                                                                                                                02/25/2019
                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                            October 17, 2018 Session

            AUDRA SNAPP OLINGER v. TRAVIS JACKSON OLINGER

                     Appeal from the Circuit Court for Bradley County
                       No. V–16–176       J. Michael Sharp, Judge


                                  No. E2017–02133–COA–R3–CV


In this divorce case, the trial court decreed that husband, Travis Jackson Olinger, would
be liable for the attorney’s fees and expenses1 of, his spouse, Audra Snapp Olinger. The
court treated the assessing of fees to husband as alimony in solido to wife. A portion of
those fees were to be satisfied by transfering to wife husband’s interest in the parties’
equity in the martial residence. The remainder is to be paid over time with a monthly
payment of $370 until husband’s obligation is paid in full. The sole issue before us is
whether the trial court abused its discretion when it assessed the subject fees to husband.
He appeals. We affirm.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                       Affirmed; Case Remanded With Instructions

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which JOHN W.
MCCLARTY, J., joined. D. MICHAEL SWINEY, C.J., filed a separate opinion, dissenting.

Philip M. Jacobs, Cleveland, Tennessee, for the appellant, Travis Jackson Olinger.

Michael E. Jenne, Cleveland, Tennessee, for the appellee, Audra Snapp Olinger.

                                                OPINION

                                                      I.

      Wife filed a complaint for divorce on May 12, 2015. She sought a divorce on the
ground of adultery and inappropriate marital conduct. She alleged that husband had been
“mentally, emotionally, verbally, and physically abusive to her.” Husband filed an

        1
          The parties and the trial court treat “attorney’s fees” as including expenses of the litigation. We
will do the same.


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answer on April 12, 2016. He denied wife’s allegations. This case was hotly contested
over five days. Husband sought, unsuccessfully, to prevent wife from being designated
primary residential parent of the parties’ child.

        As the trial date in February 2017 was approaching, depositions of the parties took
place. Soon thereafter, husband agreed to a stipulation acknowledging that wife was
entitled to a divorce on the grounds of adultery and the other conduct previously alluded
to in wife’s complaint.

       Ultimately, wife was granted a divorce and designated as the primary residential
parent. Husband’s time with his daughter was greatly restricted. The trial court found that
huband had not been truthful with the court regarding his consuption of alcohol. The
court awarded wife child support and divided the parties’ property, including the marital
residence. Each party was granted half interest in the equity in the martial residence,
being $22,622 to each party.

                                            II.

      The trial court’s judgment with respect to wife’s fees addressed the subject as
follows:

              The court specifically finds that Mrs. Olinger lacks sufficient
              funds to pay her own legal expenses, and the only way she
              has been able to hire and pay for her attorney is through the
              generosity of her mother and father. The court finds she is not
              being awarded substantial funds of liquid assets, and the court
              finds that she is not being awarded sufficient assets to pay her
              legal fees, based upon the court’s holding as it relates to the
              distribution of the parties’ marital estate.


                                      *      *      *


              Judgment is entered in favor of Wife and against Husband in
              the amount of $53,124.86 as related to Wife’s attorney[’s]
              fees. Husband’s equity in the marital residence in the amount
              of $22,622.70 shall be credited toward this Judgment leaving
              a balance of $30,502.16. Husband shall make payments
              toward this Judgment on or before the 10th day of each month
              in the amount of [$370.00] per month, and said Judgment
              shall accrue interest at the rate of 5.5% per annum pursuant to


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             the Tennessee Commissioner of Financial Institutions
             Formula on the unpaid balance until paid in full.

(Paragraph numbering omitted.)

                                           III.

      The facts of this case implicate certain statutory provisions:

                           Tenn. Code Ann. § 36-5-121(d)(5):

             Alimony in solido may be awarded in lieu of or in addition to
             any other alimony award, in order to provide support,
             including attorney fees, where appropriate.

                           Tenn. Code Ann. § 36-5-121(h)(1):

             Alimony in solido, also known as lump sum alimony, is a
             form of long term support, the total amount of which is
             calculable on the date the decree is entered, but which is not
             designated as transitional alimony. Alimony in solido may be
             paid in installments; provided, that the payments are ordered
             over a definite period of time and the sum of the alimony to
             be paid is ascertainable when awarded. The purpose of this
             form of alimony is to provide financial support to a spouse. In
             addition, alimony in solido may include attorney fees, where
             appropriate.

      The Supreme Court has held “[t]he decision whether to award attorney[’s] fees is
within the sound discretion of the Court.” Gonsewski, 350 S.W.3d at 113 (emphasis
added) (citing Crabtree,16 S.W.3d at 361; Kincaid v. Kincaid, 912 S.W.2d 140, 144
(Tenn. Ct. App. 1995)). 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 the spouse
would be required to deplete his or her own resources to pay them.” Gonsewski, 350
S.W.3d at 113 (citing Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn. Ct. App.
1992; Harwell v. Harwell, 612 S.W.2d 182, 185 (Tenn. Ct. App. 1980)).

      “As with any alimony award, in deciding whether to award attorney fees as
alimony in solido, the trial [c]ourt should consider the factors enumerated in Tennessee
Code Annotated Section 36-5-121(i).” Gonsewski, 350 S.W.3d at 113.

      Our standard of review in this case compels us to determine whether the trial court
abused its discretion:

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             For well over a century, Tennessee law has recognized that
             trial courts should be accorded wide discretion in determining
             matters of spousal support. This well-established principle
             still holds true today, with this Court repeatedly and recently
             observing that trial courts have broad discretion to determine
             whether spousal support is needed and, if so, the nature,
             amount, and duration of the award. Equally well-established
             is the proposition that a trial court's decision regarding
             spousal support is factually driven [] and involves the careful
             balancing of many factors. As a result, “[a]ppellate courts are
             generally disinclined to second-guess a trial judge's spousal
             support decision.” Rather, “[t]he role of an appellate court in
             reviewing an award of spousal support is to determine
             whether the trial court applied the correct legal standard and
             reached a decision that is not clearly unreasonable.” Appellate
             courts decline to second-guess a trial court's decision absent
             an abuse of discretion. An abuse of discretion occurs when
             the trial court causes an injustice by applying an incorrect
             legal standard, reaches an illogical result, resolves the case on
             a clearly erroneous assessment of the evidence, or relies on
             reasoning that causes an injustice. This standard does not
             permit an appellate court to substitute its judgment for that of
             the trial court, but “ ‘reflects an awareness that the decision
             being reviewed involved a choice among several acceptable
             alternatives,’ and thus ‘envisions a less rigorous review of the
             lower court's decision and a decreased likelihood that the
             decision will be reversed on appeal.’ ” Consequently, when
             reviewing a discretionary decision by the trial court, such as
             an alimony determination, the appellate court should presume
             that the decision is correct and should review the evidence in
             the light most favorable to the decision.

Gonsewski v. Gonsewski, 350 S.W.3d 99, 105–06 (Tenn. 2011) (internal citations and
footnote omitted).

                                           IV.

       The cases are legion holding that the need of the requesting spouse and the ability
of the other to pay are the most important factors. See, e.g. Burlew v. Burlew, 40 S.W.3d
465, 470 (Tenn. 2001). The trial court held that wife did not have the resources to pay her
attorney’s fees. The evidence does not preponderate against that finding. On the other
hand, husband’s testimony, without more, demonstrates that husband had the resources to

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pay the modest amount of $370 per month. The evidence does not preponderate against
the trial court’s findings of wife’s need and husband’s ability to pay.

       While some of the factors in Tenn. Code Ann. § 36-5-121(i)(1)–(12) are either not
implicated by the facts of this case or do not favor one party over the other, two of the
factors stand out and are overwhelmingly in favor of wife. Those factors are (1)
contributions to the marriage and (2) one-hundred percent fault of husband in the demise
of the marriage. As taken verbatim from wife’s brief, the following findings of the trial
court are fully supported by the evidence in this case:

              This factor [of contributions to the marriage] overwhelmingly
              supports awarding Wife her attorney fees and litigation
              expenses. The Court made several specific findings as related
              to this factor. [] The trial Court found Wife has been the more
              financially and economically responsible party. [] Wife’s
              income has remained steady throughout the marriage, and in
              contrast, Husband has changed jobs numerous times during
              the course of the marriage, and his income until the last 3
              years has been far less stead due to Husband changing jobs. []
              The Court also found that Wife made far greater financial
              contributions to the marriage, as well as intangible
              contributions to the marriage, in part due to Husband’s
              excessive alcohol consumption and his extramarital affairs. []
              The Court further found that Wife’s parents have made
              financial contributions to the marriage in excess of
              $130,000.00, and both parties have benefitted from these
              financial contributions such as groceries, cell phone bills, and
              Husband’s horse related activities. [] Finally, the Court that
              [(sic)] but for the significant financial contributions from
              Wife’s parents, it is highly unlikely that the parties would
              have been able to survive financially, and it is highly likely
              that the parties would have been forced into bankruptcy.

(Citations omitted.)

       There is no evidence in the record that would suggest wife was in any way at fault
in the demise of the marriage. Husband finally stipulated to his fault and there was an
overwhelming amount of testimony supporting his sole role with respect to the end of this
marriage. The dissent is wrong in saying that wife is simply trying to punish husband.
Nothing could be further from the truth. Husband’s adulterous affairs, his abuse of
alcoholic beverages, and his psychological and physical abuse are certainly relevant to
our task in this case. As a practical matter, had husband not "strayed,” there would


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probably not have been a divorce and no attorney’s fees to be paid in the first place.
Husband’s position in this case is an attempt to add “insult to injury.”

                                             V.

       The trial court did not abuse its discretion in burdening husband with the payment
of wife’s attorney’s fees. All of the equities in this case favor wife. She “won” essentially
all of the contested issues (i.e., grounds and custodial issues). She was the prevailing
party. Wife’s request for attorney’s fees on appeal is consistent with the trial court’s
assessment for fees at the trial court level. Her request for fees on appeal is granted.

                                            VI.

       The judgment of the trial court requiring husband to pay wife’s attorney’s fees is
hereby affirmed. Costs on appeal are taxed against the appellant, Travis Jackson Olinger.
Case remanded to the trial court to set the amount of wife’s attorney’s fees on appeal.




                                                    _______________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




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