Tamara Emison v. Randy Emison ( 1999 )


Menu:
  •                   IN THE COURT OF APPEALS OF TENNESSEE
    AT JACKSON
    ________________________________________
    TAMARA KAY WILLIAMS EMISON,
    Appellee,                                 FILED
    Crockett Chancery No. 7365
    Vs.                                              C.A. No. W1998-00591-COA-R3-CV
    December 27, 1999
    RANDY JOE EMISON,
    Cecil Crowson, Jr.
    Appellant.                      Appellate Court Clerk
    _____________________________________________________________________
    FROM THE CROCKETT COUNTY CHANCERY COURT
    THE HONORABLE GEORGE R. ELLIS, JUDGE
    Middlebrooks & Gray, P.A., of Jackson
    For Appellee
    L. L. Harrell, Jr.; Harrell & Harrell of Trenton
    For Appellant
    REVERSED IN PART, AFFIRMED IN PART AND REMANDED
    Opinion filed:
    W. FRANK CRAWFORD,
    PRESIDING JUDGE, W.S.
    CONCUR:
    ALAN E. HIGHERS, JUDGE
    HOLLY KIRBY LILLARD, JUDGE
    This case concerns the division of property, allocation of marital debts, alimony,
    child support, and life insurance as security for child support. Defendant-appellant,
    Randy Joe Emison (Husband), appeals from the judgment of the trial court granting an
    absolute divorce to plaintiff-appellee, Tamara Kay Emison (Wife).
    The parties were married on July 12, 1985. There were two children born of this
    marriage, Randa Joanne Emison, born June 23, 1986 and Randy Joe Emision Jr.,
    born April 18, 1988. Husband had one previous marriage, and there are no previous
    marriages by Wife. At the time of trial, Wife was 36 years old, and Husband was
    37years old.
    In the early years of the marriage Wife held several short term jobs, but has
    stayed at home for most of the marriage. Wife received an associates degree in office
    administration in May of 1997. At the time of trial Wife was employed as a bookkeeper
    at Fletcher Equipment in Burlison, Tennessee, with a net income of approximately
    $1,100.00 per month. Wife testified that expenses for herself and two minor children
    are $2,199.00 per month.
    Husband completed high school. From the beginning of the marriage through
    February of 1997 Husband was a self employed truck driver. Husband then went to
    work for his brother. At the time of trial Husband testified that he worked for his
    stepmother making $410.00 per week, and that his monthly expenses were $2,080.03.
    Tax returns indicate that Husband’s income was $54,059.00 in 1994, $41,715.00 in
    1995, and $29,755.00 in 1996. Husband attributed his loss of income to the sale of his
    truck to his brother for $19,500.00 in March of 1997.
    Wife filed her complaint for divorce in Madison county on September 4, 1997 on
    the grounds of irreconcilable differences and inappropriate marital conduct. Wife
    asserts that from the time that Husband began an extra-marital relationship with Lisa
    Mauldin in January 1996 he began transferring assets from himself to his father,
    brother, and step-mother. Husband admits to the extra-marital affair from January of
    1996 through September of 1996, but asserts that W ife found out about the affair in
    October 1996, approximately one year prior to filing for a divorce. Husband contends
    that he admitted
    to the affair and that the parties subsequently continued a physical marital relationship.
    Husband asserts that the parties went for counseling and that although Wife denied
    that the reason she wanted a divorce was because Husband did not make enough
    money, she claimed to have forgiven him for the affair.
    The parties separated on September 21, 1997. Husband made a motion to
    dismiss based on lack of venue, and divorce was transferred to Crockett county. By
    order of December 16, 1997 the court awarded temporary custody of the children to
    Wife and ordered Husband to pay child support of 104.00 per week, plus clerk’s fee of
    $5.20, for a total of $109.20 per week. By the same order Husband was ordered to pay
    the mortgage payment on the former marital residence as alimony until the house was
    sold. On January 12, 1998 Husband was found in wilful contempt of the court order
    and was in arrears in payment of the home mortgages in the amount of $3,445.00. The
    court ordered that the Husband be held in jail until payment of the arrearage amount
    or such other sum as satisfactory to the Bank of Crockett to prevent foreclosure
    proceedings. Husband’s father paid an amount sufficient to have Husband released
    from jail. At the closing of the sale of the marital home the mortgage payments were
    five months in arrears.
    After a non-jury trial, the court awarded Wife an absolute divorce from the
    Husband on the grounds of inappropriate marital conduct and awarded custody of the
    two minor children to Wife with visitation according to the shared parenting plan as
    stipulated by the parties. The trial court found Husband to be underemployed and
    ordered child support of $192.00 plus commission per week to be paid by Husband by
    wage assignment. The trial court further ordered Husband to maintain health insurance
    on the minor children, and the parties were to split equally all medical, dental, optical,
    and psychological expenses above the deductible not covered by insurance. Husband
    was ordered to take out a life insurance policy for the benefit of the minor children in
    the amount of $100,000.00 until each child reaches 18 years of age.            The court
    ordered that the parties shall own the real estate located at Cherokee Heights as
    tenants in common.
    As to the division of personal property the court awarded Husband property
    3
    valued at $40,185.00, and the Wife property valued at $14,805.00. In addition the Wife
    was awarded $25,380.00 as alimony in solido, which the court found represents the
    difference between the value of personal property received by Husband and Wife. As
    to funds receive by the parties as a result of Wife’s car accident, the court ordered that
    Husband receive an amount of $648.88 (which represents one-half of the marital funds
    spent on Wife’s medical bills as a result of her accident) to be credited against the
    award of $25,380.00 as alimony in solido. The trial court ordered that Husband assume
    the debt to Volunteer Bank in the amount of $19,500.00, and to hold Wife harmless
    from any liability therefor. The court also ordered that this is a support obligation and
    nondischargeable in bankruptcy pursuant to 
    11 U.S.C. § 523
     (a)(5). The court further
    ordered that Wife shall receive the remaining funds received as a result of the car
    accident (3 checks totaling $6,939.93). The court awarded as alimony in solido the
    sum of $6,298.27 to be paid by Husband to Wife’s attorney. Wife was also granted as
    alimony in solido the sum of $25,000.00 as a judgment against Husband. In addition
    Wife was granted a judgment of one-half of all payments, interest, late charges and
    fees that have accrued on the parties’ house note since November 5, 1997 in the
    amount of $1,404.58. Husband was ordered to pay the costs of the cause. Trial court
    further ordered that it retained jurisdiction to modify support in the event of Husband’s
    filing bankruptcy. Husband has appealed and presents seven issues for review.
    I. Did the trial court err in the setting of child support in the amount
    of $192.00 per week, plus clerk’s commission?
    II. Did the trial court err in the division of personal property
    between the parties?
    III. Did the trial err in awarding plaintiff a judgment for $25,000.00
    and in making said judgment a non-dischargeable debt in bankruptcy by
    classifying same as support pursuant to 
    11 U.S.C. § 523
     (a)(5)?
    IV. Did the trial court err in awarding the plaintiff a judgment in the
    amount of $25,380.00 as alimony in solido, which sum represented the
    difference between the value of personal property received by the
    Husband and that received by the Wife?
    V. Did the trial court err in ordering the defendant to assume the
    debt owing to Volunteer Bank and in making same a part of plaintiff’s
    support so as to be non-dischargeable in bankruptcy pursuant to 
    11 U.S.C. § 523
     (a) (5)?
    VI. Did the trial court err in awarding the Wife as alimony in solido
    4
    the sum of $6,298.27 for attorney’s fee?
    VII. Did the trial court err in ordering the defendant to maintain life
    insurance on himself in the amount of $100,000.00 as security for
    payments to be made by the defendant for the support and maintenance
    of the children?
    Since this case was tried by the trial court sitting without a jury, we review the
    case de novo upon the record with a presumption of correctness of the findings of fact
    by the trial court. Unless the evidence preponderates against the findings, we must
    affirm, absent error of law. T.R.A.P. 13 (d). (Tenn. App. 1995).
    Husband’s first issue is whether the trial court erred in setting the child support
    in the amount of $192.00 per week, plus court clerk’s commission. Husband asserts
    that when the costs of operating his trucks is considered, his reported income is not
    nearly as great as it appears on paper. Husband argues that evidence offered by Wife
    inflates his income by including the depreciation taken on the equipment. However we
    agree with Wife that according to the child support guidelines promulgated by the
    Tennessee Department of Human Services depreciation is not considered a reasonable
    expense.
    With regard to gross income, the child support guidelines provide that “[i]ncome
    from self-employment includes income from business operations and rental properties,
    ect., less reasonable expenses necessary to produce such income . Depreciation,
    home offices, excessive promotional, excessive travel, excessive car expenses, or
    excessive personal expenses, ect., should not be considered reasonable expenses...”
    Tenn. Comp.R. & Regs., CH. 1240-2-4-.03(3) (a) (1994).
    As to Husband’s income Wife contends that Husband began transferring assets
    from himself to his father, brother, and stepmother intentionally lowering his reported
    income.    Wife asserts Husband had been self-employed from the beginning of the
    marriage until March of 1997, at which time he began to work for his brother. Wife
    asserts that after transferring his truck to his brother the truck earned $76,006.97 in
    1997, doing the same type work performed while Husband owned the truck.                Wife
    asserts that in November of 1997 Husband represented to the court that his income was
    $1,773.33 per month, while in July of 1997 Husband signed a business loan agreement
    5
    with Bank of Crockett representing his income as $4,187.88.
    The court in Garfinkel v. Garfinkel, 
    945 S.W. 2d 744
     (Tenn. Ct. App. 1996) held
    that “[i]f an obligor is willfully and voluntarily unemployed or underemployed, child
    support shall be calculated based on a determination of potential income, as evidenced
    by educational level and/or previous work experience.” 
    Id.
     at 748 (citing Tenn.Comp.R.
    &Regs., ch. 1240-2-4-.03 (3) (d) (1994). The Garfinkel court noted the decision on
    appeal in Ford v. Ford, No. 02A01-9507-CH-00153, 
    1996 WL 560258
     (Tenn. Ct. App.
    Oct.3, 1996) where the court held that the term “willfully” in the child support guidelines
    does not mean that income may only be imputed to the husband when he is found to
    be purposefully trying to avoid child support obligations. 
    Id.
     at 748 (citing Ford at *3).
    In Ford the court remanded the case to the trial court and ordered a recalculation of
    child support based on husband’s “potential income, considering his educational
    background and previous work experience.” 
    Id.
     at 748 (citing Ford at *3). Following the
    reasoning of the Ford court, the Garfinkel court affirmed the trial court 1 stating the child
    support was correctly calculated based on Husband’s potential income considering his
    educational background and earnings before he decided to discontinue employment.
    The court in Herrera v. Herrera, 
    944 S.W.2d 379
    (Tenn. Ct. App. 1996), agreed
    with the proposition that when an obligor is willfully and voluntarily underemployed or
    unemployed, child support should be determined by a calculation of obligor’s potential
    income, based on education and prior work experience. Herrera, 
    944 S.W.2d at
    387
    (citing Tenn. Comp.R. & Regs. 1240-2-4-.03(3)(c) (1991).            The court in Herrera
    remanded the case to the trial court for a determination of Dr. Herrera’s monthly income
    potential, finding “that the trial court erred in not making a determination as to Dr.
    Herrera’s monthly income potential and in setting the child support obligation.” 
    Id.
    In accordance with the ruling in Herrera and with the rulings of Ford and
    Garfinkel in mind, we are of the opinion that the trial court erred in not making a specific
    determination as to Husband’s monthly income potential and in setting the child support
    1
    The trial court ordered husband to pay $900.00 per month child support
    based on his last reported income of $40,000.00 in 1983, his educational level, and his
    annual income from rental properties.
    6
    obligation.    Consequently, the case should be remanded to the trial court for a
    determination of Husband’s monthly income potential. The child support shall remain
    $192.00 per week until otherwise ordered.
    Husband’s second issue is whether the trial court erred in the division of personal
    property between the parties.
    In dividing the property the trial court found that the sale of the tractor, the fishing
    boats, the trailer, two trucks, a box blade, and the truck that Husband currently drives
    were not arm’s lengths transactions and that these items shall be credited to Husband.
    The court’s order states that Husband agreed to take the Clark Michigan front-end
    loader and assume the indebtedness to Volunteer Bank, the only indebtedness that the
    parties had at the time of the order, and hold the Wife harmless.
    The Husband advances no argument as to the division of the property, rather
    Husband argues that the values used do not reflect the present value, which was given
    by Husband. Instead, values used were given by Wife and reflect what Wife claims that
    Husband told her the items were worth or reflect the value of the item when new.
    Husband contends that there was no finding by the court as to why the values submitted
    by Wife were favored over those submitted by Husband. Husband asserts that the
    award to Wife was $105,157.20 and the award to Husband was a negative $29,244.39.
    Husband disputes Wife’s assessment as to the value of the shop equipment at
    $15,000.00, stating that she had no actual knowledge of its fair market value. Husband
    urges that value of the shop equipment is $225.00. The record reveals that Wife
    testified that the value of the shop equipment was based on Husband’s statement to
    Wife at the time that the parties insured the shop.
    The value of marital assets is determined by considering all relevant evidence
    of value. Watters v. Watters, 
    959 S.W.2d 585
    , 589 (Tenn. Ct. App. 1997) (citing Koch
    v. Koch, 
    874 S.W.2d 571
    , 577 (Tenn. Ct. App. 1993) (citations omitted)). The burden
    to prove the value of the assets is on the parties through production of evidence and
    parties are bound by the evidence that they produce. 
    Id.
     It is within the discretion of the
    trial court to place a value on the assets within the range of the evidence submitted by
    parties. 
    Id.
    7
    Since the value of assets is a question of fact, the presumption on appeal is that
    the trial court’s valuation is correct. Watters, 959 S.W. 2d at 589; see also Smith v.
    Smith, 
    912 S.W. 2d 155
    , 157 (Tenn. Ct. App. 1995). We find that the values given to
    assets are within the range of the evidence given as they reflect the testimony and
    assertions of Wife. The Husband claims that there is no showing that the Husband has
    any assets that were not accounted for and further that a detailed account was given by
    the Husband as to what was done with all property sold and where all funds received
    were applied. However, we do not find that the record indicates that the trial court failed
    to consider all evidence when making its decision, rather that the court, within its
    discretion, found the testimony of the Wife more creditable than that of the Husband.
    When the resolution of issues in a case depends upon the truthfulness of a witnesses,
    the trial court judge, who has had the opportunity to observe the witnesses in their
    manner and demeanor while testifying is in a far better position than a court of appeal
    to decide those issues. McCaleb v. Saturn Corp., 
    910 S.W. 2d 412
    , 415 (Tenn. 1995);
    Whitaker v. Whitaker, 
    957 S.W. 2d 834
    , 837 (Tenn. Ct. App. 1997).             The record
    supports the finding by the trial court regarding valuation of property as the valuations
    given were within the range of the evidence given. We therefore affirm the trial court’s
    ruling as to the property settlement.
    Husband’s third issue disputes the court’s award to Wife of a non-
    dischargeable judgment for $25,000.00 as alimony in solido. Husband argues that
    because an award of alimony must be based upon an ability to pay, and because he
    neither has the ability to pay the $25,000.00 judgment, or the assets out of which to
    raise these funds, the award is in error.
    There is testimony of Wife that indicates an ability of Husband to pay this
    award. Wife asserts that there was $143,011.95 for which the Husband cannot
    account. Wife testified that she did not know how the proceeds from the sale of
    assets were spent, nor is she aware of how loan moneys were applied. The record
    reflects that the Husband took out various loans, including the loan for $19,500.00
    from Volunteer Bank, to pay bills. Wife further asserts that Husband received
    $300.00 from the sale of the six-teen foot trailer, 19,500.00 from the sale of the truck
    8
    to his brother and that a note against the truck sold to his brother was paid from
    proceeds from the sale of the marital home. Wife asserts that the record reflects that
    Husband admits to receiving $38,000.00 from the sale of a truck to a third party and
    that money was used to pay off notes , but that Husband can not identify which notes
    where paid. Wife asserts that Husband claims that the $1,500.00 that he received
    from his step mother for the mower was used to pay bills. Wife further asserts that
    Husband admits that a second mortgage made in May of 1997 was used to pay off
    notes for a swimming pool and unpaid taxes, and to pay bills, however Husband is not
    able to identify which bills were paid. Although Wife concedes that some money was
    used to pay bills, she contends that not all of these funds was so used. Wife asserts
    that money has been hidden in Husband’s father’s safe.          In making the award the
    court stated:
    The wife urges that she be given a judgement for some
    of the $143,011.95 for which the husband cannot
    account. The husband filed a number of exhibits of loans
    which he incurred, and claims that any excess monies
    were spent for bills with nothing to substantiate the same.
    The Court therefore awards the wife, as alimony in solido,
    her attorney’s fees, cost of this cause and a judgement
    for $25,000.00 plus the difference between the value of
    any personal property that she received from the
    husband.2
    Upon consideration of Wife’s testimony and the findings of the trial court
    we do not believe that the record substantiates Husband’s claim of inability to pay.
    As to the characterization of the awards as alimony in solido, “[t]he
    award of alimony is within the sound discretion of the trial court.” Houghland v.
    Houghland, 
    844 S.W.2d 619
    , 621 (Tenn. Ct. App. 1992)(citing Rains v. Rains, 58
    Tenn. Ct. App. 214, 
    428 S.W.2d 650
     (1968)). The factors to consider in awarding
    alimony are enumerated in T.C.A. § 36-5-101(d), of which “the need of the spouse
    is the single most important factor followed by the ability of the obligor spouse to
    pay.” Houghland , 
    844 S.W.2d at 621
    (quoting Campanali v. Campanali, 
    695 S.W. 2d 193
    , 197 (Tenn. Ct. App. 1985). These are the factors for the court to consider
    2
    The difference between the value of any personal property the Wife received
    and what Husband received is represented by the award of $25,380.00 as alimony in
    solido to Wife.
    9
    whether making an award of alimony in futuro or alimony in solido. 
    Id.
     (Citing Fisher
    v. Fisher, 
    648 S.W.2d 244
    , 246-47 (Tenn. 1983). “Where possible, awards of
    alimony in solido are preferred to awards in futuro.” 
    Id.
     (Citing Spalding v. Spalding,
    
    597 S.W. 2d 739
    , 741 (Tenn. Ct. App. 1980). Alimony in solido is distinguished from
    alimony in futuro in that the former is paid in a lump sum and “generally considered
    a final judgment, ordinarily unchangeable by the court after expiration of the time for
    appeal” and the later is “paid periodically and remains subject to the control of the
    Trial Court”. Loria v. Loria, 
    952 S.W.2d 836
    , 838 (Tenn. Ct. App. 1997). All alimony
    must be “administered within the capability of the supporting spouse to provide the
    needed support.” 
    Id.
    In addressing whether an award was properly deemed alimony in solido the
    court in Aleshire v. Aleshire , 
    642 S.W.2d 729
     (Tenn. Ct. App. 1981) determined
    that alimony in solido should not be awarded based on an expectation of future
    earnings. Houghland, 
    844 S.W.2d at 622
    . However extreme circumstances could
    justify the award of alimony in solido from future earnings. “Illustrative of those
    circumstances, but not all inclusive, is a situation where a spouse intentionally
    disposed of his or her tangible assets in order to deprive the other spouse of alimony
    in solido”. 
    Id.
     (Citing Aleshire, 642 S.W. at 733). The Houghland,3 court held that
    the trial court did not abuse its discretion in ordering husband to pay amount of note
    that was not disclosed to Wife as the “record indicates that Husband disposed of
    marital assets without informing Wife and later concealed these actions from her.”
    Id. at 623. The court in     Hall v Hall, 
    772 S.W. 2d 432
     (Tenn. Ct. App. 1989)
    responded to a similar complaint4 by concurring in the trial court’s finding “that the
    husband was instrumental in the dissipation of the wife’s assets, and that this fact is
    entitled to consideration in fixing alimony, both periodic and lump sum.” Hall, 772
    3
    The record in Houghland v. Houghland indicated that husband received
    a check in satisfaction of a promissory note for $83,479.71, representing the equity in
    the marital home, which he retained and invested into his company without informing
    wife.
    4
    The appellant in Hall v. Hall, 
    722 S.W. 2d 438
    , complained that the award
    of alimony in solido was based on an erroneous finding of dissipation of assets.
    10
    S.W. 2d at 438.
    From our review of the record, we conclude that the trail court did not abuse
    his discretion in finding that the award of $25,000.00 as alimony in solido was
    necessary for the support and maintenance of Wife. The award of $25,000.00 as
    alimony in solido is supported by a finding that the necessary factors enumerated in
    T.C.A. § 36-5-101 (d) are present. As to those factors the evidence at trial indicated
    that Wife earned an associates degree in office administration, but had remained at
    home for the majority of the marriage. At the time of trial Wife was working at
    Flecher Equipment as a bookkeeper with net income of approximately $1,100.00 per
    month. Wife is the custodian of the parties’ two minor children and testified to
    expenses of $2,199.00 per month.
    Husband was self-employed from the beginning of the marriage until March of
    1997, when he began working for his brother. In a hearing before the court in
    November of 1997 Husband testified that his salary was $400.00 per
    week,(approximately $1,7200.00 per month), however at trial evidence in the form of
    an application for a loan was produced showing that in July of 1997 Husband had
    represented to the Bank of Crockett that his income was $4,187.00 per month.
    Federal income tax returns for the years 1994, 1995, and 1996 show perspective
    incomes of $54,059.00, $41,715.00, and $29,755.00. Husband indicated that the
    decrease in his income was due to selling his truck to his brother for $19,5000.00 in
    March of 1997.     The record indicates that this truck grossed $76,006.97 for
    Husband’s brother in 1997. Husband claims $2,080.03 in monthly expenses. Despite
    Husband’s sale of his truck to his brother and decreased income , we agree with the
    trial court that Husband is underemployed.
    Even if the award was made from future earnings, we think that this
    circumstance falls within the exception designated by the court in Aleshire, as
    evidence indicates that Husband intentionally disposed of assets in order to deprive
    Wife of support. In the instant case Wife testified at trial that she believe that the
    Husband is hiding money in his father’s safe.
    Q      The $19,500, Volunteer Bank: Do you know: What
    11
    were those funds borrowed for?
    A      I found out that it was borrowed on the front-end
    loader and Ford – No. Just the front-end loader,
    I think, is all that was.
    Yeah, just the front-end loader, I think, is all that
    was tied up with that. But I didn’t find out about
    that until we was going through the divorce.
    Q      What were those funds used for; do you know?
    A      No.
    Q      Do you say that because you don’t know that
    those funds were, therefore, wasted or dissipated?
    A      Well, they never was deposited. Nothing was ever
    deposited into a checking account. So, where’s
    the money at, if we had to pay all these bills?
    Q      Are you saying that none of these funds were
    deposited in your account?
    A      Yes, I am.
    Q      Do you know if any of the $19,500.00 was
    dissipated?
    A      I saw a check from Volunteer Bank that he had
    cashed for $9500.00. And I asked him where it
    was at, and he said he was going to have to look
    it up, he didn’t remember. And that right there told
    me that he wasn’t telling the truth, because he
    keeps up with his money and he knows.
    *         *         *       *        *        *
    Q      My question is– You didn’t hear my question. Can
    you tell us one thing that he has wasted money on
    or dissipated money on of these funds that you’re
    talking about?
    A      He just put it up where nobody can get to it.
    Q      Where is it?
    A      I’m sure it’s in his daddy’s safe.
    Q      You’re saying that now it’s in his daddy’s safe?
    A      I’m pretty sure it is, but I have no proof of that.
    Although Wife admits to having no proof of where unaccounted for funds are,
    both Husband and Wife testify that he was solely in charge of household finances in
    the latter part of the marriage. As the party in charge of the family finances, Husband
    12
    is the one most likely to know where the funds were applied. We think that evidence
    of the transactions not at arm’s length along with Husband’s inability to account for
    funds, supports a finding that Husband dissipated or concealed funds. We further
    think that evidence supports the trial court’s finding that Husband is underemployed,
    the finding that transfers were not at arm’s length, and the finding that evidence does
    not substantiate Husband’s claims as to how monies were spent. We therefore do
    not think that the trial court abused its discretion in the award of $25,000.00 as
    alimony in solido.
    Having found the award of $25,000.00 to be properly made as alimony in
    solido we now consider the characterization of the award as non-dischageable.
    Husband argues that the final determination as to whether a debt is dischargeable in
    bankruptcy is one that can only properly be addressed by bankruptcy court
    considering the specific criteria applicable under federal statutes. The applicable
    federal statute is U.S.C. § 523(a) (5) (1993 & Supp. 1997) which provides criteria to
    qualify a debt as non-dischargeable.
    One of the most venerable principles of American
    bankruptcy law is that a debtor’s obligation to provide
    spousal support cannot be discharged. (Citations
    omitted). This principle is embodied in 
    11 U.S.C.A. § 523
    (a)(5) (1993 & Supp. 1997) which provides that a
    discharge does not relieve an individual debtor from any
    debt “to a spouse, former spouse, or child of the debtor,
    for alimony to, maintenance for, or support of such
    spouse or child, in connection with a separation
    agreement, divorce decree or other order of a court of
    record.” Thus, while state law may guide the federal
    courts in ascertaining the nature of the obligation, federal
    law will determine whether the purported spousal or child
    support is dischargeable (Citations omitted).
    LeMaster v. Ross, 
    1997 WL 717237
     *2, There is “a strong policy favoring the
    enforcement of spousal and child support orders in 
    11 U.S.C.A. § 523
     (a) (5)” which
    overrides the general policy that exceptions to discharge should be interpreted in the
    debtor’s favor. 
    Id.
     (Citations omitted). Although federal courts are bound to look past
    the labels given debts by state court or the parties, when there is no question that the
    obligation is support, and it so labeled, the obligation is non-dischargeable in
    bankruptcy. 
    Id. at *3
    . (Citations omitted). As to what is considered proper alimony
    13
    by federal courts:
    [t]his is a long-standing standard for alimony where a
    spouse’s assets or earning capacity justifies such an
    award. Bankruptcy law does not place a restriction on the
    state courts’ ability to award alimony. As we stated in
    Calhoun, “[d]ivorce, alimony, support and maintenance
    are issues within the exclusive domain of the state
    courts.”
    Fitzgerald v. Fitzgerald, 
    9 F.3d 517
    , 521 (6th. Cir. 1993)5(citing Calhoun, 715 F.2d
    at 1107 (citing Boddie v. Connecticut, 
    401 U.S. 371
    , 389, 
    91 S.Ct. 780
    , 792, 
    28 L.Ed.2d 113
     (1971)(Black, J., dissenting)).
    In re Calhoun, 
    715 F.2d 1103
     (6th Cir. 1983), provided an analysis for
    determining when obligations are actually alimony, maintenance, or support and
    therefore non-dischargeable in bankruptcy when obligations are not so designated.
    Fitzgerald, 
    9 F.3d at 520
    . The obligation in question in Calhoun was an assumption
    of marital debts and to hold harmless the former spouse as part of divorce
    settlement. The Calhoun court found that the “hold harmless” obligation could be
    a non-dischargeable obligation even where not directly paid to the former spouse.
    
    Id.
    This Court considered whether an award of alimony in solido was non-
    dischargeable in bankruptcy in Hale v. Hale, 
    838 S.W. 2d 206
     (Tenn. Ct. App.
    1992)6    The Hale Court explained and followed the analysis of the court in In re
    Calhoun, and identified Calhoun as the leading case with regard to the issue of
    dischargeability stating:
    Calhoun held that, under 11 U.S.C. Sec. 523 (a)(5),
    5
    In Fitzgerald v. Fitzgerald the court addressed the question of whether
    something called alimony is “really alimony and not, for example, a property settlement
    in disguise.” Fitzgerald, 
    9 F.3d at 521
    . The court found the award was alimony as
    Husband did not produce contrary proof and the award contained conventional alimony
    restrictions.
    6
    Hale v. Hale, involved the interpretation of a divorce decree which
    incorporated a marital dissolution agreement by which husband would assume the
    second mortgage on the marital house. When husband failed to make payments wife
    made a motion to the court to determine the dischargeability of debts and asking the
    court to deem the second mortgage and wife’s attorney fees as alimony, maintenance,
    or support. While the trial court deemed the debts child support, on appeal the Court
    held that debts were support but modified the trial court’s order to make debts spousal
    support even though the MDA did not obligate parties to pay alimony.
    14
    payments must be actually in the nature of alimony or
    support, to be exempt from discharge but that such
    payments need not be made directly to the debtor’s
    spouse or to his children. (FN3) The Court further found
    that Congress intended the determination of what
    constitutes alimony, maintenance, or support to be made
    by bankruptcy law, not state law. To make this
    determination, the Court fashioned a four prong test: (1)
    whether the state court or the parties intended to create
    a support obligation through the assumption of a joint
    debt; (2) whether the assumption of the debt has the
    actual effect of providing necessary support to insure the
    daily needs of the former spouse and children are
    satisfied; (3) whether the amount of the support
    represented by the assumption is so excessive as to be
    manifestly unreasonable when measured by traditional
    concepts of support; (4) if the amount of support is
    unreasonable , how much of it should be discharged for
    the purpose of bankruptcy. Although we are not bound
    by the Sixth Circuit’s opinion in Calhoun, we find the
    Court’s reasoning to be persuasive.
    Id. at 208. See also Herrerra v. Herrera, 
    944 S.W.2d 379
     (Tenn. Ct. App.
    1996)(citing In re Fitzgerald, 
    9 F.3d 517
    , 520 (6th Cir,. 1993) (providing a summary
    of the Calhoun four part inquiry to determine if the assumption of a debt or obligation
    was support)).       Footnote 3 to the above excerpt from Hale addresses the
    assertion made in Husband’s brief that “the final determination as to whether a debt
    is dischargeable in bankruptcy is one that can only properly be addressed by the
    bankruptcy court to see if it meets the specific criteria as set fourth by applicable
    federal statues” stating:
    [w]hile the bankruptcy code gives the bankruptcy court
    exclusive jurisdiction to determine the issue of
    dischargeability for most debts, jurisdiction to determine
    the dischargeability of alimony, child support or
    maintenance of wife or child is concurrence with that of
    state court. The bankruptcy court may be bound by the
    final order of the state court, after a full evidentiary
    hearing involving the same issue, on the theories of res
    judicata and collateral estoppel.
    Hale at FN3 at 211 (citations omitted); see also Houghland v. Houghland, 
    844 S.W. 2d 625
     (finding that the trial court has concurrent jurisdiction with federal
    bankruptcy court in determining the dischargeability of debt with regard to a divorce
    decree).
    The trial court plainly labeled the award as a support obligation and under the
    above authorities we find the trial court did not err in making the award non-
    15
    dischargeable.
    We disagree with Husband’s contention regarding his fourth issue that the
    award of $25,380.00 as alimony in solido was an improper award to equalize a
    property settlement. In reaching our conclusion we refer to the discussion in issue
    III regarding Tennessee law on the propriety of awards of alimony in solido, and to
    the order of the trial court awarding the difference between the value of property
    received by Wife and the value of that received by Husband . The trial court made
    the award of $25,380.00, as it did in awarding $25,000.00, based upon the finding
    that Husband had not substantiated his claims as to how money was spent.
    Following the reasoning of the courts in Hall and Houghland, we believe that the
    trial court did not err in awarding Wife alimony in solido based on the discrepancy in
    the property division where the record indicates the Husband’s sale of assets were
    to family members and not at arm’s length and where Husband did not account for
    a large sum of marital assets ($143.011.95 according to Wife). We further believe
    that the record substantiates Wife’s need as discussed in Issue III.
    In Husband’s fifth issue he does not contest the assumption of the $19,500.00
    debt to Volunteer Bank, but rather takes issue with the trial court’s order making the
    debt non-dischargeable in bankruptcy. Husband also contends that the trial court
    erred in not taking this debt into consideration when dividing the assets between the
    parties.
    The trial court indicates that it considers this debt a marital debt and issued
    in its findings the statement:
    [t]he Husband agreed to take the Clarke Michigan front-
    end loader and assume the indebtedness to Volunteer
    bank, which is the only debt that the parties have at this
    time and hold the Wife harmless.
    Also in the decree the trial court orders: “[t]hat the Husband shall assume the
    indebtedness to Volunteer” and that “Husband shall pay this debt, and shall hold
    Wife harmless from any liability therefor.”
    Tennessee courts have held that before making the division of marital
    property, property should be classified as separate or marital. Kinard v. Kinard, 986
    
    16 S.W. 2d 220
    , 230 (Tenn. Ct. App. 1998) (citations omitted). The definition of marital
    and separate property found in T.C.A. § 36-4-121 (b) provides the ground rules for
    the classification of property. Id. (Citations omitted).    After the classification of
    property the trial court is to divide the marital property in an equitable manner, and
    the division need not be equal to be equitable. Id. (Citations omitted). Because
    Tennessee is a dual property jurisdiction, the court also distinguishes as between
    marital and separate debts. Mondelli v. Howard, 
    780 S.W. 2d 769
    , 773 (Tenn. Ct.
    App. 1989)(citations omitted) “Marital debts are those debts incurred during the
    marriage for the joint benefit of the parties, (citation omitted), or those directly
    traceable to the acquisition of marital property.” 
    Id.
     (Citations omitted).
    On appeal the decisions of the trial court in dividing the marital estate is not
    disturbed unless the distribution lacks proper evidentiary support or results from
    some error or misapplication of law. 
    Id.
     (Citations omitted).
    In light of the evidence, we find that the debt to Volunteer Bank was the sole
    obligation of the Husband. 7 The proof establishes that Wife is not legally obligated
    for this debt and therefore the trial court erred in designating the debt as non-
    dischargeable.
    Husband’s sixth issue is whether the trial court erred in awarding the Wife as
    alimony in solido the sum of $6, 298.27 for attorney’s fees. Husband cites Brown
    v. Brown, 
    913 S.W.2d 163
     (Tenn. Ct. App. 1994) for the proposition that attorney
    fees are only appropriate when the spouse seeking them lacks sufficient funds to
    pay her legal expenses or would be required to deplete her resources in order to pay
    these expenses. Husband asserts that the award of attorney’s fee was an abuse of
    the court’s discretion and submits in the alternative that if the award of attorney’s
    fees is appropriate, the award should not be classified as alimony in solido, thereby
    preventing discharge in bankruptcy.
    7
    In his deposition Husband testifies that W ife did not go with him to make
    the loan and “[s]he might not had knew it”. Nor can Husband produce proof of the use
    of these funds stating that the money was used to pay “family bills” but is unable to
    name which bills. As noted in our discussion of issue III herein, Wife testifies as to her
    belief that Husband concealed at least a portion of these funds from her.
    17
    The decision to award attorney’s fees to a party in a
    divorce proceeding, and the amount thereof, are largely
    within the trial court’s discretion and will not be disturbed
    upon appeal unless the evidence preponderates against
    such a decision. (Citations omitted).
    As with any alimony award, in deciding whether to award
    attorney’s fees as alimony in solido, the trial court should
    consider the relevant factors enumerated in T.C.A. § 36-
    5-101(d).
    Houghland, 844 S.W. 2d at 623. Where the wife has shown that she is not able to
    pay wife’s attorney, and where the husband is able to pay, the court may properly
    order the husband to pay wife’s attorney’s fees. Id. (Citing Harwell v. Harwell, 
    612 S.W. 2d 182
    , 185 (Tenn. Ct. App. 1980); Palmer v. Palmer, 
    562 S.W. 2d 833
    , 839
    (Tenn. Ct. App. 1977). However, where the trial court awards the wife alimony in
    solido sufficient to meet the needs of the wife and to pay her attorney’s fees, it may
    not be proper for the trial court to make an additional award of alimony in solido for
    the payment of wife’s attorney’s fees. 
    Id.
    We find the award $25,000.00 as alimony in solido, along with the award of
    $25,380.00 as alimony in solido is an adequate award from which to pay her
    attorney’s fees. Therefore we conclude that the additional award of $6,298.27 for
    Wife’s attorney’s fees was not appropriate. Accordingly, we reverse that part of trial
    court’s order.
    The Husband’s seventh and final issue is whether the trial court erred in
    ordering him to maintain life insurance in the amount of $100,000.00 on his life for
    the benefit of the minor children. Husband concedes that T.C.A. § 36-5-101(g)
    empowers the court to order the purchase of a life insurance policy and to designate
    the beneficiary on the policy. However, Husband contends that this requirement by
    the trial court is in error due to his limited income. Husband contends that the trial
    court did not explore the cost of such a policy. However, Husband put on no proof
    of the cost in order to show his inability to pay.
    The court in Young v. Young, 
    971 S.W. 2d 386
     (Tenn Ct. App. 1997), held
    that the trial court did not abuse its discretion in ordering that the husband maintain
    $100,000.00 in life insurance for his minor child stating that the court was unwilling
    18
    to “interfere with the trial court’s exercise of its discretion absent a showing of
    abuse.” 
    Id. at 392
    . Because we find that the trial court did not abuse its discretion
    in ordering the Husband to purchase and maintain a $100,000.00 life insurance
    policy on his life for the benefit of the minor children, we affirm this order of the trial
    court.
    On appeal the Wife requests that an award of attorney’s fees and expenses
    for the appeal of this cause. The Court in Houghland, 
    844 S.W.2d 623
     declined to
    award the Wife, appellee, attorney’s fees incurred on appeal citing Baggett v.
    Baggett, 
    512 S.W.2d 292
    , 294 (Tenn. Ct. App. 1973) in which this Court held that
    where both parties were partially successful on appeal, an award of attorney’s fees
    was improper. In the instant case we decline to award Wife’s attorney’s fees
    incurred on appeal.
    In sum, the order of the trial court ordering the Volunteer Bank debt to be non-
    dischargeable in bankruptcy is reversed. The trial court’s award of attorney fees to
    Wife is reversed. The case is remanded to the trial court for further proceedings
    consistent with this Opinion regarding child support. The order is affirmed in all other
    respects. Costs of the appeal are assessed one-half to each party.
    ____________________________
    W. FRANK CRAWFORD,
    PRESIDING JUDGE, W.S.
    CONCUR:
    ____________________________________
    ALAN E. HIGHERS, JUDGE
    ____________________________________
    HOLLY KIRBY LILLARD, JUDGE
    19