                  IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                  ________________________________________

TAMARA KAY WILLIAMS EMISON,

      Appellee,                                 FILED
                                                 Crockett Chancery No. 7365
Vs.                                              C.A. No. W1998-00591-COA-R3-CV
                                                December 27, 1999
RANDY JOE EMISON,
                                      Cecil Crowson, Jr.
     Appellant.                      Appellate Court Clerk
_____________________________________________________________________

            FROM THE CROCKETT COUNTY CHANCERY COURT

                  THE HONORABLE GEORGE R. ELLIS, JUDGE




                      Middlebrooks & Gray, P.A., of Jackson
                                  For Appellee

                    L. L. Harrell, Jr.; Harrell & Harrell of Trenton
                                     For Appellant




         REVERSED IN PART, AFFIRMED IN PART AND REMANDED

                                    Opinion filed:




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

CONCUR:

ALAN E. HIGHERS, JUDGE

HOLLY KIRBY LILLARD, JUDGE
      This case concerns the division of property, allocation of marital debts, alimony,

child support, and life insurance as security for child support. Defendant-appellant,

Randy Joe Emison (Husband), appeals from the judgment of the trial court granting an

absolute divorce to plaintiff-appellee, Tamara Kay Emison (Wife).

      The parties were married on July 12, 1985. There were two children born of this

marriage, Randa Joanne Emison, born June 23, 1986 and Randy Joe Emision Jr.,

born April 18, 1988. Husband had one previous marriage, and there are no previous

marriages by Wife. At the time of trial, Wife was 36 years old, and Husband was

37years old.

      In the early years of the marriage Wife held several short term jobs, but has

stayed at home for most of the marriage. Wife received an associates degree in office

administration in May of 1997. At the time of trial Wife was employed as a bookkeeper

at Fletcher Equipment in Burlison, Tennessee, with a net income of approximately

$1,100.00 per month. Wife testified that expenses for herself and two minor children

are $2,199.00 per month.

      Husband completed high school. From the beginning of the marriage through

February of 1997 Husband was a self employed truck driver. Husband then went to

work for his brother. At the time of trial Husband testified that he worked for his

stepmother making $410.00 per week, and that his monthly expenses were $2,080.03.

Tax returns indicate that Husband’s income was $54,059.00 in 1994, $41,715.00 in

1995, and $29,755.00 in 1996. Husband attributed his loss of income to the sale of his

truck to his brother for $19,500.00 in March of 1997.

      Wife filed her complaint for divorce in Madison county on September 4, 1997 on

the grounds of irreconcilable differences and inappropriate marital conduct. Wife

asserts that from the time that Husband began an extra-marital relationship with Lisa

Mauldin in January 1996 he began transferring assets from himself to his father,

brother, and step-mother. Husband admits to the extra-marital affair from January of

1996 through September of 1996, but asserts that W ife found out about the affair in

October 1996, approximately one year prior to filing for a divorce. Husband contends

that he admitted
to the affair and that the parties subsequently continued a physical marital relationship.

Husband asserts that the parties went for counseling and that although Wife denied

that the reason she wanted a divorce was because Husband did not make enough

money, she claimed to have forgiven him for the affair.

       The parties separated on September 21, 1997. Husband made a motion to

dismiss based on lack of venue, and divorce was transferred to Crockett county. By

order of December 16, 1997 the court awarded temporary custody of the children to

Wife and ordered Husband to pay child support of 104.00 per week, plus clerk’s fee of

$5.20, for a total of $109.20 per week. By the same order Husband was ordered to pay

the mortgage payment on the former marital residence as alimony until the house was

sold. On January 12, 1998 Husband was found in wilful contempt of the court order

and was in arrears in payment of the home mortgages in the amount of $3,445.00. The

court ordered that the Husband be held in jail until payment of the arrearage amount

or such other sum as satisfactory to the Bank of Crockett to prevent foreclosure

proceedings. Husband’s father paid an amount sufficient to have Husband released

from jail. At the closing of the sale of the marital home the mortgage payments were

five months in arrears.

       After a non-jury trial, the court awarded Wife an absolute divorce from the

Husband on the grounds of inappropriate marital conduct and awarded custody of the

two minor children to Wife with visitation according to the shared parenting plan as

stipulated by the parties. The trial court found Husband to be underemployed and

ordered child support of $192.00 plus commission per week to be paid by Husband by

wage assignment. The trial court further ordered Husband to maintain health insurance

on the minor children, and the parties were to split equally all medical, dental, optical,

and psychological expenses above the deductible not covered by insurance. Husband

was ordered to take out a life insurance policy for the benefit of the minor children in

the amount of $100,000.00 until each child reaches 18 years of age.            The court

ordered that the parties shall own the real estate located at Cherokee Heights as

tenants in common.

       As to the division of personal property the court awarded Husband property


                                            3
valued at $40,185.00, and the Wife property valued at $14,805.00. In addition the Wife

was awarded $25,380.00 as alimony in solido, which the court found represents the

difference between the value of personal property received by Husband and Wife. As

to funds receive by the parties as a result of Wife’s car accident, the court ordered that

Husband receive an amount of $648.88 (which represents one-half of the marital funds

spent on Wife’s medical bills as a result of her accident) to be credited against the

award of $25,380.00 as alimony in solido. The trial court ordered that Husband assume

the debt to Volunteer Bank in the amount of $19,500.00, and to hold Wife harmless

from any liability therefor. The court also ordered that this is a support obligation and

nondischargeable in bankruptcy pursuant to 11 U.S.C. § 523 (a)(5). The court further

ordered that Wife shall receive the remaining funds received as a result of the car

accident (3 checks totaling $6,939.93). The court awarded as alimony in solido the

sum of $6,298.27 to be paid by Husband to Wife’s attorney. Wife was also granted as

alimony in solido the sum of $25,000.00 as a judgment against Husband. In addition

Wife was granted a judgment of one-half of all payments, interest, late charges and

fees that have accrued on the parties’ house note since November 5, 1997 in the

amount of $1,404.58. Husband was ordered to pay the costs of the cause. Trial court

further ordered that it retained jurisdiction to modify support in the event of Husband’s

filing bankruptcy. Husband has appealed and presents seven issues for review.

             I. Did the trial court err in the setting of child support in the amount
       of $192.00 per week, plus clerk’s commission?

            II. Did the trial court err in the division of personal property
       between the parties?

             III. Did the trial err in awarding plaintiff a judgment for $25,000.00
      and in making said judgment a non-dischargeable debt in bankruptcy by
      classifying same as support pursuant to 11 U.S.C. § 523 (a)(5)?

             IV. Did the trial court err in awarding the plaintiff a judgment in the
      amount of $25,380.00 as alimony in solido, which sum represented the
      difference between the value of personal property received by the
      Husband and that received by the Wife?

            V. Did the trial court err in ordering the defendant to assume the
      debt owing to Volunteer Bank and in making same a part of plaintiff’s
      support so as to be non-dischargeable in bankruptcy pursuant to 11
      U.S.C. § 523 (a) (5)?

             VI. Did the trial court err in awarding the Wife as alimony in solido

                                            4
      the sum of $6,298.27 for attorney’s fee?

             VII. Did the trial court err in ordering the defendant to maintain life
      insurance on himself in the amount of $100,000.00 as security for
      payments to be made by the defendant for the support and maintenance
      of the children?

      Since this case was tried by the trial 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). (Tenn. App. 1995).

      Husband’s first issue is whether the trial court erred in setting the child support

in the amount of $192.00 per week, plus court clerk’s commission. Husband asserts

that when the costs of operating his trucks is considered, his reported income is not

nearly as great as it appears on paper. Husband argues that evidence offered by Wife

inflates his income by including the depreciation taken on the equipment. However we

agree with Wife that according to the child support guidelines promulgated by the

Tennessee Department of Human Services depreciation is not considered a reasonable

expense.

      With regard to gross income, the child support guidelines provide that “[i]ncome

from self-employment includes income from business operations and rental properties,

ect., less reasonable expenses necessary to produce such income . Depreciation,

home offices, excessive promotional, excessive travel, excessive car expenses, or

excessive personal expenses, ect., should not be considered reasonable expenses...”

Tenn. Comp.R. & Regs., CH. 1240-2-4-.03(3) (a) (1994).

      As to Husband’s income Wife contends that Husband began transferring assets

from himself to his father, brother, and stepmother intentionally lowering his reported

income.    Wife asserts Husband had been self-employed from the beginning of the

marriage until March of 1997, at which time he began to work for his brother. Wife

asserts that after transferring his truck to his brother the truck earned $76,006.97 in

1997, doing the same type work performed while Husband owned the truck.                Wife

asserts that in November of 1997 Husband represented to the court that his income was

$1,773.33 per month, while in July of 1997 Husband signed a business loan agreement



                                            5
     with Bank of Crockett representing his income as $4,187.88.

             The court in Garfinkel v. Garfinkel, 945 S.W. 2d 744 (Tenn. Ct. App. 1996) held

     that “[i]f an obligor is willfully and voluntarily unemployed or underemployed, child

     support shall be calculated based on a determination of potential income, as evidenced

     by educational level and/or previous work experience.” Id. at 748 (citing Tenn.Comp.R.

     &Regs., ch. 1240-2-4-.03 (3) (d) (1994). The Garfinkel court noted the decision on

     appeal in Ford v. Ford, No. 02A01-9507-CH-00153, 1996 WL 560258 (Tenn. Ct. App.

     Oct.3, 1996) where the court held that the term “willfully” in the child support guidelines

     does not mean that income may only be imputed to the husband when he is found to

     be purposefully trying to avoid child support obligations. Id. at 748 (citing Ford at *3).

     In Ford the court remanded the case to the trial court and ordered a recalculation of

     child support based on husband’s “potential income, considering his educational

     background and previous work experience.” Id. at 748 (citing Ford at *3). Following the

     reasoning of the Ford court, the Garfinkel court affirmed the trial court 1 stating the child

      support was correctly calculated based on Husband’s potential income considering his

      educational background and earnings before he decided to discontinue employment.

             The court in Herrera v. Herrera, 944 S.W.2d 379(Tenn. Ct. App. 1996), agreed

      with the proposition that when an obligor is willfully and voluntarily underemployed or

      unemployed, child support should be determined by a calculation of obligor’s potential

      income, based on education and prior work experience. Herrera, 944 S.W.2d at 387

      (citing Tenn. Comp.R. & Regs. 1240-2-4-.03(3)(c) (1991).            The court in Herrera

      remanded the case to the trial court for a determination of Dr. Herrera’s monthly income

      potential, finding “that the trial court erred in not making a determination as to Dr.

      Herrera’s monthly income potential and in setting the child support obligation.” Id.

             In accordance with the ruling in Herrera and with the rulings of Ford and

      Garfinkel in mind, we are of the opinion that the trial court erred in not making a specific

      determination as to Husband’s monthly income potential and in setting the child support



      1
             The trial court ordered husband to pay $900.00 per month child support
based on his last reported income of $40,000.00 in 1983, his educational level, and his
annual income from rental properties.

                                                   6
obligation.    Consequently, the case should be remanded to the trial court for a

determination of Husband’s monthly income potential. The child support shall remain

$192.00 per week until otherwise ordered.

       Husband’s second issue is whether the trial court erred in the division of personal

property between the parties.

       In dividing the property the trial court found that the sale of the tractor, the fishing

boats, the trailer, two trucks, a box blade, and the truck that Husband currently drives

were not arm’s lengths transactions and that these items shall be credited to Husband.

The court’s order states that Husband agreed to take the Clark Michigan front-end

loader and assume the indebtedness to Volunteer Bank, the only indebtedness that the

parties had at the time of the order, and hold the Wife harmless.

       The Husband advances no argument as to the division of the property, rather

Husband argues that the values used do not reflect the present value, which was given

by Husband. Instead, values used were given by Wife and reflect what Wife claims that

Husband told her the items were worth or reflect the value of the item when new.

Husband contends that there was no finding by the court as to why the values submitted

by Wife were favored over those submitted by Husband. Husband asserts that the

award to Wife was $105,157.20 and the award to Husband was a negative $29,244.39.

 Husband disputes Wife’s assessment as to the value of the shop equipment at

$15,000.00, stating that she had no actual knowledge of its fair market value. Husband

urges that value of the shop equipment is $225.00. The record reveals that Wife

testified that the value of the shop equipment was based on Husband’s statement to

Wife at the time that the parties insured the shop.

       The value of marital assets is determined by considering all relevant evidence

of value. Watters v. Watters, 959 S.W.2d 585, 589 (Tenn. Ct. App. 1997) (citing Koch

v. Koch, 874 S.W.2d 571, 577 (Tenn. Ct. App. 1993) (citations omitted)). The burden

to prove the value of the assets is on the parties through production of evidence and

parties are bound by the evidence that they produce. Id. It is within the discretion of the

trial court to place a value on the assets within the range of the evidence submitted by

parties. Id.

                                              7
       Since the value of assets is a question of fact, the presumption on appeal is that

the trial court’s valuation is correct. Watters, 959 S.W. 2d at 589; see also Smith v.

Smith, 912 S.W. 2d 155, 157 (Tenn. Ct. App. 1995). We find that the values given to

assets are within the range of the evidence given as they reflect the testimony and

assertions of Wife. The Husband claims that there is no showing that the Husband has

any assets that were not accounted for and further that a detailed account was given by

the Husband as to what was done with all property sold and where all funds received

were applied. However, we do not find that the record indicates that the trial court failed

to consider all evidence when making its decision, rather that the court, within its

discretion, found the testimony of the Wife more creditable than that of the Husband.

When the resolution of issues in a case depends upon the truthfulness of a witnesses,

the trial court judge, who has had the opportunity to observe the witnesses in their

manner and demeanor while testifying is in a far better position than a court of appeal

to decide those issues. McCaleb v. Saturn Corp., 910 S.W. 2d 412, 415 (Tenn. 1995);

Whitaker v. Whitaker, 957 S.W. 2d 834, 837 (Tenn. Ct. App. 1997).             The record

supports the finding by the trial court regarding valuation of property as the valuations

given were within the range of the evidence given. We therefore affirm the trial court’s

ruling as to the property settlement.

         Husband’s third issue disputes the court’s award to Wife of a non-

  dischargeable judgment for $25,000.00 as alimony in solido. Husband argues that

  because an award of alimony must be based upon an ability to pay, and because he

  neither has the ability to pay the $25,000.00 judgment, or the assets out of which to

  raise these funds, the award is in error.

         There is testimony of Wife that indicates an ability of Husband to pay this

  award. Wife asserts that there was $143,011.95 for which the Husband cannot

  account. Wife testified that she did not know how the proceeds from the sale of

  assets were spent, nor is she aware of how loan moneys were applied. The record

  reflects that the Husband took out various loans, including the loan for $19,500.00

  from Volunteer Bank, to pay bills. Wife further asserts that Husband received

  $300.00 from the sale of the six-teen foot trailer, 19,500.00 from the sale of the truck

                                              8
          to his brother and that a note against the truck sold to his brother was paid from

          proceeds from the sale of the marital home. Wife asserts that the record reflects that

          Husband admits to receiving $38,000.00 from the sale of a truck to a third party and

          that money was used to pay off notes , but that Husband can not identify which notes

          where paid. Wife asserts that Husband claims that the $1,500.00 that he received

          from his step mother for the mower was used to pay bills. Wife further asserts that

          Husband admits that a second mortgage made in May of 1997 was used to pay off

          notes for a swimming pool and unpaid taxes, and to pay bills, however Husband is not

          able to identify which bills were paid. Although Wife concedes that some money was

          used to pay bills, she contends that not all of these funds was so used. Wife asserts

          that money has been hidden in Husband’s father’s safe.          In making the award the

          court stated:

                          The wife urges that she be given a judgement for some
                          of the $143,011.95 for which the husband cannot
                          account. The husband filed a number of exhibits of loans
                          which he incurred, and claims that any excess monies
                          were spent for bills with nothing to substantiate the same.
                          The Court therefore awards the wife, as alimony in solido,
                          her attorney’s fees, cost of this cause and a judgement
                          for $25,000.00 plus the difference between the value of
                          any personal property that she received from the
                          husband.2

                          Upon consideration of Wife’s testimony and the findings of the trial court

          we do not believe that the record substantiates Husband’s claim of inability to pay.

                          As to the characterization of the awards as alimony in solido, “[t]he

          award of alimony is within the sound discretion of the trial court.” Houghland v.

          Houghland, 844 S.W.2d 619, 621 (Tenn. Ct. App. 1992)(citing Rains v. Rains, 58

          Tenn. Ct. App. 214, 428 S.W.2d 650 (1968)). The factors to consider in awarding

          alimony are enumerated in T.C.A. § 36-5-101(d), of which “the need of the spouse

          is the single most important factor followed by the ability of the obligor spouse to

          pay.” Houghland , 844 S.W.2d at 621(quoting Campanali v. Campanali, 695 S.W.

          2d 193, 197 (Tenn. Ct. App. 1985). These are the factors for the court to consider


      2
         The difference between the value of any personal property the Wife received
and what Husband received is represented by the award of $25,380.00 as alimony in
solido to Wife.

                                                       9
          whether making an award of alimony in futuro or alimony in solido. Id. (Citing Fisher

          v. Fisher, 648 S.W.2d 244, 246-47 (Tenn. 1983). “Where possible, awards of

          alimony in solido are preferred to awards in futuro.” Id. (Citing Spalding v. Spalding,

          597 S.W. 2d 739, 741 (Tenn. Ct. App. 1980). Alimony in solido is distinguished from

          alimony in futuro in that the former is paid in a lump sum and “generally considered

          a final judgment, ordinarily unchangeable by the court after expiration of the time for

          appeal” and the later is “paid periodically and remains subject to the control of the

          Trial Court”. Loria v. Loria, 952 S.W.2d 836, 838 (Tenn. Ct. App. 1997). All alimony

          must be “administered within the capability of the supporting spouse to provide the

          needed support.” Id.

                 In addressing whether an award was properly deemed alimony in solido the

          court in Aleshire v. Aleshire , 642 S.W.2d 729 (Tenn. Ct. App. 1981) determined

          that alimony in solido should not be awarded based on an expectation of future

          earnings. Houghland, 844 S.W.2d at 622. However extreme circumstances could

          justify the award of alimony in solido from future earnings. “Illustrative of those

          circumstances, but not all inclusive, is a situation where a spouse intentionally

          disposed of his or her tangible assets in order to deprive the other spouse of alimony

          in solido”. Id. (Citing Aleshire, 642 S.W. at 733). The Houghland,3 court held that

          the trial court did not abuse its discretion in ordering husband to pay amount of note

          that was not disclosed to Wife as the “record indicates that Husband disposed of

          marital assets without informing Wife and later concealed these actions from her.”

          Id. at 623. The court in     Hall v Hall, 772 S.W. 2d 432 (Tenn. Ct. App. 1989)

          responded to a similar complaint4 by concurring in the trial court’s finding “that the

          husband was instrumental in the dissipation of the wife’s assets, and that this fact is

          entitled to consideration in fixing alimony, both periodic and lump sum.” Hall, 772



      3
              The record in Houghland v. Houghland indicated that husband received
a check in satisfaction of a promissory note for $83,479.71, representing the equity in
the marital home, which he retained and invested into his company without informing
wife.
      4
              The appellant in Hall v. Hall, 722 S.W. 2d 438, complained that the award
of alimony in solido was based on an erroneous finding of dissipation of assets.

                                                    10
S.W. 2d at 438.

       From our review of the record, we conclude that the trail court did not abuse

his discretion in finding that the award of $25,000.00 as alimony in solido was

necessary for the support and maintenance of Wife. The award of $25,000.00 as

alimony in solido is supported by a finding that the necessary factors enumerated in

T.C.A. § 36-5-101 (d) are present. As to those factors the evidence at trial indicated

that Wife earned an associates degree in office administration, but had remained at

home for the majority of the marriage. At the time of trial Wife was working at

Flecher Equipment as a bookkeeper with net income of approximately $1,100.00 per

month. Wife is the custodian of the parties’ two minor children and testified to

expenses of $2,199.00 per month.

       Husband was self-employed from the beginning of the marriage until March of

1997, when he began working for his brother. In a hearing before the court in

November of 1997 Husband testified that his salary was $400.00 per

week,(approximately $1,7200.00 per month), however at trial evidence in the form of

an application for a loan was produced showing that in July of 1997 Husband had

represented to the Bank of Crockett that his income was $4,187.00 per month.

Federal income tax returns for the years 1994, 1995, and 1996 show perspective

incomes of $54,059.00, $41,715.00, and $29,755.00. Husband indicated that the

decrease in his income was due to selling his truck to his brother for $19,5000.00 in

March of 1997.     The record indicates that this truck grossed $76,006.97 for

Husband’s brother in 1997. Husband claims $2,080.03 in monthly expenses. Despite

Husband’s sale of his truck to his brother and decreased income , we agree with the

trial court that Husband is underemployed.

       Even if the award was made from future earnings, we think that this

circumstance falls within the exception designated by the court in Aleshire, as

evidence indicates that Husband intentionally disposed of assets in order to deprive

Wife of support. In the instant case Wife testified at trial that she believe that the

Husband is hiding money in his father’s safe.

              Q      The $19,500, Volunteer Bank: Do you know: What

                                         11
                     were those funds borrowed for?

              A      I found out that it was borrowed on the front-end
                     loader and Ford – No. Just the front-end loader,
                     I think, is all that was.
                     Yeah, just the front-end loader, I think, is all that
                     was tied up with that. But I didn’t find out about
                     that until we was going through the divorce.

              Q      What were those funds used for; do you know?

              A      No.

              Q      Do you say that because you don’t know that
                     those funds were, therefore, wasted or dissipated?


              A      Well, they never was deposited. Nothing was ever
                     deposited into a checking account. So, where’s
                     the money at, if we had to pay all these bills?

              Q      Are you saying that none of these funds were
                     deposited in your account?

              A      Yes, I am.

              Q      Do you know if any of the $19,500.00 was
                     dissipated?

              A      I saw a check from Volunteer Bank that he had
                     cashed for $9500.00. And I asked him where it
                     was at, and he said he was going to have to look
                     it up, he didn’t remember. And that right there told
                     me that he wasn’t telling the truth, because he
                     keeps up with his money and he knows.

                      *         *         *       *        *        *

              Q      My question is– You didn’t hear my question. Can
                     you tell us one thing that he has wasted money on
                     or dissipated money on of these funds that you’re
                     talking about?

              A      He just put it up where nobody can get to it.

              Q      Where is it?

              A      I’m sure it’s in his daddy’s safe.

              Q      You’re saying that now it’s in his daddy’s safe?

              A      I’m pretty sure it is, but I have no proof of that.

       Although Wife admits to having no proof of where unaccounted for funds are,

both Husband and Wife testify that he was solely in charge of household finances in

the latter part of the marriage. As the party in charge of the family finances, Husband



                                          12
is the one most likely to know where the funds were applied. We think that evidence

of the transactions not at arm’s length along with Husband’s inability to account for

funds, supports a finding that Husband dissipated or concealed funds. We further

think that evidence supports the trial court’s finding that Husband is underemployed,

the finding that transfers were not at arm’s length, and the finding that evidence does

not substantiate Husband’s claims as to how monies were spent. We therefore do

not think that the trial court abused its discretion in the award of $25,000.00 as

alimony in solido.

       Having found the award of $25,000.00 to be properly made as alimony in

solido we now consider the characterization of the award as non-dischageable.

Husband argues that the final determination as to whether a debt is dischargeable in

bankruptcy is one that can only properly be addressed by bankruptcy court

considering the specific criteria applicable under federal statutes. The applicable

federal statute is U.S.C. § 523(a) (5) (1993 & Supp. 1997) which provides criteria to

qualify a debt as non-dischargeable.

              One of the most venerable principles of American
              bankruptcy law is that a debtor’s obligation to provide
              spousal support cannot be discharged. (Citations
              omitted). This principle is embodied in 11 U.S.C.A. § 523
              (a)(5) (1993 & Supp. 1997) which provides that a
              discharge does not relieve an individual debtor from any
              debt “to a spouse, former spouse, or child of the debtor,
              for alimony to, maintenance for, or support of such
              spouse or child, in connection with a separation
              agreement, divorce decree or other order of a court of
              record.” Thus, while state law may guide the federal
              courts in ascertaining the nature of the obligation, federal
              law will determine whether the purported spousal or child
              support is dischargeable (Citations omitted).

LeMaster v. Ross, 1997 WL 717237 *2, There is “a strong policy favoring the

enforcement of spousal and child support orders in 11 U.S.C.A. § 523 (a) (5)” which

overrides the general policy that exceptions to discharge should be interpreted in the

debtor’s favor. Id. (Citations omitted). Although federal courts are bound to look past

the labels given debts by state court or the parties, when there is no question that the

obligation is support, and it so labeled, the obligation is non-dischargeable in

bankruptcy. Id. at *3. (Citations omitted). As to what is considered proper alimony



                                          13
          by federal courts:

                        [t]his is a long-standing standard for alimony where a
                        spouse’s assets or earning capacity justifies such an
                        award. Bankruptcy law does not place a restriction on the
                        state courts’ ability to award alimony. As we stated in
                        Calhoun, “[d]ivorce, alimony, support and maintenance
                        are issues within the exclusive domain of the state
                        courts.”

          Fitzgerald v. Fitzgerald, 9 F.3d 517, 521 (6th. Cir. 1993)5(citing Calhoun, 715 F.2d

          at 1107 (citing Boddie v. Connecticut, 401 U.S. 371, 389, 91 S.Ct. 780, 792, 28

          L.Ed.2d 113 (1971)(Black, J., dissenting)).

                   In re Calhoun, 715 F.2d 1103 (6th Cir. 1983), provided an analysis for

          determining when obligations are actually alimony, maintenance, or support and

          therefore non-dischargeable in bankruptcy when obligations are not so designated.

          Fitzgerald, 9 F.3d at 520. The obligation in question in Calhoun was an assumption

          of marital debts and to hold harmless the former spouse as part of divorce

          settlement. The Calhoun court found that the “hold harmless” obligation could be

          a non-dischargeable obligation even where not directly paid to the former spouse.

          Id.

                   This Court considered whether an award of alimony in solido was non-

          dischargeable in bankruptcy in Hale v. Hale, 838 S.W. 2d 206 (Tenn. Ct. App.

          1992)6    The Hale Court explained and followed the analysis of the court in In re

          Calhoun, and identified Calhoun as the leading case with regard to the issue of

          dischargeability stating:

                         Calhoun held that, under 11 U.S.C. Sec. 523 (a)(5),


      5
               In Fitzgerald v. Fitzgerald the court addressed the question of whether
something called alimony is “really alimony and not, for example, a property settlement
in disguise.” Fitzgerald, 9 F.3d at 521. The court found the award was alimony as
Husband did not produce contrary proof and the award contained conventional alimony
restrictions.
      6
              Hale v. Hale, involved the interpretation of a divorce decree which
incorporated a marital dissolution agreement by which husband would assume the
second mortgage on the marital house. When husband failed to make payments wife
made a motion to the court to determine the dischargeability of debts and asking the
court to deem the second mortgage and wife’s attorney fees as alimony, maintenance,
or support. While the trial court deemed the debts child support, on appeal the Court
held that debts were support but modified the trial court’s order to make debts spousal
support even though the MDA did not obligate parties to pay alimony.

                                                   14
              payments must be actually in the nature of alimony or
              support, to be exempt from discharge but that such
              payments need not be made directly to the debtor’s
              spouse or to his children. (FN3) The Court further found
              that Congress intended the determination of what
              constitutes alimony, maintenance, or support to be made
              by bankruptcy law, not state law. To make this
              determination, the Court fashioned a four prong test: (1)
              whether the state court or the parties intended to create
              a support obligation through the assumption of a joint
              debt; (2) whether the assumption of the debt has the
              actual effect of providing necessary support to insure the
              daily needs of the former spouse and children are
              satisfied; (3) whether the amount of the support
              represented by the assumption is so excessive as to be
              manifestly unreasonable when measured by traditional
              concepts of support; (4) if the amount of support is
              unreasonable , how much of it should be discharged for
              the purpose of bankruptcy. Although we are not bound
              by the Sixth Circuit’s opinion in Calhoun, we find the
              Court’s reasoning to be persuasive.

Id. at 208. See also Herrerra v. Herrera, 944 S.W.2d 379 (Tenn. Ct. App.

1996)(citing In re Fitzgerald, 9 F.3d 517, 520 (6th Cir,. 1993) (providing a summary

of the Calhoun four part inquiry to determine if the assumption of a debt or obligation

was support)).       Footnote 3 to the above excerpt from Hale addresses the

assertion made in Husband’s brief that “the final determination as to whether a debt

is dischargeable in bankruptcy is one that can only properly be addressed by the

bankruptcy court to see if it meets the specific criteria as set fourth by applicable

federal statues” stating:

              [w]hile the bankruptcy code gives the bankruptcy court
              exclusive jurisdiction to determine the issue of
              dischargeability for most debts, jurisdiction to determine
              the dischargeability of alimony, child support or
              maintenance of wife or child is concurrence with that of
              state court. The bankruptcy court may be bound by the
              final order of the state court, after a full evidentiary
              hearing involving the same issue, on the theories of res
              judicata and collateral estoppel.

Hale at FN3 at 211 (citations omitted); see also Houghland v. Houghland, 844

S.W. 2d 625 (finding that the trial court has concurrent jurisdiction with federal

bankruptcy court in determining the dischargeability of debt with regard to a divorce

decree).

       The trial court plainly labeled the award as a support obligation and under the

above authorities we find the trial court did not err in making the award non-

                                         15
dischargeable.

       We disagree with Husband’s contention regarding his fourth issue that the

award of $25,380.00 as alimony in solido was an improper award to equalize a

property settlement. In reaching our conclusion we refer to the discussion in issue

III regarding Tennessee law on the propriety of awards of alimony in solido, and to

the order of the trial court awarding the difference between the value of property

received by Wife and the value of that received by Husband . The trial court made

the award of $25,380.00, as it did in awarding $25,000.00, based upon the finding

that Husband had not substantiated his claims as to how money was spent.

Following the reasoning of the courts in Hall and Houghland, we believe that the

trial court did not err in awarding Wife alimony in solido based on the discrepancy in

the property division where the record indicates the Husband’s sale of assets were

to family members and not at arm’s length and where Husband did not account for

a large sum of marital assets ($143.011.95 according to Wife). We further believe

that the record substantiates Wife’s need as discussed in Issue III.

       In Husband’s fifth issue he does not contest the assumption of the $19,500.00

debt to Volunteer Bank, but rather takes issue with the trial court’s order making the

debt non-dischargeable in bankruptcy. Husband also contends that the trial court

erred in not taking this debt into consideration when dividing the assets between the

parties.

       The trial court indicates that it considers this debt a marital debt and issued

in its findings the statement:

              [t]he Husband agreed to take the Clarke Michigan front-
              end loader and assume the indebtedness to Volunteer
              bank, which is the only debt that the parties have at this
              time and hold the Wife harmless.

Also in the decree the trial court orders: “[t]hat the Husband shall assume the

indebtedness to Volunteer” and that “Husband shall pay this debt, and shall hold

Wife harmless from any liability therefor.”

       Tennessee courts have held that before making the division of marital

property, property should be classified as separate or marital. Kinard v. Kinard, 986



                                         16
           S.W. 2d 220, 230 (Tenn. Ct. App. 1998) (citations omitted). The definition of marital

           and separate property found in T.C.A. § 36-4-121 (b) provides the ground rules for

           the classification of property. Id. (Citations omitted).    After the classification of

           property the trial court is to divide the marital property in an equitable manner, and

           the division need not be equal to be equitable. Id. (Citations omitted). Because

           Tennessee is a dual property jurisdiction, the court also distinguishes as between

           marital and separate debts. Mondelli v. Howard, 780 S.W. 2d 769, 773 (Tenn. Ct.

           App. 1989)(citations omitted) “Marital debts are those debts incurred during the

           marriage for the joint benefit of the parties, (citation omitted), or those directly

           traceable to the acquisition of marital property.” Id. (Citations omitted).

                  On appeal the decisions of the trial court in dividing the marital estate is not

           disturbed unless the distribution lacks proper evidentiary support or results from

           some error or misapplication of law. Id. (Citations omitted).

                  In light of the evidence, we find that the debt to Volunteer Bank was the sole

           obligation of the Husband. 7 The proof establishes that Wife is not legally obligated

           for this debt and therefore the trial court erred in designating the debt as non-

           dischargeable.

                  Husband’s sixth issue is whether the trial court erred in awarding the Wife as

           alimony in solido the sum of $6, 298.27 for attorney’s fees. Husband cites Brown

           v. Brown, 913 S.W.2d 163 (Tenn. Ct. App. 1994) for the proposition that attorney

           fees are only appropriate when the spouse seeking them lacks sufficient funds to

           pay her legal expenses or would be required to deplete her resources in order to pay

           these expenses. Husband asserts that the award of attorney’s fee was an abuse of

           the court’s discretion and submits in the alternative that if the award of attorney’s

           fees is appropriate, the award should not be classified as alimony in solido, thereby

           preventing discharge in bankruptcy.



       7
              In his deposition Husband testifies that W ife did not go with him to make
the loan and “[s]he might not had knew it”. Nor can Husband produce proof of the use
of these funds stating that the money was used to pay “family bills” but is unable to
name which bills. As noted in our discussion of issue III herein, Wife testifies as to her
belief that Husband concealed at least a portion of these funds from her.

                                                    17
                 The decision to award attorney’s fees to a party in a
                 divorce proceeding, and the amount thereof, are largely
                 within the trial court’s discretion and will not be disturbed
                 upon appeal unless the evidence preponderates against
                 such a decision. (Citations omitted).

                 As with any alimony award, in deciding whether to award
                 attorney’s fees as alimony in solido, the trial court should
                 consider the relevant factors enumerated in T.C.A. § 36-
                 5-101(d).

Houghland, 844 S.W. 2d at 623. Where the wife has shown that she is not able to

pay wife’s attorney, and where the husband is able to pay, the court may properly

order the husband to pay wife’s attorney’s fees. Id. (Citing Harwell v. Harwell, 612

S.W. 2d 182, 185 (Tenn. Ct. App. 1980); Palmer v. Palmer, 562 S.W. 2d 833, 839

(Tenn. Ct. App. 1977). However, where the trial court awards the wife alimony in

solido sufficient to meet the needs of the wife and to pay her attorney’s fees, it may

not be proper for the trial court to make an additional award of alimony in solido for

the payment of wife’s attorney’s fees. Id.

       We find the award $25,000.00 as alimony in solido, along with the award of

$25,380.00 as alimony in solido is an adequate award from which to pay her

attorney’s fees. Therefore we conclude that the additional award of $6,298.27 for

Wife’s attorney’s fees was not appropriate. Accordingly, we reverse that part of trial

court’s order.

       The Husband’s seventh and final issue is whether the trial court erred in

ordering him to maintain life insurance in the amount of $100,000.00 on his life for

the benefit of the minor children. Husband concedes that T.C.A. § 36-5-101(g)

empowers the court to order the purchase of a life insurance policy and to designate

the beneficiary on the policy. However, Husband contends that this requirement by

the trial court is in error due to his limited income. Husband contends that the trial

court did not explore the cost of such a policy. However, Husband put on no proof

of the cost in order to show his inability to pay.

       The court in Young v. Young, 971 S.W. 2d 386 (Tenn Ct. App. 1997), held

that the trial court did not abuse its discretion in ordering that the husband maintain

$100,000.00 in life insurance for his minor child stating that the court was unwilling


                                              18
to “interfere with the trial court’s exercise of its discretion absent a showing of

abuse.” Id. at 392. Because we find that the trial court did not abuse its discretion

in ordering the Husband to purchase and maintain a $100,000.00 life insurance

policy on his life for the benefit of the minor children, we affirm this order of the trial

court.

         On appeal the Wife requests that an award of attorney’s fees and expenses

for the appeal of this cause. The Court in Houghland, 844 S.W.2d 623 declined to

award the Wife, appellee, attorney’s fees incurred on appeal citing Baggett v.

Baggett, 512 S.W.2d 292, 294 (Tenn. Ct. App. 1973) in which this Court held that

where both parties were partially successful on appeal, an award of attorney’s fees

was improper. In the instant case we decline to award Wife’s attorney’s fees

incurred on appeal.

         In sum, the order of the trial court ordering the Volunteer Bank debt to be non-

dischargeable in bankruptcy is reversed. The trial court’s award of attorney fees to

Wife is reversed. The case is remanded to the trial court for further proceedings

consistent with this Opinion regarding child support. The order is affirmed in all other

respects. Costs of the appeal are assessed one-half to each party.


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


CONCUR:


____________________________________
ALAN E. HIGHERS, JUDGE


____________________________________
HOLLY KIRBY LILLARD, JUDGE




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