                     IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT NASHVILLE
                  ______________________________________________

LINDA GAIL RAY,                                       FROM THE WAYNE COUNTY
                                                      CHANCERY COURT, No. 9400
       Plaintiff-Appellee,                            THE HONORABLE JIM T.
                                                      HAMILTON, JUDGE
Vs.                                                   C.A. No. 01A01-9608-CH-00360
                                                      AFFIRMED
BILLY GENE RAY,
                                           Paul Bates; Boston, Bates & Holt
      Defendant-Appellant.           of Lawrenceburg, For Appellee
                                           Robert D. Massey of Pulaski,
                                           For Appellant
____________________________________________________________________________

                         MEMORANDUM OPINION1
                                                                               FILED
___________________________________________________________________________
                                                                May 9, 1997
CRAWFORD, J.
                                                                             Cecil W. Crowson
                                                                          Appellate Court Clerk
       This is a divorce case. Defendant, Billy Gene Ray (Husband), appeals from the judgment

of the trial court dividing the marital property and awarding alimony to the plaintiff, Linda Gail

Ray (Wife).

       On January 6, 1995, Wife filed a Complaint for Divorce alleging that Husband was guilty

of inappropriate marital conduct including adultery and mental and physical cruelty. The

complaint prayed for an absolute divorce, an equitable division of the marital property, alimony,

custody of the parties’ minor child, child support payments, and attorney’s fees. On February

6, 1995, Husband filed an Answer that denied that he was guilty of inappropriate marital conduct

but admitted that the parties had irreconcilable differences. He also filed a Counter-Complaint

for Divorce alleging that Wife was guilty of inappropriate marital conduct. In his counterclaim,

Husband sought an absolute divorce from Wife, custody of the parties’ minor child, child support

payments, attorney’s fees, and an equitable division of the marital assets.

       The case was tried before the chancery court, sitting without a jury, on September 6,

1995. The record does not contain a transcript of the evidence. Instead, the trial court adopted

a Statement of Evidence proposed by Wife, which we quote:


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          Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the
concurrence of all judges participating in the case, may affirm, reverse or modify the actions
of the trial court by memorandum opinion when a formal opinion would have no precedential
value. When a case is decided by memorandum opinion it shall be designated
"MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for
any reason in a subsequent unrelated case.
         The parties were married on December 23, 1972. They
had both resided in Wayne County up to the time the divorce was
granted. The couple had three children with two boys who are
now adults and a daughter who was in high school at the time of
the divorce. The plaintiff has been working as a waitress in
Collinwood making approximately $5.00 per hour since the
separation. She has no high school diploma nor any vocational
training. During the time of the marriage, defendant admitted that
his wife worked as a homemaker and that she cooked meals, kept
clean clothes, kept a clean house and did a good job looking after
the children. The defendant admitted to having numerous affairs
while the parties were married. He also admitted that prior to the
divorce he had been living with a 19 year old girl in the parties’
home on the Tennessee River in Clifton, TN. Said paramour bore
him a baby son on May 17, 1995. He admitted to beginning to
live with her in June of 1994. He also admitted to having a
sexual relationship with her as soon as they met. The house that
the defendant and his paramour were living in at the time of the
divorce was new, it had new furniture, new appliances including
a dishwasher. He supported his paramour and provided her with
an automobile to drive.
         Plaintiff, on the other hand, lived in the parties’ original
marital residence which was in need of repairs. The stove did not
work properly nor did the refrigerator. The hot water heater
needed repair and she did not have a lawn mower to cut the yard.
In addition, the washer and dryer at the marital residence were
inoperable. The defendant never bought a dishwasher for the
plaintiff during the entire time of their marriage. The parties’
daughter was sleeping in a broken bed at the time of the divorce.
The defendant had yet to repair that bed.
         During the entire year and three months separation prior
to the divorce, it was admitted that the paramour lived with the
defendant, she had never worked and the defendant had supported
her. At the time of the divorce, the defendant was 47 years old
and his paramour was approximately 20 years old. He also
admitted to putting crush-rock on the driveway at the new home
after the separation. Defendant also admitted to having other
affairs prior to his current one. As to his teenage daughter, who
is an outstanding student at Collinwood High School, he had not
seen or talked to her in over a year. He has not sent her any gifts,
cards or made contact with her. During the time the children
were in school, defendant admitted that he never went to school
to check on any of the children’s progress.
         During the course of the marriage, defendant admitted that
he had struck plaintiff on numerous occasions. Plaintiff has had
her nose broken by the defendant.
         Plaintiff recently suffered a severe cut and stab wound to
her leg during a struggle with the defendant at the marital
property on the river. After stabbing the plaintiff in the leg, he
drove her to the hospital but stopped half-way to tell her that he
didn’t love her anymore and didn’t have any use for her and that
he wasn’t going to live with her anymore.
         The defendant is a self-employed contractor and has been
in the business of doing telephone construction work under the
name of Billy Ray Contracting. From 1990 until the date of the
trial, he admitted that Billy Ray Contracting had had receipts well
in excess of $1,000,000.00. In 1990, he received $224,732.15

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               from C & C Contracting alone. In 1991 he had gross receipts of
               $259, 606.92 which provided for a total profit of $52,083.56 after
               depreciation and interest payments. In 1992, he was paid
               $221,985.81 alone from Ryan Lopez. Defendant acknowledged
               that in 1993 he had over $77,000.00 worth of net income and
               claimed a total depreciation of assets in the amount of
               $57,589.00. In 1994, Billy Ray Contracting had gross receipts in
               the amount of $286,421.00. He claimed to have had expenses of
               $117,701.00 but never provided any documentation for those
               expenses despite agreeing to do so in his deposition. He also
               acknowledged the depreciation in 1994 of $51,728.00. He agreed
               that in 1994 he had a total income of $68,861.00. As to the
               depreciations that he claimed on all his income taxes, he agreed
               that said depreciations were not actual cash outlays but just losses
               he was allowed to take on his income taxes.
                       Plaintiff and defendant indicated that the net worth of the
               marital assets were worth well over $225,000.00 (Exhibit 8,
               December 1994, prepared and sworn to by Mr. Ray six months
               after the parties’ separation). The parties owned three pieces of
               real estate which included the marital residence, a two acre tract
               in the Collinwood city limits upon which a garage was located
               and out of which the defendant’s business operated and real estate
               in Clifton along the river consisting of the one acre tract upon
               which a new home has been built.
                       Defendant testified to the value of his business machinery
               and tools. He agreed that the values on Exhibit 6 were correct.
               He also testified that he borrowed $80,000.00 against the property
               and against equipment that was already paid off after separating
               from the plaintiff.

       The trial court granted an absolute divorce to Wife and dismissed Husband’s

counterclaim. The trial court found that the parties’ minimum net worth at the time of the

separation was between $220,000.00 and $225,000.00 and that Husband owed less than

$50,000.00 on a note secured by two bulldozers. The trial court divided the marital property and

awarded Wife alimony in solido in the amount of $65,000.00, rehabilitative alimony in the

amount of $250.00 per week for five years, and $6,000 in attorney’s fees. The trial court also

required Husband to obtain medical insurance for the benefit of Wife for five years and to name

Wife as the irrevocable beneficiary on his existing life insurance policies for a period of five

years. The trial court granted custody of the parties’ only minor child to Wife with reasonable

visitation to Husband and ordered Husband to pay $187.00 per week in child support. Finally,

the trial court enjoined Husband from contacting, molesting, harassing, or interfering with Wife.

       Husband appeals from this order of the trial court and presents two issues for review: 1)

whether the trial court erred in its determination relating to the equitable division of marital

assets and marital debt; and 2) whether the trial court erred in its award of alimony.

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        Since this case was tried by the court sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the trial court.

Unless the evidence preponderates against the findings, we must affirm, absent error of law.

T.R.A.P. 13(d).

        The weight, faith, and credit to be given to any witness’s testimony lie in the first

instance with the trier of fact, and the credibility accorded will be given great weight by the

appellate court. Mays v. Brighton Bank, 832 S.W.2d 347, 352 (Tenn. App. 1992).

        In the first issue, Husband asserts that the trial court’s judgment is void of reasoning, that

the record lacks sufficient findings of the value of the marital assets by the trial court, and that

the trial court erred in its division of the assets and debts. He also asserts that the trial court

incorrectly took fault into consideration when dividing the assets. He argues that our review

should be de novo without a presumption of correctness because the trial court’s ruling lacks

sufficient findings. We believe that the statement of the evidence reveals little dispute of the

material facts and in this light, the trial court’s judgment sufficiently outlines its findings so that

a presumption of correctness applies.

        The trial court awarded Wife the marital residence, the furniture and appliances in the

residence , and the 1992 Chevrolet Silverado, as her share of the marital property with a value

of approximately $72,000.00. The trial court awarded Husband the Clifton property, the

business property, the furniture and appliances in the Clifton property, and the bulk of the

personal property (which is mostly used in Husband’s business) to Husband. Husband assumed

all of the debt on the real estate including $24,500.00 from the original marital property, leaving

a net award to Husband of approximately $87,462.45.

        The trial court awarded Wife $65,000.00 as alimony in solido and specifically stated that

the alimony in solido was awarded to Wife “in order to obtain an equitable division of the

marital estate.”

        Trial courts have broad discretion in dividing the marital estate upon divorce. Kincaid

v. Kincaid, 912 S.W.2d 140, 142 (Tenn. App. 1995). In Batson v. Batson, 769 S.W.2d 849

(Tenn. App. 1988), this Court discussed the equitable division of marital property:

                        Tenn.Code Ann. § 36-4-121(a) provides that marital

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                property should be divided equitably without regard to fault. It
                gives a trial court wide discretion in adjusting and adjudicating
                the parties’ rights and interests in all jointly owned property.
                Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn.1983).
                Accordingly, a trial court’s division of the marital estate is
                entitled to great weight on appeal, Edwards v. Edwards, 501
                S.W.2d 283, 288 (Tenn.Ct.App. 1973), and should be presumed
                to be proper unless the evidence preponderates otherwise.
                Lancaster v. Lancaster, 671 S.W.2d 501, 502 (Tenn.Ct.App.
                1984);       Hardin v. Hardin, 689 S.W.2d 152, 154
                (Tenn.Ct.App.1983).
                        A trial court’s division of marital property is to be guided
                by the factors contained in Tenn.Code Ann. § 36-4-121(c).
                However, an equitable property division is not necessarily an
                equal one. It is not achieved by a mechanical application of the
                statutory factors, but rather by considering and weighing the most
                relevant factors in light of the unique facts of the case.

Batson, 769 S.W.2d at 859.

        It is not disputed that the value of the marital estate is deemed to be more than

$225,000.00. From our review of the record, it appears that Wife was awarded approximately

$137,000.00 of the assets.2 There is no showing that the trial court incorrectly considered fault

in the division of the marital assets. The evidence does not preponderate against the trial court’s

findings, and we find no error in the trial court’s division of the marital assets.

        In his second issue, Husband argues that the award of rehabilitative alimony and

attorney’s fees to Wife is improper in light of the division of the marital property and the award

of alimony in solido. He claims that he is not in a position to pay the amount of the award. The

trial court awarded Wife $250.00 per week as rehabilitative alimony for a period of five years.

The trial court stated, “The court specifically finds that the plaintiff lacks a high school diploma,

has no vocational skills and has a severely limited earning capacity. Conversely, the defendant

has generated gross revenues approximating $400,000.00 annually in the recent past.”

        In his answers to interrogatories, Husband stated that his 1993 and 1994 incomes were

both between $40,000.00 and $50,000.00. However, the Statement of Evidence states, “He

agreed that in 1994 he had a total income of $68,861.” In addition, Husband acknowledged in



       2
           Wife was awarded the original marital home, the Chevrolet Silverado, and
$65,000.00 in alimony in solido. In a personal financial statement that was considered by the
trial court, Husband stated that the original marital home was worth $60,000.00 and that the
Chevrolet Silverado was worth $12,000.00. The total of Wife’s award is thus approximately
$137,000.00 or approximately 61% of the marital estate.

                                                 5
the Statement of Evidence that his income was reduced on paper because of business deductions

and that the deductions were not actual cash outlays.

        The factors used to determine the proper amount of maintenance and support are found

in T.C.A. § 36-5-101(d) (1996). As a general matter, the courts set the amount of a support

award based on the needs of the innocent spouse and on the ability of the obligor spouse to pay.

Batson, 769 S.W.2d at 861. If one spouse is economically disadvantaged compared to the other,

the courts are generally inclined to provide some type of support.

       The record indicates that the trial court considered the necessary factors, and the evidence

does not preponderate against the findings of the trial court. The trial court correctly determined

that Wife should be awarded rehabilitative alimony, and the record reveals that Husband has the

ability to pay this award.

       Finally, Husband argues that the award of attorney’s fees is also improper in light of the

other awards, and he claims that he does not have the ability to pay Wife’s attorney’s fees. The

trial court ordered Husband to pay $6,000.00 for Wife’s attorney’s fees. The trial court said, “In

awarding said attorney fee, the court notes that the defendant, Billy Gene Ray, contested the

custody of the parties’ minor daughter in his answer and counterclaim although the proof

indicated that he had no contact with her since the parties’ separation.”

       Attorney fee awards are treated as alimony. Kincaid, 912 S.W.2d at 144. In determining

whether to award attorney’s fees, the trial court should again consider the relevant factors in

T.C.A. § 36-5-101(d)(1). Id. Where the wife demonstrates that she is financially unable to

afford counsel, and where the husband has the ability to pay, the court may properly order the

husband to pay the wife’s attorney fees. Id. These awards are within the sound discretion of the

trial court, and unless the evidence preponderates against the award, it will not be disturbed on

appeal. Id.

       In the case at bar, we cannot say that the evidence preponderates against the award of

attorney’s fees to Wife, and we believe that Husband has the ability to pay the award.

       Accordingly, the judgment of the trial court is affirmed in all respects. Costs of this

appeal are assessed against the appellant.

                                                        _________________________________

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                                           W. FRANK CRAWFORD,
                                           PRESIDING JUDGE, W.S.

CONCUR:

____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
HOLLY KIRBY LILLARD, JUDGE




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