In the case of Hooberry v. Hooberry, No. M2011-1482-COA-R3-CV (Tenn. Ct. App. June 20, 2012), the Appellate Court reminds Tennessee divorce attorneys that legal separation may not permanently resolve all issues in case of subsequent divorce.
Facts: The trial court awarded Wife a two year legal separation and $1,500 per month alimony as well as dividing property. Wife's attorney fee request was denied. Wife appealed, claiming she should have been awarded alimony in futuro, more of the marital estate and her attorney fees.
Alimony: The trial court here declared the parties legally separated and not divorced. Under T.C.A. 36-4-102, after two years, either party may file for a divorce (but it may only be awarded to the party who the separation was awarded to). Here, the original alimony award was just for the parties' separation and did not address alimony in a potential later divorce. At that point, the court will hear additional evidence and re-determine any support issues. Therefore, Wife's claim that she should have been awarded in futuro alimony is premature in light of the fact that a legal separation was awarded instead of an absolute divorce.
Property Division: Wife argues she should have been given a larger portion of the marital estate. The trial court is supposed to divide property equitably (which does not mean equally). This is determined according to the factors listed in T.C.A. §36-4-121. Wife's appeal fails to explain why the distribution is inconsistent with the statutory factors. Accordingly, the trial court's decision is upheld.
Attorneys Fees: Wife here failed to put on evidence at trial or inform the appellate court the amount of fees she sought. Normally, an award of attorney's fees is treated as alimony and depends upon whether each party has an ability to pay and the parties' respective assets. If a party has adequate income or assets, then no award of fees is appropriate. Wife here argues she is incapable of paying the fees and that the trial court made such a finding at the hearing but refused to award them to her regardless. The Appellate Court here can only overturn the trial court in light of an abuse of discretion, meaning application of an incorrect legal standard or a decision against logic and reason. Wife was required to make a clear showing of such an abuse of discretion, which she failed to do. The Appellate Court also noted that Wife's own actions had caused her high attorneys fees, such as Husband having to file Contempts and Motions to Compel. Accordingly, the trial court's refusal to award her fees is upheld.