                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  January 20, 2004 Session

              BARBARA JEAN CAIN v. CHARLES CURTIS CAIN

                Direct Appeal from the Chancery Court for Madison County
                          No. 57391    Joe C. Morris, Chancellor



                    No. W2003-00563-COA-R3-CV - Filed March 3, 2004


Wife filed for divorce alleging Husband was guilty of inappropriate marital conduct. Trial court
granted Wife an absolute divorce, ordered a martial property distribution, and awarded wife alimony
and attorney’s fees. Husband appeals. We affirm the distribution of marital property, modify the
award of attorney’s fees, vacate the requirement to provide life insurance and remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in part;
                    Modified in part; Vacated in part; and Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

David W. Camp, Jackson, Tennessee, for the appellant, Charles Curtis Cain.

Charles A. Spitzer, Jackson, Tennessee, for the appellee, Barbara Jean Cain.

                                            OPINION

        On May 25, 1962, Charles Curtis Cain (Husband) and Barbara Jean Cain (Wife, or
collectively with the Husband as the Parties) married. On May 18, 2000, Husband and Wife
separated. The Parties had three children, all of which were adults at the time of separation. One
day later, Wife filed for an absolute divorce alleging that Husband was guilty of inappropriate
marital conduct. On December 4, 2000, the trial court entered an order of temporary support.
The order required Husband to pay $1,000.00 a month in temporary support and to continue
paying all of the monthly expenses that he had been paying including the house note, second
mortgage, all insurance, telephone, utilities, sanitation fee, cable TV, car note, gas, auto
insurance, and any uncovered medical bills. The divorce was heard before the Madison County
Chancery Court on August 26, 2002.

        On October 7, 2002, the trial court entered its findings:
        In this divorce case, the Court finds that the Wife should be awarded an
absolute divorce, in that the Husband has been guilty of inappropriate marital
conduct. The parties have been married for forty (40) years, and all of their minor
children are now adults. . . . [D]uring the pendency of this divorce, the Wife has
remained in the marital residence. [Wife] works part-time as a clerical assistant,
and [Husband] has been employed by a construction company for the last thirty
(30) years, and is a Senior Vice President and Appraiser.
        The Wife is 58 years of age and suffers from Meniere’s Disease and
Rheumatoid Arthritis. [Wife] is in need of alimony in futuro, and the Husband is
in a position to pay from his net monthly income of $5,521,63. The Wife earned
$9,000.00 in the past calendar year.
        The Court is of the opinion that [Husband] should pay to [Wife] the
amount of Two Thousand Two Hundred ($2,200.00) per month in alimony in
futuro, and in addition, [Husband] should obtain a life insurance policy in an
amount sufficient to guarantee this alimony obligation, with [Wife] being the
irrevocable beneficiary. In addition, [Wife] is awarded alimony in solido for her
attorney’s fees and suit expenses.
Wife is awarded the following:

               Asset                                 Value
               1. Martial Residence                  $124,484.21
               2. Manulife 401(k) as of 8/19/02      $121,244.18
               3. Toyota Van                         $ 18,000.00
               4. Furnishings in marital residence   $ 10,000.00
                                     TOTAL:          $273,728.39

Husband is awarded the following:

               Asset                               Value
               1. Manulife 401(k) as of 8/19/02    $121,244.18
               2. H&M Construction Co., Inc.       $ 68,131.44
                  Executive Deferred Comp. Plan
               3. Equitable Flexible Premium       $ 56,336.18
                  Variable Life Insurance Policy
               4. Toyota Avalon                    $ 20,000.00
               5. Furnishings in marital residence $ 2,000.00
               6. State Farm Life Insurance Policy $    927.93
                  (Value remaining after Husband’s
                   withdrawal of cash value)
               7. State Farm Life Ins. Policy      $ 18,000.00
                                     TOTAL:        $286,639.73




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              In consideration of the division of the marital estate, the payment of
       alimony in futuro, and attorney’s fees, the Court has taken into consideration this
       marriage of long duration, the Wife’s present health condition and intermittent
       work history, along with the Husband’s ability to pay. For all the forgoing
       reasons, the Court feels that this is a fair a[n]d equitable property division.

        On February 21, 2003, the trial court entered its final decree of divorce, which
incorporated the findings of the court but further specified that Husband “shall be required to
secure life insurance in the amount of $300,000 . . . [i]n order to secure [his] alimony obligation.”
Additionally, in the final decree, the court stated that Husband “shall pay alimony in solido to the
[Wife] for the attorney fees and suit expenses, which she has incurred . . . while being
represented by [Attorneys] in the amount of $25,711.93.” Husband timely filed his notice of
appeal.

                                         Issues Presented

       Husband appeals and raises the following issues, as we restate them, for our review:

       1.      Whether the trial court erred in awarding wife her attorney’s fees
               as alimony in solido.

       2.      Whether the trial court erred in its distribution of marital property.

       3.      Whether the trial court erred in requiring Husband to maintain life
               insurance in an amount necessary to secure his alimony obligation.

                                         Attorney’s Fees

        Husband argues that the trial court erred in awarding attorney’s fees because the amount
of attorney’s fees and expenses incurred were excessive, there was no proof presented by Wife as
to the amount of attorney’s fees, and Wife had sufficient assets with which to pay the attorney’s
fees. Accordingly, we will first address whether it was error for the trial court to award fees and
then determine if that award was excessive. The trial court’s award of attorney’s fees “to a party
in a divorce proceeding is within the sound discretion of the trial court and will not be disturbed
upon appeal unless the evidence preponderates against such a decision.” Storey v. Storey, 835
S.W.2d 593, 597 (Tenn. Ct. App. 1992) (citing Batson v. Batson, 769 S.W.2d 849, 862 (Tenn.
Ct. App. 1988); Lyon v. Lyon, 765 S.W.2d 759, 762-63 (Tenn. Ct. App. 1988)).

        Husband contends that there was no proof presented by Wife as to the amount of
attorney’s fees. However, “a trial judge may fix the fees of lawyers in causes pending or which
have been determined by the court, with or without expert testimony of lawyers and with or
without a prima facie showing by plaintiffs of what a reasonable fee would be.” Wilson Mgmt.
Co. v. Star Distribs. Co., 745 S.W.2d 870, 873 (Tenn. 1988). Therefore, even if there was no


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proof presented by Wife as to the amount of attorney’s fees, the trial court did not abuse its
discretion in awarding attorney’s fees.

        Husband also contends that Wife had sufficient assets from which she could pay her
attorney’s fees. In making his argument, Husband refers the court to several sources of income
from which Wife could pay her attorney’s fees. First, at trial, Wife admitted that she had taken
$25,000 from the parties’ savings account prior to the separation. Second, Wife was receiving
$1,000 a month in temporary spousal support in addition to having all of her bills paid. Third,
Wife was earning around $850.00 a month at her work. Fourth, Husband points to all the assets
that the Wife received in the distribution of marital property. In response, the Wife testified that,
after the parties separated, she paid $7,500 as a retainer for her first attorney, $700 to terminate
his services, $300 for an estimate on the parties’ house, and two doctors’ depositions. Wife
further testified that, although Husband was ordered to pay Wife’s medical insurance and
uncovered medical bills, she was having to pay $300.00 a month in uncovered medical bills as a
result of her recent breast surgery. “[T]rial courts are in the most favorable position to resolve
factual disputes hinging on credibility determinations.” Wells v. Tenn. Bd. Of Regents, 9 S.W.3d
779, 783 (Tenn. 1999) (citing State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990); Bowman v.
Bowman, 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991)). In this case, the trial court was able to
hear both parties’ testimony and did not err in its determination that the Wife did not have
sufficient assets from which she could pay her attorney’s fees.

        During the opening statement at trial, Wife asked the court for an award of attorney’s fees
in the amount of $21,589.91. That amount was based upon $2200 of expenses that Wife
allegedly incurred in getting documents from Husband, taking Mr. Cain’s deposition, and the
attorney’s fees for taking the two doctors’ depositions. However, there is no evidence in the
record to support the court’s award of $25,711.93 in attorney’s fees. Accordingly, this Court
modifies the award of attorney’s fees to the amount originally requested, $21,589.91.

                                      Property Distribution

        Husband contends that the trial court erred in its equitable distribution of marital
property. An equitable distribution of marital property is not necessarily an equal one. Barnhill
v. Barnhill, 826 S.W.2d 443, 449 (Tenn. Ct. App. 1996). Further, “trial courts are afforded wide
discretion in dividing the interest of the parties . . . [and] the trial court’s distribution will be
given great weight on appeal.” Id. (citing Edwards v. Edwards, 501 S.W.2d 283, 288 (Tenn. Ct.
App. 1973)). Tennessee Code Annotated § 36-4-121(c) (2001) sets forth the factors to guide the
trial court in its equitable distribution of marital property:

              (c) In making equitable division of marital property, the court shall
       consider all relevant factors including:
              (1) The duration of the marriage;




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                (2) The age, physical and mental health, vocational skills, employability,
       earning capacity, estate, financial liabilities and financial needs of each of the
       parties;
              (3) The tangible or intangible contribution by one (1) party to the
       education, training or increased earning power of the other party;
               (4) The relative ability of each party for future acquisitions of capital
       assets and income;
               (5) The contribution of each party to the acquisition, preservation,
       appreciation, depreciation or dissipation of the marital or separate property,
       including the contribution of a party to the marriage as homemaker, wage earner
       or parent, with the contribution of a party as homemaker or wage earner to be
       given the same weight if each party has fulfilled its role;
               (6) The value of the separate property of each party;
               (7) The estate of each party at the time of the marriage;
              (8) The economic circumstances of each party at the time the division of
       property is to become effective;
              (9) The tax consequences to each party, costs associated with the
       reasonably foreseeable sale of the asset, and other reasonably foreseeable
       expenses associated with the asset;
               (10) The amount of social security benefits available to each spouse; and
               (11) Such other factors as are necessary to consider the equities between
       the parties.


Tenn. Code Ann. § 36-4-121(c).


       Husband’s argument is based upon four underlying alleged errors committed by the trial
court. First, Husband argues that the trial court erred by not considering all of the above
enumerated statutory factors. In it’s findings and final decree of divorce, the trial court stated:

       The parties have been married for forty (40) years, and all of their minor children
       are now adults. . . . [D]uring the pendency of this divorce, the Wife has remained
       in the marital residence. [Wife] works part-time as a clerical assistant, and
       [Husband] has been employed by a construction company for the last thirty (30)
       years, and is a Senior Vice President and Appraiser.
               The Wife is 58 years of age and suffers from Meniere’s Disease and
       Rheumatoid Arthritis. [Wife] is in need of alimony in futuro, and the Husband is
       in a position to pay from his net monthly income of $5,521,63. The Wife earned
       $9,000.00 in the past calendar year.
               ....

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              In consideration of the division of the marital estate, the payment of
       alimony in futuro, and attorney’s fees, the Court has taken into consideration this
       marriage of long duration, the Wife’s present health condition and intermittent
       work history, along with the Husband’s ability to pay. For all the forgoing
       reasons, the Court feels that this is a fair a[n]d equitable property division.

After our review of the record, we hold that the trial court considered all of the relevant factors in
making its equitable property division.

         Second, Husband argues that the trial court should have used $181,500 as the value of the
parties’ home rather than the $124,484.21 value found in the court’s findings and final decree of
divorce. At trial, there was testimony by both parties of the stipulated value of the home,
$181,500.00. Further, the parties’ first and second mortgage statements revealed a total
mortgage debt of $46,115.50 and a $135,384.50 equity value in the home. Tennessee Code
Annotated § 36-4-121(b)(1)(A) states “‘[m]arital property’ means all real and personal property .
. . valued as of a date as near as reasonably possible to the final divorce hearing date.”
Accordingly, this Court holds that the equity value of the home, $135,384.50, should have been
used in the court’s distribution but such a modification from $124,484.21 to the equity value
does not render the distribution of marital property inequitable.

        Third, Husband argues that the trial court erred in its award of the Equitable Flexible
Premium Variable Life Insurance Policy to him as marital property. Husband contends that this
policy belonged to his employer for purposes of insuring Husband’s life as an employee and
should not be classified as a marital asset. However, the record reflects that Husband’s name
appears as the insured. Further, Husband testified at trial that although the face amount and
death benefit on the policy would not be paid to him, the policy account value could.
Accordingly, the trial court did not err in awarding the cash surrender value of the policy,
$56,336.18, to Husband.

         Fourth, Husband argues that the trial court erred when it did not include the $25,000 that
Wife took from the parties’ joint bank account in the distribution of marital property and that the
court used the incorrect values in its award of personalty. As for the $25,000.00, the wife
testified at trial that she used this money to pay for attorney’s fees, doctors depositions, an
appraisal, and doctor’s bills. Even if this Court were to accept Husband’s argument, the addition
of $25,000 in Wife’s award of marital property would not render the distribution inequitable. As
for the personalty within the marital residence, Husband contends that there is no basis from the
parties’ testimony or the record for the values used by the court in its distribution. The trial court
awarded Wife $10,000 whereas Husband was awarded $2,000. The proposed distribution, as
urged upon this Court by Husband, would be $8,225 to Husband and $23,660 to Wife.
Nevertheless, even if the court were to use the proposed values, the court’s distribution would
not be inequitable. Accordingly, the trial court did not err in its distribution of martial property.




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                                          Life Insurance

         Husband argues that the trial court erred in awarding the amount of life insurance to
secure his alimony obligation without considering the cost of premiums. Following the trial of
this matter, the trial court filed its findings which included a statement that Husband “should
obtain a life insurance policy in an amount sufficient to guarantee this alimony obligation, with
Ms. Cain being the irrevocable beneficiary.” Husband then filed a motion for a clarification of
the trial court’s findings noting that the court failed to specify the amount of the policy. In the
final decree, the court established the amount of the life insurance policy at $300,000. Husband
contends that he was never afforded the opportunity to present evidence of the costs of the
insurance ordered and his ability to pay. Tennessee Code Annotated § 36-5-101(g) (Supp. 2003)
allows the court to “direct either . . . part[y] to designate the other party and the children of the
marriage as beneficiaries under any existing policies insuring the life of either party . . . or the
purchase and maintenance of life insurance.” This statute “specifically left the determination of
whether to order a party to procure insurance for the benefit of the other party . . . to the
discretion of the trial court.” Young v. Young, 972 S.W.2d 386, 392 (Tenn. Ct. App. 1997). We
note that Wife did not seek this relief in her complaint or in her opening argument. Had she done
so, this would have put Husband on notice and perhaps shifted the burden to him to present the
evidence which he now contends he was denied to present. We believe that fairness dictates that
this cause be remanded to the trial court for the parties to present evidence on the limited issue of
life insurance.

        Husband also argues that the trial court erred in requiring him to obtain a new life
insurance policy rather than placing his wife as a beneficiary on an existing policy. Tenn. Code
Ann. § 36-5-101(g) provides support for Husband’s argument by providing that “[t]he court may
direct either or both parties to designate the other party . . . as beneficiaries under any existing
policies insuring the life of either party.” Tenn. Code Ann. § 36-5-101(g) (Supp. 2003). On
remand, in the event that the trial court awards Wife life insurance, the trial court should consider
whether Husband has any existing life insurance to which Wife could be named as a beneficiary.

                                            Conclusion

        In light of the foregoing, we affirm the trial court’s distribution of marital property.
Further, we affirm the award of attorney’s fees but modify the amount of the attorney’s fees
award to $21,589.91. The trial court’s award of life insurance is vacated and remanded for
further proceedings consistent with this opinion. Costs of this appeal are taxed to the Appellant,
Charles Curtis Cain, and his surety, for which execution may issue if necessary.



                                                       ___________________________________
                                                       DAVID R. FARMER, JUDGE



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