The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 20, 2002 Session
DAGMAR GABRIELE MOSS v. ALVIN WARREN MOSS
A Direct Appeal from the Chancery Court for Hardeman County
No. 13292 R.D. The Honorable Dewey C. Whitenton, Chancellor
No. W2001-02809-COA-R3-CV - Filed November 19, 2002
Wife filed a complaint for divorce alleging inappropriate marital conduct and, in the
alternative, irreconcilable differences, and husband filed a counterclaim for divorce on the same
grounds. The chancery court awarded the wife an absolute divorce and alimony in solido in the
amount of $1,000.00, to be paid toward her attorney fees, but denied wife’s claim for alimony in
futuro. Wife appeals. We affirm as modified and remand.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed as
Modified and Remanded
W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and HOLLY KIRBY LILLARD, J., joined.
Harriet S. Thompson, Bolivar, For Appellant, Dagmar Gabriele Moss
H. Morris Denton, Bolivar, For Appellee, Alvin Warren Moss
OPINION
Plaintiff-appellant, Dagmar Gabriel Moss (“Wife”), appeals the Final Decree of Divorce of
the trial court as to the denial of an award of alimony in futuro and the award of only $1,000.00 as
alimony in solido against defendant-appellee, Alvin Warren Moss (“Husband”), for attorney fees and
expenses totaling $1,500.00.
Parties were married on November 25, 1994, after a five month courtship. In the months
leading up to their marriage, the parties lived together in a home owned by Wife.1 Upon their union,
1
At the time of the m arriage , Husband ow ned a separate home which he subsequently deeded to his son, Warren
Moss, Jr. Shortly before trial, Husband purchased real property in his son’s name, valued at approximately $25,000.00.
Husband testified that he m ade a $15,00 0.00 dow n paym ent on this property.
Husband established this home as his permanent residence. Parents of adult children from previous
marriages, the parties do not have any offspring together.
On December 20, 2000, Wife filed for divorce after seven years of marriage. As grounds for
divorce, Wife alleged that Husband engaged in inappropriate marital conduct. In her testimony at
trial, Wife alluded to several instances of inappropriate conduct on Husband’s behalf. Specifically,
Wife alleged that Husband engaged in multiple extramarital affairs, drank excessively, gave marital
property to his son without her consent, refused marriage counseling, moved out of the couple’s
marital bedroom, and refused to bathe. Husband admitted to drinking heavily on occasion and
engaging in sexual relations with other women after his separation, but denied having extramarital
affairs while he was living with Wife. Husband also admitted to refusing counseling and failing to
bathe.
At the time of the parties divorce, Wife was an unemployed2, 56 year-old woman with severe
health concerns. Her only income was and is derived from social security disability benefits that she
has been receiving since October 13, 1994.3 Currently, Wife receives benefits in the amount of
$569.00 a month for complications that she suffers as a result of her “organic brain disorder with a
secondary impairment of late effects of cerebrovascular accident,” and the disabling effects from the
left cerebella stroke she suffered in 1986, and the several minor strokes she has experienced since.
As a result of her deteriorating health, Wife is unable to work outside her home.
According to an Affidavit of Income and Expenses submitted by Wife, her monthly living
expenses total $1,188.00. Husband admits, and the record indicates, that this amount far exceeds
the income she receives from social security disability benefits. In her affidavit, wife listed several
general expenses, including utilities, mortgage payments, health and automobile insurance
premiums, telephone, cable, and groceries. Aside from these general expenses, Wife also testified
to having outstanding medical bills that are not covered by her health insurance, and owing
$1,500.00 to her daughter Sheila as repayment for funds advanced to Wife for payment of attorney
fees in the case at bar.
Wife’s 35 year-old adult son, Thomas McCommon (“McCommon”), resides with Wife in
her home. McCommon testified that he has lived with his mother most of his life, and that he lived
in the marital home of Wife and Husband for the greater part of the marriage. Wife admitted that
McCommon dedicates a portion of his salary from Maytag to the payment of Wife’s expenses that
exceed her monthly income. Without this assistance, McCommon commented that it would be
difficult for his mother to meet her financial obligations.
The underlying theory of Wife’s claim for alimony in futuro is that she is economically
disadvantaged as a result of her disabilities and, because of the substantial non-monetary
2
Prior to her marria ge to H usband, W ife was employed in the payroll and personnel department for Master
Apparel/Master Slack. As a result of her deteriorating health, and with her husband’s urging, W ife quit her job with the
factory less than one week after the parties were married. Shortly thereafter, Wife applied for soc ial security disability.
3
Acco rding to the reco rd, W ife also receives app roximately $6 1.00 each mo nth in food stamp s.
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contributions that she made to the marriage, her former husband, who is in a financially superior
condition, should be obligated to pay temporary and permanent support. At trial, Wife specifically
requested monthly alimony in the amount of $600.00.
Husband is a 54 year-old, over the road truck driver who currently owns and operates his own
trucking business. Husband’s business income tax records for the years 1998-2000 were submitted
as trial exhibits as proof of his ability to provide spousal support. These records indicate that
Husband’s annual income from his trucking business for this three-year period was $32,259.00,
$43,898.00, and $35,592.00 respectively. Husband’s primary business vehicle is a 1993 Freightliner
truck that he purchased in December of 1995 while the parties were still married. According to
Husband, he applied a $10,000.00 C.D. obtained prior to his marriage to Wife, toward the purchase
of the cab. The remainder of the truck balance was paid off during the course of the marriage. The
parties agree that the truck has a current depreciated value of $8,000.00.
In addition to the income Husband derives from his trucking business, Wife asserted that
Husband is capable of providing spousal support as a result of funds he has accumulated in an
individual retirement account (“IRA”) and a Woodmen of the World (“Woodmen”) fund. The IRA
is currently valued at $18,827.00. Wife alleged that marital funds were deposited into these accounts
on a monthly basis during the marriage. Although Husband admitted that the accounts were financed
through automatic monthly deductions from the couple’s joint bank account,4 he noted that he
purchased the IRA and Woodmen fund several years prior to the marriage. Further, Wife admitted
that she never contributed any portion of her disability payments or personal funds toward the joint
account, the IRA, or the Woodmen fund.5
As further support for her argument that Husband is financially able to provide spousal
support, Wife asserted that the couple held $10,000.00 in cash savings in a home safe at the time of
their separation in July of 2000. According to Wife, Husband took the entire $10,000.00 with him
when he moved out of the home. While Husband admitted to taking the money that was in the safe,
he disputed the total submitted by Wife in her testimony. In his cross examination testimony,
Husband testified that the safe contained $7,500.00 in savings in July of 2000, the balance of which
he deposited in a savings account and later used to pay the couple’s 2000 income taxes, and purchase
tags for his business vehicle.
The record indicates that throughout the course of the parties’ seven year marriage, Husband
made substantial financial contributions toward the payment of household expenditures, mortgage
debts, home improvement, and annual income taxes. Husband paid $12,800.00 on the principal of
Wife’s home mortgage. In addition to these payments, Husband provided a detailed list in his
counterclaim for divorce of improvements to Wife’s home that he personally financed over the
4
According to H usband’s testim ony, W ife was free to write checks out of the joint account.
5
The chancery court prohibited Wife from testifying about how she spent her disability funds because she was
unable to produce any records or bank statements to verify how the money was applied.
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course of the marriage.6 Included among these improvements were the addition of a swimming pool,
payment of home and auto insurance premiums, purchase of furniture and yard tools, general home
repair expenses, and the purchase of a 1987 Jeep Cherokee for Wife. Husband totaled the
improvements at $51,387.00.
Wife argued that regardless of the financial contributions bestowed by Husband, the non-
monetary contributions that she made to the marriage warranted an award of temporary and
permanent support. In her testimony Wife asserted that she made valuable contributions to the
marriage as a wife, homemaker, babysitter, hostess, and helpmate in Husband’s trucking business.
Q. Okay, I would like for you to tell the Court everything you did.
A. Well, I kept the house clean, clothes clean, kept the big truck
clean. I kept his little truck clean. I went on the road with him. I
mowed the yard. I did everything.
Q. Did you do anything specifically with the business besides
cleaning the big truck?
A. Yeah, I did his book work and paid the drivers and, you know,
when you pay them you got to make quarterly deposits for taxes and
stuff.
.
Q. Did you do those – complete those?
A. Yes.
Q. So you did all the paperwork involved with the business?
A. Yes.
Q. Was there anything else that you did for Mr. Moss in the marriage
in the social skills?
A. Well, I straightened up after his friends. I picked up cigarette
butts, beer bottles. You name it.
Q. Did Mr. Moss entertain there – entertain friends?
A. It was mostly his family, yes.
6
Although wife does not dispute that these improvements were made, she maintains tha t these expenditures did
not increase the value of her home.
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Q. Is there anything else that you did that wasn’t a money
contribution during the marriage?
A. Well, I kept the pool up, baby-sat Tiffany. He always wanted
Tiffany –
Q. Who is Tiffany?
A. His granddaughter. He would get drunk and pass out and I would
have Tiffany to play with.
Husband admitted that he often invited friends and family to the house for drinks, and that Wife took
care of the cooking, cleaning, yard work, and pool maintenance. Although he admitted that Wife
was occasionally asked to act as a hostess to his family and care for his granddaughter, Husband
disputed that Wife was burdened with such responsibilities as often as she testified. With regard to
his wife’s duties in the operation of his trucking business, Husband admitted that Wife was
responsible for completing paperwork and bills, and keeping the interior of the truck clean.
Since the couple’s separation in July of 2000, Husband has provided temporary support to
Wife on several occasions. The record indicates, and wife admitted, that Husband paid her house
insurance in November of 2000, bought eyeglasses for Wife at a cost to Husband of more than
$200.00, and paid the entire balance of the income taxes owed by the couple for the year 2000.
Husband further alleged that Wife withdrew approximately $2,650.00 from the couple’s savings
account shortly after their separation.
On December 20, 2000, Wife filed a complaint for divorce against Husband on the grounds
of inappropriate marital conduct and, in the alternative, irreconcilable differences. Pursuant to her
complaint, Wife sought an absolute divorce and “alimony, both temporary and permanent.” Wife
further prayed for an award of one-half of the equity in Husband’s tractor-trailer truck, an equal
division of the couple’s $10,000.00 cash savings, attorney fees, and court costs. Husband filed a
counterclaim for divorce on February 6, 2001, alleging inappropriate marital conduct and
irreconcilable differences.
A non-jury trial was held before Chancellor Dewey C. Whitenton, Chancery Court,
Hardeman County, Tennessee, on August 21, 2001. The court issued its ruling by written Trial
Opinion on September 26, 2002. On October 17, 2001, a Final Decree of Divorce was entered
granting Wife an absolute divorce upon the grounds of inappropriate marital conduct. In its order,
the court awarded each party the real and personal property presently in their respective possession,
but refused to “make any further division of, or cash payment for, marital property.” Addressing
Wife’s claims for temporary and permanent alimony, the court ruled:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the
Court, after considering all of the applicable factors, including the
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duration of the marriage, there shall be no award of any additional
alimony in futuro to plaintiff; but since there is a substantial disparity
in the income of the parties, the Court does award to the plaintiff,
Dagmar Gabriele Moss, the sum of $1,000.00 as alimony in solido to
be paid for her attorney, Harriet S. Thompson, as payment on
plaintiff’s attorney fees.
Wife appealed, presenting the following issues, quoted from her brief, for review.
I. Whether the trial court erred in failing to award alimony in futuro
to the Wife, Dagmar Moss.
II. Whether the trial court erred in failing to award the entire sum of
the Wife’s attorney fees as alimony in solido to the Wife, Dagmar
Moss.
The first issue presented for review is whether the chancery court erred in failing to grant an
award of alimony in futuro to Wife. Guidelines for the determination of alimony are set forth in
T.C.A. § 36-5-101(d) (Supp. 1997). The trial court is afforded wide discretion concerning the award
of alimony, and an appellate court should reverse the trial court’s findings only in instances in which
this discretion “has manifestly been abused.” Hanover v. Hanover, 775 S.W.2d 612, 617 (Tenn. Ct.
App. 1989); Ford v. Ford, 952 S.W.2d 824, 827 (Tenn. Ct. App. 1997).
Need and the ability to pay are the critical factors in setting the amount of an alimony award.
Smith v. Smith, 912 S.W.2d 155, 159 (Tenn. Ct. App. 1995). From the evidence and testimony
presented in this case, it is clear that Wife is a woman of limited means and poor health, in desperate
need of financial assistance. However, the fact that Wife has demonstrated a need for temporary and
permanent support, alone, does not mandate an award of alimony in futuro by the chancery court.
The court, in analyzing a claim for alimony, must consider and weigh all of the relevant factors set
forth in T.C.A. § 36-5-101(d). We find no evidence that the chancellor neglected his duty under this
statute.
In his trial opinion, the chancellor offered the following rationale for his decision to deny
Wife’s claim for alimony.
After consideration of all of the proof and the record in this case, the
Court finds by a preponderance of the evidence that the accumulation
of equity which Mr. Moss has received in his tractor-trailer truck and
IRA account during the marriage is more than offset by the payments
that he made on the principal of the mortgage note of the residence
and lot of Ms. Moss, and by the improvements that he made to that
property.
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We find the chancellor’s interpretation convincing, and conclude, simply, that Husband has paid
enough. During the span of a seven year marriage, Husband paid at least $12,800.00 on the principal
of the mortgage note on Wife’s home, contributed over $50,000.00 toward improvements on said
home, and was the sole financial provider for the parties. There is uncontroverted evidence that Wife
directly benefitted from, and had access to, the income earned by Husband over the course of the
marriage. In contrast, the record is devoid of any evidence of any financial contributions made by
Wife to the marriage. As a point of fact, Wife was prohibited from testifying about how she spent
the disability benefits that she received during the marriage because she failed to produce bank
statements or receipts to verify her expenditures.
Irrespective of Husband’s financial contributions to the marriage, we find that he is unable
to pay temporary or permanent support to Wife based on his limited income and meager personal
and real property possessions. Aside from the real property that he purchased shortly before trial,
Husband’s only significant possession is his 1993 Freightliner truck, currently depreciated to a net
value of $8,000.00. Based on these facts, we find that Husband does not enjoy the type of financial
stability or prosperity to warrant being saddled with monthly alimony obligations.
Though we cannot dispute that Wife has sincere financial concerns, we find that Wife is in
no worse a financial or material position than she was before her marriage to Husband. The
disability report submitted on behalf of Wife is evidence that Wife suffered from severe medical
complications prior to her marriage to Husband. This report states that Wife was deemed disabled
and thereby awarded disability benefits beginning on October 13, 1994. Although she argues that
she quit her job with Master Apparel/Master Slack at the urging of Husband, there is no evidence
in the record to indicate that Wife was physically capable of maintaining employment. In fact, the
record indicates that Wife was experiencing performance difficulties as a result of her disabilities
prior to her resignation.
While Wife is unable to provide for her monthly living expenses without assistance, she is
not without financial resources. First, Wife receives $659.00 each month in disability benefits and
$61.00 in food stamps. Second, Wife maintains possession of the marital home. Finally, Wife
testified that her son provides financial assistance to cover any bills or debts that she is unable to
satisfy on her fixed income. McCommon, who is employed full-time with Maytag, has lived with
his mother for nearly thirty-five years, and lived in the parties’ marital home for a substantial term
of the marriage. Based on these circumstances, we find that Wife has sufficient financial assistance
and resources at her disposal to adequately provide for her necessary living expenses.
While Husband’s behavior during the marriage, and Wife’s health concerns and non-
monetary contributions to the home and business are factors that strongly advocate an award of
alimony, we ultimately conclude that Wife is not entitled to an award of alimony in futuro when
considering the significant benefit she received from Husband’s financial contributions to the
marriage, and Husband’s current inability to provide such support. We therefore affirm the trial
court’s ruling, and find that he did not commit an abuse of discretion by denying Wife’s claim for
alimony in futuro.
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The final issue for review is whether the trial court erred in failing to award Wife the entire
sum of her attorney fees as alimony in solido. Wife has presented sufficient evidence to demonstrate
that she has or will incur at least $1,500.00 in attorney fees for this litigation. However, the court,
in its final decree of divorce, awarded Wife only $1,000.00 as alimony in solido, with the direction
that Wife apply this sum as payment of attorney fees. Wife takes issue with the amount of the
alimony in solido award, and argues that she is entitled to an award for the full amount of $1,500.00.
The trial court’s decision to award attorney’s fees is considered an award of alimony. Long
v. Long, 957 S.W.2d 825, 829 (Tenn. Ct. App. 1997). An appellate court will not interfere with the
trial court’s decision to award attorney’s fees unless it is shown that “manifest injustice would be
done if the award is allowed to stand.” Id.
An award of attorney fees constitutes alimony in solido. Herrera v. Herrera, 944 S.W.2d
379, 390 (Tenn. Ct. App. 1996); Cranford v. Cranford, 772 S.W.2d 48, 52 (Tenn. Ct. App. 1989).
As with any alimony award, in deciding whether to award attorneys fees as alimony in solido, the
trial court should consider the relevant factors enumerated T.C.A. § 36-5-101(d). A spouse with
adequate property and income is not entitled to an award of alimony to pay attorney fees and
expenses. Umstot v. Umstot, 968 S.W.2d 819, 824 (Tenn. Ct. App. 1997); and Duncan v. Duncan,
686 S.W.2d 568, 573 (Tenn. Ct. App. 1984). “These awards are appropriate, however, only when
the spouse seeking them lacks sufficient funds to pay his or her own legal expenses,” Brown v.
Brown, 913 S.W.2d 163, 170 (Tenn. Ct. App. 1994) (citing Houghland v. Houghland, 844 S.W.2d
619, 623 (Tenn. Ct. App. 1992), and Ingram v. Ingram, 721 S.W.2d 262, 264 (Tenn. Ct. App.
1986)), or would be required to “deplete his or her resources in order to pay these expenses.” Id.
(citing Harwell v. Harwell, 612 S.W.2d 182, 185 (Tenn. Ct. App. 1980)).
Considering Wife’s obvious financial concerns and limitations, and no award of alimony in
futuro, the court’s decision to award only $1,000.00 of the attorney fees in the amount of $1,500.00
could be considered an abuse of discretion.
Accordingly, the award of alimony in solido is modified to award $1,500.00 for attorney fees.
As modified, the decree is affirmed. Costs of the appeal are assessed one-half to Appellant, Dagmar
Gabriele Moss, and her surety, and one-half to Appellee, Alvin Warren Moss. The case is remanded
to the trial court for such further proceedings as may be necessary.
__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
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