

practical     nurse,     that   their   respective       incomes   and    earning

capacities are approximately equal.             The Husband therefore argues

that the trial court abused its discretion in awarding the Wife any

support whatsoever.



         The Husband contends that the trial court erred in its

factual finding that he had the ability to pay the $700.00 per

month    support   awarded      to   the    Wife.     He    insists      there   is

insufficient evidence to establish an earning capacity in excess of

$20,800.00 per year, and that the expert's testimony relative to

his earning capacity should have been rejected.                 He also argues

that any consideration of the financial resources of his family or

the "gifts" he received from the family should be rejected.



         The trial court had before it the information contained in

the Husband's tax returns and was unpersuaded by this argument or

by the Husband's opinion of his earning capacity and the sources of

his income.     The record shows that an assessment of the Husband's

earning capacity was difficult because the Husband had worked for

the family's partnership for a nominal salary for his entire

working life and he had no history of income in the open job

                                        4
market.



          However, the evidence did contain a comprehensive list of

skills    possessed   by   the   Husband,   his   prior   work   experience,

description and photos of the projects he had completed, the worth

placed on his skill and experience by his employer, i.e. his

family, and expert testimony relative to what the Husband would be

able to earn if he quit the family partnership and obtained a job

in the open market.



          The trial judge was persuaded by all of the evidence rather

than believe the Husband's assessment of himself.                 The court

established the Husband's support obligations according to the

factual finding that the Husband was underemployed and had an

earning capacity which would make it sufficient for him to pay the

support awarded.      This factual conclusion depends primarily upon

the credibility assessment made by the trial judge and is entitled

to great weight on appeal.       Town of Alamo v. Forcum-James Co., 327

S.W.2d 47, 49 (Tenn. 1959).         In fact, to overturn this finding

requires concrete and convincing evidence other than oral testimony

of witnesses.    Tenn. Valley Kaolin Corp. v. Perry, 526 S.W.2d 488,

490 (Tenn. App. 1974).      There is no evidence cited by the Husband,

either oral or documentary which preponderates against the trial

court's factual findings. There is evidence in the record from the

Wife that the Husband earned approximately $3,000.00 in cash per

month which was not reported as taxable income and in addition,

valuable fringe benefits of his participation by working for his

family. These benefits included free lodging, free transportation,

payment of medical costs, cash as needed, and subsidization of

living expenses and access to the family resources.



          The Wife presented an expert's testimony that showed that



                                     5
Husband's earning capacity in the open labor market was between

$49,000.00 and $96,000.00 per year.        It shows that the cash

withdrawals made by the Husband for family expenses, his declared

salary, the value of housing and transportation, along with medical

care, access to funds when he needed them and general financial

security exceeds, or is equal to, the median earning capacity

presented by the Wife's expert witness.



       Following our review of this record we are of the opinion

that the evidence does not preponderate against the findings of the

trial court that the Husband has the ability and the Wife has the

need for $700.00 per month alimony.



        Defendant's second issue is:      "The trial court erred in

awarding the Wife $12,000.00 as alimony in solido."



       It is clear from the trial court's statement that this

amount was based solely on the fact that the parties were married

for twelve years and what the Husband might have been able to save

if he had worked outside the family.



       We presume from the trial court's factual finding that the

court intended to retroactively impose a duty on the Husband to

maximize the marital estate during the parties' marriage.       The

trial court appears to have placed the entire burden for managing

the marital estate on the Husband but without any concurring

obligation on the Wife.   The trial court stated that the Husband

had "elected to enhance the estate of his parents and brother to

the exclusion of his own marital estate with his wife, and as a

result she has no assets."   The trial court had already found that

the parties did not have any material marital estate.   "For twelve

years these parties had - twelve years of marriage they have

virtually zero in the marital estate, but he does have earning

                                 6
capacity."     The trial court in awarding alimony in solido stated

"the court further finds that Mr. Stevenson has the ability to pay

a lump sum amount of alimony.       As I said he's worked for twelve

years, and has virtually no marital estate because he's enhanced

other people's estate to the detriment of his family.          I will award

her $12,000.00 as alimony in solido."



        We think it is clear from the record that these parties had

no marital estate.        The trial court awarded what marital assets

there   were   to   the   Wife.   The   Wife   asked    for   and   received

substantially all of the tangible assets.          She retained various

items of jewelry which she had received from her Husband during the

marriage and which had an original cost in excess of $5,470.00.

She retained her investment account that her mother had for her

with a balance of "$10,000.00 to $15,000.00."          She also retained a

car which was purchased for $4,400.00 and was given to her by the

Husband's family.         She disposed of this automobile after the

parties separated.



        There is nothing in this record to show that the Husband had

any bank accounts, real property, or current assets or any estate

from which to pay alimony in solido.       Alimony in solido should be

awarded generally only out of a spouse's estate.              Houghland v.

Houghland, 844 S.W.2d 619, 622 (Tenn. App. 1992).             In Houghland

this court rejected the Husband's argument that the trial court had

improperly awarded alimony in solido out of an expectation of

future earnings, noting that there was an exception to the general

rule which applied under the facts of Houghland.



        In view of the above circumstances, we conclude
        that the trial judge did not abuse her discretion
        in awarding Husband to pay the amount of the note
        received as alimony in solido. Our review of the
        record indicates that Husband disposed of marital
        assets without informing Wife and later concealed


                                    7
       these actions from her.    We believe that these
       actions justify a departure from the general rule
       announced in Aleshire.

Id. at 623.



       Here, there was no factual finding nor is there any evidence

in the record to establish the Wife's need for an award of alimony

in solido or an award of such in the amount established by the

trial court.      There is no factual finding of the existence of any

assets or estate that the Husband has from which to make the

alimony in solido payments.       The only finding by the trial court

with respect to Husband's ability to make any payments other than

reliance upon his parents and brother was his earning capacity,

that is, his expectations of future earnings.



       Under these circumstances we are of the opinion that the

trial court erred in awarding the Wife alimony in solido.



       Defendant's next issue is:               "The trial court erred in

awarding the Wife $800.00 per month as child support."



       In this court the Husband contends that the trial court

erred in setting the child support obligation without making a

finding in regard to his net income in applying the child support

guidelines.       He asked that this issue be remanded to the trial

court for     a   determination   and       written   findings   if   the   court

deviates from the guidelines.       At trial no such demand was made.

Defendant Husband stated in closing arguments that:

       This court has made a previous finding that this
       man was under-employed and you set the child
       support at $800.00 per month, and that equates out
       to an income of $40,200.00 for Mr. Stevenson. Now,
       if the court please, I think that's stretching his
       ability, but we'll live with that and we have lived
       with it. I say 'we.' I mean Mr. Stevenson. He
       has made the payments of child support. And at the
       outset of this case I told the court that he would
       continue to make those payments of child support
       even if he had to borrow it from his family, which

                                        8
       that's exactly where it's coming from. Now, if you
       believe what he says about his income, his earning
       capacity ... then you're taxing him in child
       support way beyond his means but we will accept
       your finding as to his ability to earn income.



       Here, it was almost impossible for the trial court to

precisely calculate the Husband's actual income because his family

fully supported him and in exchange he worked for the family on a

consistent basis for small monetary compensation.    The court could

only determine that the Husband was provided "any and all funds"

that either he or the Wife or the children needed.        There was

nothing in the record from which the trial court could accurately

pinpoint the Husband's earning capacity because he had never worked

in the open job market.   In regard to his earning capacity, the

trial court had a range of between $49,000.00 and $97,000.00 from

which to chose based on the Wife's expert's opinion testimony.



       The Wife contends that the trial court did as best it was

able in setting child support in this case.



       The Wife contends that the child support should be set

according to the mean earning capacity as testified to by her

expert witness, Dr. Anchor.   That is, $62,400.00.



       Under the guidelines, child support is determined as a

percentage of the obligor parents' net income and presumes that the

obligee parent will be expending an equal percentage of net income

for support of the parties' children. Malone v. Malone, 842 S.W.2d

621, 624 (Tenn. App. 1992).



       From our reading of this record, we are of the opinion that

the trial court's findings regarding child support do not reflect

that the court set support in accordance with the guidelines.    The

trial court made no findings regarding the Wife's net income and

                                9
made no findings regarding the application of the child support

guidelines to the Husband's net income.                 There were no findings

made regarding whether the application of the guidelines would be

just or equitable under the circumstances.



       We are unable to tell from the record whether the trial

court was applying the guidelines or deviating from them.                        No

specific    findings    were     made   by    the    court   that   it   would   be

appropriate to deviate from the guidelines. The trial court merely

set child support for the two children to remain unabated even

after the eldest child reached the age of majority.

       Neither of the parties in their brief discussed the
       child support guidelines and the record does not
       reflect that at trial they attempted to determine
       the net income of either of the parties in order to
       determine the correct amount of support. The trial
       court in the decree did not find the amount of
       support based upon the guidelines nor did it make
       written findings that the application of the
       guidelines would be unjust or inappropriate as
       required in Tennessee Code Annotated section 35-6-
       101(e)(1). Therefore, this case must be remanded
       to the trial court for determination of the amount
       of child support based upon the [sic] child support
       guidelines or if they are not appropriate, written
       findings by the trial court as required by the
       statute.

Malone, 842 S.W.2d at 624-25.



       In the instant case, on remand the trial court should make

findings regarding the Husband's net income and the appropriate

amount of     child    support    under      the    guidelines   based   upon    the

Husband's net income and should the trial court deviate from the

guidelines, the basis for such deviation.



       The defendant's next issue is:                "The trial court erred in

requiring the Husband to pay any and all of the Wife's medical

expenses which are not otherwise covered by medical insurance until

her death."




                                        10
       The trial court ordered the Husband to pay the Wife's future

medical expenses which are not covered by either TennCare or other

insurance which might be obtained by the Wife.            It is Husband's

contention that the trial court erred because its authority is

limited to requiring a spouse to pay premiums of insurance for the

disadvantaged spouse as set forth in Tennessee Code Annotated

section 36-5-101(f).



       The trial court found that the Husband had "shirked" his

responsibility to provide medical insurance for his family during

the marriage and "now it's become a big problem because the Wife is

probably uninsurable other than TennCare."         The Wife argues and we

agree that the Husband is seeking to benefit from his failure to

adequately provide health insurance for the Wife during marriage.

Under the Husband's argument the trial court would have been

authorized to order him to maintain insurance for the Wife if he

had had insurance on her but because the Wife is uninsurable she

must be left to fend for herself.       We are of the opinion that the

law is clear that the trial court was authorized to order the

payment of uncovered medical expenses of the Wife by the Husband.

See Green v. Green, 8 T.A.M. 10-19 (Tenn. App. 1983).



       In Clift v. Clift, 4 T.A.M. 33-27 (Tenn. App. 1979) the

trial court   ordered   the   husband   to   pay   the   medical   expenses

incurred by the wife for her treatment of alcoholism and to pay for

the wife's future medical expenses, particularly her expenses

related to recovery from alcoholism. On appeal, the husband argued

that such an order was contrary to public policy and was so

indefinite as to be surplusage and unenforceable.              This court

affirmed the trial judge's decision stating "the statute gives a

trial court broad power in both setting and modifying the amount

and type of award necessary for the particular facts involved.



                                  11
This statutory power may be used at the trial court's discretion,

and the use of that power will not be interfered with by this court

unless there is a showing of abuse.            Id. at 3.



          Defendant's fifth issue is:           "The trial court erred in

awarding the Wife additional alimony in solido of $9,700.00 to

offset her attorney's fees."



          The Husband was ordered to pay $9,700.00 as reasonable

attorney's fees which Wife incurred in the trial of this case.



          It is the Husband's insistence that the Wife should be

required to pay her attorney's fees by liquidating her separate

property, which was comprised of some jewelry given to her by the

Husband during their marriage, and her investment account between

$10,000.00 and $15,000.00 which was given to her by her mother.

While it is not appropriate to award attorney's fees when the

spouse is able to pay such fees, either from her separate assets or

from funds awarded to the spouse by way of property division or

alimony, if the financial provisions made for the disadvantaged

spouse by way of alimony do not include the means out of which

counsel    fees   can   be   reasonably   be    paid,   the   trial   court   is

authorized to grant to the disadvantaged spouse additional alimony

for the purpose of enabling her to pay her attorney.                  Palmer v.

Palmer, 562 S.W.2d 833, 839 (Tenn. App. 1977).



          The award of attorney's fees lies within the discretion of

the trial court and this court "will decline to disturb the trial

court's decision regarding attorney's fees unless the decision is

not supported by a preponderance of the evidence."              Luna v. Luna,

718 S.W.2d 673, 676 (Tenn. App. 1986).                  This court will not

ordinarily interfere with the allowance of attorney's fees by the



                                     12
trial court for services in the trial court unless it is readily

apparent that an injustice has been perpetrated.



          Here, the Wife had only meager assets and nothing in

property division because the parties had no marital estate.



          Under the facts in this record we are of the opinion that

the evidence does not preponderate against the trial court's

determination that the Wife is entitled to additional alimony of

$9,700.00 to "offset her attorney's fees."



          We have considered the plaintiff's request that she be

awarded her attorney's fees incurred in this appeal.       On remand,

the trial court shall conduct a hearing regarding whether the

plaintiff is entitled to additional alimony for attorney's fees on

this appeal and if so the reasonable amount.



          The judgment of the trial court is affirmed as modified, and

the cause is remanded to the trial court for further proceedings in

conformity with this opinion.



          Costs on appeal are taxed to the defendant/appellant.




                                    __________________________________
                                    SAMUEL L. LEWIS, JUDGE



CONCUR:



_________________________________
HENRY F. TODD, P.J., M.S.



_________________________________
BEN H. CANTRELL, JUDGE



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