Evelyn Diane Beecham v. Tom Wayne Beecham

EVELYN DIANNE BEECHAM, )
)
Plaintiff/Appellee, )
) Appeal No.
) 01-A-01-9512-CH-00552
VS. )
) Lawrence Chancery
) No. 7205-95
TOM WAYNE BEECHAM, )
Defendant/Appellant.
)
) FILED
COURT OF APPEALS OF TENNESSEE June 28, 1996
MIDDLE SECTION AT NASHVILLE
Cecil W. Crowson
Appellate Court Clerk
APPEALED FROM THE CHANCERY COURT OF LAWRENCE COUNTY
AT LAWRENCEBURG, TENNESSEE
THE HONORABLE JIM T. HAMILTON, JUDGE
PAUL A. BATES
CHRISTOPHER V. SOCKWELL
BOSTON, BATES & HOLT
235 Waterloo Street
P. O. Box 357
Lawrenceburg, Tennessee 38464
Attorneys for Plaintiff/Appellee
RANDY HILLHOUSE
FREEMON & HILLHOUSE
327 West Gaines Street
P. O. Box 787
Lawrenceburg, Tennessee 38464
Attorney for Defendant/Appellant
AFFIRMED AS MODIFIED
AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
LEWIS, J.
KOCH, J.
OPINION
The issues raised in this divorce case involve the award of alimony,
attorney’s fees, and discretionary costs. We modify the lower court’s judgment to
delete the award of alimony in solido. Otherwise, we affirm.
I.
The parties were divorced by a decree of the Lawrence County
Chancery Court on July 19, 1995 ending a twenty-six year marriage. After dividing the
marital property, the chancellor ordered Mr. Beecham to pay $10,000 as alimony in
solido, $750 per month for five years as rehabilitative alimony, $4,612.50 in attorney’s
fees, and $786.50 in discretionary costs.
The proof showed that the parties had four children, one of whom was
still a minor. Ms. Beecham works as a special education assistant earning $8,770 per
year. Mr. Beecham earns approximately $37,000 per year working for a construction
company. Neither party has a college degree. At the trial Ms. Beecham proved
specific acts of cruel and inhuman treatment and an adulterous affair by Mr.
Beecham.
II.
Mr. Beecham contests the alimony award. As noted, the trial judge
awarded $10,000 as alimony in solido and $750 per month as rehabilitative alimony
for five years. We agree that the alimony in solido award should be reversed.
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Ms. Beecham was awarded the major marital asset, the home of the
parties. Aside from Mr. Beecham’s pension plans, which he cannot begin to draw
from until he reaches age sixty-five, the only assets awarded to him were some old
automobiles, some farm equipment, a 1992 Thunderbird, and a 1992 Mustang.
Although the two late-model cars were of some value, Mr. Beecham testified without
contradiction that they belonged to two of his children. Mr. Beecham admitted that his
name was previously on a savings account containing $11,854.10, but he testified that
it belonged to one of his children, and the trial judge did not deal with it in the final
decree. The trial judge did find that Mr. Beecham had failed to account for his income
for the past several years; Mr. Beecham said only that he had spent it on tires, cars,
and automobiles. Nevertheless, there is no specific property of a substantial value out
of which we could make a $10,000 award to Ms. Beecham. See Tenn. Code Ann. §
36-5-102. An award of alimony in solido should not be awarded out of the expectation
of future earnings. Aleshire v. Aleshire, 642 S.W.2d 729 (Tenn. App. 1981).
Otherwise, we think the rehabilitative alimony award was within the trial
judge’s discretion and should be affirmed.
III.
Mr. Beecham also contests the award of attorney’s fees to Ms.
Beecham. On appeal he argues that the award was too high and that Ms. Beecham
had not shown any need for the additional form of alimony. However, this court has
held that “[t]he amount of alimony and counsel fees to be awarded in a divorce suit
is largely in the discretion of the trial judge and the appellate courts will not interfere
except upon a clear showing of abuse of such discretion.” Crouch v. Crouch, 53
Tenn. App. 594, 605, 385 S.W.2d 288, 293 (1964).
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At the beginning of the trial Ms. Beecham’s attorney submitted an
affidavit showing he had spent 30.75 hours on the case up to that point. The trial
judge awarded a fee of $4,612.50 in addition to the $375.00 awarded at the pendente
lite hearing. Taking into account the factors listed in D.R. 2-106 of the Code of
Professional Responsibility and the reluctance of the appellate courts to interfere with
the allowance of attorney’s fees by the trial courts, “unless . . . some injustice has
been perpetrated”, Conners v. Conners, 594 S.W.2d 672 (Tenn. 1980), we think the
amount of the award should not be disturbed.
As to the question of need, we think that fact has been adequately
established. Without the $10,000 award of alimony in solido, Ms. Beecham did not
receive any liquid assets except her checking account containing $200. Therefore,
we think the trial judge acted properly in awarding the attorney’s fees in this case.
IV.
Mr. Beecham also contests the order requiring him to pay the 1994
taxes on the parties’ home, to pay one-half of Ms. Beecham’s car note, and to pay a
court reporter’s fee and an appraisal fee as discretionary costs. See Rule 54.04(2),
Tenn. R. Civ. Proc. Without taking up the items separately we think the court acted
within its discretion. See Lock v. National Union Fire Insurance Co., 809 S.W.2d 483,
489-490 (Tenn. 1991), for a discussion of Rule 54.04.
The judgment of the court below is modified to delete the award of
alimony in solido. Otherwise, the judgment is affirmed and the cause is remanded to
the Chancery Court of Lawrence County for any further proceedings that may become
necessary. Tax the costs on appeal to the appellant.
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_____________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
SAMUEL L. LEWIS, JUDGE
_______________________________
WILLIAM C. KOCH, JR., JUDGE
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