Sherry Juanita Carter Berkshire v. Edwin Carl Berkshire, III ( 2014 )


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  •                 IN THE COURT OF APPEALS OF TENNESSEE
    AT KNOXVILLE
    July 8, 2014 Session
    SHERRY JUANITA CARTER BERKSHIRE v. EDWIN CARL
    BERKSHIRE, III
    Appeal from the General Sessions Court for Roane County
    No. 9099A    Dennis W. Humphrey, Judge
    No. E2014-00022-COA-R3-CV-FILED-DECEMBER 1, 2014
    The primary issue in this divorce case is whether the trial court erred in failing to find that
    Sherry Juanita Carter Berkshire (Wife) was entitled to long-term alimony in futuro from
    Edwin Carl Berkshire, III (Husband). Instead, the court awarded four months of transitional
    alimony. Wife, who was sixty at the time of the divorce, has numerous health problems and
    is totally and permanently disabled. Husband, who is twenty years her junior, is able-bodied
    and works as an automobile mechanic, with an earning capacity of at least $62,000 per year.
    Taking into account the relevant statutory factors and the totality of the circumstances, we
    modify the trial court’s alimony judgment to make it an alimony in futuro award in the
    amount of $150 per week. We decline Wife’s request to increase the trial court’s award of
    attorney’s fees to her, but we do award Wife a reasonable attorney’s fee for professional
    services rendered, plus expenses, in connection with this appeal, in an amount to be
    determined by the trial court on remand. Further, we modify the trial court’s decree requiring
    Wife to refinance the mortgage on the marital residence. As modified in the ways indicated,
    we affirm the trial court’s judgment.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
    Affirmed as Modified; Case Remanded
    C HARLES D. S USANO, J R., C.J., delivered the opinion of the Court, in which D. M ICHAEL
    S WINEY and T HOMAS R. F RIERSON, II, JJ., joined.
    Tom McFarland and Katherine S. Parks, Kingston, Tennessee, for the appellant, Sherry
    Juanita Carter Berkshire.
    Browder G. Williams, Kingston, Tennessee, for the appellee, Edwin Carl Berkshire, III.
    OPINION
    I.
    The parties were married on August 27, 1999. Wife was forty-six and Husband was
    twenty-seven. It was Husband’s first marriage. Wife had been married twice before and had
    two daughters from one of those marriages. At the time of her marriage to Husband, Wife
    had health problems including a diagnosis of multiple sclerosis. The record reflects that the
    parties discussed Wife’s health condition, including her MS, before they married.
    Both parties finished high school. Husband attended vocational school and trained
    for two years to be a diesel mechanic. Husband worked as an automobile mechanic
    throughout the marriage. Wife did not work outside the home. Her younger daughter, Tara,
    was approximately sixteen years old at the time of the marriage. Tara lived with the parties
    over the course of the entire marriage, and was still residing with Wife at the time of the
    hearing below.
    Wife filed for divorce on June 26, 2008. Despite the divorce filing, the parties
    continued to live together. They attempted to reconcile. Neither party attempted to pursue
    the case until shortly after Husband moved out of the home on or about May 31, 2011. Wife
    then filed a motion on June 7, 2011, for default judgment or, in the alternative, for temporary
    spousal support. The trial court entered an agreed order granting Wife alimony pendente lite
    in the amount of $600 per week on September 1, 2011, entered nunc pro tunc to July 28,
    2011. On May 3, 2013, the trial court entered an order, nunc pro tunc to April 10, 2013, that
    reduced Husband’s alimony pendente lite payments to $400 per week.
    The case was tried over three days spanning the period from August 29, 2012, to July
    26, 2013. The trial court entered its final judgment on September 5, 2013, granting Wife a
    divorce on the ground of adultery. The trial court awarded Wife the marital residence, valued
    at $130,000, and held her responsible for the balance of the mortgage, which was
    approximately $55,000. The court found Husband’s equity interest in the marital residence
    to be $75,000, and awarded Wife that entire amount as alimony in solido.1 The division of
    marital property and debt resulted in a net award to Wife in the amount of $92,339.29 and
    1
    On appeal, neither party has raised an issue regarding the trial court’s (1) finding that Husband was
    entitled to the $75,000 equity or the court’s (2) subsequent finding that Wife was entitled to Husband’s
    $75,000 interest as alimony in solido. Wife argues that the trial court should have held that Husband’s equity
    interest was less than $75,000, but she does not take issue with the trial court’s award of the residence and
    all of the equity therein to her. Because the end result is the same – Wife gets all of the equity in the marital
    residence – the amount of the equity attributable to Husband is largely immaterial to our analysis of the
    issues presented on appeal.
    -2-
    to Husband, a net of negative $11,426.98. Husband received personal property classified as
    his separate property in an amount valued at $25,100.55, and Wife received $15,400 in
    separate property. Neither party takes issue on appeal with the trial court’s property division.
    Regarding alimony, the trial court entered a memorandum opinion providing, in
    pertinent part, the following findings of fact and conclusions of law:
    The Court finds [Wife] is not capable of obtaining employment
    due to her age and to [her] illnesses.
    *      *         *
    As to alimony, the Court must consider testimony and argument
    to the effect that Wife is eligible for social security disability
    benefits, arguably to receive as much as $1,000 per month, and
    that all her prescriptions and medical expenses could be paid by
    TennCare. This divorce was filed June 26, 2008, but she
    apparently has not applied for such benefits, and possibly
    intends to seek such after the divorce is concluded. Not taking
    such available benefits into account would be a disservice to
    Husband. Certainly, the need for alimony exists. Wife’s
    counsel seeks the Court to base the alimony on Husband’s 2011
    income of $96,747, arguing he has that capability with his
    specialized training as an automobile mechanic, and voluntarily
    reduced his income to avoid a higher alimony award, while
    Husband’s counsel argues the alimony should be based on his
    current income ranging around $62,000, presenting in Exhibit
    15 income for the years from 2006 through 2012, generally a
    figure between $58,886 to $60,729, with $96,747 for 2011 and
    $86,840 for 2012. For those years of the highest income,
    Husband was driving from his residence in Roane County to a
    car dealership in Cookeville, roughly a 150 mile round trip each
    day, and such being one of the factors for his terminating that
    employment and accepting local employment. Though the
    Court resolves the issue of credibility in favor of Wife, on this
    issue the Court accepts Husband’s position that this was not a
    voluntary reduction of income to avoid an alimony obligation.
    -3-
    The Court finds this to be a marriage of relatively short term 2
    and awards transitional alimony in the amount of $600 per week
    for August [2013] and then $400 each month until the end of
    November [2013], thus providing to Wife an opportunity to
    apply for social security disability benefits and TennCare
    insurance. Wife is further awarded an attorney’s fee of $2,000.
    (Footnote added.) Wife timely filed a notice of appeal.
    II.
    Wife raises the following issues, as quoted verbatim from her brief:
    1. Whether the trial court erred in failing to award permanent
    alimony to [her].
    2. Whether the lower court erred by not awarding [Wife] her
    reasonable attorney’s fees.
    3. Whether this Court should award [Wife] her attorney’s fees
    on appeal.
    4. Whether the trial court erred in ordering [Wife] to be
    responsible for indebtedness of [the] marital home and to
    refinance the mortgage in her own name when the proof clearly
    showed it was an impossibility.
    III.
    The Supreme Court has provided the principles that guide our review of a trial court’s
    alimony decision:
    For well over a century, Tennessee law has recognized that trial
    courts should be accorded wide discretion in determining
    matters of spousal support. This well-established principle still
    holds true today, with this Court repeatedly and recently
    observing that trial courts have broad discretion to determine
    2
    Given the current culture, this Court does not believe a fourteen-year marriage should be considered
    “relatively short term.”
    -4-
    whether spousal support is needed and, if so, the nature, amount,
    and duration of the award.
    Equally well-established is the proposition that a trial court’s
    decision regarding spousal support is factually driven and
    involves the careful balancing of many factors. As a result,
    “[a]ppellate courts are generally disinclined to second-guess a
    trial judge’s spousal support decision.” Rather, “[t]he role of an
    appellate court in reviewing an award of spousal support is to
    determine whether the trial court applied the correct legal
    standard and reached a decision that is not clearly
    unreasonable.” Appellate courts decline to second-guess a trial
    court’s decision absent an abuse of discretion. An abuse of
    discretion occurs when the trial court causes an injustice by
    applying an incorrect legal standard, reaches an illogical result,
    resolves the case on a clearly erroneous assessment of the
    evidence, or relies on reasoning that causes an injustice. This
    standard does not permit an appellate court to substitute its
    judgment for that of the trial court, but “‘reflects an awareness
    that the decision being reviewed involved a choice among
    several acceptable alternatives,’ and thus ‘envisions a less
    rigorous review of the lower court’s decision and a decreased
    likelihood that the decision will be reversed on appeal.’”
    Consequently, when reviewing a discretionary decision by the
    trial court, such as an alimony determination, the appellate court
    should presume that the decision is correct and should review
    the evidence in the light most favorable to the decision.
    Gonsewski v. Gonsewski, 
    350 S.W.3d 99
    , 105-06 (Tenn. 2011) (internal citations and
    footnote omitted).
    Our review of this non-jury case is de novo upon the record of the proceedings below
    with a presumption of correctness as to the trial court’s factual findings, a presumption we
    must honor unless the evidence preponderates against those findings. Tenn. R. App. P.
    13(d). We review the trial court’s conclusions of law de novo with no presumption of
    correctness. Oakes v. Oakes, 
    235 S.W.3d 152
    , 156 (Tenn. Ct. App. 2007).
    IV.
    Wife argues that the trial court should have awarded her long-term alimony. As the
    -5-
    Supreme Court has recently observed:
    Tennessee recognizes four distinct types of spousal support: (1)
    alimony in futuro, (2) alimony in solido, (3) rehabilitative
    alimony, and (4) transitional alimony. Tenn. Code Ann. § 36-5-
    121(d)(1) (2010 & Supp.2012). Alimony in futuro, a form of
    long-term support, is appropriate when the economically
    disadvantaged spouse cannot achieve self-sufficiency and
    economic rehabilitation is not feasible. 
    Gonsewski, 350 S.W.3d at 107
    . Alimony in solido, another form of long-term support,
    is typically awarded to adjust the distribution of the marital
    estate and, as such, is generally not modifiable and does not
    terminate upon death or remarriage. 
    Id. at 108.
    By contrast,
    rehabilitative alimony is short-term support that enables a
    disadvantaged spouse to obtain education or training and
    become self-reliant following a divorce. 
    Id. Where economic
    rehabilitation is unnecessary, transitional
    alimony may be awarded. Transitional alimony assists the
    disadvantaged spouse with the “transition to the status of a
    single person.” 
    Id. at 109
    (internal quotation marks omitted).
    Rehabilitative alimony “is designed to increase an economically
    disadvantaged spouse’s capacity for self-sufficiency,” whereas
    “transitional alimony is designed to aid a spouse who already
    possesses the capacity for self-sufficiency but needs financial
    assistance in adjusting to the economic consequences of
    establishing and maintaining a household without the benefit of
    the other spouse’s income.” 
    Id. Consequently, transitional
                 alimony has been described as a form of short-term
    “bridge-the-gap” support designed to “smooth the transition of
    a spouse from married to single life.”
    Transitional alimony is payable for a definite period of time and
    may be modified only if: (1) the parties agree that it may be
    modified; (2) the court provides for modification in the divorce
    decree, decree of legal separation, or order of protection; or (3)
    the recipient spouse resides with a third person following the
    divorce. Tenn. Code Ann. § 36-5-121(g)(2).
    Tennessee statutes concerning spousal support reflect a
    -6-
    legislative preference favoring rehabilitative or transitional
    alimony rather than alimony in futuro or in solido. See Tenn.
    Code Ann. § 36-5-121(d)(2)-(3); 
    Gonsewski, 350 S.W.3d at 109
    . . . . Decisions regarding the type, length, and amount of
    alimony turn upon the unique facts of each case and careful
    consideration of many factors, with two of the most important
    factors being the disadvantaged spouse’s need and the obligor
    spouse’s ability to pay. 
    Id. at 109
    -10.
    Mayfield v. Mayfield, 
    395 S.W.3d 108
    , 115-16 (Tenn. 2012) (internal citation omitted;
    emphasis in original).
    Tennessee courts making an alimony decision must consider the following statutory
    factors to the extent that they are implicated by the evidence:
    (1) The relative earning capacity, obligations, needs, and
    financial resources of each party, including income from
    pension, profit sharing or retirement plans and all other sources;
    (2) The relative education and training of each party, the ability
    and opportunity of each party to secure such education and
    training, and the necessity of a party to secure further education
    and training to improve such party’s earnings capacity to a
    reasonable level;
    (3) The duration of the marriage;
    (4) The age and mental condition of each party;
    (5) The physical condition of each party, including, but not
    limited to, physical disability or incapacity due to a chronic
    debilitating disease;
    (6) The extent to which it would be undesirable for a party to
    seek employment outside the home, because such party will be
    custodian of a minor child of the marriage;
    (7) The separate assets of each party, both real and personal,
    tangible and intangible;
    -7-
    (8) The provisions made with regard to the marital property, as
    defined in § 36-4-121;
    (9) The standard of living of the parties established during the
    marriage;
    (10) The extent to which each party has made such tangible and
    intangible contributions to the marriage as monetary and
    homemaker contributions, and tangible and intangible
    contributions by a party to the education, training or increased
    earning power of the other party;
    (11) The relative fault of the parties, in cases where the court, in
    its discretion, deems it appropriate to do so; and
    (12) Such other factors, including the tax consequences to each
    party, as are necessary to consider the equities between the
    parties.
    Tenn. Code Ann. § 36-5-121(i) (2014).
    In this case, the reality is simply this: Wife is the economically disadvantaged spouse;
    she cannot achieve self-sufficiency; and she cannot be rehabilitated. All of this is not in
    dispute. Wife presented the deposition testimony of her treating physician, Dr. Shere
    Conway, who stated that Wife suffers from MS, a seizure disorder history, fibromyalgia,
    depression, hypertension, and “significant arthritis.” Dr. Conway opined that Wife is totally
    and permanently disabled from working due to her physical condition. Dr. Conway further
    testified that in her opinion, Wife’s medical expenses will likely either stay constant or
    increase for the foreseeable future. Husband did not present any proof disputing or
    contravening Dr. Conway’s testimony. Wife’s earning capacity is clearly zero.
    Wife, however, does have access to sources of money for support. She testified that,
    before marrying Husband, she had previously qualified for Social Security disability
    payments. She was not entitled to these payments after the marriage. The trial court tried
    diligently to determine how much Wife would be entitled to receive by the way of Social
    Security disability benefits, but Wife showed little effort in ascertaining and presenting that
    information. This was largely because of her insistence that she would not qualify until after
    the divorce was final. Wife did testify that she called the Social Security Administration, and
    they told her she “would probably get around a little over a thousand dollars.” Wife also
    testified that she had been on TennCare before, which covered all of her medical expenses.
    -8-
    The evidence preponderates in favor of a finding that Wife will be able to draw Social
    Security disability benefits somewhere in the range of $1,000 to $1,100 per month, and that
    her medical expenses will be mostly, if not entirely, covered by TennCare.
    As previously noted, Wife’s daughter, Tara, has lived with her during all of Tara’s
    life. Tara, who was about twenty-nine years old at the time of her testimony below, has a
    bachelor’s degree in accounting. She was working full-time and testified that “after taxes
    I pull in a little over a thousand dollars every two weeks.” Both Wife and Tara testified that
    Tara helped around the house by doing chores, running errands, and contributing to the living
    expenses when she was able to do so. Tara’s reasonable contribution is a factor to be
    considered in setting alimony. Tenn. Code Ann. § 36-5-121(i)(1) (directing court to consider
    “financial resources of each party, including income from . . . all other sources”). Moreover,
    as Husband points out, Tenn Code Ann. § 36-5-121(f)(2)(B)3 provides as follows:
    (B) In all cases where a person is receiving alimony in futuro
    and the alimony recipient lives with a third person, a rebuttable
    presumption is raised that:
    (i) The third person is contributing to the support of the alimony
    recipient and the alimony recipient does not need the amount of
    support previously awarded, and the court should suspend all or
    part of the alimony obligation of the former spouse; or
    (ii) The third person is receiving support from the alimony
    recipient and the alimony recipient does not need the amount of
    alimony previously awarded and the court should suspend all or
    part of the alimony obligation of the former spouse.
    Consequently, we consider Tara’s net monthly income of approximately $2,167 as a factor
    pertinent to the “alimony” analysis. Tara also testified that her monthly expenses included
    a student loan payment of $440 and a car payment of about $300.
    Wife filed several affidavits of her monthly income and expenses. Wife’s testimony
    establishes her reasonable expenses to be approximately $3,500 per month.4 Taking into
    3
    The Court recognizes that this statute addresses a situation where an obligor is seeking to terminate
    or modify an alimony obligation. While this situation is not before us, we find the public policy expressed
    in the statute to be relevant to Tara’s living with Wife and her contribution to the household expenses.
    4
    Wife’s last affidavit filed with the trial court claims total monthly expenses in excess of $3,500, but
    (continued...)
    -9-
    consideration Wife’s potential sources of money, the evidence clearly preponderates in favor
    of the trial court’s conclusion that “[c]ertainly, the need for alimony exists.”
    Husband worked as an automobile mechanic during the marriage and after the
    separation. He submitted proof establishing his gross income for the following years: 2006
    ($58,886); 2007 ($62,961); 2008 ($58,061); 2009 ($61,730); 2010 ($60,422); 2011
    ($96,747); and 2012 ($86,841). Husband explained the reasons for his substantially
    increased income in 2011 and 2012 as follows. Husband was romantically involved with a
    co-worker in 2011. According to Husband, the relationship began after the parties in this
    case separated at the end of May 2011; Wife alleged that Husband was having an affair with
    the co-worker before this. Husband’s girlfriend was responsible for assigning work to the
    mechanics at the car dealership. Husband testified that in 2011, he was able to increase his
    income because his girlfriend funneled a lot of work to him, and because he worked thirteen
    to fifteen hours a day. When the employer found out about Husband’s relationship, the
    girlfriend was fired and, according to Husband’s testimony, they “starved him out” by
    sending him little to no work.
    Husband was recruited by a car dealership in Cookeville. The dealership’s general
    manager testified that he wanted to grow the service department, so he offered Husband a
    lucrative contract guaranteeing him a gross of $3,600 every two weeks, and further stated as
    follows:
    I wanted a great tech to come up there to help me to get it to
    grow and so I g[a]ve him a guarantee, a big guarantee as a
    matter of fact, and which I went with for roughly right at a year,
    but it just didn’t grow as fast as I thought it would have and I
    just couldn’t afford to do it anymore.
    *       *          *
    Q: [W]as there anything that [Husband] did to cause his hours
    to get cut and his service guarantee to get cut at your place of
    business?
    A: No, sir.
    4
    (...continued)
    we agree with Husband’s argument that some of the claimed expenses appear to be overinflated to a certain
    degree. We also note that some of the expenses do not involve necessities and may well be subject to
    reduction to a lesser amount.
    -10-
    Q: Did [Husband] work hard and try to do the best he could
    from your observations of seeing him there?
    A: Yes, sir.
    Q: Could your business continue to afford to provide him with
    a job where every two weeks he was guaranteed thirty-six
    hundred dollars?
    A: No, sir. I mean, that’s the whole purpose of what happened.
    I hated to cut it back to the fifty hours. He’s a good employee
    or I wouldn’t have offered him that to start with. So it didn’t
    grow as fast as I assumed and it’s just a still slower process.
    After Husband’s income was significantly cut, Husband quit and began working at Ted
    Russell Nissan in Knoxville. He submitted proof showing that his gross income in 2013
    extrapolated to about $46,210 yearly, or $3,851 a month.
    Wife argues that Husband was voluntarily underemployed and that, for alimony
    purposes, his income should be set around $96,747, his highest earning year. Husband
    argues that his income should be set at approximately $46,210, the amount that he alleges he
    was earning at the time of the divorce. The trial court found Husband was not voluntarily
    underemployed. We agree. Husband provided at least three objectively reasonable reasons
    why he quit his job in Cookeville: (1) they cut his hours and earnings significantly, breaching
    his employment agreement; (2) he had to commute 140 miles round-trip from Roane County
    to Cookeville and back each workday; and (3) the Cookeville job required him to work on
    unfamiliar Hyundai cars – vehicles on which he did not enjoy working. Although the trial
    court did not explicitly make a finding of Husband’s earning capacity, its memorandum
    opinion, quoted above, appears to implicitly find it to be $62,000 a year, or $5,167 per
    month. The evidence does not preponderate against this finding. Based on Husband’s past
    work history, the amounts he earned in recent years, and the testimony of his former
    employer that he is a very good mechanic, the evidence preponderates that he is capable of
    earning $62,000 per year.
    The parties disagreed on the amount of Wife’s tangible and intangible contributions
    to the marriage. When they got married, Wife owned the 2.2 acres and a double-wide
    manufactured home that was to become the marital residence. During the marriage, Wife
    received a $325,000 settlement from a wrongful death claim arising from her second
    husband’s death. Wife treated this money as separate property and maintained control over
    it. She gave each of her daughters a substantial portion, reckoning that they were entitled to
    -11-
    it as compensation for the wrongful death of their father. The parties in this case bought a
    new double-wide manufactured home and Wife paid $26,000 as a down payment, $6,000 of
    which came from the trade-in value of her old home. Wife testified that she used the
    settlement money to furnish the new house, for various household expenses, for Christmas
    presents, and the like. It was not disputed that the settlement money had all been spent by
    the time of the divorce, except for possibly $5,000 that Wife had given to her daughter Tara.
    Husband testified that the parties frequently fought over, in his words, Wife “being
    lazy and not cleaning and not cooking, not taking care of the house, sit there all day long,
    didn’t do anything while I was out working. She just sat there and watched TV, slept.” Wife
    recognized that she “didn’t keep the house like he expected me to, but I wasn’t able” because
    of her illnesses. Wife testified without contradiction that Husband knew about her diagnosis
    of MS and her physical infirmities before they married, and that Husband promised her he
    would take care of her.
    We hold that the evidence preponderates against the trial court’s award of four months
    of transitional alimony. Considering all of the pertinent statutory factors and the totality of
    the circumstances, we modify Wife’s award to an amount of $150 per week as alimony in
    futuro, payable until Wife dies or remarries. While Wife will likely be entitled to social
    security disability benefits and TennCare, nevertheless, she is clearly in need of additional
    support, and Husband has the ability to pay this amount without undue financial hardship.
    This alimony in futuro is in addition to the trial court’s short-term alimony award for the
    months of August through November of 2013. Our $150 per week alimony in futuro award
    is prospective in nature only. It will commence upon the date that this opinion is released.
    The trial court awarded Wife attorney’s fees in the amount of $2,000. Wife argues
    that the trial court should have awarded her a larger amount. In Gonsewski, the High Court
    stated:
    It is well-settled that an award of attorney’s fees in a divorce
    case constitutes alimony in solido. See Tenn.Code Ann. § 36-5-
    121(h)(1) (“alimony in solido may include attorney fees, where
    appropriate”); Herrera v. Herrera, 
    944 S.W.2d 379
    , 390 (Tenn.
    Ct. App. 1996). The decision whether to award attorney’s fees
    is within the sound discretion of the trial court. 
    Crabtree, 16 S.W.3d at 361
    ; Kincaid v. Kincaid, 
    912 S.W.2d 140
    , 144 (Tenn.
    Ct. App. 1995). As with any alimony award, in deciding
    whether to award attorney’s fees as alimony in solido, the trial
    court should consider the factors enumerated in Tennessee Code
    Annotated section 36-5-121(i). A spouse with adequate
    -12-
    property and income is not entitled to an award of alimony to
    pay attorney’s fees and expenses. Umstot v. Umstot, 
    968 S.W.2d 819
    , 824 (Tenn. Ct. App. 1997). Such awards are
    appropriate only when the spouse seeking them lacks sufficient
    funds to pay his or her own legal expenses, see Houghland v.
    Houghland, 
    844 S.W.2d 619
    , 623 (Tenn. Ct. App. 1992), or the
    spouse would be required to deplete his or her resources in order
    to pay them, see Harwell v. Harwell, 
    612 S.W.2d 182
    , 185
    (Tenn. Ct. App. 1980). Thus, where the spouse seeking such an
    award has demonstrated that he or she is financially unable to
    procure counsel, and where the other spouse has the ability to
    pay, the court may properly grant an award of attorney’s fees as
    alimony. See 
    id. at 185.
    350 S.W.3d at 113.
    We find that the evidence does not preponderate against the $2,000 award of
    attorney’s fees. The award was within the trial court’s sound discretion, and we decline to
    disturb it on appeal. In making this ruling, we bear in mind that Wife was awarded a
    significantly higher portion of the marital estate – property valued at $92,339.29 in net
    amount, while Husband received debts exceeding marital assets resulting in a net of negative
    $11,426.98.
    We further find that Wife is entitled to an award of a reasonable attorney’s fee on
    appeal. Looking at Wife’s income going forward, she has demonstrated that she lacks
    sufficient funds to pay her appellate expenses and would be required to significantly deplete
    her relatively-meager resources in order to pay them. On remand, the trial court is directed
    to hold a hearing and determine the amount that Wife is entitled to receive by way of
    reasonable attorney’s fees and expenses, related to professional services rendered to Wife on
    appeal.
    Finally, Wife argues that the trial court erred by ordering her “to refinance the
    mortgage in her own name and . . . hold [Husband] harmless therefrom.” In her brief, Wife
    asserts that “[i]t would be impossible for her to refinance this mortgage given the fact that
    no lender would loan money to someone in her current physical and financial position.” We
    modify this decree of the trial court to provide that Wife shall apply for, and make reasonable
    efforts leading to, the possible refinancing of the mortgage on the residential property in her
    sole name.
    -13-
    V.
    The trial court’s judgment is affirmed as modified. The case is remanded to the trial
    court for a determination of a reasonable attorney’s fee and expenses in connection with
    professional services rendered on appeal. Costs on appeal are assessed to the appellee,
    Edwin Carl Berkshire, III.
    _____________________________________
    CHARLES D. SUSANO, JR., CHIEF JUDGE
    -14-
    

Document Info

Docket Number: E2014-00022-COA-R3-CV

Judges: Judge Charles D. Susano, Jr.

Filed Date: 12/1/2014

Precedential Status: Precedential

Modified Date: 4/17/2021