Facts: Husband and Wife divorced after 27 years of marriage and 10 years of premarital cohabitation.

At the time of trial, Wife was 77 years old and Husband was 67 years of age.

Wife maintained two jobs throughout the marriage. Her full-time employment during the week was as a food service manager for an elementary school. In addition, Wife was employed on a part-time basis as a cashier and hostess in a restaurant on the weekends. Wife earned a combined gross income of approximately $21,000 to $26,000 per year.

Husband was self-employed as a long-haul truck driver. He reported gross income of approximately $72,000 to $93,000 but claimed to have substantial business expenses related to depreciation, taxes, fuel, and vehicle repairs.

Neither of them entered the marriage with any significant assets. They maintained separate finances both prior to and during the marriage, with each owning his or her own separate bank accounts. During the marriage, they purchased real property and built a home thereon. The associated costs were divided equally. The parties equally contributed to the monthly expenses related to the home, including taxes, insurance, and utilities.

Wife was frugal with her money and save as much as possible. Husband failed to save or accumulate funds as diligently as Wife. Consequently, Husband did not possess total amounts in his bank accounts equivalent to Wife’s at the time of trial.

The trial court found that although both parties contributed to the marital estate, Wife’s contribution was greater based on her frugality and ability to save money. Wife had saved a much larger amount of her money than had Husband, despite her limited income.

The trial court awarded Wife’s accounts to her and Husband’s accounts to him. This resulted in an overall division of the marital estate of 68% to Wife and 32% to Husband. Wife was also awarded $11,563 for attorney’s fees and expenses.

Husband appealed.

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

Property division. Husband argued the trial court erred in awarding the bulk of the marital estate to Wife.

After reviewing the record, the Court reasoned:

The evidence does not preponderate against the trial court’s findings. Husband demonstrated a significantly greater earning capacity than Wife, and the ten-year difference in their ages would likely afford Husband a longer period of time within which to earn income and accumulate assets. Wife demonstrated an exemplary ability to save money, resulting in a larger contribution by her to the marital estate. In the future, Wife may well be required to utilize those savings in order to defray her living expenses.

Our review of the evidence in this matter, considering the statutory factors delineated in Tennessee Code Annotated § 36-4-121(c), leads us to the conclusion that the trial court’s division of marital property is equitable…. The court’s equitable division of marital property holds proper evidentiary support, and we find no error of law in the court’s application of the statutory requirements and procedures. Ergo, we affirm the trial court’s equitable distribution of the marital estate.

Attorney’s fees. Husband argued the trial court erred in awarding Wife $11,563 to compensate her for attorney’s fees and costs. Husband complained the trial court based the award solely on his marital fault.

An award of attorney’s fees in a divorce case constitutes alimony in solido. 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 § 36-5-121(i).

A spouse with adequate property and income is not entitled to an award of alimony to pay attorney’s fees and expenses. Such awards are 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. 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.

After reviewing the record, the Court concluded:

The trial court’s order reveals a singular focus upon Mr. Waters’s fault without specific consideration of the other statutory factors…. Such awards are 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.” Such is not the circumstance in the case at bar inasmuch as Wife was awarded a large share of liquid assets with which she could pay her attorney’s fees. Therefore, we reverse the trial court’s award of attorney’s fees to Wife.

Accordingly, the unequal division of the marital estate was affirmed in this marriage of long duration but the award of attorney’s fees was reversed.

Waters v. Waters (Tennessee Court of Appeals, Eastern Section, August 20, 2015).

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