Head v. Head

December 3, 2010 K.O. Herston 0 Comments

Facts: The parties were married 37 years and have one adult child. Husband is a veterinarian. Wife has a high school education and was a homemaker throughout most of the marriage, working sporadically outside the home. Wife was awarded a divorce on grounds of Husband’s adultery. The trial court awarded Wife marital property valued at $910,000. Husband was awarded marital property valued at $790,000. Wife was also awarded alimony in futuro of $6,400/mo. for four years followed by $4,400/mo. until either party’s death or Wife’s remarriage. Wife was awarded $30,000 in attorney’s fees. Husband appealed.

The Court of Appeals affirmed the trial court. Although numerous issues were raised, I will discuss the two I find to be of particular interest in this case: alimony and attorney’s fees.

Regarding alimony in futuro, the Court observed:

The trial court found that Husband had the ability to pay $6,400 per month and that Wife was in need of that amount of alimony. In making this award, the trial court noted the length of the marriage, the fact that Wife supported Husband both financially and otherwise during his education to become a veterinarian, Husband’s greater earning capacity, and the physical condition of Wife, which limited her ability to work. The court further noted the decrease in the alimony award in 2013 would correspond to Wife’s 60th birthday, on which date she would be able to access the funds in the IRA and SEP accounts without a tax penalty.

The evidence in the record fully supports the finding that Wife has a need for alimony as she has only a high school education, limited work experience, and significant health problems that made it difficult for her to work outside the home. As for the amount needed, Wife submitted her monthly expenses as $8,657.00, of which $1,457.00 per month was for the cost of her health insurance. Husband challenged the amount of her expenses, stating that Wife’s expenses are as little at $1,084.30. We, however, find that Husband’s calculations are so extreme they lack credibility because Husband’s itemization of Wife’s expenses fail to provide for food, other basic living expenses, and health insurance. Conversely, we note with great interest that Husband included in the calculation of his monthly living expenses allowances for food, restaurants, and clothing. Not surprisingly, we are unable to fathom why food and clothing are necessities for Husband but Wife has no need for such items.

As for Husband’s contention that he does not have the ability to pay, we find this contention in conflict with the preponderance of the evidence. Husband has lived a lavish lifestyle, as the assortment of expensive motor vehicles, including two Corvettes, and other nonessential vehicles indicate. Husband’s claimed inability to pay the alimony awarded by the trial court is also undermined by his own admissions that he has a history of under reporting his income. He testified that he often took cash payments for his veterinary services and did not report the cash receipts as income on the Clinic’s books or his income tax returns. Moreover, Husband’s “unrecognized” cash income was not insignificant, it ranged from $1,100 to $2,220 per month. Husband also admitted keeping as much as $22,000 in cash in a safe deposit box and keeping additional cash at home in his armoire; however, by the time of trial he said he had no cash stowed away. . . .

Having reviewed the record closely, it is readily apparent that the trial court doubted Husband’s credibility and we find no reason to place more faith or credit in Husband’s testimony regarding his expenses and income than the trial court.

Regarding attorney’s fees, the Court was not persuaded by Husband’s argument.

An award of attorneys’ fees in a divorce action constitutes alimony in solido. An award of attorneys’ fees is to be based upon a consideration of the factors set forth at Tenn. Code Ann. § 36-5-121(i), and is appropriate when the spouse seeking them does not have adequate funds to pay his or her legal expenses. “It is considered most appropriate where the final decree of divorce does not provide the obligee spouse with a source of funds, such as from property division or alimony in solido, with which to pay his or her attorney.” The award of attorney fees is within the sound discretion of the trial court, and will not be reversed on appeal if that discretion is not abused. 

The evidence at trial demonstrated that Wife was the disadvantaged spouse and that attorneys’ fees were incurred due to Husband’s lack of cooperation during discovery. The record also reveals, as the trial court found, that Wife contributed to the delay in the resolution of this action, for which Husband was awarded an offset of $10,135 for attorney’s fees due to a successful contempt motion against Wife. Having reviewed the record, we find the trial court did not abuse its discretion by awarding Wife attorneys’ fees in the amount of $30,037. Therefore, we affirm the trial court’s award of attorneys’ fees to Wife.

After receiving over $900,000 in marital property, surely Wife had adequate funds to pay her legal fees. It looks like Husband’s “lack of cooperation during discovery” came back to bite him. This illustrates that it’s often a bad idea to fight about everything. The wise litigant and attorney picks his or her battles.

Head v. Head (Tennessee Court of Appeals, Sept. 30, 2010).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.

Head v. Head was last modified: August 28th, 2011 by K.O. Herston

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