Rodney K. Matthews v. Sophia D. Matthews ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 8, 2009 Session
RODNEY K. MATTHEWS v. SOPHIA D. MATTHEWS
Appeal from the Circuit Court for Montgomery County
No. MC-CC-CV-DV-08-36 Michael R. Jones, Judge
No. M2009-00413-COA-R3-CV - Filed April 28, 2010
The trial court granted the wife a divorce after a marriage of almost twenty years, divided the
marital property, and awarded the wife temporary alimony. The husband argues on appeal
that the court erred in the property division by impermissibly taking his fault into
consideration and by dividing his military retirement between the parties without considering
the effect of their long separation on the equities of that division. The husband also argues
that the court impermissibly awarded the wife alimony in solido out of his future earnings
rather than out of his separate property. After thoroughly examining the record, we have
found no evidence that the trial court based its property division on the husband’s fault, and
we do not find that it abused its discretion in dividing the military retirement as it did. We
also find no indication that the trial court intended its monthly alimony award to be
considered alimony in solido. We accordingly affirm the trial court, but modify its decree
to specify that the award of monthly alimony is in the form of transitional alimony and
conversely that the award of attorney fees is alimony in solido .
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which A NDY D.
B ENNETT and R ICHARD H. D INKINS, JJ., joined.
Carrie W. Gasaway, Clarksville, Tennessee, for the appellant, Rodney K. Matthews.
Michael Kenneth Williamson, Clarksville, Tennessee, for the appellee, Sophia D. Matthews.
OPINION
I. A M ARRIAGE OF A LMOST T WENTY Y EARS
Rodney K. Matthews (“Husband”) and Sophia D. Matthews (“Wife”) married on July
1, 1989. They became the parents of a daughter on July 4, 1990. Husband was an active
duty soldier with the United States Army throughout the entire term of the parties’ marriage.
Because of Husband’s military service, the parties sometimes found themselves far apart
during his deployments.
According to Wife’s testimony,1 Husband confessed to her in April of 2000 that he
had been involved in an extramarital affair with a military subordinate. Such an indiscretion
cannot only spell trouble for a marital relationship, but also for a military career. Wife
testified that “[h]e told me that he had only been with her twice and that he wasn’t seeing her
anymore. So we had agreed to work through it, because his military life was our life, and
that was the only source of income, and he said that he would do better and we stayed.”
Nonetheless, the damage to the parties’ marriage never fully healed. Wife testified
that even though she tried to work things out, she no longer loved Husband the way she did
before. In 2001, the army sent Husband to Japan. Wife did not go with him, but remained
with the parties’ child in the marital home in Clarksville. Husband sent money home every
month to help Wife with her household expenses. Wife testified that when Husband returned
to the States for a visit in 2002, he had bouts of anger, threw things, accused Wife of cheating
on him, and frightened the parties’ child by pressuring her to “tell me who your mother’s
boyfriend is.” Wife stated that “[h]e never actually received the forgiveness I had given
him.”
Matters came to a head in August of 2003. Husband was visiting, and he allegedly
threatened to take the parties’ daughter away if Wife did not join him overseas. A verbal
argument escalated into physical confrontation, with Husband pinning Wife down on the
couch. After he released her, she noticed that her head was bleeding. Wife went to the
emergency room, where she received three stitches around her eye. The parties did not
cohabit after that incident.
1
In this account, we must rely almost entirely on Wife’s testimony, because Husband did not make
an appearance at trial, and no other witnesses testified.
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Wife filed a domestic assault charge and a petition for an order of protection. The
order of protection was granted.2 The court also ordered Husband to continue to make
regular monthly payments on the mortgage and to maintain insurance on Wife’s vehicle. The
order of protection expired in September 2004. The court then conducted another hearing
and renewed its order to compel Husband to keep making the mortgage and insurance
payments.
The proof showed that Husband did not offer to pay child support and that he did not
give Wife any regular financial assistance other than the ordered mortgage and insurance
payments between August of 2003 and March of 2008, when the court entered a pendente
lite child support order as part of the divorce proceedings. The parties had incurred about
$32,000 in credit card debt by the time of their final separation in August of 2003. Wife
continued to use credit cards for household expenses after that year. By the time of trial the
debt in both their names had increased to about $35,000.
When the parties’ daughter reached the age of seventeen, she gave birth to a baby boy.
The daughter and her child continued to reside with Wife in the marital home, and Wife paid
their expenses from her salary as a State employee. Husband continued to pay the mortgage
and the auto insurance, but he provided no additional financial assistance to Wife.
II. D IVORCE P ROCEEDINGS
On January 10, 2008, Husband filed a complaint for divorce in the Circuit Court of
Montgomery County. The grounds alleged were irreconcilable differences and inappropriate
marital conduct on the part of Wife. Wife filed an answer and counter-complaint for divorce.
She admitted that irreconcilable differences had arisen between the parties, but denied being
guilty of inappropriate marital conduct, and she asserted that Husband’s inappropriate marital
conduct rendered cohabitation unsafe and improper. She asked the court to grant her custody
of the parties’ child, and for child support and alimony.
The trial court scheduled a pendente lite hearing and ordered both parties to submit
income and expense statements, which they did. Following the hearing, the court ordered
Husband to continue to make the parties’ regular monthly mortgage payment and to pay child
support of $1,063 per month, beginning on March 1, 2008, and continuing through July of
2008, when the parties’ child “will have graduated from high school and attained the age of
18 years.”
2
Neither the criminal warrant nor the actual orders of protection obtained by Wife are included in
the appellate record.
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The final divorce hearing was scheduled for July 17, 2008, but Husband moved the
trial court to continue the hearing date. His attorney explained that Husband could not be
present at the scheduled date because he was in Korea and that he expected to return to the
United States shortly thereafter. In the interim, Husband’s child support obligation was
terminated, but he was ordered to continue to make the mortgage payments, and to pay Wife
temporary alimony of $1,000 per month.
The final hearing was conducted on January 8, 2009. The attorney for Husband
announced at the outset that Husband would not be appearing because “he said he did not
have transportation,” and the attorney asked the court to allow Husband to testify by
telephone. The court stated that it would reserve decision on that request until after Wife
testified.3
Much of Wife’s testimony involved her financial situation. The proof showed that
Wife started working for the Tennessee Department of Education in 1999. The income tax
returns entered into the record showed that her total gross income ranged from $20,316 in
2002 to $27,619 in 2008. Wife testified that her income was not sufficient to cover her
household bills, even with Husband paying the mortgage, and that at times she had to use
credit cards to fill in the gaps.
Husband’s attorney submitted his new income and expense statement, which was
admitted into evidence without objection by Wife’s attorney. The statement lists Husband’s
gross monthly wages as $6,319 in September of 2008, which comes to $75,828 over twelve
months. Husband’s monthly take home pay after deductions was stated to be $5,432. His
listed expenses add up to $5,760, resulting in a presumptive monthly deficit. The expenses
listed included $600 in “Tithes and Offering” and $1,500 in “Personal Loans.” There is no
explanation in the record about the reason for the loans, and the alleged creditors are not
identified.
The record also contains Husband’s hand-written income and expense statement
which was prepared for the March 2008 pendente lite hearing. That statement lists
3
There was no suggestion by Husband’s attorney that his client was out of the country at the time
of the final hearing, and no further information was offered as to why he was unable to attend. His voluntary
absence made it possible for Wife’s attorney to invoke the “missing witness rule,” a common-law rule which
provides that “the failure of a party to call a witness gives rise to a permissible inference that the missing
witness’s testimony would have been unfavorable to the party who failed to call the witness.” State v.
Francis, 669 S.W.2d 85, 88 (Tenn.1984)).
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Husband’s gross monthly income as $7,742, which comes to $92,904 over twelve months.4
His monthly take home pay was stated to be $6,941. Listed expenses (including the same
sums for “Tithes and Offering” and “Personal Loans”) add up to $6,005, resulting in a
presumptive monthly surplus. Since Husband did not appear at trial to testify, it was not
possible to question him about the discrepancies between his two statements.
The proof showed that the parties did not accumulate very much in the way of marital
property during the course of their marriage. In fact, the only property of any significance
were two vehicles, the equity in the marital home with a value of about $35,000, Wife’s
401(k) retirement account with the State, which had a total value of about $7,680 at the time
of the hearing, Wife’s rights to a state pension which the proof showed she would be
ineligible to draw upon until March 3, 2028, and Husband’s military retirement package.
The exact value of Husband’s retirement could not be ascertained at the time of trial, but it
was presumably quite substantial, in view of his many years in the service and the size of his
most recent paychecks.
The proof indicates that Husband retired from the service as of January 1, 2009 with
the rank of Master Sergeant. As a result of his 28 year military career, he is not only entitled
to a pension, but to free lifetime healthcare. There is nothing in the record to indicate that
Husband’s retirement was anything other than voluntary. Wife’s attorney points out that if
Husband had waited just six more months before retiring, Wife would have qualified to be
a “20/20 spouse,” meaning that she would also have been entitled to receive free lifetime
health care and lifetime dental care. Wife is currently covered by health insurance as a state
employee, but a monthly premium is taken out of her paycheck to pay for it.
At the conclusion of testimony, Husband’s attorney renewed his motion to allow his
client to testify by telephone. The trial court denied the motion. At the close of the trial, the
court announced its decision from the bench. The court confessed itself somewhat perplexed
by the inconsistent and incomplete evidence about Husband’s income. It nonetheless
concluded that Husband’s financial resources were far greater than Wife’s and that Husband
had in effect abandoned his daughter and his wife by making such meager financial
contributions to their welfare in the years between 2003 and 2008. The court accordingly
awarded Wife an absolute divorce on the ground of inappropriate marital conduct.
4
Another document in the record is Husband’s Certificate of Discharge from Active Duty. It includes
an earning statement that seems to indicate that in 2008, Husband’s final year of service, his income was
$92,564.75 and his deductions were $12,028.30.
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The court’s decision, including its determination of division of marital property and
alimony, is documented in an order entered on February 19, 2009. The court awarded Wife
the marital home and all the equity in it, her state pension and her 401(k), and, most
significantly for the issues on appeal, “thirty-five percent (35%) of the Husband’s total
military retirement benefit, representing one half (1/2) of the nineteen point six (19.6) years
that this marriage overlapped the Husband’s military service of twenty-eight (28) years.”
The court also ordered Wife to pay the outstanding credit card debt, but ordered
Husband to pay Wife $16,000 to apply towards the debt.5 Husband was also ordered to pay
Wife alimony in the amount of $1,500 per month for a period of sixty months, and $5,000
to help Wife pay the attorney fees she incurred in the divorce. Referring to the attorney fee
award, the trial court stated, “[s]uch sum shall represent transitional alimony for the benefit
of the Wife to assist her in her transition to a single person.” This appeal followed.
III. P ROPERTY D IVISION
In all actions for divorce or legal separation, the courts are directed to “. . . equitably
divide, distribute, or assign the marital property between the parties without regard to marital
fault in proportions as the court deems just.” Tenn. Code Ann. § 36-4-121(a)(1). Marital
property includes “. . .all real and personal property, both tangible and intangible, acquired
by either or both spouses during the course of the marriage up to the date of the final divorce
hearing and owned by either or both spouses as of the date of the filing of a complaint for
divorce . . .” Tenn. Code Ann. § 36-4-121(b)(1)(A).
Husband argues that the trial court in this case erred by taking his fault into
consideration when it divided the marital property.6 Even though the trial court did find him
to be at fault with regard to grounds for divorce, Husband can point to nothing in the record
(nor have we found anything in our own examination of the record) to indicate that the court
based its division of property upon that fault. Husband bases his contention solely on the fact
that Wife was awarded such a large proportion of the marital property and on his own feeling
that such a division was inequitable as to him.
5
The court stated that it would have preferred to order Husband to pay half of the debt. But in light
of his failure to show up at trial, the court could not be confident that he would comply, so it ordered him
to pay Wife instead.
6
We note that even though the statute prohibits the courts from considering fault when dividing
marital property, they are permitted to consider need. Fisher v. Fisher, 648 S.W.2d 244, 247 (Tenn. 1983).
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In determining what constitutes an equitable division of marital property, the court is
directed to consider the factors set out in Tenn. Code Ann. § 36-4-121(c):
In making equitable division of marital property, the court shall consider all
relevant factors including:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability,
earning capacity, estate, financial liabilities and financial needs of each of the
parties;
(3) The tangible or intangible contribution by one (1) party to the education,
training or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital assets
and income;
(5) The contribution of each party to the acquisition, preservation, appreciation
or dissipation of the marital or separate property, including the contribution of
a party to the marriage as homemaker, wage earner or parent, with the
contribution of a party as homemaker or wage earner to be given the same
weight if each party has fulfilled his or her role;
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of
property is to become effective;
(9) The tax consequences to each party, costs associated with the reasonably
foreseeable sale of the asset, and other reasonably foreseeable expenses
associated with the asset;
(10) The amount of social security benefits available to each spouse; and
(11) Such other factors as are necessary to consider the equities between the
parties.
The court noted that because of Husband’s failure to appear at trial it had to make its
rulings “somewhat in a vacuum.” There is no proof in the record that would be relevant to
many of the listed factors. Nonetheless, the available evidence does indicate that after a
marriage of almost twenty years, Husband’s prospects for future acquisitions of capital assets
and income are far better than those of Wife, as are his overall economic circumstances.
Husband was 45 years old at the time of the divorce. Because of his years of service
and the level of income he has been receiving for that service, he is eligible to collect what
has to be a substantial amount of military retirement pay. Additionally, as the court observed,
there is no evidence that Husband is unemployable. It also appears that Husband’s work in
the military as a dining facilities manager has left him with experience and skills of potential
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income-producing value within the civilian economy.
Wife attended junior college for two years. She works as an administrative secretary
for the Tennessee Department of Education. As a State employee, her job offers many
valuable benefits including affordable health insurance, but it does not pay very much. Wife
testified that better-paying jobs are not available in Clarksville for someone like her. Thus,
the prospects for future improvements in her economic circumstances are limited.
Husband objects to many elements in the trial court’s division of marital property,
including its division of his military retirement income. We note that any interest in a
retirement benefit, vested or unvested, that accrues during a marriage, is marital property
subject to division. Cohen v. Cohen, 937 S.W.2d 823, 828 (Tenn. 1996); Batson v. Batson,
769 S.W.2d 849 (Tenn. Ct. App. 1988). Military pension rights are not excluded from such
division. Kendrick v. Kendrick, 902 S.W.2d 918 (Tenn. Ct. App. 1994).
In cases where the amount of the pension depends on years of service (such as in the
military) and those years overlap the marriage, the ratio between the years of marriage during
which the pension accrued and the total number of years of accrual gives us the most
common formula for calculating what proportion of the pension should be considered as
marital property. Kendrick v. Kendrick, 902 S.W.2d at 927, fn. 17.
In the present case, the trial court noted that the parties had been married for 19.6
years during Husband’s 28 year military career, and it accordingly calculated that 70% of
Husband’s military retirement was marital property. The court awarded Wife half of that
marital property, or 35% of Husband’s total military retirement. Husband argues that the trial
court’s method was flawed because it should not have included the years 2003-2008 in its
calculation, since the parties were separated during that period. He calculates that if the court
had excluded those years and applied the same 50% division to the resulting proportion of
his service, it would have awarded Wife 21.5% of his military retirement rather than 35%.
However, marital property is defined in Tenn. Code Ann. § 36-4-121(b)(1)(A) as
including “all property . . . acquired by either or both spouses during the course of the
marriage up to the date of the final divorce hearing.” There is no exclusion from that
definition for property acquired during the separation of the parties. Accordingly, the trial
court correctly calculated the marital property portion of Husband’s pension. However, the
trial court has latitude in dividing the marital component of a pension entitlement where the
equities of the situation point to something other than a 50/50 division. The court is charged
with reaching an equitable division of marital property, which is not necessarily an equal
division. Ellis v. Ellis, 748 S.W.2d 424, 427 (Tenn. 1988); Watters v. Watters, 959 S.W.2d
585, 591 (Tenn. Ct. App. 1997); Harrington v. Harrington, 798 S.W.2d 244, 245 (Tenn. Ct.
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App. 1990).
In this case, the trial court did not believe that the separation of the parties warranted
a reduction in Wife’s share of Husband’s military retirement. The trial courts have broad
discretion in dividing the marital estate in order to reach an equitable result, and their
decisions in such matters are entitled to great weight on appeal. Kinard v. Kinard, 986
S.W.2d 220, 230 (Tenn. 1998); Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn. 1983);
Mondelli v. Howard, 780 S.W.2d 769, 772 (Tenn. Ct. App. 1989). In light of the respective
financial circumstances of the parties, we cannot conclude that the trial court abused its
discretion by dividing Husband’s military retirement as it did.
Husband also argues that the trial court should have ordered Wife to refinance the
mortgage on the marital home and awarded him half of the resulting equity, awarded him
one-half of Wife’s 401(k), and made her responsible for all the credit card debt. As we noted
above, the division of a marital estate is not rendered inequitable simply because it is not
mathematically equal. Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn. 1996); Ellis v. Ellis,
748 S.W.2d at 427; Manis v. Manis, 49 S.W.2d 295, 306 (Tenn. Ct. App. 2001). Also, the
courts are not required to award to each party a share of every item of marital property.
Kinard v. Kinard, 986 S.W.2d at 230; Brown v. Brown, 913 S.W.2d 163, 168 (Tenn. Ct. App.
1994).
In the final analysis, the justness of a particular division of the marital property and
allocation of marital debt depends on its final results. Watters v. Watters, 959 S.W.2d at 591;
Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn. Ct. App. 1990). For Wife, the final
result of the property division in this case is to enable her, her daughter and her grandson to
remain in the marital home without increasing the amount of her mortgage obligation, to
allow her to keep a very modest retirement account intact, and to give her assistance on
paying down a crippling amount of debt.
The impact of the property division on Husband is not as easy to determine. Because
he declined to appear at trial, he could not be questioned about any assets he may have
acquired between 2003 and 2008, when he was earning substantially more than Wife, while
making minimal payments for her support and none for the support of his child. The trial
court stated that on the basis of that income, “It’s my belief that Mr. Matthews should have
substantial cash assets.”
Husband also could not be questioned about the exact amount of the monthly check
from his military retirement. Nonetheless, the evidence indicates that his lifetime entitlement
to a regular retirement check is more valuable by far than any other asset divided by the
court. Since Husband will retain almost two-thirds of this asset, he should not be heard to
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complain about the court’s decision to allow Wife to keep other property acquired during the
course of the marriage. In sum, we find that the final results of the property division are
equitable and that the trial court did not abuse its discretion in dividing the marital property
as it did.
IV. A LIMONY
Our legislature has authorized the courts to award alimony in divorce cases“to be paid
by one spouse to or for the benefit of the other, or out of either spouse’s property, according
to the nature of the case and the circumstances of the parties.” Tenn. Code Ann. § 36-5-
121(a). To guide the courts in determining whether an award of alimony is appropriate, and
the nature and amount of that award, the legislature has set out a list of factors for the trial
courts to consider. Tenn. Code Ann. § 36-5-121(i). The list includes many of the same
factors used to guide the court in its division of marital property.
One major difference is that in determining alimony, the court may consider “[t]he
relative fault of the parties, in cases where the court, in its discretion, deems it appropriate
to do so.” Tenn. Code Ann. § 36-5-121(i)(11). However, while fault is a factor to be
considered, it must not be applied for the purpose of punishing the guilty spouse. Fisher v.
Fisher, 648 S.W.2d at 246; Wilder v. Wilder, 66 S.W.3d at 892, 895 (Tenn. Ct. App. 2001).
Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn. Ct. App. 1988).
In determining the appropriateness of an award of alimony, the most important factors
for the courts to consider are the need of the obligee spouse and the obligor’s spouse’s ability
to pay. Martin v. Martin, 155 S.W.3d 126, 131 (Tenn. Ct. App. 2004); Barnhill v. Barnhill,
826 S.W.2d 443, 455 (Tenn. Ct. App. 1991). The amount of an alimony award is deemed
to be in the sound discretion of the trial court, and it will not be reversed on appeal unless
that discretion is abused. Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001); Morton v.
Morton, 182 S.W.3d 821, 836 (Tenn. Ct. App. 2005); Lindsey v. Lindsey, 976 S.W.2d 175,
180 (Tenn. Ct. App. 1997).
Tennessee currently recognizes four different kinds of alimony: rehabilitative alimony,
alimony in futuro or periodic alimony, transitional alimony and alimony in solido. Tenn.
Code Ann. § 36-5-121(d)(1). Alimony in solido can be distinguished from the other types
of alimony because it is for a definite sum of money, payable in full regardless of future
events. If alimony in solido is ordered, it may not be modified once the order becomes final.
Bray v. Bray, 631 S.W.2d 135, 139 (Tenn. Ct. App. 1981). Alimony in solido is generally
paid out of marital assets or out of the separate assets of the obligor. It may be payable either
as a lump sum or in installments.
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Until recent years, the only other type of alimony the courts were authorized to award
was alimony in futuro, or periodic alimony, which is “a payment of support or maintenance
on a long term basis or until the death or remarriage of the recipient.” Tenn. Code Ann. §
36-5-121(f)(1). Alimony in futuro remains within the control of the trial court, “and may be
increased, decreased, terminated, extended, or otherwise modified, upon a showing of
substantial and material change of circumstances.” Tenn. Code Ann. § 36-5-121(f)(2)(A).
The other two types of alimony, rehabilitative alimony and transitional alimony, differ
from alimony in futuro by being ordered for “a determinate period of time.” But like alimony
in futuro (and unlike alimony in solido), they remain within the court’s control and may be
modified at any time. Rehabilitative alimony, like alimony in futuro, may be modified “upon
a showing of substantial and material change of circumstances.” Tenn. Code Ann. § 36-4-
121(e)(2). Transitional alimony may only be modified if specific conditions are met. Tenn.
Code Ann. § 36-4-121(g)(2). The question of modification is not before us, but only the
question of the proper classification of the alimony award in this case.
Husband’s challenge to the trial court’s alimony award is based upon an inaccurate
characterization of that award: He contends that the trial court ordered him to pay Wife
$95,000 as alimony in solido out of his future earnings. He then cites several cases which
stand for the proposition that alimony in solido should generally be awarded out of a spouse’s
estate, not out of an expectation of future earnings. Goodman v. Goodman, 8 S.W.3d 289,
297 (Tenn. Ct. App. 1999); Day v. Day, 931 S.W.2d 936 (Tenn. Ct. App. 1996). Finally, he
argues that the court’s division of marital property did not leave his estate with sufficient
resources to pay Wife $95,000.
When we examine the transcript of the record and the trial court’s final order, we can
find no support for that argument. The court ordered Husband to pay Wife $1,500 per month
in alimony for sixty months. It did not specifically state which form of alimony it intended.
It also awarded Wife $5,000 to help her pay her attorney fees. The court stated that the
$5,000 award “shall represent transitional alimony for the benefit of the Wife to assist her
in her transition to a single person.”
The trial court correctly stated that the purpose of transitional alimony is to help the
disadvantaged spouse in his or her transition to the status of a single person. While the trial
court did not specifically characterize the sixty months of alimony as transitional, we believe
that was merely an oversight and that the award meets the definition of transitional alimony.
In light of the entire record of this case, it appears to us that Wife needs a substantial amount
of transitional alimony so she can pay off the rest of her debts and stabilize her finances.
Accordingly, we affirm the trial court’s award of alimony and deem that award to be
transitional alimony.
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The award of attorney fees stands on a different footing. Such an award in divorce
cases is treated as a form of alimony, and in determining whether an award of attorney fees
is appropriate, the court should again consider the relevant factors in Tenn. Code Ann. § 36-
5-121(i), including the needs of the obligee spouse. Attorney fees are usually due and
payable upon the completion of a case, so it is appropriate to award such fees where the
obligee spouse does not have a sufficient amount of liquid assets to pay the attorney. See
Umstot v. Umstot, 968 S.W.2d 819, 824 (Tenn. Ct. App. 1997); Duncan v. Duncan, 686
S.W.2d 568, 573 (Tenn. Ct. App. 1984). Because the bill of an attorney is for a sum certain,
an award of attorney fees in divorce cases is usually characterized as alimony in solido.
Owens v. Owens, 241 S.W.3d 478, 495 (Tenn. Ct. App. 2007); Yount v. Yount, 91 S.W.3d
777, 783 (Tenn. Ct. App. 2002); Wilder v. Wilder, 66 S.W.3d at 894.
Most of the property awarded to Wife in the present case cannot be used to pay her
attorney fees. She cannot obtain access to the equity in her house unless she refinances or
takes out a second mortgage. She would have to pay taxes and a penalty if she liquidated her
401(k) before reaching the age of 59 1/2. She will not be eligible for her retirement benefit
until the year 2028. Her share of Husband’s military retirement pay will be paid to her in
monthly installments rather than in a lump sum. There was no proof that she had any cash
or any money in a savings account. Thus, in light of her evident need, her lack of separate
liquid assets, and of husband’s fault in the divorce, we find that the trial court did not abuse
its discretion by awarding Wife $5,000 in attorney fees, but we hold that it should have
characterized the award as alimony in solido rather than as transitional alimony.
V.
The order of the trial court is affirmed, but it is modified by specifying that the court’s
award to Wife of monthly support is in the nature of transitional alimony and by changing
the classification of its award to Wife of $5,000 in attorney fees from transitional alimony
to alimony in solido. We remand this case to the Circuit Court of Montgomery County for
any further proceedings necessary. Tax the costs on appeal to the appellant, Rodney K.
Matthews.
_________________________________
PATRICIA J. COTTRELL, JUDGE
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