PATRICIA ANN JOHNSON GRACE,           )
                                      )
      Plaintiff/Counter-defendant/    )
      Appellee,                       )
                                      )    Davidson County Circuit
                                      )    No. 94D-2455
VS.                                   )
                                      )    Appeal No.
                                      )    01A01-9611-CV-00534
ISAAC EVANS GRACE, JR.,               )

      Defendant/Counter-Plaintiff/
      Appellant.
                                      )
                                      )
                                      )
                                                               FILED
                                                                     May 28, 1997
                 IN THE COURT OF APPEALS OF TENNESSEE
                                                              Cecil W. Crowson
                      MIDDLE SECTION AT NASHVILLE
                                                             Appellate Court Clerk
          APPEAL FROM CIRCUIT COURT OF DAVIDSON COUNTY
                    AT NASHVILLE, TENNESSEE

                  HONORABLE MURIEL ROBINSON, JUDGE




Kevin S. Terry, #15267
430 Third Avenue North
Suite 100
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFF/COUNTER-DEFENDANT/APPELLEE

G. Kline Preston, IV, #17141
176 Second Avenue North
Suite 500
Nashville, Tennessee 37201
ATTORNEY FOR DEFENDANT/COUNTER-PLAINTIFF/APPELLANT


                 AFFIRMED IN PART AND REMANDED.



                                 HENRY F. TODD
                                 PRESIDING JUDGE, MIDDLE SECTION




CONCUR:

SAMUEL L. LEWIS, JUDGE
WILLIAM C. KOCH, JR., JUDGE
PATRICIA ANN JOHNSON GRACE,                   )
                                              )
       Plaintiff/Counter-defendant/           )
       Appellee,                              )
                                              )      Davidson County Circuit
                                              )      No. 94D-2455
VS.                                           )
                                              )      Appeal No.
                                              )      01A01-9611-CV-00534
ISAAC EVANS GRACE, JR.,                       )
                                              )
       Defendant/Counter-plaintiff/           )
       Appellant.                             )




                                    OPINION


               In this divorce case the husband, Isaac Evans Grace, Jr., has appealed from three

provisions of the non-jury judgment in favor of the wife, Patricia Ann Johnson Grace, and

presented the following issues:

               A.      Whether the Trial Court erred in its division and classi-
               fication of the parties’ property.

               B.      Whether the Trial Court erred in awarding the Wife
               rehabilitative alimony.

               C.     Whether the Trial Court erred in awarding the Wife
               attorneys fees.



               The record on appeal contains one volume transcript which begins as follows:

               (The above-styled cause came to be heard before the Honorable
               Muriel J. Robinson, Judge, Circuit Court, Davidson County,
               Tennessee, beginning at 2:53 p.m. on October 10, 1995, when
               following proceedings were had, to wit:)

                  THE COURT: We’re going to state for the record that this
               cause came on to be heard on October the 10th, early in the
               morning at approximately -- I think about 10:00, 10:15. At the
               time the case initiated, plaintiff was represented by Mr. Kevin
               Terry, the defendant was pro se.

                   The case had been continued on a prior occasion for Mr.
               Grace to obtain counsel. He appeared on the date of trial with
               no counsel, so the case proceeded and there were two witnesses
               heard. The case was recessed to enable the Court and the staff
               to attend the funeral of Judge James Everett. It was reconvened

                                              -2-
               at approximately 2:15, at which time the defendant who was
               pro se had hired counsel, which the Court allowed. And
               after about two thirds of the testimony of the plaintiff the
               Court allowed the defendant to have the record taken by the
               court reporter who had just gotten here. (Emphasis supplied)

                 So that brings us up to date. My notes are pretty good.
               Go ahead.

                 MS. PATRICIA ANN GRACE, was called as a witness
               on behalf of the Plaintiff and, having first been previously
               sworn, was examined and testified as follows:

               CONTINUED DIRECT EXAMINATION BY MR. TERRY:
                 Q. I’m handing you a photo I thought I had handed to you
               earlier.



               It is obvious from the foregoing that the record of the evidence heard by the Trial

Judge is incomplete.



               T.R.A.P. Rule 24(a)(b) and (c) requires a complete transcript or statement of the

evidence unless abridged as directed in said rule.



               In Johnson v. Johnson, 185 Tenn. 400, 206 S.W.2d 400 (1947), it was held that

an incomplete bill of exceptions (transcript) was subject to being stricken.



               In Coakley v. Daniels, Tenn. App. 1992, 840 S.W.2d 367, this Court held:

                  This issue is fact-based. Where the issues raised go to the
               evidence, there must be a transcript. In the absence of a
               transcript of the evidence, there is a conclusive presumption
               that there was sufficient evidence before the trial court to
               support its judgment, and this Court must therefore affirm
               the judgment. McKinney v. Educator and Executive
               Insurers, Inc., 569 S.W.2d 829, 832 (Tenn. App. 1977).
               This rule likewise applies where there is a statement of the
               evidence which is incomplete. (Emphasis supplied)




                                               -3-
                                                  I.

                              Classification of Property of the Parties



                 The only complaint regarding this issue is that the Trial Court found a “hot tub”

to be marital property, awarded it to the wife and enjoined the husband from removing it from

the premises awarded to the wife. This decision rested upon findings of fact by the Trial Judge

which must be presumed correct unless the evidence preponderates otherwise. T.R.A.P. Rule

13(d). Without a complete record of the evidence or a satisfactory showing that the missing

evidence does not relate to the subject of this issue, this Court is not in position to hold that the

evidence preponderates against the findings of fact by the Trial Judge or the conclusions based

thereon.



                 Moreover, the husband in his testimony disclaimed ownership of the tub. A third

party testified that it did belong to her, and “I bought it for myself and I didn’t have anywhere

to put it ... so I put it there.”.



                 The Trial Judge commented:

                 Well, it’s there and I deem it a permanent fixture, so you just kind of lost out on

that.



                 The Trial Court awarded the wife a judgment for $1,800 for the husband’s

removal of the “hot tub” from the wife’s premises.



                 In view of all the foregoing it appears that the wife was the only person before the

Trial Court having a claim for the removal of the tub and her claim has been satisfied by the

judgment in her favor. Therefore, the issue regarding the tub is moot.



                 No merit is found in the first issue presented by the husband.



                                                 -4-
                                                  II.

                                      Rehabilitative Alimony



                   The Trial Court awarded the wife rehabilitative alimony of $300.00 per month

for three years.



                   The husband claims that he does not have sufficient income to pay the award. He

is a college graduate and earns $42,000 per year. His expenses are obviously arranged to support

his claims of inability. His credibility was impeached, and some of his obligations are subject

to rearrangement or release by amendment of his pending Chapter 13 bankruptcy to a Chapter

7 bankruptcy.



                   The wife is a high school graduate and earns $19,500 per year. She has duties as

a homemaker and custodian of the children of the parties.



                   Trial Courts have broad discretion concerning the amount and duration of spousal

support. T.C.A. § 36-5-101(d); Brown v. Brown, Tenn. App. 1994, 913 S.W.2d 163; Loyd v.

Loyd, Tenn. App. 1993, 860 S.W.2d 409.



                   Under the circumstances of the present case, the Trial Court did not exceed the

bounds of its discretion.



                   Rehabilitative Alimony is a form of periodic alimony. Its terms are subject to

modification for good cause arising after the original award. T.C.A. § 36-5-101.



                   No grounds of reversal is found in the husband’s second issue.




                                                 -5-
                                               III.

                                The Award of Attorney’s Fees



               The Trial Court awarded the wife $3,500 for payment of her obligation to her

counsel. The husband does not question the amount, but insists that he is unable to pay it. He

admitted assets which enable him to acquire the funds to pay this obligation.



               The husband asserts that the wife has funds with which to pay her attorney, but

does not support this argument by citation to the record. This Court finds nothing in the record

to support a reversal or modification of attorney’s fees, which are within the sound discretion of

the Trial Judge. Aaron v. Aaron, Tenn. 1995, 909 S.W.2d 408.



                                               IV.

                             The Lien of the Husband’s Attorney



               After the entry of the divorce decree, awarding the marital home to the wife, the

wife discovered that the counsel for the husband had filed a lien against the marital home to

secure payment of fees due him from the husband, and the wife was obliged to pay $4,500 to the

husband’s attorney for release of the lien. The Trial Court declined to award any relief. Upon

remand, the Trial Court will consider and award a suitable amount to the wife to compensate her

for this loss. The record evidences adequate assets available to the husband for payment of such

an award, and the Trial Court will suitably encumber a sufficient quantity of said assets to assure

payment of the award to the wife for such loss.




                                               -6-
                                               V.

                                        Fee on Appeal



               The wife requests an award to her for appellate legal expenses. It appears that

such an award is appropriate. On remand, the Trial Court will consider and award a suitable sum

for her appellate legal expenses.



               Except for the failure to grant relief on account of the lien against the home, the

judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the husband. The

cause is remanded to the Trial Court for further proceedings including but not limited to the

consideration, award, and securing payment to the wife on damage on account of the lien of

defendant’s attorney and the award of appellate, legal expenses to the wife.


                    AFFIRMED IN PART AND REMANDED.




                                              ___________________________________
                                              HENRY F. TODD
                                              PRESIDING JUDGE, MIDDLE SECTION




CONCURS:


____________________________
SAMUEL L. LEWIS, JUDGE


____________________________
WILLIAM C. KOCH, JR., JUDGE




                                              -7-
