                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               February 14, 2012 Session

        SHANDRA KAY HATTAWAY v. KEVIN TODD HATTAWAY

                  Appeal from the Circuit Court for Sumner County
                       No. 2010CV464       C.L. Rogers, Judge


                 No. M2011-01165-COA-R3-CV - Filed May 16, 2012


In this divorce appeal, Husband challenges the trial court’s division of marital property,
alimony award, permanent parenting plan, award of discretionary costs, and award of
attorney fees to Wife. We have determined that the trial court erred in requiring Husband to
pay more rehabilitative alimony than he can afford, in awarding him only 28 days a year in
parenting time, and in awarding discretionary costs for expert fees for case preparation. In
all other respects, we affirm the decision of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
          Part, Reversed in Part, Vacated in Part and Remanded in Part

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and F RANK G. C LEMENT, J R., J., joined.

Martin Stephen Sir and April Nicole Watkins, Nashville, Tennessee, for the appellant, Kevin
Todd Hattaway.

Charles R. Bobbitt, Jr., Hendersonville, Tennessee, for the appellee, Shandra Kay Hattaway.

                                        OPINION

                        F ACTUAL AND P ROCEDURAL B ACKGROUND

        Shandra Kay Hattaway (“Wife”) and Kevin Todd Hattaway (“Husband”) married in
December 1991 and have two children. Wife worked as a hair stylist to support the family
while Husband attended medical school. About a year after the birth of their first child in
1994, Wife stopped working outside the home, although she continued to do some hair
styling at the home. In approximately 1996, Husband entered the workforce as a family
practitioner.
      In 1999, Husband was ordered to pay child support for a child he fathered out of
wedlock during the parties’ marriage.

       Husband started his own family medical practice in Hendersonville, Tennessee, in
2000. Frustrated with what he considered inadequate income, Husband began looking for
other employment options in Colorado in 2009. He found employment as a doctor with the
military and moved to Colorado in 2010.

       Wife filed this action for divorce in April 2010 citing irreconcilable differences and
inappropriate marital conduct; she later added grounds of adultery. Husband filed an answer
and counterclaim. In June 2010, the court awarded Wife temporary support in the amount
of $1,000 per month. In October 2010, the court granted Husband’s motion for parenting
time and ordered that he have parenting time every other weekend. In November 2010, the
court approved Husband’s proposed sale of his medical practice in Hendersonville for
$11,414.00. The court further ordered that the proceeds of the medical practice sale and the
proceeds from a sale of silver be deposited with the court clerk for later division.

       In response to a contempt petition filed by Wife, the court entered an order in
February 2011 requiring Husband to continue maintaining the household expenses as
previously ordered and directing the court clerk to disburse to Wife $6,565 of the escrowed
funds to cover household marital expenses and attorney fees Husband had failed to pay as
ordered. At a March 2011 hearing, the court found that Husband had paid the expenses as
ordered and reiumbursed the clerk’s office.

                                        The hearing

       The matter was tried on April 5, 2011. The court heard testimony from both parties.
Wife stated that she graduated from high school and worked as a hairdresser until December
of 1995. She estimated that she earned approximately $12,000 in 1995. According to Wife,
she stopped working outside the home in 1995 because Husband wanted her to stay home
with their child. Once Husband entered the workforce, they relied entirely on his income to
support themselves.

       Wife testified that Husband moved out of the marital home without warning or
explanation in June 2010. She wanted a divorce because of Husband’s multiple affairs with
other women.

      At the time of the hearing, the parties’ two daughters were 14 and almost 17 years old.
Wife requested that she be named primary residential parent. She testified that, after he
moved out on June 1, 2010, and before he moved to Colorado, Husband saw the children

                                             -2-
about 20 times; Wife stated that she allowed Husband to visit with the children whenever he
requested to do so unless the older daughter was working. She stated that most of the visits
were an hour to an hour and a half in length with the exception of about two overnight visits.
Wife testified that, after the court awarded Husband parenting time every other weekend,
Husband exercised his parenting time on two or three weekends. After he moved to Denver,
he had seen the girls only once, the weekend before the hearing. Wife wanted Husband to
see the children but preferred to arrange visits by agreement because of previous instances
when he failed to appear for parenting time.

       Asked about Husband’s request to have the girls live with him each summer, Wife
responded that they had gone to church camp every summer and had been on several mission
trips. She stated that the girls wanted to go on a mission trip to Panama together that
summer. Moreover, the older daughter had a job.

      Since the end of August 2010, Wife had been working at the YMCA child care
program 25 to 30 hours a week. For the first three months, her gross earnings totaled
$2,077.35. This job allowed Wife and the children to operate with one vehicle since Wife
could walk to work.

        Wife testified as to why she had gotten a W-2 from Husband’s medical practice for
a couple of years. According to Wife, she did not actually perform a job at Husband’s
medical practice; at his request, she came into the office for an hour or two in the morning
after dropping the kids off at school because he was trying to manipulate his income “so he
wouldn’t have to pay as much child support for the child in Kentucky.”

        As to her employment plans, Wife testified that she was pursuing a radiology degree,
which she anticipated would afford her an income of about $30,000 a year. Wife was having
to do some remedial classes before she could complete her basic curriculum; then she could
start on the two-year program to get her radiology technology certificate. Wife estimated that
the entire process would take about five years. During that time, she planned to continue her
YMCA job.

        Husband denied that he had asked Wife to work at his office to reduce his child
support obligation. He stated that Wife worked at his office after he disclosed his affair to
her in 1999, and their marriage counselor advised them that he needed to be accountable to
her at all times. According to Husband, Wife was the office manager; she would go to the
bank, purchase office supplies, and act as a liaison between him and the staff. She used their
Suburban to perform these duties. After Husband replaced the Suburban with a minivan in
early 2009, Wife quit. At that point, Husband testified that he increased his own income by
the amount he had been paying Wife.

                                             -3-
      Husband opined that Wife could at least work full time at minimum wage. He
expressed doubts about her ability to complete the radiology program due to her learning
problems.

        As to his move to Colorado, Husband testified that he did not move for money reasons
as the compensation in Colorado was comparable to Tennessee, but the military job offered
a more stable income and set hours with no call responsibilities, which would allow him to
have more time with his daughters. Husband also found the job less stressful than private
practice. Husband stated that he had discussed employment opportunities in Colorado with
Wife, but she resisted the idea of moving there and refused to go with him for a second
interview.

        Husband disagreed with Wife’s description of problems with his parenting time. He
stated that when there was no parenting plan, he had trouble communicating with Wife. He
wanted to have the girls stay with him all summer.

      Husband testified that excessive spending had been a topic for which they received
counseling. According to him, Wife refused to complete the counseling.

       On cross-examination, Husband stated that, between June 2010 and December 2010,
he saw the children only when Wife allowed him to do so since there was no parenting plan.
He estimated that he saw them five or six times during that period, two of the visits being
overnight. Husband claimed that Wife had denied him parenting time, but he elected not to
push the issue until he asked the court for specific parenting time. According to Husband,
when he had parenting time every other weekend, he followed the schedule except when his
car broke down and the visit was rescheduled. He testified that since moving to Colorado
in December 2010, he had not seen his children until the weekend before the hearing, when
he had lunch with them and took them shopping.

                                   Trial court’s decision

       The court filed a memorandum opinion on April 18, 2011, regarding property/debt
allocation and rehabilitative alimony. (The opinion will be discussed more fully below as
relevant to the issues on appeal.) The court entered a final decree of divorce on May 5, 2011,
in which it found Husband to be at fault and awarded Wife a divorce on grounds of
inappropriate marital conduct and adultery. In dividing the marital estate, the court awarded
the marital home and all of the related debts to Husband and awarded Wife $15,222.50 for
her half of the equity in the marital home. Wife was also awarded all of the monies on
deposit with the court clerk, totaling $20,519. The court ordered Husband to pay all of the
marital debts except the debt on the Honda van awarded to Wife. Wife was awarded

                                             -4-
rehabilitative alimony in the amount of $1,700 a month for 96 months with the specification
that this alimony would remain in the court’s jurisdiction and was not to be considered
alimony in solido. Husband was also required to maintain COBRA health insurance on Wife
for up to 36 months. The court ordered Husband to pay Wife $17,000 for attorney fees. In
the parenting plan adopted by the court, Husband had parenting time only 28 days a year.

     In an order filed on May 31, 2011, the court awarded Wife discretionary costs in the
amount of $2,019.

                                            A NALYSIS

       On appeal, Husband assigns error to the trial court’s decisions with respect to the
division of marital property, the award of spousal support, the allocation of parenting time,
the award of attorney fees, and the award of discretionary costs.

                                  Division of marital property

       The trial court divided the marital property as follows: Husband received the marital
home and all of the related debt, and Wife received a lien for one-half of the value of the
equity in the home. Thus, each party effectively received $15,222.50, half of the equity.
Wife also received all of the funds on deposit with the court clerk, $20,519, and a van with
a net value of $13,048. The total net value of the assets received by Wife is approximately
$48,790. In addition to his share of the house, Husband received $3,100 from a credit union
account, a Jaguar with a net value of $8,250, a motorcycle with a net value of $1,500, and
a projected tax refund of $4,400; these assets have a total net value of approximately
$32,473. The court valued the household furnishings at $7,000 and stated that the disposition
of these assets “has been agreed to.” Husband was also ordered to be responsible for over
$100,000 in marital debts, including a debt owed to the Internal Revenue Service, medical
school loans, medical practice debts, and credit card debt found by the court to have been
incurred by Husband.

       Husband’s first argument is that the trial court erred in its valuation of the household
furnishings and the division of those assets. With respect to the distribution of the household
furnishings, the trial court stated that this disposition was by agreement.1 Therefore,
Husband cannot now request a different distribution of the household furnishings.




       1
        When Husband left the marital home, he took some household items with him. At the hearing, he
informed the court that he did not want any of the furniture.

                                                 -5-
       The valuation of a marital asset is a question of fact. Kinard v. Kinard, 986 S.W.2d
220, 231 (Tenn. Ct. App. 1998). Each party bears the burden of producing competent
evidence regarding the value of a marital asset. Id.; Wallace v. Wallace, 733 S.W.2d 102, 107
(Tenn. Ct. App. 1987). If the evidence of value is conflicting, the trial court has discretion
to assign a value that is within the range of values supported by the evidence. Kinard, 986
S.W.2d at 231. A trial court’s valuation of a marital asset will not be overturned unless the
evidence preponderates against those findings. Id. In his interrogatory responses, Husband
did not give a value for any of the listed household items. At the hearing, he estimated their
value at about $12,500, whereas Wife gave an estimated value of $2,000 for everything
Husband left behind. The court’s valuation of $7,000 is within the range of values presented,
and we find no error here.

       Husband goes on to argue that the court erred in its division of the marital assets by
giving Wife the entirety of the funds on deposit with the court clerk.

        A trial court has a great deal of discretion in determining the manner in which it
divides marital property, and an appellate court will generally defer to a trial court’s decision
unless that decision is inconsistent with the factors set out in Tenn. Code Ann. § 36-4-121(c)
or the evidence preponderates against the decision. Jolly v. Jolly, 130 S.W.3d 783, 785-86
(Tenn. 2004). An equitable distribution is not necessarily an equal one. Robertson v.
Robertson, 76 S.W.3d 337, 341 (Tenn. 2002).

      Tenn. Code Ann. § 36-4-121(c) instructs the court to consider all relevant factors in
making an equitable division of marital property, including the following:

       (1) The duration of the marriage;

       (2) The age, physical and mental health, vocational skills, employability,
       earning capacity, estate, financial liabilities and financial needs of each of the
       parties;

       (3) The tangible or intangible contribution by one (1) party to the education,
       training or increased earning power of the other party;

       (4) The relative ability of each party for future acquisitions of capital assets
       and income;

       (5) The contribution of each party to the acquisition, preservation,
       appreciation, depreciation or dissipation of the marital or separate property,
       including the contribution of a party to the marriage as homemaker, wage

                                               -6-
      earner or parent, with the contribution of a party as homemaker or wage earner
      to be given the same weight if each party has fulfilled its role;

      (6) The value of the separate property of each party;

      (7) The estate of each party at the time of the marriage;

      (8) The economic circumstances of each party at the time the division of
      property is to become effective;

      (9) The tax consequences to each party, costs associated with the reasonably
      foreseeable sale of the asset, and other reasonably foreseeable expenses
      associated with the asset;

      (10) The amount of social security benefits available to each spouse; and

      (11) Such other factors as are necessary to consider the equities between the
      parties.

        While we are not unsympathetic to Husband’s argument that he should have received
the proceeds from the sale of his medical practice (approximately $15,000) in order to pay
down the remaining debts of the practice, we emphasize the following pertinent findings by
the trial court in its memorandum opinion:

      Wife is 44, dyslexic affecting her reading and writing, high school education,
      no work history of significance, no special employment skills, performing as
      full time homemaker and primary parent of the two daughters for the last 16
      years. Wife worked to allow Husband to complete medical school in the early
      years of the marriage. . . . Husband age 41, is a licensed medical doctor.
      Husband operated a successful private practice in Sumner County, Tennessee
      before suddenly leaving the family, selling his medical practice and moving to
      Colorado. No substantial marital assets exist. Husband was in charge of
      management of marital funds. Wife was not allowed to be involved. The
      Wife has no ability to replace assets, expect anything other than low wage
      earnings and will be the primary parent for the two daughters for the next 5
      years until the last child graduates. There is extreme disparity between the
      parties earning capacity and ability. Husband currently earns $121,000.00
      annually, as beginning salary at his new job. The Husband has unlimited
      ability to replace assets, earn a six figure income, and extinguish marital debts



                                             -7-
        that were for his benefit or created by him. Wife has recently obtained work
        at $7.71 per hour as a day care worker.

In light of the absence of significant marital assets and Husband’s much greater earning
capacity, the trial court did not err in awarding Wife the entire proceeds from the sale of the
business assets as well as the proceeds from the sale of silver and stocks.2 In its
memorandum opinion, the trial court specifically noted that “Wife’s receipt of 100% of the
funds held by the Clerk in the property distribution was to help with the shortage in meeting
Wife’s total need.”

       Finally, Husband asserts that the trial court erred in requiring him to pay the mortgage
while Wife continued to live in the house until June 30, 2011. The hearing was held on April
5, 2011, and the trial court entered its final order on May 5, 2011. By the terms of the order,
Wife was permitted to remain in the marital home until June 30, 2011 with Husband paying
the mortgage. Husband takes the position on appeal that his obligation to pay the mortgage
along with his other financial obligations “essentially dissipated any equity the Husband
would have earned from the sale of the marital residence.” Even if we accept Husband’s
reasoning that the value of the equity he received should be modified accordingly, we do not
find that the evidence preponderates against the trial court’s division of the marital estate.
As stated above, the marital estate contained no significant assets and Husband’s earning
capacity and access to resources far exceeded Wife’s.

                                                  Alimony

        Husband argues that the trial court erred in awarding too much alimony to Wife. The
trial court awarded Wife $1,700 per month for 96 months in rehabilitative alimony,
specifically providing that this award was not to be considered alimony in solido and that the
court retained jurisdiction to make modifications during the given time period. Further,
Husband must continue to provide Wife with health insurance until she qualifies for
insurance through her employer or the end of the COBRA coverage period, whichever comes
first. Husband’s obligation regarding Wife’s health insurance “shall not exceed thirty-six
months after the COBRA coverage begins.”




        2
         In his brief, Husband refers to his “personal silver collection,” a term that might suggest that these
were his separate assets. There is nothing in the record to show that Husband ever argued that the silver
should be classified as his separate asset. Throughout the proceedings below, the trial court implicitly treated
the escrowed funds as marital property since they were to be subject to later division. At the hearing,
Husband requested half of the total funds on deposit with the court clerk.

                                                      -8-
        A trial court has broad discretion to determine the need for spousal support, as well
as the appropriate nature, amount, and duration of that support. Tenn. Code Ann. § 36-5-
121; Bratton v. Bratton, 136 S.W.3d 595, 605 (Tenn. 2004). An award of spousal support
will not be disturbed on appeal absent an abuse of the trial court’s discretion. Broadbent v.
Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006). Under the abuse of discretion standard, a
reviewing court cannot substitute its judgment for the trial court’s judgment. Wright ex rel.
Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011). Rather, a reviewing court will find an
abuse of discretion only if the trial court “applied incorrect legal standards, reached an
illogical conclusion, based its decision on a clearly erroneous assessment of the evidence, or
employ[ed] reasoning that causes an injustice to the complaining party.” Konvalinka v.
Chattanooga–Hamilton County Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008); see also Lee
Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). Therefore, “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).

        In Gonsewski, our Supreme Court recognized the principle that “a trial court’s
decision regarding spousal support is factually driven and involves the careful balancing of
many factors.” Id. at 105 (footnote omitted). Decisions regarding the nature and amount
of spousal support hinge upon the unique facts of each case and require careful consideration
of the factors found at Tenn. Code Ann. § 36-5-121(i). Oakes v. Oakes, 235 S.W.3d 152,
160 (Tenn. Ct. App. 2007). Tenn. Code Ann. § 36-5-121(i) instructs the court to consider
all relevant factors in determining whether spousal support is appropriate and in determining
the nature, amount, length of term, and manner of payment, including the following:

       (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;

                                              -9-
       (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.

The single most important consideration for the court in awarding alimony is the need of the
disadvantaged spouse seeking support, followed by the ability of the obligor spouse to pay
support. Bratton, 136 S.W.3d at 604; Oakes, 235 S.W.3d at 160.

       Husband points out several discrepancies in Wife’s statement of income and need.
We agree that, in light of the fact that the court ordered the Husband to assume the debt on
the marital home, Wife’s statement should not include the second mortgage or the
homeowner dues. Nevertheless, Wife must still pay for housing, and the court implicitly
accepted her affidavit’s figure of $1,200 for rent or mortgage as well as her estimate of
$1,000 for food. Wife testified that the Honda car insurance was $264 a month, and the court
implicitly credited that testimony. Moreover, Husband fails to take into account the cost of
Wife’s education to become a radiology technician, which will cost approximately $10,000.
Subtracting the extra housing debts and adding $100 a month for Wife’s educational
expenses results in a new expense figure of approximately $5,000 a month. Subtracting child
support and Wife’s income from total expenses yields need in the amount of $2,742 a month,
only about $130 a month less than the figure used by the trial court.



                                              -10-
       Husband also argues that he does not have the ability to pay $1,700 per month. After
reviewing the relevant figures, we are inclined to agree. The trial court accepted Husband’s
statement of monthly expenses with the exception of subtracting the $700 in child support
paid for Husband’s out-of-wedlock child. The court emphasized that Husband received a
credit on his child support obligation for the parties’ children as a result of this existing
obligation. Nevertheless, the $700 expense must still be paid. Thus, Husband’s total
expenses are $4,781.00. He must also pay child support on the children of this marriage in
the amount of $1,566 as well as COBRA payments on Wife. Husband’s net income is
$7,376.00. This leaves Husband with $1,029 per month less COBRA payments.3

        Based upon the evidence in the record, we conclude that the trial court erred in
ordering Husband to pay Wife rehabilitative alimony in the amount of $1,700 a month as he
does not have the ability to pay that amount. We find no error, however, in the trial court’s
award to Wife of the approximately $20,000 held by the court clerk as a means of making
up for the shortage in meeting Wife’s needs. On remand, the trial court must determine the
monthly amount Husband is able to pay taking into account COBRA payments and his child
support obligation.4

                                             Parenting time

      Husband argues that the trial court erred in failing to award him adequate parenting
time. We agree.

       Because “‘the details of custody and visitation with children are peculiarly within the
broad discretion of the trial judge,’” we review issues of parenting time and primary
residential parent status for abuse of discretion. Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001) (quoting Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1998)). “[A]ppellate
courts will decline to disturb a parenting plan fashioned by a trial court unless that decision
is based on application of an incorrect legal standard, is against logic or reasoning, or is not
supported by a preponderance of the evidence.” Cummings v. Cummings, No. M2003-00086-
COA-R3-CV, 2004 WL 2346000, at *5 (Tenn. Ct. App. Oct. 15, 2004).5


        3
        While Husband asserts in his brief that the monthly COBRA payments will be between $348 and
$510 a month, we find nothing in the record to substantiate these figures.
        4
         Once Husband’s obligation to make COBRA payments ends, his monthly alimony payment could
increase by the amount of the COBRA payment.
        5
          At oral argument, Husband cited a new statute amending Tenn. Code Ann. § 36-6-106(a) to require
that, in considering the best interest of the child(ren), “the court shall order a custody arrangement that
                                                                                               (continued...)

                                                    -11-
       Both parties in this case submitted proposed parenting plans to the court at the
hearing. Husband asked that he have 74 days of parenting time, and Wife requested that
Husband have 69 days of parenting time. While expressing a preference for Husband’s
parenting plan and agreeing with Husband that a specific parenting schedule needed to be
ordered (rather than just left to the agreement of the parties, as Wife suggested), the trial
court ordered that Husband have only 28 days a year in parenting time. In its ruling from the
bench, the court made the following comments:

        Again, girls 17 and 14, both parties, thankfully, have encouraged their
        Christian following, their involvement in going to church camps and mission
        trips, just the things you really like to hear parents doing for their children. I
        looked at the distance between the parties and I also looked at the father’s past
        performance in not being readily available or seeing the girls, and I heard him
        say he was waiting for some sort of orders, but those are his girls and I wasn’t
        pleased with any downtime of contact with the children, but that’s all right.

The court then gave Husband two weeks in the summer along with other vacation and
holiday time and stated that the parties could agree to additional time.

       We conclude that the trial court erred in limiting Husband to 28 days a year in
parenting time. There were no allegations of parental misconduct, and Wife petitioned for
Husband to have 69 days a year. While it is appropriate for the children to attend camps and
go on mission trips, the children should also be given the opportunity to have a meaningful
relationship with their father. On remand, the trial court shall determine a parenting schedule
that will allow Husband to have more parenting time with the children, starting with Wife’s
proposed plan as a reasonable amount. This decision will also require a recalculation of child
support based upon Husband’s increased parenting time.

                                          Discretionary costs

     Husband argues that the trial court erred in awarding Wife discretionary costs in the
amount of $2,019 for the fees of Rob Jennings. We agree with Husband’s position.

       The decision to award discretionary costs is reviewed under the abuse of discretion
standard. Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 215 (Tenn. Ct. App. 2008).


        5
          (...continued)
permits both parents to enjoy the maximum participation possible in the life of the child” consistent with all
of the statutory factors. 2011 Tenn. Pub. Acts ch. 433. This statute did not take effect until June 6, 2011,
and the final order in this case was issued in May 2011. Thus, the new statute does not apply here.

                                                    -12-
Rule 54.04(2) of the Tennessee Rules of Civil Procedure allows a court to award
discretionary costs, including “reasonable and necessary expert witness fees for depositions
(or stipulated reports) and for trials.” This provision allows for recovery of expert witness
fees for deposition or trial, not for preparation for deposition or trial. Trundle v. Park, 210
S.W.3d 575, 582-83 (Tenn. Ct. App. 2006); Chaffin v. Ellis, 211 S.W.3d 264, 293 (Tenn. Ct.
App. 2006). The party seeking discretionary costs has the burden of convincing the trial
court that he or she is entitled to the costs. Duran, 271 S.W.3d at 215.

        In this case, Wife submitted an invoice from Jennings for “assistance with Hattaway
case to date.” Jennings did not testify at trial. At oral argument, counsel for Wife stated that
Jennings was an accountant hired to value the family medical practice and did not testify.
Under these circumstances, the trial court erred in awarding Wife discretionary costs for
Jennings’s fees.

                                         Attorney fees

       Husband’s final argument is that the trial court erred in awarding Wife her attorney
fees in the amount of $17,000.00. He asserts that he does not have the ability to pay the
amount awarded.

       An award of attorney fees in a divorce case is generally characterized as alimony in
solido. Owens v. Owens, 241 S.W.3d 478, 495 (Tenn. Ct. App. 2007). Thus, in considering
a request for attorney fees, a trial court must consider all of the factors contained in
Tenn.Code Ann. § 36-5-121(i). A trial court ordinarily “will award attorney’s fees as
alimony when an economically disadvantaged spouse would otherwise be forced to deplete
assets in order to pay attorney’s fees.” Id. at 496. Decisions to award attorney fees are
reviewed under an abuse of discretion standard. Huntley v. Huntley, 61 S.W.3d 329, 341
(Tenn. Ct. App. 2001).

       In awarding Wife her attorney fees in this case, the trial court stated that this award
was “[b]ased upon Husband[’]s actions for causing the divorce, causing unnecessary fees to
obtain and enforce support, Husband[’]s earning ability and capacity to earn compared to that
of the Wife, [and] Wife having insufficient assets to pay.” These are all factors properly
considered by the court under Tenn. Code Ann. § 36-5-121(i). Viewing the record as a
whole, we cannot say that the trial court abused its discretion in awarding Wife her attorney
fees.




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                                         C ONCLUSION

       The trial court’s award of rehabilitative alimony in the amount of $1,700 per month is
vacated and the matter remanded for an award affordable by Husband taking into account the
required COBRA payment and Husband’s child support obligations. The trial court’s award
of only 28 days of parenting time is vacated and the matter remanded for determination of a
parenting schedule allowing Husband 69 days of parenting time and a recalculation of child
support. The trial court’s award of discretionary costs for the services of Wife’s expert is
reversed. In all other respect, the trial court’s decision is affirmed. We decline Wife’s request
for an award of attorney fees on appeal; costs are assessed equally to both parties, and
execution may issue if necessary.

                                                         ______________________________
                                                              ANDY D. BENNETT, JUDGE




                                              -14-
