                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  February 18, 2004 Session

              TAMMY KAY JOINER v. JAMES ALDEN GRIFFITH

                   Appeal from the Juvenile Court for Montgomery County
                             No. 98-235   John J. Hestle, Judge



                     No. M2003-00536-COA-R3-JV - Filed June 14, 2004


This appeal involves a child support and visitation dispute. Mother and Father, never married, have
two minor children. The parties lived together from 1997 until March 2001, when Father was
arrested for domestic assault. Father moved out of the residence. Mother filed a complaint seeking
to be the primary residential parent, requested child support and arrearages and asked for temporary
support and attorney fees. The juvenile court placed primary custody of the children with Mother,
set visitation, and ordered Father to pay $4,000 a month in child support plus $31,586 in arrearages.
Father appealed, taking issue with visitation, child support, arrearages, and the court’s failure to
make findings of fact regarding the alleged domestic assault. Mother appealed claiming the court
erred by rejecting most of her claim for her attorney fees. We affirm the trial court’s determinations
concerning child support and visitation, modify the offset against the arrearage owed for child
support, and reverse and remand Mother’s request for attorney fees. Further, we find that the trial
court is not required to make written findings of fact concerning the domestic abuse charge because
the alleged domestic assault was not against a minor.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
                    Affirmed in part, Reversed in part and Remanded.

FRANK G. CLEMENT , JR., J., delivered the opinion of the court, in which WILLIAM C. KOCH , P.J.,
M.S., and PATRICIA J. COTTRELL, J., joined.

Rodger N. Bowman and Gregory D. Smith, Clarksville, Tennessee, for the appellant, James Alden
Griffith.

Steven C. Girsky and Ralph H. McCoy, Clarksville, Tennessee, for the appellee, Tammy K. Joiner.
                                                         OPINION

        James Alden Griffith (Father) and Tammy Kay Joiner (Mother) have two children, S.N.G.
and B.A.G.1 Father and Mother lived together from 1997 until March 9, 2001 when Father was
arrested for an alleged domestic assault on Mother.2 As a result of the incident and accusations by
Father against Mother, S.N.G. was taken into state custody and placed in a foster home. S.N.G. was
released to Mother’s physical custody on March 22, 2001 with legal custody remaining with the
State, pending resolution of the domestic assault charge.3

        On March 12, 2001, Mother filed a Complaint for Child Support and Other Relief seeking
to be the primary residential parent with Father having “liberal visitation,” an award of child support
and arrearages as well as temporary support and attorney fees.4 The initial complaint requested relief
regarding S.N.G. only, for B.A.G. was not born until the following year, March of 2002. The
complaint was orally amended following B.A.G.’s birth to seek similar relief concerning B.A.G.
Both parents filed proposed parenting plans designating Mother as the primary residential parent for
both children. Their differences pertain to visitation and child support.

        Mother had been studying to be a nurse and had not worked in several years. She anticipated
graduating in May 2003. Father has been self-employed as an electrical contractor dealing primarily
in residential construction since 1989. Father is the sole shareholder of JAG Contractor, Inc. which
owns seventy-two apartments and three rental homes. Father testified that his last “good year” was
1998, claiming that he had experienced a seventy percent decrease in business since then. He
attributed much of the decline to September 11, 2001 and subsequent events.

        Following a hearing, the trial court designated Mother as the primary residential parent and
set visitation and child support. Father’s visitation with S.N.G., who was three years old, was
substantially more liberal than his visitation with the younger child, B.A.G., who was five months
old at the time of the hearing and has spina bifida. The court set child support and ordered Father
to pay $4,000 per month. The court also issued a judgment for a support arrearage of $31,586.72.
The trial court set child support based upon Father’s earnings over the previous four years instead
of the more typical practice that bases support on the previous two years. The court explained that

         1
             In the interest of confidentiality, we identify the minors by initials instead of their names.

         2
           Mother’s complaint indicates that the domestic assault incident occurred on March 9, 2001, however the
transcript from the March 28, 2001 hearing suggests that it happened March 10, 2001. For the sake of consistency, we
will assume the domestic assault incident occurred on March 9, 2001.

         3
          After the March 9, 2001 altercation, the Department of Children’s Services became involved. The Department
conducted home studies and recommended that both M other and Father attend anger management classes. Both parents
successfully completed the classes. Though there is no order in the record, the transcript reveals that DCS was allowed
to withdraw several months later when the judge stated, “I am going to let DCS out of the mix.”

         4
          Mother’s complaint was originally filed in the Chancery Court for Montgomery County, but the matter was
transferred to the Juvenile Court for Montgomery County.

                                                              -2-
the use of a four year average was justified due to the fact that Father is self-employed with a
fluctuating income and the recent changes in the economy. The trial court awarded Mother $750.00
for her attorney fees and expenses. She incurred and had requested reimbursement of $15,750 in
attorney fees and costs.

        Father and Mother both appeal. Father takes issue with the visitation schedule and
calculation of child support and arrearages. He also claims the trial court was obligated to make
written findings of fact concerning the alleged domestic assault and failed to do so. Mother appeals
asserting that the trial court erred by not awarding her all of her attorney fees and expenses.

                                              Visitation Schedule

         Father raises two issues concerning the visitation schedule.5 First, he argues that the
visitation schedule should provide for a more equal division of time and that the number of visitation
days awarded him, 138 days per year with S.N.G. and approximately 113 days per year with B.A.G.,
is deficient. He contends that the comparative fitness of the parents justifies a more equal split in
time which he claims is in the children’s best interest. Second, Father argues that the trial court’s
limitation on his visitation with B.A.G. is arbitrary, not supported by the facts and constitutes an
improper application of the now-abolished tender years doctrine.6

        Our review of the trial court’s decision concerning the children’s visitation schedule is de
novo on the record with a presumption of correctness of the findings, unless the preponderance of
the evidence is otherwise. Tenn. R. App. P. 13(d); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn.
1984); Rice v. Rice, No. M1998-00973-COA-R3-CV, 2001 WL 812258 (Tenn. Ct. App., July 19,
2001) (citing Nichols v. Nichols, 792 S.W.2d 713 (Tenn. 1990)). The child’s best interest and
welfare are of utmost concern in establishing visitation arrangements. Whitaker v. Whitaker, 957
S.W.2d 834, 837 (Tenn. Ct. App. 1997); Bah v. Bah, 668 S.W.2d 663, 665 (Tenn. Ct. App. 1983).
Generally, a child’s interests are best served by a custody and visitation arrangement that promotes
the development of relationships with both parents. Janet L. Richards, Richards on Tennessee
Family Law, § 9-1, at 181 (1997).

        There are no hard and fast rules for determining what sort of visitation schedule will best
serve a child’s needs. Taylor v. Taylor, 849 S.W.2d 319, 327 (Tenn. 1993). Like determinations
regarding child custody, decisions pertaining to visitation often hinge on subtle factors, including
the credibility and demeanor of the parties involved. Adelsperger v. Adelsperger, 970 S.W.2d 482,
485 (Tenn. Ct. App. 1997). Thus the trial court is afforded broad discretion regarding these
determinations. Adelsperger, 970 S.W.2d at 485.

         5
          Father’s brief expresses dissatisfaction with the trial court’s “visitation/custody shared parenting plan”,
however a closer look reveals that custody is not being challenged as he and Mother both designated Mother as the
primary residential parent in their proposed parenting plans.

        6
         The tender years presumption has been abolished, effective May 13, 1997. W . W alton Garrett, Tennessee
Divorce, Alimony and Child Custody § 24-6, at 339 (2000).

                                                        -3-
        The trial court set the following visitation for Father with the older child, S.N.G. Until
S.N.G. begins kindergarten, Father shall have every other weekend from Friday at 6:00 p.m. until
Sunday at 6:00 p.m. One day during the week Father will pick up the child at day care in the
morning and return her to day care by 12:00 p.m. the following day. He will choose one day during
the week for telephone visitation. Father shall be allowed visitation five consecutive days, five times
per year. He can link those days with one of his weekend visits. The parties will alternate having
S.N.G. on her birthday until she starts attending school. The parties will alternate holidays until
S.N.G. starts school. When Mother becomes regularly employed, Father can pick up the child at day
care and keep the child until two hours prior to Mother picking child up at the day care. When
S.N.G. begins attending school, Father will have her on the same schedule as pre-school– every other
weekend but the five weeks visitation will be discontinued. Father will be allowed to visit S.N.G.
at school whenever the school permits, i.e., eating lunch, school programs. He will have her on
spring break and every other week during the summer. Father will have S.N.G. for one week at
Christmas and the parties will alternate Thanksgiving. The parties will alternate Mother’s Day and
Father’s Day. When S.N.G. is in school, the parent who has physical custody will make sure the
child gets to all school functions and athletic events.

       The visitation schedule with S.N.G. is not unusual. It is relatively typical and customary.
There is no evidence before us to suggest the trial court was arbitrary in setting Father’s visitation
with S.N.G. To the contrary, the schedule appears to be in S.N.G.’s best interest.

        Father argues that the court erroneously applied the now-abolished tender years doctrine to
set visitation for B.A.G. The trial court stated that it limited visitation with B.A.G. due to her
medical complication. She has spina bifida, a very debilitating condition. That schedule is:

              The Court is setting the pre-three-year-old visitation understanding that there
       are medical problems that may have to be addressed. The Court is not concerned
       about the Mother nursing the child since she is leaving the child at day care.

               The Court believes that, for the next six months, Father should only have
       B.A.G. on a daytime basis. Due to his work schedule, it would seem appropriate that
       Father visit the child as much as he can at the day care center and every other
       Saturday from 8:00 a.m. until 4:00 p.m. After the first six months, Father shall have
       the child every other weekend, but not for the five-week prior. This will be until
       B.A.G. turns three years of age. Parties will have the same visitation with B.A.G. as
       with S.N.G. once B.A.G. turns three (3) years of age.

       At the April 25, 2002 hearing, the court stated that it would base its determination on the
information contained in the proposed plans filed by the parties.7 Specifically, the court stated:




       7
           Both parties’ plans designated Mother as the primary residential parent.

                                                          -4-
       The Court recognizes that the child [B.A.G.] has a medical condition. The Court
       would entertain any information from a doctor concerning the child’s medical
       condition that might make this visitation not to be in the best interest of the child.
       Each party can have their medical doctor submit a letter and, if necessary, a hearing
       can be held. The Court stands ready to work around the child’s medical condition
       at any time.

         While the visitation schedule for B.A.G. is much more restricted and is not the more typical
visitation schedule, we find nothing in the record to suggest that the trial court applied the tender
years doctrine. The court encouraged Father to present medical evidence to justify a more liberal
schedule or to establish that the trial court’s determination was not in B.A.G.’s best interest;
however, he failed to present any such evidence. It is obvious from the fact that the court set
different visitation schedules for the children due to their different medical conditions that the trial
court took into consideration the best interests of the children.

        There is ample evidence to justify additional restrictions for visitation with B.A.G.
Accordingly, we find that setting a more liberal visitation schedule with the older and healthier child
and a more restricted schedule for the child with spina bifida is justified. Therefore, since the
evidence does not preponderate against the trial court’s rulings regarding visitation, we affirm the
trial court concerning the visitation schedules.

                                            Child Support

        Father challenges the monthly child support award and the arrearage. Specifically, Father
argues that the trial court erred in setting support at $4,000 per month by inferring an inflated net
income rather than relying on his corporate and personal tax returns. He also argues that the court
erred by averaging his income over the previous four years instead of two years as provided in Tenn.
Comp. R & Regs. r. 1240-2-4-.04(1)(e). Father challenges the arrearage set at $31,586 on two
grounds. The first is the same argument as above concerning the monthly support. The second is
that the trial court failed to give him credit for $4,500 he allegedly provided after the parties
separated.

        We review the trial court’s decision concerning child support using the abuse of discretion
standard of review. State ex. rel. Vaughn v. Kaatrude, 21 S.W. 3d 244, 248 (Tenn. Ct. App. 2000).
The abuse of discretion standard requires us to consider, “(1) whether the decision has a sufficient
evidentiary foundation, (2) whether the trial court correctly identified and properly applied the
appropriate legal principles, and (3) whether the decision is within the range of acceptable
alternatives.” Id. This court will not substitute its judgment for that of the trial court “merely
because we might have chosen another alternative.” Hanselman v. Hanselman, No. M1998-00919-
COA-R3-CV, 2001 WL 252792, *2 (Tenn Ct. App., March 21, 2001).

       In explaining its determination of child support, the trial court stated that this was not an
ordinary case due to the fact that Father was self-employed, his financial records were incomplete


                                                  -5-
and questionable and Father, who claimed he had no income due to business losses, continued to live
a grand lifestyle and continued to purchase luxury items with cash. The trial court noted, “[T]he
guidelines, both federal and state, were followed to the extent in this case that they could be
followed. . . . The defendant was living a very grand lifestyle that certainly showed that he was
making more money than set out in the income tax returns and paperwork filed with the court.” The
trial court further stated:

       The Court finds that the guidelines reflect that the clear intent of the legislature as to
       what both gross and net income is to be calculated for child support issues and the
       Court has taken all of these items into consideration in setting the amount. In
       utilizing these, the Court for the year 2001 took into consideration those factors that
       were herein above set out and came up with his wages based on social security or
       approximately $5,000.00 per month, and that his W2 showed interest income of
       $15,000.00 which average out to approximately $1,507.00 that he received from his
       gross interest income. The Court added back in the approximate $114,000.00
       deductions from JAG and his schedules from his income tax returns which came to
       approximately $174,000.00, which times 32% would equal approximately
       $55,525.00 divided by 12 which was $4,628.00 per month, which the court averaged
       that for the four (4) and utilized the other factors and came up with the sum of
       $4,000.00 per month child support obligation.

        The trial court acknowledged that Father’s financial picture appeared to have been affected
by the economy since the tragedy of September 11; however, the court questioned the validity and
completeness of Father’s financial reports. The court further commented that losses allegedly
sustained by Father appeared to have no impact on his lifestyle. Moreover, the court observed that
Father had paid cash for several expensive items including a swimming pool, a car and a fence. Of
further significance, the court noted that Father had not been forthcoming with complete financial
documentation and information. The trial court stated, “The father did not provide every bit of the
information that I would have liked to have had to make this decision, but . . . from what I have –
the exhibits I’ve seen that have been filed with the Court, the Court is going to set the support based
upon these documents.” The court further stated that Father’s failure to file the requested documents
was “due to the fact that they revealed other sources of income and/or other sources of money.”

         In part, Father argues that the trial court should have used the average income over the most
recent two years, not four years. He principally relies on Tenn. Comp. R. & Regs. r. 1240-2-4-.04
(1)(e)(2) which provides that the “retroactive support amount shall be calculated based upon the
guidelines using the average income of the obligor over the past two (2) years, and is presumed to
be correct unless rebutted by either party.” (emphasis added). His argument however is overstated
for this guideline has limited application. Simply stated, the two year provision is only applicable
when setting “retroactive support.” There is no corresponding two year provision in the guidelines
for setting “prospective support,” and periods of four years have been approved depending on the
circumstances. It is up to the trial court to determine on a case-by-case basis the most appropriate
way to average fluctuating income. Hanselman, 2001 WL 252792, at*3. “Periods of one year or


                                                  -6-
longer, including two, three, or four years, have been consistently approved depending on the
circumstances (citations omitted).” Tinsley v. Tinsley, No. M2001-02319-COA-R3-CV, 2002 WL
31443210, *4 (Tenn. Ct. App., November 1, 2002). Moreover, the time period to be used lies within
the discretion of the trial court based upon the facts of the situation. Id. at *4. Thus, the question
concerning the two year window is limited to the award of retroactive support and whether the trial
court was justified to deviate from the two year period stated in the guidelines when setting
retroactive support.

        The trial court may deviate from the guidelines if it is in the best interest of the child(ren).
Tenn. Comp. R. & Regs. r. 1240-2-4-.04(2). “In deviating from the guidelines, primary
consideration must be given to the best interests of the child(ren) for whose support the guidelines
are being utilized.” Tenn. Comp. R & Regs r.1240-2-4-.04(5). Where an obligor parent’s income
is subject to variation, averaging is appropriate to determine net income for the purpose of
calculating child support.” Alexander v. Alexander, 34 S.W.3d 456, 460 (Tenn. Ct. App. 2000).

        Here, the trial court was faced with the daunting task of setting support for a father who was
self employed, whose income fluctuated, and whose lifestyle appeared to belie his stated income.
As stated above, it is up to the trial court to determine the most appropriate way to average
fluctuating income. Moreover, when setting prospective support, periods of one, two, three or four
years have been approved depending on the circumstances. While the guidelines provide that the
two year window is to be used when setting retroactive support, and is presumed to be correct unless
rebutted, we find sufficient evidence in the record to justify the trial court’s decision to deviate from
the two year guideline. This is particularly justified due to the fluctuation in Father’s income, the
fact that the trial court found Father’s financial evidence to be incomplete and questionable, and it
found that Father’s lifestyle and purchases of luxury items with cash to belie his stated income.

       Using the abuse of discretion standard, we see no basis to second guess the trial court’s
decision setting retroactive support and/or prospective support. Therefore, we affirm the trial court’s
decision setting child support at $4,000 per month.

                                               Arrearage

        Father’s challenge to the arrearage award of $31,586.72 is based in part on the monthly
support discussed above and on the argument that the trial court did not give him credit for $4,500
he allegedly provided after the parties separated. We have already discussed the court’s calculation
of monthly retroactive support, therefore we will limit our discussion to the alleged offset of $4,500.

         Father testified in a hearing on April 25, 2002 that he gave Mother $4,500 when they
separated to help her become stabilized. Mother presented no evidence to directly challenge Father’s
testimony that he provided this support. It was not until the May 28, 2002 hearing when the court
ruled on the arrearage that Mother questioned the payment through argument by her counsel. After
the trial court announced that it was setting the arrearage at $31,586.72, Father’s attorney asked if
the $4,500 payment was factored into the arrearage. Mother’s attorney responded, “Your Honor, we


                                                  -7-
dispute those figures. There were some payments made, but the purpose of the payments is subject
for proof, and I just don’t think it’s appropriate at this stage.” The trial court then stated, “The Court
is not going to consider that. And I don’t remember that. As you say, that was probably disputed.”

        The record reveals that Father testified that he paid $4,500 to Mother as support for her and
the children, and no evidence was introduced to contradict his testimony. While Father’s testimony
on this issue is less than compelling, it is nonetheless uncontroverted. Accordingly, Father’s
testimony is sufficient to entitle Father to an offset of $4,500. Thus, the arrearage set at $31,586.72
must be reduced by $4,500. Therefore, the trial court’s award for the arrearage is modified to
$27,086.72.

                         Findings of Fact Regarding Alleged Domestic Assault

        Father’s final issue is the contention that the trial court had an affirmative duty to make
written findings of fact regarding the alleged domestic assault. This is a question of law and is
therefore reviewed de novo with no presumption of correctness. Tenn. R. App. P. 13(a); Jahn v.
Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996).

       At the March 14, 2001 hearing the trial court announced that the domestic assault charge
would be dismissed without any finding of guilt. Of particular significance, the trial court stated,
“I’m not going to convict anybody in that case because they’ve made progress toward working out
the domestic part. . . . I will enter a dismissal of that charge,8 and that will clean that up.” Neither
party objected to the court’s comments or decision.

          Father asserts that the trial court is required to but failed to make written findings of fact.
The statute upon which Father relies is Tenn. Code Ann. § 36-6-106(a)(8). Section (a) provides, “In
. . . any . . . proceeding requiring the court to make a custody determination regarding a minor child,
such determination shall be made upon the basis of the best interest of the child. The court shall
consider all relevant factors including the following where applicable.” The statute sets forth ten
relevant factors. The eight relevant factor is evidence of physical or emotional abuse to the child,
to the other parent or to any other person. Unfortunately, subsection eight contains additional
provisions and is in-artfully drafted. The entire subsection reads:

        (8) Evidence of physical or emotional abuse to the child, to the other parent or to any
        other person; provided, that where there are allegations that one (1) parent has
        committed child abuse, [as defined in § 39-15-401 or § 39-15-402], or child sexual
        abuse, [as defined in § 37-1-602], against a family member, the court shall consider
        all evidence relevant to the physical and emotional safety of the child, and determine,
        by a clear preponderance of the evidence, whether such abuse has occurred. The court



        8
         At the March 14, 2002 hearing, the court said it would dismiss the domestic assault charge on “the 28 th”,
however at the March 28, 2002 hearing, there was no mention of the domestic assault incident.

                                                       -8-
        shall include in its decision a written finding of all evidence, and all findings of facts
        connected thereto.

Tenn. Code Ann. § 36-6-106(a)(8).

         This court in Nelson v. Nelson, 66 S.W.3d 896 (Tenn. Ct. App. 2001) construed Tenn. Code
Ann. § 36-6-106(a)(8) to require the trial court to make written findings of fact. We concur with the
holding in Nelson to the extent the trial court finds evidence of child abuse; however, we do not
interpret the statute to require written findings in every case that involves allegations of abuse against
a family member. The first clause of subsection (8) is simply the eighth of ten relevant factors the
trial court is to consider when making a custody determination regarding a minor child.
Unfortunately, the subsection addresses other matters including an affirmative duty that the trial
court make written findings of fact in certain situations. The latter and pertinent part of the statute
states, “where there are allegations that one (1) parent has committed child abuse . . . or child sexual
abuse . . . against a family member, the court shall . . . determine . . . whether such abuse has
occurred. The court shall include in its decision a written finding of all evidence, and all findings
of facts connected thereto.” Tenn. Code Ann. § 36-6-106(a)(8). If one focuses only on the phrase
“against a family member” without referring back to the two limiting provisions, child abuse or child
sexual abuse, the statute appears to require written findings when there is alleged abuse against any
family member. However, the preceding clause limits the scope of the pertinent provision to abuse
against a family member that constitutes child abuse or child sexual abuse. Moreover, the final
sentence of Tenn. Code Ann. § 36-6-106(a)(8) provides, “In addition, the court shall, where
appropriate, refer any issues of abuse to the juvenile court for further proceedings.” This provides
further evidence of the limited application of this section for it would be inappropriate to refer the
matter to the juvenile court for further proceedings if an adult was abusing another adult. Thus, the
affirmative duty of the trial court to make written findings of fact is limited to alleged abuse against
a family member who is a minor child. Accordingly, Tenn. Code Ann. § 36-6-106(a)(8) does not
require the trial court to make written findings of fact when the alleged abuse is against an adult
family member, as is the case before us. Therefore, the trial court is not under a duty to make
findings of fact as Father has demanded.

                                        Mother’s Attorney Fees

        Finally, Mother claims that the trial court erred when it refused to award all of her attorney
fees and necessary expenses associated with this action, both at the trial level and on appeal. On July
23, 2002, the trial court awarded Mother $750 towards her legal fees and costs in this matter but
refused to award additional fees and costs, asserting that it had provided Mother with sufficient funds
to bear her own legal expenses. Her legal expenses totaled $15,750.




                                                   -9-
         Although it is not clear, the $750 awarded to Mother appears to represent the fee of Rick
Lowe, CPA, for testifying on behalf of Mother regarding Father’s tax returns.9 Mother’s attorneys
of record, Steven Girsky and Ralph McCoy, requested fees of $9,250 and $6,500 respectively. In
its final order, the trial court declined to award Mother additional fees, explaining that it had awarded
Mother a large amount of money and felt that Mother should bear some of the financial burden.

        Tenn. Code Ann. 36-5-103(c) provides that the trial court has the discretion to award
reasonable attorney fees if said fees are incurred in enforcing any decree for child support. We will
not intervene with the trial court’s decision concerning an award of attorney fees, absent an abuse
of discretion. Garfinkle v. Garfinkle, 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996).

        There are transcripts from numerous hearings, yet it is obvious that there were as many, if
not more, hearings for which we have no transcript, only court minutes. Accordingly, we have an
incomplete picture of the hearings and the conduct of the parties at the hearings. While we are
reluctant to second guess the trial court, the record is compelling that Mother incurred substantial
legal expenses to obtain support for her children. Whether Mother was unnecessarily obstructive
during the protracted process or incurred unnecessary fees is not revealed in the record before us.

         The trial court has the discretion to assess reasonable attorney fees against Father and award
them to Mother to the extent the fees are incurred in enforcing a decree for child support. The trial
court’s stated justification for its award was that it had awarded Mother a large amount of money and
felt that Mother should bear some of the financial burden. We are unable to justify the trial court’s
decision to only award five percent of Mother’s legal fees. Perhaps Mother should bear “some” of
the burden, but we find the trial court exceeded its discretion by limiting her recovery to a mere $750
out of $15,750. Accordingly, we vacate the trial court’s denial of Mother’s attorney fees and remand
this issue for the trial court to reconsider the award of attorney fees and expenses incurred by Mother.

        Costs of appeal are assessed against Appellant/Father, James Alden Griffith.




                                                              ___________________________________
                                                              FRANK G. CLEMENT, JR., JUDGE




        9
         This is suggested in Ralph M cCoy’s Response to Defendant’s Reply to Application for Attorney’s Fees.
Furthermore, it is unclear whether Rick Lowe’s fee is included in Ralph McCoy’s fee request of $6,500, however it is
immaterial to this appeal.

                                                       -10-
