                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               September 12, 2013 Session

           WILLIAM DAVID RUSSELL v. MARY BETH RUSSELL

            Appeal from the Chancery Court for Montgomery County
       No. MCCHCVDI110000368       Laurence M. McMillan, Jr., Chancellor




               No. M2012-02156-COA-R3-CV - Filed November 27, 2013


In this action, the trial court granted Wife a divorce on fault-based grounds against Husband
and awarded $1,500.00 monthly in transitional alimony to Wife for a period of thirty-six
months. Husband appeals. Determining the amount of alimony to be beyond Husband’s
ability to pay, we modify the transitional alimony award to $1,000.00 monthly to Wife for
thirty-six months. We affirm the judgment in all other respects.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
              Affirmed in Part and Modified in Part; Case Remanded

T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Christopher J. Pittman, Clarksville, Tennessee, for the appellant, William David Russell.

Mark R. Olson, Clarksville, Tennessee, for the appellee, Mary Beth Russell.

                                          OPINION

                           I. Factual and Procedural Background

       The parties were married on June 12, 2004, and have two minor children who were
four years old and fifteen months old, respectively, at the time of trial. The parties separated
on July 22, 2011, approximately six weeks after the youngest child’s birth. Husband filed
a complaint for divorce on August 26, 2011, alleging irreconcilable differences and
inappropriate marital conduct. Wife filed an answer and counterclaim on September 30,
2011, alleging adultery and inappropriate marital conduct.
       At the time of trial, Husband had worked full-time at his family’s business, Orgain
Building Supply (“Orgain”), for approximately eight years. He earned an annual salary of
$49,798.00 plus a variable yearly bonus, which in 2011was $30,000.00. This afforded him
an aggregate income of $79,798.00 from Orgain in 2011, the year he filed the complaint for
divorce.

        Beginning in August 2005, Wife was employed at Farmers and Merchants Bank (“F
& M”) as an investment sales associate. She left that position in 2008 to stay at home when
the first child was born, but she returned to work for F & M after the parties separated.
While expecting her first child, Mother had been studying to become licensed as an
investment counselor, but she did not complete the licensing process. Her annual salary at
F & M at the time of trial was $35,000.00. Wife also worked part-time managing an event
center and was co-owner of a catering business. She testified that at the time of trial, she had
earned $1,500.00 in the first nine months of 2012 at the event center and that from the
catering business, she had taken one “draw” of $532.99.

        Prior to trial, the parties reached a partial settlement in mediation. On May 24, 2012,
the trial court entered an agreed order, reserving specific contested issues for trial, including
alimony and child support. Following a bench trial held on September 11, 2012, the trial
court dismissed Husband’s complaint for divorce and granted Wife a divorce on the grounds
of adultery and inappropriate marital conduct. On the issues relevant to this appeal, the trial
court found Husband’s annual income to be $79,798.00 and Wife’s yearly income to be
$37,543.20. The court ordered Husband to pay $1,500.00 monthly in transitional alimony
to Wife for thirty-six months and $1,346.00 monthly in child support. Husband timely
appealed.

                                     II. Issues Presented

       Husband presents one issue on appeal, which we restate as follows:

       1.     Whether the trial court erred by ordering Husband to pay transitional alimony
              of $1,500.00 monthly for thirty-six months in light of the parties’ respective
              incomes and the terms of the partial settlement.

       Wife presents four additional issues, which we restate as follows:

       2.     Whether the trial court erred by incorrectly calculating Husband’s income and
              thereby awarding an amount of transitional alimony below Wife’s level of
              need.



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       3.     Whether the trial court erred by awarding an inadequate amount of child
              support based on an incorrect calculation of Husband’s income.

       4.     Whether Husband’s appeal should be dismissed based on the doctrine of
              unclean hands and his testimony disregarded as not credible.

       5.     Whether this Court should grant Wife an award of attorney’s fees on appeal.

                                  III. Standard of Review

       In this non-jury case, our review is de novo upon the record of the proceedings below;
however, that record comes to us with a presumption that the trial court’s factual findings are
correct. Tenn. R. App. P. 13(d). We must honor this presumption unless we find that the
evidence preponderates against the trial court’s findings. Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s conclusions of law are not
afforded the same deference. Id.

       Determinations regarding spousal and child support are reviewed under an abuse of
discretion standard. See Mayfield v. Mayfield, 395 S.W.3d 108, 114-15 (Tenn. 2012);
Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005). “This standard requires
us to consider (1) whether the decision has a sufficient evidentiary foundation, (2) whether
the court correctly identified and properly applied the appropriate legal principles, and (3)
whether the decision is within the range of acceptable alternatives.” State ex rel. Vaughn v.
Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). The trial court’s determinations
regarding witness credibility are entitled to great weight on appeal and shall not be disturbed
absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835,
838 (Tenn. 2002).

                                 IV. Transitional Alimony

        Husband contends that the trial court erred by awarding Wife $1,500.00 in monthly
transitional alimony for a term of thirty-six months because the amount is beyond his ability
to pay. Although Husband argues that Wife’s claimed expenses may be inflated, the crux of
his argument is that even if Wife needs every penny of alimony awarded to her, he is simply
unable to reasonably pay his total expenses and the alimony ordered. Wife contends that
Husband has the ability to pay more than the amount of alimony established by the trial court.
She further posits that both the amount and duration of alimony should be increased
respectively to $2,211.36 monthly for a period of six years to enable her to meet the expenses
to which she attested at trial. Upon a thorough review of the record, we conclude that the
trial court properly awarded Wife transitional alimony for three years, but we determine that

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Husband’s ability to pay necessitates a decrease in the amount awarded from $1,500.00 to
$1,000.00 monthly.

       Tennessee law recognizes four types of spousal support: (1) alimony in futuro, also
known as periodic alimony; (2) alimony in solido, also known as lump-sum alimony; (3)
rehabilitative alimony; and (4) transitional alimony. Tenn. Code Ann. § 36-5-121(d) (Supp.
2013); Mayfield, 395 S.W.3d at 115. Our statutory scheme indicates a legislative preference
favoring the short-term types of spousal support, rehabilitative and transitional alimony, over
the long-term types of support, alimony in futuro and alimony in solido. See Tenn. Code
Ann. § 36-5-121(d)(2)-(3); Mayfield, 395 S.W.3d at 115; Riggs v. Riggs, 250 S.W.3d 453,
456 (Tenn. Ct. App. 2007). Transitional alimony, at issue in the case at bar, “is appropriate
when a court finds that rehabilitation is not required but that the economically disadvantaged
spouse needs financial assistance in adjusting to the economic consequences of the divorce.”
See Gonsewski v. Gonsewski, 350 S.W.3d 99, 109 (Tenn. 2011) (citing Tenn. Code Ann. §
36-5-121(d)(4), (g)(1); Riggs, 250 S.W.3d at 456 n.5). As our Supreme Court has recently
explained:

       Transitional alimony assists the disadvantaged spouse with the “transition to
       the status of a single person.” [Gonsewski, 350 S.W.3d] at 109 (internal
       quotation marks omitted). Rehabilitative alimony “is designed to increase an
       economically disadvantaged spouse’s capacity for self-sufficiency,” whereas
       “transitional alimony is designed to aid a spouse who already possesses the
       capacity for self-sufficiency but needs financial assistance in adjusting to the
       economic consequences of establishing and maintaining a household without
       the benefit of the other spouse’s income.” Id. Consequently, transitional
       alimony has been described as a form of short-term “bridge-the-gap” support
       designed to “smooth the transition of a spouse from married to single life.”
       Engesser v. Engesser, 42 So.3d 249, 251 (Fla. Dist. Ct. App. 2010).

              Transitional alimony is payable for a definite period of time and may
       be modified only if: (1) the parties agree that it may be modified; (2) the court
       provides for modification in the divorce decree, decree of legal separation, or
       order of protection; or (3) the recipient spouse resides with a third person
       following the divorce. Tenn. Code Ann. § 36-5-121(g)(2).

Mayfield, 395 S.W.3d at 115 (emphasis in original).

       It is well settled that “trial courts in Tennessee have broad discretion to determine
whether spousal support is needed and, if so, to determine the nature, amount, and duration
of the award.” Id. at 114; see also Fickle v. Fickle, 287 S.W.3d 723, 736 (Tenn. Ct. App.

                                              -4-
2008). Tennessee Code Annotated § 36-5-121(i) (Supp. 2013) provides that when
determining the nature and amount of an alimony award, the trial court should consider all
relevant factors, including:

      (1) The relative earning capacity, obligations, needs, and financial resources
      of each party, including income from pension, profit sharing or retirement
      plans and all other sources;

      (2) The relative education and training of each party, the ability and
      opportunity of each party to secure such education and training, and the
      necessity of a party to secure further education and training to improve such
      party’s earnings capacity to a reasonable level;

      (3) The duration of the marriage;

      (4) The age and mental condition of each party;

      (5) The physical condition of each party, including, but not limited to, physical
      disability or incapacity due to a chronic debilitating disease;

      (6) The extent to which it would be undesirable for a party to seek employment
      outside the home, because such party will be custodian of a minor child of the
      marriage;

      (7) The separate assets of each party, both real and personal, tangible and
      intangible;

      (8) The provisions made with regard to the marital property, as defined in §
      36-4-121;

      (9) The standard of living of the parties established during the marriage;

      (10) The extent to which each party has made such tangible and intangible
      contributions to the marriage as monetary and homemaker contributions, and
      tangible and intangible contributions by a party to the education, training or
      increased earning power of the other party;

      (11) The relative fault of the parties, in cases where the court, in its discretion,
      deems it appropriate to do so; and



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       (12) Such other factors, including the tax consequences to each party, as are
       necessary to consider the equities between the parties.

“Although each of these factors must be considered when relevant to the parties’
circumstances, ‘the two that are considered the most important are the disadvantaged
spouse’s need and the obligor spouse’s ability to pay.’” Gonsewski, 350 S.W.3d at 110
(quoting Riggs, 250 S.W.3d at 457).

        In the case at bar, the trial court ruled from the bench at the conclusion of trial, stating
that it had carefully considered all twelve of the statutory factors and would award to Wife
“transitional alimony for a period of 36 months in the amount of $1,500 per month.” We
note that in the Final Decree, the trial court did not expressly identify the award of alimony
as “transitional,” but the nature of the alimony award is not disputed by the parties. Pursuant
to Tennessee Code Annotated § 36-5-121(g)(2), the trial court ordered in the Final Decree
that the alimony award “shall not terminate except in the event of Mary Beth Russell’s
cohabitation with a boyfriend or in the event of the remarriage of Mary Beth Russell.”

       In its Final Decree, the court made the following specific factual findings regarding
the parties’ respective incomes and expenses:

       [T]he Court finds that the wife has income of $3,128.60, on a monthly basis,
       and the husband has income of $6,649.83, on a monthly basis. The Court
       relied upon the Exhibit from Orgain Building Supply to establish this number.
       The Court finds that the health insurance expense for the minor children is
       $404.50 monthly and is currently paid by the Mother. The Mother shall
       maintain the health insurance for the minor children. Each party pays $520.00
       in child care expenses which shall be credited appropriately.

                                 A. Obligor Spouse’s Income

        Announcing its ruling from the bench, the trial court clarified that the total yearly
income it found for Husband, based on his payroll records from Orgain in 2011, was
$79,798.00. This amount included Husband’s base salary of $49,798.00 and his 2011 bonus
of $30,000.00. Husband does not dispute his 2011 income; he instead argues that his annual
bonus is unavailable to pay alimony because it is earmarked to repay a $36,000.00 loan he
obtained in order to meet his obligations under the partial divorce settlement entered before
the trial. Husband further argues that the downward trend in the amount of his bonuses over
the past few years is a result of a decline in the construction market, that the trend may well
continue, and that he therefore cannot be sure of his bonus amount. Husband does not
dispute the trial court’s finding regarding Wife’s income, although he maintains that Wife’s

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earning capacity in both her position at the bank and her catering business is likely to
increase.

        Regarding the calculation of Husband’s income, Wife argues in her brief on appeal
that the trial court erred by using the amount of Husband’s 2011 bonus rather than averaging
his bonus over the past three years. Wife posits that this three-year average would yield an
annual bonus amount of $38,333.00,1 raising the valuation of Husband’s income to
$88,131.00 with his base salary and the bonus combined. We note that while the record
contains documentation of Husband’s 2011 bonus of $30,000.00 and 2010 bonus of
$35,350.00, the only evidence regarding the amount of Husband’s 2009 bonus is his
testimony acknowledging that he had earned bonuses of as much as $50,000.00 “in the past.”
Wife has cited this testimony in calculating the three-year average, although it is not clear
from the record that $50,000.00 was the amount of the 2009 bonus specifically.

        Wife also argues in her appellate brief that Husband regularly acquired income he did
not claim on his income and expense statement or their joint tax returns. According to Wife,
such revenue included gambling winnings and “cash incentives” above his salary paid by
Orgain. Although the parties’ bank statements from the years Wife stayed at home with the
children demonstrate some deposited funds exceeding Husband’s earnings, both parties’
testimony also referenced assistance from their respective parents or grandparents on several
occasions, as well as a large settlement from an insurance claim on the roof of their home.
Husband denies receiving any income beyond that documented from his employment. Our
review of the record reveals no evidence that preponderates against the trial court’s disregard
of alleged additional income. Moreover, Wife’s counsel in oral argument before this Court
conceded that Wife was willing to accept the trial court’s calculation of Husband’s income
“for the sake of argument.” We determine that the trial court properly calculated Husband’s
income.

                                   B. Dependent Spouse’s Need

        Regarding her need for spousal support, Wife claimed a deficit of $2,211.36 monthly
beyond her earned income on her expense statement presented to the trial court. The trial
court did not explicitly find either party’s statement of expenses to be inflated. Testimony
demonstrated that both parties had lived somewhat above their means while married and had
taken steps since their separation to live more economically. Husband’s allegations that Wife
is a spendthrift simply are not supported by the record.



        1
        In proposing this average bonus, Wife appears to have rounded the total of the three bonus amounts
from $115,350.00 down to $115,000.00.

                                                   -7-
        Conversely, the duration of three years for transitional alimony to Wife meets the
purpose of short-term support “designed to aid a spouse who already possesses the capacity
for self-sufficiency but needs financial assistance in adjusting to the economic consequences
of establishing and maintaining a household without the benefit of the other spouse’s
income.” See Mayfield, 395 S.W.3d at 115 (quoting Gonsewski, 350 S.W.3d at 109). Wife’s
supervisor testified that Wife maintained an excellent record as an employee at the bank.
Although he opined that Wife would have been earning more by the time of trial if she had
not stayed home for a few years, caring for the children, he still expected her to advance in
position and remain a valuable employee. Wife stated that she planned to leave her part-time
work with the events center because it cost her more in expenses and time than she earned
from the position. She acknowledged, however, that her catering business, while providing
her with nominal income as of the date of trial, appeared to be flourishing and promised
earning potential. Wife has the capacity for self-sufficiency and also the potential to increase
her earning capability over time. We cannot conclude that the trial court abused its discretion
in determining the level and duration of Wife’s need for transitional alimony.

                             C. Obligor Spouse’s Ability to Pay

       This brings our analysis to Husband’s argument that he does not maintain the ability
to pay alimony of $1,500.00 monthly. See Smith v. Smith, 912 S.W.2d 155, 159 (Tenn. Ct.
App. 1995) (“Need and the ability to pay are the critical factors in setting the amount of an
alimony award.”). At the 2011 level determined by the trial court, Husband’s net income
minus his support obligations is as follows:

       Husband’s Net Monthly Income (base salary):                $2,902.88
       Husband’s Net 2011 Bonus Prorated Monthly:                 $1,858.75
       Net Income Subtotal:                                       $4,761.63

       minus

       Husband’s Support Obligations:
       Alimony:                                                   $1,500.00
       Child Support:                                             $1,346.00
       Child Care:                                                $ 520.00
       Obligations Subtotal:                                      $3,366.00

       Balance:                                                   $1,395.63




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       At trial, Husband submitted an estimate of his monthly expenses as $6,116.00, which
included $525.002 for his share of child care, an estimate of $911.00 for child support, and
$1,500.00 he claimed was needed to repay a $36,000.00 loan acquired to satisfy his
obligations under the parties’ partial settlement. Husband’s obligations under the partial
settlement included $19,000.00 he had paid before trial to cover a portion of the second
mortgage on the marital residence (awarded to Wife in the settlement), an $11,772.03
balance on a credit card used by both parties, a $4,500.00 payment toward Wife’s attorney’s
fees, and a $1,000.00 to $2,000.00 balance on Wife’s car note. Husband presented no
documentation of a loan, however, beyond his own testimony. Wife testified that she
believed Husband had paid his pre-trial settlement obligations with his 2011 bonus. Our
calculations of Husband’s expenses, therefore, do not include repayment of his claimed loan.

        Without Husband’s estimated support obligations and loan repayment (representing
$2,936.00 of the expenses he estimated), his approximate monthly expenses total $3,180.00.
Even considering that Husband may be able to trim his expenses, the $1,395.63 monthly
balance remaining after his support obligations represents less than half of his expenses.
Wife argues that Husband has no need of money for housing or utilities because at the time
of trial, he lived with his grandmother and often stayed with his paramour. We must agree
with Husband, however, that his living with extended family without contributing to housing
and utilities for three years would not be reasonable or tenable.

        Husband cites Goodman v. Goodman as analogous to the instant action. See 8 S.W.3d
289 (Tenn. Ct. App. 1999).3 In Goodman, this Court reduced an award of alimony in futuro
from $5,110.00 to $4,000.00 monthly after determining that the trial court erred in finding
that Husband had the ability to pay the awarded sum. Id. at 296. In setting the higher
alimony amount, the trial court in Goodman relied in part on the husband’s potential to work
extra hours, which he had never done, and on his purported ability to borrow money from his
wealthy parents. Id. at 294-95 (stating that “as the trial court did not make a finding that
Husband was underemployed, the trial court may not impute any additional income to
Husband.”). We do not find the facts in Goodman to be directly analogous, as the trial court
in the instant action imputed no income to Husband beyond his full-time employment. As
in Goodman, however, we determine that the amount of alimony established leaves Husband
without the resources to pay rudimentary expenses. See id. at 294 (reducing the alimony


       2
           Each party’s share of child care under the final judgment is $520.00.
       3
          Goodman was abrogated on an unrelated point of law regarding alimony in solido by revision of
the statute governing alimony, now Tenn. Code Ann. § 36-5-121, as noted in Andrews v. Andrews, 344
S.W.3d 321, 344-45 (Tenn. Ct. App. 2010). See Tippens-Florea v. Florea, No. M2011-00408-COA-R3-CV,
2012 WL 1965593 (Tenn. Ct. App. May 31, 2012).

                                                     -9-
award by $1,110.00 monthly after determining that the award left the husband with only
$562.00 each month after paying support obligations). More recently, our Supreme Court
determined in Gonsewski that where the husband’s yearly bonus was a variable amount that
could likely decrease dependant upon economic factors outside his control, the
unpredictability of his bonus should be factored into his ability to pay. See 350 S.W.3d at
111-13 (noting also that because “‘[t]wo persons living separately incur more expenses than
two persons living together,” “it is unlikely that both parties will be able to maintain their
pre-divorce lifestyle once the proceedings are concluded.’”) (quoting Kinard, 986 S.W.2d
at 234)).

        Wife further argues that Husband’s fault in choosing to engage in an extramarital
affair and leave the marital home should not deprive Wife of the needed resources to
maintain a home for herself and the children. In granting Wife the divorce on grounds of
adultery and inappropriate marital conduct and dismissing Husband’s complaint for divorce,
the trial court clearly found Husband guilty of adultery and at fault for the dissolution of the
marriage. The court also expressly listed the relative fault of the parties as one of the
statutory factors it considered in setting alimony. While the parties’ relative fault is a factor
to be considered in determining the nature and amount of an alimony award, alimony “is not
and never has been intended by our legislature to be punitive.” See Lindsey v. Lindsey, 976
S.W.2d 175, 179-80 (Tenn. Ct. App. 1997) (quoting Lancaster v. Lancaster, 671 S.W.2d
501, 503 (Tenn. Ct. App. 1984)). We conclude that the trial court erred in setting the amount
of transitional alimony beyond Husband’s ability to pay and that a downward modification
from $1,500.00 monthly to $1,000.00 monthly is appropriate and supported by the evidence
in this case.

                                      V. Child Support

        Based on Wife’s assertion in her brief on appeal that the trial court should have
averaged Husband’s bonuses over the past three years in calculating his income, Wife posits
that the trial court incorrectly set the monthly amount of child support to be paid by Husband.
The trial court ordered Husband to pay $1,346.00 monthly in child support, which Wife does
not dispute as the accurate amount pursuant to the trial court’s findings regarding the parties’
respective incomes and the Child Support Guidelines. See Tenn. Code Ann. § 36-5-101(e)(1)
(2010). Having determined that the evidence does not preponderate against the trial court’s
finding regarding the amount of Husband’s income, we conclude that this issue is
pretermitted as moot.




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                               VI. Doctrine of Unclean Hands

       Wife contends that Husband’s appeal should be dismissed based on the equitable
doctrine of unclean hands. She asserts that Husband spent money throughout the marriage
on an “extensive gambling addiction,” about which he invoked his Fifth Amendment right
against self-incrimination at trial. As her argument goes, this Court should draw a negative
inference based on his invocation of the Fifth Amendment. See Akers v. Prime Succession
of Tenn., Inc., 387 S.W.3d 495, 506 (Tenn. 2012) (holding that “the trier of fact may draw
a negative inference from a party’s invocation of the Fifth Amendment privilege in a civil
case only when there is independent evidence of the fact to which a party refuses to answer
by invoking his or her Fifth Amendment privilege.”). She further asserts that Husband
misrepresented his income to the trial court and falsely testified that he did not become
intimately involved with his paramour until after the parties separated. Husband contends
that the trial court properly weighed Husband’s credibility and determined Husband’s
income. We agree with Husband.

        The doctrine of unclean hands is based on the principle that “He who seeks Equity
must do Equity, and he who has done inequity shall not have Equity.” See Segelke v.
Segelke, 584 S.W.2d 211, 214 (Tenn. Ct. App. 1978). In support of her position, Wife relies
on this Court’s decision in Edmisten v. Edmisten, No. M2001-00081-COA-R3-CV, 2003 WL
21077990 (Tenn. Ct. App. May 13, 2003), which we find does not stand for the proposition
Wife presents. In Edmisten, this Court reversed the trial court’s finding of unclean hands on
the husband’s part, determining that the wife’s ability to prove the husband’s fault had not
been hindered by the husband’s perjury in answer to an interrogatory. See id. at *7 (“[T]he
defense of unclean hands is subject to limitations; it must be confined to the particular matter
in litigation and the conduct complained of must have injured the party making the
complaint.”) (citing Nolen v. Witherspoon, 187 S.W.2d 14, 16 (Tenn. 1945)). See also
Chastain v. Chastain, 559 S.W.2d 933, 935 (Tenn. 1977) (holding that in the context of
defenses to a divorce complaint, “except for fraud and deceit upon the court, which are
always available as defenses in any court, the clean hands principle does not apply in divorce
litigation.”).

        The trial court, as the trier of fact in the instant action, properly evaluated the
credibility of the parties, including Husband’s invocation of the Fifth Amendment right
against self-incrimination in answer to questions regarding alleged gambling. See Jones v.
Garrett, 92 S.W.3d at 838 (noting that the trial court’s determinations regarding witness
credibility shall not be disturbed absent clear and convincing evidence to the contrary). The
court found in Wife’s favor, granting a divorce on the fault-based grounds of Husband’s
adultery and inappropriate marital conduct. Wife did not raise the issue of unclean hands in
the trial court and now seeks to have this Court dismiss Husband’s appeal as of right from

                                              -11-
a final judgment based on her allegations. See Tenn. R. App. P. 3(a). We conclude that the
doctrine of unclean hands is not applicable to this appeal.

                               VII. Attorney’s Fees on Appeal

        Wife contends that she should be awarded attorney’s fees on appeal. The decision of
whether to award attorney’s fees on appeal in a case involving custody and support is within
the discretion of the appellate court. See Archer v.Archer, 907 S.W.2d 412, 419 (Tenn. Ct.
App. 1995). This Court has awarded attorney’s fees for the defense of an appeal in a divorce
action based on the same equitable principles that would allow for an award of attorney’s
fees at the trial court level, particularly that the dependent spouse is without a source of funds
from the divorce judgment with which to defend the appeal and that the other spouse has the
ability to pay. See, e.g., Tippens-Florea v. Florea, No. M2011-00408-COA-R3-CV, 2012
WL 1965593 (Tenn. Ct. App. May 31, 2012). In the instant action, however, as in Archer,
“neither party appears to be able to afford [his or her] own attorney’s fees.” See Archer, 907
S.W.2d at 419. Given the results of this appeal and the respective financial situations of the
parties, Wife’s request for an award of attorney’s fees on appeal is denied.

                                       VIII. Conclusion

       The trial court’s award of transitional alimony to Wife is modified from $1,500.00
monthly for thirty-six months to $1,000.00 monthly for thirty-six months. The trial court’s
judgment is affirmed in all other aspects. This case is remanded to the trial court, pursuant
to applicable law, for modification and enforcement of the trial court’s judgment. Wife’s
request for an award of attorney’s fees on appeal is denied. Costs on appeal are assessed
equally to both parties.




                                                     _________________________________
                                                     THOMAS R. FRIERSON, II, JUDGE




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