                                                                                       03/26/2019


               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                              February 12, 2019 Session

          LISA LYON WILLIAMS v. LANE EDWARD WILLIAMS

               Appeal from the Chancery Court for Madison County
                    No. 74473 James F. Butler, Chancellor
                    ___________________________________

                          No. W2018-00800-COA-R3-CV
                      ___________________________________

This is a divorce case. Husband/Appellant appeals the trial court’s: (1) award of alimony
in futuro to Wife; (2) award of alimony in solido for Wife’s attorney’s fees; and (3)
classification of certain jewelry as Wife’s separate property. We affirm.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which, ANDY D. BENNETT
and ARNOLD B. GOLDIN, JJ., joined.

David W. Camp, Jackson, Tennessee, for the appellant, Lane Edward Williams.

Alicia A. Howard, Memphis, Tennessee, for the appellee, Lisa Lyon Williams.

                                       OPINION

                                    I. Background

       Appellant Lane Edward Williams (“Husband”) and Appellee Lisa Lyon Williams
(“Wife”) were married in August 1995. One child, now an adult, was born to the
marriage. When the parties met, Wife was a critical-care nurse in an open-heart intensive
care unit, and Husband was a medical resident at Brookdale Hospital in New York. The
parties lived and worked together in New York until Husband completed his residency in
1994. Upon completing his residency, the parties moved to a small town in Iowa for
Husband’s career, and they married in 1995. By this time the parties were expecting a
child. The parties mutually decided that Wife should stay home to care for their child.
After living in Iowa for a few years, the parties moved to Illinois for Husband’s job. In
2005, the parties moved to Jackson, Tennessee, where they lived at the time of the
divorce. During their time in Jackson, Husband passed his board certification and
became a fellow in obstetrics and gynecology. Wife’s North Carolina nursing license
expired in 2005 after the parties moved to Jackson.

       Although Wife did not work outside the home from 1995 until 2010, in 2004, she
became a licensed minister and was ordained in 2008. From June 2010 through October
2011, Wife worked as an interim pastor for a small church in Dyersburg, Tennessee.
Wife studied at Memphis Theological Seminary and eventually received her Master in
Divinity Degree. She then worked as an adjunct professor at the seminary from January
2014 through May 2016. To further her education in ministry, Wife moved to Durham,
North Carolina, her original home, in June 2016 where she interned as a chaplain at the
Veteran’s Hospital Medical Center. In June 2017, she began her chaplain residency at
the University of North Carolina Hospital at Chapel Hill. Wife currently lives in North
Carolina.

        Both parties testified regarding Wife’s move to North Carolina. Wife testified that
she and Husband discussed divorcing prior to her leaving Jackson, Tennessee. Husband
testified that he did not want Wife to attend school in North Carolina and that before
leaving for North Carolina, Wife did not communicate to him her plans to file for divorce
and move permanently to North Carolina. Husband testified that he believed Wife was
visiting family in North Carolina and assumed that she would return to Tennessee to live
with him.

       On June 10, 2016, Wife filed a complaint for divorce against Husband in the
Chancery Court of Madison County, Tennessee (“trial court”). As grounds, Wife alleged
irreconcilable differences and inappropriate marital conduct. On September 8, 2016,
Husband filed an answer and counter-complaint for divorce. In his answer, Husband
admitted the parties had irreconcilable differences but denied inappropriate marital
conduct on his part. In his counter-complaint for divorce, Husband also alleged
irreconcilable differences and inappropriate marital conduct by Wife. On November 28,
2016, Wife filed an answer to the counter-complaint admitting irreconcilable differences
but denying inappropriate marital conduct on her part.

       On July 7, 2016, Wife filed a motion for pendente lite support. Wife asserted in
her motion that after being served with the divorce, Husband withdrew all funds from the
parties’ joint account, leaving her with no money. On November 4, 2016, the trial court
heard Wife’s motion and ordered pendente lite support in the amount of $4,900.00 per
month. The trial court also awarded Wife $5,000.00 in attorney’s fees.

        The case was tried on October 23, 2017. On December 18, 2017, the trial court
entered the final decree of divorce. Later, on December 27, 2017, the trial court issued a
letter ruling, wherein it found that both parties had some measure of fault in the breakup
of the marriage, but found Husband to be more at fault. The trial court also divided the
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marital property and marital debts. Additionally, the trial court: (1) ordered Husband to
pay Wife $4,000.00 per month in alimony in futuro; (2) ordered Husband to pay Wife
$4,000.00 as alimony in solido for attorney’s fees; and (3) found that Wife’s jewelry were
gifts from Husband and, as such, were her separate property. On April 13, 2018, the trial
court entered a supplemental final decree of divorce incorporating its letter ruling.
Husband appeals.

                                       II. Issues

      Husband raises three issues for review, which we restate as follows:

   1. Whether the trial court erred when it awarded Wife $4,000.00 per month in
      alimony in futuro.

   2. Whether the trial court erred when it ordered Husband to pay Wife $4,000.00 as
      alimony in solido for her attorney’s fees.

   3. Whether the trial court erred when it classified all of the jewelry as Wife’s
      separate property.

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

                                III. Standard of Review

       “We review a non-jury case de novo upon the record with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is
otherwise.” Tennessee Farmers Mut. Ins. Co. v. Debruce, No. E2017-02078-COA-R3-
CV, 2018 WL 3773912, at *3 (Tenn. Ct. App. Aug. 9, 2018) (citing Tenn. R. App. P.
13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)). The trial court’s conclusions
of law are reviewed de novo and “are accorded no presumption of correctness.”
Brunswick Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d 638, 642 (Tenn. 2008).

                                      IV. Analysis

                                 A. Alimony in Futuro

       Trial courts have broad discretion in awarding spousal support. Bratton v.
Bratton, 136 S.W.3d 595, 605 (Tenn. 2004). “Appellate courts are generally disinclined
to second-guess a trial judge’s spousal support decision” absent a trial court’s abuse of
discretion. Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998). The trial
court abuses its discretion when it applies the incorrect legal standard and reaches a
decision that is clearly unreasonable. Bogan v. Bogan, 60 S.W.3d 721, 733 (Tenn. 2001)
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(citing Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999)).

        Pursuant to Tennessee Code Annotated section 36-5-121(d)(1), “[t]he court may
award rehabilitative alimony, alimony in futuro, also known as periodic alimony,
transitional alimony, or alimony in solido . . . .” Tenn. Code Ann. § 36-5-121(d)(1).
“[A] court may award alimony to an economically disadvantaged spouse. Once the trial
court has found a party to be economically disadvantaged relative to his or her spouse, it
must determine the nature, amount, length of term, and manner of payment of the award.”
Perry v. Perry, 114 S.W.3d 465, 467 (Tenn. 2003). The General Assembly has indicated
its preference for rehabilitative alimony, if rehabilitation is possible, to allow for the
economically disadvantaged spouse

      to achieve, with reasonable effort, an earning capacity that will permit the
      economically disadvantaged spouse’s standard of living after the divorce to
      be reasonably comparable to the standard of living enjoyed during the
      marriage, or to the post-divorce standard of living expected to be available
      to the other spouse, considering the relevant statutory factors and the
      equities between the parties.

Tenn. Code Ann. § 36-5-121(d)(2). In determining the type and amount of alimony, the
trial court is to consider the following statutory factors, which are set out at Tennessee
Code Annotated Section 36-5-121(i), to-wit:

      (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;

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      (7) The separate assets of each party, both real and personal, tangible and
      intangible;

      (8) The provisions made with regard to the marital property;

      (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.

       All relevant statutory factors are to be considered by the trial court, but “the two
that are considered the most important are the disadvantaged spouse’s need and the
obligor spouse’s ability to pay.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 110 (Tenn.
2011) (quoting Riggs v. Riggs, 250 S.W.3d 453, 457 (Tenn. Ct. App. 2007)); see Burlew
v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001) (quoting Aaron v. Aaron, 909 S.W.2d 408,
410 (Tenn. 1995) (“When deciding whether rehabilitation is possible, and, in general,
determining the proper form and amount of alimony, courts must consider the ‘relevant
factors’ set forth in section [36-5-121(i)], but ‘the real need of the spouse seeking the
support is the single most important factor. In addition to the need of the disadvantaged
spouse, the courts most often consider the ability of the obligor spouse to provide
support.’”)).

      Concerning the award of alimony, the trial court found:

              From the evidence in the record, the [c]ourt finds that this is a case
      for alimony in futuro, even though Wife is employed. Husband has been in
      his chosen field for some 22 years all during the marriage. Wife has only
      recently ventured into the workforce again and her income will be lower.
      While alimony is traditionally to provide financial support to a spouse who
      cannot be rehabilitated, it is also designed to continue the support that was
      incident to the marriage relationship and it is appropriate when the spouse
      cannot be rehabilitated. Rehabilitated means to achieve, with a reasonable
      effort, a comparable standard of living to that during the marriage, or which
      the other spouse will enjoy after the divorce. It is for an indefinite amount,
      payable in further periodic installments, and contingent upon the death or
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       remarriage of the recipient and possibly on the death of the obligor, or other
       contingencies as imposed by the [c]ourt or statute. The [c]ourt finds Wife
       will not be able to achieve a comparable standard of living to that during
       the marriage.

               In this case, the parties have been married 22 years[,] which is a long
       term marriage. Wife has devoted her married life to being a stay at home
       parent and wife, with all parties’ agreement. They have one child who is
       now an adult and in college. Husband makes some 12 to 13 times what
       [W]ife earns. The parties have moved several times to facilitate Husband’s
       career. Wife testified, unrebutted, that she made things easy for him to
       work, and also attended functions and networked with him to further his
       career. Wife did non-profit and community work for his career. The
       parties’ property division will be relatively equal. Both parties are in good
       health. The parties enjoyed a relatively high standard of living established
       during the marriage. The [c]ourt finds [] Husband to be more at fault in the
       breakup of the marriage. Because of the passage of the new Tax Reform
       Act, it is unclear what the tax implications of the alimony are. The [c]ourt
       is unsure if it is going to be deductible to [] Husband and taxable to [] Wife.
       The parties have indicated they are going to sell the marital home which
       consumes over $2,000.00 per month in payment. The [c]ourt is also aware
       that many of [] Husband’s expenses are for him and the adult child per his
       testimony, and that a considerable amount of his expenses have to do with
       contributions to charity and savings for the son’s education expenses,
       which are not legally factors the [c]ourt can consider.

               Based on the testimony and the Exhibits, the [c]ourt finds that
       Wife’s reasonable expenses, after some adjustment by the [c]ourt based on
       testimony, are $6,700.00 per month. Wife’s net income is found to be
       $2,666.00 per month.        Husband’s reasonable expenses, after some
       adjustments based upon the testimony, are found to be $12,500.00 per
       month. Husband’s net income is found to be $23,622.00 per month. Wife
       is awarded alimony in futuro in the amount of $4,000.00 per month
       beginning January 1, 2018, and monthly thereafter pending further orders
       of the [c]ourt, Wife’s remarriage, or a material change in circumstances.

        From the trial court’s findings, supra, it is clear that the trial court correctly
considered the relevant factors under Tennessee Code Annotated section 36-5-121(i)
when it awarded Wife alimony in futuro. Nonetheless, Husband argues that because
Wife has a job and the ability to be self-sufficient, the trial court should have denied her
alimony. In the alternative, Husband argues that the trial court should have awarded
either transitional or rehabilitative alimony rather than alimony in futuro. Husband cites
both common and statutory law for the proposition that a court should only award
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alimony in futuro when it finds that economic rehabilitation is not feasible. The
Legislature, at Tennessee Code Annotated section 36-5-121(d)(2), defines rehabilitation
as follows:

       To be rehabilitated means to achieve, with reasonable effort, an earning
       capacity that will permit the economically disadvantaged spouse’s standard
       of living after the divorce to be reasonably comparable to the standard of
       living enjoyed during the marriage, or to the post-divorce standard of living
       expected to be available to the other spouse, considering the relevant
       statutory factors and the equities between the parties.

Tenn. Code Ann. § 36-5-121(d)(2). Here, the trial court made a specific finding that
Wife could not be rehabilitated as defined by the statute. Given the disparity between the
parties’ incomes and earning capacities, Husband has not demonstrated that Wife would
ever be able to achieve a standard of living that would be reasonably comparable to the
parties’ standard of living during the marriage, or to Husband’s standard of living post-
divorce.

        Turning to the record, it is clear that Wife put her career on hold to be a stay at
home mother, while also helping to advance Husband’s career. The parties moved to
three cities for Husband’s jobs; Wife was actively involved in community service
organizations and attended networking functions with Husband—all in furtherance of his
career. Wife was unemployed for fifteen years while she helped Husband advance his
career. During the marriage, Husband developed a very lucrative practice. In 2016, his
adjusted gross income was $455,176.00. Husband’s employment is steady, and there is
no evidence to suggest Husband will leave his employment or earn a lower income in the
near future. Husband’s substantial salary allowed the parties to enjoy a very comfortable
lifestyle during the marriage. The parties shared a large marital home. They traveled
extensively and enjoyed dining out often at expensive restaurants. After the parties
separated, Wife enrolled in a residency program to become a board certified chaplain,
and received a $32,000.00 yearly stipend, from which she paid tuition and living
expenses. Once she receives board certification, Wife testified that she expects to make
approximately $40,000.00 to $50,000.00 per year, which is far less than Husband’s
current or expected income in the future.

       The trial court found that Wife had monthly expenses of $6,700.00, and that
Husband had monthly expenses of $12,500.00. At the time of trial, Husband’s net
income was $23,622.00 per month; Wife’s yearly stipend was $32,000.00. According to
Wife’s testimony, the highest salary she can make in the future as a board certified
chaplain is $50,000.00. Accordingly, the evidence clearly shows that Wife is
economically disadvantaged relative to Husband, and Husband has the ability to pay the
alimony in futuro award of $4,000.00 per month. Contrary to Husband’s argument, Wife
will not be able to achieve a comparable standard of living to that enjoyed by the parties
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during the marriage. This, coupled with Husband’s ability to pay alimony in futuro,
supports the trial court’s award of alimony in futuro in this case.

                                 B. Alimony in Solido

       The trial court awarded Wife $9,000.00 total in alimony in solido ($5,000.00 by
order of November 4, 2016 and an additional $4,000.00 in the final decree). Husband
argues that the trial court erred in awarding Wife alimony in solido for her attorney’s
fees. As explained by the Tennessee Supreme Court,

      [i]t 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). . . . 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, 350 S.W.3d at 113 (citations omitted). As discussed, supra, the trial court
must consider all relevant statutory factors, but “the two that are considered the most
important are the disadvantaged spouse’s need and the obligor spouse’s ability to pay.”
Riggs, 250 S.W.3d at 457.

       Husband contends that the award of attorney’s fees is improper for several
reasons. First, he argues that having been ordered to pay $5,000.00 towards Wife’s
attorney’s fees, he should not be required to pay more. Second, he argues that Wife will
be able to pay her attorney’s fees based on the trial court’s award of alimony in futuro
and its division of marital assets. Finally, he argues that Wife “draws a steady income in
the amount of $32,000.00” per year and her income should increase to $53,000.00 after
June 2018; therefore, she has the ability to pay her attorney’s fees.

       Contrary to Husband’s arguments, the record shows that Wife’s alimony in futuro
award is sufficient to cover only her living expenses. Exhibit 25 from the trial
demonstrates that Wife’s attorney’s fees totaled $11,289.93. Alimony in solido “awards
are appropriate only when the spouse seeking them lacks sufficient funds to pay his or
her own legal expenses . . . or would be required to deplete his or her resources in order
to pay these expenses.” Riggs, 250 S.W.3d at 459 (citing Houghland v. Houghland, 844
S.W.2d 619, 623 (Tenn. Ct. App. 1992); Harwell v. Harwell, 612 S.W.2d 182, 185
                                           -8-
(Tenn. Ct. App. 1980)). Given that the alimony in futuro award, coupled with her salary,
is sufficient to cover only her monthly living expenses, payment of the remaining balance
of Wife’s attorney’s fees would require Wife to deplete some of the assets she received in
the divorce to cover these fees.

       In reaching its decision on alimony in solido, the trial court considered the factors
set out at Tennessee Code Annotated section 36-5-121(i), particularly the two most
important factors, “the disadvantaged spouse’s need and the obligor spouse’s ability to
pay.” Riggs, 250 S.W.3d at 457. As discussed above, the evidence demonstrates that
Husband’s income is substantially more than Wife’s income, and she is economically
disadvantaged relative to him. Furthermore, Wife lacks sufficient funds to pay her legal
expenses absent depletion of her limited resources. Given the equities between the
parties, we conclude that the evidence preponderates in favor of the trial court’s award of
alimony in solido. Furthermore, by any measure, the alimony in solido award for
attorney’s fees is minimal here considering the income of the Appellant.

                  C. Classification of Jewelry as Separate Property

      Husband asserts that the trial court erred when it found that Wife’s jewelry, valued
at $161,535.42, was her separate property. Regarding the classification of property in a
divorce, this Court has explained that

       “[q]uestions regarding the classification of property as either marital or
       separate, as opposed to questions involving the appropriateness of the
       division of the marital estate, are inherently factual.” Owens v. Owens, 241
       S.W.3d 478, 485 (Tenn. Ct. App. 2007) (citations omitted). As such, we
       employ the familiar standard of review outlined in Rule 13(d) of the
       Tennessee Rules of Appellate Procedure. Bilyeu v. Bilyeu, 196 S.W.3d
       131, 135 (Tenn. Ct. App. 2005). “As a general rule, assets acquired by
       either spouse during the marriage are presumed to be marital property.”
       Owens, 241 S.W.3d at 485 (citations omitted). Moreover, when a spouse
       seeks to assert that an asset acquired during the marriage is separate
       property, he or she bears the burden of proving that fact by a preponderance
       of the evidence. Id. at 485-86 (citations omitted).

Bewick v. Bewick, No. M2015-02009-COA-R3-CV, 2017 WL 568544, at *7 (Tenn. Ct.
App. Feb. 13, 2017).

       Tennessee Code Annotated section 36-4-121(b)(2)(D) provides that “[p]roperty
acquired by a spouse at any time by gift, bequest, devise or descent” is separate property.
Tenn. Code Ann. § 36-4-121(b)(2)(D). Husband argues that he purchased the jewelry as
an investment during the marriage. Wife contends that the pieces of jewelry were gifts
from Husband during the marriage.
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        Turning to the record, the evidence does not preponderate against the trial court’s
classification of Wife’s jewelry as her separate property. Although Husband claims that
he purchased the jewelry as an investment, during cross-examination he admitted that
Wife wore the jewelry during the marriage. Wife testified that she wore all of the pieces
during the marriage, to-wit:

       Q: Did your husband ever have any discussion with you that the items he
       was purchasing, the jewelry items that he was purchasing that those items
       were purchased as investments?

       A: Not -- no. Not to resell them at any point in time. I wore all of that
       jewelry. I wore it.

       Q: And do you still wear it?

       A: Yes. What I still have of it. I do still wear it.

       Q: Have you ever witnessed any activity or heard any conversation where
       your husband was engaged in transactions regarding the investment
       business of jewelry?

       A: Never.

        Having reviewed the evidence in accordance with Tennessee Rule of Appellate
Procedure 13(d), we conclude that the evidence does not preponderate against the trial
court’s classification of Wife’s jewelry as her separate property. Therefore, we affirm the
trial court’s determination of the jewelry as Wife’s separate property.

                          D. Wife’s Attorney’s Fees on Appeal

       One day before oral arguments, Wife filed a motion asking this Court to award her
attorney’s fees incurred on appeal. Wife did not designate her request for appellate
attorney’s fees as an issue in her statement of the issues section of her appellate brief.
The Tennessee Supreme Court has explained that

       []when a party is seeking attorney fees incurred on an appeal, that request,
       absent any statute or rule directing otherwise, must be directed first to the
       appellate court in a timely fashion.[] Our rules of appellate procedure
       require an appellant to set forth in his or her brief “[a] statement of the
       issues presented for review.” Tenn. R. App. P. 27(a)(4). A claim for
       appellate attorney’s fees is an issue that should be set before the appellate
       court because a remand to the trial court is not a foregone conclusion. Also
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      . . . subsection (a)(8) of Rule 27 provides that an appellant’s brief shall
      contain “[a] short conclusion, stating the precise relief sought.” Tenn.
      R.App. P. 27(a)(8). An award of attorney’s fees generated in pursuing the
      appeal is a form of relief; the rule requires it to be stated.

Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d 406, 410-11 (Tenn. 2006). These
rules likewise apply to appellees. Tennessee Rule of Appellate Procedure 27(b) provides
that

      [t]he brief of appellee and all other parties shall conform to the foregoing
      requirements, except that items (3), (4), (5) (6) and 7(B) of subdivision (a)
      of this rule need not be included except to the extent that the presentation
      by the appellant is deemed unsatisfactory. If appellee is also requesting
      relief from the judgment, the brief of the appellee shall contain the
      issues and arguments involved in his request for relief as well as the
      answer to the brief of appellant.

Tenn. R. App. P. 27(b) (emphasis added). “Courts have consistently held that issues
must be included in the Statement of Issues Presented for Review required by Tennessee
Rules of Appellate Procedure 27(a)(4) [and 27(b)]. An issue not included is not properly
before the Court of Appeals.” Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App.
2001). By failing to include the issue of attorney’s fees incurred on appeal in her brief,
Wife has waived same.

                                     V. Conclusion

       For the foregoing reasons, we affirm the judgment of the trial court. The case is
remanded for such further proceedings as are necessary and consistent with this opinion.
Costs of the appeal are assessed against the Appellant, Lane Edward Williams, and his
surety, for all of which execution may issue if necessary.



                                                   _________________________________
                                                   KENNY ARMSTRONG, JUDGE




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