                                                                                      08/27/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                July 14, 2020 Session

         RICHARD ALAN ELLIS v. DONICA ANN WOODS ELLIS

                  Appeal from the Circuit Court for Shelby County
                    No. CT-000806-15 James F. Russell, Judge
                     ___________________________________

                          No. W2019-01869-COA-R3-CV
                      ___________________________________


This is the second appeal in this divorce case. In Ellis v. Ellis, No. W2017-02287-COA-
R3-CV, 2019 WL 410704 (Tenn. Ct. App. Jan. 31, 2019), we vacated the trial court’s
award of alimony in futuro to Wife and its award of alimony in solido for Wife’s
attorney’s fees. Contrary to our mandate, on remand, the trial court failed to consider
Wife’s relative earning capacity in relation to the award of alimony in futuro. Although
the trial court affirmed its previous award of alimony in solido, it failed to consider
payments Wife made from pendente lite support she received from Husband.
Accordingly, we modify the trial court’s award of alimony in futuro to reflect Wife’s
earning capacity, and we modify the award of alimony in solido to reflect payments made
from pendente lite support.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Darrell Drew Blanton, Memphis, Tennessee, for the appellant, Richard Alan Ellis.

Julie C. Bartholomew, Somerville, Tennessee, for the appellee, Donica Ann Woods Ellis.

                                      OPINION

                                    I. Background

       This is the second appeal in this divorce case. For purposes of consistency, we
restate the relevant background facts from our first opinion, Ellis v. Ellis, No. W2017-
02287-COA-R3-CV, 2019 WL 410704 (Tenn. Ct. App. Jan. 31, 2019) (“Ellis I”). After
a thirty-seven year marriage, Appellant Richard Alan Ellis (“Husband”) and Appellee
Donica Ann Woods Ellis (“Wife”) were divorced by order of October 23, 2017. At the
time of the divorce, the parties were sixty years old. During the first ten years of
marriage, Wife worked as a nurse and teacher. After the birth of the parties’ second
child, Wife maintained her nursing license but did not work outside the home. Husband
works as a general surgeon with Methodist Medical Group.

        The parties filed cross-complaints for divorce. By order of November 3, 2016,
Husband was ordered to pay Wife $7,500.00 per month in pendente lite support. The
trial court also ordered him to make a one-time payment of $6,000.00 towards Wife’s
attorney’s fees. In its October 23, 2017 order, the trial court granted the divorce. The
trial court ordered Husband to pay Wife $9,000.00 per month in alimony in futuro, and
$121,873.81 in alimony in solido for Wife’s attorney’s fees. The trial court denied
Wife’s motion for discretionary costs. Husband appealed.

        In Ellis I, we addressed three substantive issues: (1) whether the trial court erred
in awarding Wife alimony in futuro in the amount of $9,000.00 per month; (2) whether
the trial court erred in awarding Wife $121,873.81 in alimony in solido for attorney’s
fees; and (3) whether the trial court erred in denying Wife’s motion for discretionary
costs. Id. at *2. In Ellis I, we held that the trial court failed to make sufficient findings
and failed to consider certain relevant factors in making its award of alimony in futuro
and alimony in solido. Concerning the trial court’s award of alimony in futuro, the Ellis I
Court concluded that the trial court “failed to consider its other findings that Wife could
‘reasonably re-enter the employment market’ and ‘is capable of earning a reasonable
income as a nurse based on her education, training and background’ even though Wife
stated she had no intention of returning to work.” Id. at *4. Accordingly, we vacated the
trial court’s award of alimony in futuro and remanded for “the trial court [to] consider the
evidence regarding the range of Wife’s reasonably anticipated income.” Id. at *5. As to
the trial court’s award of alimony in solido, the Ellis I Court held that the trial court
failed to consider the factors set out in Tennessee Code Annotated section 36-5-121(i)
and Tennessee Supreme Court Rule 8, RPC 1.5. As such, we also vacated the trial
court’s award of $121,873.81 in alimony in solido and remanded “for a new
determination as to whether Wife should be awarded her attorney’s fees and, if so, the
reasonableness of such fee award, with findings by the trial court reflecting that it
considered all of the factors . . . applicable case law.” Id. at *7. Finally, in Ellis I, we
held that the trial court’s denial of Wife’s motion for discretionary costs was “improper
because the trial court’s initial denial of such costs in its findings of fact and conclusions
of law and final decree was premature.” Id. We remanded the issue to the trial court for
consideration on the merits.

       On remand from Ellis I, the trial court conducted a hearing on August 21, 2019,
but no additional proof was adduced. Prior to the hearing, Wife submitted two affidavits
regarding the reasonableness of her attorney’s fees. Husband offered no additional or
                                          -2-
countervailing proof. On August 30, 2019, the trial court issued its Memorandum
Opinion and Order on Remand. Regarding the award of alimony in futuro, the trial court
found that Wife is economically disadvantaged. Despite the fact that she maintains a
valid nursing license, the trial court found that “Wife’s return to the workplace and ability
to earn income as a nurse at this stage in her life is not a realistic or feasible opportunity.”
After considering the statutory factors set out at Tennessee Code Annotated section 36-5-
121(i), the trial court found that Wife’s monthly needs, excluding her federal income
taxes, are $8,000.00. The trial court concluded that Husband’s monthly income of
$29,000.00 allows him the ability to pay Wife $8,000.00 per month in alimony in futuro.
Based on these findings, the trial court reduced its award of alimony in futuro from
$9,000.00 to $8,000.00 per month. Notably, the trial court’s August 30, 2019 order is
silent as to Wife’s reasonable earning capacity.

        In addressing the award of alimony in solido, the trial court found that Wife’s
share of the marital estate was comprised primarily of non-liquid and non-income
producing assets; as such, the trial court concluded that Wife lacked sufficient funds to
pay her legal expenses and would be required to deplete her resources to “make even
partial payment of her legal fees and expenses.” Furthermore, the trial court found that
Husband has the ability to pay and the greater ability to absorb these costs. The trial
court considered the factors outlined at Tennessee Code Annotated section 36-5-121(i)
and held that “an award to Wife of her reasonable attorney’s fees incurred as alimony in
solido is appropriate and should be entered.” Regarding the reasonableness of her
attorney’s fees, the trial court applied the factors set out in Tennessee Supreme Court
Rule 8, RPC 1.5 and concluded that

       Husband did not present any challenge to the reasonableness of Wife’s
       attorney’s fees by filing countervailing Affidavits, did not request an
       evidentiary hearing on Wife’s attorney’s fee request, and did not object on
       the record to the reasonableness of the amount sought and awarded. It has
       been Husband’s contention that any award of Wife’s fee would be
       inappropriate considering she received in excess of 72% of the marital
       estate. The Affidavits recently filed by Wife support the foregoing
       conclusions as set forth, and Husband’s contention is simply not well taken.

Based on these findings, the trial court affirmed its previous award of $121,873.81 in
alimony in solido to Wife.

        Finally, the trial court trial court considered Wife’s motion for discretionary costs.
The trial court explained that “neither party submitted a request for an award of any other
litigation expenses, such as court reporter fees, expert fees, or other incurred costs,” and it
concluded that


                                             -3-
       [w]hile the Court considers the specific expenses as set forth in the motion
       to be reasonable and necessary, the Court remains of the considered opinion
       that each party individually should be required to sustain the burden of such
       expenses. At the time of trial the Court was (and still is) of the considered
       opinion that neither party was a “prevailing party” as that term is used in
       the context of Rule 54.04(1) of the Tennessee Rules of Civil Procedure.
       The Wife’s Motion For Discretionary Costs is not well taken and should be
       and is denied.

Husband appeals.

                                         II. Issues

       Based on Husband’s statement of the issues for review, we perceive that there are
two dispositive issues:

   1. Whether the trial court erred in awarding Wife alimony in futuro in the amount of
      $8,000 per month.

   2. Whether the trial court erred by awarding Wife her attorney’s fees as alimony in
      solido in the amount of $121,873.81.

   In the posture of Appellee, Wife asks this Court to award her attorney’s fees and costs
accrued in defense of the appeal.

                                 III. Standard of Review

       This case was tried by the court sitting without a jury. As such, we review the trial
court’s findings of fact de novo on the record with the presumption that those findings are
correct, “unless the preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d).
The evidence preponderates against a trial court’s finding of fact when it supports another
finding of fact with greater convincing effect. Kephart v. Kephart, 520 S.W.3d 563, 567
(Tenn. Ct. App. 2016). We review the trial court’s conclusions of law de novo with no
presumption of correctness. Gonsewski v. Gonsewski, 350 S.W.3d 99, 105-106 (Tenn.
2011); Hyneman v. Hyneman, 152 S.W.3d 549, 553 (Tenn. Ct. App. 2003).

        The issues in this appeal concern the trial court’s award of alimony in futuro and
alimony in solido. A trial court’s decision whether to award alimony is reviewed under
an abuse of discretion standard. Cain-Swope v. Swope, 523 S.W.3d 79, 94 (Tenn. Ct.
App. 2016). Under this standard of review, a trial court’s ruling “will be upheld so long
as reasonable minds can disagree as to propriety of the decision made.” State v. Scott, 33
S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000). A
trial court abuses its discretion only when it “applie[s] an incorrect legal standard, or
                                           -4-
reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the
party complaining.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citing State v.
Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). Accordingly, appellate courts are not
permitted to “second guess” the trial court’s determinations or to substitute their
judgment for that of the trial court. See Lee Medical, Inc. v. Beecher, 312 S.W.3d 515,
524 (Tenn. 2010). “The abuse of discretion standard of review does not, however,
immunize a lower court’s decision from any meaningful appellate scrutiny.” Id.

                                       IV. Analysis

                                  A. Alimony in Futuro

       We first address Husband’s argument that the trial court erred in awarding Wife
$8,000.00 per month in alimony in futuro. Tennessee Code Annotated section 36-5-121
authorizes courts to award alimony in divorce cases “to be paid by one spouse to or for
the benefit of the other, or out of either spouse’s property, according to the nature of the
case and the circumstances of the parties.” Tenn. Code Ann. § 36-5-121(a). Trial courts
are directed to consider the following factors when determining whether alimony is
appropriate and in determining the nature, amount, length of term, and manner of
payment:

       (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;
                                          -5-
      (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.

Tenn. Code Ann. § 36-5-121(i). Of these factors, the disadvantaged spouse’s need and
the obligor spouse’s ability to pay are the most important, and “the disadvantaged
spouse’s need is the threshold consideration.” Riggs v. Riggs, 250 S.W.3d 453, 457
(Tenn. Ct. App. 2007) (citations omitted).

       In Ellis I, we vacated the trial court’s award of alimony in futuro based on the
following analysis:

      First, as noted in the portion of its findings of fact and conclusions of law . .
      . the trial court . . . awarded Wife $9,000 per month of alimony in futuro,
      notwithstanding its finding that Wife’s monthly need was “something in the
      neighborhood of $8,000.” Moreover, the trial court, in making its alimony
      award, failed to consider its other findings that Wife could “reasonably re-
      enter the employment market” and “is capable of earning a reasonable
      income as a nurse based on her education, training and background” even
      though Wife stated she had no intention of returning to work. The trial
      court based these findings on the reports and testimony provided by both
      Husband’s and Wife’s vocational experts. Husband’s expert testified at
      trial and provided in his report that, if Wife re-entered the employment
      market as a registered nurse, she could earn at least $24.10 per hour or
      $4,177 per month in income. Wife’s expert testified that Wife could earn at
      least $13.42 per hour or $2,326 per month. In determining the amount of
      alimony in futuro to award Wife, however, the trial court did not factor in
      these wage ranges provided by both parties’ experts, despite the fact that
      the relative earning capacity of both parties is one of the statutory factors
      the trial court must consider when calculating such an award. See Tenn.
                                              -6-
       Code Ann. § 36-5-121(i)(1). This Court has observed that, after the trial
       court has determined an amount of income “which will provide for the wife
       to live in the manner to which she became accustomed during the
       marriage[, f]rom this amount should be subtracted her reasonably
       anticipated income[.]” Duncan v. Duncan, 686 S.W.2d 568, 572 (Tenn. Ct.
       App. 1984).

       In addition to the above considerations, which should have been taken into
       consideration by the trial court, we are compelled to note that the nature of
       the alimony awarded was itself without a proper factual foundation.
       Namely, it does not appear that the trial court ever specifically found that
       Wife’s economic rehabilitation was not feasible.

                                            ***

       The trial court, of course, is not foreclosed from awarding Wife long-term
       support, but any such award should be supported by proper findings and
       consideration of the relevant alimony factors. In reference to Wife’s needs,
       we again note that the trial court’s own findings established that Wife’s
       needs are “something in the neighborhood of $ 8,000.” We further reiterate
       that the trial court must consider the evidence regarding the range of Wife’s
       reasonably anticipated income. We, therefore, vacate the trial court’s
       award of alimony in futuro and remand the issue for further proceedings
       consistent with this opinion.

Ellis I, at *4-5 (footnote omitted).

        On remand, the trial court considered the statutory factors set out in Tennessee
Code Annotated section 36-5-121(i) and determined that an award of alimony in futuro is
appropriate. On appeal, neither party disputes the type of alimony awarded, and the
evidence supports the trial court’s finding that Wife will not be able to support herself at
any level near that enjoyed during the marriage. As such, we agree that an award of
alimony in futuro is appropriate in this case. Upon review of the record, however, the
trial court erred in its determination of the amount of the alimony in futuro.

       On remand, the trial court found that Wife’s need was $8,000.00 per month, which
was $1,000.00 less than the original award. From our review, the trial court’s downward
modification of Wife’s alimony in futuro was based, in part, on a change in federal tax
law. However, contrary to our mandate in Ellis I, the trial court’s adjustment of the
alimony amount did not account for Wife’s relative earning capacity. Instead of
considering the salary ranges provided by the parties’ respective vocational experts as
directed by this Court in Ellis I, under its analysis of Tennessee Code Annotated section
36-5-121(i)(1), the trial court explained that
                                             -7-
        Husband has a superior earning capacity as a surgeon compared to Wife,
        who has not been employed since 1989. Husband has far better
        opportunities to accumulate assets in the future, and Husband’s other
        financial resources, including income from retirement plans and limited
        partnership income, significantly exceed those of Wife, who received only
        $10,990.00 in principal deposits in her retirement accounts and no other
        income producing assets.

While it may be true that Husband has “better opportunities to accumulate assets in the
future,” such finding fails to account for Wife’s relative earning capacity. Furthermore,
insofar as the Ellis I Court did not disturb the trial court’s factual findings pertaining to
Wife’s ability to re-enter the employment market, the trial court’s factual finding on
remand, i.e., that “Wife’s return to the workplace and ability to earn income as a nurse at
this stage in her life is not a realistic or feasible opportunity,” is inconsistent with the trial
court’s original factual findings, i.e., that Wife could “reasonably re-enter the
employment market” and “is capable of earning a reasonable income as a nurse based on
her education, training and background.” Because no new proof was offered on remand,
these inconsistencies indicate that the trial court attempted to modify its prior findings
without additional proof. This, it cannot do.

       When a trial court finds that a disadvantaged spouse is capable of earning a
reasonable income, a trial court must consider and adjust an alimony award accordingly.
See Pearson v. Pearson, No. W2018-01188-COA-R3-CV, 2019 WL 2394247, at *7-8
(Tenn. Ct. App. June 6, 2019). In Pearson, which cites Ellis I, we concluded that a trial
court errs when it fails to consider a disadvantaged spouse’s earning capacity, to-wit:

        [t]he sole distinction between the instant appeal and Ellis is that,
        in Ellis, the trial court did not make a specific finding concerning
        wife’s earning capacity; rather, the court failed to “factor [the] ranges [of
        wife’s earning capacity] provided by both parties’ experts.” . . . The error
        here is the same as that in Ellis, i.e., the trial court failed to consider the
        disadvantaged spouse’s earning capacity.

Id. at *8 (citation omitted) (emphasis added). Unfortunately, on remand, the trial court
did not cure its initial failure to consider Wife’s earning capacity—this despite the Ellis I
Court’s instruction for the trial court to “consider the evidence regarding the range of
Wife’s reasonably anticipated income.” Ellis I, 2019 WL 410704, at *5. Accordingly,
we will do so now. Again, no new evidence was adduced on remand. Wife’s expert
testified that Wife could earn at least $13.42 per hour or $2,326 per month in income,1
and Husband’s expert testified that if Wife re-entered the employment market as a

        1
          Wife’s expert testified that the low wage range for a registered nurse in the Memphis, Tennessee
area is even higher at $ 15.62 per hour—or $ 32,490 per year.
                                                  -8-
registered nurse, she could earn at least $24.10 per hour or $4,177 per month. In view of
the totality of the circumstances, including Wife’s age, work experience, the number of
years she has not worked outside the home, and the training she will need to re-enter the
workforce, we conclude that Wife’s expert’s testimony is a truer representation of Wife’s
relative earning capacity than the proof offered by Husband’s expert. Therefore, we
adopt Wife’s expert’s opinion that Wife is capable of earning $2,326.00 per month. We
leave undisturbed the trial court’s finding that Wife has monthly need of $8,000.00.
Accordingly, the trial court’s order is modified to reflect an award of $5,674.00 per
month in alimony in futuro, i.e., Wife’s need of $8,000.00 less her monthly earning
capacity of $2,326.00 per month. Our modification of the alimony in futuro award is to
be applied prospectively on remand.

                                 B. Alimony in Solido

      We next turn to Husband’s argument that the trial court erred in awarding Wife
$121,873.81 in alimony in solido for her attorney’s fees. The Tennessee Supreme Court
has explained that:

      It is well-settled that an award of attorney’s fees in a divorce case
      constitutes alimony in solido. The decision whether to award attorney’s
      fees is within the sound discretion of the trial court. As with any alimony
      award, in deciding whether to award attorney’s fees as alimony in solido,
      the trial court should consider the factors enumerated in Tennessee Code
      Annotated section 36-5-121(i). A spouse with adequate property
      and income is not entitled to an award of alimony to pay attorney’s fees and
      expenses. Such awards are appropriate only when the spouse seeking them
      lacks sufficient funds to pay his or her own legal expenses or the spouse
      would be required to deplete his or her resources in order to pay them.
      Thus, where the spouse seeking such an award has demonstrated that he or
      she is financially unable to procure counsel, and where the other spouse has
      the ability to pay, the court may properly grant an award of attorney’s fees
      as alimony.

Gonsewski v. Gonsewski, 350 S.W.3d 99, 113 (Tenn. 2011)) (citations omitted). As
with any alimony in solido award, the two most important considerations are the need of
the requesting spouse and the ability of the other spouse to pay. Burlew v. Burlew, 40
S.W.3d 465, 470 (Tenn. 2001).

       Based on the distribution of the marital estate, Husband contends that Wife can
afford to pay her own attorney’s fees. In the alternative, Husband contends that, even if
Wife is entitled to her attorney’s fees, the award should be decreased by the amount of
those fees Wife has already paid. In short, Husband asks this Court to reverse the trial
court’s award of alimony in solido; however, if we affirm the award, he asks us to reduce
                                            -9-
the amount of the award to $91,873.91, i.e., $121,873.81 in attorney’s fees less the
$30,000.00 Wife has paid.

       Turning to the record, Wife was awarded primarily non-liquid and non-income
producing assets as her share of the marital property. In addition to the marital home,
Wife was awarded $84,935.00 in assets, of which $10,990.00 consisted of retirement
accounts that would accrue significant penalties on early withdraw. Ostensibly, then,
Wife has liquid assets of $73,945.00 available. Wife submitted an affidavit from her
attorney showing 425.6 hours of services at a rate of $300.00 per hour with an additional
$193.81 in expenses, for a total billing of $127,873.81. Husband did not offer any
countervailing evidence concerning the reasonableness of Wife’s attorney’s fees.

      On remand, the trial court found, in relevant part, that

      Wife lacks sufficient funds to pay her legal expenses and would be required
      to deplete her resources in order to make even partial payment of her legal
      fees and expenses. . . . The Court further finds that Husband has the ability
      to pay Wife’s attorney fees and the greater ability to absorb those costs.

       In reviewing the trial court’s conclusions, we find guidance in the recent opinion
from this Court in Diffie v. Diffie, No. M2018-00267-COA-R3-CV, 2019 WL 1785683
(Tenn. Ct. App. 2019). In Diffie, a case factually analogous to the instant appeal, we
affirmed a trial court’s decision to award the wife alimony in solido as attorney’s fees
after determining that

      [a]lthough Wife was awarded a larger share of the marital estate, the bulk
      of what she received consisted of the marital residence, which is not an
      income-producing asset. Moreover, the trial court found that Husband had
      the ability to pay his attorney’s fees whereas Wife did not, and without an
      award of alimony in solido, Wife would be forced to sell the marital
      residence to pay for her attorney’s fees and expert witness expenses,
      thereby undercutting the reason for awarding her the residence.

Diffie, 2019 WL 1785683, at *14. Likewise, here, Wife’s primary share of the marital
estate was the marital residence. As discussed above, the liquid assets Wife received are
insufficient to cover her legal expenses without selling the marital home. Given their
respective work histories and current prospects, Husband clearly has the ability to pay all
of the attorney’s fees accrued in this case; Wife does not. Accordingly, Wife is entitled
to some amount of alimony in solido for attorney’s fees. We now turn to the question of
whether the trial court’s award of $121,873.81 should be reduced by the $30,000.00 Wife
paid toward this amount from her pendente lite support.


                                          - 10 -
       In its Memorandum Opinion and Order on Remand, the trial court found that

       Wife’s payments to her attorney while the divorce was pending came from
       her separate support funds, which was her only source of income, and were
       not paid from marital property. Under these circumstances, it would be
       inequitable to relieve Husband from payment of that portion of Wife’s
       attorney’s fees that Wife paid from her separate support funds. Based upon
       the relevant statutory factors that the Court must consider they favor an
       award of alimony in solido, and it is proper to assess Husband with
       payment of the total amount of Wife’s reasonable attorney’s fees, less a
       credit for his earlier $6,000.00 payment.

We disagree. As noted above, Wife received $7,500.00 per month in pendente lite
support, which allowed Wife the ability to pay $30,000.00 of her attorney’s fees. So, in
the first instance, at the time it made its award of alimony in solido, Wife did not owe the
amount she was awarded, i.e., $121,873.81. She owed $91,873.81. To charge Husband
with the full amount of fees, i.e., $121,873.81, would be inequitable in view of the fact
that the pendente lite support he paid to Wife was used to pay a portion of her attorney’s
fees. Accordingly, we modify the amount of the alimony in solido award to $91,873.81.

                              V. Attorney’s Fees on Appeal

        Wife asks this Court to award her attorney’s fees and costs on appeal. Litigants
must typically pay their own attorneys’ fees absent a statute or agreement providing
otherwise. See State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn.
2000). However, under proper circumstances, we may award attorney’s fees incurred on
appeal in a divorce case. Davis v. Davis, 138 S.W.3d 886, 890 (Tenn. Ct. App. 2003).
Our decision whether to award attorney’s fees on appeal in a divorce case implicates the
statutory factors set out at Tennessee Code Annotated section 36-5-121(i), which are the
same factors used by the trial court to determine whether a spouse should receive an
award for legal expenses incurred at the trial level. See Fox v. Fox, No. M2004-02616-
COA-R3-CV, 2006 WL 2535407 (Tenn. Ct. App. Sept. 1, 2006). When this Court
considers whether to award attorney’s fees on appeal, we must also be mindful of “the
ability of the requesting party to pay the accrued fees, the requesting party’s success in
the appeal, whether the requesting party sought the appeal in good faith, and any other
equitable factor that need be considered.” Parris v. Parris, No. M2006-02068-COA-R3-
CV, 2007 WL 2713723, at *13 (Tenn. Ct. App. 2007) (citations omitted). Given the
equities between the parties, our modifications to the trial court’s order, and all relevant
statutory factors, we conclude that Wife has the ability and means to bear her own
appellate costs, and we exercise our discretion to respectfully deny Wife’s request for
same.


                                           - 11 -
                                 V. Conclusion

       For the foregoing reasons, the trial court’s order is modified as follows.
Husband’s alimony in futuro obligation is reduced to $5,674 per month, prospective from
the date of entry of our judgment. Husband’s alimony in solido obligation is reduced to
$91,873.81. The trial court’s order is otherwise affirmed, and the case is remanded for
entry of judgment reflecting our modifications and for such further proceedings as may
be necessary and are consistent with this opinion. Costs of this appeal are assessed one-
half to the Appellee, Donica Ann Woods Ellis, and one-half to the Appellant, Richard
Alan Ellis, for which execution may issue if necessary.




                                                  _________________________________
                                                  KENNY ARMSTRONG, JUDGE




                                         - 12 -
