                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                  September 18, 2000 Session

       ELIZABETH ANN HUNTER CATES v. HERBERT RAY CATES

                    An Appeal from the Chancery Court for Tipton County
                        No. 16,861   Martha B. Brasfield, Chancellor



                      No. W1999-02359-COA-R3-CV - Filed June 25, 2001


This is a divorce dispute. Prior to divorce, the wife left the marital home, taking some of the parties’
joint cash savings. On the day of the divorce hearing, the husband stipulated as to his inappropriate
marital conduct, and the divorce was granted to the wife on that ground. The wife was awarded
approximately 51% of the marital estate, rehabilitative alimony, and attorney’s fees. The trial court
excluded from its division of marital property the money the wife took when she moved out. The
husband appeals. We affirm.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed.

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S. and ALAN E. HIGHERS, J., joined.

J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Herbert Ray Cates.

Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the appellee, Elizabeth Ann
Hunter Cates.

                                              OPINION

        In this divorce case, Herbert Ray Cates (“Husband”) and Elizabeth Ann Hunter Cates
(“Wife”) were married for approximately thirty-three years. During the marriage, the parties
accumulated seventy acres of real property, consisting mainly of farmland. Approximately twenty-
five acres of this property were acquired as tenants by the entirety through deeds. The remaining
forty-five acres were given to Husband as a gift from his mother, but were later transferred to
Husband and Wife as tenants by the entirety. The improvements and taxes on all seventy acres were
paid for with marital funds.

        In February 1998, Wife left the marital residence, taking approximately $12,000 of the
parties’ joint cash savings with her. Wife subsequently filed for divorce and Husband counter-
claimed. On the day of trial, in February 1999, Husband stipulated to his inappropriate marital
conduct and agreed that Wife should be granted a divorce on those grounds. Consequently, the only
issues at trial were the division of property, alimony, and attorney’s fees.

         At the time of divorce, both parties were fifty-one years old. Both parties have a high school
education. Wife did not work outside of the home when the parties’ children were very young, but
helped Husband on the farm. Once the parties’ children reached school age, Wife became employed
and continued to help Husband on the farm. At the time of the divorce, Husband was employed as
a full-time postal employee, and also farmed the seventy acres and earned additional income by
selling hay and cattle. Wife was employed as a congressional liaison with the Department of Navy
and worked part-time as a sales person at a department store. Wife testified that she took the job at
the department store after the parties separated. It is undisputed that Husband had always been the
primary breadwinner during the marriage.

        Wife testified that she used the $12,000 taken from the parties’ joint savings to pay for living
and housing expenses incident to her move, attorney’s fees, medical and other miscellaneous
expenses. During the year between the separation and the divorce hearing, Husband provided no
financial support to Wife and closed the parties’ checking and credit card accounts. Wife stated that,
following the parties’ separation, she saw a psychologist for situational depression stemming from
the circumstances surrounding the divorce.1 She said that she would continue to need treatment in
the future. Wife’s insurance covered only a portion of the psychologist’s care.

         Based on Husband’s stipulation of inappropriate marital conduct, the trial court granted the
divorce to Wife. The trial court found that Wife was entitled to keep the $12,000 as her property,
and did not divide it as marital property. The trial court found that all seventy acres of real property
were marital property and divided it equally between the parties. The property was valued at
$250,000. Husband was ordered to either pay Wife $125,000 for her interest in the property or sell
the property and divide the net proceeds equally with Wife. The trial court awarded Wife
approximately 51% of the remaining marital estate and awarded Husband approximately 49%. The
trial court also awarded Wife rehabilitative alimony in the amount of $300 per month for three years,
and ordered Husband to pay Wife’s medical insurance for six months. Finally, the trial court
awarded Wife $7500 in attorney’s fees.

         On appeal, Husband argues that the trial court erred in its classification of the $12,000 as
Wife’s separate property. He contends that the $12,000 is martial property and should be divided
between the parties or, in the alternative, applied to Wife’s attorney’s fees. Husband also argues that
the trial court erred in awarding Wife rehabilitative alimony. He asserts that the parties are the same
age and have the same educational level and earning capacity. He also maintains that an award of
alimony was improper based on the trial court’s distribution of the marital property, resulting in Wife
receiving in excess of $350,000 in property and cash after Husband paid for her interest in the
seventy acres. Husband further argues that the trial court’s award of attorney’s and appraisal fees


         1
           Evidence was admitted , on the issue of W ife’s emotional state, that Husband’s paramour’s husband murdered
his children and then took his own life.

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was improper because Wife is financially able to pay her attorney. Husband cites the trial court’s
award of $263,719.00 in marital assets to Wife as evidence of her ability to pay for her attorney’s
fees. Husband contends that he has already paid a portion of Wife’s attorney’s fees because Wife
used a portion of the $12,000 toward her attorney’s fees.

         A trial court is vested with wide discretion with regard to classifying and dividing property
and its decisions are entitled to great weight on appeal. See Wilson v. Moore, 929 S.W.2d 367, 372
(Tenn. Ct. App. 1996) (Citations omitted); Ford v. Ford, 952 S.W.2d 824, 825 (Tenn. Ct. App.
1997) Tenn. Code Ann. § 36-4-121(a) (1991). A trial court’s classification and distribution of
property will be presumed correct unless the evidence preponderates otherwise. Id; Barnhill v.
Barnhill, 826 S.W.2d 443, 449 (Tenn. Ct. App. 1991). The trial court is also afforded wide
discretion concerning an award of alimony, and an appellate court should reverse the trial court’s
findings only in instances in which this discretion “has manifestly been abused.” Hanover v.
Hanover, 775 S.W.2d 612, 617 (Tenn. Ct. App. 1989); Ford, 952 S.W.2d at 827. The trial court
is also afforded discretion concerning whether to award attorney’s fees in a divorce case. See Long
v. Long, 957 S.W.2d 825, 827 (Tenn. Ct. App. 1997). On appeal, an appellate court shall not
interfere with the trial court’s decision except upon a showing of an abuse of that discretion. Id.

         We consider first the $12,000 that Wife took from the parties’ joint account when the parties
separated. In Elkins v. Elkins, No. 03A01-9812-CH-00415, 1999 WL 1076940 (Tenn. Ct. App.
Nov. 30, 1999) (perm. to appeal denied July10, 2000), the Court excluded from its valuation of the
martial estate funds that the wife took from the parties’ joint investment account when the parties
separated. Id. In Elkins, the wife testified that she utilized $16,000 from the parties’ joint
investment account funds during their separation to pay taxes and insurance, make necessary home
repairs on the marital residence, and pay her attorney and other litigation expenses. Id. at *2. The
Court found that the husband was inconsistent in his support to Wife during the separation and Wife
had little or no personal income. It noted that the account was joint, accessible by either party. The
Court concluded that the trial court correctly excluded the $16,000 from its valuation of the marital
estate due to the nature of the account and the circumstances surrounding the wife’s use of the funds.
Id. (citing Watters v. Watters, 959 S.W.2d 585 (Tenn. Ct. App. 1997) (finding that the trial court
properly excluded funds spent by the wife from the parties’ joint account during the parties’
separation because the account was joint and primarily used for household and living expenses)).

        In this case, the trial court found that Wife was entitled to the $12,000 as separate property
based on the circumstances leading to Wife’s departure from the marital residence. Wife testified
that she took the funds from the parties’ joint savings account and utilized them to pay for expenses
incident to her move and her attorney’s fees. Husband offered no support to Wife while they were
separated, despite Wife’s requests and the undisputed fact that during their marriage he was the
primary breadwinner. Under these circumstances, the evidence does not preponderate against the
trial court’s classification of the $12,000 as Wife’s separate property or the trial court’s distribution
of marital property.

       Husband next argues that the trial court erred in awarding Wife rehabilitative alimony,
based on the parties’ relative ages, education, earning capacity, and the trial court’s division of

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marital property. The decision regarding alimony depends on the particular facts of the case in light
of the factors set forth in Tennessee Code Annotated § 36-5-101(d)(1). See Mullinax v. Mullinax,
No. 01-A-01-9803-CH00137, 1999 WL 236283, at *3 (Tenn. Ct. App. Apr. 23, 1999); Tenn. Code
Ann. § 36-5-101(d) (Supp. 2000). In awarding rehabilitative alimony, a trial court must consider,
inter alia, the relative earning capacity, financial resources, education, separate assets, fault of the
parties when the court deems appropriate, and age and mental condition of the parties. See Tenn.
Code Ann. § 36-5-101(d). While fault can be considered, alimony is not intended to be punitive.
The critical factors in setting the amount of alimony are the recipient spouse’s need for spousal
support and the obligor’s spouse’s ability to pay. The single most important factor is the
demonstrated need for spousal support of the recipient spouse. Sannella v. Sannella, 993 S.W.2d
73, 76 (Tenn. Ct. App. 1999) (citations omitted); Umstot v. Umstot, 968 S.W.2d 819, 823 (Tenn.
Ct. App. 1997).

        In this case, the trial court made findings of fact as to each factor set forth in Tennessee Code
Annotated § 36-5-101(d)(1). The trial court noted that Husband’s actions were the precipitating
reason for the failure of the marriage. The court also found that Wife suffered from psychological
problems stemming from the break up of her marriage and was receiving counseling that at times
required her to miss work. Based on these findings, the trial court concluded that Wife was entitled
to rehabilitative alimony to pay for the counseling sessions, mileage, and time missed from work due
to her counseling. Under these circumstances, the evidence does not preponderate against the trial
court’s findings or its award of rehabilitative alimony.

        Last, Husband argues that the trial court erred in awarding Wife attorney’s and appraisal fees.
On appeal, an appellate court should not interfere with the trial court’s award of attorney’s fees
unless there is clear showing of an abuse of discretion. Long, 957 S.W.2d at 827. An award of
attorney’s fees is “appropriate when the spouse seeking them lacks sufficient funds to pay his or her
own legal expenses or would be required to deplete his or her resources in order to pay these
expenses.” Smith v. Smith, 984 S.W.2d 606, 610 (Tenn. Ct. App. 1997) (citing Brown v. Brown,
913 S.W.2d 163 (Tenn. Ct. App. 1994)). In determining whether to award attorney's fees, the trial
court should again consider the relevant factors Tennessee Code Annotated § 36-5-101(d)(1),
including fault. Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App.1995). When the wife
demonstrates that she is financially unable to afford counsel, and when the husband has the ability
to pay, the court may properly order the husband to pay the wife's attorney’s fees. Id. Though one
spouse may receive most of the assets in a trial court’s division of property, the court may still award
attorney’s fees to allow that spouse to preserve the assets awarded. Wilson v. Wilson, 987 S.W.2d
555, 566 (Tenn. Ct. App. 1998).

        In this case, the trial court noted that the parties were substantially equivalent in education,
training, and earning capacity. In addition, Husband was ordered to either pay Wife $125,000 for
the value of her half of the seventy acres or, if the property were sold, to equally divide the net
proceeds of the sale. Wife was also awarded a minimal amount of rehabilitative alimony.
However, in her affidavit of income and expenses, Wife estimated that she had a monthly deficit of
approximately $1200. In awarding attorney’s fees and appraisal fees to Wife, the trial court noted
that she incurred most of the fees in attempting to prove the grounds for the divorce, most of which

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Husband stipulated on the day of trial. While this presents a close question, considering all of the
circumstances, we cannot conclude that the award of $7,500 in attorney’s fees constituted an abuse
of discretion.

        The decision of the trial court is affirmed. Costs are taxed to the appellant Herbert Ray Cates
and his surety, for which execution may issue if necessary.




                                                       ___________________________________
                                                       HOLLY K. LILLARD, JUDGE




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