Robbie Ann Stavely Hendrix v. Billy Gene Hendrix ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON FILED
September 30, 1998
___________________________________________
ROBBIE ANN STAVELY HENDRIX, ) Cecil Crowson, Jr.
Appellate C ourt Clerk
)
Plaintiff-Appellee, ) Madison Chancery No. 51335
)
v. ) Appeal 02A01-9712-CH-00303
)
BILLY GENE HENDRIX, )
)
Defend ant-App ellant. )
APPEAL FROM THE CHANCERY CO URT OF MADISON COUNTY
AT JACKSON, TENNESSEE
THE HONORABLE JOE C. MORRIS, CHANCELLOR
For the Plaintiff-Appellee: For the D efendan t-Appellan t:
Middlebrooks & Gray, P.A. James S. Hayw ood, Jr.,
Jackson, Tennessee Brownsville, Tennessee
AFFIRMED AND REMANDED
HERSCH EL P. FRAN KS, J.
CONCUR:
W. FRANK CRAW FORD, P.J., W.S.
ALAN E . HIGHERS , J.
OPINION
In this divorce action, the Trial Judge granted the wife a divorce,
ordered the defenda nt to pay alimon y in the amou nt of $40 0.00 a mo nth, and ch ild
support for one child in the amount of $750.00, and attorney’s fees for the wife in the
amount of $1,634.67. He also ordered the husband to pay certain debts of the
marriage. On appeal, the husband seeks a reversal of the decree for alimony, payment
of the marital debts and attorney’s fees to the wife. He also seeks a reduction in the
amount of child support awarded by the Trial Judge.
The parties have been married twice, first in 1969, divorced in 1977 and
remarried in 1978, and separated near the end of 1993. One child at the time of the
divorce was a minor, born on August 28, 1981. Also at the time of the divorce, the
wife was residing at Brownsville, Tennessee, and the husband in California. At the
time of the divorce the wife was earning a gross monthly income of $1,560.00, and the
husband was not employed. He had a history of earning in excess of $5,000.00 per
month, and the wife testified that the major indebtedness of the parties was due to the
husba nd’s pu rchase s of an autom obile, fu rniture a nd item s for his person al use.
The Trial Judge set the alimony and child support based on the
husba nd’s ea rning c apacity, w hich is a uthoriz ed by statu te. See Tennessee Code
Annotated §36-5-101 et seq. Need, and the ability to pay are the principal criteria for
award ing alim ony. Lloyd v. Lloyd, 860 S.W.2d 409 (Tenn. App. 1993). Applying the
factors set forth in Tennessee Code 36-5-101(d) for awarding alimony, we find the
record supports the Trial Judge’s award of alimony. The relative earning capacity of
the parties is substantially unequal. The educational level of the parties is similar, but
the husband’s work, experience and training is superior. The parties are the same age
and both are in good health and had a relatively long marriage. The Trial Judge found
the husband to be at fault for the breakup of the marriage. The wife testified that she
and her daughter had monthly living expenses in excess of $2,700.00. The award of
alimony was within the Trial Court’s discretion, and we will not disturb this award on
appeal.
After judgment was entered awarding child support, but before the
judgment became final, the husband filed a motion to reconsider and attached a letter
from an e mployer in C alifornia w hich states tha t the husban d had bee n employed with
that company and would be earning $40,000.00 per year. The husband offered no
eviden ce at the time the motion was h eard, an d the T rial Judg e overr uled the motion .
The award of child support is appropriate on the evidence in this record. The
evid ence befo re the Tri al Judge establish ed th at the husb and had a “ea rning cap acity”
in excess of $5,000.00 per month, and it is appropriate for the Trial Judge to use
earning capacity as a gauge for setting support, unless the spouse can demonstrate that
he or she can no longer earn that income through no fault of their own. We affirm the
judgmen t of the Trial C ourt on the is sue of ch ild support. H oweve r, the husban d is
granted leave to reapply for a reduction if he can demonstrate, by a preponderance of
the evidence, that he has acted in good faith and cannot find gainful employment that
approximates in amount the history of his past earnings.
Finally, courts ha ve the discre tion to mak e awards to help a spo use to
pay legal e xpens es and c osts in a d ivorce c ase. Fox v. Fox, 657 S.W.2d 747, 749
(Tenn . 1983) . Here, th e wife lacked suffici ent fun ds to pa y her lega l expen ses. See
Houghland v. Houghland, 844 S.W.2d 619, and she would either deplete her
resourc es, or be require d to bor row m oney to p ay her leg al bills. See Harwell v.
Harwe ll, 612 S.W .2d 182, 18 5 (Ct. Ap p. 1980). T he amou nt of fees a nd costs is
reasonable and the award was a proper exercise of the Trial Judge’s discretion. The
evidence does not p reponde rate against th e Trial Co urt’s finding s. T.R.A.P . Rule
13(d).
We affirm the judgment of the Trial Court for the foregoing reasons, and
remand w ith cost of the appeal asse ssed to app ellant.
__________________________
Herschel P. Franks, J.
CONCUR:
___________________________
W. Frank Crawford, P.J.
___________________________
Alan E. Highers, J.