                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  January 10, 2006 Session

  WILLIE V. MELVIN, III, M.D. v. ANITA LOUISE JOHNSON-MELVIN,
                                 M.D.

                     Appeal from the Chancery Court for Sumner County
                           No. 2000D-138    Tom E. Gray, Judge



                     No. M2004-02106-COA-R3-CV - Filed April 27, 2006


Dr. Johnson (“the wife”) and Dr. Melvin (“the husband”) were married in October 1988 while the
wife was pregnant with the parties’ first child. That child born in 1989 and the second child born
in 1991 are the only minor children of this marriage. Husband filed a complaint for divorce,
claiming inappropriate marital conduct. The wife counterclaimed in that action. The actions of the
trial court from which the wife appeals, and with which both parties raise issues on appeal, include
the Decree of Divorce issued August 6, 2004; the interlocutory order and memorandum entered July
28, 2004; and three post-trial orders and one memorandum. Issues raised on appeal concern
distribution of marital property, award of alimony and child support, and refusal to award the wife
attorney fees and costs. We affirm the judgment of the trial court in all respects.


     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, J., joined.
WILLIAM C. KOCH , JR., P.J., M.S., filed a separate concurring opinion, in which PATRICIA J.
COTTRELL, J. joined.

Audrey L. Anderson, Nashville, Tennessee, for the appellant, Anita Johnson-Melvin, M.D.

Gregory D. Smith and Aminah M. Collick, Nashville, Tennessee, for the appellee, Willie V. Melvin,
III, M.D.

                                            OPINION

Proceedings and Salient Facts

       The parties to this divorce case married in October 1988. The two children born to that
marriage are still minors. The husband filed for divorce in March 2000, and the wife
counterclaimed. Thus began a contentious battle over visitation, custody, property and support. In
the midst of this battle, in May 2002, the trial court entered an order setting pendente lite support at
$951 per month, or 21% of the husband’s income. The wife filed an amended complaint in April
2004 seeking permanent and periodic alimony due to a lupus diagnosis. In addition, prior to the
final hearing, she filed two motions seeking relief from the pendente lite order. These motions were
taken under advisement pending the final hearing, which took four days spread over three months.


        The court entered its Order and Memorandum on July 28, 2004 regarding rehabilitative
alimony. The Decree of Divorce was entered August 6, 2004. The wife filed a notice of appeal on
August 25, 2004, after which both parties filed motions to alter or amend. These motions were
resolved by two orders and one memorandum. From the actions of the trial court the wife appeals,
asserting as error the trial court’s valuation of the marital estate, its refusal to award periodic
alimony, its alleged inadequate modification of the pendente lite child support, as well as its refusal
to award attorney’s fees. The husband challenges the modification of child support as contrary to
statute. In addition, Husband argues that the modification inappropriately required him to pay half
of the private school tuition for the children and improperly gave credit to the wife for mortgage
payments made by her during the divorce. Husband also challenges the amount of rehabilitative
alimony as insufficiently supported by the record.

Marital Property

        When the husband filed his divorce complaint, the trial court entered a Temporary
Restraining Order which enjoined the wife from “dissipating, withdrawing, transferring, or
liquidating any assets, except in the normal course of business with a full accounting, pending orders
of the Court.” In the Decree of Divorce which was entered August 6, 2004, the court identified the
following marital assets:

       The Court ... finds that the marital estate consists of the following: the marital home
       located at 102 Park Court Goodlettsville, Tennessee, which has a fair market value
       of $242,000.00 and a debt as of March 2, 2004 of $147,586.00 with equity of
       $94,404.00. ... The Court finds that the Bank of America checking account in the
       Wife’s name has a value to the marital estate of $562.85. The Court finds that the
       Bank of America Money Market Savings account in the Wife’s name had a value of
       $17,355.61 on March 17, 2000 and as of February 18, 2004 has a value of $8,270.63.
       The Court finds that the marital estate value in the said Money Market Account is
       $8,270.63. The Court finds that the difference therein should be allowed to the wife
       as expenditures for herself and the parties’ two (2) minor daughters. The Court
       further finds that the Bank of America SEP IRA in the name of the Wife formerly
       had a value of $6,861.59 on March 31, 2000 and as of December 31, 2003 had a
       value of $2,687.07 and that for the purpose of the marital estate, the value is
       $2,687.07. The Court finds that the Fidelity Investments account in the name of
       Anita L. Johnson had a value of $203,052.32 on April17, 2000 and as of January 15,
       2004 had a value of $25,737.35. The Court does not reduce that amount to the


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current amount and finds that for purposes of the marital estate, the value of the
Fidelity Investments Account is $203,052.32. The Court finds that the Vanguard
Group Investments Account in the name of the wife has a marital estate value of
$55,372.69. The Court finds that the Janus Overseas funds in the name of the Wife
had a value of $14,741.88 on March 31, 2000 and was closed in May, 2002. The
court finds that for marital estate purposes that asset has a value of $14,741.88. The
Court further finds that the Janus Mercury Funds account in the name of the Wife had
a value of $9,117.02 on March 31, 2000 and was closed in May, 2002. The Court
finds that that account has a value of $9,117.02 for marital estate purposed. The
Court finds that the Tennessee Teachers Credit union account in the name of the
Wife had a value of $4,125.44 on March 31, 2000 and now has a value of $417.01
as of December 31,2003. The Court allows the reduction therein as expenditures for
the wife and two (2) daughters and values this account for marital estate purposes at
$417.01. The Court finds that the TIAA CREF accounts in the name of the Wife had
a value of $142,887.97 on March 31, 2000 and as of December 31, 2003 has a value
of $117,594.94. The Court finds that there was a decline in value but not by
expenditures made by the Wife and thus the Court values this asset for marital estate
purposes at $117,594.94. The Court finds that the John Hancock Life Insurance
Policy on the life of the Wife has a net cash surrender value of $6,903.54. The Court
finds that the Jackson National Life Insurance Policy on the life of the Wife has no
cash value for marital estate purposes. The Court finds that the Paul Revere
Disability policy on the Wife paying $4,000.00 per month maximum disability
benefit has no cash value for marital estate purposes. The Court further finds that the
Amsouth Added Advantage checking account in the name of the Husband has a value
of $4,889.53 for marital estate purposes. The Court finds that the NBA bank account
in the name of the Husband had a value of $2,188.21 on March 15, 2000 and was
closed in May, 2002. It has no value for marital estate purposes, the account being
used for the Husband’s reasonable expenses. The Court finds that the Firstar
Investment Services checking account in the name of the Husband had a value of
$64,497.07 on March 31, 2000 and was closed on May 31, 2001. The Court finds
that for marital estate purposes this account has a value of $64,497.07. The Court
finds that the AmSouth Primary Savings Account in the name of the Husband has a
value of $1,001 .01 for marital estate purposes. The Court finds that the Thrift
Savings Plan (VA Retirement Plan) in the name of the Husband has a value of
$177.62 for marital estate purposes. The Court finds that the Fidelity Investments
Vanderbilt Retirement plan in the name of the Husband has a value of $43, 156.23
for marital estate purposes. The Court finds that the John Hancock Funds in the
name of the Husband has a value of $942.33 for marital estate purposes. The Court
finds that the John Hancock IRA in the name of the Husband has a value of
$11,108.37 for marital estate purposes. The Court finds that the John Hancock Life
Insurance on the Life of the Husband has a cash surrender value of $15,584.70 for
marital estate purposes. The Court finds that the John Hancock Life Insurance
Flexible Variable Policy on his life has a cash surrender value of $12,190.54 for


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       marital estate purposes. The Court finds that the UNUM Provident Life and
       Accident Disability Insurance on the Husband has no such cash value for marital
       estate purposes.

(Emphasis added.)

        The wife challenges the valuation of several of the accounts in her name as of March 2000,
rather than as of a date as near as possible to the final hearing pursuant to the statute . See Tenn.
Code Ann. § 36-4-121 (b)(1)(2001). For his part, the husband argues that since the wife had
dissipated these assets without providing a proper accounting, the trial court acted well within its
discretion in valuing certain property as of the date the divorce complaint was filed. The valuation
and distribution of the marital estate rest within the sound discretion of the trial court. See Ingram
v. Ingram, 721 S.W.2d 262, 264 (Tenn.Ct.App.1986). The court’s decisions in this regard,
especially in matters involving the credibility of witnesses, should not be overturned absent an abuse
of that discretion.

       Courts dividing a marital estate are not required to apply the statutory factors
       mechanically. Batson v. Batson, 769 S.W.2d at 859. The parties are entitled to an
       equitable division of their marital property, not an equal one, Thompson v.
       Thompson, 797 S.W.2d 599, 604 (Tenn.Ct.App.1990), or one that is mathematically
       precise. All that Tenn.Code Ann. § 36-4-121 requires is essential fairness in light
       of the facts of the case.

       Essential fairness is promoted by using valuation and distribution procedures that are
       straightforward and easily applied.

Kendrick v. Kendrick, 902 S.W.2d 918, 930 (Tenn.Ct.App. 1994).

        A full reading of the order in conjunction with the entire record before us suggests dissipation
of assets on both sides of the marital estate’s ledger. The only infirmity in the Decree may rest with
the method employed by the trial court to address that dissipation. In the four instances cited by the
wife on appeal, as well as one instance on the part of the husband’s share, the trial court chose to
value marital accounts as of a date as close as possible to the date the divorce complaint was first
filed. The mechanically precise way of valuation and distribution would be to value all property as
of a date as close as possible to the date of the hearing and then to divide that property in accordance
with the ratio found by the trial court to represent the parties’ respective marital shares of debt and
assets. Separate and apart from that “current” valuation should be the determination of the amount
of any assets dissipated by the parties in the interim between the filing of divorce and the final
hearing. At the discretion of the trial court, the amounts could be applied to ‘balance the ledger’ by
decreasing the offending spouse’s current share or increasing the non-offending spouse’s share.
Although the decree entered by the trial court is innovative, it is nevertheless a straightforward
attempt to address the dissipation in the simplest manner given the particular facts involved in this
controversy. See generally Flannary v Flannary, 121 S.W.3d 647 (Tenn.2003). The decree of the


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trial court fully addresses the apparent dissipation of the marital assets. The record substantiates the
trial court’s actions, and we cannot find an abuse of the trial court’s discretion which would warrant
reversal.

Alimony

        As with the valuation of the estate, the trial court has broad discretion to determine the
appropriate type of alimony to award. See Crabtree v. Crabtree, 16 SW.3d 356, 359 (Tenn. 2000);
see also Hanover v. Hanover, 775 S.W.2d 612, 615 (Tenn. Ct. App. 1989). Permanent alimony is
disfavored under the statute absent a specific finding that rehabilitation is not feasible.

       The trial court is assigned the responsibility and the discretion to fashion an award
       that is appropriate under the circumstances of each case. T.C.A. § 36-5-101. The
       circumstances of the parties as found by the trial court, particularly the potential for
       rehabilitation of one who is economically disadvantaged, rather than the particulars
       of the award, determine if the award is subject to modification.

        The statute reflects an obvious legislative policy that, if possible, the dependency of
       one ex-spouse on the other be eliminated and both parties be relieved of the
       impediments incident to the dissolved marriage, and that an ex-spouse be adjudged
       permanently dependent upon the other only when the court granting the divorce finds
       that economic rehabilitation is not feasible and long-term support is necessary.

Self v. Self, 861 S.W.2d 360, 361 (Tenn. 1993).

        In June 2000, the wife was diagnosed with systemic lupus erythemetosus. At that time,
according to the medical records and the wife’s own testimony, the disease did not affect her ability
to work in any way other than the increased stress normally engendered by a diagnosis of this chronic
and sometimes fatal disorder. The wife eventually took a leave of absence from Metro Nashville
General Hospital and Meharry Medical College, where she had been working prior to the divorce.
She did not cite the lupus diagnosis as a reason for the request, despite having notified Meharry of
the diagnosis. The record reveals that her employer had received certain complaints about the wife
from students and faculty at the college. Though the nature and merit of these complaints are not at
issue in the instant case, the requests for leave reference these complaints (and the stress caused by
them) as reasons for the leave. A leave of absence was granted in August of 2000. The wife
returned to work in December of 2000, and continued there until her contract term ended June 30,
2001. Her employer chose not to renew the contract. The wife has remained unemployed since that
date.

        The wife asserts that her lupus diagnosis renders her unable to be rehabilitated. She argues
that increased flares, or episodes of symptomatic pleuritic pain, numbness in the extremities and
fatigue, so interfere with her ability to work that she can no longer pursue her chosen position as a



                                                  -5-
board certified anesthesiologist. In determining the amount and type of award, the statute makes
clear that a chronic disease is but one of many factors to consider.

       (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;




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               (11) The relative fault of the parties, in cases where the court, in its
               discretion, deems it appropriate to do so; and

               (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 (2005).

        The record reveals no expert testimony concerning any constant episodes so extreme as to
interfere with work. We have only the testimony of Dr. Anita Louise Johnson-Melvin herself–
testimony which the trial court repeatedly found to lack credibility. The testimony of the wife’s
expert, Dr. John Johnson, the rheumatologist to whom the wife was referred for evaluation and
treatment prior to July 2003, shows that the course and frequency of lupus flares was unpredictable.
Nevertheless, he characterized her disease management as excellent despite her complaints related
to Raynaud’s syndrome, a numbing and bluing of the extremities due to underoxygenated blood
flow. He wrote letters on the wife’s behalf to her employer stating that she was capable of
continuing her profession at the time.

        Dr. John Johnson provided testimony of the severity of lupus symptoms in this particular
patient. His testimony shows that the disease has not as yet rendered the wife incapable of
rehabilitation. Of paramount concern in the award of spousal support is the removal of an
economically disadvantaged spouse from dependence upon the obligor spouse. The legislature has
made that concern clear:

       (d)(1)(A) Spouses have traditionally strengthened the family unit through private
       arrangements whereby one (1) spouse focuses on nurturing the personal side of the
       marriage, including the care and nurturing of the children, while the other spouse
       focuses primarily on building the economic strength of the family unit. This
       arrangement often results in economic detriment to the spouse who subordinated
       such spouse's own personal career for the benefit of the marriage. It is the public
       policy of this state to encourage and support marriage, and to encourage family
       arrangements that provide for the rearing of healthy and productive children who will
       become healthy and productive citizens of our state.

                                                 ***

         (C) It is the intent of the general assembly that a spouse who is economically
         disadvantaged relative to the other spouse, be rehabilitated whenever possible by
         the granting of an order for payment of rehabilitative, temporary support and
         maintenance. To be rehabilitated means to achieve, with reasonable effort, an
         earning capacity that will permit the economically disadvantaged spouse's standard
         of living after the divorce to be reasonably comparable to the standard of living
         enjoyed during the marriage, or to the post-divorce standard of living expected to


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         be available to the other spouse, considering the relevant statutory factors and the
         equities between the parties. Where there is relative economic disadvantage and
         rehabilitation is not feasible in consideration of all relevant factors, including those
         set out in this subsection (d), the court may grant an order for payment of support
         and maintenance on a long-term basis or until the death or remarriage of the
         recipient except as otherwise provided in subdivision (a)(3). An award of periodic
         alimony may be made either in addition to a rehabilitation award, where a spouse
         may be partially rehabilitated as defined in this subdivision (d)(1)(C), or instead of
         a rehabilitation award, where rehabilitation is not feasible. When appropriate, the
         court may also award transitional alimony as provided in subdivision (d)(1)(D).

         Rehabilitative support and maintenance is a separate class of spousal support as
         distinguished from alimony in solido, periodic alimony, and transitional alimony.
         An award of rehabilitative, temporary support and maintenance shall remain in the
         court's control for the duration of such award, and may be increased, decreased,
         terminated, extended, or otherwise modified, upon a showing of a substantial and
         material change in circumstances. Rehabilitative support and maintenance shall
         terminate upon the death of the recipient. Such support and maintenance shall also
         terminate upon the death of the payor unless otherwise specifically stated. The
         recipient of the support and maintenance shall have the burden of proving that all
         reasonable efforts at rehabilitation have been made and have been unsuccessful.

 Tenn. Code Ann. §36-5-101(d)(1)(A);(C)(Supp. 2004).

         No such dependence appears in this case. While a discrepancy existed during the marriage
as to the parties’ earning capacity, that discrepancy favored the wife. She was board certified in
anesthesiology prior to the divorce and remains so now. The stress engendered by this and other
conflicts notwithstanding, the wife has not sought any disability status. The statutory factors were
properly considered by the trial court, and we find no abuse of discretion in the application of those
factors.

Modification of Pendente Lite Child Support

        Both parties raise issues on appeal concerning the trial court’s post judgment order regarding
child support. The wife challenges the trial court’s refusal to adjust the pendente lite award upward
to account for an increase in the husband’s income immediately after the entry of the pendente lite
award. On April 19, 2002, the trial court heard proof concerning the support of the children
pendente lite, after which the court entered its order finding in pertinent part,

       that the Father is not willfully underemployed, and that he is trying to become Board
       Certified as a surgeon. The Court further finds that based upon his current income,
       he should pay child support in accordance with the Tennessee Child Support
       Guidelines in the amount of Nine Hundred Fifty-One ($951.00) Dollars per month.


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       The Court further finds that there should be an upward deviation in child support to
       the extent of one-half (½) the cost of tuition and fees at Goodpasture Christian
       School for the remainder of the current contract year, in the amount of Four Hundred
       ($400.00) Dollars per month, so that he should pay total child support per month to
       the Wife in the amount of One Thousand Three Hundred Fifty-One ($1,351.00)
       Dollars, commencing on May 2, 2002 and payable on the second (2nd) day of the
       month thereafter. The Court further finds that in the event the parties do not mutually
       agree to re-enroll their two (2) minor children at Goodpasture Christian School or
       some other private school for the academic year 2002-2003, then the child support
       shall be in the amount of Nine Hundred Fifty-One ($951.00) Dollars per month. So
       long as the children attend private school and the Husband pays one-half (½) thereof
       in accordance with this Order, the Wife shall pay the remainder and shall make
       payments directly to the private school.

         Subsequent to the entry of that order, the husband obtained board certification. Immediately
after the order was entered, the husband’s income substantially increased. However, the first motion
to increase child support to reflect that increase was filed in January of 2004. This motion represents
the first of two motions seeking an increase from $951 to $3,200 per month, and arguing that the
husband misled the wife and the trial court during the pendente lite hearing as to his annual income.
The trial court entered an order on March 10, 2004, reserving the consideration of the motion “upon
submission, within fourteen (14) days of the Husband’s sworn Income and Expense Statement and
any argument in writing which the Husband wishes the Court to consider in this regard.” According
to the wife’s Brief, the trial court also entered an order increasing the support award to $3,200.
Although the technical record contains no such order, the wife’s later-filed Motion for Pendente Lite
Relief references an additional order entered on March 10, 2004, which contained the requested
increase, but made that increase effective as of the date of the later order rather than May 2002, the
date of the original award. After the Decree of Divorce was entered, wife renewed her challenge to
the pendente lite order, raising again the specter of malfeasance on the husband’s part. The wife
argued before the trial court, as she argues before this Court, that the Husband’s refusal to comply
with discovery requests misled the trial court and the wife as to the true amount of his 2002 annual
income. The record reveals, and the husband does not deny, that within a month after the April 19,
2002 hearing, the husband’s income increased significantly. The transcript is instructive as well.
Referring to the lengthy pre-trial proceedings in testimony before the court, the husband gave the
following testimony:

       Q.      And with that divorce complaint, we filed what are called interrogatories and
               request[s] for production of documents; you have become familiar with those
               over the last several years, haven’t you?
       A.      Quite, thank you.
       Q.      And it took three-and-a-half years to get your wife’s answers to that; is that
               correct?
       A.      That is correct.



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       Upon cross-examination, the husband testified that responses to the wife’s discovery requests
were conveyed “roughly” around September 2003. The first motion presented to the court in an
attempt to facilitate the wife’s discovery of financial records was in March of 2004. The alleged
malfeasance is not substantiated by the record.

         The record shows that the delay in discovering the husband’s income was due to both parties’
uncooperative behavior in discovery over the three and one-half years this case was pending prior
to trial. While the transcript and exhibits show an increase in the husband’s income after the entry
of the order, the record reveals no attempt by the husband to conceal this increase. In addition, the
trial court addressed this increase at its first opportunity-- the March 10, 2004, order increasing child
support to $3,200 per month. Wife argues, and there is no dispute, that the pendente lite order was
not final prior to the entry of the decree, and therefore could be modified, as the trial court did in
ordering the increased support from May of 2002 through March of 2004. See Fox v. Fox, 657
S.W.2d 747, 749 (Tenn.Ct.App. 1983) (a pendente lite order is not final absent determination of
finality by trial court consistent with Tenn.R.Civ.P.54.02); compare Tenn. Code Ann. 36-5-101(a)(5)
(judgment as to child support is final judgment and not retroactively modifiable prior to the date such
support is sought and notice is conveyed to the obligor).

         The flashpoint of the instant controversy is the decision of the trial court to amend the May
2002 order from the support percentage for a single child to reflect the 32% flat rate for the support
of two children. The wife argues that the trial court erred in failing to apply that 32% rate to the
income as revealed in the 2004 proceedings. For his part, the husband argues that the trial court
lacked jurisdiction to enter the amending order after the wife had filed her notice of appeal. The
Decree of Divorce was entered August 6, 2004. The wife filed her notice of appeal 19 days later on
August 25. The husband filed his Motion to Alter or Amend on August 31,and the wife filed a
motion to alter or amend on September 2. The procedural posture of this appeal presents the
question of whether the trial court has jurisdiction to consider the timely post-trial motions, or
whether, as this Court stated in Spann v. Abraham, 36 S.W.3d 452 (Tenn. Ct. App. 1999), the notice
of appeal divested the trial court of jurisdiction to consider the motions. In Spann we held that once
the notice of appeal had been filed, a trial court did not err in denying a post judgment motion filed
after the timely notice of appeal due to lack of jurisdiction. In Spann, however, we held that the trial
court could, consistent with Tennessee Rule of Civil Procedure 60.01, correct clerical errors in its
judgment sua sponte. While our current Tennessee Rule of Appellate Procedure 4(e), effective July
1, 2005, clearly allows a trial court to retain jurisdiction while motions to alter or amend the
judgment, filed within 30 days of said judgment, are pending; the rule as amended in 2005 does not
address the current controversy whose existence predates it. The overarching principle in the rule
is that a case should not be pending in two courts at once. Yet both parties filed motions to alter or
amend after the notice of appeal. Tennessee Rule of Civil Procedure 59.04 allows the trial court to
amend its own orders sua sponte within the same 30-day period in which the parties could file
motions pursuant to Tennessee Rules of Civil Procedure Rule 59.04. By correcting the pendente lite
award to account for the 32% support rate for two children, the trial court merely corrected a clerical
error. The trial court was well within its discretion in amending the pendente lite order, and we will
not disturb that portion of the trial court’s decision on appeal.


                                                  -10-
Attorneys Fees and Discretionary Costs

        The custodial spouse in a divorce case “may recover from the other spouse reasonable
attorney’s fees incurred” in any proceeding involving the establishment or enforcement of that
obligation. See Tenn. Code Ann. §36-5-103. As with the wife’s other issues on appeal, the decision
to award attorneys fees and the amount of those fees awarded is a matter resting within the sound
discretion of the trial court.

       In a divorce case, an award of attorney's fees is treated as an award of alimony in
       solido. Kinard v. Kinard, 986 S.W.2d 220, 235 (Tenn.Ct.App.1998); Herrera v.
       Herrera, 944 S.W.2d 379, 390 (Tenn.Ct.App.1996). Thus, when determining
       whether to award attorney's fees, the trial court is required to consider the same
       factors used when considering a request for alimony. Kincaid v. Kincaid, 912
       S.W.2d 140, 144 (Tenn.Ct.App.1995). As with alimony, need is the critical factor
       to be considered by the court when deciding whether to award attorney's fees.
       Herrera, 944 S.W.2d at 390. An award of attorney's fees is proper when one spouse
       is disadvantaged and does not have sufficient resources with which to pay attorney's
       fees. Id. The question of whether to award attorney's fees, and the amount thereof,
       are largely left within the discretion of the trial court and will not be disturbed on
       appeal unless the trial court clearly abused that discretion. Aaron v. Aaron, 909
       S.W.2d 408, 411 (Tenn.1995).

Eldridge v. Eldridge, 137 S.W.3d 1, 24-25 (Tenn.Ct.App. 2002).

        Wife bases her claim to attorney fees on the uncertainty of employment in the future. As with
many of the issues raised in this appeal, the trial court’s determination hinges on the wife’s
credibility. The court specifically found that the wife was not credible. In response to the wife’s
motion to alter or amend which requested “specific findings of fact as to why the court stated that
[the wife] lacked credibility,” the court cited specific instances where the court found the wife’s
credibility lacking.

        With no citation of additional authority, the wife challenges the trial court’s determination
of her credibility as to her ability to work, and the ultimate decision that each party be responsible
for that party’s costs incurred in this divorce which fails only in duration to match the strife of the
marriage. We find no abuse of discretion in either determination.

        The husband’s challenges to the court’s exercise of discretion are likewise subject to the
same discretionary standard. He takes issue with the post-trial order allowing a credit for $38,375
in mortgage payments which the husband was required to make pursuant to the May 2002 pendente
lite support order. He urges that the credit constitutes a retroactive modification. Since we have held
that the pendente lite order was interlocutory in nature and subject to modification we find no err in
the subsequent order. While we recognize that according to the husband’s presentation of the facts,



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child support and alimony obligation may exceed his ability to pay, the trial court properly exercised
its role as fact finder, and we find no abuse of discretion in the award. See Tenn. R. App. P. 13(d).

       So much of this case is a swearing contest between Plaintiff and Defendant. The trial court
repeatedly questioned the credibility of Anita Louise Johnson-Melvin. Such credibility
determinations by the trial court, when the merits of the case rests so firmly on credibility, are nearly
insurmountable on appeal. Mitchell v. Archibald, 971 S.W.2d 25, 29 (Tenn.Ct.App.1998).

        The judgment of the trial court is affirmed. Costs of the appeal are taxed to Appellant.




                                                         ___________________________________
                                                         WILLIAM B. CAIN, JUDGE




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