The opinion
11/13/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 17, 2019 Session
ANTHONY C. HOWELL v. NOEL RUTH KAIL HOWELL
Appeal from the Circuit Court for Shelby County
No. CT-000688-17 Robert Samual Weiss, Judge
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No. W2019-00061-COA-R3-CV
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In this divorce case, Husband/Appellant appeals the trial court’s award of $30,000 in
alimony in solido to Wife and its award of $30,000 for Wife’s attorney’s fees as
additional alimony in solido. Discerning no errors, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed and Remanded.
KENNY ARMSTRONG, J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and CARMA D. MCGEE, JJ., joined.
Rachel E. Putnam, John D. Woods III, Memphis, Tennessee, for the appellant, Anthony
C. Howell.
John C. Ryland, Memphis, Tennessee, for the appellee, Noel Ruth Kail Howell.
OPINION
I. Background
Appellant Anthony C. Howell (“Husband”) and Appellee Noel Ruth Kail Howell
(“Wife”) were married on June 7, 2008. During the course of the parties’ marriage,
Husband and Wife each had periods of unemployment and struggled financially. At the
beginning of the marriage, Husband worked full-time as an auto mechanic. In 2009,
Husband suffered an injury, which prevented him from working as a mechanic.
Thereafter, Husband worked as an auto parts manager. In March 2017, after receiving an
inheritance, see infra, Husband left full-time employment and worked part-time for his
brother-in-law’s towing company. During the marriage, Wife worked cleaning houses
and doing fire and water restoration work. In 2015, Wife’s adult son from a previous
relationship died; in the wake of this event, Wife took leave of her employment.
Although Wife later returned to work, her ability to clean houses and do restoration work
was limited due to her poor health, discussed infra.
The parties separated on June 20, 2016, and Husband moved from the marital
residence. In February 2017, Husband admitted to Wife that he had been living with his
girlfriend since he left the marital residence. Shortly thereafter, on February 15, 2017,
Husband filed a complaint for divorce alleging irreconcilable differences. On February
27, 2017, less than two weeks after Husband filed the complaint, his father died. One
week later, Husband’s paternal grandmother died. Husband was the sole heir of both
estates and inherited real and personal property totaling $702,653.00. On March 6, 2017,
Wife filed an answer to Husband’s complaint and a counter-complaint for divorce
alleging the grounds of inappropriate marital conduct and abandonment.
The case was tried on July 12 and 16, 2018. Prior to the hearing, the parties
settled the division of certain marital property, and Wife received most of the marital
assets, which were valued at approximately $21,193.54; however, only $116.99 of this
was liquid assets. The parties proceeded to trial on the remaining issues.1
By order of September 11, 2018, the trial court awarded Wife a divorce on
grounds of Husband’s inappropriate marital conduct and abandonment. As is relevant to
this appeal, the trial court awarded Wife $30,000 in alimony in solido, payable at $1,000
per month for thirty months. The trial court also ordered Husband to pay part of Wife’s
attorney’s fees in the amount of $15,541.96 as additional alimony in solido. On October
5, 2018, Wife filed a motion to alter or amend the final decree of divorce seeking an
increase in the alimony in solido award from $30,000 to $60,000. Wife also sought
additional attorney’s fees. The trial court heard Wife’s motion on November 9, 2018.
On December 11, 2018, the trial court entered an amended final decree. Therein the trial
court denied Wife’s motion to increase the $30,000 alimony in solido award, but it
granted her motion for additional attorney’s fees. Specifically, the trial court awarded
Wife an additional $14,458.04 (for a total of $30,000) in attorney’s fees as alimony in
solido. Husband appeals.
II. Issues
Husband raises three issues for review, which we restate as follows:
1. Whether the trial court erred when it awarded wife alimony?
2. Whether the trial court erred in awarding Wife attorney’s fees?
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The trial court dismissed Husband’s complaint for divorce and proceeded to trial on Wife’s
counter-complaint.
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3. Whether the trial court erred in awarding additional attorney’s fees on Wife’s
motion to alter or amend?
In the posture of Appellee, Wife asks this Court to award her attorney’s fees and
costs accrued in defense of this appeal.
III. Standard of Review
We review the trial court’s findings of fact de novo upon the record of the trial
court, accompanied by a presumption of the correctness of these findings, unless the
evidence preponderates otherwise. Tenn. R. App. P. 13(d); Langschmidt v.
Langschmidt, 81 S.W.3d 741, 744 (Tenn. 2002). With respect to the trial court’s
conclusions of law, however, our review is de novo with no presumption of correctness.
Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997); Broadbent v. Broadbent, 211
S.W.3d 216, 219-20 (Tenn. 2006).
The issues presented in this appeal involve only the trial court’s award of alimony
in solido. A trial court has wide discretion in making an award of alimony. Owens v.
Owens, 241 S.W.3d 478, 490 (Tenn. Ct. App. 2007); Bratton v. Bratton, 136 S.W.3d
595, 605 (Tenn. 2004). An award of alimony depends on the circumstances of each case,
and the need of the recipient spouse and the obligor spouse’s ability to pay are the
primary considerations. See, e.g., Burlew v. Burlew, 40 S.W.3d 465, 472 (Tenn. 2001).
When determining the type and amount of alimony to be awarded, the trial court must
balance several statutory factors, including those enumerated in Tennessee Code
Annotated section 36-5-121, infra. Although there is a preference for rehabilitative
alimony, the type and amount of an alimony award remain largely within the discretion
of the trial court. Id. at 470. “Accordingly, ‘[a]ppellate courts are generally disinclined
to second-guess a trial judge’s spousal support decision unless it is not supported by the
evidence or is contrary to the public policies reflected in the applicable statutes.’” Bogan
v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001) (quoting Kinard v. Kinard, 986 S.W.2d 220,
234 (Tenn. Ct. App. 1998)). The role of an appellate court in reviewing an award of
spousal support is to determine whether the trial court applied the correct legal standard
and reached a decision that is not clearly unreasonable. Id. at 733.
IV. Analysis
A. Alimony and Attorney’s Fees
Concerning the award of alimony, the trial court’s order states, in relevant part:
This Court considered each and every statutory factor contained in
Tenn. Code Ann. 36-5-121(i) as presented through the testimony of the
parties, witnesses and statements and argument of counsel. This Court
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found the length of the marriage was approximately ten years, but only
eight years of the parties living together prior to separation. Additionally,
this Court found that the parties came into the marriage with approximately
equal assets, though both were minimal. Both parties have a similar age
and mental condition and there is no custodial obligation of minor children.
Both parties have a high school diploma or G.E.D. equivalent. At the time
of the divorce hearing, Wife was fifty-seven (57) years old and Husband
was fifty-one (51) years old.
Factors this Court considered persuasive were the disabilities and
physical conditions of the parties; the earning condition of the parties; the
separate assets of the parties; and the relative fault of the parties with fault
being the biggest factor.
This Court found Husband to be the sole party at fault in the
dissolution of this marriage and that his actions directly caused the divorce
to be filed. This Court heard testimony as to the alleged physical
disabilities of both parties which allegedly have prevented them from full-
time gainful employment over the last several years of the marriage. Proof
was presented by Husband in the form of medical records that he has
substantial and continuing injuries to his ankles, wrists, and heart, and that
he had applied for Social Security Disability, which was denied. Both
parties and both of Wife’s witnesses testified the Husband has been
working full time or attempting to work full time up to and until the death
of his father and grandmother, at which time the evidence showed he
expected to benefit from an inheritance and decided to stop working. At
the time of his expected inheritance, approximately March, 2017, Husband
ceased to be employed and did not return to any other gainful employment,
other than working sporadically for his brother-in-law. Under these
circumstances, the Court finds that Husband’s claim of disability i[s] an
effort to either try to minimize his income or to come up with some
justification for why he has not been working, other than the fact that he
received the aforementioned inheritance.
Wife testified that she suffered from back pain, migraines and
arthritis as a result of a back injury suffered during a scooter wreck with
Husband, and a car accident later that same year. Wife secured a full-time
job after the separation, but because she suffered from a bout of Bronchitis
she was too sick to continue full-time employment at that time . . . .
Evidence was presented at trial by Husband that when fully-employed, both
parties had a substantial parity in earning power.
The predominant issue at the heart of this litigation was the
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inheritance Husband received from his father and paternal grandmother
which totaled . . . $702,653.00[]. Neither party contested, and this Court
agrees that said inheritance is Husband’s separate property. As a factor for
consideration of an award of alimony in solido and pursuant to Tenn. Code
Ann. § 36-5-102(a), this Court found that Husband’s substantial post-
Complaint inheritance was proper to consider as a source of an award of
alimony in solido to Wife. This Court finds that it is just and equitable that
Wife shall be awarded [$30,000] as alimony in solido.
Tennessee Code Annotated section 36-5-121(i) lists several factors that a trial
court should consider in making an award of alimony. As is relevant to this case, those
factors include:
(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;
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(7) The separate assets of each party, both real and personal, tangible and
intangible;
(8) The provisions made with regard to the marital property;
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(11) The relative fault of the parties, in cases where the court, in its
discretion, deems it appropriate to do so;
Tenn. Code Ann. § 36-5-121(i). Although each of these factors must be considered when
relevant to the parties’ circumstances, “the two that are considered the most important are
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the disadvantaged spouse’s need and the obligor spouse’s ability to pay.” Burlew, 40
S.W.3d at 472; Gonsewski v. Gonsewski, 350 S.W.3d 99, 110 (Tenn. 2011) (citation
omitted).
On appeal, Husband argues that the trial court failed to make sufficient findings
concerning Wife’s need for alimony and his ability to pay. Indeed, Tennessee Rule of
Civil Procedure 52.01 requires that “the court shall find the facts specially and shall state
separately its conclusions of law.” However, “[t]here is no bright-line test by which to
assess the sufficiency of the factual findings.” Lovlace v. Copley, 418 S.W.3d 1, 35
(Tenn. 2013). Rather, “the findings of fact must include as much of the subsidiary facts
as [are] necessary to disclose to the reviewing court the steps by which the trial court
reached its ultimate conclusion . . . .” Id.
As set out in context above, the trial court found that Wife suffers from various
physical ailments such that she cannot presently work full-time. These findings go to the
heart of Wife’s need for alimony. Although the trial court did not specifically state that
Wife is in need of alimony, the findings concerning her health and lack of employment
inferentially lead to that conclusion. This Court has held that a trial court’s implicit
findings may be sufficient to determine that a disadvantaged spouse is in need of
alimony. See, e.g., Tooley v. Tooley, No. M2017-00610-COA-R3-CV, 2018 WL
1224946, at *6 (Tenn. Ct. App. Mar. 8, 2018) (affirming that the trial court implicitly
found that economic rehabilitation is not feasible); Kienlan v. Kienlan, No. E2007-
00067-COA-R3-CV, 2007 WL 2000087, at *3 (Tenn. Ct. App. 2007) (determining that
the evidence supports the court’s implicit finding that the wife is at an economic
disadvantage relative to the husband for purposes of a spousal support award); Barlew v.
Barlew, No. E2004-01654-COA-R3-CV, 2005 WL 954797, at *3 (Tenn. Ct. App. Apr.
26, 2005) (holding that the evidence supports trial’s courts implicit finding that Wife is
economically disadvantaged relative to Husband); Booker v. Booker, No. M2005-01455-
COA-R3-CV, 2006 WL 3044154, at *4 (Tenn. Ct. App. 2006) (agreeing with the trial
court’s implicit finding that wife is economically disadvantaged). The evidence does not
preponderate against the trial court’s explicit and implicit findings concerning Wife’s
need for alimony. Wife was fifty-seven years old at the time of the hearing and was in
poor health. Although Wife worked throughout the marriage, at the time of the hearing,
she was not able to work full-time. In 2017, Wife lost the marital residence because she
was unable to pay the mortgage. She has since moved in with her mother-in-law;
however, Wife’s affidavit listing her monthly expenses total $3,051.00, which includes
an amount of $900.00 for her own residence.
Husband next contends that the trial court failed to consider all relevant statutory
factors. In the first instance, the trial court’s order specifically states that “[t]his Court
considered each and every statutory factor contained in Tenn. Code Ann. 36-5-121(i)
. . . .” It is well settled that a trial court speaks through its orders. Palmer v. Palmer, 562
S.W.2d 833, 837 (Tenn. Ct. App. Oct. 28, 1977). Because the trial court states that it
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considered the statutory factors, we must assume that it did, in fact, do so. Nonetheless,
it is clear from the court’s specific findings that it considered the relevant statutory
factors. In this regard, the court made specific findings concerning: (1) the parties
“relative earning capacit[ies],” i.e., “when fully-employed, both parties had a substantial
parity in earning power;” (2) the “relative education and training of each party,” i.e.,
“[b]oth parties have a high school diploma or G.E.D. equivalent;” (3) the length of the
marriage, i.e., “the length of the marriage was approximately ten years, but only eight
years of the parties living together prior to separation;” (4) “the age and mental condition
of the parties,” i.e., “[b]oth parties have a similar age and mental condition. . . . At the
time of the divorce hearing, Wife was fifty-seven (57) years old and Husband was fifty-
one (51) years old;” (5) “[t]he physical condition of each party,” i.e., the court noted the
physical injuries to Husband’s “ankles, wrists, and heart” and Wife’s “back pain,
migraines, . . . arthritis . . . [and] [b]ronchitis;” (6) “[t]he separate assets of each party,”
i.e., the trial court weighed Husband’s $702,653 inheritance against Wife’s assets; and (7)
“[t]he relative fault of the parties,” i.e., “[t]his Court found Husband to be the sole party
at fault in the dissolution of this marriage.” Based on the foregoing findings, it is clear
that the trial court considered the relevant statutory factors and made sufficient findings
on each. Although we concede that the trial court did not consider every statutory factor,
the statute only mandates that the trial court “shall consider all relevant factors.” Tenn.
Code Ann. § 36-5-121(i) (emphasis added). The trial court is not required to consider
each and every statutory factor but may limit its findings to those factors it deems
relevant to the question of alimony in each individual case. See Burlew v. Burlew, 40
S.W.3d 465, 470 (Tenn. 2001).
Husband further argues that the trial court’s award of alimony in solido was
punitive or, alternatively, was an impermissible “back-doored division of Husband’s
separate property . . . pursuant to Tenn. Code Ann. § 36-4-121.” We disagree. As
discussed above, in awarding alimony, a trial court may consider the parties’ separate
assets. Tenn. Code Ann. § 36-5-121(i)(7). Here, the trial court did so by noting
Husband’s inheritance. At no point in its order does the trial court indicate that the
inherited amount is marital property; in fact, the court specifically states that, “Neither
party contested, and this Court agrees that said inheritance is Husband’s separate
property.” Nonetheless, Husband would have us interpret the trial court’s order to be an
impermissible division of Husband’s separate property. However, the unambiguous
language used by the trial court in its order clearly shows that the court considered the
separate property only in determining that Husband had the ability to pay alimony, to-wit:
“As a factor for consideration of an award of alimony in solido, and pursuant to Tenn.
Code Ann. § 36-5-102(a), this Court found that Husband’s substantial post-complaint
inheritance was proper to consider as a source of an award of alimony . . . .” (emphases
added). Under the statutory scheme, the trial court was correct to consider Husband’s
separate assets in determining whether he has the ability to pay alimony. Contrary to
Husband’s argument, there is nothing in the trial court’s order to indicate that the trial
court awarded Wife $30,000 as a “back-door” division of Husband’s inheritance. The
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trial court did not order Husband to pay the alimony from his separate inheritance; rather,
the court merely considered this asset in determining whether Husband has the ability to
pay alimony. As such, there is no “back-door” division of separate property.
Concerning the trial court’s award of Wife’s attorney’s fees and its upward
modification of same on Wife’s motion to alter or amend the final decree of divorce, the
Tennessee Supreme Court has explained:
[i]t is well-settled that an award of attorney’s fees in a divorce case
constitutes alimony in solido. The decision whether to award attorney’s
fees is within the sound discretion of the trial court. 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 section 36-5-121(i) . . . . 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.
Gonsewski, 350 S.W.3d 99, 113 (Tenn. 2011) (citations omitted). Again, we review an
award of attorney’s fees as alimony in solido under an abuse of discretion standard.
Mimms v. Mimms, 234 S.W.3d 634, 641 (Tenn. Ct. App. 2007). Turning to the record,
after Husband filed for divorce, Wife took out a loan to pay her attorney’s fees. At the
time of the hearing, Wife was unemployed due to her medical conditions. Wife
submitted an affidavit from her attorney showing accrual of $29,441.28 in attorney’s
fees, at the time of the divorce hearing. Wife received $21,193.54 in the marital property
division, only $116.99 of which was liquid assets. From the record, Wife has no other
assets. Based on her age and health, Wife has few opportunities for gainful employment.
As such, the trial court awarded her an additional $14,458.04 in alimony in solido for
attorney’s fees. Without this additional amount for attorney’s fees, Wife would have to
deplete most of her limited resources to pay her attorney’s fees. Husband, on the other
hand, has substantial assets, which provide him the ability to pay both his and Wife’s
attorney’s fees.
Regarding the trial court’s award of additional attorney’s fees on Wife’s motion to
alter or amend, Husband argues that Wife failed to plead proper grounds for her motion
to alter or amend and that the trial court made no finding that the award was reasonable.
In her motion to alter or amend, Wife alleged that the attorney’s fees awarded were
“woefully inadequate, contrary to the proof at trial and results in a significant injustice to
Wife.” In its order denying in part and affirming in part, the trial court noted that “[a]fter
consideration of Wife’s arguments, the Court finds that Wife’s request for an increase in
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the amount of attorney’s fees awarded to her is well taken.” Husband argues that the trial
court failed to make specific findings of fact in granting Wife’s motion. However, from
the trial court’s orders and the record, the trial court implicitly found that Wife was in
need of additional attorney’s fees. The record shows that the trial court’s initial award of
attorney’s fees was approximately one-half of the attorney’s fees and litigation expenses
set out in her attorney’s affidavit of fees; i.e., $29,441.28. As discussed, supra, Wife has
very limited assets and would be forced to deplete most of her resources to pay her
attorney’s fees. Furthermore, Husband has the ability to pay. In view of these
circumstances, we conclude that the trial court didn’t abuse its discretion in requiring
Husband to pay $30,000 of wife’s attorney’s fees as alimony in solido. Husband will not
be disadvantaged in doing so, and Wife will not have to deplete her limited resources.
B. Attorney’s Fees on Appeal
Both parties ask this Court to award their respective attorneys’ fees and costs on
appeal. Litigants must typically pay their own attorneys’ fees absent a statute or
agreement providing otherwise. See State v. Brown & Williamson Tobacco Corp., 18
S.W.3d 186, 194 (Tenn. 2000). However, under proper circumstances, we may award
attorney’s fees incurred on appeal in a divorce case. Davis v. Davis, 138 S.W.3d 886,
890 (Tenn. Ct. App. 2003). Our decision whether to award attorney’s fees on appeal in a
divorce case implicates the Tennessee Code Annotated section 36-5-121(i) factors used
by the trial court to determine whether a spouse should receive an award for legal
expenses incurred at the trial level. See Fox v. Fox, No. M2004-02616-COA-R3-CV,
2006 WL 2535407 (Tenn. Ct. App. Sept. 1, 2006) (considering spouse’s inability to pay
legal expenses and determining that spouse was not required to liquidate limited assets to
pay legal costs on appeal). Exercising our discretion, for the reasons discussed above, we
decline to deviate from the trial court’s findings that Wife is unable to pay her legal fees
without depleting her assets, and that Husband has sufficient means to pay her attorney’s
fees. See Riggs v. Riggs, 250 S.W.3d 453, 457 (Tenn. Ct. App. 2007). Accordingly, we
grant Wife’s request for appellate attorney’s fees and remand the case to the trial court
for determination of her reasonable and necessary appellate attorney’s fees and for entry
of judgment on same.
V. Conclusion
For the foregoing reasons, we affirm the trial court’s order. The case is remanded
for determination of Wife’s reasonable appellate attorney’s fees, entry of judgment on
same, and for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed to the Appellant, Anthony C. Howell, for all of
which execution may issue if necessary.
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KENNY ARMSTRONG, JUDGE
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