Phillips v. Phillips

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 2000 Session

MELANIE DIANNE (DAVIS) PHILLIPS v. THOMAS HICKMAN PHILLIPS

Direct Appeal from the Circuit Court for Davidson County
No. 98D-2174 Muriel Robinson, Judge

No. M1999-00212-COA-R3-CV - Filed July 27, 2000

This appeal arises from a dispute between Plaintiff Melanie Dianne (Davis) Phillips (“Wife”) and
Defendant Thomas Hickman Phillips (“Husband”) regarding the terms of their divorce. The trial
court (1) granted a divorce to Wife, (2) divided the parties’ marital property, (3) awarded
rehabilitative alimony to Wife, (4) awarded attorney’s fees to Wife, and (5) denied a motion for costs
filed by Husband. For the reasons set forth below, we modify the court’s division of the parties’
marital property. In all other respects, however, we affirm the ruling of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as
Modified; and Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, J. and HOLLY
K. LILLARD, J., joined.

Rebecca E. Byrd, Franklin, Tennessee, for the appellant, Thomas Hickman Phillips.

Lawrence D. Wilson, Nashville, Tennessee, for the appellee, Melanie Dianne (Davis) Phillips.

OPINION

The parties married in April of 1981. They are the parents of two children, namely Kate,
born March 4, 1984, and Sam, born February 1, 1988. The parties separated in May of 1998, after
seventeen years of marriage. Wife filed a complaint for divorce in July of 1998 alleging that
Husband was guilty of inappropriate marital conduct and that irreconcilable differences had arisen
between the parties. Husband filed an answer to Wife’s complaint and a counter-complaint for
divorce in August of 1998 admitting that irreconcilable differences had arisen between the parties,
denying that he was guilty of inappropriate marital conduct and alleging that Wife was guilty of
inappropriate marital conduct. In Wife’s September 1998 answer to Husband’s counter-complaint,
she denied that she was guilty of inappropriate marital conduct. In April of 1999, Wife amended her
complaint to allege as additional grounds for divorce that Husband had committed adultery. In May
of 1999, Husband filed an answer to Wife’s amended complaint admitting Wife’s allegation of
adultery. On June 14, 1999, the trial court entered an order which, consistent with the written
stipulations of the parties, granted an absolute divorce to Wife on the grounds of inappropriate
marital conduct and adultery, awarded custody of the parties’ minor children to Wife, and granted
specific visitation to Husband. This order further provided that Husband shall pay child support to
Wife in the amount of $1,255.00 per month, that Husband shall pay rehabilitative alimony to Wife
in the amount of $600.00 per month, that Husband’s alimony obligation shall continue through
December of 2000, and that Husband shall pay Wife’s attorney’s fees in the amount of $4,000.00.
Finally, in its June 14, 1999 order, the court divided the parties’ marital property and allocated the
parties’ marital debt as follows:

Marital Property Awarded to Husband

Item of Value Stated Value Stated Value Found
Property by Husband by Wife by Trial Court
Personal Property, $2,015.00 $2,143.00 N/A
Household Goods,
and Furnishings in
Husband’s
Possession
Bruno Stock $0.64 $0.64 $0.64
Husband’s Personal $264.00 $264.00 $264.00
Bank Account
Old Hickory Credit $291.09 $291.09 $291.09
Union Bank Account
½ of Tax Refund $2,400.00 $2,400.00 $2,400.00
1992 Toyota SR5 $9,100.00 $9,100.00 $9,100.00
4-Runner
Husband’s $124,329.69 $124,329.69 $124,329.69
Retirement Accounts

Marital Debt Allocated to Husband

Debt Amount of Debt
First USA Waldenbooks Visa $6,000.00
First Union MasterCard $3,000.00
Discover Card $4,528.00

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Value of Marital Property Awarded to Husband: $138,464.42
Amount of Marital Debt Allocated to Husband: 13,528.00

Net Amount of Marital Estate Awarded to Husband: $124,936.421

Marital Property Awarded to Wife

Item of Value Stated Value Stated Value Found
Property by Husband by Wife by Trial Court
Farm (153 Acres) $282,500.00 $282,500.00 $282,500.00
Personal Property, $25,507.00 $12,857.00 N/A
Household Goods,
and Furnishings in
Wife’s Possession
Livestock (2 horses) $2,000.00 $2,000.00 $2,000.00
Indian Lake $500.00 $500.00 $500.00
Membership
Wife’s Personal $163.12 $163.12 $163.12
Bank Accounts
½ of Tax Refund $2,400.00 $2,400.00 $2,400.00
1991 Ford Aerostar $2,700.00 $2,700.00 $2,700.00
Van
Proceeds From Sallie $7,240.35 $7,240.35 $7,240.35
Mae Student Loan

1
There is a dispute between the parties regarding the value of their personal property, household goods, and
furnishings. According to Husband , the value of this prop erty in his posse ssion is $2,0 15.00 a nd the v alue of this
property in Wife’s possession is $25,5 07.00. Wife c ontends, howev er, that the va lue of the p ersonal p roperty, h ouseho ld
goods, and furnishings in Husband’s poss ession is $2 ,143.00 while the v alue of this p roperty in her posse ssion is
$12,857.00. The trial court did not make any finding regarding the value of the parties’ p ersonal p roperty, h ouseho ld
goods, and furn ishings. Be cause this Court did not observe the witnesses and their demeanor while testifying, we are
not in a position to evaluate the credibility of the witnesses and determine which of the values stated by the parties are
correct. Therefore, wh en calcula ting the ne t marital estate awarde d to each of the par ties, we hav e assum ed that the
value of the parties’ personal property, household goods, and furnishing is equal to an ave rage of th e amou nts stated
by the parties. We note, however, that the difference between the figures suggested by Husband and Wife is not
significant enough to alter the conclusions reached by this Cou rt on app eal as to wh at constitutes a n equitab le
distribution.

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 Wife’s Retirement $251,314.62 $251,314.62 $251,314.62
Accounts

Marital Debt Allocated to Wife

Debt Amount of Debt
Bank of Dickson Loan (Farm Indebtedness) $27,505.02
Green Point Credit $54,508.51
Sallie Mae Student Loans $26,642.83
Vanderbilt Nursing Loans $1,265.68

Value of Marital Property Awarded to Wife: $568,000.09
Amount of Marital Debt Allocated to Wife: 109,922.04

Net Amount of Marital Estate Awarded to Wife: $458,078.05

Husband subsequently filed a motion seeking an award of costs pursuant to Rule 68 of the Tennessee
Rules of Civil Procedure, which was denied by the trial court. This appeal by Husband followed.

The issues raised by Husband on appeal, as we perceive them, are as follows:

I. Did the trial court err in its division of the parties’ marital property?
II. Did the trial court err in awarding rehabilitative alimony to Wife?
III. Did the trial court err in awarding attorney’s fees to Wife?
IV. Did the trial court err in denying Husband’s motion for costs pursuant to Rule
68?
V. Is Husband entitled to an award of attorney’s fees on appeal?

To the extent that these issues involve questions of fact, our review of the trial court’s ruling is de
novo with a presumption of correctness and thus we may not reverse the court’s factual findings
unless they are contrary to the preponderance of the evidence. See, e.g., Randolph v. Randolph, 937
S.W.2d 815, 819 (Tenn. 1996); T.R.A.P. 13(d). With respect to the court’s legal conclusions,
however, our review is de novo with no presumption of correctness. See, e.g., Bell ex rel. Snyder
v. Icard, Merrill, Cullis, Timm, Furen and Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999);
T.R.A.P. 13(d).

Division of Marital Property

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 When dividing marital property upon divorce, the trial court must consider all relevant
factors, including those set forth in section 36-4-121 of the Tennessee Code Annotated.2 See Tenn.
Code Ann. § 36-4-121(c) (1996). These factors are as follows:

(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) The contribution of each party to the acquisition, preservation,
appreciation 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;
(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; and
(10) Such other factors as are necessary to consider the equities between the
parties.

Tenn. Code Ann. § 36-4-121(c) (1996). Although the trial court’s distribution of the parties’ marital
property must be equitable, the court is not required to divide the parties’ marital property equally.
See Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn. 1996); Watters v. Watters, 959 S.W.2d 585, 591
(Tenn. Ct. App. 1997); Bookout v. Bookout, 954 S.W.2d 730, 732 (Tenn. Ct. App. 1997). The
equity or inequity of a court’s distribution of marital property is determined by examining the final
result of the court’s ruling rather than the division of any particular piece or category of marital
property. See Watters, 959 S.W.2d at 591; Bookout, 954 S.W.2d at 732; Wade v. Wade, 897
S.W.2d 702, 717 (Tenn. Ct. App. 1994); Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn. Ct.
App. 1990). Additionally, we note that trial courts are afforded a great deal of discretion when
dividing marital property. See Fisher, 648 S.W.2d at 246; Bookout, 954 S.W.2d at 732; Wade, 897
S.W.2d at 715; Koch v. Koch, 874 S.W.2d 571, 579 (Tenn. Ct. App. 1993); Loyd v. Loyd, 860
S.W.2d 409, 411 (Tenn. Ct. App. 1993). Consistent with this general principle, the distribution of
marital property made by the trial court in the instant case is entitled to a presumption of correctness
and may not be reversed unless it is contrary to the preponderance of the evidence. See, e.g.,

2
This statute specifically provides, however, that the relative fault of the parties is not among the factors that
the court may consider when making an equitable division of the parties’ marital property. See Tenn. Code Ann. § 36-4-
121(a)(1) (1996) . See also Fisher v. Fisher, 648 S.W .2d 244 , 246-47 (Tenn. 1 983); Wilder v. Wilder, 863 S.W.2d 707,
715 (T enn. Ct. A pp. 199 2).

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Dellinger v. Dellinger, 958 S.W.2d 778, 780 (Tenn. Ct. App. 1997)(citing Hass v. Knighton, 676
S.W.2d 554, 555 (Tenn. 1984); Dalton v. Dalton, 858 S.W.2d 324, 327 (Tenn. Ct. App. 1993));
T.R.A.P. 13(d).

The parties were married for more than seventeen years. At the time of trial, both of the
parties were forty-five years of age. Although both of the parties were in good physical and mental
health and did not suffer from any disabilities at the time of trial, Husband had experienced some
heart trouble during the marriage. Both of the parties are well educated and capable of earning a
living. Husband has an associate of arts degree, a bachelor of arts degree, a master of divinity
degree, and three years of postgraduate resident training. He earns a gross salary of $5,520.00 per
month as the Chief of Chaplains for the Murfreesboro and Nashville Veterans Administration
Medical Center. Wife has a bachelor of arts degree in biology, a bachelor of science degree in allied
health, twenty-nine hours of credit towards a master of divinity degree, and is expected to complete
the requirements of a master of science degree in nursing in August of 2000. During the parties’
marriage, Wife was employed as a surgeon’s assistant, as a Mary Kay representative, and as a part-
time interim director of children at the parties’ church. She also stayed at home during part of the
parties’ marriage in order to raise their two children. At the time of trial, Wife, in addition to being
a full time student, worked five to six days per month as a substitute teacher and earned an average
of between $200.00 and $250.00 per month. In terms of the financial needs of the parties, Husband
submitted a statement indicating that his expenses are $3,685.00 per month and Wife testified that
she incurs expenses in the amount of $3,725.00 per month. Both Husband and Wife significantly
contributed to each other’s education, training, and increased earning power. Wife supported
husband with respect to his career goals and was the major breadwinner during the early years of the
parties’ marriage when Husband was completing his education. Likewise, Husband financially
supported Wife in her career endeavors and when she decided to go back to school and obtain a
master of science degree in nursing. Given their levels of education and employment histories, we
think that both Husband and Wife have the ability to earn income and acquire capital assets in the
future. Both of the parties contributed to the acquisition of their marital property as wage earners.
Additionally, Wife contributed to the acquisition of the parties’ marital property as a homemaker
during the period of time that she was a stay at home mother to the parties’ two children. Although
there is no dispute regarding which of the parties’ items qualify as separate property, the parties do
disagree regarding the values of these items. According to Husband, the value of his separate
property is $3,100.00 and the value of Wife’s separate property is $5,495.00. Wife contends,
however, that the value of Husband’s separate property is $1,460.00 while the value of her separate
property is $2,515.00. On the date of the parties’ marriage, Husband’s property consisted of a 1978
Subaru compact car, a king size bed, a walnut wardrobe, an oak table, a maple rocker, and some
china and crystal while Wife owned a fully furnished home, a 1979 Beetle convertible, and other
various items of personal property. With respect to the economic circumstances of the parties at the
time of their divorce, Husband testified that he has taken cash advances in order to pay his attorney’s
fees and has had to place many of his expenses on credit cards. Similarly, Wife testified that she has
had to change her lifestyle since her separation from Husband and has had to borrow $8,500.00 from
her father in order to pay her expenses and attorney’s fees.

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 As stated above, the trial court awarded Husband marital property having a net value of
$124,936.42 while awarding Wife marital property having a net value of $458,078.05. Thus, Wife
was awarded marital property having a net value of more than three and one-half times the net value
of the marital property awarded to Husband. After considering the factors set forth in section 36-4-
121(c) that are applicable to the case at bar, we agree with Husband that the court’s division of the
parties’ marital property is inequitable. It was stipulated prior to trial that Wife would receive the
title to and retain possession of the family farm, which is the parties’ most valuable asset. At trial,
however, Husband sought compensation for his equity in the farm through an award of part of Wife’s
retirement accounts. The value of Wife’s retirement accounts at the time of trial was $251,314.62.
We conclude that $75,000.00 from Wife’s retirement accounts should be awarded to Husband in
order to effectuate an equitable division of the parties’ marital property. We therefore modify the
trial court’s ruling to reflect that, in addition to the marital property that the court awarded Husband,
Husband is also awarded a total of $75,000.00 from Wife’s retirement accounts. On remand, the
court should enter a qualified domestic relations order assigning this amount to Husband.

Rehabilitative Alimony

As stated above, the trial court ordered that Husband is obligated to pay rehabilitative
alimony to Wife in the amount of $600.00 per month until December of 2000. Husband argues on
appeal that, given Wife’s education, employment history, and current income opportunities, an award
of alimony is inappropriate in the case at bar.

Trial courts have broad discretion to determine whether alimony is appropriate and, if so, the
nature, amount, and duration of the alimony awarded. See Anderton v. Anderton, 988 S.W.2d 675,
682 (Tenn. Ct. App. 1998)(citing Garfinkel v. Garfinkel, 945 S.W.2d 744, 748 (Tenn. Ct. App.
1996); Jones v. Jones, 784 S.W.2d 349, 352 (Tenn. Ct. App. 1989)). There are no hard and fast
rules to be applied in cases involving a request for alimony. See id. (citing Crain v. Crain, 925
S.W.2d 232, 233 (Tenn. Ct. App. 1996); Stone v. Stone, 409 S.W.2d 388, 392-93 (Tenn. Ct. App.
1966)). Rather, decisions regarding alimony hinge on the unique facts of the case and involve the
careful consideration and balancing of many factors, including those set forth in section 36-5-
101(d)(1) of the Tennessee Code Annotated. See id. at 683 (citing Hawkins v. Hawkins, 883
S.W.2d 622, 625 (Tenn. Ct. App. 1994); Loyd, 860 S.W.2d at 412). These factors are as follows:

(A) 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;
(B) 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 earning
capacity to a reasonable level;
(C) The duration of the marriage;
(D) The age and mental condition of each party;

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 (E) The physical condition of each party, including, but not limited to,
physical disability or incapacity due to a chronic debilitating disease;
(F) 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;
(G) The separate assets of each party, both real and personal, tangible and
intangible;
(H) The provisions made with regard to the marital property as defined in §
36-4-121;
(I) The standard of living of the parties established during the marriage;
(J) The extent to which each party has made such tangible and intangible
contributions to the marriage as monetary and homemaker contributions, and tangible
and intangible contributions by a party to the education, training or increased earning
power of the other party;
(K) The relative fault of the parties in cases where the court, in its discretion,
deems it appropriate to do so; and
(L) Such other factors, including the tax consequences to each party, as are
necessary to consider the equities between the parties.

Tenn. Code Ann. § 36-5-101(d)(1) (Supp. 1999). The most important factors that a court must
consider when determining whether to award alimony are (1) the need of the spouse seeking support
and (2) the ability of the other spouse to pay support. See Young v. Young, 971 S.W.2d 386, 391
(Tenn. Ct. App. 1997); Watters, 959 S.W.2d at 593; Smith v. Smith, 912 S.W.2d 155, 159 (Tenn.
Ct. App. 1995).

Husband is the Chief of Chaplains at the Murfreesboro and Nashville Veterans
Administration Medical Center and earns a gross salary of $5,520.00 per month. Wife works five
to six days per month as a substitute teacher and earns an average of between $200.00 and $250.00
per month. The trial court allocated the parties’ marital debt in such a way that Husband has debt
totaling $13,528.00 and Wife has debt totaling $109,922.04. In terms of the financial needs of the
parties, Husband submitted a statement indicating that his expenses are $3,685.00 per month and
Wife testified that she incurs expenses in the amount of $3,725.00 per month. Wife was awarded
the family farm and, if necessary, could obtain additional income by renting out a portion of this
property, renting out a vacant house that is on the property, or selling timber that is on the property.
Husband has an associate of arts degree, a bachelor of arts degree, a master of divinity degree, and
three years of postgraduate resident training. Wife has a bachelor of arts degree in biology, a
bachelor of science degree in allied health, twenty-nine hours of credit towards a master of divinity
degree, and is expected to complete the requirements of a master of science degree in nursing in
August of 2000. The parties were married for more than seventeen years. At the time of trial, both
Husband and Wife were forty-five years of age and did not have any physical or mental disabilities.
There is no evidence that it would be undesirable for Wife to work outside of the home because she
is the custodian of the parties’ two minor children. Rather, Wife testified that she expects to
complete her education in August of 2000 and take the nurse practitioner board exam that fall, which

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will qualify her to obtain employment as an acute care nurse practitioner. The parties disagree
regarding the value of their separate property. According to Husband, the value of his separate
property is $3,100.00 and the value of Wife’s separate property is $5,495.00. Wife contends,
however, that the value of Husband’s separate property is $1,460.00 while the value of her separate
property is $2,515.00. The trial court awarded Husband marital property having a net value of
$124,936.42 and awarded Wife marital property having a net value of $458,078.05. In the previous
section of this opinion, however, we modified the court’s ruling so that Husband’s portion of the
parties’ marital property is increased by $75,000.00 and Wife’s portion of this property is decreased
by $75,000.00. The parties enjoyed a comfortable standard of living during their marriage. Wife
testified that “we were pretty much living to the extent of our means” and indicated that, since the
parties’ separation, she has had to alter her lifestyle, make some cut-backs, and borrow money from
her father in order to pay her bills. Both Husband and Wife have contributed as wage earners, and
Wife has contributed as a homemaker, to the marriage and to the other party’s education, training,
and increased earning power. Finally, it is undisputed that Husband had an extramarital affair with
one of his co-workers during the parties’ marriage and thus is guilty of inappropriate marital conduct
and adultery.

After consideration of the factors discussed above, we disagree with Husband’s contention
that an award of alimony is inappropriate in the case at bar. Given Wife’s current income and status
as a full-time student, we think that she is in need of spousal support. Husband earns a gross salary
of $5,520.00 per month and thus is capable of providing this support. Although the need of Wife
and ability of Husband to pay are our primary considerations, we are also mindful of the court’s
finding of marital fault on the part of Husband. In Tennessee, there is a statutory preference for
temporary, rehabilitative alimony when an economically disadvantaged spouse is in need of support.
See Tenn. Code Ann. § 36-5-101(d)(1) (Supp. 1999). The purpose of rehabilitative alimony is to
enable an economically disadvantaged spouse to become more self-sufficient by acquiring additional
job skills, education, or training. See Anderton, 988 S.W.2d at 682 (citing Smith, 912 S.W.2d at
160; Cranford v. Cranford, 772 S.W.2d 48, 51 (Tenn. Ct. App. 1989)). In an attempt to make
herself more self-sufficient, Wife went back to school and has been working toward a master of
science degree in nursing. Wife testified that she will complete the requirements for this degree in
August of 2000 and should be able to obtain employment as an acute nurse practitioner and be able
to support herself by December of 2000. Under these circumstances, and based on all of the
evidence presented in the case at bar, we do not think that the trial court erred in granting
rehabilitative alimony to Wife or in the amount or duration of the alimony award. We therefore
affirm the court’s ruling with respect to this matter.

Attorney’s Fees

In the context of divorce, an award of attorney fees is, in essence, an award of alimony. See
Sannella v. Sannella, 993 S.W.2d 73, 77 (Tenn. Ct. App. 1999); Smith, 912 S.W.2d at 161;
Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995); Gilliam v. Gilliam, 776 S.W.2d

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81, 86 (Tenn. Ct. App. 1988); Duncan v. Duncan, 652 S.W.2d 913, 915 (Tenn. Ct. App. 1983);
Ligon v. Ligon, 556 S.W.2d 763, 768 (Tenn. Ct. App. 1977). In determining whether to award
attorney’s fees in a divorce case, the trial court is required to consider the same factors used when
considering a spouse’s request for alimony. See Houghland v. Houghland, 844 S.W.2d 619, 623
(Tenn. App. 1992); Tenn. Code Ann. § 36-5-101(d)(1) (Supp. 1998). The question of whether to
award attorney fees in such cases, and the amount thereof, are largely left within the discretion of
the trial court and will not be disturbed on appeal unless the trial court’s ruling is contrary to the
preponderance of the evidence. See Houghland, 844 S.W.2d at 623 (citing Batson v. Batson, 769
S.W.2d 849, 862 (Tenn. App. 1988); Lyon v. Lyon, 765 S.W.2d 759, 762-63 (Tenn. Ct. App. 1988)).

Wife sought attorney’s fees in the amount of $6,500.00. When questioned by the trial court
regarding a bill for his services, counsel for Wife indicated that he would submit an affidavit listing
his services and the fees corresponding to these services. No such affidavit is included in the record
on appeal. At the conclusion of the trial, the court granted attorney’s fees to Wife in the amount of
$4,000.00. Husband argues on appeal that the trial court abused its discretion in awarding attorney’s
fees to Wife because (1) Wife’s attorney did not file an affidavit of his fees, (2) no proof was heard
regarding the services provided by Wife’s attorney or the value of these services, and (3) Wife did
not testify regarding her request for attorney’s fees.

In Kahn v. Kahn, 756 S.W.2d 685 (Tenn. 1988), the trial court ordered Mr. Kahn to pay Mrs.
Kahn $5,000.00 for the attorney’s fees that she incurred in connection with the parties’ divorce. See
id. at 686. This Court vacated the award of attorney’s fees, in part because of the absence of proof
regarding the services rendered by Mrs. Kahn’s attorney. See id. at 686, 696. The Tennessee
Supreme Court reversed, stating as follows:

Connors does not say that a fully developed record of the nature of the
services rendered is a prerequisite to an award of an attorney's fee in a divorce case.
The parties in that case settled all property issues except the amount of wife's fee to
be paid by husband which they expressly reserved for litigation. In those
circumstances, and for that reason, there was a fully developed record in Conners.
However, there is nothing in the opinion by this Court, expressly or by implication,
mandating proof on that issue to support and award made by a trial judge.

In Wilson Management v. Star Distributors, 745 S.W.2d 870 (Tenn.1988),
we said:

Again, we agree with Trice [v. Hewgley, 53 Tenn.App. 259, 381
S.W.2d 589 (1964)] that a trial judge may fix the fees of lawyers in
causes pending or which have been determined by the court, with or
without expert testimony of lawyers and with or without a prima facie
showing by plaintiffs of what a reasonable fee would be. Obviously,
the burden of proof on the question of what is a reasonable fee in any
case is upon the plaintiff and plaintiff should be in a position to

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 tender such proof. However, if a trial judge is prepared to fix a
reasonable fee based upon the appropriate guidelines without first
hearing plaintiff's proof, defendant must be accorded full opportunity
to cross examine plaintiff's witness and present evidence on that
issue.

Id. at 873.

The above quote from Wilson Management involving a contract provision
calling for a reasonable attorney's fee is applicable to a divorce case.

No proof was presented with respect to the value of the services rendered wife
in the instant case. During oral argument in the trial court, when wife's lawyer urged
the court to award a reasonable attorney's fee the judge asked him to name an amount
and his response was $20,000. During husband's lawyer's argument, which followed,
no mention was made of the fee issue. At no time in the trial court, nor in this Court,
has husband insisted that wife adduce proof on this issue.

Obviously, the trial judge felt that the pendente lite proceedings which had
been heard by him, the pre-trial briefs, depositions and the three day trial had
sufficiently acquainted him with the factors we delineated in Connors to make a
proper award of an attorney's fee without proof or opinions of other lawyers. When
the trial judge did so, it was incumbent upon husband's lawyer to request a hearing
if dissatisfied with the award, or convince the appellate courts that he was denied the
opportunity to do so through no fault of his own.

Kahn, 756 S.W.2d at 696-97.

In light of the ruling of our supreme court in Kahn, we conclude that the trial court did not
abuse its discretion in awarding attorney’s fees to Wife. At the conclusion of the trial in the instant
case, counsel for Wife stated to the court that he would prepare an affidavit of his fees and submit
it to the court on a later date. Just moments after counsel for Wife made this statement, the trial
court granted Wife an award of attorney’s fees. At the time of this ruling, counsel for Husband was
on notice that no proof had been presented by Wife regarding her attorney’s fees. Yet, counsel for
Husband did not object to or question the award. Likewise, when counsel for Husband received a
copy of the parties’ final decree of divorce, she did not seek to have the decree amended on the
grounds that counsel for Wife had failed to submit an affidavit of his fees. Having heard the proof
presented and the argument made by the attorneys at trial and having entertained the various
pleadings filed in the cause, we think that the trial court was in a position to determine the nature and
value of the services rendered by Wife’s attorney. Furthermore, after reviewing the entire record on
appeal, we conclude that $4,000.00 is a reasonable, if not conservative, estimate of Wife’s attorney’s
fees. Consequently, the trial court’s ruling with respect to Wife’s request for attorney’s fees is
affirmed.

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 Husband’s Rule 68 Motion

Prior to trial, Husband made an offer of judgment to Wife, but she did not accept this offer.
On June 11, 1999, Husband filed a motion seeking to recover his costs from Wife pursuant to Rule
68 of the Tennessee Rules of Civil Procedure. Rule 68 provides as follows:

At any time more than 10 days before the trial begins, a party defending
against a claim may serve upon the adverse party an offer to allow judgment to be
taken against the defending party for the money or property, or to the effect specified
in the offer, with costs then accrued. Likewise a party prosecuting a claim may serve
upon the adverse party an offer to allow judgment to be taken against that adverse
party for the money or property or to the effect specified in the offer with costs then
accrued. If within 10 days after service of the offer the adverse party serves written
notice that the offer is accepted, either party may file the offer and notice of
acceptance, together with proof of service thereof, with the court and thereupon
judgment shall be rendered accordingly. An offer not accepted shall be deemed
withdrawn and evidence thereof is not admissible except in a proceeding to
determine costs. If the judgment finally obtained by the offeree is not more
favorable than the offer, the offeree shall pay all costs accruing after the making
of the offer. The fact that an offer is made but not accepted does not preclude a
subsequent offer.

T.R.C.P. 68 (emphasis added). The trial court subsequently denied Husband’s motion for costs.

Husband argues on appeal that, pursuant to Rule 68, the court was required to award him
costs because the terms of his offer of judgment were more favorable to Wife than the terms of the
judgment ultimately obtained by Wife. There are some significant differences between the terms of
Husband’s offer of judgment and the final decree of divorce entered by the trial court. First, the offer
of judgment purports to grant the parties a stipulated divorce while the final decree grants an absolute
divorce solely to Wife on the grounds of inappropriate marital conduct and adultery. Additionally,
the visitation rights granted to Husband in the offer of judgment are somewhat different from those
in the final decree. The offer of judgment also purports to award slightly less child support to Wife
than does the final decree. Finally, the offer of judgment provides that each of the parties shall pay
their own attorney’s fees while the final decree grants an award of attorney’s fees to Wife in the
amount of $4,000.00. Given these differences, we do not agree that the terms of Husband’s offer
of judgment were more favorable to Wife than were the terms of the parties’ final decree of divorce.
We therefore affirm the trial court’s denial of Husband’s motion for costs pursuant to Rule 68.

Attorney’s Fees on Appeal

Finally, Husband requests that he be granted attorney’s fees on appeal. This appeal has been
resolved partially in favor of Husband and partially in favor of Wife. An award of attorney’s fees
on appeal is inappropriate when both parties to the appeal are partially successful. See Storey v.
Storey, 835 S.W.2d 593, 598 (Tenn. Ct. App. 1992)(citing Baggett v. Baggett, 512 S.W.2d 292, 294

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(Tenn. Ct. App.1973)). Additionally, as discussed above, Wife is currently a full-time student and
Wife’s income is substantially smaller than Husband’s income. In our discretion, we conclude that
Wife should not be required to pay any or all of Husband’s attorney’s fees. Thus, Husband’s request
for attorney’s fees on appeal is denied.

Conclusion

Based on the foregoing, the trial court’s division of the parties’ marital property is modified
to reflect that, in addition to the property awarded to Husband by the trial court, Husband is also
awarded $75,000.00 from Wife’s retirement accounts. On remand, the court is instructed to enter
a qualified domestic relations consistent with this modification. In all other respects, however, the
ruling of the court is affirmed. The costs of this appeal are assessed one-half to Thomas Hickman
Phillips and one-half to Melanie Dianne Phillips, for which execution may issue if necessary.

___________________________________
DAVID R. FARMER, JUDGE

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