JoAnne Pollock v. Donnie F. Pollock

• Court: Court of Appeals of Tennessee
• Decided: February 6, 1998
• Docket: 01A01-9706-CH-00271
• Status: Published

Opinion

JOANN POLLOCK, ) ) Lawrence Chancery Plaintiff/Appellee, ) No. 7856-96 ) VS. ) ) Appeal No. DONNIE F. POLLOCK, ) 01A01-9706-CH-00271 ) Defendant/Appellant. ) FILED IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE February 6, 1998

APPEAL FROM CHANCERY COURT OF LAWRENCECecil W. Crowson COUNTY AT LAWRENCEBURG, TENNESSEE Appellate Court Clerk

HONORABLE ROBERT L. JONES, JUDGE

W. Charles Doerflinger, Esquire P.O. Box 692 Lawrenceburg, TN 38464 ATTORNEY FOR PLAINTIFF/APPELLEE

Randy Hillhouse, Esquire FREEMON, HILLHOUSE & HUDDLESTON P.O. Box 787 Lawrenceburg, TN 38464 ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

BEN H. CANTRELL, JUDGE WILLIAM C. KOCH, JR., JUDGE JOANN POLLOCK, ) ) Lawrence Chancery Plaintiff/Appellee, ) No. 7856-96 ) VS. ) ) Appeal No. DONNIE F. POLLOCK, ) 01A01-9706-CH-00271 ) Defendant/Appellant. )

OPINION

The defendant, Donnie F. Pollock, has appealed from the judgment of the Trial Court

awarding the plaintiff a divorce on grounds of adultery and inappropriate marital conduct,

awarding plaintiff, $8,000.00 alimony in solido and $500.00 per month alimony until she reaches

65 years or one of the parties dies; ordering defendant to pay $2,400.00 of plaintiff’s attorneys

fees, and distributing the marital estate and liability for debts.

Defendant presents two issues, the first of which is the award of alimony.

The parties were married 31 years. Their only child is an adult. The wife is 50 years old,

holds a high school diploma and worked as a seamstress in a shirt factory for 22 years. After 14

years with her last employer, she resigned because she was unable to maintain the required

production speed of 10,000 operations per day. She is now taking medication for depression

under orders of her physician.

The husband has been employed by a machinery manufacturer for 19 years. He holds a

“desk job” at $39,000.00 per year.

The wife testified that her needs included the following:

Utilities ............. $215 to 225 per month Food .................. $200 to 300 per month Medicine ............ $40 Clothing ............. No stated amount Make-up ............. No stated amount Entertainment ..... No stated amount

-2- The sum of the specific amounts stated above is $455.00 to $565.00, which is sufficient

to support the award of $500.00 per month alimony.

Trial Courts exercise broad discretion in respect to the amount and duration of spousal

support, and such decisions are entitled to great weight on appeal. TCA § 36-5-101(d)(I); Wilson

v. Moore, Tenn. App. 1996, 929 S.W.2d 367.

Appellant complains that alimony, if allowed, should be rehabilitative and limited. No

evidence is cited or found to support a finding that the wife is presently rehabilitable. Her

testimony convinced the Trial Judge that, at the time of trial, she was not able to work. The

periodic alimony remains within the control of the Trial Court which has the power to modify

it at any time changed circumstances justify. TCA § 36-5-101(a)(I).

Appellant’s second issue complains of the award of $2,400.00 attorneys fee “when the

appellee had the ability to pay.” Appellant cites evidence of the wife’s former earnings, but no

evidence of any earnings at the time of trial. No evidence is found that, at the time of trial, any

funds were available to plaintiff for the payment of her counsel. The allowance of attorneys fees

in a divorce action rests within the sound discretion of the Trial Judge which will not be

disturbed on appeal in the absence of a clear showing of error. Aaron v. Aaron, Tenn. 1995, 909

S.W.2d 408.

The allowance of attorneys fees to a spouse is not in order where the spouse is possessed

of adequate property or income to pay for legal services. Duncan v. Duncan, Tenn. App. 1984,

686 S.W.2d 568.

Where the spouse demonstrates inability to afford counsel, attorneys fees may be property

allowed. Kincaid v. Kincaid, Tenn. App. 1995, 912 S.W.2d 140.

-3- The judgment of the Trial Court is affirmed. Counsel fees on appeal are awarded to the

wife in an amount to be ascertained by the Trial Court on remand. Costs of this appeal are

assessed against the appellant and his surety. The cause is remanded to the Trial Court for

further proceedings.

____________________________ BEN H. CANTRELL, JUDGE

____________________________ WILLIAM C. KOCH, JR., JUDGE

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