                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                            Assigned on Briefs October 9, 2001

       ALBERTA STEWART DODSON v. JAMES ROBERT DODSON

                     Appeal from the Circuit Court for Davidson County
                         No. 98D-313     Muriel Robinson, Judge



                      No. M2000-01682-COA-R3-CV Filed May 10, 2002


The trial court awarded a divorce to the parties, and ordered the husband to pay $1,000 per month
as alimony in futuro. In light of the needs of the wife, and of the husband’s ability to pay, we
increase the alimony award to $1,500 per month.

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

BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.
and WILLIAM B. CAIN , JJ., joined.

D. Scott Parsley, Nashville, Tennessee, for the appellant Alberta Stewart Dodson.

                                            OPINION

                                  I. MARRIAGE AND DIVORCE

        James and Alberta Dodson married in 1963. Their marriage produced six children, all of
whom were fully grown at the time of the proceedings discussed below. Although she worked part-
time in a fabric store for a few years, Ms. Dodson mainly stayed at home raising the children. Mr.
Dodson was always the primary breadwinner. He worked at the Dupont plant for 34 years, and
earned many raises during his career.

        The parties experienced growing disagreement, and Mr. Dodson moved out of the couple’s
bedroom sometime in the mid 90's, but stayed in the marital home. On January 30, 1998, Ms.
Dodson filed a Complaint for Divorce from Bed and Board. As grounds, she listed “Irreconcilable
Differences and/or Inappropriate Marital Conduct.” In his Answer and Counter-Complaint, Mr.
Dodson denied that he was guilty of inappropriate marital conduct, and claimed that the wife herself
was guilty of such conduct. He also admitted there were irreconcilable differences between the
parties, and asked the court to grant him an absolute divorce.
        Shortly thereafter, the parties decided that it would be in their best interest to reconcile, and
the court complied with their request for an Order of Reconciliation, suspending all the divorce
proceedings without prejudice to either party. Unfortunately, they did not manage to iron out their
differences, and at their request the court set aside the Order of Reconciliation on May 28, 1999.

       The hearing of the case was conducted on April 19, 2000. The parties were the only
witnesses to testify. The transcript of the hearing revealed very little anger or bitterness between
them. Their only real dispute involved whether the marital home needed certain repairs, and who
should pay for the repairs. The parties agreed that Ms. Dodson should keep the marital home (worth
about $79,000) as her residence after the divorce, and that the husband could keep his Dupont
Savings and Investment Plan (also worth about $79,000).

        At the conclusion of the hearing, the trial court awarded the divorce to both parties pursuant
to Tenn. Code. Ann. § 36-4-129. The parties had by that time reached agreement on the home
repairs, and the court ratified their agreement, and divided the marital property largely in accordance
with their wishes.

       The court also ordered the husband to pay long-term support to the wife. Ms. Dodson was
awarded alimony in futuro of $1,000 per month until her death or remarriage, with an additional
provision (in accordance with the parties’ agreement) that when the husband retired from Dupont,
alimony would cease, and the wife would receive one-half of his pension. A Qualified Domestic
Relations Order was executed to protect the wife’s pension rights. The court also awarded the wife
$750 towards her attorney fees. She appealed, contesting the amount awarded to her as alimony and
attorney fees.

                                            II. ALIMONY

        In her brief on appeal, Ms. Dodson argued that the alimony ordered by the trial court was
insufficient to meet her monthly expenses. Mr. Dodson did not file a responsive brief, and we
accordingly must decide this case solely on the record and on the appellant’s brief. See Tenn. R.
App. P. 29(c).
                                               A.

       The proof showed that the parties were married 37 years, and that there is a huge disparity
between their earning capacities. Ms. Dodson worked part-time outside the home for a few years,
and never earned much more than minimum wage. She suffers from impaired vision, and has
undergone neck and knee surgery. It is undisputed that she is totally disabled, and that her only
source of income aside from alimony is her social security disability check of $618 per month.

       Mr. Dodson has worked for Dupont for 34 years, and has earned ever-increasing
compensation. The record contains W-2 forms for the years 1993-1999, which show his gross
annual income increasing from $65,000 in 1993 to $89,000 in 1999. His average net monthly take
home pay in 1999 was $5,410. Mr. Dodson is sixty years old, and because of his years of service


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he can retire at any time, but he will receive his maximum pension of about $3,000 monthly if he can
stay on the job until he reaches sixty-five. He testified that “over-half” of his income results from
overtime work, and that there is no guarantee that the same level of overtime will continue. His
health may also affect his ability to work overtime. He is diabetic, and suffers from high blood
pressure.

       Both parties submitted income and expense statements just prior to the hearing. Ms.
Dodson’s statement listed her sole income as a $618 disability check, and total monthly expenses
of $3,477, resulting in a monthly deficit of $2,859. Mr. Dodson’s statement listed his net monthly
income as $3,845, presumably his base pay without overtime, and monthly expenses of $3,096,
giving him a monthly surplus of $749.

        We note that the expenses listed in Ms. Dodson’s statement included an entry for
“Rent/Mortgage” of $765. She testified that this item was on the list because she did not know if
the court would award the house to her. Since it did, and the house is unencumbered, she does not
have to worry about that expense. Interestingly, both parties have included generous donations to
their church in their monthly expenses, $460 for the wife and $480 for the husband. Both parties
also included additional entries of $160 each for gifts, presumably for their children or
grandchildren.

       The other major expenses of the parties (food, clothing, utilities, car operation) are roughly
comparable. The main difference between their financial needs is that Mr. Dodson will have to pay
rent when he moves out of the marital home (which he estimates will cost about $800 per month),
and Ms. Dodson has greater expenses for medical, dental, eyecare and pharmacy prescriptions than
her husband ($323 monthly versus $56 monthly).

                                                  B.

        The legislature has set out a list of factors for the courts to take into account when
determining an appropriate amount of spousal support. Tenn. Code. Ann. § 36-5-101. Some of the
most relevant factors for the purposes of this appeal are the duration of the marriage, the age and
physical condition of each party, their relative earning capacity, the provisions made in regard to the
marital property, and the tangible and intangible contributions each party has made to the marriage.
Many of our cases have also stated that the most important factors to consider are the needs of the
obligee and the obligor’s ability to pay. Goodman v. Goodman, 8 S.W.3d 289 (Tenn. Ct. App.
1999); Smith v. Smith, 912 S.W.2d 155 (Tenn. Ct. App.1995); Cranford v. Cranford, 772 S.W.2d
48 (Tenn. Ct. App. 1989).

       In light of all these considerations, the most equitable support award in this case would be
one that leaves the parties in a roughly equal financial position. It appears to us that the parties
themselves have taken this view, since they have agreed to an equal division of the pension that Mr.
Dodson will eventually receive.



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        While Ms. Dodson overstated expenses in regard to housing, it seems clear that alimony of
$1,000 a month, even when combined with her disability check, will not be sufficient for her to meet
her needs, and will leave her in worse financial condition than her husband. At the same time, it
appears that Mr. Dodson has understated his possible income, and thus that he may wind up with a
greater surplus after paying his expenses than his statement indicates. He also has a substantial cash
cushion, because of his retention of the Dupont Savings and Investment Plan.

        We believe that alimony in futuro of $1,500 per month would bring Ms. Dodson’s income
up to the level she needs, while not reducing Mr. Dodson’s income below the level of his needs. We
thus increase the trial court’s alimony award to $1,500 per month until her death or remarriage or
until Mr. Dodson’s retirement when she will receive one-half of his pension.

                                                   C.

       Ms. Dodson also complains that the trial court’s award of $750 for attorney fees is
inadequate, in light of her attorney’s affidavit that he performed services for her that resulted in fees
and expenses totaling $3,956.

       The award of attorney fees is in the sound discretion of the trial court, and will not be
overturned on appeal unless there is abuse of that discretion. Garfinkel v. Garfinkel, 945 S.W.2d 744
(Tenn. Ct. App. 1996). We do not believe that the trial court abused its discretion in awarding Ms.
Dodson only part of her attorney fees.

        Where it is equitable to do so, however, it is within this court’s discretion to award attorney
fees on appeal to the prevailing party. Hoalcraft v. Smithson, 19 S.W.3d 822 (Tenn. Ct. App. 1999).
In light of Ms. Dodson’s limited financial resources, and of the burden of the attorney fees she
incurred at the trial level, it appears equitable to us that she should be awarded her attorney fees on
appeal.

                                                  III.

        The judgment of the trial court is modified to increase Ms. Dodson’s alimony award to
$1,500 per month. Remand this cause to the Circuit Court of Davidson County for further
proceedings consistent with this opinion, including calculation and award of a reasonable attorney’s
fee for the appeal. Tax the costs on appeal to the appellee, James Robert Dodson.




                                                _______________________________________
                                                BEN H. CANTRELL, PRESIDING JUDGE, P.J.




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