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Ghorley v. Ghorley

Court of Criminal Appeals of Tennessee, Knoxville

November 10, 2016


          Session Date: September 14, 2016

         Appeal from the Chancery Court for Monroe County No. 18, 203 Jerri S. Bryant, Chancellor

         This appeal, which stems from a divorce action, involves issues of child support and an award of attorney's fees. The father asserts error in the trial court's decision to award to the mother attorney's fees in the amount of $25, 000 as alimony in solido. The father also argues that his co-parenting time with the children was not properly calculated when setting his child support obligation. Following our thorough review of the evidence in light of the statutory factors, we conclude that the trial court properly awarded $25, 000 for attorney's fees to the mother as alimony in solido. We also determine, however, that the permanent parenting plan order entered by the trial court contains an internal inconsistency. We therefore vacate the permanent parenting plan order and remand to the trial court for entry of an appropriate and internally consistent permanent parenting plan order.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Vacated in Part; Case Remanded

          Joseph H. Crabtree, Jr., Athens, Tennessee, for the appellant, Shane Seth Ghorley.

          Peter Alliman, Madisonville, Tennessee, for the appellee, Brandi Lynn Ghorley.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.



         I. Factual and Procedural Background

         The father, Shane Seth Ghorley ("Father"), filed a divorce action against the mother, Brandi Lynn Ghorley ("Mother"), in the Monroe County Chancery Court on September 5, 2013. Mother and Father were married in 1997 and separated in April 2013. The parties had three children, one of whom had reached the age of majority by the time of trial.

         The record encompasses numerous pretrial pleadings filed by both parties, including various motions for contempt and motions for restraining orders. This highly contentious case was eventually tried over three non-consecutive days on December 8, 2014; December 15, 2014; and January 12, 2015. Several witnesses testified, including Mother, Father, and the parties' three children. At the conclusion of the trial, the court awarded an absolute divorce to Mother upon the court's finding that Father was at greater fault for the parties' divorce based upon his inappropriate marital conduct. The trial court also found that Father had been repeatedly in contempt of the court's prior orders for such actions as communicating with Mother through the children, failing to make support payments in a timely manner, and failing to return the children from co-parenting on time.

         The trial court designated Mother as primary residential parent of the two minor children. In the permanent parenting plan order ("PPP") signed by the judge, Mother was awarded 212 days of co-parenting time annually, with Father enjoying 153 days of co-parenting time. In its oral ruling from the bench, the court announced a two-week, rotating schedule with Mother's having care of the children on Monday, Tuesday, Friday, Saturday, and Sunday of one week and Father's having care of the children on Wednesday through Friday morning of that week. During the following week, Mother was to have care of the children Monday through Thursday, and Father was to have co-parenting time Friday through Sunday, which the court stated would provide Father co-parenting time consisting of five out of every fourteen days with the children. The court also awarded to Father four non-consecutive weeks of co-parenting time during the summer. Based on Father's representation in his proposed parenting plan that his gross monthly income was $6, 400 per month, the trial court set Father's monthly child support obligation at $932 per month pursuant to the applicable child support guidelines.

         The trial court ordered that the parties retain joint ownership of the marital residence, with Mother to reside therein until the youngest child reached the age of eighteen or graduated from high school, whichever event occurred last. The court additionally ordered that during that time, Father would continue paying the $115 monthly mortgage payment as part of the court's alimony award to Mother. The court also ordered that following the youngest child's graduation/emancipation, the home would be sold and the proceeds equally divided between the parties. The court specifically divided the parties' other marital assets and debts. Regarding spousal support, the court awarded Mother additional alimony of $150 per month for a period of eighteen months, determining that she maintained a need for alimony and that Father had the ability to pay.

         Mother subsequently filed a motion for attorney's fees and discretionary costs, supported by respective affidavits. Mother sought fees in the amount of $27, 650 and costs of $2, 078. In an order dated May 28, 2015, the trial court awarded to Mother attorney's fees in the amount of $25, 000, explicitly finding this amount to be reasonable. The court also awarded costs of $2, 078. Father subsequently filed a motion to alter or amend the judgment, asserting, inter alia, that he did not have the ability to pay the amount of attorney's fees awarded. Thereafter, the trial court entered an order on September 14, 2015, by which the court affirmed its earlier findings that Father had the ability to pay alimony and that Mother had the need for such an award. The court determined that Mother was economically disadvantaged compared to Father and that even if Mother obtained full-time employment, she could not meet her financial needs. The court denied the motion to alter or amend, again determining the amount of the fee award to be reasonable, while also noting that Father had not challenged the reasonableness of the fees. Father timely appealed.

         II. Issues Presented

         Father presents the following issues for our review, which we have restated slightly:

1. Whether the trial court erred by awarding to Mother attorney's fees without determining whether Father had the ability to pay such fees.
2. Whether the trial court erred in the amount of reasonable attorney's fees awarded.
3. Whether the trial court erred in its calculation of child support because the court did not properly include the total number of days annually that Father spends with the children.

         III. Standard of Review

         As our Supreme Court has explained regarding an award of attorney's fees pursuant to an absolute divorce:

It is well-settled that an award of attorney's fees in a divorce case constitutes alimony in solido. See Tenn. Code Ann. § 36-5-121(h)(1) ("alimony in solido may include attorney fees, where appropriate"); Herrera v. Herrera, 944 S.W.2d 379, 390 (Tenn. Ct. App. 1996). The decision whether to award attorney's fees is within the sound discretion of the trial court. Crabtree [v. Crabtree], 16 S.W.3d [356, ] 361 [(Tenn. 2000)]; Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995). 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). A spouse with adequate property and income is not entitled to an award of alimony to pay attorney's fees and expenses. Umstot v. Umstot, 968 S.W.2d 819, 824 (Tenn. Ct. App. 1997). Such awards are appropriate only when the spouse seeking them lacks sufficient funds to pay his or her own legal expenses, see Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn. Ct. App. 1992), or the spouse would be required to deplete his or her resources in order to pay them, see Harwell v. Harwell, 612 S.W.2d ...

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