On Further Review

My brother's appeal is in the books. This means it, too is public information.

According to the brief, there were four main points of contention:
1. Whether the trial court erred in the parenting plan.
2. Whether the trial court erred in awarding alimony in solido (attorney's fees).
3. Whether the trial court erred in awarding rehabilitative alimony for five years.
4. Whether the trial court erred in failing to make a finding that the mother was intentionally underemployed.

Also at stake was the mother's (read: Dependopotamus') request for attorney's fees for the appeal. If my brother's points all failed, then surely she would be awarded attorney's fees for the appeal - which would have been financially disastrous.

Here is a brief summary of the findings:

1. Whether the trial court erred in the parenting plan. 
Per the findings: Although Father does not specifically appeal the designation of Mother as primary residential parent, upon our review of the record the evidence does not preponderate against that decision. With respect to the parenting schedule, however, we have determined that it is necessary to vacate so much of the order that adopts the parenting schedule and remand for further consideration.
In addition, there is no indication that the court considered Father’s work schedule and the proximity of his home to the child’s school in approving the parenting plan. See Tenn. Code Ann. § 36-6-404(b)(15), (16). Accordingly, we vacate this portion of the plan and remand the case for the adoption of appropriate findings in support of the residential parenting time schedule adopted by the court.

Translation: My brother wins more custody / parental rights. The lower court ruled outside its authority.

2. Whether the trial court erred in awarding alimony in solido (attorney's fees for the initial trial).
3. Whether the trial court erred in awarding rehabilitative alimony for five years. 
Per the findings: Considering the cash assets Mother received in the division of marital property as well as her monthly income and expenses, it is apparent that she does not have adequate property or income to pay her attorney fees without depleting her resources; the court did not abuse its discretion in awarding her alimony in solido. Accordingly, we affirm the court’s award of rehabilitative alimony and alimony in solido. 

Translation: Dependopotamus wins these two points. The trial court was within its authority.

4. Whether the trial court erred in failing to make a finding that the mother was intentionally underemployed. 
Per the findings: As noted earlier, the child support worksheet stated, without explanation, that Mother had a monthly income of $400.00. It is apparent that the court did not consider Mother’s gifts in its determination of her monthly gross income as required by Tenn. Comp. R. & Reg. 1240-02-04-.04(3)(a)(1)(xviii). As evidenced by our earlier discussion of Mother’s income, the financial gifts she received from her parents contribute to her monthly income of In this regard, we note that neither party testified that he or she opposed decision making authority being mutual. Consequently, we vacate the award of child support and remand the case for redetermination of the parties’ respective child support obligations.

Translation: My brother wins this point. Dependopotamus was intentionally underemployed ad child support will be revisited.


5. Attorney fees on appeal.
Per the findings: Mother requests an award of attorney fees incurred on appeal. Whether to award attorney’s fees on appeal is within this Court’s sole discretion. Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995). In considering a request for attorney’s fees, we look at “the ability of the requesting party to pay the accrued fees, the requesting party’s success in the appeal, whether the requesting party sought the appeal in good faith, and any other equitable factors that need be considered.” Hill v. Hill, No. M2006-02753-COA-R3-CV, 2007 WL 4404097, at *6 (Tenn. Ct. App. Dec. 17, 2007) (citing Dulin v. Dulin, No. W2001-02969- COA-R3-CV, 2003 WL 22071454, at *10 (Tenn. Ct. App. Sept. 3, 2003)). Considering these factors, we decline to award Mother attorney fees on appeal.

Translation: My brother wins this point. Dependopotamus must pay for her own appeal.


Conclusion:
For the foregoing reasons, we affirm the award of rehabilitative alimony and alimony in solido and the designation of Mother as primary residential parent. We vacate the residential parenting schedule, the allocation of decision-making authority, and the determination of Mother’s income and remand the case for a redetermination in accordance with this opinion.

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