Posted by: koherston | August 9, 2012

Legal Separation Precludes Final Award of Alimony: Hooberry v. Hooberry

Facts: After an 8-1/2 year marriage, Husband and Wife sought a legal separation. The parties sought a legal separation for two years so Wife could remain on Husband’s health insurance. Husband was 48 years old and Wife was 52 years old. Wife, who suffered from multiple sclerosis and epilepsy and was unable to work or obtain health insurance, requested permanent alimony and attorney’s fees. Husband argued Wife should not be awarded alimony because of the short duration of the marriage. After a trial, the trial court awarded a legal separation for two years. Wife was awarded transitional alimony of $1,500 per month during the legal separation. In addition, Husband was ordered to maintain Wife’s health insurance during the legal separation. Wife’s request for attorney’s fees was denied. Wife appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Wife argued the trial court erred in failing to award her alimony in futuro and in failing to award her attorney’s fees.

Tennessee law provides that in a divorce the court granting the divorce shall make a final and complete adjudication of the support and property rights of the parties. During a legal separation, however, the court may provide for matters such as child custody, visitation, support and property issues during legal separation upon motion by either party or by agreement of the parties. In light of the foregoing, the Court ruled:

In light of the statute’s express provision for a determination of the parties’ support rights when two years have passed and the parties are entitled to an absolute divorce, we believe it is premature to address the type of support to which Wife may be entitled before the two-year period has passed. Once one or both parties petition(s) the court for an absolute divorce and the trial court has an opportunity to hear additional evidence and determine the type and amount of support that is appropriate based on the circumstances existing at that time, one or both parties will have the opportunity to appeal the award if one or both parties is/are unhappy with the court’s order.

Accordingly, we affirm the trial court’s judgment requiring Husband to pay Wife $1,500 during the parties’ legal separation and hold the trial court did not err in failing to award Wife alimony in futuro. The trial court will have an opportunity to address Wife’s request for alimony in futuro once the parties return to the trial court seeking an absolute divorce.

Regarding attorney’s fees, Wife argued the trial court erred in refusing to award her the attorney’s fees she incurred at trial. Husband claimed that Wife unduly delayed several of the proceedings at the trial court level, and to the extent she incurred high legal bills, she had no one to blame but herself.

In a divorce action, an award of attorney’s fees is treated as additional spousal support. A party is entitled to attorney’s fees when he or she lacks sufficient funds to pay his or her legal expenses or would be required to deplete other assets to do so. If a party has adequate property and income, he or she is not entitled to an award of alimony to cover his or her attorney’s fees and expenses.

After reviewing the record, the Court found “[t]here is no doubt Wife could have avoided some of the legal fees she incurred had she acted differently during the pendency of her case.” The Court also found

Wife failed to submit evidence of the amount of fees she was seeking, and she failed to show she was unable to pay them without depleting her resources. Accordingly, we affirm the trial court’s judgment denying Wife’s request for an award of attorney’s fees and expenses.

Thus, the trial court was affirmed in all respects.

Hooberry v. Hooberry (Tennessee Court of Appeals, Middle Section, June 20, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.


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