                                                                                            08/05/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                December 5, 2018 Session

            GARY LEE ODOM v. RACHEL LEA ZAMATA ODOM

                 Appeal from the Circuit Court for Davidson County
                      No. 15D-195 Phillip R. Robinson, Judge
                     ___________________________________

                            No. M2018-00405-COA-R3-CV
                        ___________________________________


Two days before the parties’ divorce trial, wife discharged her attorney. Her attorney
then moved to withdraw. One day before trial, wife moved pro se for recusal of the trial
judge. On the morning of trial, the court denied the wife’s recusal motion and granted
her attorney’s motion to withdraw. Wife was not present. After confirming that wife had
notice of the date, the court proceeded with the trial. In the final decree, the court granted
husband a divorce, classified and divided the marital property, and awarded husband a
portion of his attorney’s fees. On appeal, we conclude that the trial court did not err in
denying wife’s recusal motion, allowing her attorney to withdraw, or conducting the trial
in her absence. But the court did err in awarding husband attorney’s fees as alimony in
solido. So we reverse the court’s award of attorney’s fees as alimony in solido. In all
other respects, we affirm.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ANDY D. BENNETT
and RICHARD H. DINKINS, JJ., joined.

Martin Sir and Ellison M. Berryhill, Nashville, Tennessee, for the appellant, Rachel Lea
Zamata Odom.

Jacqueline B. Dixon, Nashville, Tennessee, for the appellee, Gary Lee Odom.
                                        OPINION

                                             I.

                                            A.

       After almost seven years of marriage, Gary Lee Odom (“Husband”) sought a
divorce from Rachel Lea Zamata Odom (“Wife”) in the Circuit Court for Davidson
County, Tennessee. This was Husband’s second marriage and Wife’s first. The union
produced no children.

       At the time of trial, Husband was 66 and Wife, 33. Husband was employed as
executive director of two medical associations. Wife owned a law practice with offices
in Tennessee, New York, and Washington, D.C. Wife obtained her law degree during the
marriage; Husband paid for Wife to attend law school.

        This divorce proceeding was characterized by ongoing discovery issues.
Obtaining even the most basic information from Wife proved difficult, if not impossible.
Husband’s first two motions to compel were resolved by agreed order. But after Wife
failed to comply with the agreed orders, Husband filed another motion to compel and/or
for sanctions. This time, the court ordered Wife to produce the requested information,
but reserved the issue of sanctions for trial. After Wife also refused to answer questions
at her deposition, the court ordered Wife to answer the questions at her reconvened
deposition. Again, the court reserved the issue of sanctions for trial. When Wife
remained uncooperative, Husband filed a fifth motion to compel and/or for sanctions
and/or for civil contempt.

       On August 4, 2017, the court held another discovery hearing. As the hearing
progressed, the court became increasingly frustrated with Wife’s responses. The court
summarily held Wife in criminal contempt and sentenced her to three days in jail. Wife
sought an interlocutory appeal of the criminal contempt finding. And this Court
affirmed, concluding that the evidence supported “the trial court’s determination that Ms.
Odom willfully disobeyed the directive of the court.” Odom v. Odom, No. M2017-
01702-COA-R3-CV, 2018 WL 3532080, at *8 (Tenn. Ct. App. July 23), perm. app.
denied, (Tenn. Dec. 6, 2018).

       Also at the August 4 hearing, the court scheduled the divorce trial for three days in
December. Wife was also ordered to provide additional documentation about her law
practice within thirty days. The court again reserved the issues of discovery sanctions
and attorney’s fees until the final hearing.


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       On November 22, 2017, Wife moved to continue the trial until after her
interlocutory appeal was resolved. At an emergency telephone conference on November
30, 2017, the court denied her request. The divorce trial remained scheduled to begin on
December 5 at 9 a.m.

                                            B.

        On Sunday, December 3, at 6:40 p.m., Wife, acting pro se, faxed a notice to the
circuit court clerk captioned “Notice of Attorney Notice to Withdraw.” In her filing,
Wife stated that her attorney “was very rude and unprofessional” during a telephone
conversation that day and “will be, upon his request and the necessity of the situation,
relieved of his duties as Attorney for Wife in this divorce matter going forward.”

       Both parties filed pretrial briefs on December 4. Wife filed her pretrial brief pro
se. It is apparent from Wife’s filing that she was aware of the pending trial date, but
expected the trial to be postponed because of her attorney’s withdrawal. But she never
requested a continuance.

       Later that day, Wife’s attorney, Mr. Richard Hedgepath, moved to withdraw. He
sent a copy of his motion to Wife and to Husband’s attorney. He supported his motion to
withdraw with Wife’s previously-filed notice.

       Wife did not respond to her attorney’s motion. Rather, at 10:37 p.m. that night,
she faxed a motion for voluntary recusal of the trial judge to the circuit court clerk. Wife
contended that the trial judge was disqualified “because of strongly held personal biases
that he has exhibited during this Divorce Trial, beginning with the August 4, 2017,
hearing and continuing thereafter.”

       When court convened on December 5, only Husband, Husband’s attorney, and
Mr. Hedgepath were present. The court first addressed Wife’s recusal motion. Although
Wife was represented by counsel and technically prohibited from filing a pro se recusal
motion, the court considered her request. See Tenn. R. Sup. Ct. 10B § 1.01 (“A party
who is represented by counsel is not permitted to file a pro se motion under this rule.”);
Tenn. 20th J. Dist. Local R. § 5.02 (“No attorney may be allowed to withdraw except for
good cause and by leave of court upon motion after notice to all parties.”). Finding no
basis for disqualification, the court denied Wife’s motion.

       Mr. Hedgepath then announced that he had been discharged over the previous
weekend and could no longer represent Wife. The court found that neither his motion to
withdraw nor Wife’s notice specified that the attorney had been discharged. But the
court allowed him to submit an amended motion to withdraw accompanied by a personal
affidavit explaining that he was discharged by Wife. After verifying that Mr. Hedgepath

                                             3
had provided Wife with a copy of the amended motion and affidavit, the court allowed
Mr. Hedgepath to withdraw.

       The court then sua sponte raised the issue of whether to postpone the trial. The
court confirmed that Wife was aware of the pending trial when she discharged her
attorney. Because the case had been pending for well over two years, all parties had
notice of the trial date, and there was no justifiable basis for a continuance, the court
decided to proceed with trial as scheduled. Husband was the only witness.

                                            C.

       The day after the trial, Wife, still pro se, moved to set aside or amend the court’s
order allowing her attorney to withdraw. Wife maintained that Mr. Hedgepath had
abandoned her on the eve of trial. But she did not support her version of events with any
evidence, such as an affidavit. And she did not explain why she was absent on the first
day of trial. The court denied her motion.

       In the final divorce decree, the court granted Husband a divorce on the ground of
inappropriate marital conduct. And after considering the applicable statutory factors, the
court classified, valued, and divided the marital property. Husband received a
disproportionately larger share of the marital estate based on the relatively short duration
of the marriage, the separate property each spouse brought to the marriage, Husband’s
financial contributions to the marriage, and Wife’s dissipation of marital assets. The
court also awarded Husband $38,416 in attorney’s fees and discretionary costs.

        Wife moved to set aside or amend the final decree. She contended that the factual
findings in the decree were based solely on Husband’s testimony and he had either lied at
trial or been intoxicated. The court also denied this motion.

                                            II.

       In this appeal, Wife has not directly challenged the trial court’s division of the
marital estate. Rather, she contends the trial court erred in denying her recusal motion,
granting her attorney’s motion to withdraw, and proceeding with the scheduled trial. She
asserts that the trial court’s actions, “when taken in totality, resulted in a generalized
violation of [her] Due Process rights.” She also argues that the trial court erred in
ordering her to pay a portion of Husband’s attorney’s fees. For his part, Husband seeks
an additional award of attorney’s fees on appeal.

                                       A. RECUSAL

       We begin with the trial court’s denial of Wife’s recusal motion. We review a trial
judge’s ruling on a recusal motion de novo. Tenn. Sup. Ct. R. 10B § 2.01. In Tennessee,
                                             4
litigants “have a fundamental right to a ‘fair trial before an impartial tribunal.’” Holsclaw
v. Ivy Hall Nursing Home, Inc., 530 S.W.3d 65, 69 (Tenn. 2017) (quoting State v. Austin,
87 S.W.3d 447, 470 (Tenn. 2002)); see Tenn. Const. art. VI, § 11. Under the Code of
Judicial Conduct, a judge must “disqualify himself or herself in any proceeding in which
the judge’s impartiality might reasonably be questioned.” Tenn. Sup. Ct. R. 10, Rule
2.11(A). “[T]he test for recusal is an objective one . . . .” State v. Cannon, 254 S.W.3d
287, 307 (Tenn. 2008). Recusal is required “when a person of ordinary prudence in the
judge’s position, knowing all of the facts known to the judge, would find a reasonable
basis for questioning the judge’s impartiality.” Davis v. Liberty Mut. Ins. Co., 38 S.W.3d
560, 564-65 (Tenn. 2001) (quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim.
App. 1994)). The decision to recuse is vested in the judge’s discretion. State v. Hester,
324 S.W.3d 1, 72 (Tenn. 2010).

       But the right to question the trial court’s impartiality may be waived. Kinard v.
Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998). The party seeking recusal must file
the recusal motion “promptly after the facts forming the basis for the motion become
known.” Id. The “rule [is] that a party must complain and seek relief immediately after
the occurrence of a prejudicial event and may not silently preserve the event as an ‘ace in
the hole’ to be used in event of an adverse decision.” Gotwald v. Gotwald, 768 S.W.2d
689, 694 (Tenn. Ct. App. 1988) (quoting Spain v. Connolly, 606 S.W.2d 540, 543 (Tenn.
Ct. App. 1980)).

       We conclude that Wife waived her right to challenge the judge’s impartiality in
this case. Her accusations of judicial bias stem directly from the August 4 hearing.
According to her affidavit, she is “uncomfortable and afraid of appearing before Judge
Robinson again, based on the experience that [she] was forced to endure on August 4,
2017.” But she waited four months to seek recusal. Instead of promptly seeking redress,
she continued to participate in the divorce proceedings and only filed her motion when it
appeared trial was unavoidable.

        Even if the issue was not waived, Wife failed to provide sufficient evidence that
would give a person of ordinary prudence in the judge’s position a reasonable basis for
questioning the judge’s impartiality. See Davis v. Tenn. Dep’t of Emp’t Sec., 23 S.W.3d
304, 313 (Tenn. Ct. App. 1999) (on petition for rehearing) (requiring parties who
challenge a judge’s impartiality to come forward with “some evidence”); see also Tenn.
Sup. Ct. R. 10B § 1.01. In the trial court, Wife pointed to the court’s criminal contempt
finding at the August 4 hearing and subsequent refusal to set aside the contempt finding
or to grant her a continuance during her interlocutory appeal as evidence of bias. But
adverse rulings, even multiple adverse rulings, without more, do not establish bias. Duke
v. Duke, 398 S.W.3d 665, 671 (Tenn. Ct. App. 2012). On appeal, she also contends that
the trial court “advise[d] wife’s counsel on the proper way to withdraw on the day of
trial” and then granted the motion, “leaving Wife . . . defenseless at the divorce trial.”

                                             5
But, as more fully explained below, we find no error, much less bias, in the trial court’s
grant of Mr. Hedgepath’s motion to withdraw.

                               B. MOTION TO WITHDRAW

       The grant or denial of a request to withdraw as counsel is a matter addressed to the
court’s discretion. Andrews v. Bechtel Power Corp., 780 F.2d 124, 135 (1st Cir. 1985);
Washington v. Sherwin Real Estate, Inc., 694 F.2d 1081, 1087 (7th Cir. 1982);
Devincenzi v. Wright, 882 P.2d 1263, 1265 (Alaska 1994); In re Franke, 55 A.3d 713,
720 (Md. Ct. Spec. App. 2012); Williams v. Bank One, Texas, N.A., 15 S.W.3d 110, 114
(Tex. App. 1999); Kingdom v. Jackson, 896 P.2d 101, 103 (Wash. Ct. App. 1995). Our
review of discretionary decisions is limited. Beard v. Bd. of Prof’l Responsibility, 288
S.W.3d 838, 860 (Tenn. 2009). We do not “second-guess the court below” or “substitute
[our] discretion for the lower court’s.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524
(Tenn. 2010). In reviewing discretionary decisions, we consider “(1) whether the factual
basis for the decision is properly supported by evidence in the record, (2) whether the
lower court properly identified and applied the most appropriate legal principles
applicable to the decision, and (3) whether the lower court’s decision was within the
range of acceptable alternative dispositions.” Id. We “review the underlying factual
findings using the preponderance of the evidence standard . . . and . . . the lower court’s
legal determinations de novo without any presumption of correctness.” Id. at 525.

       The trial court properly considered the principles embodied in the Rules of
Professional Conduct when evaluating Mr. Hedgepath’s motion to withdraw. See, e.g.,
Zagorski v. State, 983 S.W.2d 654, 660 (Tenn. 1998); State v. Branam, 855 S.W.2d 563,
566 (Tenn. 1993); Prince v. Campbell, No. 01A01-9806-CV-00276, 1999 WL 51844, at
*2 (Tenn. Ct. App. Feb. 5, 1999). Mr. Hedgepath informed the court that he had been
discharged by his client. “[C]lients should not be forced to entrust their legal matters to
an unwanted lawyer.” Lovin v. State, 286 S.W.3d 275, 285 (Tenn. 2009). Generally,
withdrawal from representation is mandatory when “the lawyer is discharged.” Tenn.
Sup. Ct. R. 8, Rule 1.16(a)(3). The attorney “must notify the court in which the matter is
pending that he or she has been discharged and then must withdraw from the case unless
the court orders otherwise.” Lovin, 286 S.W.3d at 286 (citing Tenn. Sup. Ct. R. 8, Rule
1.16(c)). “A court should decline to permit the withdrawal of a retained lawyer who has
been discharged by his or her client in only the most compelling circumstances.” Id.

       Wife challenges the court’s factual finding that Mr. Hedgepath was discharged.
But the evidence does not preponderate against the court’s finding. Evidence
preponderates against a finding of fact if the evidence “support[s] another finding of fact
with greater convincing effect.” Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d
291, 296 (Tenn. Ct. App. 2001). Mr. Hedgepath’s sworn affidavit clearly states that Wife
discharged him on December 3. Wife’s ambiguous statements in her notice do not
convince us otherwise.
                                             6
        We are also unimpressed by Wife’s contention that she was somehow precluded
from presenting her side of the story. Wife had notice of Mr. Hedgepath’s motion and
the trial date. But she chose not to appear. She cannot complain of an error of her own
making. See Waters v. Coker, 229 S.W.3d 682, 689-90 (Tenn. 2007).

       We conclude that the trial court did not err in allowing Mr. Hedgepath to
withdraw. The court applied the appropriate legal principles. The decision was properly
supported by the evidence in the record. And the decision to grant the motion was within
the range of acceptable dispositions. See Lee Med., Inc., 312 S.W.3d at 524.

                                           C. CONTINUANCE

        Wife contends that the court should have postponed the trial to allow her to obtain
new counsel. A trial court’s decision to grant or deny a motion for continuance is also
discretionary. Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997). We will not
disturb the court’s decision “unless the record clearly shows abuse of discretion and
prejudice to the party seeking a continuance.” Id.; see Comm’r of Dep’t of Transp. v.
Hall, 635 S.W.2d 110, 111 (Tenn. 1982) (“[I]n order to show an abuse of discretion, the
plaintiff must show some prejudice or surprise which arises from the trial court’s failure
to grant the continuance.”).

       We cannot say the trial court abused its discretion in proceeding with the
scheduled trial. Wife never moved for a continuance. She merely assumed the court
would continue the trial after granting her attorney’s motion. We find no basis for such
an assumption under these circumstances.1 This divorce case had been pending for well
over two years, and the trial date had been scheduled for four months. Wife chose to fire
her attorney on the eve of trial. She was directly responsible for her own predicament.
See In re Estate of Davis, No. M2012-00559-COA-R3-CV, 2013 WL 5827640, at *5
(Tenn. Ct. App. Oct. 28, 2013) (finding no prejudice when “Mr. Davis created the
problem he complains of by terminating his attorneys so close to the start of his trial”);
see also Holley v. Ortiz, No. M2015-01432-COA-R3-CV, 2017 WL 729754, at *5-6

        1
           Wife’s reliance on the dissent in Rhoads v. Kullman, No. M2002-02716-COA-R3-CV, 2004
WL 626728, at *5 (Tenn. Ct. App. Mar. 29, 2004) (Koch, J., dissenting), is misplaced. The trial court in
Rhoads allowed the mother’s attorney to withdraw at the final hearing and proceeded with trial without
the mother’s participation. Id. at *1-2 (majority opinion). The mother later sought relief from the
judgment on grounds of excusable neglect. Id. at *2. The majority affirmed the trial court’s refusal to
grant relief from the judgment because the mother knew her attorney was withdrawing, knew the date of
the hearing, and failed to appear. Id. at *5. The dissent concluded that the mother could have reasonably
believed that her presence was unnecessary because her attorney had assured her that the case would be
continued and did not inform her that she should appear at trial. Id. (Koch, J., dissenting). That is not the
case here.

                                                     7
(Tenn. Ct. App. Feb. 24, 2017) (finding no abuse of discretion when court granted
attorney’s motion to withdraw on day of trial and denied attorney’s motion to continue
trial to allow client to obtain new counsel).

                                    D. DUE PROCESS

       We are similarly unpersuaded by Wife’s due process argument. Due process of
law is guaranteed by both the United States and Tennessee Constitutions. See U.S.
Const. amend. XIV, § 1; Tenn. Const. art. I, § 8. “The overarching principle of
procedural due process requires ‘notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them
an opportunity to present their objections.’” In re Walwyn, 531 S.W.3d 131, 138 (Tenn.
2017) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).

       As we have explained throughout this opinion, Wife had an opportunity to appear
and be heard on December 5. She had ample notice of both the trial date and her
attorney’s motion to withdraw. Her voluntary choice not to appear is all that precluded
her from being heard on the pretrial motions and the divorce issues. See In re Elijah B.,
No. E2010-00387-COA-R3-PT, 2010 WL 5549229, at *6 (Tenn. Ct. App. Dec. 29, 2010)
(finding no due process violation in the trial court’s decision to proceed with the hearing
in the absence of father when he knew of the hearing date but did not appear); cf. In re
A.P., No. M2017-00289-COA-R3-PT, 2019 WL 1422927, at *6-7 (Tenn. Ct. App. Mar.
29, 2019) (vacating order terminating mother’s parental rights when mother had no notice
of her attorney’s intent to withdraw or of the trial date).

                              E. ATTORNEY’S FEES AWARD

       Wife’s final issue concerns the trial court’s decision to award Husband a portion
of his attorney’s fees. The trial court made the following findings with regard to the
award of attorney’s fees:

             The Court finds that there have been repeated issues relative to the
      Wife’s complying with discovery during these proceedings. This Court has
      repeatedly ordered her to provide written discovery as late as its hearing of
      August 4, 2017.

               The Court awards the Husband a portion of his reasonable attorney
      fees in this cause. Counsel for the Husband has filed an affidavit of
      attorney’s fees marked as Trial Exhibit #16. Based on the experience and
      expertise of Jacqueline B. Dixon, attorney for Husband, the Court finds her
      hourly rate of $350 per hour to be most reasonable. The Court finds that
      this litigation was unduly protracted primarily because the Wife resided out
      of state and because of discovery issues with the Wife. The Husband filed
                                            8
       repeated motions to compel discovery for which the Court reserved fees to
       the final hearing. The Court finds those fees incurred by Husband related
       to discovery total $4,500. The Court finds the Husband is entitled to
       additional reasonable attorney’s fees of $32,550 and one half of his
       discretionary costs of $1,366, for a total award of fees and costs against the
       Defendant Wife Rachel Lea Zamata Odom in the amount of $38,416.

       We review the trial court’s award for an abuse of discretion. See Gonsewski v.
Gonsewski, 350 S.W.3d 99, 113 (Tenn. 2011); Kirk v. Kirk, 447 S.W.3d 861, 876 (Tenn.
Ct. App. 2013). As an initial matter, we must determine the basis for the court’s award of
attorney’s fees. Parties generally cannot recover their attorney’s fees unless there is a
statutory or contractual basis for an award of attorney’s fees. See Taylor v. Fezell, 158
S.W.3d 352, 359 (Tenn. 2005) (citing State v. Brown & Williamson Tobacco Corp., 18
S.W.3d 186, 194 (Tenn. 2000)). The basis for the award is critical to our ability to
determine “whether the lower court properly identified and applied the most appropriate
legal principles applicable to the decision.” Lee Med., Inc., 312 S.W.3d at 524.

       Here, the court awarded $4,500 in “fees incurred by Husband related to
discovery.” A trial court in a divorce action may award attorney’s fees as a monetary
sanction for discovery abuse when requested by one of the parties. Berg v. Berg, No.
M2013-00211-COA-R3-CV, 2014 WL 2931954, at *13-15 (Tenn. Ct. App. June 25,
2014). “The authority to impose sanctions for abuse of the discovery process derives
from the rules and the court’s inherent powers.” Mansfield v. Mansfield, No.
01A019412CH0058, 1995 WL 643329, at *5 (Tenn. Ct. App. Nov. 3, 1995); see also
Tenn. R. Civ. P. 37.01(4), 37.02. Tennessee Rule of Civil Procedure 37.02 directs the
court to order a party who disobeys a discovery order to “pay the reasonable expenses,
including attorney’s fees, caused by the failure, unless the court finds that the failure was
substantially justified or that other circumstances make an award of expenses unjust.”
Tenn. R. Civ. P. 37.02. Monetary sanctions for discovery abuse should be directly
related to the abuse and not be excessive. Mansfield, 1995 WL 643329, at *6.

       We find no abuse of discretion in this award. Wife repeatedly disobeyed the
court’s discovery orders. And Husband moved for sanctions multiple times. The amount
awarded is not excessive and is directly related to the abuse. See id.

       The basis for the award of “additional reasonable attorney’s fees of $32,550” is
not expressly stated in the court’s order. We construe court orders “[l]ike other written
instruments, . . . according to their plain meaning.” Morgan Keegan & Co., Inc. v.
Smythe, 401 S.W.3d 595, 608 (Tenn. 2013). When an order is ambiguous, we construe it
“with reference to the issues it was meant to decide” and consider “the pleadings,
motions, issues before the court, and arguments of counsel” to determine its meaning. Id.
In Husband’s pretrial brief, he requested attorney’s fees both as a discovery sanction and
as alimony in solido. So we interpret the court’s additional award as an award of
                                             9
attorney’s fees as alimony in solido. See Gonsewski, 350 S.W.3d at 113 (“It is well-
settled that an award of attorney’s fees in a divorce case constitutes alimony in solido.”).

       Alimony decisions require a careful balancing of the relevant statutory factors.
See Tenn. Code Ann. § 36-5-121(i) (2017); Gonsewski, 350 S.W.3d at 109-10. As our
courts have made clear, the two most important considerations are need and ability to
pay. Riggs v. Riggs, 250 S.W.3d 453, 457 (Tenn. Ct. App. 2007); see Gonsewski, 350
S.W.3d at 110. Our supreme court has held that “[a] spouse with adequate property and
income is not entitled to an award of alimony to pay attorney’s fees and expenses.”
Gonsewski, 350 S.W.3d at 113. So attorney’s fees are properly awarded as alimony in
solido when the requesting spouse “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 them”
and the other spouse has the ability to pay. Id.

        We conclude that the additional award of attorney’s fees as alimony in solido was
unwarranted. The court made no finding relative to Husband’s need. See Riggs, 250
S.W.3d at 457 (noting that “need is the threshold consideration”). Husband is gainfully
employed as executive director of two medical organizations. He earns over $100,000
annually from his executive director positions. And he has additional income from his
retirement and a real estate partnership. He was also awarded a disproportionate share of
the marital estate including the cash balances of several bank accounts, the marital
residence, and his retirement accounts and pension. The evidence in this record cannot
support a finding that Husband lacked adequate resources or property to pay his own
attorney’s fees. See Gonsewski, 350 S.W.3d at 113 (finding award of alimony in solido
unwarranted when “[t]he record contain[ed] nothing to suggest that Wife was unable to
secure counsel, either at trial or on appeal, but for an award of attorney’s fees.”). He
testified at trial that he had already paid his attorney $36,500.

                                  F. FRIVOLOUS APPEAL

        Husband asserts that this appeal is frivolous, entitling him to damages, including
attorney’s fees and expenses incurred on appeal. Under Tennessee Code Annotated § 27-
1-122 (2017), an appellate court may award damages against an appellant if an appeal is
frivolous or taken solely for delay. The statute authorizing an award of damages for
frivolous appeals “must be interpreted and applied strictly so as not to discourage
legitimate appeals.” See Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 586 (Tenn. 1977)
(citing the predecessor to Tennessee Code Annotated § 27-1-122).

      A frivolous appeal is one “utterly devoid of merit,” Combustion Eng’g, Inc. v.
Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978), or that has “no reasonable chance of
success,” Davis, 546 S.W.2d at 586. We do not find this appeal to be frivolous. So we
deny Husband’s request for attorney’s fees and expenses incurred on appeal.

                                            10
                                           III.

       We affirm the denial of Wife’s recusal motion and the grant of Mr. Hedgepath’s
motion to withdraw. We find no error in the trial court proceeding with the trial. Wife
was not denied procedural due process. We reverse the trial court’s award of $32,500 in
attorney’s fees as alimony in solido. In all other respects, including the court’s award of
$4,500 in attorney’s fees based on Wife’s failure to comply with discovery, we affirm the
decision of the trial court.



                                                  _________________________________
                                                  W. NEAL MCBRAYER, JUDGE




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