                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON



FRANK GREEN BUTLER, JR.,               )
                                                                              FILED
                                       )
                                                                              June 22, 1999
       Plaintiff/Counter-Defendant,    )      Chester County No. 9198
       Appellee,                       )
                                                                           Cecil Crowson, Jr.
                                       )
                                                                          Appellate Court Clerk
v.                                     )
                                       )      Appeal No. 02A01-9807-CH-00184
MELODY DIANE BUTLER,                   )
                                       )
       Defendant/Counter-Plaintiff,    )
       Appellant.                      )

            APPEAL FROM THE CHANCERY COURT OF CHESTER COUNTY
                         AT HENDERSON, TENNESSEE


                   THE HONORABLE JOE C. MORRIS, CHANCELLOR



For the Defendant/Counter-Plaintiff,   For the Plaintiff/Counter-Defendant,
Appellant:                             Appellee:

Angela R. Scott                        Frank Green Butler, Jr., Pro Se
Henderson, Tennessee                   (Did not file a brief)


                                       AFFIRMED



                                       HOLLY KIRBY LILLARD, J.


CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

ALAN E. HIGHERS, J.
                                             OPINION

       This is a divorce case. The trial court awarded custody of the minor children to the wife,

divided the marital estate, overruled the wife’s motion for sanctions and motion for contempt, and

declined to award attorney’s fees to either party. The wife now appeals the trial court’s division of

marital property, the denial of her motions, and failure to award her attorney’s fees. We affirm.

       Plaintiff/Appellee, Frank Green Butler, Jr. (“Husband”), and Defendant/Appellant, Melody

Diane Butler (“Wife”), were married for approximately nine years. Wife was fifteen years old and

pregnant at the time of the marriage; Husband was eighteen years old. At trial, Wife was twenty-five

years old and Husband was twenty-seven years old. During the parties’ marriage, three minor

children were born, Frank Butler in 1989, Chasity Butler in 1991, and Tristen Butler in 1997. The

children were eight, seven, and one year old respectively at the time of trial.

       The parties separated in July, 1997. On August 27, 1997, Husband filed for divorce, citing

inappropriate marital conduct or in the alternative irreconcilable differences. Wife filed a counter-

complaint for divorce, also citing inappropriate marital conduct or in the alternative irreconcilable

differences. Husband works full time for International Paper making $10.89 per hour and on

occasion does odd jobs for Chester County Independent. Wife works full time for C&R Grocery and

makes $5.75 per hour. Husband completed tenth grade. Wife began ninth grade but stopped

attending school when she became pregnant.

       A temporary restraining order was issued on September 19, 1997, which prohibited Husband

from harassing Wife, from destroying or disposing of marital or separate property, from altering,

canceling or allowing insurance policies to lapse, from removing the minor children from Wife’s

custody, from interfering in the children’s school matters, and from exercising visitation while under

the influence of alcoholic beverages. A permanent restraining order was later issued to the same

effect. Temporary sole custody of the children was awarded to Wife pending the divorce action, by

agreed order of the parties. Husband agreed to pay $565 per month child support during the divorce

proceedings.

       On December 8, 1997, Wife filed a motion for contempt alleging that Husband disposed of

real estate belonging to the parties, caused property to be encumbered, and forged and transferred

title to Wife’s car in violation of the Temporary Restraining Order. The contempt petition also

alleged that Husband paid child support sporadically, creating hardship for Wife and the children.
       Wife made several attempts to obtain discovery from Husband. On September 19, 1997,

Wife served Husband with discovery requests. A motion to compel discovery was filed on

December 8, 1997 for failure to respond to the discovery requests. In response, the trial court

ordered that the discovery requests be answered by December 24, 1997. A second motion was filed

by Wife on February 5, 1998 because of Husband’s continued failure to respond to discovery. The

trial court then allowed Husband a continuance until February 19, 1998. Wife alleges that

Husband’s answers to the discovery requests, received in February, 1998, were incomplete and did

not contain requested information regarding Husband’s financial affairs. Wife sought attorney’s fees

for the motions.

       Husband admitted that he had hit Wife on at least one occasion and that he “took a belt and

[ ] whipped her.” He had three convictions for driving under the influence. The parties separated

several times before their final separation in July, 1997 when Husband kicked Wife out of the marital

home. He said that he kicked Wife out of the home because he received a telephone call informing

him that Wife had been unfaithful to him. Wife admitted that during the course of the marriage she

had had four adulterous relationships.

       During the parties’ marriage, they purchased a mobile home and seventeen acres of land for

the marital residence. After the parties separated, Husband remained in the marital home for several

months and then moved in with his mother. Wife moved into another trailer purchased for her by

her parents. In his deposition, Husband stated that eight and one-half acres of the parties’ land was

foreclosed on after the parties separated because the parties were six months behind in their

payments. He asserted that the deficiency occurred before the parties separated and that, before the

separation, Wife was aware that the payments were behind.

       At trial, Husband testified that he was approximately three months in arrears on the payments

for the parties’ mobile home and approximately two months in arrears on the payments for the

parties’ remaining land. He asserted that he did not have the money to make the monthly payments

and was trying to hold onto the property until the divorce proceedings concluded. Although the

parties owed approximately $20,000 on the mobile home, Husband contended that it was worth only

ten to fifteen thousand dollars. At trial, evidence indicated that the total equity in the parties’

property was approximately six thousand dollars. Husband testified that he would not be able to

come up with the approximately three thousand dollars needed to pay Wife her share of the equity.


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      During the marriage, the parties borrowed funds from First State Bank. At trial, the amount

owed was approximately $12,000. This amount included funds borrowed to finance Wife’s car, to

pay one of Husband’s DUI fines, and for the installation of a well on the parties’ property. The

parties also financed a freezer at Term City, incurring monthly payments of $60.

         After the bench trial, the trial court awarded the parties a divorce under Tennessee Code

Annotated § 36-4-129, as stipulated at trial. The parties also stipulated that Wife would receive sole

custody of the parties’ children, and that Husband would pay $134 per week child support, maintain

health insurance on the children, and maintain a $50,000 life insurance policy for the benefit of the

children. Medical expenses not covered by insurance were ordered split between the parties. The

parties stipulated that Wife would assume the marital debt owed to First State Bank, but that

Husband would pay Wife $100 per month, representing a division of marital debt, until the parties’

debt to First State Bank was satisfied. The parties stipulated that they would retain their individual

vehicles and the personal property currently in their possession, with possession of the parties’

freezer expressly given to Wife. The trial court ordered Wife to assume the $60 monthly payment

on the freezer. The trial court ordered that the parties’ mobile home and 6.9 acres of real estate be

sold, with the proceeds split equally between the parties, reasoning that the parties were behind and

the property would be foreclosed on if it were not sold. The trial court overruled Wife’s two motions

for sanctions and contempt. Each party was ordered to pay his or her own attorney’s fees. From this

order, Wife now appeals.

         On appeal, Wife contends that the trial court erred in its division of the marital property.

Wife also challenges the trial court’s decision to overrule her motion for sanctions and motion for

contempt. Additionally, Wife asserts that the trial court erred in failing to award her attorney’s fees

at the trial level and seeks attorney’s fees on appeal. Husband did not file an appellate brief.

         Our review of this case is de novo upon the record with a presumption of correctness of the

findings of fact by the trial court. See Tenn. R. App. P. 13(d). No presumption of correctness

attaches to the trial court’s conclusions of law. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.

1995).

         Wife first asserts that the trial court erred in dividing the marital estate. Wife asserts that the

trial court’s order gave Wife more than one-half of the marital debt, but less than one-half of the

marital property. As stated above, the trial court awarded Wife her car, all personal property in her


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possession, the parties’ freezer, and one-half of the sale proceeds from the sale of the mobile home

and land. The $60 monthly payment on the freezer was allocated to Wife. Wife was ordered to

assume the $12,000 First State Bank debt, but the trial court ordered Husband to pay $100 per month

until the debt was paid, which was one-half of the monthly note owed to First State Bank. Wife

contends that a more equitable division would award Husband the mobile home along with the entire

debt thereon because he is more capable of making the payment.

       An appellate court may alter the trial court’s division of property only if the trial court

misapplies the law or if the evidence preponderates against the trial court’s factual findings. See

Wade v. Wade, 897 S.W.2d 702, 715 (Tenn. App. 1994).

       Under Tennessee Code Annotated § 36-4-121, many factors are considered in the division

of marital property, including the length of marriage, the age, employability, and earning capacity

of the parties, and the contributions of each party to the marriage. See Tenn. Code Ann. § 36-4-

121(c) (1996). In Harrington v. Harrington, 798 S.W.2d 244, 245 (Tenn. App. 1990), this Court

stated that the “ownership of the marital estate should be presumed to be equal until proven

otherwise.” In Barnhill v. Barnhill, 826 S.W.2d 443, 449 (Tenn. App. 1991), the Court held that

“marital property should be equitably divided without regard to fault. An equitable division,

however, is not necessarily an equal one. Trial courts are afforded wide discretion in dividing the

interest of parties in jointly-owned property.”

       In this case, the parties stipulated to the entire property division except the sale of the parties’

mobile home and land and Wife’s assumption of the Term City freezer debt. Considering Husband’s

obligation to pay half of the debt to First State Bank, the debt to Term City was the only marital item

not split equally between the parties. Wife has the freezer, and it is not inequitable to allocate the

debt to her. The trial court’s division of the marital property is consistent with the factors set forth

in Tennessee Code Annotated § 36-4-121. Although Husband has slightly more education and a

slightly higher earning capacity, both parties are struggling financially. The evidence does not

preponderate against the trial court’s division of marital property and allocation of marital debt, and

we affirm the trial court on this issue.

        Wife also argues that the trial court erred in overruling her motion for sanctions and motion

for contempt. She cites Rule 37.02 of the Tennessee Rules of Civil Procedure in support of her

argument:


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               If a deponent; a party; an officer, director, or managing agent of a party; or,
       a person designated under Rule 30.02(6) or 31.01 to testify on behalf of a party fails
       to obey an order to provide or permit discovery, including an order made under Rule
       37.01 or Rule 35, or if a party fails to obey an order entered under Rule 26.06, the
       court in which the action is pending may make such orders in regard to the failure as
       are just, and among others the following:
                                                ***
               In lieu of any of the foregoing orders or in addition thereto, the court shall
       require the party failing to obey the order or the attorney advising the party or both
       to pay the reasonable expenses, including attorney's fees, caused by the failure,
       unless the court finds that the failure was substantially justified or that other
       circumstances make an award of expenses unjust.

Tenn. R. Civ. P. 37.02. Wife asserts that because the trial court made no finding that Husband was

justified in failing to respond to discovery, the trial court should have awarded her attorney’s fees.

Wife contends that Husband’s failure to adequately respond to discovery protracted the litigation and

increased Wife’s attorney’s fees.

       “ ‘On appeal, the exercise of discretion by a trial court in imposing sanctions will not be

disturbed in the absence of an affirmative showing of abuse.’ ” State ex rel. Comm'r, Dep’t of

Transp. v. Cox, 840 S.W.2d 357, 367 (Tenn. App. 1991) (quoting Brooks v. United Unif. Co., 682

S.W.2d 913, 915 (Tenn. 1984)). “The authority to impose sanctions for abuse of the discovery

process derives from the rules and the court's inherent powers.” Mansfield v. Mansfield, No.

01A01-9412-CH-0058, 1995 WL 643329, at *5 (Tenn. App. Nov. 3, 1995) (citing Lyle v. Exxon

Corp., 746 S.W.2d 694, 698-99 (Tenn. 1988)). Where there has been discovery abuse, the most

common sanctions are monetary. See id. Under Rule 37 of the Tennessee Rules of Civil Procedure,

sanctions ordinarily can only be applied for a failure to comply with an order of the court. See Cate

v. Samsonite Furniture Co., No. 03A01-9406-CV-00228, 1994 WL 706620, at * 2 (Tenn. App.

Dec. 19, 1994) (citing Strickland v. Strickland, 618 S.W.2d 496, 500 (Tenn. App. 1981)). The

party seeking discovery, therefore, must first obtain an order requiring the delinquent party to

respond to discovery, and only then can seek sanctions for the violation of that order. See id.

       In this case, the trial judge held two hearings on Wife’s motions for sanctions and for

contempt for failure to respond to discovery. An order entered after the first hearing directed

Husband to respond to Wife’s discovery by December 24, 1997. Subsequent to the second hearing,

the trial judge granted Husband a continuance and ordered him to respond to discovery by February

19, 1998. Neither hearing was made part of the record on appeal. In the absence of an adequate

record on this issue, we presume that the facts support the decision of the trial judge. See In re



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Watson, No. 176, 1990 Tenn. App. LEXIS 695 (Oct. 3, 1990). Wife has not demonstrated that the

trial court abused its discretion in failing to award sanctions. The decision of the trial court is

affirmed on this issue.

        Finally, Wife seeks attorney’s fees incurred at the trial and appellate level. She asserts that

she lacks funds sufficient to pay for her legal representation. “The decision to award attorney’s fees

to a party in a divorce proceeding is within the sound discretion of the trial court and will not be

disturbed on appeal unless the evidence preponderates against such a decision.” Storey v. Storey,

835 S.W.2d 593, 597 (Tenn. App. 1992). In Fox v. Fox, 657 S.W.2d 747, 749 (Tenn. 1983), the

court held:

        The right to an allowance of legal expenses is not absolute. It is conditioned upon a
        lack of resources to prosecute or defend a suit in good faith. This rule is to enable the
        wife, when destitute of means of her own, to obtain justice and to prevent its denial.
        If a spouse does not have separate property of her own which is adequate to defray
        the expenses of suit, certainly she should not be denied access to the courts because
        she is unable to procure counsel.

Id. at 749 (citation omitted).

        While it is clear that Wife has little funds with which to pay her legal fees, Husband likewise

has minimal funds. Husband’s financial ability was considered by the trial court in its decision to

deny Wife her attorney’s fees as evidenced by the trial court’s statement during the discussion of

attorney’s fees that, “These people don’t have any money.” We cannot say that the trial court abused

its discretion in declining to award Wife attorney's fees. The decision of the trial court is affirmed

on this issue.




        Wife also requests attorney's fees on appeal. This request is denied.

        The decision of the trial court is affirmed. Costs are taxed to Appellant, for which execution

may issue if necessary.




                                        HOLLY KIRBY LILLARD, J.

CONCUR:

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W. FRANK CRAWFORD, P. J., W.S.



ALAN E. HIGHERS, J.




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