                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                FEBRUARY 20, 2002 Session

            JOYCE MARIE HOWELL v. PHILLIP DAVID HOWELL

                 Direct Appeal from the Chancery Court for Madison County
                    No. 51574; The Honorable Joe C. Morris, Chancellor



                                  No. W2001-01167-COA-R3-CV


This appeal arises from a action for divorce. Following lengthy litigation, the trial court valued and
divided the parties’ marital property, refused to grant the wife alimony in futuro, forgave an arrearage
in alimony pendente lite owed by the husband, and ordered each party to pay their own attorney’s
fees. Wife filed this appeal and now argues that the court erred in its valuation and distribution of
marital assets, refusal to grant her alimony, refusal to award attorney’s fees, and forgiveness of the
husband’s arrearage. For the following reasons, we affirm the decision of the trial court.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and WILLIAM B. ACREE, JR., SP. J., joined.

Don G. Owens, III, Memphis, TN, for Appellant

James F. Butler, Jackson, TN, for Appellee

                                              OPINION

                                 I. Facts and Procedural History.

        This litigation began on March 1, 1996 with Joyce Marie Howell (Wife) petitioning the
Chancery Court of Madison County, Tennessee for an order of protection from her husband of
almost twenty-six years, Phillip David Howell (Husband). The same day, an ex parte order of
protection was issued. The order prohibited Husband from “abusing, threatening to abuse, or
committing acts of violence upon [Wife].”

        Several days later, on March 5, 1996, Wife filed a complaint requesting an absolute divorce
from Husband. As grounds for the divorce, Wife’s complaint alleged inappropriate marital conduct,
adultery, and the existence of irreconcilable differences. Wife’s complaint also sought to temporarily
enjoin Husband from, among other things, dissipating marital assets. The court issued a temporary
injunction consistent with Wife’s request. Approximately one month later, another restraining order
was placed on Husband and an order of protection was granted to Wife. Finally, on October 8, 1996,
the court entered an order nunc pro tunc requiring Husband to pay $1000.00 per month to Wife for
alimony pendente lite.

         The court’s many orders did little to quell the bitterness and bickering between the parties.
On October 15, 1996, the court held both parties in contempt for withholding certain marital
property. More petitions for contempt, however, would soon arise. Indeed, the record in this case
is littered with motion upon motion for contempt, specific relief, and for restraining orders.

       During the lengthy litigation, Husband filed for and was granted a bankruptcy under Chapter
11 of the U.S. Code. Apparently, the bankruptcy was no surprise. The trial court noted in its
findings of fact that “it was fairly obvious from the beginning due to lack of communication and
cooperation between the parties that a bankruptcy was inevitable and any equity that had been
accumulated would probably be lost.”

        The court’s final decree was issued on April 23, 2001. This decree outlined the division of
marital property, forgave an arrearage by Husband in alimony pendente lite payments, and ordered
each party to pay their own attorney’s fees. The decree also stated that although Wife was disabled,
she was not entitled to alimony in futuro. The court reasoned that no alimony in futuro was needed
because Wife was drawing disability, was not having to repay any marital debts, and Husband’s
income was approximately the same as Wife’s. Wife filed a notice of appeal and this matter is now
before this Court.
                                      II. Law and Analysis.

        Wife has raised several issues for our review. Wife’s issues concern the court’s division of
marital property, failure to award alimony in futuro, forgiveness of Husband’s arrearage of alimony
pendente lite, and failure to award attorney’s fees. We will discuss each of these issues in turn.

        Because this matter was heard by a trial judge sitting without a jury, our review is de novo
on the record, accompanied by a presumption of correctness of the factual findings below. Foster
v. Bue, 749 S.W.2d 736, 741 (Tenn. 1988); TENN. R. APP. P. 13(d). We may not reverse the findings
of fact made by the trial judge unless they are contrary to the preponderance of the evidence. Jahn
v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996). This presumption of correctness, however,
does not attach to the trial judge’s legal determinations or the trial court’s conclusions that are based
on undisputed facts. NCNB Nat’l Bank v. Thrailkill, 856 S.W.2d 150, 153 (Tenn. Ct. App. 1993).

                                  A. Division of Marital Property.

       Wife’s first issue raised for our review concerns the manner in which the trial court chose
to value and divide the parties’ marital property and debt. First, Wife argues that the trial court
undervalued the farm and home owned by the parties and improperly distributed it to Husband.

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Next, Wife contends that the trial court erred by not requiring Husband to assume certain debt
associated with his business and hold her harmless thereon.

       This Court has repeatedly held that an equitable division of property does not necessarily
mean an equal division. See Bookout v. Bookout, 954 S.W.2d 730, 732 (Tenn. Ct. App. 1997);
Batson v. Batson, 769 S.W.2d 849, 856 (Tenn. Ct. App. 1988). "The division of the estate is not
rendered inequitable simply because it is not mathematically equal, or because each party did not
receive a share of every item of marital property." King v. King, 986 S.W.2d 216, 219 (Tenn. Ct.
App. 1998) (citing Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn. 1996); Ellis v. Ellis, 748 S.W.2d
424, 427 (Tenn. 1988); Brown v. Brown, 913 S.W.2d 163, 168 (Tenn. Ct. App. 1994)).

        In determining what constitutes an equitable division of marital assets, the court will consider
the factors listed in section 36-4-121(c) of the Tennessee Code. Section 36-4-121(c) provides:

       In making equitable division of marital property, the court shall consider all relevant
       factors including:

        (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 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; and



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

TENN. CODE ANN . § 36-4-121(c) (2001). Further, the court must make the division of marital
property without regard to marital fault. TENN. CODE ANN . § 36-4-121(a)(1) (2001).

         The trial court's classification and division of marital property enjoys a presumption of
correctness on appeal and will be reversed or modified only if the evidence preponderates against
the trial court's decision. See Lancaster v. Lancaster, 671 S.W.2d 501, 502 (Tenn. Ct. App. 1984);
Hardin v. Hardin, 689 S.W.2d 152, 154 (Tenn. Ct. App. 1983). "The trial court is granted broad
discretion in adjusting and adjudicating the parties' interest in all jointly owned property. Its decision
regarding division of the marital property is entitled to great weight on appeal." Watters v. Watters,
959 S.W.2d 585, 590 (Tenn. Ct. App. 1997) (citing Batson, 769 S.W.2d at 859). The fairness of the
property division is judged upon its final results. See Wade v. Wade, 897 S.W.2d 702, 717 (Tenn.
Ct. App. 1994) (citing Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn. Ct. App. 1990)).

        Turning to the case sub judice, we must first note that Wife has failed to comply with Rule
7 of the Rules of the Court of Appeals.1 Rule 7 states:

         (a) In domestic relations appeals where the issues involve the amount or the
         disposition of the marital property, the appellant’s brief shall contain in the statement
         of facts or in an appendix, an orderly tabulation of all marital property. . . .
         (b) If the appeal involves issues about the separate property of either party or the
         allocation of the marital debts, the appellant’s brief shall contain a separate table in
         the same form showing the pertinent information for that disputed issue.
         ...

This Court has held that where an appellant fails to comply with this rule, that appellant waives all
such issues relating to the rule’s requirements. See Bean v. Bean, 40 S.W.3d 52 (Tenn. Ct. App.
2000). Even without this information in her brief, however, we have still been able to glean from
the record facts which show Wife’s arguments to be without merit.

         With regard to the overall distribution of marital property in this case, the trial court
distributed $67,115.00 of marital assets to Wife. Husband, on the other hand, was given assets worth
$327,282.00 encumbered by $561,000.00 of debt. The court also ordered Husband to pay an
additional $123,284.00 of other unrelated and unsecured debts. Finally, the court held that Wife
diverted marital property totaling $92,009.22 to herself soon after the divorce action was filed.
Accordingly, by our calculation, Wife ultimately received $159,124.22 in marital assets whereas
Husband ended up with negative $360,562.00 of equity, a difference of over one-half of a million
dollars.


         1
            Rule 7 was forme rly Rule 15 of the Rules of the C ourt of A ppe als. The language and intent of the current
Rule 7 an d former Ru le 15, how ever, are identical.

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        Wife now argues that the trial court miscalculated the value of various items of marital
property and erred in calculating the total funds granted to her. Based on the alleged erroneous
values and calculations, Wife argues that the results obtained by the trial court are inequitable. From
our review of the record, taking all of Wife’s allegations as true, we still fail to find that the final
results achieved by the trial court are inequitable or out of line with the statutory factors enumerated
above. Accordingly, we find Wife’s arguments with respect to this issue to be without merit.

         Wife also argues that the court failed to hold her harmless on certain debt related to
Husband’s business. We find this argument to be without merit as well. The trial court’s findings
clearly indicated that Husband received the property encumbered by the debt as well as the debt
itself. Further, the court, in its findings, specifically stated that Wife “is not obligated to pay any of
the debts.” Accordingly, we affirm the trial court’s distribution of marital property and debt in all
respects.
                    B. Alimony In Futuro and Alimony Pendente Lite Arrearage.

        Wife’s second issue raised for our review concerns the trial court’s refusal to grant Wife
alimony in futuro and the forgiveness of Husband’s arrearage of alimony pendente lite. The trial
court, in its findings of fact stated that, “[a]lthough [Wife] is disabled, she is also drawing disability,
and is not obligated to pay on any of the debts.” Further, the court stated that, “[Husband’s] income
is approximately the same as [Wife’s].” With regard to Husband’s arrearage, the court stated that
although he was ordered to pay temporary alimony, “the proof is uncontroverted that he has not been
able to pay it.” Based on these facts, the court refused to grant Wife alimony and forgave Husband’s
arrearage.

        There are no hard and fast rules governing the availability of spousal support. Crain v. Crain,
925 S.W.2d 232, 234 (Tenn. Ct. App. 1996). Section 36-5-101(d)(1) of the Tennessee Code,
however, provides a framework from which courts can make a proper determination of whether
support is needed. This section lists numerous factors that courts should consider. See TENN. CODE
ANN . § 36-5-101(d)(1)(A) - (L). Also helpful to our review is our supreme court’s opinion in Aaron
v. Aaron, 909 S.W.2d 408 (Tenn. 1995). In Aaron, the supreme court stated that “[w]hile there is
no absolute formula for determining the amount of alimony, ‘the real need of the spouse seeking the
support is the single most important factor.’” Id. at 410 (quoting Cranford v. Cranford, 772 S.W.2d
48, 50 (Tenn. Ct. App. 1989)). Next, “the courts most often consider the ability of the obligor
spouse to provide support.” Id.

        We must also be cognizant of the fact that trial courts retain discretion in determining
whether or not to award spousal support and that “appellate courts will not interfere except in the
case of an abuse of discretion.” Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001) (citations
omitted). Further, in determining whether an abuse of discretion has occurred, we must not merely
substitute our judgment for that of the trial court. White v. Vanderbilt Univ., 21 S.W.3d 215, 223
(Tenn. Ct. App. 1999) Instead, appellate review must seek to determine whether the lower court's
decision has a basis in law or fact and is therefore not arbitrary, illogical, or unconscionable. State
v. Brown & Williamson Tobacco Corp., 18 S .W.3d 186, 191 (Tenn.2000). Where a court has


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improperly construed or applied the applicable legal principles, appellate courts may properly reverse
the trial court’s decision. White, 21 S.W.3d at 223.

        Here, Wife argues that the factors given in section 36-5-101(d)(1) work in her favor and that
proper application of the factors show that the trial court abused its discretion. First, Wife asserts
that because of her disability, her need for support is obvious. While we generally agree with this
statement, we must also look at the other relevant factors including Husband’s ability to pay her
support.

        With regard to Husband’s ability to pay, the court found that Husband’s income was
approximately the same as Wife’s. Specifically, Husband offered sworn proof, which indicated that
his average monthly income is $883.26 as compared to the $919.15 that Wife receives every month
in Social Security disability benefits. Wife now argues that Husband’s testimony regarding his
income was not credible and that the preponderance of the evidence shows that Husband actually
enjoys a much greater income. We disagree with Wife’s conclusions. Wife has offered no real proof
regarding Husband’s alleged greater income. Instead, Wife offers merely speculative evidence
consisting of Husband’s intent and past actions. This evidence does not rise to the level required for
this Court to second guess the factual findings of the lower court.

        We must also note the amount of marital property that was given to Wife and the fact that
she was given none of the huge debts created by the parties. Further, Wife was able to take
approximately $92,000.00 of marital property soon after the divorce was filed, which indicates that
her need for temporary alimony was greatly reduced. Accordingly, we affirm the court’s decision
in refusing to award alimony in futuro and forgiving Husband’s arrearage.

                                         C. Attorney’s Fees.

        Wife’s next issue concerns the court’s failure to award her attorney’s fees. This court has
repeatedly held that an award for attorney’s fees in a divorce case is treated as spousal support and
should be characterized as alimony in solido. Wild v. Wild, 66 S.W.2d 892, 894 (Tenn. Ct. App.
2001) (citing Sannella v. Sannella, 993 S.W.2d 73, 76 (Tenn. Ct. App. 1999); Smith v. Smith, 984
S.W.2d 606 (Tenn. Ct. App. 1997); Anderton v. Anderton, 988 S.W.2d 675, 682 (Tenn. Ct. App.
1988); Gilliam v. Gilliam, 776 S.W.2d 81 (Tenn. Ct. App. 1988)). Accordingly, when reviewing
a court’ decision to award attorney’s fees, we must recognize the wide discretion given to the trial
court. Id. Appellate courts may reverse a trial court’s decision to award attorney’s fees, however,
“where the evidence preponderates against the award, and a manifest injustice will be done” by
allowing the trial court’s decision to stand. Id.

       With attorney’s fees being a form of alimony, courts must balance the factors given in section
36-5-101(d)(1) of the Tennessee Code, as stated above, in determining a proper award. Again, the
cornerstones in balancing the factors are the real need of the requesting spouse and the ability of the
obligor spouse to pay. Aaron, 909 S.W.2d at 410. Although the relative fault of the parties is to be
considered, awards should not be punitive in nature. Anderton, 988 S.W.2d at 682. Instead, the true


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purpose should be to “aid the disadvantaged spouse to become and remain self-sufficient and . . . to
mitigate the harsh economic realities of divorce.” Id.

         Here, with regard to this issue, Wife merely relies on her previous arguments and asserts that
Husband has the ability to pay and that she lacks sufficient funds to cover her costs. Again, however,
for the same reasoning as above, we find that the preponderance of the evidence does not contradict
the findings of the trial court and hold that the trial court did not abuse its discretion in refusing to
award attorney’s fees to Wife. Accordingly, we find Wife’s arguments with respect to this issue to
be without merit.
                                            III. Conclusion
         Based on the foregoing conclusions, we hereby affirm the decision of the trial court in all
respects. Costs on appeal are assessed against Appellant, Joyce Marie Howell, and her surety, for
which execution may issue if necessary.




                                                        ___________________________________
                                                        ALAN E. HIGHERS, JUDGE




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