                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  June 10, 2015 Session


HEATHER ANNE GULISH GLADWELL v. TONY NEIL GLADWELL, JR.

                  Appeal from the Chancery Court for Henry County
                        No. 22240 Donald P. Harris, Judge

                          ________________________________

                 No. W2014-01095-COA-R3-CV – Filed July 20, 2015
                      _________________________________


J. STEVEN STAFFORD, Dissenting in Part.

       I concur in the majority opinion with regard to all issues save one—the reversal of the
attorney fee award to Husband. On this point, I must respectfully file this partial dissent.

        As discussed by the majority Opinion, this Court follows the general rule that a
“spouse with adequate property and income is not entitled to an award of alimony to pay
attorney‟s fees and expenses.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 113 (Tenn. 2011)
(quoting Umstot v. Umstot, 968 S.W.2d 819, 824 (Tenn. Ct. App. 1997)). Instead, “[s]uch
awards are appropriate only when the spouse seeking them lacks sufficient funds to pay his
or her own legal expenses, or the spouse would be required to deplete his or her resources in
order to pay them.” Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn. Ct. App. 1992),
Harwell v. Harwell, 612 S.W.2d 182, 185 (Tenn. Ct. App. 1980).
        First, I note that the Gonsewski Court held that a spouse with “property and income”
would not be entitled to alimony in solido in the form of attorney‟s fees. Gonsewski, 350
S.W.3d at 113 (quoting Umstot, 968 S.W.2d at 824 (emphasis added)). Here, the financial
states of each party are generally not in dispute. The trial court found, and this Court has
affirmed, that Wife earns approximately $43,000.00 per month in income and has a
substantial separate and marital estate. In contrast, Husband has no employment income.
Although Wife may elect to pay Husband a portion of his marital property in monthly
installments, this sum represents marital property, rather than income. Furthermore, although
Husband is entitled to child support, child support does not constitute support to the parent,
but instead is owed to the child. See Kirkpatrick v. O’Neal, 197 S.W.3d 674, 680 (Tenn.
2006) (“„The [parent‟s] duty of support is owed to the child, not to the [other parent].‟”)
(quoting In re Linville, No. M2000-01097-COA-R3-CV, 2000 WL 1785991, at *6 (Tenn.
Ct. App. Dec. 7, 2000)). Accordingly, under Gonsewski, Husband does not possess both
adequate property and income to pay his own attorney‟s fees. Because he has no independent
income, Husband must resort to depleting his marital estate to pay his attorney‟s fees. See
Webster’s New World College Dictionary 396 (5th ed. 2014) (defining “deplete” as “to make
less by gradually using up” or “to empty wholly or partially”). Wife, however, is certainly
financially capable of shouldering that burden.
        A similar situation was presented in Pettigrew v. Pettigrew, No. E2011-02706-COA-
R3CV, 2012 WL 5541668 (Tenn. Ct. App. Nov. 15, 2012). In Pettigrew, wife was awarded
both transitional alimony and over $500,000.00 in funds representing marital property. Id. at
*1. The trial court awarded wife attorney‟s fees as alimony in solido, finding that because of
wife‟s lack of employment, she should “not have to deplete her resources to pay her
attorney‟s fees.” Id. at *2. Husband appealed, arguing that because of the substantial liquid
assets awarded to wife in the divorce, wife was capable of paying her own attorney‟s fees.
The Court of Appeals concluded that the trial court did not abuse its discretion in awarding
wife attorney‟s fees as alimony in solido, given that: (1) husband had a greater earning
capacity; (2) husband was earning $35,000.00 per month in severance at the time of trial; and
(3) that wife had not worked during the marriage; and (4) husband was at fault for the demise
of the relationship. Id. at *2–*3.

        In reaching its decision, the Court of Appeals stressed the narrow standard of review
applicable in reviewing alimony decisions—the abuse of discretion standard of review.
According to the Pettigrew Court, a reviewing court can only find an abuse of discretion
when the trial court “applied incorrect legal standards, reached an illogical conclusion, based
its decision on a clearly erroneous assessment of the evidence, or employed reasoning that
causes an injustice to the complaining party.” Id. at *2 (citing Burton v. Mooneyham, 2012
WL 1070121 (Tenn. Ct. App. Mar. 29, 2012)). As explained by the Tennessee Supreme
Court:
                     Equally well-established is the proposition that a trial
              court‟s decision regarding spousal support is factually driven
              and involves the careful balancing of many factors. Kinard v.
              Kinard, 986 S.W.2d 220, 235 (Tenn. Ct. App. 1998); see also
              Burlew, 40 S.W.3d at 470; Robertson v. Robertson, 76 S.W.3d
              337, 340–41 (Tenn. 2002). As a result, “[a]ppellate courts are
              generally disinclined to second-guess a trial judge‟s spousal
              support decision.” Kinard, 986 S.W.2d at 234. Rather, “[t]he
              role of an appellate court in reviewing an award of spousal
              support is to determine whether the trial court applied the
              correct legal standard and reached a decision that is not clearly
                                             2
                 unreasonable.” Broadbent v. Broadbent, 211 S.W.3d 216, 220
                 (Tenn. 2006). Appellate courts decline to second-guess a trial
                 court‟s decision absent an abuse of discretion. Robertson, 76
                 S.W.3d at 343. An abuse of discretion occurs when the trial
                 court causes an injustice by applying an incorrect legal standard,
                 reaches an illogical result, resolves the case on a clearly
                 erroneous assessment of the evidence, or relies on reasoning that
                 causes an injustice. Wright ex rel. Wright v. Wright, 337
                 S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318
                 S.W.3d 328, 335 (Tenn. 2010). This standard does not permit an
                 appellate court to substitute its judgment for that of the trial
                 court, but “„reflects an awareness that the decision being
                 reviewed involved a choice among several acceptable
                 alternatives,‟ and thus „envisions a less rigorous review of the
                 lower court's decision and a decreased likelihood that the
                 decision will be reversed on appeal.‟” Henderson, 318 S.W.3d
                 at 335 (quoting Lee Medical, Inc. v. Beecher, 312 S.W.3d 515,
                 524 (Tenn. 2010)). Consequently, when reviewing a
                 discretionary decision by the trial court, such as an alimony
                 determination, the appellate court should presume that the
                 decision is correct and should review the evidence in the light
                 most favorable to the decision. Wright, 337 S.W.3d at 176;
                 Henderson, 318 S.W.3d at 335.

Gonsewski, 350 S.W.3d at 105–06 (footnote omitted). Accordingly, this Court may not
second guess the trial court‟s decision, but instead must presume that the trial court‟s
decision to award or deny alimony, including attorney‟s fees in the form of alimony in solido,
is correct. Id.
        Having reviewed the trial court‟s decision in the light most favorable to it, I cannot
agree that the award of attorney‟s fees to Husband was an abuse of discretion. Here, much
like the wife in Pettigrew, Husband has no employment income, but instead has substantial
marital property.1 Pettigrew, 2012 WL 5541668, at *2. Also like in Pettigrew, without
income, it is reasonable to conclude that Husband would be required to deplete his portion of
the marital estate to pay his attorney‟s fees. Nothing in the majority‟s analysis on this issue
leads me to conclude that the presumption in favor of the trial court‟s order has in any way

        1
          In addition, much like in Pettigrew, here the trial court expressly noted in awarding attorney‟s fees to
Husband that “Wife[] [was at] fault in the dissolution of the marriage[.]” According to the trial court, Wife was
also responsible for “additional amounts Husband has been billed for attorney‟s fees.” The majority Opinion
discusses neither of these facts in deciding to summarily reverse the trial court‟s award.
                                                        3
been rebutted. Instead, from my review, it does not appear that the trial court‟s decision is
clearly unreasonable, based upon an incorrect legal standard, illogical, clearly erroneous, or
that the decision will cause an injustice. See Gonsewski, 350 S.W.3d at 105–06. Accordingly,
it appears that the majority simply reaches a different conclusion regarding whether the
payment of attorney‟s fees by Husband would deplete his resources. This is not an
appropriate basis for overturning a decision reviewed under the abuse of discretion standard.
See generally id.
       Based on the forgoing, I cannot conclude that the learned trial court abused its
discretion in awarding attorney‟s fees to Husband as alimony in solido. Consequently, I must
respectfully dissent in part from the majority Opinion.



                                                  _________________________________
                                                  J. STEVEN STAFFORD, JUDGE




                                              4
