Jamie Kay Cardle v. Daniel Marcum Cardle

05/17/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 12, 2017 Session

JAMIE KAY CARDLE V. DANIEL MARCUM CARDLE

Appeal from the Chancery Court for Sumner County

No. 2014-DM-450 Louis W. Oliver, Chancellor

No. M2016-00862-COA-R3-CV

Wife filed a complaint for divorce following a fifteen-year marriage. The trial court

granted Wife a divorce, distributed the marital estate, and awarded Wife alimony. The

trial court granted Husband’s request to pay the alimony in solido award over a period of

six years, with post-judgment interest payable at 10% interest per annum. Husband

appeals the division of some of the marital assets and debts, the award of alimony in

solido, and the post-judgment interest award. We affirm the trial court’s division of the

marital estate and the award of alimony in solido, but we modify the post-judgment

interest rate from 10% to 5.50% to conform with the interest on judgments statute, Tenn.

Code Ann. § 47-14-121.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Modified

in Part and Remanded

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.

Daniel Cardle, Gallatin, Tennessee, Pro Se.

Patti B. Garner, Gallatin, Tennessee, for the appellee, Jamie Kay Cardle.

OPINION

I. BACKGROUND

Jamie Kay Cardle (“Wife”) and Daniel Marcum Cardle (“Husband”) were married

for fifteen years when Wife filed a complaint seeking a divorce in December 2014.

Husband filed an answer and counterclaim seeking a divorce as well. The parties have

two children who are not at issue in this appeal. The trial court awarded Wife a divorce

in March 2016. The court distributed the marital property and debts between the parties

and awarded Wife transitional alimony, rehabilitative alimony, and alimony in solido.

The trial court granted Husband’s request to pay the alimony in solido in seventy-two

equal installments, but noted that the judgment would “carry the standard 10% interest

for judgments.” Husband claims the trial court erred in its distribution of equity in the

marital home, in its award of marital debt to Husband, and in its award of alimony in

solido to Wife, including the award of post-judgment interest. Wife argues the trial court

should have required Husband to pay the alimony in solido award in one lump sum rather

than over time. Wife also seeks an award of her attorney’s fees on appeal.

The record includes a transcript of the court’s ruling following the trial, but it does

not include a transcript of the trial itself. Husband submitted a statement of evidence in

accordance with Tennessee Rule of Appellate Procedure 24(c), to which the trial court

made “corrections/modifications.” Husband’s statement of evidence summarizes the

testimony of Wife and Husband separately and includes the following relevant

provisions:

Wife, Jamie Kay Cardle testified to:

....

2. The appraised value of the marital home being $300,000

3. Receiving pre approval to refinance the marital home through Movement

Mortgage

....

7. Distributions from Mr. Cardle’s IRA [individual retirement account]

were used to pay household expenses in 2014 and 2015.

8. A $10,000.00 IRA distribution in 2009 from Mr. Cardle’s IRA was used

to pay closing cost for the purchase of the marital home.

9. Receiving a $10,000.00 car accident settlement in 2009

10. $10,000 deposited back to Mr. Cardle’s IRA in 2009

11. Having gross monthly income of $2,087 per month

12. Having total monthly expense of $3,043 per month

13. Receiving an hourly wage of $10 per hour at Tots Preschool

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14. Reducing her work hours at Tots Preschool in 2015

15. Not receiving a wage increase in 3 years

16. Tots Preschool closing at least 6 weeks a year

17. Starting work with Safe Harbor in 2015

18. Receiving an hourly wage of $12 per hour at Safe Harbor

19. Holding a Cosmetology License

....

21. Receiving financial assistance from [parents] James and Linda

Montgomery

22. Selling her vehicle to James and Linda Montgomery

23. Receiving daily use of vehicle sold to James and Linda Montgomery

24. James and Linda Montgomery paying her attorney fees

Husband, Daniel Marcum Cardle testified to:

1. Purchase of the marital home at 1031 Addington Rd, Hendersonville, TN

37075 with Jamie Cardle in 2009

2. Making a $10,000.00 premature distribution from his IRA in 2009 to pay

for marital home closing costs

3. Informing Mrs. Cardle of his IRA distribution in 2009

4. Mrs. Cardle agreeing to refund Mr. Cardle’s [IRA] with a negotiated

$10,000.00 insurance settlement received in 2009 in order to avoid taxes on

Mr. Cardle’s premature IRA distribution

5. Additional premature distribution[s] from Mr. Cardle’s IRA were made

in 2012, 2013, and 2014 totaling $63,366

6. The premature IRA distributions were subject to taxes and penalties

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7. Distributions were deposited into the marital joint checking account used

to pay marital expenses including the home mortgage

8. Taxes were filed jointly throughout the marriage including 2012, 2013,

and 2014

9. The unpaid 2014 tax obligation was $5,047.45

10. Having gross monthly income of $6,026 per month

11. Having net monthly income of $4,327.16

12. Having total monthly expenses of $3,153.33

13. The remaining balance on the marital home property was $227,461, as

of January 13, 2016.

The trial court corrected and modified Husband’s statement, in relevant part, as

follows:

9. Wife received a $10,000.00 accident settlement in 2009. Wife desired to

use the funds for a hot tub to treat her back injury and for a fence for the

marital home to comply with the homeowners association rules.

10. Husband deposited Wife’s $10,000.00 accident settlement into

Husband’s IRA. Wife did not know at the time of any tax consequences

regarding the withdrawal of IRA contributions.

12. Wife has total monthly expenses of $3,043.00 per month which she can

not afford.

19. Wife holds a cosmetology license in California. Wife is unsure of what

measure would have to be taken to transfer the cosmetology license to

Tennessee.

21. Wife’s parents James and Linda Montgomery have assisted many times

during the marriage in that Husband refused to provide for necessities.

Clothing came from Goodwill. Children need more than one pair of shoes.

Food is a main item Husband refused to pay. Husband was loud to get point

across and would slap the table. Wife would let him go and not object to

husband’s directives. Financial assistance from James and Linda

Montgomery was noted on the checks as loans.

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22. Wife sold her vehicle to James and Linda Montgomery for the amount

owed on the car loan in order to reduce her expenses in qualifying for a

loan to refinance the marital home. James and Linda Montgomery allowed

the Wife to continue to use the vehicle sold to them.

24. James and Linda Montgomery have paid Wife’s Attorney fees until

Wife can afford to pay them back.

The trial court added the following to the end of its correction/modification of

Husband’s statement of evidence:

Husband further filed a Motion for Corrections to Final Order of Divorce

on March 24, 2016, which [the] Court considered as a Motion to Alter or

Amend. At the hearing on the motion on April 4, 2016, Husband stated in

his Pro Se argument that prior to the motion being considered by the Court

the Husband had accepted a check for his equity in the marital home in the

amount as ordered by the Court, had negotiated the check into his personal

account, and had signed a quit claim deed conveying his interest in his

marital home. The Court entered an Order denying that portion of the

husband’s motion for the reasons stated in the Order filed April 13, 2016.[1]

II. ANALYSIS

Appellate courts give “great weight” to a trial court’s decision dividing marital

assets, and ‘“we are disinclined to disturb the trial court’s decision unless the distribution

lacks proper evidentiary support or results in some error of law or misapplication of

statutory requirements and procedures.’” Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007)

(quoting Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996)). With this in

mind, we conduct a de novo review of the trial court’s findings of fact, accompanied by a

presumption of correctness of the trial court’s findings unless the evidence preponderates

otherwise. TENN. R. APP. P. 13(d); Keyt, 244 S.W.3d at 327; Conley v. Conley, 181

S.W.3d 692, 695 (Tenn. Ct. App. 2005). Evidence preponderates against a trial court’s

finding of fact if it supports a different finding of fact more convincingly. Sattler v.

Sattler, No. M2007-02319-COA-R3-CV, 2008 WL 4613589, at *3 (Tenn. Ct. App. Oct.

1

In its April 13, 2016, order, the trial court wrote:

Husband’s request to modify the court’s calculation regarding the division of the equity is

hereby denied based upon the fact that the Court set forth careful consideration in the

Final Order of Divorce, gave Husband the benefit of the doubt with regard to multiple

items he requested and finally, Mr. Cardle has already negotiated a check for his portion

of the equity, and conveyed his interest in the marital home to Wife. Therefore, the Court

denies Husband’s request to modify the amount of equity awarded to Husband.

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13, 2008). Questions of law enjoy no presumption of correctness. In re Adoption of

A.M.H., 215 S.W.3d at 809.

A. Marital Home

Husband disputes the trial court’s distribution of the parties’ equity in the marital

home and the court’s deduction of eight percent from the house’s value to account for

closing costs and a realtor’s fee in the event the house was sold on the market. The

record reveals that Husband filed a motion on March 20, 2015, in which he asked the trial

court to order Wife to put the marital home on the market. The reasons Husband gave for

his motion were that (1) the marital home was an expense that could not be maintained

long term during the divorce proceedings or afterwards and (2) he did not believe Wife

would be able to refinance the house without his assistance. The trial court held a

hearing on this motion on April 6, 2015, and the court determined that “further review”

was necessary before ruling on Husband’s motion. The court stated that it would rule on

the motion once the parties determined the house’s value, the parties’ equity in the house,

and Wife’s ability to refinance the house.

Wife had an estimated settlement statement prepared shortly after that hearing, and

Husband then filed a motion on June 19, 2015, seeking to have his motion to sell the

marital home placed back on the docket. The trial court held another hearing on July 15,

2015, and at this hearing the court reserved ruling on the motion until the final hearing in

the case. After the court issued its ruling, Husband filed a motion on August 21, 2015,

asking the court to reconsider his motion to sell the marital home. Husband then filed the

exact same motion six days later, on August 27, 2015. The court then held another

hearing on October 27, 2015, and as a result of hearing testimony from a third party, the

court determined that Wife had the “apparent ability to refinance the marital home but

held it under advisement for determination at the final hearing.”

The trial court addressed the marital home in its oral ruling from the bench on

February 4, 2016. The court stated:

The parties agreed and stipulated to an appraisal on the property. The

appraisal was conducted by Gregory W. Easter. As of November the 20th,

2015, Mr. Easter indicated that the appraised market value of the property

was $300,000 by sales comparison approach. And by cost approach his

opinion was $319,790. The Court utilized the sales comparison approach in

that that is likely to reflect the actual market value of the property in that

that’s based upon what other properties similar in nature are being sold for.

....

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Now, the Court also recognizes that that equity in the property could not be

obtained without the property being marketed and sold. The Court therefore

reduces the appraised value by 8 percent. That 8 percent is based upon a 6

percent real estate commission and 2 percent in closing expenses and title

insurance that would be incurred should the property be sold. If the Court

should order the sale of the property those expenses would be incurred;

therefore, the Court has determined that the net value of the property is

$276,000. That’s $300,000 less the 8 percent, which is $24,000, leaving a

balance of $276,000. Subtracting the balance of $227,461, the Court finds

that the remaining equity balance -- net equity would be $48,539.

Therefore, dividing that equity by two, the husband’s equity and the wife’s

equity in the property each would be $24,269.50 rounded to $24,270 each.

Husband contends that the trial court erred by deducting eight percent from the

$300,000 valuation before determining the parties’ equity in the house. The basis for

Husband’s argument is that “there was no proof of such expense presented at trial. It is

undisputed that Wife had been approved for the loan to purchase Husband’s interest and

the home was not listed for sale.”

The statement of evidence does not reflect that Wife had been “approved for a

loan” to purchase Husband’s interest in the marital home; rather, the statement indicates

that Wife testified she had received “pre approval to refinance the marital home.” In the

statement of evidence, the court noted that at a hearing on April 6, 2016, following the

trial, Husband stated that he “had accepted a check for his equity in the marital home in

the amount as ordered by the Court, had negotiated the check into his personal account,

and had signed a quit claim deed conveying his interest in his marital home.” The record

does not reflect, however, whether Wife sold the house or obtained money to pay

Husband the amount of equity the court awarded him from a refinance or some other

source.

The statement of evidence is the only record of evidence we have to determine

whether the trial court erred in deducting eight percent from the house’s market value

before determining the parties’ equity in it. See Quinn v. Diehl, No. M2013-00326-COA-

R3-CV, 2014 WL 5512938, at *7 (Tenn. Ct. App. Oct. 31, 2014) (explaining that Court

of Appeals cannot consider facts alleged by appellant that are not supported by statement

of evidence when no transcript is available). In its Final Order of Divorce, the trial court

directed Wife to place the marital home “on the real estate market” to sell if she was

unable to refinance the house and pay Husband his net equity within 120 days of the

entry of the order. Because the statement of evidence does not reflect that Wife would

not incur a loss of eight percent of the house’s value following the trial, Husband is

unable to show that the record preponderates against the trial court’s decision to deduct

eight percent from the marital home’s value before determining the parties’ equity. As a

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result, we conclude the trial court did not err in deducting eight percent from the house’s

valuation before determining the parties’ equity in it.

Husband also contends the trial court erred in deducting $10,000 from his portion

of the equity in the marital home and awarding that amount to Wife. The statement of

evidence reflects that Wife received a $10,000.00 accident settlement in 2009; that she

wanted to use that money to pay for a hot tub to treat her back injury as well as to pay for

a fence for the marital home; and that Husband deposited Wife’s $10,000 check into his

IRA. After the trial court initially determined that each party’s equity in the marital home

was $24,270, the court modified the portion awarded to Husband to account for the

$10,000 personal injury settlement Wife received in 2009 that Husband deposited into his

IRA. In its oral ruling from the bench, the court explained:

[T]he Court does find that the $10,000 awarded the wife as funds due her as

a result of an automobile accident should remain hers. The testimony was

that the money was withdrawn from the IRA in the amount of $10,000 in

order to make the down payment or meet expenses on the purchase of the

marital home. Then when the wife received her $10,000 that money was

deposited back into an IRA in order to avoid a tax penalty. And

subsequently the Court can only infer and presume that this money was

later expended out for family expenses. Therefore, this $10,000 is

subtracted. And therefore, the husband’s interest in the marital property is

$14,270.

Although the trial court did not use the term “separate property” to describe the

$10,000 the court awarded to Wife, that is essentially the determination the court made.

Before a trial court makes an equitable division of the marital estate, the court must first

identify all of the parties’ assets as either separate or marital. Larsen-Ball v. Ball, 301

S.W.3d 228, 231 (Tenn. 2010)); see also Kinard v. Kinard, 986 S.W.2d 220, 230 (Tenn.

Ct. App. 1998). “Separate property” is defined in the “Divorce and Annulment” chapter

of Title 36 of the Tennessee Code (titled “Domestic Relations”) to include, inter alia,

“[p]ain and suffering awards, victim of crime compensation awards, future medical

expenses, and future lost wages.” Tenn. Code Ann. § 36-4-121(b)(2)(E). Courts can

only “equitably divide, distribute or assign the marital property between the parties.”

Tenn. Code Ann. § 36-4-121(a)(1). Courts cannot equitably distribute separate property.

Keyt, 244 S.W.3d at 328; Flannary v. Flannary, 121 S.W.3d 647, 650 (Tenn. 2003).

Husband does not address Tenn. Code Ann. § 36-4-121 in his brief and makes no

argument one way or the other with regard to whether the $10,000 at issue constitutes

Wife’s separate property. We conclude the $10,000 constitutes Wife’s separate property

and affirm the trial court’s decision to return that amount to Wife by deducting that

amount from Husband’s portion of the equity in the marital home.

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B. Marital Debts

Husband next argues the trial court erred by making him responsible for paying

the parties’ 2014 federal tax obligation in addition to the fee owing to the accountant the

parties used to prepare their tax forms. The trial court addressed the parties’ marital debts

in its ruling from the bench as follows:

The debts. The Court identifies two debts that were testified to. The 2014

taxes that were jointly filed, there’s approximately a debt of $4,864 plus

interest. That debt is to be paid by Husband. It’s my understanding -- the

Court’s understanding that there had been a payment plan worked out on

that, and the husband will be responsible for complying with the terms of

that, the payment plan, and paying those taxes and will indemnify and hold

Wife harmless. Husband is likewise responsible for the payment of the debt

to John Young, Certified Public Accountant. Mr. Young’s obligation was

for preparation of certain information on behalf of the parties, and Husband

will be responsible for that. The Court does not know what the debt is;

however, it was testified that Mr. Young had not been paid.

The trial court is required to divide the marital estate equitably, but this does not

necessarily mean the division must be equal. Larsen-Ball, 301 S.W.3d at 231; Kinard,

986 S.W.2d at 230. A trial court is to consider the following statutory factors when

dividing the marital estate:

(1) The duration of the marriage;

(2) The age, physical and mental health, vocational skills, employability,

earning capacity, estate, financial liabilities and financial needs of each of

the parties;

(3) The tangible or intangible contribution by one (1) party to the

education, training or increased earning power of the other party;

(4) The relative ability of each party for future acquisitions of capital assets

and income;

(5)(A) The contribution of each party to the acquisition, preservation,

appreciation, depreciation or dissipation of the marital or separate property,

including the contribution of a party to the marriage as homemaker, wage

earner or parent, with the contribution of a party as homemaker or wage

earner to be given the same weight if each party has fulfilled its role;

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(B) For purposes of this subdivision (c)(5), dissipation of assets means

wasteful expenditures which reduce the marital property available for

equitable distributions and which are made for a purpose contrary to the

marriage either before or after a complaint for divorce or legal separation

has been filed.

(6) The value of the separate property of each party;

(7) The estate of each party at the time of the marriage;

(8) The economic circumstances of each party at the time the division of

property is to become effective;

(9) The tax consequences to each party, costs associated with the

reasonably foreseeable sale of the asset, and other reasonably foreseeable

expenses associated with the asset;

(10) The amount of social security benefits available to each spouse; and

(11) Such other factors as are necessary to consider the equities between the

parties.

Tenn. Code Ann. § 36-4-121(c).

Appellate courts “ordinarily defer” to the trial court’s distribution of a marital

estate unless it is inconsistent with the statutory factors set forth above. Kinard, 986

S.W.2d at 231. At the time of trial, the parties had been married for seventeen years.

Husband has a college degree, and the evidence showed he earned about three times as

much as Wife, who does not have a college degree. Wife did not earn enough to cover

her expenses, and she relied on her parents to help out financially when Husband refused

to provide necessities during the marriage. Husband earned more than he needed to

cover his expenses. Husband does not argue on appeal that the trial court’s distribution

of the marital estate was inconsistent with the statutory factors, and a review of the

statement of evidence leads us to conclude that the trial court’s ruling is consistent with

these factors.2 Therefore, we affirm the trial court’s allocation of the marital debt to

Husband.

2

In addition, we find Husband failed to comply with the requirements set forth in the Tennessee Rules of

Appellate Procedure concerning the appellant’s brief. Tennessee Rule of Appellate Procedure 27(a)(7)(A)

requires that an appellant’s brief contain an argument in which the appellant sets forth his or her

contentions with respect to each issue, “the reasons therefor, including the reasons why the contentions

require appellate relief, with citations to the authorities and appropriate references to the record . . . relied

on.” Husband failed to include in his brief reasons why the trial court’s allocation of the marital debts to

him was inequitable, he failed to cite to authorities in support of his argument, and he failed to provide

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C. Alimony in Solido

Husband does not contest the trial court’s award of transitional and rehabilitative

alimony, but he does challenge the court’s award to Wife of alimony in solido. Husband

also contests the interest rate of 10% that the court added to its judgment for alimony in

solido.

The statute addressing alimony lists the following factors a court is to consider

when determining whether an award of “support and maintenance” is appropriate:

(1) The relative earning capacity, obligations, needs, and financial

resources of each party, including income from pension, profit sharing or

retirement plans and all other sources;

(2) The relative education and training of each party, the ability and

opportunity of each party to secure such education and training, and the

necessity of a party to secure further education and training to improve such

party’s earnings capacity to a reasonable level;

(3) The duration of the marriage;

(4) The age and mental condition of each party;

(5) The physical condition of each party, including, but not limited to,

physical disability or incapacity due to a chronic debilitating disease;

(6) The extent to which it would be undesirable for a party to seek

employment outside the home, because such party will be custodian of a

minor child of the marriage;

(7) The separate assets of each party, both real and personal, tangible and

intangible;

(8) The provisions made with regard to the marital property, as defined in

§ 36-4-121;

(9) The standard of living of the parties established during the marriage;

(10) The extent to which each party has made such tangible and intangible

contributions to the marriage as monetary and homemaker contributions,

appropriate citations to the record.

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and tangible and intangible contributions by a party to the education,

training or increased earning power of the other party;

(11) The relative fault of the parties, in cases where the court, in its

discretion, deems it appropriate to do so; and

(12) Such other factors, including the tax consequences to each party, as are

necessary to consider the equities between the parties.

Tenn. Code Ann. § 36-5-121(i). The trial court referenced these factors in its oral ruling

as follows:

The Wife requested all forms of alimony. The Court considered the factors

set forth in T.C.A. 36-5-121. The Court finds that the Husband has

traditionally made substantially more income than the Wife. Husband’s

gross income is $6,026.00 monthly and Wife’s income is $2,087.00

monthly. Husband has a college degree and Wife does not. Husband has

had opportunity to make substantially more income and Wife’s education is

presently limited and thus her earning capacity is limited, as a result. The

parties have been married for 17 years. The Court determined that factors 4

through 8 do not apply. The parties have enjoyed a reasonable standard of

living. In factor 10, neither party is favored and the Court finds that factor

11, does not apply.

The court awarded Wife transitional and rehabilitative alimony on February 4,

2016, and it reserved ruling on Wife’s request for attorney’s fees, which the court

explained would be considered an award of alimony in solido. The court then held a

hearing in June 2016 to consider both Husband’s and Wife’s requests for attorney’s fees.

In a written order issued on June 29, 2016, the court denied Husband’s request for fees.

The court reviewed Wife’s attorney’s fee affidavit, approved the hourly rate of $250,

deducted some itemized fees and court reporter costs, and concluded that $12,239.29 was

“fair and reasonable” in the circumstances. The court granted Husband’s request to make

seventy-two equal payments to Wife totaling this amount, and the court added that “the

judgment will carry the standard 10% interest for judgments.”

“[T]rial courts have broad discretion to determine whether spousal support is

needed and, if so, the nature, amount, and duration of the award.” Gonsewski v.

Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011); see Owens v. Owens, 241 S.W.3d 478, 496

(Tenn. Ct. App. 2007) (explaining that appellate court will not interfere with trial court’s

award of alimony in solido if the trial court appropriately exercised its discretion based

on facts of the case). “A trial court abuses its discretion only when it ‘applie[s] an

incorrect legal standard, or reache[s] a decision which is against logic or reasoning that

cause[s] an injustice to the party complaining.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85

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(Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). Under this

standard of review, a trial court’s ruling will not be reversed if ‘“reasonable minds can

disagree as to [the] propriety of the decision made.”’ Id. (quoting State v. Scott, 33

S.W.3d 746, 752 (Tenn. 2000)); see also State v. Gilliland, 22 S.W.3d 266, 273 (Tenn.

2000)).

Alimony in solido is a form of long-term support and may include attorney’s fees.

Tenn. Code Ann. § 36-5-121(h)(1). “An award of attorney’s fees to an economically

disadvantaged spouse is usually characterized as alimony in solido.” Owens, 241 S.W.3d

at 495. It is not modifiable in the absence of the parties’ mutual agreement, and it does

not terminate upon the remarriage or death of the recipient or the obligor. Tenn. Code

Ann. § 36-5-121(h)(2)-(3). “Alimony in solido is an award of a definite sum of alimony

and ‘may be paid in installments provided the payments are ordered over a definite period

of time and the sum of the alimony to be paid is ascertainable when awarded.”’ Burlew v.

Burlew, 40 S.W.3d 465, 471 (Tenn. 2001) (quoting Waddey v. Waddey, 6 S.W.3d 230,

232 (Tenn. 1999)); see also Tenn. Code Ann. § 36-5-121(h)(1); Gonsewski, 350 S.W.3d

at 108. Alimony in solido can be combined with other types of alimony awards, Tenn.

Code Ann. § 36-5-121(d)(5), and it is “often awarded to adjust the division of marital

property.” Burlew, 40 S.W.3d at 472.

Husband contests the court’s award of alimony in solido, arguing that “no

evidence was presented supporting Wife’s claim that attorney fees were a loan from her

parents and that she would be required to pay them back.” According to Husband’s

statement of evidence, Wife testified that her parents were paying her attorney’s fees. In

the trial court’s modification and correction of Husband’s statement, however, the court

wrote: “James and Linda Montgomery have paid Wife’s Attorney fees until Wife can

afford to pay them back.” This statement implies that Wife is, in fact, required to pay her

parents back for their payment of her attorney’s fees.

Husband also complains about the number of motions Wife filed that

unnecessarily drove up the cost of her attorney’s fees. The trial court conducted a careful

review of Wife’s attorney’s fee affidavit and deducted certain categories of fees, leaving

only those fees the court found were appropriate. The trial court explained that it

“thoroughly reviewed the itemized fees,” and that it was “familiar with what it takes to

prepare this type of matter for trial.” The statement of evidence shows that Wife’s

income is insufficient to cover her expenses and that Husband’s income exceeds his

expenses. See Gonsewski, 350 S.W.3d at 113 (stating that alimony in solido award is

appropriate where recipient spouse would have to deplete his or her resources to pay fees

and payor spouse has ability to pay fees). Because Husband has not shown that the trial

court abused its discretion by awarding Wife alimony in solido, we affirm the trial court’s

award in the amount of $12,239.29. In light of the statute’s explicit allowance that these

payments be made in installments, Tenn. Code Ann. § 36-5-121(h)(1), we reject Wife’s

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argument that the trial court erred by allowing Husband to make these payments in

seventy-two equal installments over the course of six years.

We now turn to Husband’s challenge to the trial court’s award of interest to Wife’s

alimony in solido award. Tennessee Code Annotated section 47-14-122 provides that

“[i]nterest shall be computed on every judgment from the day on which the jury or the

court, sitting without a jury, returned the verdict without regard to a motion for a new

trial.” (Emphasis added.) Courts do not have discretion about whether to award interest

on judgments; it is required by the statute. See Vooys v. Turner, 49 S.W.3d 318, 321-22

(Tenn. Ct. App. 2001) (stating that statute requires courts to add post-judgment interest to

judgments).

The statute that addresses post-judgment interest is Tenn. Code Ann. § 47-14-121,

which was amended in 2012. Before the amendment, the statute set the rate of interest on

judgments at ten percent per annum. Tenn. Code Ann. § 47-14-121 (effective March 27,

2008 to June 30, 2012). Starting on July 1, 2012, and continuing to the present time,

however, the interest rate on judgments fluctuates and is now calculated as follows:

(a) Except as set forth in subsection (c),[3] the interest rate on judgments

per annum in all courts, including decrees, shall:

(1) For any judgment entered between July 1 and December 31, be equal to

two percent (2%) less than the formula rate per annum published by the

commissioner of financial institutions, as required by § 47-14-105, for June

of the same year; or

(2) For any judgment entered between January 1 and June 30, be equal to

two percent (2%) less than the formula rate per annum published by the

commissioner of financial institutions, as required by § 47-14-105, for

December of the prior year.

Tenn. Code Ann. § 47-14-121. The statute continues and directs the administrative office

of the courts to “calculate the interest rate on judgments that applies for the new six-

month period pursuant to subsection (a)” and to “publish that rate on the administrative

office of the courts’ web site.” Tenn. Code Ann. § 47-14-121(b)(1)-(2).

3

Subsection (c) provides that where a judgment is based on a statute or a writing that fixes an otherwise

acceptable rate of interest, the judgment will bear that other rate. Tenn. Code Ann. § 47-14-121(c). The

statute at issue here does not specify a particular rate of interest to apply to alimony judgments.

Tennessee Code Annotated section 36-5-121(o) provides: “Any order of alimony that has been reduced

to judgment shall be entitled to be enforced as any other judgment of a court of this state and shall be

entitled to full faith and credit in this state and in any other state.”

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The trial court filed its order directing Husband to pay Wife’s attorney’s fees as

alimony in solido on June 29, 2016. According to the administrative office of the courts’

web site, the interest rate applicable to judgments entered between January 1 and June 30,

2016, is 5.50% per annum. https://www.tncourts.gov/node/1232344. Thus, we remand

the case to the trial court with directions to modify its order awarding Wife alimony in

solido, dated June 29, 2016, to lower the interest rate on the judgment from 10% per

annum to 5.50% per annum so that it complies with the version of Tenn. Code Ann. § 47-

14-121 applicable at the time of trial.

Wife asks for an award of attorney’s fees she incurred to defend Husband’s case

on appeal. In domestic relations cases, appellate courts can exercise their discretion to

award attorney’s fees incurred on appeal to the economically disadvantaged spouse as

additional support. Andrews v. Andrews, 344 S.W.3d 321, 340 (Tenn. Ct. App. 2010);

Brown v. Brown, No. M2008-00788-COA-R3-CV, 2009 WL 1362307, at *4 (Tenn. Ct.

App. May 14, 2009). Factors a court considers include the requesting party’s ability to

pay the fees, the requesting party’s success on appeal, and whether the appeal was sought

in good faith. Moses v. Moses, No. E2008-00257-COA-R3-CV, 2009 WL 838105, at

*10 (Tenn. Ct. App. Mar. 31, 2009). We find that such an award is appropriate here and

remand this case for a determination of the reasonable amount of Wife’s appellate

attorney’s fees.

III. CONCLUSION

The judgment of the trial court is affirmed except with respect to the post-

judgment interest rate that is to apply to Wife’s award of alimony in solido. This matter

is remanded with instructions to the trial court to (1) determine Wife’s reasonable

attorney’s fees incurred on appeal, which shall become part of her alimony in solido

award, and (2) enter an order modifying the interest rate from 10% to 5.50% per annum

on the alimony in solido judgment. Costs of this appeal shall be split equally between the

appellant, Daniel Marcum Cardle, and the appellee, Jamie Kay Cardle, for which

execution shall issue, if necessary.

________________________________

ANDY D. BENNETT, JUDGE

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