Facts:Husband and Wife divorced after 16 years of marriage.
Wife is an orthopedic surgeon. Husband is an engineer who was a stay-at-home parent during the latter part of the marriage. Prior to becoming a stay-at-home parent, Husband earned a six-figure salary.
The trial court equitably divided the marital estate. Wife was awarded assets valued at $1.65 million. Husband was awarded assets valued at $1.5 million.
Husband was awarded rehabilitative alimony of $2000 per month for 36 months.
Finally, Husband was awarded alimony in solido, a.k.a. “lump sum” alimony, of $60,000 to pay his attorney’s fees.
On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court.
When determining whether an award of alimony in solido to pay attorney’s fees is appropriate, the trial court must consider the factors set forth in Tennessee Code Annotated § 36-5-101(i). An award of alimony in solido to pay attorney’s fees is appropriate only when the spouse seeking them lacks sufficient funds to pay his or her own legal expenses, or the spouse would be required to deplete his or her resources in order to pay them.
After reviewing the evidentiary record, the majority of the Court concluded:
In light of the property and financial resources awarded to Husband, we agree with Wife that an award of attorney’s fees as alimony in solido was not warranted in this case. Accordingly, we reverse the trial court’s award of alimony in solido to Husband.
In this case, [Husband] clearly does not lack sufficient funds to pay his own attorney’s fees. [Husband] received an equitable division of the parties’ marital property valued at approximately $1,500,000, including more than $400,000 in financial assets, in addition to rehabilitative alimony of $2,000 per month for 36 months. A payment of $60,000 to pay his own attorney’s fees will not deplete — i.e., empty, exhaust, or waste — [Husband’s] considerable financial resources. Accordingly, the trial court applied an incorrect legal standard, which constituted an abuse of discretion on this issue.
The trial court’s award of $60,000 as alimony in solido was reversed.
Dissent: Judge Stafford filed a dissenting opinion, writing:
As discussed by the majority Opinion, this Court follows the general rule that a “spouse with adequate property and income is not entitled to an award of alimony to pay attorney’s fees and expenses.”
First, I note that the Gonsewski Court held that a spouse with “property and income” would not be entitled to alimony in solido in the form of attorney’s fees…. Husband does not possess both adequate property and income to pay his own attorney’s fees. Because he has no independent income, Husband must resort to depleting his marital estate to pay his attorney’s fees. Wife, however, is certainly financially capable of shouldering that burden….
Having reviewed the trial court’s decision in the light most favorable to it, I cannot agree that the award of attorney’s fees to Husband was an abuse of discretion…. Nothing in the majority’s analysis on this issue leads me to conclude that the presumption in favor of the trial court’s order has in any way been rebutted. Instead, from my review, it does not appear that the trial court’s decision is clearly unreasonable, based upon an incorrect legal standard, illogical, clearly erroneous, or that the decision will cause an injustice. Accordingly, it appears that the majority simply reaches a different conclusion regarding whether the payment of attorney’s fees by Husband would deplete his resources. This is not an appropriate basis for overturning a decision reviewed under the abuse of discretion standard.
K.O.’s Comment: This is a tough one. The more I think about this case, the more I change my mind. Ask me at breakfast and I agree with the majority. By lunch I’m siding with the dissent. By dinner I’m definitely back with the majority. When it’s time for bed, I’m convinced the dissent is correct. If I were on the Court of Appeals, I honestly don’t know which way I’d vote. But I keep coming back this question: Even if one disagrees with the trial court, is it reversible error? As of this writing, I’m with the dissent. Ask me tomorrow and all bets are off.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.