                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 August 28, 2012 Session

             LINDA M. PETTIGREW v. DENNIS A. PETTIGREW

                Appeal from the Chancery Court for Hamilton County
                 No. 09-0622 Hon. Jeffrey M. Atherton, Chancellor


            No. E2011-02706-COA-R3-CV-FILED-NOVEMBER 15, 2012


In this divorce case, the Trial Court awarded the wife her attorney's fees as alimony in solido.
The husband appeals this issue arguing that the wife's property settlement was such that she
should pay her attorney's fees out of the property settlement. On appeal, we affirm the Trial
Court.


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


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


Phillip C. Lawrence, Chattanooga, Tennessee, for the appellant, Dennis A. Pettigrew.

Robin L. Miller, Chattanooga, Tennessee, for the appellee, Linda M. Pettigrew


                                          OPINION

                                         Background

       Plaintiff, Linda Pettigrew (“wife”), filed a Complaint for Divorce against defendant,
Dennis Pettigrew (“husband”), and alleged irreconcilable differences. The Complaint stated
that the parties’ two children were grown, and that they had assets and debts that needed to
be divided. She also asked for temporary and permanent support, as she had not been
employed for many years, and also sought an award of attorney’s fees.
       A mediator was appointed, and the parties met but could not resolve their issues.

        The Court entered an Order for Partial Distribution of Marital Funds, stating that a
hearing was held on the wife’s motion, at which the parties announced an agreement on the
motion, which the Court adopted. The Court ordered an advance of $500,000 from marital
assets to the wife, and the Court directed the husband to select the assets to be liquidated to
set aside the amount awarded.

       Ultimately, the award was made to the wife, after she had filed a Motion for Contempt
upon the husband's refusal to comply with the Court's Order.

       Subsequently, the Court entered an Order on the wife's Motion for Temporary
Support, Attorney's Fees and Expenses, and found that the wife needed funds to pay her bills
and her attorney, and ordered the husband to pay certain bills, and to pay $19,046 in
temporary attorney’s fees, and that the Court would then determine at a final hearing whether
this amount would be considered temporary alimony or an advance on the wife’s share of the
marital estate.

       Upon the trial of the case, the Court said it was reluctant to grant a divorce to one
party or the other, because of their conduct, then declared the parties divorced pursuant to
Tenn. Code Ann. §36-4-129(b).

       The Trial Court adopted the parties’ stipulation regarding the division of personal
property, and the Court considered the values of the marital estate as well as the factors listed
in Tenn. Code Ann. §36-4-121(c) in making an equitable distribution. The Court found that
the marriage was of long duration (31 years), that the wife was aged 54 and the husband was
aged 64, and that both parties were highly educated, the wife had her master’s degree in
social work, and was looking for employment as a grief counselor, although she had not
worked since 2005 or 2006.

       The Court found the husband had been paying the wife monthly support of $3,000,
as well as paying the mortgage payments on both residences, and that the wife's
income/expense statement showed a need of $7,865, while the husband's showed an overage
of $11,242, with his current severance package payments.

        The Court found the wife was clearly an economically disadvantaged spouse, and that
rehabilitative alimony was not feasible, but found that alimony in futuro was also not
appropriate because of the husband’s age and employment uncertainties. The Court found
that transitional alimony would be the best choice to make the wife self-sufficient. The Court
found that, while the husband testified that his employment prospects were not good, he was

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an “industrious individual who will not be satisfied with simply retiring.” The Court
awarded seven years of traditional alimony to the wife, with payments of $4,500 per month
in year 1, and then reduced the payments by $500 per year, placing the year seven payments
at $1,500.

       The court also awarded the wife her attorney’s fees as alimony in solido, finding she
should not have to deplete her resources to pay her attorney’s fees, particularly in light of her
lack of employment. The attorney's fees amount was stipulated as reasonable by the parties.

       The husband has appealed, and the issue raised on appeal is whether the Trial Court
abused its discretion in awarding attorney’s fees to the wife who was also awarded sufficient
liquid assets from the marital estate to pay her attorney?

      The husband argues the Trial Court improperly awarded the fees, because she had
been given $500,000 in liquid assets from the marital estate, but he concedes that this type
of award is reviewed under an abuse of discretion standard.

        This Court can 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 employed reasoning that causes an injustice to the
complaining party. Burton v. Mooneyham, 2012 WL 1070121 (Tenn. Ct. App. Mar. 29,
2012). This standard does not permit an appellate court to substitute its judgment for that
of the trial court, but “reflects an awareness that the decision being reviewed involved a
choice among several acceptable alternatives, and thus envisions a less rigorous review of
the lower court's decision and a decreased likelihood that the decision will be reversed on
appeal.” Gonsewski v. Gonsewski, 350 S.W.3d 99,105-06 (Tenn. 2011). Accordingly, when
reviewing a discretionary decision by the trial court, such as an alimony determination, the
appellate court will presume that the decision is correct and will review the evidence in the
light most favorable to the decision. Id.

       In this case, the Trial Court found the husband had a greater earning capacity. Neither
party was employed at the time of trial, but the husband was drawing a severance package
that gave him $35,000 per month. The Court found that the husband was “industrious”, and
would not be satisfied to simply retire. The husband had an earning capacity much greater
than the wife during the marriage, and had worked more outside the home than the wife. The
Court found the marriage was of long duration, and that neither party had any significant
health problems that would impact on employment.

      The Court also discussed the general rule that a “spouse with adequate property and
income is not entitled to an award of alimony to pay attorney's fees and expenses.” Citing

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Umstot v. Umstot, 968 S.W.2d 819, 824 (Tenn. Ct. App. 1997)). The Court further
recognized that “[s]uch 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. Citing Houghland v. Houghland, 844
S.W.2d 619, 623 (Tenn. Ct. App. 1992), Harwell v. Harwell, 612 S.W.2d 182, 185 (Tenn.
Ct. App. 1980). The Court found that, in this case, the wife was unemployed, and payment
of her attorney’s fees would require her to deplete the resources she was awarded, such that
an award of fees as alimony in solido was warranted.

      The evidence does not preponderate against these factual determinations. Tenn. R.
App. P. 13(d).

        We are required to uphold the Trial Court's ruling as long as reasonable minds could
disagree about its correctness, and we are not permitted to substitute our judgment for that
of the trial court. Burton v. Mooneyham, 2012 WL 1070121 (Tenn. Ct. App. Mar. 29, 2012).
As such, we cannot say that the Trial Court abused its discretion in awarding the wife her
attorney’s fees as alimony in solido. The wife had a greater need, and the husband had the
ability to pay, and considering this along with all the other statutory factors, alimony in solido
in the form of an attorney's fee award was appropriate. We tax the cost of the appeal against
the husband, Dennis A. Pettigrew.




                                                     _________________________________
                                                     HERSCHEL PICKENS FRANKS, P.J.




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