                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                October 14, 2009 Session

           JOHANNA L. GONSEWSKI v. CRAIG W. GONSEWSKI

                   Appeal from the Circuit Court for Sumner County
                           No. 30476   Tom E. Gray, Judge


               No. M2009-00894-COA-R3-CV - Filed February 17, 2010


The wife in this divorce action contends the trial court erred in the division of the marital
property, in denying her request for alimony, and in denying her request to recover her
attorney’s fees. We have determined the wife is in need of and the husband has the ability
to pay alimony in futuro, in the amount of $1,250 per month, and that she is entitled to
recover attorney’s fees. We, therefore, reverse the judgment of the trial court regarding
alimony in futuro and remand the issue of attorney’s fees, leaving it to the discretion of the
trial court to determine an amount that is reasonable and necessary under the circumstances
of this case. We affirm the trial court in all other respects.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                         Reversed in Part; Affirmed in Part

F RANK G. C LEMENT, J R., J., delivered the opinion of the court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, JJ., joined.

Edward J. Gross, Nashville, Tennessee, for the appellant, Johanna L. Gonsewski.

William L. Moore, Jr., Gallatin, Tennessee, for the appellee, Craig W. Gonsewski.

                                         OPINION

      Johanna L. Gonsewski (Wife) and Craig W. Gonsewski (Husband) were married in
Huntsville, Alabama, on May 9, 1987, when they were twenty-two years old, and the
marriage lasted twenty-one years. They have two children, both of whom are now adults.

      At the time of the marriage, Wife had just graduated from Athens State College and
was working at Redstone Arsenal; Husband was still attending college at the University of
Alabama in Huntsville. Not long thereafter, the couple moved across the state line to live in
Fayetteville, Tennessee, where Husband accepted employment as an in-house accountant.
Subsequently, the parties and their two children moved to Hendersonville, Sumner County,
Tennessee, where they resided when this divorce action commenced.

       Both spouses worked throughout the marriage. At the time of the divorce in 2009,
Wife was employed by the State of Tennessee, where she had been working for more than
sixteen years. Husband, who had worked as an in-house accountant for several different
companies during the course of the marriage, was employed as the Comptroller of Franke
Foodservice Systems, a division of Franke Inc., at the time of the divorce.

       Wife filed for a divorce on September 5, 2007. As an obvious by-product of a very
contentious divorce, numerous disputes, court filings, and hearings ensued. The final hearing
was held on March 19, 2009. Following the final hearing, the trial court granted Wife the
divorce on the ground of Husband’s inappropriate marital conduct.

       The trial court classified certain tangible personal property and an IRA investment
account of $15,130.51 as Husband’s separate property. As for Wife’s separate property, the
court also classified a 2000 Mercury Sable (a gift from her mother), the sum of $26,000
(which Wife had received prior to the marriage from a settlement for personal injuries she
sustained in an automobile accident) and certain tangible property as her property.

       The following property was classified as marital property: a 2004 GMC Envoy, a
2007 Dodge Ram truck, various life insurance policies, retirement benefits, investment
accounts, savings accounts and bonds, a note for $2,500 owed by Husband’s brother,
Husband’s 2008 and 2007 bonuses, the refund Husband received from their 2007 joint tax
return and 2007 tax stimulus, an American Legacy Rollover annuity and the couple’s
residence. The court made a finding that the net equity of the residence was estimated to be
$177,423.

        The marital estate was divided as follows. The trial court awarded one-half of the
marital residence to each spouse, ordered that residence be sold, and the net equity divided
equally.1 Wife was awarded the $4,000 Knights of Columbus life insurance policy in Wife’s
name; Wife’s 2008 tax return; the Great West 401K retirement account valued at $62,000;
the State of Tennessee Retirement fund of $60,000; and a U.S. Savings Bond of $400. Wife
also was ordered to pay a $3,000 debt on a Lowe’s credit card. For his part, Husband was
awarded the $4,000 Knights of Columbus life insurance policy in Husband’s name; his 2008
tax return; his Franke 401K of $19,018; his Faber Castell retirement benefits of $25,000; the

       1
          T he parties were ordered to pay one-half of the monthly mortgage, insurance and other expenses
related to the residence until it was sold.

                                                  -2-
Fidelity Investor’s account of $15,123; the Fidelity Rollover IRA of $2.00; an IRA brokerage
account of $700, the Old Hickory Credit Union Savings account of $2,473; the note owed
by Husband’s brother of $2,250; and a 2002 Chevy Envoy of $5,790. Husband was awarded
the 2007 Dodge Ram that has a negative value of $4,078 due to a lien on the vehicle. The
total net value of the marital assets awarded to Husband was $189,198.79, which is inclusive
of his interest in the marital residence, and to Wife was $201,747.79, which is inclusive of
her interest in the marital residence.

         In her Complaint and at trial, Wife requested rehabilitative and in futuro alimony, and
both parties had requested to recover their attorney’s fees and expenses incurred during the
divorce proceedings. The trial court found in pertinent part that Husband’s income in 2008
was $137,418.17 (which was based on a current income of almost $100,000 and the most
recent bonus of $38,000) and Wife’s income from the State of Tennessee was $72,000. The
trial court also noted that Wife had steady employment of over sixteen years with the State
of Tennessee and that Husband’s income for the prior year of $138,000 was due in
significant part to a bonus that was dependent upon the financial success of his employer, and
thus, it was not certain whether he would receive future bonuses or how much they might be.
For these reasons, the trial court denied Wife’s request for spousal support. As for the request
of both parties to recover their respective attorney’s fees, the court denied both requests upon
the finding that much of the expense they incurred was due to numerous and frequent filings
by both parties that necessitated numerous unnecessary court hearings. A Final Decree of
Divorce was entered on April 14, 2009. This appeal by Wife followed.

        On appeal she contends the trial court erred in not awarding her alimony in solido or
transitional alimony; the trial court erred in not equally dividing all of the parties’ assets, and
it erred in not ordering Husband to pay Wife’s attorney’s fees and litigation expense.

                                           A NALYSIS

                                              I.
                                D IVISION OF M ARITAL E STATE

       The division of the parties’ marital estate begins with the classification of the property
as separate or marital property. Miller v. Miller, 81 S.W.3d 771, 775 (Tenn. Ct. App. 2001).
This is because Tennessee is a “dual property” state, referring to the distinction between
“marital property” and a spouse’s “separate property,” see Smith v. Smith, 93 S.W.3d 871,




                                                -3-
875-76 (Tenn. Ct. App. 2002); thus, a spouse’s separate property cannot be included in the
marital estate.2

        Therefore, separate property should not be included in the marital estate. Woods v.
Woods, No. M2002-01736-COA-R3-CV, 2005 WL 1651787, at *3 (Tenn. Ct. App. July 12,
2005). Property classification is a question of fact.3 Mitts v. Mitts, 39 S.W.3d 142, 144-45
(Tenn. Ct. App. 2000). Thus, we review the trial court’s classification using the familiar
standard of review in Tenn. R. App. P. 13(d).

       Once property has been classified as marital property, the court should place a
reasonable value on property that is subject to division. Edmisten v. Edmisten, No.
M2001-00081-COA-R3-CV, 2003 WL 21077990, at *11 (Tenn. Ct. App. May 13, 2003).
The parties have the burden to provide competent valuation evidence. Kinard v. Kinard, 986
S.W.2d 220, 231 (Tenn. Ct. App. 1998). When valuation evidence is conflicting, the court
may place a value on the property that is within the range of the values presented. Watters
v. Watters, 959 S.W.2d 585, 589 (Tenn. Ct. App. 1997). Decisions regarding the value of
marital property are questions of fact, Kinard, 986 S.W.2d at 231; thus, they are not
second-guessed on appeal unless they are not supported by a preponderance of the evidence.
Smith, 93 S.W.3d at 875.

       Once the marital property has been valued, the trial court is to divide the marital
property in an equitable manner. Tenn. Code Ann. § 36-4-121(a)(1); Miller, 81 S.W.3d at
775. A division of marital property in an equitable manner does not require that the property
be divided equally. Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn. 2002). Dividing a
marital estate is not a mechanical process but rather is guided by considering the factors in
Tenn. Code Ann. § 36-4-121(c). Kinard, 986 S.W.2d at 230. Trial courts have wide latitude
in fashioning an equitable division of marital property, Fisher v. Fisher, 648 S.W.2d 244,
246 (Tenn. 1983), and this court accords great weight to the trial court’s division of marital

        2
         “Separate property,” as that term is defined in Tenn. Code Ann. § 36-4-121(b)(2), is not marital
property. Tenn. Code Ann. § 36-4-121(b)(1)(A).
        3
         The difficulty in classifying property as marital property or separate property may be exacerbated
when the property undergoes a metamorphosis during the marriage or when the nonowner spouse contributes
substantially to the preservation or appreciation of the separate property. This is because marital property
can become separate property when a spouse gives it to the other spouse, Kinard v. Kinard, 986 S.W.2d 220,
232 (Tenn. Ct. App. 1998), and separate property can become marital property when its original owner
commingles it with marital property. Langschmidt v. Langschmidt, 81 S.W.3d 741, 747 (Tenn. 2002). To
complicate matters, the increase in the value of separate property, and the income from separate property,
may be considered marital property if the nonowner spouse contributed substantially to the separate
property’s preservation and appreciation. Tenn.Code Ann. § 36-4-121(b)(1)(B); Cohen v. Cohen, 937 S.W.2d
823, 832-33 (Tenn. 1996).

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property. Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996). Thus, we defer to
the trial court’s division of the marital estate unless it is inconsistent with the factors in Tenn.
Code Ann. § 36-4-121(c) or is not supported by a preponderance of the evidence. Brown v.
Brown, 913 S.W.2d 163, 168 (Tenn. Ct. App. 1994).

       Wife contends that she made cash contributions toward the purchase of the marital
residence from her separate estate and that the trial court erred in not compensating her for
those contributions. We acknowledge that she made substantial contributions, as did
Husband, but once their separate property was contributed toward the purchase of the marital
residence or improvements thereto, those contributions became marital property.
Langschmidt v. Langschmidt, 81 S.W.3d 741, 747 (Tenn. 2002) (holding that separate
property can become marital property when its original owner commingles it with marital
property). We, therefore, find that the trial court correctly classified these assets as marital
property.

       We have also considered the other issues raised that pertain to the classification and
division of the marital estate and find no error with the trial court’s decisions regarding these
issues. Accordingly, we affirm the manner in which the trial court classified property as
separate and marital property and in the division of the marital estate.

                                                  II.
                                           S POUSAL S UPPORT

       Wife contends she should have been awarded alimony in solido from Husband’s share
of the equity in the marital residence. She further contends, due to the disparity in their
earning capacity, that she needs and Husband has the ability to pay transitional alimony.

       The court may award rehabilitative alimony, alimony in futuro, transitional alimony,
alimony in solido or a combination of these. Tenn. Code Ann. § 36-5-121(d)(1). The
Tennessee General Assembly has stated it is its intent 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 alimony.” 4 Tenn Code Ann. § 36-5-
121(d)(2). In such circumstances when rehabilitation is not feasible, “the court may grant an



        4
          “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
be available to the other spouse, considering the relevant statutory factors and the equities between the
parties.” Tenn. Code Ann. § 36-5-121(d)(2).

                                                    -5-
order for payment of support and maintenance on a long-term basis or until death or
remarriage of the recipient, . . . ” Tenn Code Ann. § 36-5-121(d)(3).

         Trial courts have broad discretion to determine whether spousal support is needed and,
if so, the nature, amount, and duration of support. See Garfinkel v. Garfinkel, 945 S.W.2d
744, 748 (Tenn. Ct. App. 1996). Therefore, appellate courts are disinclined to second-guess
a trial court’s decision regarding spousal support unless it is not supported by the evidence
or is contrary to public policy. Brown, 913 S.W.2d at 169.

       Our legislature has stated a public policy preference for temporary, rehabilitative
spousal support over long-term support. Tenn. Code Ann. § 36-5-121(d)(2); Herrera v.
Herrera, 944 S.W.2d 379, 387 (Tenn. Ct. App. 1996); Wilson, 929 S.W.2d at 375. The
purpose of rehabilitative support is to afford the disadvantaged spouse an opportunity to
acquire or enhance job skills and/or education in order to enable him or her to be
self-sufficient, Smith v. Smith, 912 S.W.2d 155, 160 (Tenn. Ct. App. 1995); Cranford v.
Cranford, 772 S.W.2d 48, 51 (Tenn. Ct. App. 1989), as distinguished from long-term spousal
support, which serves the purpose of providing support to the spouse who is unable to
achieve self-sufficiency. Loria v. Loria, 952 S.W.2d 836, 838 (Tenn. Ct. App. 1997). The
purpose of temporary spousal support is to aid the disadvantaged spouse to become
self-sufficient. Shackleford v. Shackleford, 611 S.W.2d 598, 601 (Tenn. Ct. App. 1980). The
purpose of long-term spousal support is to aid the disadvantaged spouse when economic
rehabilitation is not feasible in order to mitigate the harsh economic realities of divorce. Id.

       There are no hard and fast rules for spousal support decisions. Anderton v. Anderton,
988 S.W.2d 675, 682-83 (Tenn. Ct. App. 1998); Crain v. Crain, 925 S.W.2d 232, 233 (Tenn.
Ct. App. 1996). Alimony decisions require a careful balancing of the factors in Tenn.Code
Ann. § 36-5-121(i) and typically hinge on the unique facts and circumstances of the case. See
Anderton, 988 S.W.2d at 683; see also Hawkins v. Hawkins, 883 S.W.2d 622, 625 (Tenn. Ct.
App. 1994). The two most important factors are the need of the disadvantaged spouse and
the obligor’s ability to pay. Varley v. Varley, 934 S.W.2d 659, 668 (Tenn. Ct. App. 1996).

       The trial court denied Wife’s request for any type of spousal support. This decision
was based on the trial court’s finding that Wife had steady employment, over sixteen years
with the State of Tennessee, that she earned $72,000 per year, that Husband’s current income
was approximately $100,000, and that he had received a recent bonus of $38,000, which
increased his income for the year to $138,000; however, future bonuses were not guaranteed
and the amount of any bonuses was dependent on the financial success of his employer. We
find the evidence preponderates against the trial court’s decision to deny Wife any spousal
support, realizing that Husband’s income has consistently been much greater than Wife’s and
while Husband is not guaranteed future bonuses, it is more likely than not that he will

                                              -6-
continue to receive substantial bonuses, which will further the discrepancy in the earnings
of the parties.

        Long-term alimony may be awarded when the court finds that there is a relative
economic disadvantage and that rehabilitation is not feasible to afford the disadvantaged
spouse an earning capacity that will permit a 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 be available to the advantaged spouse. See Tenn.
Code Ann. § 36-5-121(d)(3). When making a determination concerning alimony, the court
should take into account the relative earning capacity of the parties, the relative education,
training, and ability of Husband and Wife to improve their earning capacity, the standard of
living the parties have enjoyed during the marriage, the potential of future earning capacity,
and the extent to which each party has made such tangible and intangible contributions to the
marriage. See Tenn. Code Ann. § 36-5-121(i); see also Herrera, 944 S.W.2d at 388.

       Wife is a college graduate, and she is a career employee, having been with the same
employer for sixteen years. Therefore, there is no need for rehabilitative alimony. Over the
past several years, however, Husband, who is an accountant, has earned substantially more
than Wife and the discrepancy in their income grew to $60,000 in the year prior to the
divorce. Therefore, Wife is the economically disadvantaged spouse, and Wife’s earning
capacity will not permit her to maintain a standard of living after the divorce that is
reasonably comparable to the standard of living enjoyed during the marriage, or to the
post-divorce standard of living expected to be available to Husband. Considering the above
factors, we find that Wife has a need and Husband has the ability to pay alimony in futuro,
which is necessary to mitigate the harsh economic realities of divorce. See Shackleford, 611
S.W.2d at 601.

       Having determined that Wife is entitled to alimony in futuro, we must now determine
how much alimony is appropriate. After considering the relevant facts for establishing
alimony in futuro, particularly the discrepancy in their earning capacity, we find Wife has the
need and Husband has the ability to pay support in the amount of $1,250 per month, which
shall be paid by Husband until the death of Husband or Wife or the remarriage of Wife,
subject to modification by the trial court based upon material changes identified in Tenn.
Code Ann. § 36-5-121(f).5




        5
        “ An award of alimony in futuro 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 substantial
and material change in circumstances.” Tenn. Code Ann. § 36-5-121(f)(2)(A).

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                                                       III.
                                                 A TTORNEY’S F EES

         Wife contends the trial court erred by not awarding her the attorney’s fees she incurred
at trial; she also seeks to recover the fees and expenses incurred on appeal.

        An award of attorney’s fees in a divorce action constitutes alimony in solido. Yount
v. Yount, 91 S.W.3d 777, 783 (Tenn. Ct. App. 2002); Wilder v. Wilder, 66 S.W.3d 892, 894
(Tenn. Ct. App. 2001); Herrera, 944 S.W.2d at 390; Houghland v. Houghland, 844 S.W.2d
619, 623 (Tenn. Ct. App. 1992); Storey v. Storey, 835 S.W.2d 593, 597 (Tenn. Ct. App.
1992). Like other spousal support, an award of attorney’s fees is available to either spouse.
Herrera, 944 S.W.2d at 390. An award of attorney’s fees is to be based on a consideration
of the factors set forth at Tenn. Code Ann. § 36-5-121(i), and is appropriate when the spouse
seeking them does not have adequate funds to pay his or her legal expenses. Moreover, the
spouse need not use assets provided for future income in the division of marital property to
pay the legal expenses. Koja v. Koja, 42 S.W.3d 94, 98 (Tenn. Ct. App. 2000).

        Here, the trial court determined that Wife was not entitled to any form of alimony
including attorney’s fees. We, however, determined that Wife is entitled to alimony in futuro,
which is necessary to mitigate the harsh economic realities of divorce due to the disparity of
their earning capacities. Because we reversed the trial court’s decision concerning alimony
in futuro, it is appropriate for us to consider whether she is entitled to alimony in solido in
the form of attorney’s fees. See Langschmidt, 81 S.W.3d at 751 (remanding the issue of
whether the wife was entitled to attorney’s fees where the trial court had found she was not
due to the amount of marital property awarded to the wife and the amount of marital property
was being reduced substantially as a consequence of the Supreme Court’s decision).6

        The award of attorney’s fees “is conditioned upon a lack of resources to prosecute or
defend a suit in good faith.” Fox v. Fox, 657 S.W.2d 747, 749 (Tenn. 1983). Accordingly,
a spouse with adequate property and/or adequate income is not entitled to be compensated
for his or her attorney’s fees and expenses. Wilder, 66 S.W.3d at 895; Koja, 42 S.W.3d at 98;
Lindsey v. Lindsey, 976 S.W.2d 175, 181 (Tenn. Ct. App. 1997); Houghland, 844 S.W.2d
at 623-24; Ingram v. Ingram, 721 S.W.2d 262, 264 (Tenn. Ct. App. 1986). The award of


         6
           In Langschmidt, the Supreme Court held that the appreciation of substantial assets of the husband were not
marital property, as the trial court had found, which substantially diminished the marital estate that was awarded to the
wife, and because of their ruling it was necessary to remand for the trial court to determine whether the division of marital
property is equitable. Langschmidt v. Langschmidt, 81 S.W .3d 741, 750 (Tenn. 2002). Further, because the trial court
considered its sizeable distribution of marital assets in determining that rehabilitative alimony was not appropriate, the
Supreme Court also instructed the trial court to consider whether rehabilitative alimony was proper in light of the factors
listed in Tenn.Code Ann. § 36-5-121(i). Id.

                                                            -8-
attorney’s fees as alimony is appropriate when the divorce fails to provide the disadvantaged
spouse with a revenue source, such as from the property division, or assets from which to pay
his or her attorney’s fees. Yount, 91 S.W.3d at 783. Moreover, an award of attorney’s fees
is appropriate if the spouse received alimony as a result of the divorce but will be forced to
deplete those funds, designed to sustain that spouse, in order to pay the attorney’s fees.
Batson v. Batson, 769 S.W.2d 849, 862 (Tenn. Ct. App. 1988).

        The only marital asset of substantial value Wife will receive in the divorce is her one-
half interest in the marital residence, and it is readily apparent that Wife will need this asset
to obtain a new home. Therefore, this asset is not available for Wife to pay her attorney’s
fees. Wife’s only other assets of any real value are her two retirement accounts, the Great
West 401K retirement account valued at $62,000 and her State of Tennessee Retirement
fund, and it would be most unadvisable for Wife to liquidate either retirement fund.

        An award of attorney’s fees is appropriate when the disadvantaged spouse’s income
is not sufficient to pay her attorney’s fees and the divorce fails to provide her with a revenue
source, such as from the property division, or assets from which to pay her attorney’s fees.
Yount, 91 S.W.3d at 783. Wife does not have an adequate income or adequate assets with
which to pay her attorney’s fees. Accordingly, we find that Wife is entitled to recover at least
a portion of her attorney’s fees and related legal expenses incurred in this matter.

       Our decision, however, does not mandate that Wife is entitled to recover all of her
attorney’s fees; to the contrary, the amount of attorney’s fees she may recover must be
reasonable under the circumstances of each particular case. Connors v. Connors, 594 S.W.2d
672 (Tenn. 1980). We leave that determination up to the sound discretion of the trial court.

        Wife has also requested to recover the attorney’s fees and expenses she incurred on
appeal. We find she is entitled to recover those fees and expenses to the extent they are
reasonable and necessary under the circumstances of this case. Accordingly, we remand this
issue to the trial court to determine the amount of attorney’s fees and expenses Wife is
entitled to recover.




                                               -9-
                                       I N C ONCLUSION

       The judgment of the trial court is reversed in part and affirmed in part, and this matter
is remanded for further proceedings consistent with this opinion. Costs of appeal are assessed
against the parties equally.


                                                     ___________________________________
                                                     FRANK G. CLEMENT, JR., JUDGE




                                              -10-
