                                                                                         01/31/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                              November 15, 2018 Session

          RICHARD ALAN ELLIS v. DONICA ANN WOODS ELLIS

                  Appeal from the Circuit Court for Shelby County
                    No. CT-000806-15 James F. Russell, Judge
                     ___________________________________

                           No. W2017-02287-COA-R3-CV
                       ___________________________________

This is an appeal from a final decree of divorce. The trial court ordered Husband to pay
Wife alimony in futuro in the amount of $9,000 per month. In addition, the trial court
awarded Wife her attorney’s fees as alimony in solido in the amount of $121,873.81. We
vacate the trial court’s award of alimony in futuro and, for the reasons stated herein,
remand the issue of Wife’s alimony for reconsideration. Additionally, we vacate the trial
court’s award of Wife’s attorney’s fees and remand for the trial court to reconsider
whether or not to award Wife her attorney’s fees and, if so, to award a reasonable
attorney’s fee and state the basis for its decision. We also vacate the trial court’s order
denying Wife’s motion for discretionary costs, and remand the issue to the trial court for
a reconsideration of Wife’s motion on its merits.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which KENNY ARMSTRONG,
J., joined. BRANDON O. GIBSON, J., NOT PARTICIPATING.

Darrell D. Blanton, Memphis, Tennessee, for the appellant, Richard Alan Ellis.

Julie C. Bartholomew, Somerville, Tennessee, for the appellee, Donica Ann Woods Ellis.
                                     OPINION

                      BACKGROUND AND PROCEDURAL HISTORY

       Richard Ellis (“Husband”) and Donica Woods (“Wife”) married in Memphis,
Tennessee on November 3, 1979. Together, they have four children, one of whom was a
minor child at the inception of this divorce proceeding. Of the other three children, two
lived together in Memphis, while the other lived with Wife and the minor child in the
marital home.
       Husband is currently a general surgeon with Methodist Medical Group. During
the early years of their marriage, Wife alternated between teaching and nursing, but, after
the birth of their second child, Wife quit working to take care of the children and the
marital home. Wife, however, has maintained her nursing license.

        After 35 years of marriage, Husband moved out of the marital home and filed for
divorce on February 25, 2015 in the Shelby County Circuit Court (“the trial court”),
initially alleging only irreconcilable differences. On May 8, 2015, Wife filed her answer,
asserting that she was not receiving wages from employment and had no present income
from wages to provide support for the parties’ minor child. Accordingly, Wife asked that
Husband be ordered to pay spousal and child support. Wife then filed a counter-
complaint for divorce on October 18, 2016, asserting that Husband had committed
adultery and that he was guilty of inappropriate marital conduct during the marriage.1 In
the alternative, Wife also asserted irreconcilable differences. Wife sought an award of
alimony pendente lite from Husband during the pendency of the divorce action and, upon
a final hearing, an award of alimony in solido and alimony in futuro.

        Husband filed his answer to Wife’s counter-complaint on November 17, 2016,
wherein he admitted that he had been involved in an extra-marital affair. Husband,
however, asserted that both parties had engaged in inappropriate marital conduct, and he
asked that the trial court dismiss Wife’s counter-complaint. Husband filed an amendment
to his complaint for absolute divorce on December 5, 2016, alleging inappropriate marital
conduct by Wife as an additional ground for divorce. On December 26, 2016, Wife filed
her answer to Husband’s amended complaint for absolute divorce, denying that she ever
engaged in inappropriate marital conduct or other conduct that would serve as grounds
for divorce. Additionally, as a defense to Husband’s allegation of inappropriate marital
conduct, Wife pleaded provocation and ill conduct on the part of Husband. Ultimately,
Husband filed a stipulation as to the grounds for divorce, stating that he “stipulates to the
grounds for divorce set forth in the Counter-Complaint for Absolute Divorce of [Wife],
and further stipulates to the granting of a divorce to Wife.”

        The trial began in August 2017. Because Wife was not working at the time of
trial, both she and Husband hired vocational experts to determine the amount of income
Wife could expect to receive upon her return to the workplace, if she chooses to do so.
Husband’s expert opined that, after some nursing refresher courses and in-hospital
clinical experience that would take “the better part of a year,” Wife could earn at least
$24.10 per hour, or $4,177 per month. Wife’s expert found that Wife had left the formal
labor market as a nurse in 1987 and then subsequently helped run Husband’s medical
office from 2012-2015. He opined that Wife could earn somewhere from $13.42 to

        1
          In her counter-complaint, Wife also averred that the parties’ minor child had reached the age of
majority and was no longer a minor. Accordingly, Husband’s and Wife’s four children were all adults at
this point in the proceedings.
                                                  -2-
$15.62 per hour which, using the lower wage range, would amount to $2,326 per month
working as a Registered Nurse in a home health care setting, physician’s office or nurse
case manager. In an affidavit, Wife affirmed that she was not earning any income at that
time but had been receiving alimony pendente lite in the amount of $7,500.00 per month.
The affidavit also listed Wife’s total monthly expenses as $12,030.51

       In its findings of fact and conclusions of law, which was entered prior to the entry
of the final decree, the trial court found that Wife “is capable of earning a reasonable
income as a nurse based on her education, training and background.” After addressing
the expenses listed in her affidavit, the trial court further found that “the perceived
monthly need on the part of [Wife]” was “something in the neighborhood of $8,000.”

        However, in its final decree of divorce, entered on October 23, 2017, the trial court
ordered Husband to pay Wife $9,000 per month as alimony in futuro. Additionally, the
trial court awarded Wife alimony in solido in the amounts of $22,500 for repairs to the
marital residence and $121,873.81 for Wife’s attorney’s fees. As to the justification for
the award of Wife’s attorney’s fees, the trial court found that “perhaps the most important
point to be made is that [Wife] simply has not wanted to be divorced” and that “all of this
protracted and extensive litigation conceivably was avoidable.” The final decree also
provided that Husband and Wife would each be responsible for “any other fees and
expenses, including expenses for experts, court reporters and such other expenses they
may have incurred.”

        On November 14, 2017, following the entry of the final decree of divorce, Wife
filed a motion for discretionary costs, stating that she had incurred a total of $5,606.25 in
discretionary costs in connection with the instant litigation. Because the trial judge who
heard the prior proceedings was unavailable, the motion for discretionary costs was heard
by a different judge2 by interchange. The judge who heard the motion by interchange
denied Wife’s motion, stating that the trial court had “already exercised its discretion by
ordering each party to pay their own costs” in the final decree of divorce and that this
ruling by the trial court was res judicata, barring Wife’s recovery of her discretionary
costs. Husband filed a timely notice of appeal on November 21, 2017. Wife, in her brief,
also raised issues on appeal.

                                        ISSUES PRESENTED

      Husband and Wife collectively raise four issues on appeal, which we rephrase as
follows:
         1. Whether the trial court erred in awarding Wife alimony in futuro in the
            amount of $9,000.00 per month.

        2
         Judge James Russell, who had presided over the trial of the case, was on medical leave. Circuit
Court Judge Rhynette Hurd heard the motion.
                                                 -3-
         2. Whether the trial court erred in awarding Wife her attorney’s fees as
            alimony in solido in the amount of $121,873.81.
         3. Whether the trial court erred in denying Wife’s Motion for Discretionary
            Costs.
         4. Whether Wife should be awarded her attorney’s fees on appeal.

                                 STANDARD OF REVIEW

       In non-jury cases, appellate courts review the trial court’s factual findings de novo
upon the record, accompanied by a presumption of the correctness of the findings, unless
the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Armbrister
v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). We review the trial court’s resolution
of questions of law de novo with no presumption of correctness. See Armbrister, 414
S.W.3d at 692.

        A trial court’s decision whether or not to award alimony and its ruling on a motion
for discretionary costs are both reviewed under an abuse of discretion standard. Cain-
Swope v. Swope, 523 S.W.3d 79, 94 (Tenn. Ct. App. 2016) (“We review an award of
alimony under the abuse of discretion standard.”); Bowman v. Benouttas, 519 S.W.3d
586, 596 (Tenn. Ct. App. 2016) (“With respect to the trial court’s decision regarding . . .
[a] motion for discretionary costs, we review the trial court’s decision[] under an abuse of
discretion standard.”). Under the abuse of discretion standard, the trial court’s decision
“will be upheld so long as reasonable minds can disagree as to the propriety of the
decision made.” Camp v. Camp, No. W2010-01037-COA-R3-CV, 2011 WL 2567542, at
*5 (Tenn. Ct. App. June 29, 2011). Accordingly, appellate courts are not permitted to
“second guess” the trial court’s determinations or to substitute their judgment for that of
the trial court. See Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).
“The abuse of discretion standard of review does not, however, immunize a lower court’s
decision from any meaningful appellate scrutiny.” Id.

                                       DISCUSSION

                                   Alimony in Futuro
       The appropriateness of an award of alimony is dependent on the facts and
circumstances of each case. It is well-settled in Tennessee that trial courts have broad
discretion when determining whether alimony is needed and, if so, the amount, duration,
and nature of the award. Gladwell v. Gladwell, No. W2014-01095-COA-R3-CV, 2015
WL 4400127, at *6 (Tenn. Ct. App. July 20, 2015). By statute, trial courts are directed to
consider the following factors when determining whether alimony is appropriate and in
determining the nature, amount, length of term, and manner of payment:



                                           -4-
       (1) The relative earning capacity, obligations, needs, and financial
       resources of each party, including income from pension, profit sharing or
       retirement plans and all other sources;
       (2) The relative education and training of each party, the ability and
       opportunity of each party to secure such education and training, and the
       necessity of a party to secure further education and training to improve such
       party’s earnings capacity to a reasonable level;
       (3) The duration of the marriage;
       (4) The age and mental condition of each party;
       (5) The physical condition of each party, including, but not limited to,
       physical disability or incapacity due to a chronic debilitating disease;
       (6) The extent to which it would be undesirable for a party to seek
       employment outside the home, because such party will be custodian of a
       minor child of the marriage;
       (7) The separate assets of each party, both real and personal, tangible and
       intangible;
       (8) The provisions made with regard to the marital property, as defined in §
       36-4-121;
       (9) The standard of living of the parties established during the marriage;
       (10) The extent to which each party has made such tangible and intangible
       contributions to the marriage as monetary and homemaker contributions,
       and tangible and intangible contributions by a party to the education,
       training or increased earning power of the other party;
       (11) The relative fault of the parties, in cases where the court, in its
       discretion, deems it appropriate to do so; and
       (12) Such other factors, including the tax consequences to each party, as are
       necessary to consider the equities between the parties.

Tenn. Code Ann. § 36-5-121(i). It is well-settled that the disadvantaged spouse’s need
and the obligor spouse’s ability to pay are the most important among these factors. Riggs
v. Riggs, 250 S.W.3d 453, 457 (Tenn. Ct. App. 2007). Ultimately, however, “the
disadvantaged spouse’s need is the threshold consideration.” Id. (citations omitted).

        Tennessee Code Annotated section 36-5-121(d)(1) lists the four types of spousal
support that are recognized under Tennessee law: (1) alimony in futuro; (2) alimony in
solido; (3) rehabilitative alimony; and (4) transitional alimony. Relevant to the case at
bar is the trial court’s award of alimony in futuro, which, as defined by the statute, is “a
payment of support and maintenance on a long term basis” and “may be awarded when
the court finds that there is relative economic disadvantage and that rehabilitation is not
feasible[.]” Tenn. Code Ann. § 36-5-121(f)(1).3 Husband asserts that the trial court erred

       3
          The trial court also awarded Wife attorney’s fees, which is considered a form of alimony in
solido and is discussed below.
                                                -5-
by awarding wife alimony in futuro in the amount of $9,000 per month. In support of
this award, the trial court offered the following in its findings of fact and conclusions of
law:

       [H]ere we look first to the claimed “need” as set forth in the wife’s Rule
       14(C) affidavit and the body of proof as a whole. It should be noted that
       she has no mortgage at this time, contrary to that which is shown in the
       proposal of $1,849 per month. She has a house full of furniture, and there
       is no “need” of $495 per month for “home furnishing.” And while she may
       need to replace her automobile at some point in the future, she has no
       present monthly ongoing “need” at the level of $833.33 per month for car
       replacement.

       ....

       Continuing on, these three items total some $3,077[4] when added together.
       When subtracted from the total set forth in the wife’s Rule 14(C) affidavit
       in the amount of $12,030.51, the difference is, according to the Court’s
       mathematics, eight thousand nine hundred and fifty-three dollars and
       change.[5] In addition the wife shows some $480 for a “handyman,” an
       additional $260 for “housekeeping,” and an additional $600 for
       “miscellaneous repairs,” all of which added together comes to a total of
       $1,340. There frankly is no evidence in this record to support such needs.
       Moreover, it should be noted that three of the parties’ four children still live
       at home and, as mentioned in the statute, conceivably could fill some of
       those needs. In any event, all of that would reduce the perceived monthly
       need on the part of the spouse down to something in the neighborhood of
       $8,000.

       Again, considering the whole body of proof and the statutory provisions
       which the Court has laboriously outlined, the Court is drawn to a
       conclusion, taking all of those factors into account as set forth in the statute,
       that an appropriate award of $9,000 per month in spousal support is a fair
       and just alimony in futuro award under all of the facts and circumstances of
       this case as they presently exist.

(emphasis added)

       After our review of the record, we are of the opinion that the trial court’s alimony
in futuro award should be vacated and remanded for reconsideration. First, as noted in

       4
           This Court made the same calculations and reached a total of $3,177.
       5
           Again, this Court reached a similar, yet different result: $8,853.18.
                                                    -6-
the portion of its findings of fact and conclusions of law reproduced above, the trial court,
without further explanation, awarded Wife $9,000 per month of alimony in futuro,
notwithstanding its finding that Wife’s monthly need was “something in the
neighborhood of $8,000.” Moreover, the trial court, in making its alimony award, failed
to consider its other findings that Wife could “reasonably re-enter the employment
market” and “is capable of earning a reasonable income as a nurse based on her
education, training and background” even though Wife stated she had no intention of
returning to work. The trial court based these findings on the reports and testimony
provided by both Husband’s and Wife’s vocational experts. Husband’s expert testified at
trial and provided in his report that, if Wife re-entered the employment market as a
registered nurse, she could earn at least $24.10 per hour or $4,177 per month in income.
Wife’s expert testified that Wife could earn at least $13.42 per hour or $2,326 per
month.6 In determining the amount of alimony in futuro to award Wife, however, the
trial court did not factor in these wage ranges provided by both parties’ experts, despite
the fact that the relative earning capacity of both parties is one of the statutory factors the
trial court must consider when calculating such an award. See Tenn. Code Ann. § 36-5-
121(i)(1). This Court has observed that, after the trial court has determined an amount of
income “which will provide for the wife to live in the manner to which she became
accustomed during the marriage[, f]rom this amount should be subtracted her reasonably
anticipated income[.]” Duncan v. Duncan, 686 S.W.2d 568, 572 (Tenn. Ct. App. 1984).

       In addition to the above considerations, which should have been taken into
consideration by the trial court, we are compelled to note that the nature of the alimony
awarded was itself without a proper factual foundation. Namely, it does not appear that
the trial court ever specifically found that Wife’s economic rehabilitation was not
feasible. In a recent decision, we vacated an award of alimony in futuro where such a
finding was absent:

[W]e again note that there is a “legislative preference favoring short-term spousal support
over long-term spousal support.” In fact, in order for a trial court to award alimony in
futuro, “there must be a threshold determination by the trial judge that, considering all
relevant factors, rehabilitation of the economically disadvantaged spouse is not feasible.”
Here, the trial court's decision to award alimony in futuro is not accompanied by this
necessary determination. Because there is no finding that economic rehabilitation is not
feasible and there is no finding that long-term support is necessary, the trial court’s
decision is without a proper foundation. Very simply, there is an absence of an
explanation regarding the trial court’s decision to award in futuro support in light of the
pertinent statutory factors.

       ****

       6
         In fact, Wife’s expert opined that the low wage range for a registered nurse in the Memphis,
Tennessee area is even higher at $15.62 per hour—or $32,490 per year.
                                                -7-
               For the foregoing reasons, we vacate the award of . . . alimony in
       futuro and remand for a reconsideration of the type, duration, and amount
       of alimony, if any, that is to be awarded. First and foremost, the trial court
       should make factual findings as to Wife’s need for support and Husband’s
       ability to pay. Because there is a legislative preference towards awarding
       rehabilitative or transitional alimony over alimony in futuro or in solido, the
       court should also make findings as to whether Wife’s rehabilitation is
       feasible. If not, the trial court should consider whether an award of
       transitional alimony is appropriate. If transitional alimony is not
       appropriate, the trial court should consider the nature and duration of long-
       term support.

Buntyn v. Buntyn, No. W2016-00398-COA-R3-CV, 2017 WL 781724, at *3–4 (Tenn. Ct.
App. Feb. 28, 2017) (internal citations omitted).

       Here, the trial court should reconsider the alimony issue in light of the above
discussion. The trial court, of course, is not foreclosed from awarding Wife long-term
support, but any such award should be supported by proper findings and consideration of
the relevant alimony factors. In reference to Wife’s needs, we again note that the trial
court’s own findings established that Wife’s needs are “something in the neighborhood of
$8,000.” We further reiterate that the trial court must consider the evidence regarding the
range of Wife’s reasonably anticipated income. We, therefore, vacate the trial court’s
award of alimony in futuro and remand the issue for further proceedings consistent with
this opinion.

                                     Attorney’s Fees

       It is well-settled that an award of attorney’s fees in a divorce case constitutes
alimony in solido. Gonsewski v. Gonsewski, 350 S.W.3d 99, 113 (Tenn. 2011); see also
Tenn. Code Ann. § 36-5-121(h)(1) (“[A]limony in solido may include attorney fees,
where appropriate[.]”). The decision whether or not to award attorney’s fees is within the
sound discretion of the trial court. Gonsewski, 350 S.W.3d at 113 (citing Crabtree v.
Crabtree, 16 S.W.3d 356, 361 (Tenn. 2000)). As with any alimony award, in deciding
whether to award attorney’s fees as alimony in solido, the trial court should consider the
factors enumerated in Tennessee Code Annotated section 36-5-121(i), provided above.
Moreover, such an award is only appropriate when the spouse seeking it lacks sufficient
funds to pay his or her legal expenses or would be required to deplete his or her resources
in order to pay them. Id. (internal citations omitted).

       Here, in its final decree, the trial court awarded Wife her attorney’s fees in the
amount of $121,873.81. In his brief on appeal, Husband points to the trial court’s lack of
findings on this issue: “The Trial Court did not find that Wife did not have the ability to
                                             -8-
pay the fees. The Trial Court did not find that Husband had the ability to pay the fees.
The Trial Court simply ordered it.” In its oral findings of facts and conclusions of law,
the only finding/comment that the trial court stated in support of its award is as follows:

       [T]he most important point to be made is that the wife simply has not
       wanted to be divorced. This appears to be so in spite of the husband’s
       admitted marital infidelity. That being so, all of this protracted and
       extensive litigation conceivably was avoidable.

       The Court accordingly is compelled to a conclusion that the wife’s fees as
       set forth in her amended affidavit should be awarded to her and the husband
       ordered to pay it according to that affidavit.

       After our review of the record, we are of the opinion that the trial court failed to
consider the factors set forth in Tennessee Code Annotated section 36-5-121(i) in
determining whether or not to award Wife her attorney’s fees. Moreover, a trial court
evaluating the reasonableness of an award of attorney’s fees must consider the factors
provided in Tennessee Supreme Court Rule 8, RPC 1.5. Wright ex rel. Wright v. Wright,
337 S.W.3d 166, 185 (Tenn. 2011). That rule provides, in pertinent part, as follows:

       (a) The factors to be considered in determining the reasonableness of a fee
       include the following:
       (1) the time and labor required, the novelty and difficulty of the questions
       involved, and the skill requisite to perform the legal service properly;
       (2) the likelihood, if apparent to the client, that the acceptance of the
       particular employment will preclude other employment by the lawyer;
       (3) the fee customarily charged in the locality for similar legal services;
       (4) the amount involved and the results obtained;
       (5) the time limitations imposed by the client or by the circumstances;
       (6) the nature and length of the professional relationship with the client;
       (7) the experience, reputation, and ability of the lawyer or lawyers
       performing the services;
       (8) whether the fee is fixed or contingent;
       (9) prior advertisements or statements by the lawyer with respect to the fees
       the lawyer charges; and
       (10) whether the fee agreement is in writing.

Tenn. Sup. Ct. R. 8, RPC 1.5(a). In Wright, the Tennessee Supreme Court provided
additional guidance:

       [T]he trial court should develop an evidentiary record, make findings
       concerning each of the factors, and then determine a reasonable fee that
       “depend[s] upon the particular circumstances of the individual case.” To
                                          -9-
       enable appellate review, trial courts should clearly and thoroughly explain
       the particular circumstances and factors supporting their determination of a
       reasonable fee in a given case.

Wright, 337 S.W.3d at 185-86 (citations omitted). This Court has remanded numerous
cases for reconsideration when a trial court has not followed this prescribed procedure.
For example, in First Peoples Bank of Tennessee v. Hill, we stated:

       Where a trial court awards a fee, but there is nothing in the record to
       indicate that the trial court actually evaluated the amount of the fee to see if
       it is reasonable in light of the appropriate factors, the correct approach is to
       vacate the award and “remand [the] case to the trial court for a new
       determination of an attorney’s fee award under [Supreme Court Rule 8,
       RPC 1.5] and the applicable case law.”

First Peoples Bank of Tennessee v. Hill, 340 S.W.3d 398, 410 (Tenn. Ct. App. 2010)
(citations omitted).

        Here, the trial court did not make a finding of reasonableness, nor did it refer to
Rule 1.5 or any of its factors; it simply awarded Wife an amount of fees with no further
findings or explanation. Accordingly, we vacate the trial court’s award of attorney’s fees
and remand for a new determination as to whether Wife should be awarded her attorney’s
fees and, if so, the reasonableness of such fee award, with findings by the trial court
reflecting that it considered all of the factors outlined above and the applicable case law.
On remand, the trial court may re-open the proof as to this issue, if it chooses to do so.

       Wife also requests attorney’s fees on appeal. “Whether to award attorney’s fees
on appeal is a matter within the sole discretion of this Court.” Luplow v. Luplow, 450
S.W.3d 105, 119 (Tenn. Ct. App. 2014). In determining whether to award attorney’s fees
on appeal, we consider the ability of the requesting party to pay the accrued fees, the
requesting party’s success in the appeal, whether the requesting party sought the appeal in
good faith, and any other equitable factor that should be considered. Taking these factors
into consideration, we decline to award Wife her attorney’s fees on appeal.

                         Wife’s Motion for Discretionary Costs

        Following the entry of the final decree of divorce, Wife filed a motion for
discretionary costs on November 14, 2017, stating that she had incurred $5,606.25 in
discretionary costs in connection with the instant litigation. Prior to the filing of Wife’s
motion, however, the trial court—in both its findings of fact and conclusions of law and
its final decree—had stated that “[e]ach of the parties will be responsible for any other
fees and expenses, including expenses for experts, court reporters and such other
expenses they may have incurred.” On March 9, 2018, the trial court—with a different
                                          - 10 -
judge sitting by interchange—denied Wife’s motion, stating that “the Trial Court had
already exercised its discretion by ordering each party to pay their own costs as found in
Paragraph 11 of the Final Decree, which ruling is res judicata, barring [Wife’s] recovery
under Rule 54.04.” Wife argues that the trial court erred in ruling on Wife’s motion for
discretionary costs in advance of her filing such a motion. We agree.

        Although Tennessee Rule of Civil Procedure 54.04 provides that “[c]osts not
included in the bill of costs prepared by the clerk are allowable only in the court’s
discretion[,]” the rule further provides that “a party requesting discretionary costs shall
file and serve a motion within thirty (30) days after entry of judgment.” Tenn. R. Civ. P.
54.04(2). The record shows that Wife timely filed her motion.7 We are of the opinion
that the trial court, in both its findings of facts and conclusions of law and final decree, in
effect, denied Wife her discretionary costs before a motion for such costs was even
before it. Then, after Wife filed her motion, the trial court—with a different judge sitting
by interchange—denied it on the grounds of res judicata. We conclude that the trial
court’s March 9, 2018 order denying Wife’s motion for discretionary costs was improper
because the trial court’s initial denial of such costs in its findings of fact and conclusions
of law and final decree was premature. As such, Wife’s motion was never adjudicated on
the basis of its merits, or lack thereof. Accordingly, we vacate the trial court’s order
denying Wife’s motion for discretionary costs and remand the issue to the trial court for a
consideration of the motion on its merits.

                                        CONCLUSION

        We vacate the trial court’s October 23, 2017 judgment as it pertains to its awards
to Wife of alimony in futuro and attorney’s fees as alimony in solido, and we remand the
case to the trial court for further proceedings consistent with this opinion. Additionally,
we vacate the trial court’s March 9, 2018 order denying Wife’s motion for discretionary
costs, and we remand the issue to the trial court for a consideration of the motion on its
merits.


                                                      _________________________________
                                                      ARNOLD B. GOLDIN, JUDGE




       7
          The trial court entered its final decree on October 23, 2017. Wife filed her motion for
discretionary costs on November 14, 2017, within the thirty day window provided in Rule 54.04.
                                             - 11 -
