                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   APRIL 22, 2004 Session

    WILLIAM ANTHONY BACIGALUPO v. MARY DARLENE RAINES
                 BLACKNALL BACIGALUPO

                    Direct Appeal from the Circuit Court for Dyer County
                              No. 00-101    Lee Moore, Judge



                    No. W2003-01578-COA-R3-CV - Filed October 4, 2004


This case arises from the divorce proceedings of Husband and Wife. Husband filed for a divorce
from Wife, citing inappropriate marital conduct and irreconcilable differences as grounds for a
divorce. Wife filed her answer and counterclaim, stating she was entitled to a divorce on the basis
of inappropriate marital conduct and adultery. The trial court granted Wife a divorce, established
Wife as the primary residential parent of Child, divided the parties’ marital property, set alimony
payments Husband must pay to Wife, imposed a lien on Husband’s property to secure the property
division and support payments, and awarded Wife a portion of her attorney’s fees incurred as a result
of the proceedings. For the following reasons, we affirm in part, reverse in part, and remand for
further proceedings consistent with this opinion.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

James A. Hamilton, III, Dyersburg, TN, for Appellant

Thomas H. Strawn, Dyersburg, TN, for Appellee

                                            OPINION

                                  Facts and Procedural History

       William Anthony Bacigalupo (“Husband” or “Appellant”) and Mary Darlene Bacigalupo
(“Wife,” “Appellee,” or, collectively with Husband, “the parties”) were married on October 22,
1994, in Dyer County, Tennessee. The parties had one child of the marriage, Amanda Jane
Bacigalupo (“Child”), born on April 23, 1996. Both parties had married once before, but neither
Husband nor Wife had children from their respective prior marriages. Husband, however, had two
stepchildren, Elisha and Hunter Evans, from his prior marriage to Tammy Peel.

        Husband obtained his undergraduate degree from the University of Tennessee at Martin,
graduated from the Southern College of Optometry, and is an optometrist, having his practice in
Dyersburg, Tennessee. At the time of the parties’ marriage in 1994, Husband was a sole practitioner
of Vision Center (“VC”), which later became an S corporation. However, Wife worked to pay off
approximately $88,000 on the second mortgage of the VC building. In April 1996, Husband merged
his practice with that of another optometrist, Dr. Brian Robinson (“Dr. Robinson”), establishing a
partnership with an interest division of 51/49 percent between Husband and Dr. Robinson,
respectively. Husband personally owns the real property for VC, while VC has assets of equipment,
receivables, records, and furniture. In April 2000, Dr. Robinson became an equal partner with
Husband, each owning a 50% interest in VC. During the marriage, Husband and Dr. Robinson
constructed a 3,000 square-foot addition to the VC building, for which Wife guaranteed the loan.
Additionally, in April 1997, Husband and Dr. Robinson acquired another practice, which became
a limited liability company named Visual Options (“VO”) and was originally located at the
Dyersburg mall. After the 5-year lease with the mall expired in April 2002, Husband and Dr.
Robinson took out a loan from First Citizens National Bank and relocated VO to the property
adjacent to the VC property. The trial court found that Husband’s earning capacity, based on
Husband’s tax returns for the previous years, was between $225,000 and $250,000 per year.

        Wife holds an undergraduate degree in business administration with a major in accounting
from the University of Tennessee at Martin. Additionally, Wife has taken some courses for credit
towards her master’s degree. At the time of the parties’ marriage, Wife was employed by Dyersburg
State Community College (“DSCC”), working as the director of continuing education and earning
between $31,000 and $32,000 per year. Subsequently, after the second mortgage on the VC property
was paid off, Wife resigned from her position at DSCC and began to work for Husband at VC and
VO. Wife testified that she worked four to five days a week for two to three hours per day at the
optometry clinic. Although the trial court found that most of the business decisions were made by
Dr. Robinson and Husband, it found that Wife prepared payrolls, conducted interviews, and
organized staff meetings. Since December 2000, Wife has worked for the University of Tennessee
in a temporary position that is renewed yearly, earning $28,700 per year. The trial court found that
Wife’s earning capacity ranged between $25,000 and $45,000 annually.

       Child suffers from a hearing impairment, requiring the use of a hearing aid to improve her
speech discrimination. Despite this impairment, Child’s teacher testified that Child was an
exceptional student and always well-prepared for school. Child had advanced far enough in school
such that she would receive additional reading instruction from the class a grade above her own.

       At the time of the marriage, both Husband and Wife owned their own home and each home
was subject to a mortgage. The parties sold their homes and purchased a marital home. Eventually,
that home was sold, and the parties moved into the current marital home, which was subject to a
mortgage in the amount of $257,572 at the time of divorce.


                                                -2-
        In January 2000, Husband began having an affair with one of his employees, Tracy Miller
(“Miller”). At first, upon being questioned by Wife, Husband denied that he was having an affair.
Wife later found out about Husband’s affair in February 2000. Subsequently, the parties sought
marriage counseling from their minister, Paul Helton. Additionally, Husband sought counseling
from Dr. Carolyn West-Willette, a licensed psychologist, and Wife sought counseling from Dr. John
Leite, also a licensed psychologist. Further, Wife attended the Caron Foundation for more
psychotherapy to address her personal issues of growing up with a father who was an alcoholic.

        On June 29, 2000, Husband filed for a divorce from Wife, citing inappropriate marital
conduct and irreconcilable differences as grounds for divorce. On July 19, 2000, Wife filed her
answer and counter-complaint for divorce, alleging inappropriate marital conduct and adultery. After
a hearing on January 6 and 9, 2003, the trial court issued a memorandum opinion, two amendments
to such opinion, and a final decree of divorce. The trial court awarded Wife a divorce on the basis
of inappropriate marital conduct and adultery, established that Wife would be the primary residential
parent for Child, set Husband’s child support payments to Wife at $2,108 per month with an
additional $300 per month to be placed in an education account for Child, divided the marital
property, set Husband’s alimony payments to Wife at $1,000 per month for a period of five years,
and ordered Husband to pay $10,000 of Wife’s attorney’s fees, leaving the balance to be paid by
Wife. Husband filed his notice of appeal to this Court and presents the following issues, as we
perceive them, for our review:

       I.      Whether the trial court erred when it refused to appoint a guardian ad litem for Child
               and/or to subject the parties to a psychological evaluation;
       II.     Whether the trial court erred in its division of marital assets;
       III.    Whether the trial court erred when it imposed a lien on Husband’s assets to secure
               the payment of the property settlement, child support, and alimony;
       IV.     Whether the trial court erred when it refused to hear testimony regarding the nature
               and value of the marital personal property;
       V.      Whether the trial court erred when it awarded Wife alimony for a period of five
               years, given the short duration of the marriage; and
       VI.     Whether the trial court erred when it awarded Wife $10,000 for her attorney’s fees.

For the following reasons, we affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion.

                                       Standard of Review

        We review a trial court’s division of marital property de novo upon the record, affording a
presumption of correctness to the trial court’s findings of fact. Tenn. R. App. P. 13(d); Dellinger
v. Dellinger, 958 S.W.2d 778, 780 (Tenn. Ct. App. 1997) (citing Hass v. Knighton, 676 S.W.2d 554,
555 (Tenn. 1984); Dalton v. Dalton, 858 S.W.2d 324, 327 (Tenn. Ct. App. 1993)). This Court is
mindful that trial courts are given wide discretion by appellate courts with respect to the manner in


                                                -3-
which they divide marital assets, and, therefore, marital property divisions are given great weight by
this Court on appeal. Dellinger, 958 S.W.2d at 780 (citing Wade v. Wade, 897 S.W.2d 702, 715
(Tenn. Ct. App. 1994); Wallace v. Wallace, 733 S.W.2d 102, 106 (Tenn. Ct. App. 1987)). With
regard to an award of alimony, trial courts are given wide discretion because the amount and duration
of such alimony awards are affected by the court’s findings of fact in consideration of the factors
contained in Tenn. Code Ann. § 36-5-101(d)(1). Vaughn v. Vaughn, No. E2000-02281-COA-R3-
CV, 2001 Tenn. App. LEXIS 572, at *4 (Tenn. Ct. App. Aug. 7, 2001) (citing Siegel v. Siegel, No.
02A01-9708-CH-00198, 1999 Tenn. App. LEXIS 139 (Tenn. Ct. App. Mar. 5, 1999)). As such, this
Court must uphold an alimony award unless the trial court has abused its discretion. Id. (citing
Siegel, 1999 Tenn. App. LEXIS 139 (citing Hanover v. Hanover, 775 S.W.2d 612 (Tenn. Ct. App.
1989))). Additionally, an award of attorney’s fees is likewise within the discretion of the trial court,
and we will not interfere with such an award absent a clear showing of an abuse of discretion. Aaron
v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995) (citing Storey v. Storey, 835 S.W.2d 593, 597 (Tenn.
Ct. App. 1992); Crouch v. Crouch, 385 S.W.2d 288, 293 (Tenn. Ct. App. 1964)).

                      Guardian Ad Litem and Psychological Examination

        First, Husband argues that the trial court erred when it refused to appoint a guardian ad litem
or order a psychological examination of the parties to determine what custody arrangement would
be in Child’s best interest. We begin by noting that, in general, the appointment of a guardian ad
litem for a child is a decision within the discretion of the trial court. See Tenn. R. Civ. P. 17.03; see
also 24A Am. Jur. 2d Divorce and Separation § 966 (1998). Additionally, Tenn. R. Civ. P. 35.01
states what is required by a moving party to establish the necessity of ordering a physical or mental
examination of a party to a civil suit:

                When the mental or physical condition (including the blood group) of a party,
        or of a person in the custody under the legal control of a party, is in controversy, the
        court in which the action is pending may order the party to submit to a physical or
        mental examination by a suitably licensed or certified examiner or to produce for
        examination the person in his or her custody or legal control. The order may be made
        only on motion for good cause shown and upon notice to the person to be examined
        and to all parties and shall specify the time, place, manner, conditions, and scope of
        the examination and the person or persons by whom it is to be made.


Tenn. R. Civ. P. 35.01. “If formal or informal discovery leads to the production of existing
examination records, the moving party will not be entitled to insist on further examinations unless
it can demonstrate that the prior examinations are insufficient for its purposes.” Odom v. Odom, No.
M1999-02811-COA-R3-CV, 2001 Tenn. App. LEXIS 881, at *20 (Tenn. Ct. App. Dec. 5, 2001).

        In this case, we cannot say the trial court erred when it denied Husband’s motion for the
parties to submit themselves to psychological examinations. At the hearing, the trial court had the
benefit of Wife’s psychologist, Dr. John Leite, on this witness stand, who had been treating Wife


                                                  -4-
since August 2000. Husband was provided the opportunity to cross-examine Dr. Leite.
Additionally, the trial court was provided the deposition of Husband’s psychologist, Dr. Carolyn
West-Willette, who had been treating Husband since January 2000. Therefore, in this case, because
Husband fails to argue that such evidence is insufficient, we cannot say that the trial court erred
when it denied Husband’s motion to subject the parties to a psychological examination. Similarly,
we cannot say the trial court abused its discretion when it denied Husband’s motion to appoint a
guardian ad litem for child. Husband states that a guardian ad litem should have been appointed to
investigate Wife’s alleged propensity to exhibit rage and anger. Husband argues that such behavior
requires the appointment of a guardian ad litem to investigate and determine the status of Wife’s
mental health. However, as noted above, the trial court had sufficient evidence before it in the form
of Dr. John Leite’s testimony, and Husband had an opportunity to cross-examine Dr. Leite and ask
him questions concerning Wife’s alleged bouts of rage. Therefore, we cannot say that the trial court
erred when it refused Husband’s motion to appoint a guardian ad litem or to subject the parties to
a psychological examination.

                                           Marital Property Division

        Husband argues that the trial court incorrectly classified the increase in value of VO and VC
as marital property because such increase in value occurred following Husband’s filing of a divorce
complaint. Additionally, Husband argues that Wife did not substantially contribute to the increase
in value of VO and VC, and, therefore, she should not be entitled to the increase in value of those
businesses. Finally, Husband argues that, because the marriage was short in duration, the trial court
erred when it divided the marital assets equally.1

       Tennessee Code Annotated § 36-4-121 defines what constitutes marital property and separate
property for purposes of divorce. Specifically, Tenn. Code Ann. § 36-4-121(b)(1)(A) (2003)
provides:

                 “Marital property” means all real and personal property, both tangible and
         intangible, acquired by either or both spouses during the course of the marriage up
         to the date of the final divorce hearing and owned by either or both spouses as of the
         date of filing of a complaint for divorce . . . .

Tenn. Code Ann. § 36-4-121(b)(1)(A) (2003). Further, Tenn. Code Ann. § 36-4-121(b)(1)(B) states
“marital property” includes “income from, and any increase in value during the marriage of, property


         1
                   The trial court awarded the following marital property to W ife: marital home with a value of $325,000
but equity of $67,428, 2001 van with a value of $4,500, W ife’s IRA with a value of $3,268, payment of $8,636 to W ife
for signing joint income tax returns, and a payment of $183,692.50 from Husband to W ife to equalize marital estate
distribution. The trial court awarded the following marital property to Husband: VC building with a value of $575,000
and an equity of $334,071, Husband’s IRA with a value of $14,246, the net increase in value of $105,000 in VC and VO,
and an additional $20,000 from a loan. Husband was also required to pay $20,000 to First Citizens National Bank from
the loan he took to pay income taxes, another joint loan of $2,100, and a payment of $183,692.50 to W ife to equalize
the marital property division.

                                                          -5-
determined to be separate property in accordance with subdivision (b)(2) if each party substantially
contributed to its preservation and appreciation . . . .” Tenn. Code Ann. § 36-4-121(b)(1)(B) (2003).
“Once it has been determined that a spouse has made a substantial contribution to the preservation
and appreciation of the other spouse’s separate property, all of the increase in value during the
marriage is considered marital property, even though other factors may have contributed to the
increase.” Humphries v. Humphries, No. E2000-02912-COA-R3-CV, 2001 Tenn. App. LEXIS 512,
at *14 (Tenn. Ct. App. July 23, 2001) (citing Ellis v. Ellis, 748 S.W.2d 424, 426 (Tenn. 1988);
Denton v. Denton, 33 S.W.3d 229, 237 (Tenn. Ct. App. 2000)). Finally, we note that Tenn. Code
Ann. § 36-4-121(b)(1)(D) defines “substantial contribution” to “include, but not be limited to, the
direct or indirect contribution of a spouse as homemaker, wage earner, parent or family financial
manager, together with such other factors as the court having jurisdiction thereof may determine.”
Tenn. Code Ann. § 36-4-121(b)(1)(D) (2003).

        Under the circumstances of this case, Husband’s argument, that the trial court incorrectly
classified the increase in value of VC and VO, fails. We begin by noting that VO was a practice that
began in April 1997 during the parties’ marriage. Therefore, given there is no evidence that such
interest was acquired by any means outlined in Tenn. Code Ann. § 36-4-121(b)(2) defining separate
property, any interest Husband owned in VO necessarily falls under the definition of marital property
in Tenn. Code Ann. § 36-4-121(b)(1)(A). For this reason, any interest or increase in value of
Husband’s interest in VO must be marital property.

        Next, concerning the increase in value of VC, it is true that Husband owned VC before the
parties’ married, which means that such interest is separate property as defined by Tenn. Code Ann.
§ 36-4-121(b)(2)(A). However, as we noted above, once a trial court determines that a non-owning
spouse has made a substantial contribution to the preservation and appreciation of an owning
spouse’s separate asset, the entire increase in value during the marriage must be considered marital
property. Humphries, 2001 Tenn. App. LEXIS 512, at *14. In this case, there was ample evidence
that Wife substantially contributed to the preservation and appreciation of VC. The testimony at trial
was undisputed that Wife contributed approximately $88,000 of her wages toward the payment of
the second mortgage on the VC property. Additionally, Wife contributed indirectly by acting as a
homemaker, wage earner, parent, and family financial manager for the marriage, all of which fall
under the examples of what “substantial contribution” includes in Tenn. Code Ann. § 36-4-
121(b)(1)(D). Further, Wife was an employee at VC and VO, and she worked for over a year,
organizing staff meetings and preparing the business’ payroll. Therefore, the trial court did not err
when it classified the increase in the value of VC and VO as marital property.

        Finally, Husband argues that, because the marriage was of such short duration, the division
of assets should not have been equal, and Husband should have received a larger portion of the




                                                 -6-
marital estate. Tennessee Code Annotated § 36-4-121(c) (2003) enumerates what a trial court must
consider when equitably dividing marital property:

        (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 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.

Tenn. Code Ann. § 36-4-121(c) (2003). As the statute suggests, and Husband’s argument fails to
recognize, there are numerous factors a trial court must consider when dividing a marital estate.
Though it is true that the marriage was short in duration, other factors favor the trial court’s division
of the marital property. As noted above, Wife substantially contributed to the preservation and
appreciation of Husband’s interest in VC. She directly contributed by paying part of the second
mortgage off with her wages and working at VC and VO, and she indirectly contributed by fulfilling
her role as a wage earner, homemaker, and parent. Wife’s ability for future acquisitions of capital
assets and income is less certain than Husband’s ability. Wife’s position at the University of
Tennessee is an occupation renewed on a yearly basis, while Husband holds steady employment at
his optometry clinic. Finally, Husband’s earning capacity far exceeds Wife’s earning capacity.
Therefore, we affirm the trial court’s division of marital property.

        Because Husband’s argument over whether the trial court erred in its division of personal
property involves the marital property division, we address that issue here. In this case, the parties
attempted to present evidence of the value of the parties’ household goods. The trial court refused
to take evidence on those items and stated that the parties should either agree on a division or the
court would order a sale of such items and divide the proceeds. The parties were unable to reach an
agreement for division of the household items, and, subsequently, the court awarded Wife all


                                                  -7-
household goods, furniture, and appliances in her possession except for Husband’s items of separate
property, without taking any evidence of the values of such household items. As a result, this Court
cannot determine whether such division of the household items was equitable in accordance with the
division of the remainder of the marital estate. Therefore, in the interest of judicial economy, we
remand this case to the trial court for a determination of the values of the parties’ household personal
property alone, consideration of the factors enumerated in Tenn. Code Ann. § 36-4-121(c) for a
division of such marital household items only, and an equitable division of the marital household
items in accordance with the division of the remainder of the parties’ marital estate.

                                       Imposition of the Lien

        Next, Husband argues that the trial court erred when it imposed a lien on the VC property
in order to secure Husband’s property settlement obligation of $183,692.50, as well as his payments
of child support and alimony. In its final decree of divorce, the trial court, when discussing the
property settlement payment of $183,692.50 from Husband to Wife, stated that “[a] lien on the
Vision Center, P.C. property is imposed to secure the payment of [Wife’s] share of marital property
along with the payments of any child support and alimony.” We note that “[t]he imposition of a lien
on property is an extraordinary and harsh remedy that must be exercised with caution lest injury be
done to the obligor spouse and his or her property, and should not be resorted to where less onerous
remedies are available.” 24A Am. Jur. 2d Divorce and Separation § 885 (1998). This Court has
previously upheld the imposition of a lien on a party’s property where there was evidence that the
obligor spouse had committed fraud against the obligee spouse. Norman v. Norman, No. 03A01-
9702-CV-00047, 1998 Tenn. App. LEXIS 204, at *6-8 (Tenn. Ct. App. Mar. 25, 1998). However,
this Court has also upheld a trial court’s denial of imposing a lien on an obligor spouse’s property
where such a lien would hamper the business operations of the obligor spouse and place the obligor’s
source of income in jeopardy. Manis v. Manis, 49 S.W.3d 295, 306 (Tenn. Ct. App. 2001)
(upholding the trial court’s denial of wife’s request for a lien on dividends distributed from
husband’s corporations or to require husband to obtain court approval before consenting to sales of
corporate property until husband paid wife her interest in the marital estate).

        Under the circumstances of this case, we do not think the imposition of a lien on the VC
property is appropriate to secure the property settlement and support obligations. In a temporary
order for support, Husband was ordered to pay all the bills associated with the marital home,
including the payments on the loan secured by the marital home. Additionally, Husband was ordered
to pay $1,000 per month to Wife as child support. Finally, Husband was ordered to pay Wife
alimony in the amount of $500 per month. Such order was filed in August 2000, and there is no
evidence that Husband failed to make one payment pursuant to this order. After our review of the
record, we cannot say that an imposition of a lien on the VC property was justified. Therefore, we
remand this case to the trial court to revisit this issue and to impose a less onerous method of
securing the property settlement and support obligations.




                                                  -8-
                                            Alimony
        Next, Husband argues that the trial court erred when it awarded Wife alimony, or, in the
alternative, erred when it awarded Wife alimony for a period of five years. Tennessee courts are
guided by Tenn. Code Ann. § 36-5-101(d)(1) (2001)2 for determining the amount and duration of
alimony payments one spouse must pay to another:

         (d)(1) It is the intent of the general assembly that a spouse who is economically
         disadvantaged, relative to the other spouse, be rehabilitated whenever possible by the
         granting of an order for payment of rehabilitative, temporary support and
         maintenance. Where there is such relative economic disadvantage and rehabilitation
         is not feasible in consideration of all relevant factors, including those set out in this
         subsection, then the court may grant an order for payment of support and
         maintenance on a long-term basis or until the death or remarriage of the recipient
         except as otherwise provided in subdivision (a)(3). Rehabilitative support and
         maintenance is a separate class of spousal support as distinguished from alimony in
         solido and periodic alimony. In determining whether the granting of an order for
         payment of support and maintenance to a party is appropriate, and in determining the
         nature, amount, length of term, and manner of payment, the court shall consider all
         relevant factors, including:

                  (A) 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;
                  (B) 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 earning capacity to a reasonable level;
                  (C) The duration of the marriage;
                  (D) The age and mental condition of each party;
                  (E) The physical condition of each party, including, but not limited to,
                  physical disability or incapacity due to a chronic debilitating disease;
                  (F) 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;
                  (G) The separate assets of each party, both real and personal, tangible
                  and intangible;
                  (H) The provisions made with regard to the marital property as
                  defined in § 36-4-121;
                  (I) The standard of living of the parties established during the
                  marriage;


        2
                  Because the final decree of divorce and the divorce proceedings occurred before Acts 2003, ch. 305,
§ 2 became effective, amending Tenn. Code Ann. § 36-5-101, the prior version of this statute applies.

                                                        -9-
               (J) 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;
               (K) The relative fault of the parties in cases where the court, in its
               discretion, deems it appropriate to do so; and
               (L) Such other factors, including the tax consequences to each party,
               as are necessary to consider the equities between the parties.

Tenn. Code Ann. § 36-5-101(d)(1) (2001). The most important factors are the obligee’s need and
the obligor’s ability to pay. Lancaster v. Lancaster, 671 S.W.2d 501, 503 (Tenn. Ct. App. 1984)
(citing Aleshire v. Aleshire, 642 S.W.2d 729, 733 (Tenn. Ct. App. 1981)).

        Husband relies on the fact that the marriage was very short in duration, and, therefore, Wife
was entitled to alimony for a shorter period, if any at all. Again, Husband ignores the other factors
which favor the amount and duration of alimony payments awarded to Wife. In this case, as noted
above, Husband’s earning capacity far exceeds Wife’s earning capacity. The trial court found that
Husband has the ability to earn between $225,000 and $250,000 per year. On the other hand, the
trial court found that Wife has the ability to earn between $25,000 and $45,000 annually. While
Wife holds an undergraduate degree in business administration with a major in accounting, Husband
graduated from the Southern College of Optometry and currently practices as an optometrist. Also,
as noted above, while Husband has contributed to the marriage as the primary wage earner, Wife has
also been a wage earner during the marriage. The evidence also supports the fact that Wife has
contributed as a homemaker for the marriage. We also note that Wife, though awarded the marital
home, is now responsible for the mortgage payments on that home in addition to her other monthly
expenses, increasing her need for alimony. Finally, Husband was at fault for the divorce because of
his adultery. Under these circumstances, we cannot say that the trial court erred when it awarded
Wife alimony of $1,000 per month for a period of five years.

                                           Attorney’s Fees

        Finally, Husband argues that the trial court abused its discretion when it awarded Wife
$10,000 for her attorney’s fees. Specifically, in this case, the trial court found that, if Husband paid
Wife the property settlement payment of $183,692.50 in a lump sum, Wife would have sufficient
funds to pay her attorney’s fees. However, because the trial court imposed a lien on Husband’s clinic
building, Husband argues that the trial court precluded Husband’s ability to pay the property
settlement payment in a lump sum, and, therefore, Husband necessarily would have to pay $10,000
for Wife’s attorney’s fees.

       An award of attorney’s fees is treated like an award of alimony. Koja v. Koja, 42 S.W.3d 94,
98 (Tenn. Ct. App. 2000) (citing Herrera v. Herrera, 944 S.W.2d 379, 390 (Tenn. Ct. App. 1996);
Cranford v. Cranford, 772 S.W.2d 48, 52 (Tenn. Ct. App. 1989)). Therefore, the trial court should
consider the factors of Tenn. Code Ann. § 36-5-101(d) to determine whether an award of attorney’s


                                                 -10-
fees is appropriate. Id. “A spouse with adequate property and income is not entitled to an award of
alimony to pay attorneys fees and expenses.” Id. (citing Umstot v. Umstot, 968 S.W.2d 819, 824
(Tenn. Ct. App. 1997); Duncan v. Duncan, 686 S.W.2d 568, 573 (Tenn. Ct. App. 1984)). An award
for attorney’s fees is appropriate when the requesting spouse does not have sufficient funds to pay
his or her own legal fees or would be required to deplete his or her assets to pay such fees. Id.
(quoting Brown v. Brown, 913 S.W.2d 163, 170 (Tenn. Ct. App. 1994)). In this case, Husband
argues that he could pay Wife $183,692.50 in a lump sum if no lien were imposed on his clinic
building. Additionally, the trial court found that, if Husband paid such property settlement payment
in a lump sum, Wife could afford to pay her own attorney’s fees. Given our disposition of the issue
concerning the lien on Husband’s clinic building, we vacate the award to Wife for attorney’s fees
and remand this issue to the trial court to revisit the question of whether an award of attorney’s fees
is appropriate.

                                             Conclusion

         For the foregoing reasons, we affirm the trial court’s denial of Husband’s motion to appoint
a guardian ad litem or subject the parties to a psychological examination. We affirm the property
division but remand for a determination of the value of the household personalty and a division in
accordance with the division of the remainder of the marital estate. We reverse the trial court’s
imposition of a lien on Husband’s business and remand for the imposition of a less onerous means
of securing Husband’s obligations. We affirm the trial court’s award of alimony to Wife. We vacate
the award of attorney’s fees and remand for a determination of whether such an award is appropriate
in light of our reversal of the lien on Husband’s business. Costs of this appeal are taxed equally to
Appellee, Mary D. Bacigalupo, and Appellant, William A. Bacigalupo, and his surety for which
execution may issue if necessary.



                                                        ___________________________________
                                                        ALAN E. HIGHERS, JUDGE




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