                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               November 9, 2010 Session

      MARY ELIZABETH SCHWARTZ BROCK v. JEFFERY BROCK

                  Appeal from the Circuit Court for McMinn County
                     No. 26484     Lawrence H. Puckett, Judge


              No. E2009-01128-COA-R3-CV-FILED-AUGUST 12, 2011


In this divorce case, the husband appeals the trial court’s award of spousal support and
attorney’s fees to the wife. The husband claims his inability to pay outweighs the wife’s need
for spousal support. After reviewing the record, we find the evidence does not preponderate
against the trial court’s decision to award spousal support and attorney’s fees to the wife.
Therefore, we affirm.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.

Barrett T. Painter, Cleveland, Tennessee, for the appellant, Jeffery Brock.

D. Mitchell Bryant, Athens, Tennessee, for the appellee, Mary Elizabeth Schwartz Brock.

                                         OPINION

                             I. FACTUAL BACKGROUND

       The facts relevant to the issues of this appeal are concise. Mary Schwartz Brock
(“Wife”) and Jeffrey Brock (“Husband”) were married in August 1996. After approximately
nine years of marriage, Wife filed a Complaint for Divorce in December 2005. The parties
have two daughters, and Husband’s daughter from a previous marriage lived with the parties
during their marriage.
       In this case, several hearings occurred to determine a wide array of issues ranging
from the division of marital property to child support.1 The trial court entered an order
declaring the parties divorced on June 5, 2007. On December 18, 2008, the trial court held
a hearing to resolve the pending issues regarding spousal support, child support, and
attorney’s fees. After considering the evidence, the trial court ordered Husband to pay the
following: $1,112 in child support per month (beginning September 1, 2009); $300 in
spousal support per month for 60 months; and $8,500 as alimony in solido for Wife’s
attorney’s fees and costs.

      Thereafter, Husband filed a notice of appeal, challenging the trial court’s decision to
award spousal support and attorney’s fees to Wife.2

                                                II. ISSUES

        Husband raises the following issues on appeal:

        1. Whether the trial court erred in awarding spousal support to Wife despite
        his inability to pay.

        2. Whether the trial court erred in awarding attorney’s fees to Wife.

        As an additional issue, Wife submits that this court should award her attorney’s fees
for the costs associated with defending this appeal.

                                  III. STANDARD OF REVIEW




        1
          Although several hearings have occurred in this case, no transcripts of those hearings were provided
in the record. Husband filed a Statement of the Evidence for the last hearing in this case.
        2
        While this matter was pending on appeal, Wife filed a Motion to Compel Payment of Alimony
Pending Appeal, which the trial court heard on October 26, 2009. After the hearing, the trial court held:

        The Court having also reviewed all of the financial information in this cause finds that
        Mother [Wife] has a financial need in this cause, which has been demonstrated to the Court,
        but Father [Husband] does not have the present ability to pay that need in full.

        The Court further finds that in regards to the Petition filed regarding alimony, that this is an
        appropriate case for Jeffery Brock [Husband] to pay the alimony as previously ordered, and
        the same shall not be stayed by this Court.


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       On appeal, we review the decision of a trial court sitting without a jury de novo upon
the record, accompanied by a presumption of correctness of the trial court’s findings of fact,
unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v.
Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court’s conclusions of law are subject to
a de novo review with no presumption of correctness. Union Carbide Corp. v. Huddleston,
854 S.W.2d 87, 91 (Tenn. 1993).

                                       IV. DISCUSSION

                                       A. Spousal Support

        Husband challenges the trial court’s decision to award spousal support to Wife. He
claims that he does not have the means to continue paying alimony to Wife. After paying
alimony and child support to Wife along with his other financial obligations, Husband asserts
that he has a deficit of $1,104.00 per month. He argues that the trial court erred in applying
the statutory factors of Tenn. Code Ann. § 36-5-121(i), and that the factors – specifically his
ability to pay –weigh against an award of spousal support to Wife.

       Tennessee law accords a trial court with broad discretion to award spousal support.
Tenn. Code Ann. § 36-5-12; Bratton v. Bratton, 136 S.W.3d 595, 605 (Tenn. 2004). As
such, “[a]ppellate courts are generally disinclined to second-guess a trial judge’s spousal
support decision unless it is not supported by the evidence or is contrary to the public policies
reflected in the applicable statutes.” Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct. App.
1998); see also Broadbent v. Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006).

      Tennessee law recognizes four classes of alimony that may be awarded either in
combination or alone: rehabilitative alimony, alimony in futuro, alimony in solido, and
transitional alimony. The General Assembly has expressed a legislative policy favoring an
award of rehabilitative alimony over other types of alimony. Tenn. Code Ann. § 35-5-
101(d)(1); Self v. Self, 861 S.W.2d 360, 361 (Tenn. 1993). The unique circumstances of each
case guide the decision to award spousal support, but the most important consideration is the
need of the recipient spouse, followed by the obligor spouse’s ability to pay. Riggs v. Riggs,
250 S.W.3d 453, 457 (Tenn. Ct. App. 2007) (citing Robertson v. Robertson, 76 S.W.3d 337,
342 (Tenn. 2002)). After the trial court determines that spousal support is appropriate, the
court then weighs the relevant statutory factors in Tenn. Code Ann. § 36-5-121(i) in
determining the nature, amount, and period of time of the award.3 We review the trial court’s


       3
         Tenn. Code Ann. § 36-5-121(i) (2010) provides the following relevant factors for a court to
consider:
                                                                                       (continued...)

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findings of fact de novo upon the record accompanied by a presumption of correctness.
Tenn. R. App. P. 13(d); Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000).

     In the instant case, the trial court found that the award of alimony to Wife was
appropriate “based upon the facts of this case, as well as the statutory factors. . . .” The
Statement of Evidence indicates that Husband testified at the hearing via telephone. At the
hearing, Husband testified that he earns a net income of $5,600 per month with monthly
expenses totaling $6,710. Wife testified that she earns $1,612 per month, and at the time of
the hearing, she received $795 in monthly child support. Wife’s monthly expenses totaled
$3,055. The trial court found that Wife “had a need, which was greater than Sgt. Brock’s
[Husband’s] ability to pay,” and ordered Husband to “pay $300 per month in rehabilitative
alimony for a period of Sixty (60) months, beginning January, 2010.”

       After reviewing the record, we fail to find that the trial court erred. As stated earlier,
a trial court has wide latitude in determining whether to award alimony. Ingram v. Ingram,


       3
           (...continued)
                   (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
                   (12) Such other factors, including the tax consequences to each party, as are
                   necessary to consider the equities between the parties.

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721 S.W.3d 262, 264 (Tenn. Ct. App. 1986). In this case, the trial court’s decision to award
rehabilitative alimony for a definite period is supported by the evidence and statutory factors.
The record includes exhibits that outline the monthly obligations and income of both
Husband and Wife. Husband has a military career that has provided education and training,
while Wife has worked several service industry jobs. Wife’s exhibit clearly demonstrated
a need for spousal support. Wife’s need coupled with the difference in the parties’ relative
earning capacity and available financial resources justifies the trial court’s award of
rehabilitative alimony. See Tenn. Code Ann. § 36-5-121(i)(1). Accordingly, we affirm.

                                      B. Attorney’s Fees

      Husband takes issue with the trial court’s award of alimony in solido in the form of
attorney’s fees to Wife. The trial court entered a judgment of $8,500 against Husband for
Wife’s attorney’s fees. Husband argues that the evidence preponderates against such an
award because of his outstanding financial obligations and inability to pay.

        In response, Wife asserts that the award of attorney’s fees was appropriate and that
the trial court did not abuse its discretion in awarding attorney’s fees to her. Wife also
submits that she is entitled to an award of attorney’s fees for the costs incurred in defending
this appeal.

        An award of attorney fees constitutes an award of alimony in solido and need is the
critical factor when determining whether to award attorney’s fees. See Eldridge v. Eldridge,
137 S.W.3d 1, 24-25 (Tenn. Ct. App. 2002). The decision to award attorney’s fees is within
the trial court’s discretion and that decision cannot be overturned without a clear abuse of
discretion. See Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995). Under the abuse of
discretion standard, this court is bound by the principle that the trial court “will be upheld so
long as reasonable minds can disagree as to propriety of the decision made.” Deakins v.
Deakins, E2008-00074-COA-R3-CV, 2009 WL 3126245, at *7 (Tenn. Ct. App. Sept. 30,
2009) (quoting Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)). A trial court abuses
its discretion when it “applie[s] an incorrect legal standard, or reache[s] a decision which is
against logic or reasoning that cause[s] an injustice to the party complaining.” State v.
Shirley, 6 S.W.3d 243, 247 (Tenn. 1999) (citation omitted). An appellate court cannot
substitute its judgment for that of the trial court. See Myint v. Allstate Ins. Co., 970 S.W.2d
920, 927 (Tenn. 1998).

       With that principle in mind, we do not find that the trial court committed an abuse of
discretion in awarding the cost of attorney’s fees to Wife. Pursuant to Tenn. Code Ann. §
36-5-103(c), Wife seeks an award of attorney fees incurred in this appeal. Exercising our



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discretion, we grant Wife’s request. Thus, we remand this case to the trial court for
proceedings to determine the reasonable amount of such fees.

                                    V. CONCLUSION

       The judgment of the trial court if affirmed. We remand this case to the trial court for
further proceedings consistent with this Opinion. Costs on appeal shall be taxed to the
appellant, Jeffery Brock.




                                      _________________________________
                                          JOHN W. McCLARTY, JUDGE




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