David L. Adams v. Nancy W. Adams ( 1997 )

DAVID L. ADAMS, )
)
Plaintiff/Appellee, ) Appeal No.
) 01-A-01-9606-CH-00281
v. )
) Maury Chancery
NANCY W. ADAMS, ) No. 94-457
)
Defendant/Appellant. )
FILED
COURT OF APPEALS OF TENNESSEE January 8, 1997
MIDDLE SECTION AT NASHVILLE Cecil W. Crowson
Appellate Court Clerk
APPEAL FROM THE CHANCERY COURT FOR MAURY COUNTY
AT COLUMBIA, TENNESSEE
THE HONORABLE JAMES L. WEATHERFORD, CHANCELLOR
GLENN COX
P. O. Box 1121
Columbia, Tennessee 38402-1121
ATTORNEY FOR PLAINTIFF/APPELLEE
R. E. LEE DAVIES
Hartzog, Silva & Davies
123 Fifth Avenue North
P. O. Box 664
Franklin, Tennessee 37065-0664
ATTORNEY FOR DEFENDANT/APPELLANT
REVERSED IN PART,
AFFIRMED IN PART,
AND REMANDED
SAMUEL L. LEWIS, JUDGE
MEMORANDUM OPINION1
This is an appeal by defendant/appellant, Nancy W. Adams (“Wife”), from a judgment
of the chancery court granting Wife and plaintiff/appellee, David L. Adams (“Husband”), a divorce.
Wife claims that the trial court erred in calculating the amount of child support and the amount of
rehabilitative alimony and attorney's fees awarded to Wife.
Husband and Wife married in September 1982. They moved to Lewisburg, Tennessee
in 1984. Wife had been married previously and had two children from the marriage. The parties
also had two children, Lane and Ryan, during their marriage. At the time of the divorce, Lane was
ten years old and Ryan was eight years old. All four children lived with the parties during the
marriage.
Wife is forty-one years old and has a high school diploma. Prior to their move, Wife
worked as a legal secretary and earned approximately $16,000.00 a year. After moving, Wife
worked as a homemaker, and Husband worked as an associate in a law firm. In 1988, Husband
began a private practice and Wife worked as his secretary. In 1989, Wife began working part time
as the music director for a church. Later, in 1993, Wife took a job as a teacher's aide at the local
middle school. At the time of the divorce, Wife was an administrative assistant at the school and
maintained her part-time position as music director. In 1994, Wife earned $7,950.00. Wife claimed
that her expenses exceeded her income by approximately $1,800.00 a month. At trial, Wife
expressed her desire to obtain her educational decree so she could teach school.
Husband has continued to work as a sole practitioner since 1988. Husband's tax returns
revealed that his income after expenses and before taxes for the past seven years was as follows:
$30,103.88 in 1988 $ 55,824.00 in 1992
$79,449.00 in 1989 $ 52,008.00 in 1993
$47,379.71 in 1990 $134,300.00 in 1994
$96,669.00 in 1991
1
Court of Appeals Rule 10(b):
The Court, with the concurrence of all judges participating in the case, m ay affirm, reverse or modify
the actions of the trial court by memorandum o pinion when a formal opinion wo uld have no
precedential value. When a case is decided by memorandum opinion, it shall be designated
"MEMORANDUM OPIN ION ," shall not be published, and shall not be cited or relied on for any
reaso n in a sub sequent unre lated case.
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Husband claimed that his large income in 1994 was due to two contingency fee cases. He also
estimated he would make approximately $38,000.00 in 1995.
Husband filed a complaint for divorce on 22 July 1994. Husband alleged that the parties
had irreconcilable differences and requested joint custody of the parties' two minor children. Wife
filed an answer and a counter-complaint. Wife admitted that there were irreconcilable differences
and alleged that Husband was guilty of inappropriate marital conduct. Wife asked the court to grant
her an absolute divorce and to award her custody of the children. Wife also asked for child support
and alimony pendente lite. In his answer, Husband denied he was guilty of inappropriate marital
conduct. On 13 September 1994, Husband filed a voluntary dismissal. Thereafter, the court entered
an order dismissing the complaint on 14 September. As to Wife's request for pendente lite support,
the court ordered Husband to pay $834.00 in child support and $400.00 in alimony every month.
The court also required Husband to make other payments including $1,500.00 to Wife for her
attorney's fees.
The court entered a final decree of divorce on 25 September 1995. The court approved
the parties' stipulation that Husband's inappropriate marital conduct entitled Wife to a divorce. The
court awarded the parties joint custody of their children, but granted Wife primary custodial care.
The court found that Husband's gross monthly income was $4,600.00. Based on this number, the
court awarded child support of $1,060.00 per month for both children. As additional child support,
the court ordered Husband to provide medical insurance for the children and to pay any medical costs
not covered by insurance. As to alimony, the court ordered Husband to pay rehabilitative alimony
of $500.00 per month for three years. In addition, the court ordered Husband to pay Wife $3,000.00
for her attorney's fees. The decree also included the court's ruling as to visitation, the distribution
of the parties' separate property, and the equitable distribution of the marital estate.
On 2 October 1995, Husband filed a motion to alter or amend. The court amended the
final decree by awarding Wife sole custody of the children. The court denied Husband's other
requests. Finally, the court awarded Wife additional attorney's fees of $360.00. Thereafter, Wife
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filed her notice of appeal and presented the following issues:
1. Whether the trial court erred in setting child support at $1,060 per
month based upon a monthly gross income of $4,600.
2. The court erred in awarding wife rehabilitative alimony in the
amount of $500 for a period of three years.
3. The court erred in only awarding wife $3,000 out of $8,580 in
attorney's fees.
Wife's first complaint is with the trial court's award of child support. The trial court
found that Husband's gross monthly income was $4,600.00 and set child support at $1,060.00 per
month. Wife argues that this finding is not supported by a preponderance of the evidence. We agree.
A review of the record indicates the trial judge used the income figures for 1992 and 1993 to
determine Husband's income. We are of the opinion that the court could have ascertained a more
realistic income figure by averaging Husband's income over the last five years including 1995.
On remand, the trial court shall determine the amount of child support using an average
of Husband's net income over the past five years including 1995. The court shall calculate Husband's
net income according to Rule 1240-2-4-.03 of the Child Support Guidelines.
Wife's second issue concerns the trial court's award of rehabilitative alimony in the
amount of $500.00 per month for three years. Wife's total gross income in 1994 was less than
$8,000.00. Husband's income over the last five years clearly exceeded Wife's. It is Wife's desire to
rehabilitate herself by becoming a school teacher. Because she only has a high school diploma, she
would need at least four years of full-time attendance to obtain her degree. In order to meet the
needs of the parties' children and maintain her present job, she wishes to attend college on a part-
time basis. She estimated it would take her approximately six years to receive her degree.
The General Assembly adopted legislation providing "that a spouse who is economically
disadvantaged, relative to the other spouse, be rehabilitated whenever possible by the granting of an
order for payment of rehabilitative, temporary support and maintenance." Tenn. Code Ann. § 36-5-
101(d)(1) (1996). The record is clear that Wife is economically disadvantaged compared to
Husband. Moreover, it is clear that the trial court's award of $500.00 per month for three years will
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not allow Wife to adequately rehabilitate herself.
Therefore, we are of the opinion that the trial court should award Wife rehabilitative
alimony for a period of five years at the rate of $500.00 per month. Either party may petition the trial
court for a change, either an increase or decrease, in time or amount of rehabilitative alimony if
circumstances change.
Wife's final issue is "whether the court erred in awarding wife $3,000.00 out of $8,580.00
in attorney's fees." The allowance of attorney's fees to a spouse is largely within the discretion of
the trial court. Absent an abuse of that discretion, this court will not interfere with the trial court's
award. Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995). We fail to find an abuse of discretion
on the part of the trial court. This issue is without merit.
Wife also requested that she be awarded her attorney's fees incurred as a result of this
appeal. We are of the opinion that this request is well taken, and on remand, the trial court shall
conduct a hearing to determine the amount of reasonable attorney's fees on appeal.
Therefore, the order of the trial court is reversed as to its award of child support and
rehabilitative alimony and is affirmed in all other respects. The cause is remanded to the trial court
for the entry of a decree in conformity with this opinion. Costs on appeal are taxed to
plaintiff/appellee, David L. Adams.
_____________________________________
SAMUEL L. LEWIS, JUDGE
CONCUR:
_____________________________________
BEN H. CANTRELL, JUDGE
_____________________________________
WILLIAM C. KOCH, JR., JUDGE
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