Scott Elmer McCarter v. Debra Lynn Walker McCarter ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 26, 2014 Session
SCOTT ELMER McCARTER v.
DEBRA LYNN WALKER McCARTER
Appeal from the Circuit Court for Sevier County
No. 2010-0043-1 Ben W. Hooper, II, Judge
No. E2013-00890-COA-R3-CV-FILED-DECEMBER 1, 2014
In this divorce action involving the dissolution of a thirty-six year marriage, the wife appeals
the trial court’s distribution of the marital estate and the amount of alimony in futuro she was
awarded by the court. She also contends that the trial court judge erred by denying multiple
motions for his recusal. Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
John D. Lockridge, Jr., and Mario L. Azevedo, II, Knoxville, Tennessee, for the appellant,
Debra Lynn Walker McCarter.
Steven E. Marshall, Sevierville, Tennessee, for the appellee, Scott Elmer McCarter.
OPINION
I. Factual and Procedural Background
The parties were married on June 26, 1975. The marriage continued thirty-six years
and produced two daughters, both adults by the time of the divorce proceedings. The parties
owned a thriving business in Sevier County, McCarter Auction and Real Estate (“McCarter
Auction”), which they founded in 1983. The parties also owned related entities, including
Great Day Investments, LLC (“Great Day”), and Fair Garden Farms, Inc. In the latter years
of their marriage, they had participated in several church mission trips and maintained a
related bank account under the name of “Fishers for Missions.” Both parties were sixty-one
years old at the time of the divorce decree entry.
Prior to meeting Wife, Husband obtained a general equivalency diploma and a
professional auctioneer’s license. During the early years of the marriage before founding
McCarter Auction, Husband was employed performing various odd jobs, including
bulldozing and welding. Wife had completed her high school diploma and a few business
college classes. She was employed as a bank clerk when the parties met. Wife was not
employed outside the home during the marriage, although she testified that she had assisted
with auctions of smaller properties by greeting people at the sales. The parties purchased a
farm in Sevierville in the late 1980s, which became their marital residence. Wife worked
maintaining the farm as well as the home. Husband continued with his education and
training throughout the 1990s, completing a three-year program at the Certified Auctioneers
Institute and becoming a licensed real estate agent as well as a licensed auctioneer.
At trial, each party alleged that the other acted with physical violence within the
marital home. Wife alleged that Husband belittled her and in later years, blamed her for
intimacy problems that were attributable to either his or her health conditions. Husband
asserted that throughout the marriage, Wife exhibited erratic behavior and was verbally
abusive to him and the children. He also alleged that Wife was a spendthrift and that he was
forced to obtain loans he could not repay in the early years of the marriage because Wife had
written checks for amounts beyond their bank account balance at that time. The parties
separated in 2001 for approximately nine months after Husband left the marital residence and
filed for divorce. They subsequently reconciled.
In January 2007, Husband was diagnosed with prostate cancer and underwent surgery
later that year to remove his prostate. In October 2009, Husband suffered a heart attack and
underwent surgical stint implantation. Husband related these health crises and the resultant
need to reduce stress to his decision to file a complaint for divorce on January 25, 2010.
Husband had vacated the marital residence, initiating the parties’ separation, on January 18,
2010. He averred grounds of irreconcilable differences or, in the alternative, inappropriate
marital conduct on the part of Wife. Husband was initially represented by attorney Jill R.
Talley, who was joined in November 2010 by co-counsel, P. Richard Talley. Wife initially
retained attorney Jim Foglesong, who entered a notice of appearance in February 2010. Wife
did not file an answer to the complaint until May 5, 2010, following Husband’s filing of a
motion for default judgment. In her answer, Wife denied that the parties’ differences were
irreconcilable and requested that no divorce be granted. She sought temporary spousal
support pending resolution of the proceedings.
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Wife filed multiple motions for continuance, the first on November 16, 2010. In that
motion, filed three days prior to the first date trial was set, Wife stated that discovery was
incomplete. In a subsequent motion filed November 22, 2010, Wife requested that attorney
David Valone be substituted as counsel to represent her in place of Mr. Foglesong. The trial
court granted both motions. Through Mr. Valone, Wife sought a continuance in March 2011
on the basis of pending real estate appraisals, and the trial court granted this continuance.
The trial court conducted a hearing on April 20, 2011, ordering the parties to mediation and
setting a trial date of October 3, 2011. The mediator subsequently filed a report stating that
no issues had been resolved in mediation. Mr. Valone then filed a motion to withdraw his
representation of Wife, which the trial court granted following a hearing conducted on
August 1, 2011.
On September 30, 2011, Wife’s current counsel, John D. Lockridge, Jr., filed a notice
of his representation and a concomitant motion for continuance. On the date that trial had
been scheduled, October 3, 2011, the trial court conducted a hearing on Wife’s motion for
continuance and granted the motion. On that same day, Wife filed a counter-complaint for
divorce, averring inappropriate marital conduct on the part of Husband and requesting
temporary and permanent spousal support.
Husband filed a motion for the recusal of the trial court judge on October 11, 2011.
Husband averred, inter alia, that the trial court’s grant to Wife of a continuance on the date
trial was set evinced a pattern of delay in the case that appeared to “punish” Husband for
seeking a divorce. Wife responded to this motion by stating that there had been no judicial
impropriety demonstrated in the case. The trial court denied Husband’s motion for recusal
in an order entered November 1, 2011. The trial court subsequently entered an order, at the
request of Husband’s counsel, substituting Husband’s current counsel, Steven E. Marshall,
in place of Jill R. Talley and P. Richard Talley on November 22, 2011.
The trial court set a new trial date for December 7 and December 8, 2011, bifurcating
the trial and requiring that the parties present the fault-based portion of their cases first.
Issues concerning property division and alimony were to be held in reserve. One day before
trial was scheduled to begin, Wife filed a motion for the trial court judge’s recusal. On the
first day of trial, she moved orally for a continuance as well. As the trial began on December
7, 2011, the trial court denied Wife’s respective motions for recusal and continuance.
Following trial on the fault-based issues, the trial court entered a judgment of divorce
in favor of both parties, each on the ground of inappropriate marital conduct. At the close
of the fault portion of the trial, the parties agreed to trial dates of January 27, February 24,
and March 21, 2012, to resolve remaining issues. On the day before each of these dates,
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Wife filed a motion for continuance due to illness, twice her own and once her counsel’s.
The trial court granted the first two motions for continuance.
During a hearing conducted March 21, 2012, the trial court denied subsequent motions
Wife had filed for recusal, to alter or amend the judgment, and for a new trial. The court
“reluctantly” granted Wife’s motion to continue the trial due to her illness. However, the
court ordered Wife to provide a statement from her doctor as to whether she was actually too
ill to attend trial on this date and the preceding one. The court also ordered Husband to
advance $25,000.00 to Wife toward litigation expenses and attorney’s fees. This latter order
was amended by the trial court through a conference call with counsel for both parties
participating on March 27, 2012. During the conference, the court directed both parties to
secure a joint loan in the amount of $25,000.00 to be paid toward Wife’s litigation expenses
and attorney’s fees.
On April 16, 2012, the trial court, following a hearing, denied yet another motion for
continuance pled orally by Wife’s counsel. Wife’s counsel had stated that he believed the
dates set were tentative and that he needed additional time to prepare for trial. On April 18,
2012, Wife filed an additional motion for continuance, again pleading her illness.
Meanwhile, upon the trial court’s order, her physician had filed a letter in which he opined
that Wife had not been too ill to attend trial on the dates set in January and February 2012.
The property division portion of the trial was conducted over the course of three days:
April 19, 2012; April 20, 2012; and May 3, 2012. At trial on April 19, 2012, the trial court
denied the pending motion for continuance and ordered Wife’s counsel to continue with trial
despite Wife’s absence. The court did permit an early lunch recess to allow Wife’s counsel
an opportunity to present her in court, but this was to no avail. Wife was absent from the trial
but represented by counsel on April 19, 2012, and during the beginning of the day on April
20, 2012. Wife appeared at trial on April 20, 2012, as Husband was beginning to undergo
cross-examination.
The trial concluded on May 3, 2012, with Wife present. Pursuant to the court’s order,
both parties filed post-trial briefs. On June 29, 2012, the trial court entered an order denying
several pending motions, including competing motions for contempt and another motion for
the trial court judge’s recusal filed by Wife. On December 31, 2012, the trial court entered
its Final Judgment, inter alia, distributing the marital estate and awarding Wife alimony in
futuro in the amount of $500.00 weekly until her death, remarriage, or cohabitation.
In the meantime, Wife filed a “Motion for a New Trial or in the Alternative to
Alter/Amend the Judgment” on January 25, 2013, to which Husband filed a response on
February 28, 2013. The trial court conducted a hearing addressing Wife’s motion on March
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8, 2013, also addressing a motion filed by Wife to continue said hearing. On March 18,
2013, the trial court entered an order respectively denying Wife’s motions for a continuance,
for a new trial, and to alter or amend the judgment. Wife timely appealed and concomitantly
filed a motion for stay of execution of the judgment.
After filing her notice of appeal, Wife also filed a Tennessee Rule of Civil Procedure
60 Motion on April 25, 2013, requesting that as part of the trial court’s assessment of real
property debt against Husband, it further order Husband to pay all outstanding bills for
utilities and insurance related to the real property. Wife further requested that the trial court
include fees owed on the parties’ condominium in Hilton Head, South Carolina (“Hilton
Head Condo”), within the meaning of expenses to be paid by Husband. On August 26, 2013,
Husband filed two motions, one requesting reduction or suspension of alimony payments
pending appeal, averring that he had paid a debt assessed to Wife in the Final Judgment in
the amount of $27,951.70. The second motion requested that the trial court assess said
payment against assets awarded to Wife. The parties later stipulated that Husband had paid
the $27,951.70 debt. On May 13, 2013, the trial court entered an order denying all post-trial
motions to date, finding (1) that Wife’s motion for a stay of execution and Husband’s motion
to reduce or suspend alimony were not well taken and (2) that, due to the pending appeal, the
court lacked subject matter jurisdiction to consider Wife’s Rule 60 motion and Husband’s
motion to assess payment of a loan against assets awarded to Wife.
Following the trial court’s denial of her post-trial motions, Wife filed motions with
this Court requesting (1) immediate review of the trial court’s denial of her motion for stay
of execution and (2) continuation of the statutory injunctions contained in Tennessee Code
Annotated § 36-4-106(d) to protect against dissipation of the marital estate pending appeal.
In an order entered May 31, 2013, this Court denied Wife’s motion for immediate review as
not in compliance with Tennessee Rule of Appellate Procedure 7. By the same order, this
Court granted Wife’s motion for a continuation of the statutory injunctions set forth in
Tennessee Code Annotated § 36-4-106(d) as applicable to all marital property divided in the
final judgment pending conclusion of appellate proceedings.1
1
During the pendency of this appeal, both parties have filed motions with this Court regarding the
statutory injunctions set forth in Tennessee Code Annotated § 36-4-106(d), including motions regarding the
sale of a condominium, the parties’ remaining cattle, and a recreational vehicle. This Court has remanded
these motions to the trial court, and we decline to consider the issues raised as part of this appeal, which was
perfected prior to the filing of all such motions. See First Amer. Trust Co. v. Franklin-Murray Dev. Co.,
LP, 59 S.W.3d 135, 141 n.8 (Tenn. Ct. App. 2001) (“[P]erfecting an appeal does not prevent the trial court
from acting with regard to ancillary matters relating to the enforcement or collection of its judgment.”).
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II. Issues Presented
On appeal, Wife presents three issues, which we restate as follows:
1. Whether the trial court erred in its distribution of the marital estate.
2. Whether the trial court erred by awarding to Wife an insufficient amount of
alimony in futuro.
3. Whether the trial court erred by denying Wife’s multiple motions for recusal.
III. Standard of Review
In a case involving the proper classification and distribution of assets incident to a
divorce, our Supreme Court has elucidated the applicable standard of appellate review as
follows:
This Court gives great weight to the decisions of the trial court in dividing
marital assets and “we are disinclined to disturb the trial court’s decision
unless the distribution lacks proper evidentiary support or results in some error
of law or misapplication of statutory requirements and procedures.” Herrera
v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996). As such, when
dealing with the trial court’s findings of fact, we review the record de novo
with a presumption of correctness, and we must honor those findings unless
there is evidence which preponderates to the contrary. Tenn R. App. P. 13(d);
Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
Because trial courts are in a far better position than this Court to observe the
demeanor of the witnesses, the weight, faith, and credit to be given witnesses’
testimony lies in the first instance with the trial court. Roberts v. Roberts, 827
S.W.2d 788, 795 (Tenn. Ct. App. 1991). Consequently, where issues of
credibility and weight of testimony are involved, this Court will accord
considerable deference to the trial court’s factual findings. In re M.L.P., 228
S.W.3d 139, 143 (Tenn. Ct. App. 2007) (citing Seals v. England/Corsair
Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)). The trial court’s
conclusions of law, however, are accorded no presumption of correctness.
Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).
Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007). Questions relating to the classification of
assets as marital or separate are questions of fact. Bilyeu v. Bilyeu, 196 S.W.3d 131, 135
(Tenn. Ct. App. 2005).
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Further, as this Court has previously held:
Because Tennessee is a “dual property” state, a trial court must identify all of
the assets possessed by the divorcing parties as either separate property or
marital property before equitably dividing the marital estate. Separate
property is not subject to division. In contrast, Tenn. Code Ann. §36-4-121(c)
outlines the relevant factors that a court must consider when equitably dividing
the marital property without regard to fault on the part of either party. An
equitable division of marital property is not necessarily an equal division, and
§36-4-121(a)(1) only requires an equitable division.
McHugh v. McHugh, No. E2009-01391-COA-R3-CV, 2010 WL 1526140 at *3-4 (Tenn. Ct.
App. Apr. 16, 2010) (internal citations omitted) (emphasis in original). See also Manis v.
Manis, 49 S.W.3d 295, 306 (Tenn. Ct. App. 2001) (holding that appellate courts reviewing
a distribution of marital property “ordinarily defer to the trial judge’s decision unless it is
inconsistent with the factors in Tenn. Code Ann. § 36-4-121(c) or is not supported by a
preponderance of the evidence.”).
Determinations regarding spousal and child support are reviewed under an abuse of
discretion standard. See Mayfield v. Mayfield, 395 S.W.3d 108, 114-15 (Tenn. 2012);
Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005). “This standard requires
us to consider (1) whether the decision has a sufficient evidentiary foundation, (2) whether
the court correctly identified and properly applied the appropriate legal principles, and (3)
whether the decision is within the range of acceptable alternatives.” State ex rel. Vaughn v.
Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000).
IV. Overall Distribution of Marital Estate
Wife contends that the trial court erred in its overall distribution of the marital estate.
She specifically argues that the trial court erred by (1) failing to consider Husband’s inherited
separate real property located in Grundy County, Tennessee; (2) valuing Husband’s
professional goodwill with McCarter Auction too highly and adopting Husband’s expert’s
valuation amount for the business; (3) accepting the division of a forty-acre tract of real
property suggested by a survey of the property presented by Husband; (4) awarding the farm
equipment and cattle to Husband while assigning an inaccurate value to the equipment; and
(5) failing to assess dissipation of the marital estate against Husband while assessing it
against Wife. Having thoroughly reviewed the evidence, we conclude that the trial court’s
overall distribution of the marital estate was equitable.
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Tennessee Code Annotated § 36-4-121(c) (2014) provides the following factors as
guidance for determining an equitable division of marital property:
(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)(A) The contribution of each party to the acquisition, preservation,
appreciation, depreciation 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;
(B) For purposes of this subdivision (c)(5), dissipation of assets means
wasteful expenditures which reduce the marital property available for equitable
distributions and which are made for a purpose contrary to the marriage either
before or after a complaint for divorce or legal separation has been filed.
(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, costs associated with the reasonably
foreseeable sale of the asset, and other reasonably foreseeable expenses
associated with the asset;
(10) The amount of social security benefits available to each spouse; and
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(11) Such other factors as are necessary to consider the equities between the
parties.
A. Husband’s Separate Real Property
Wife does not dispute that Husband’s interest in certain real property in Grundy
County, Tennessee, inherited from his mother’s estate, is Husband’s separate property. She
argues instead that the trial court erred by failing to consider the value of this separate
property when distributing the marital estate, pursuant to Tennessee Code Annotated § 36-4-
121(c)(6). The separate property at issue is comprised of two small lots, appraised
respectively at values of $780.00 and $2,600.00, as well as Husband’s one-fourteenth interest
in the “Big M” family ranch that belonged to his parents before their deaths.2 As Husband
notes in his responsive brief, the trial court was careful to clarify with counsel for both
parties during the December 8, 2011 hearing that the two small lots and Husband’s interest
in the Big M ranch were Husband’s only separate property.
Wife’s argument is that because the trial court in its Final Judgment did not include
Husband’s separate property in its charts of distributed property, the court failed to consider
the separate property at all. The trial court specifically prefaced each chart of property
awarded to Husband, to Wife, or to both with the phrase, “From the [parties’] marital estate
. . . .” Prior to dividing the marital estate, the court summarized each party’s respective status
and stated in pertinent part: “Neither party began this marriage with any assets to speak of,
other than the Husband’s separate property in Grundy County acquired through inheritance.”
We determine that the trial court properly considered Husband’s separate real property when
equitably distributing the marital estate.
B. Valuation of McCarter Auction
Wife posits that the trial court erred by valuing McCarter Auction in the amount of
$125,000.00. She argues that in assigning value, the court adopted Husband’s expert’s
valuation without giving proper consideration to the testimony of Wife’s expert. Husband
maintains that the trial court properly considered all of the valuation evidence presented
regarding McCarter Auction, including both expert witnesses’ testimony, and did not err in
calculating the value of the business. We conclude that the trial court did not err in valuing
McCarter Auction.
2
The parties also owned, as undisputed marital property, a seventy-five-acre parcel of real property
in Grundy County.
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As this Court has previously explained:
The value of marital property is a fact question. Thus, a trial court’s decision
with regard to the value of a marital asset will be given great weight on appeal.
In accordance with Tenn. R. App. P. 13(d), the trial court’s decisions with
regard to the valuation and distribution of marital property will be presumed
to be correct unless the evidence preponderates otherwise.
The value of a marital asset is determined by considering all relevant evidence
regarding value. The burden is on the parties to produce competent evidence
of value, and the parties are bound by the evidence they present. Thus the trial
court, in its discretion, is free to place a value on a marital asset that is within
the range of the evidence submitted.
Wallace v. Wallace, 733 S.W.2d 102, 107 (Tenn. Ct. App. 1987) (internal citations omitted).
It is well settled under Tennessee law that professional goodwill is not a marital asset
that can be divided in a divorce proceeding. See Smith v. Smith, 709 S.W.2d 588, 592 (Tenn.
Ct. App. 1985); Kerce v. Kerce, No. M2002-01744-COA-R3-CV, 2003 WL 22037526 at *4
(Tenn. Ct. App. Aug. 29, 2003). As this Court explained in Smith:
The concept of professional good will evanesces when one attempts to
distinguish it from future earning capacity.
...
There is a disturbing inequity in compelling a professional practitioner to pay
a spouse a share of intangible assets at a judicially determined value that could
not be realized by a sale or another method of liquidating value.
Smith, 709 S.W.2d at 591-92 (quoting Holbrook v. Holbrook, 309 N.W.2d 343, 354-55 (Wis.
Ct. App. 1981)).
Mr. Fleming is a certified public accountant and experienced business valuator who
had appraised McCarter Auction and testified on behalf of Husband. In its Final Judgment
dividing the parties’ assets, the trial court adopted Mr. Fleming’s valuation of McCarter
Auction as of December 31, 2011, at $125,000.00, excluding the value Mr. Fleming placed
on Husband’s professional goodwill. The court specifically noted that it “did not feel
comfortable with the testimony” of Wife’s expert witness, Renee Harwell, who had
questioned the amount of value Mr. Fleming’s report placed on Husband’s professional
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goodwill. Wife does not dispute that under Tennessee law, Husband’s professional goodwill
as an auctioneer and real estate agent was not divisible as marital property. See Smith, 709
S.W.2d at 592. She argues instead that the court placed too high a value on Husband’s
goodwill.
Mr. Fleming completed an initial valuation report on January 26, 2012, and an
updated report on April 14, 2012, a few days before trial. Both reports valued McCarter
Auction as of December 31, 2011. Mr. Fleming explained that in preparing his report, he
analyzed the business’s financial records for the last five years, inclusive of 2007 through
2011. When he prepared the original report, McCarter Auction had prepared a draft of its
2011 federal income tax return, which Mr. Fleming included in his analysis. He explained
at trial that in updating the report, he was able to analyze the final version of the 2011 federal
tax return, prepared by the company’s certified public accountant. Although both the original
and updated valuation reports were admitted into evidence, Mr. Fleming stated that the
updated report represented his expert opinion more accurately than the original because of
his ability to include the final 2011 federal income tax return rather than a draft.
Mr. Fleming utilized two methods in valuing McCarter Auction: (1) an asset
approach used to determine fair market value, described as an “adjusted book value – going
concern method” and (2) an income approach described as the “capitalization of cash flow
method,” “effectively determin[ing] the present value of the Company’s ongoing benefit
stream growing perpetually at a fixed rate and discounted at the required rate of return,” as
defined in the valuation reports. We note that both methods are accepted by Tennessee
courts as competent methods of determining the value of closely held corporations for the
purpose of equitably distributing marital assets in a divorce proceeding. See Wallace, 733
S.W.2d at 107-08 (distinguishing valuation of a closely held corporation in contrast to
valuation of a public corporation with an established market for its stock).
In both his original and updated reports, Mr. Fleming calculated an indicated fair
market value of McCarter Auction at $210,000.00. In his original report, Mr. Fleming
attributed $34,000.00 of McCarter Auction’s fair market value to Husband’s goodwill,
classifying the remaining $176,000.00 as “enterprise value.” In his updated report, Mr.
Fleming attributed $85,000.00 to Husband’s professional goodwill and classified the
remaining $125,000.00 as enterprise value. Ms. Harwell questioned, as does Wife on appeal,
the increase from $34,000.00 to $85,000.00 for professional goodwill between the original
and updated reports.
Mr. Fleming explained that he utilized the capitalization of cash flow method,
“project[ing] an ongoing economic income stream,” to determine the fair market value of
$210,000.00. He stated that he next analyzed goodwill and “determined that 100 percent of
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the goodwill above and beyond adjusted net asset, adjusted book value would be personal
goodwill” associated with Husband. According to Mr. Fleming, it was then necessary to
calculate the adjusted net book value of McCarter Auction because “all of the personal
goodwill in excess of adjusted book value is excludable from the marital asset.” Mr.
Fleming’s calculation of the adjusted net book value changed between the original and
updated valuation reports based upon two differences between the draft and final versions
of the company’s 2011 federal tax return: accumulated depreciation and cost of fixed assets.
His estimate of the business’s entire fair market value was not affected by these differences.
Therefore, in his updated report, Mr. Fleming’s calculation of Husband’s professional
goodwill increased by the greater difference between the net book value and the fair market
value, $85,000.00 as opposed to $34,000.00.
Mr. Fleming further explained this difference in the calculation of professional
goodwill as follows:
[A]s I compared . . . the final 2011 tax return and the draft 2011 tax return,
there was only two numbers that were different. And that was the cost of the
fixed assets and the accumulated depreciation, which is not uncommon,
because accountants typically – the CPA typically makes that adjustment for
small businesses.
In other words, [the bookkeeper] would have given the Quickbooks file
to the CPA. The CPA would have looked and seen what assets were
purchased through the year and made that adjustment.
That adjustment had not been made when I looked at the original tax
return and I hadn’t been aware of that. I wasn’t informed of that.
So the report that I issued April 14 revised – it’s a standalone report –
but in theory it revised the original – the $210,000 income approach did not
change because it was just the two balance sheet numbers that changed. But
instead of the original $176,000 adjusted net book value, we come to $125,000
adjusted net book value.
So at 3/31 we concluded that under the income approach at 12/31, the
value was $210,000, but everything in excess of adjusted net book value was
personal goodwill excludable from the marital asset. We looked at 12/31 from
the final tax return, which indicated an adjusted net book value of $125,000.
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Renee Harwell, a certified public accountant who had practiced in business valuation,
testified on behalf of Wife. Ms. Harwell had reviewed both versions of Mr. Fleming’s
valuation report prior to trial, but she had not conducted a valuation of McCarter Auction
herself. She concurred with Mr. Fleming’s estimate, using the capitalization of cash flow
method, of a fair market value as $210,000.00 for the business. She also did not take issue
with Mr. Fleming’s method of arriving at an adjusted net book value. Ms. Harwell
questioned, however, how the estimate of Husband’s professional goodwill reasonably could
have increased from $34,000.00 to $85,000.00 between the original and updated versions of
the report. It appears from her testimony that Ms. Harwell interpreted the goodwill estimate
as a fixed amount rather than a remainder derived from subtracting the adjusted net book
value from the total market value. Ms. Harwell opined that the enterprise value, or what she
termed the “tangible asset value,” of McCarter Auction should be set at $176,000.00, or the
enterprise value at which Mr. Fleming had arrived utilizing the draft 2011 federal tax return.
Finally, Mr. Fleming also reviewed a profit and loss statement provided by McCarter
Auction for the first quarter of 2012, which had ended on March 31, nearly three weeks prior
to trial. The statement demonstrated an approximately $71,000.00 loss incurred by the
business during that quarter. Husband subsequently testified that such a loss, while greater
than in many other years, was in keeping with the seasonal nature of land auction sales. Mr.
Fleming explained that although the loss was mitigated somewhat by Husband’s practice of
loaning the business money to “inject cash” into the operating account, he still calculated a
reduced adjusted net book value of McCarter Auction from $125,000.00 as of December 31,
2011, to $104,000.00 as of March 31, 2012. In her testimony, Ms. Harwell interpreted Mr.
Fleming’s calculated reduction from $176,000.00 enterprise value in the original report to
$104,000.00 in the updated report as of March 31, 2012, as completely due to the $71,000.00
first-quarter loss experienced by the company without crediting Mr. Fleming’s adjustment
for the final 2011 federal tax return.
As to Husband’s professional goodwill, Ms. Harwell questioned whether some
goodwill should be allocated to the business itself rather than to Husband personally. Ms.
Harwell was attempting to distinguish between Husband’s personal goodwill in the
community and the goodwill McCarter Auction might continue to enjoy with a different
licensed auctioneer or auctioneers. This Court has previously determined that such a
distinction may be considered in including business goodwill for valuation where the
practitioner has one or more partners or pre-established contracts that could be assumed by
another practitioner. See Hartline v. Hartline, No. E2012-02593-COA-R3-CV, 2014 WL
103801 at *13 (Tenn. Ct. App. Jan. 13, 2014) (citing York v. York, No. 01-A-01-9104-
CV00131, 1992 WL 181710 at *4 (Tenn. Ct. App. July 31, 1992)). In the instant case,
however, Husband is the only licensed auctioneer employed by McCarter Auction and is its
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sole shareholder. At trial, Mr. Fleming explained his conclusions regarding Husband’s
professional goodwill as follows:
In my experience with transferring, working with sellers of close to 100
businesses, if Mr. McCarter were to come in to my office and ask me to help
him sell his business, I would simply say, I’m sorry, I can’t do that because his
business isn’t transferable in that sense.
In other words, as a professional, he’s providing a professional service.
It’s not like he’s manufacturing. It is McCarter Auction. That’s the reason we
opine that all of the goodwill in excess of the adjusted net book value was
personal goodwill.
The trial court properly excluded Husband’s professional goodwill from its valuation.
Additionally, in valuing McCarter Auction at $125,000.00, the trial court adopted Mr.
Fleming’s adjusted net book value of $125,000.00 as of December 31, 2011, and declined
to include the seasonal loss incurred by the business in the first quarter of 2012. We stress
again that the trial court is free, in its discretion, “to place a value on a marital asset that is
within the range of the evidence submitted.” See Wallace, 733 S.W.2d at 107. Upon our
thorough and careful review of the record, we determine that the evidence does not
preponderate against the trial court’s valuation of McCarter Auction.
C. Division of Forty-Acre Tract
Wife contends that the trial court erred by accepting the division of a 40-acre tract of
unimproved real property suggested by a survey presented by Husband. Wife specifically
argues that in adopting the division suggested by the survey, the trial court erred by awarding
Husband a greater portion of valuable frontage property along the Newport Highway. We
conclude that the trial court did not err in its equitable division of the 40-acre tract.
The parties originally purchased the Sevier County real property on which both the
marital residence and the McCarter Auction office are located in 1989. By the time of their
separation, they had sold several of their original 110 acres, but the home and office parcels
were still contiguous with an approximately 40-acre tract of unimproved land located
between them. In its Final Judgment, the trial court awarded to Husband the office parcel,
consisting of 11.74 acres (“Office Parcel”), and awarded to Wife the home parcel, consisting
of 20.76 acres (“Home Parcel”). At issue is the division of the approximately 40-acre tract
(“Disputed Property”) between the Office and Home Parcels. The court adopted Husband’s
proposed division of the Disputed Property, awarding to Husband 17.97 acres adjoining the
Office Parcel and to Wife 22 acres adjoining the Home Parcel.
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At trial, Husband presented a survey of the Sevier County real property, which had
been prepared by surveyor Ronnie L. Sims on September 13, 2011. The survey included a
line drawn to reflect Husband’s proposed division of the Disputed Property. It is undisputed
that the Home Parcel, Office Parcel, and Disputed Property all contain some frontage along
the Newport Highway. The Office Parcel contains approximately 1,050 feet of highway
frontage property while the Home Parcel contains approximately 60 feet of frontage.
Pursuant to the trial court’s division of the Disputed Property, adopted from Husband’s
proposed division, Husband’s portion contains 247.87 feet of highway frontage property, and
Wife’s portion contains 300 feet of frontage. According to testimony and the survey, the
three contiguous tracts (Home Parcel, Office Parcel, and Disputed Property) are zoned for
commercial use from the highway frontage back to a zoning line, behind which the parcels
are zoned for non-commercial use. Wife disputes the equity of the trial court’s awarding her
a combined total of approximately 360 feet of frontage property while awarding Husband a
combined total of approximately 1,298 feet of frontage property. She argues that despite her
having been awarded a greater number of acres from the 40-acre unimproved parcel, the
distribution was inequitable because her acreage was less valuable than that awarded to
Husband.
Husband filed a proposed division of the marital estate, including his proposed
division of the Disputed Property, prior to trial. Wife did not present a proposed division of
the marital estate until the third and last day of trial on May 3, 2012, when Ms. Harwell
identified and reviewed a proposal she had assisted Wife in completing. At the trial court’s
invitation, both parties also filed post-trial briefs that included their respective proposals for
the equitable division of marital property. Wife proposed that the trial court award all of the
real property located in Sevier County to her. While Wife argues that it was inequitable for
the trial court to adopt the survey of the Sevier County property commissioned by Husband,
the only alternative she presented to the trial court was to avoid dividing the property by
awarding her all of it. The parties stipulated to the accuracy of the appraised value of all the
parties’ real property, including that in Sevier County.
Husband testified that in requesting the proposed property division shown by the
survey, he asked the surveyor to consider the higher value of the frontage property and divide
the 40-acre section to provide Wife any acreage over fifty percent needed to equal the value
of his greater portion of frontage property. As the trial court noted in its Final Judgment,
Wife’s proposal, in contrast, requested that all of the Sevier County real property be awarded
to her with Husband assuming any related debt. We determine that the trial court did not err
by adopting Husband’s proposed division of the Disputed Property in Sevier County.
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D. Disposition and Valuation of Farm Equipment and Cattle
Wife asserts that the trial court erred by “blindly” awarding all of the parties’ farm
equipment to Husband and by subsequently awarding all of the parties’ remaining cattle to
Husband. She further argues that the trial court erred in its valuation of the farm equipment.
We disagree.
In its Final Judgment, the trial court stated in pertinent part:
The only remaining marital assets are the Farm Equipment and Cattle,
etc. The parties are in agreement as to value of the three items listed first on
their respective proposals, but the description of one item by Husband is a
“Troy Bilt Tiller and Small John Deere riding mower.” The Wife’s description
is a “7'3 point John Deere Mower and 4'3 Point John Deere Tiller.” Reviewing
the Jeff Sims appraisal, Exh. #10, it appears that the only Tiller is a 4'3 point
John Deere. This is what the Court will assume has already been awarded to
the Wife, but described as a Troy Bilt. It is unclear which mower is being
claimed by the Wife, but again the Court will assume that she will get the
small John Deere riding mower as already awarded to her above. Since there
seems to be an agreement between the parties, the Wife is awarded the tools
and miscellaneous items in the barn and corn crib.
Both parties are asking to be awarded all the cattle and all the farm
equipment not owned by McCarter Auction, Inc. The Court hereby awards all
the farm equipment not owned by McCarter Auction, Inc. to Husband. Using
Husband’s value, this is an award of $86,675.00. Using Wife’s value this is
an award of $68,307.00. Averaging the two, this is an award of $77,491.00.
All proceeds from the sale of cattle will be divided equally.
In an order entered March 18, 2013, the trial court, inter alia, amended its Final Judgment
to clarify that “all the cattle of the parties” were awarded to Husband. The court specifically
found in the March 2013 order that Wife was “not able to care for the cattle.”
In her proposed distribution of the marital estate, Wife requested that all items listed
under her heading, “Farm Equipment/Cattle, etc.” be awarded to her, including in pertinent
part:
• 8' Rocky Top black box trailer w/ contents (1/23/2007)
• 7'3 point John Deere 709 Mower & 4'3 Point John Deere Tiller
• Tools & Miscellaneous Items in Barn & Corn Crib
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• Cattle: 15 cows, 1 bull, 12 calves
• Farm Equipment Not Owned By McCarter Auction, Inc.
Prior to distributing the farm equipment in its Final Judgment, the trial court awarded to Wife
the “8' Rocky Top black box trailer with contents” and “Troy Bilt Tiller and small John
Deere riding mower” requested in Wife’s proposal, valuing each as Wife had proposed at
$3,000.00 and $1,000.00 respectively. It is clear from the court’s above explanation of its
award to Wife of the “small John Deere riding mower” that the court intended Wife to have
the mower she would need to maintain the Home Parcel. The court also awarded Wife the
requested “Tools & Miscellaneous Items in Barn & Corn Crib,” which would have been
located on the Home Parcel.
Wife’s request that the trial court award her the farm equipment must be viewed along
with her request that the court award her McCarter Auction and all of the Sevier County real
property. Husband testified that he used the farm equipment in his business and that Wife
had rarely driven the pick-up trucks and had never driven the tractor. He presented detailed
testimony as to the use of tractors, mowers, and other equipment. Wife testified that she had
used both pick-up trucks, but when asked to describe the trucks, she said she “didn’t know”
what they were. She offered no specific testimony regarding the other farm equipment.
Control over the parties’ cattle has been an ongoing source of contention throughout
the divorce proceedings. Wife asserts that the trial court erred in finding that she was unable
to care for the cattle. Husband asserts that while the record demonstrates that Wife may have
the “physical ability to check on the cattle,” she failed to demonstrate knowledge as to the
business of raising cattle. We agree with Husband on this point. See Brown v. Brown, 913
S.W.2d 163, 168 (Tenn. Ct. App. 1994) (explaining that the decision to divide marital
property “is not a mechanical one and is not rendered inequitable because it is not precisely
equal or because both parties did not receive a share of each piece of property.”) (internal
citations omitted).
When Wife’s counsel questioned her at trial regarding what role she played in taking
care of the cattle, she explained:
I watch them every day, make sure that none of them are hurt, make
sure none of them are having calves and having problems, make sure they have
supplement blocks. I call my oldest daughter on a regular basis to see – if I
haven’t seen them the day of, I’ll call her and see if she’s seen them. And
she’ll usually call me back and tell me yes or no. If I don’t see them, I’ll go
check on them, even drive in the back of the farm and check on them.
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During the pendency of the divorce proceedings, Husband filed two motions to sell
yearling calves, one in March 2011 and one in September 2012. Husband averred in his
motions that the sales were necessary to prevent the yearling calves from continuing to nurse
at their mothers’ sides, which could be detrimental to the cows’ health. The first motion was
heard only by means of a telephonic conference between the trial court and counsel for both
parties before Husband sold approximately ten yearling calves. It is undisputed that Husband
remitted to Wife’s former counsel half of the sale proceeds, in the amount of $3,828.00.
Objecting to the sale of the cattle, Wife refused to cash the check. Husband’s counsel
eventually deposited a replacement check for $3,828.00 with the court clerk, and the trial
court in its Final Judgment directed that the $3,828.00 be applied toward Wife’s portion of
the marital estate.
In response to Husband’s September 2012 motion to sell yearling calves, Wife agreed
to the sale provided that she could designate which cattle were to be sold. Following a
hearing conducted on November 2, 2012, the trial court entered an order on November 13,
2012, granting Husband permission to sell no more than ten cattle to be chosen at his
discretion. The court further ordered Husband to maintain the funds from the cattle sale “in
a separate account until further Orders of this Court.” In its Final Judgment, the court
equally divided the proceeds from this sale, awarding each party the amount of $2,475.45
respectively. During the November 2, 2012 hearing, at which Wife did not appear but was
represented by counsel, Husband offered detailed testimony as to the procedure for choosing
which calves to sell and the means of sale. We determine that the evidence does not
preponderate against the trial court’s finding that Husband was the more appropriate party
to assume responsibility for the parties’ remaining cattle.
Wife further argues that Husband prevented her from obtaining an independent
appraisal of the farm equipment and that as a result, the trial court’s valuation of the farm
equipment between Husband’s estimate of $86,675.00 and Wife’s estimate of $68,307.00
resulted in a windfall to Husband comprised of the difference between the court’s resultant
valuation of $77,491.00 and Husband’s original estimate. Following a hearing conducted
December 2, 2011, the trial court, inter alia, granted Husband’s motion to retain Jeff T. Sims,
President of Sims Tractor and Implement Company in Sevierville, to appraise the farm
equipment. Jeff Sims’s appraisal was filed with the trial court on December 8, 2011.
Husband relied on this appraisal when valuing the farm equipment in his proposed
distribution, and it was certainly available to Wife. Wife filed her proposal in which she
valued the farm equipment at a lesser value following the conclusion of trial in May 2012.
Presented with two differing estimates of value by the respective parties, the trial court did
not abuse its discretion by averaging the two estimates in its valuation. See Wallace, 733
S.W.2d at 107. We conclude that the trial court did not err in its valuation of the farm
equipment and award to Husband of said equipment and the parties’ remaining cattle.
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E. Alleged Dissipation of Marital Assets
Wife contends that the trial court erred by failing to attribute dissipation of marital
assets to Husband and by attributing dissipation of marital assets to Wife pursuant to
Tennessee Code Annotated § 36-4-121(c)(5). Husband posits that because he was able to
legitimately account for all funds he expended, the trial court did not err by finding that he
did not dissipate the marital estate. Husband further posits that the trial court properly
ordered Wife to pay Husband half of the funds she spent from two marital accounts because
she failed to account for her expenditures. We conclude that the evidence does not
preponderate against the trial court’s ruling as to dissipation of marital assets.
“Dissipation of marital property occurs when one spouse uses marital property,
frivolously and without justification, for a purpose unrelated to the marriage and at a time
when the marriage is breaking down.” Altman v. Altman, 181 S.W.3d 676, 681-82 (Tenn.
Ct. App. 2005). “‘The burden of persuasion and the initial burden of production in showing
dissipation is on the party making the allegation, and that party retains throughout the burden
of persuading the court that funds have been dissipated.’” See Burden v. Burden, 250 S.W.3d
899, 919 (Tenn. Ct. App. 2007) (quoting Wiltse v. Wiltse, No. W2002-03132-COA-R3-CV,
2004 WL 1908803 at *4 (Tenn. Ct. App. Aug. 24, 2004)) (internal citation omitted).
As this Court has explained:
[T]he allegedly improper or wasteful expenditure or transaction must be
considered in the context of the marriage as a whole, and it must be weighed
along with all the other relevant factors in the case. The factors that courts
most frequently consider when determining whether a particular expenditure
or transaction amounts to dissipation include: (1) whether the expenditure
benefitted the marriage or was made for a purpose entirely unrelated to the
marriage; (2) whether the expenditure or transaction occurred when the parties
were experiencing marital difficulties or were contemplating divorce; (3)
whether the expenditure was excessive or de minimis; and (4) whether the
dissipating party intended to hide, deplete, or divert a marital asset.
Altman, 181 S.W.3d at 682-83 (internal citations and footnote omitted).
Wife specifically argues that Husband dissipated marital assets by (1) diminishing the
Great Day money market account during the ten months preceding the April 2012 trial; (2)
donating a total of $84,034.00 to three churches in 2010 and 2011; (3) extending a
$50,000.00 unsecured loan to his brother; (4) writing checks to “cash” in the total amount
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of $31,175.00 in 2010 and 2011; and (5) extending a $65,000.00 loan to McCarter Auction.
We will address each allegation in turn.
First, Great Day was founded during the marriage to fund real estate investments.
Each of the parties’ adult daughters respectively owns a five-percent share, and Husband
holds a ninety-percent share. Prior to trial, the parties agreed that Great Day owned three
condominiums located in Seymour, Tennessee. It is undisputed that although purchased as
investments, two of the condominiums had functioned primarily as residences for the parties’
two adult daughters, and the third as a residence for Husband following the parties’
separation. As to the reduction in the Great Day money market account noted by Wife,
Husband testified that he had withdrawn approximately $100,000.00 from the Great Day
account in the two years prior to trial in order to supplement McCarter Auction when income
from sales did not cover operating expenses. He stated that it was his practice to “build up”
the account again whenever he could. Husband further testified that he used funds from the
Great Day account to pay the debt on a $25,000.00 loan the trial court had ordered the parties
to secure as payment toward Wife’s litigation expenses and attorney’s fees. Following trial,
the parties filed a stipulation on July 5, 2013, agreeing that Husband had “paid off the
Mountain National Bank obligation in the amount of $27,951.79 that the Trial Court ordered
the Wife to pay” in the Final Judgment. They also stipulated at that time to an amount of
$63,140.67 in the Great Day money market account.
Second, Husband reviewed his 2010 federal tax return at trial and acknowledged that
although his personal adjusted gross income for the year was $88,021.00, he still contributed
approximately $68,755.00 to charity.3 Husband testified that the majority of the
contributions were to two churches in Montana, one that he and Wife had helped to found
prior to their separation and another on the Crow Indian Reservation, which they had visited
during their mission trips. Husband explained that it was his practice in 2010 to instruct his
bookkeeper to write a check for ten-percent of his commission earned on each auction sale
and alternate sending checks to each of the two Montana churches. Husband does not
dispute that he claimed $15,279.00 in charitable contributions on his 2011 federal income
tax return.
Third, Husband testified via deposition that prior to the parties’ separation, he had
loaned his brother $50,000.00 to purchase real property on which he expected to realize a
positive return investment. The property ultimately decreased in value, and the loan to
Husband’s brother became non-collectable. The trial court referred in part to this investment
3
Upon cross-examination, Husband responded affirmatively when Wife’s counsel questioned him
regarding $64,000.00 in charitable contributions. As noted in Wife’s brief on appeal, Husband’s 2010
federal income tax return demonstrates that the actual amount of charitable contributions was $68,755.00.
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when it found in its Final Judgment that “Husband did make two poor investments, which
at the time may have seemed to be good investments.” The court subsequently ruled that
“Husband will not be penalized for these ultimate bad deals.”
Fourth, Husband’s financial records demonstrated his practice of writing checks to
“cash” to cover regular expenses. Fifth, Wife’s allegation that Husband dissipated funds
because of a $65,000.00 loan to McCarter Auction is essentially another way of arguing that
Husband dissipated funds when he utilized the Great Day money market account as a fund
to balance McCarter Auction in months when business expenses were greater than income.
Upon a through review of the testimony and financial evidence, we conclude that
Wife failed to demonstrate that Husband had spent funds in any way that would have been
atypical during the parties’ marriage. We stress that once a pattern of spending has been
established as typical during the marriage, a trial court is not to consider it as dissipation. See
Altman, 181 S.W.3d at 683 n.5 (“It is unlikely that expenditures that were typical or
commonplace during the marriage will constitute dissipation, especially when the other
spouse acquiesced in them.”). Moreover, throughout the extended divorce proceedings,
Husband was forthcoming with documentation and explanation of his expenditures. The
evidence does not preponderate against the trial court’s determination that Husband should
not be found as having caused dissipation of the marital estate.
In its Final Judgment, the trial court ordered Wife to “repay Husband one-half of the
funds she took from the $25,900.00 CD at Sevier County Bank and one-half of the Fishers
for Missions account at said bank in the amount of $27,000.00.” Wife does not dispute that
during the pendency of the divorce proceedings, she borrowed one-half of the parties’
$25,900.00 Sevier County Bank certificate of deposit (“CD”), or approximately $12,950.00,
and secured this loan with the other half of the CD, thus encumbering the entire CD. She
also does not dispute that she withdrew a total of approximately $27,000.00 from the parties’
“Fishers for Missions” account between the time of separation and February 2011. As the
trial court noted, these withdrawals left a balance in the Fishers for Missions account of
$78.64. The trial court specifically found in its Final Judgment that the funds borrowed
against the CD and withdrawn from the Fishers for Missions account were “appropriated by
Wife to her own use” and should be considered “in an effort to stay as close as possible to
an equal division of assets.”
Wife asserts that dissipation of marital assets should not be attributed to her because
when the parties separated, she was left without funds to pay her attorneys and to pay
monthly fees and property taxes incurred by the parties’ ownership of the Hilton Head
Condo. Wife had historically paid the Hilton Head Condo fees and expenses from a $500.00
weekly “allowance” given to her by Husband throughout the most recent years of the
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marriage. Wife also testified that she needed to occasionally hire people to help her tend the
farm on which the Home Parcel is located. Husband demonstrated that he continued to pay
Wife $500.00 a week throughout the pendency of the divorce proceedings with the exception
of approximately six weeks in 2011. The trial court formalized what had been Husband’s
voluntary payment of $500.00 weekly in temporary spousal support at the close of the fault-
based portion of the trial in December 2011.
Husband maintains that because Wife failed to establish documentation of her
expenditures, the trial court properly found her to have dissipated the funds borrowed from
the CD and withdrawn from the Fishers for Missions account. We agree. When questioned
regarding her expenditures, Wife was consistently evasive in her answers, referring to a
“plastic box” she had brought to the court that she said contained the entire “paper trail.” For
instance, when Wife was questioned on cross-examination regarding several checks written
on the Fishers for Missions account in amounts ranging from $500.00 to $1,450.00, the
following exchange ensued:
Counsel: When you cashed these checks, what did you do with the
money?
Wife: Paid bills. You should have the paper trail, again, to where it
went.
Counsel: Did you pay your bills in cash?
Wife: I’ll get the bills if you need them. You know, I’m just doing the
best I can with this.
Counsel: Looking at your paper trail, there’s many checks to cash but
there’s lots of checks to grocery stores and personal items. So
my question is very simple, did you pay your bills with cash or
not?
Wife: I just plain can’t remember and I’m not going to answer because
I just really don’t understand where you’re going, and I’m really
trying [hard] to answer you, but I think I have.
Counsel: You’re not going to answer my question?
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Wife: I think I have by saying that everything I have is in the box on
the right of your arm. Or I can retrieve copies of every receipt,
every bill at my house if you need that.
Counsel: I just need an answer to my question what did you do with all
the cash?
Wife: I think I’ve answered that.
Counsel: These checks you wrote on Fishers to Missions for thousands of
dollars, what did you do with that? That’s separate from your
account that we’ve been over, Exhibit No. 5. What did you do
with that cash? Do you want to see those?
Wife: Do you have copies of the checks to the Fishers for Missions in
there? Because that’s where it went.
Counsel: The checks you wrote on Fishers to Missions, Exhibit 5, for
thousands of dollars of cash, where did that cash go?
Wife: It depends on when it was written.
Counsel: So it could be any number of places?
Wife: Well, like – I don’t know how far back the date goes on what
you have. And again I’ll answer again that all the copies of the
checks and everything to the Fishers for Missions should be in
the box.
In its Final Judgment, the trial court noted its careful consideration of all financial
exhibits, including the records contained within Wife’s plastic box, admitted at trial as a
collective exhibit. Regarding these records, the court specifically found:
A review of Exh. #6, (Bank records in plastic box belonging to Wife) shows
nothing other than several accounts in Wife’s name, at least two of which were
checking accounts at Sevier County Bank. All these records covered years
prior to 2012. The Court has no way to know the amounts contained in said
accounts.
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The evidence does not preponderate against the trial court’s determination that the funds
borrowed against the CD and withdrawn from the Fishers for Missions account were
dissipated by Wife and should be considered in the equitable distribution of the marital
estate.
F. Overall Equitable Distribution of Marital Estate
Wife primarily grounds her contention that the trial court effected an inequitable
distribution of the marital property through her appellate arguments that the court erred in
its valuation and distribution of the assets analyzed above. Wife also argues that the trial
court improperly adopted Husband’s proposed distribution of marital assets over Wife’s
proposed distribution. According to the trial court’s valuation of the distribution, Husband
was awarded 51% of the marital estate, and Wife was awarded 49%. We conclude that this
overall distribution percentage ratio was equitable.
In its Final Judgment, the trial court distributed the marital estate according to the
following charts:
From the [parties’] marital estate, the Wife shall be awarded the
following:
Asset Value
1. Home and 20.76 acres (Exh. 21, Tract D) $460,000.00
2. Unimproved 22 acres (Exh. 21, Tract C) 280,641.68
3. Hilton Head Condo, South Carolina 225,000.00
4. Lot 18R & 19R (5.11 acres Nails Creek Rd.) 135,000.00
5. Lot 18 (Nails Creek Crossing) 35,000.00
6. Lots 1, 2, 3 & 4 (Woodlawn Cemetery) 2,640.00
7. 2003 (2004) Mitsubishi Montero 8,000.00
8. 2005 Chinook Motor Home w/ contents 66,200.00
9. Furniture and contents of marital home, except 15,000.00
personal items of Husband and the two children
10. Contents of Storage Unit, except personal items 2,000.00
of Husband and the two children
11. Wife’s rifle and silver dollar no value given
12. 8' Rocky Top black box trailer with contents 3,000.00
13. Troy Bilt Tiller and small John Deere riding mower 1,000.00
Total $1,233,481.68
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From the [parties’] marital estate, the Husband shall be awarded the
following:
Asset Value
1. Office and 11.74 acres (Exh. 21, Tract A) $480,000.00
2. 17.97 acres (Exh. 21, Tract B) 229,233.22
3. Grundy County Farm – 75 acres 121,917.00
4. Lot 12 Paradise Landing 110,000.00
5. Condo (138 Creekwood Way) 150,000.00
6. Condo (1908 Scarlett Meadows Dr.) 181,000.00
7. Condo (1912 Scarlett Meadows Dr.) 181,000.00
8. 100% of Equity Interest of business 125,000.00
SubTotal $1,578,150.22
Less Condo Debt -452,467.00
Net value of real estate and McCarter Auction, Inc. $1,125,683.22
9. 1999 Chinook 21' Motor Home with contents 11,620.00
10. 2004 GMC 1500 Pickup 11,575.00
11. 18' G-3 John Boat, motor & fishing equipment 8,000.00
12. IRA Foster Investments (Husband’s name) 16,079.96
13. American General Surrender Value 4,240.91
14. Furniture & contents of condo (1912) 6,000.00
15. Guns and coin collection, except Wife’s rifle $ 6,000.00
and silver dollar
Total $1,189,199.09
The [parties’] personal checking accounts in their respective separate
names will be awarded to them individually. Husband’s account at MNB was
submitted at $6,224.25. Wife’s account at Sevier County Bank was not shown
with an amount.
...
From the [parties’] marital estate, Husband and Wife shall each be
awarded one-half of the following:
Asset Value
1. 6200 MNB shares $ 8,122.00
2. IRA Foster Investments (Wife’s name) 5,005.00
3. SEP Retirement Account (Husband’s name) 410,686.42
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4. Annuity TN Farmers Life (Husband’s name) 4,061.00
5. Prudential IRA (Husband’s name) 11,688.64
6. SEP IRA Foster Investments (Husband’s name) 10,149.07
7. Great Day Investments Money Market, MNB 92,750.70
8. Sevier County Bank–Joint Checking 500.00
9. Citizens National Bank, Market & Savings Acct. 4,320.00
10. MNB Balance on Money Market 4,500.00
11. MNB Great Day Investments 3,341.20
12. MNB Fairgarden Farms 5,159.90
13. MNB McCarter Real Estate 108.08
14. MNB Special Utilities 1,460.41
The total of the above “somewhat” liquid assets is $561,852.92.4 One-
half of this amount is $280,926.46. These figures are not to be relied upon as
being accurate, since the Court has no way of knowing the correct amounts as
of December 31, 2012. It is the [Court’s] intent to equally divide these 14
items according to their actual value on the date of this Final Judgment.
The parties subsequently stipulated to the amount of funds as of December 31, 2012, in the
accounts they were ordered to divide equally. These stipulated amounts totaled $546,462.28
with each resultant one-half share totaling $273,231.14, or $7,695.32 less than the trial
court’s original estimate. In addition, the trial court ordered that the proceeds from the 2011
and 2012 yearling cattle sales, $7,658.00 and $4,950.90 respectively, be divided equally
between the parties, resulting in a $6,304.45 award to each party.
In total, the trial court valued the parties’ respective net assets upon distribution as
follows:
Wife’s Net Assets
Assets awarded entirely: $1,233,481.68
Half-share of stipulated accounts: 273,231.14
Half-share of 2011 & 2012 Cattle Sales 6,304.45
Total: $1,513,017.27
Percentage of Net Marital Estate: 49%
4
The trial court appears to have made a slight error in calculation as this total would be $561,852.42.
Because the parties subsequently stipulated to different account balances, this error in no way affects our
analysis.
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Husband’s Net Assets
Assets awarded entirely: $1,189,199.09
Half-share of stipulated accounts: 273,231.14
Personal Banking Account: 6,224.25
Farm Equipment: 77,491.00
Half-share of 2011 & 2012 Cattle Sales 6,304.45
Total: $1,552,449.93
Percentage of Net Marital Estate: 51%
According to the trial court’s valuation, it thus distributed the marital estate nearly equally,
with 49% awarded to Wife and 51% awarded to Husband. The court subsequently amended
its Final Judgment to clarify that the parties’ remaining cattle were awarded to Husband.
Considering the value of approximately $15,000.00 assigned to the remaining cattle by both
parties in their respective distribution proposals, we determine that the total percentage of net
marital assets awarded to Husband remains in the 51% range.
As to debts, with Husband agreeing to pay a $35,000.00 business line of credit and
any debts encumbering the Sevier County real property, the trial court ordered him to do so.
Wife had testified that during the pendency of the divorce proceedings, she borrowed
$20,000.00 against the 2005 Chinook Motor Home. The court awarded this motor home to
Wife and allocated the debt to her. As noted above, the court also required Wife to pay
Husband one-half of the funds she had borrowed against the Sevier County Bank CD and
one-half of the funds she had withdrawn from the Fishers for Missions account.
As recognized above, “[t]his Court gives great weight to the decisions of the trial
court in dividing marital assets and ‘we are disinclined to disturb the trial court’s decision
unless the distribution lacks proper evidentiary support or results in some error of law or
misapplication of statutory requirements and procedures.’” See Keyt, 244 S.W.3d at 327
(quoting Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996)). This Court has
also previously elucidated:
The approach to dividing a marital estate should not be mechanical, but
rather should entail carefully weighing the relevant factors in Tenn. Code Ann.
§ 36-4-121(c) in light of the evidence that the parties have presented. Trial
courts have broad discretion in fashioning an equitable division of marital
property, and appellate courts must accord great weight to a trial court’s
division of marital property. Accordingly, it is not our role to tweak the
manner in which a trial court has divided the marital property. Rather, our
role is to determine whether the trial court applied the correct legal standards,
whether the manner in which the trial court weighed the factors in Tenn. Code
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Ann. § 36-4-121(c) is consistent with logic and reason, and whether the trial
court’s division of the marital property is equitable.
Owens v. Owens, 241 S.W.3d 478, 490 (Tenn. Ct. App. 2007) (internal citations omitted);
see also Payne v. Payne, No. E2006-02467-COA-R3-CV, 2007 WL 2668588 at *4 (Tenn.
Ct. App. Sep. 12, 2007) (“The division of the estate is not rendered inequitable simply
because it is not mathematically equal, or because each party did not receive a share of every
item of marital property.”) (internal citations omitted).
In its Final Judgment, the trial court summarized its rationale for distributing the
marital estate as equally as possible in relevant part as follows:
This is a thirty-six (36) year marriage and both parties have contributed
to the acquisition of their estate in such ways as to place each of them on equal
footing with the other in dividing their property. Husband did make two poor
investments, which at the time may have seemed to be good investments.
Husband will not be penalized for these ultimate bad deals. Neither party
began this marriage with any assets to speak of, other than the Husband’s
separate property in Grundy County acquired through inheritance. Neither
party is in the best of health, but both are capable of earning an income,
Husband more so than Wife. Husband is 59 years old and Wife 60, with six
months difference in their ages. As indicated above, the Husband is in a much
better position to earn money than the Wife, but subject to those health
conditions he has. Wife is capable of working and earning money, but it most
likely would be meager and her employability for a good paying job would be
poor. This of course would be true for Husband if he were to attempt to find
employment in anything other than real estate and auction business. Following
the division of the marital estate, each party should have the same ability to
acquire future capital and income by using the assets they will acquire as a
result of this litigation. Both parties are nearing the age requirement as to
entitlement to social security benefits.
Upon a thorough review of the record, we conclude that the preponderance of the
evidence supports the trial court’s equitable division of the marital estate, particularly
considering the court’s award to Wife of alimony in futuro. See Tenn. Code Ann. § 36-5-
121(i)(8) (providing that when determining the nature and amount of an alimony award, the
trial court should consider the “provisions made with regard to the marital property, as
defined in § 36-4-121”). We further conclude that the percentages calculated and established
based on the trial court’s order support such equitable division of assets.
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V. Alimony
A. Alimony in Futuro
Wife contends that based on the statutory factors provided in Tennessee Code
Annotated § 36-5-121(i), the trial court erred by awarding her an insufficient amount of
alimony in futuro. The court awarded Wife the amount of $500.00 weekly, or $2,166.67
monthly, until her death, remarriage, or cohabitation. Wife had requested alimony in futuro
in the amount of $14,200.00 monthly. Husband contends that the amount of alimony
awarded by the trial court is excessive because it is beyond Husband’s ability to pay and will
cause Wife to become less self-sufficient rather than more. We conclude that the trial court
did not err in its award to Wife of alimony in futuro in the amount of $500.00 weekly.
Tennessee law recognizes four types of spousal support: (1) alimony in futuro, also
known as periodic alimony; (2) alimony in solido, also known as lump-sum alimony; (3)
rehabilitative alimony; and (4) transitional alimony. Tenn. Code Ann. § 36-5-121(d) (Supp.
2013); Mayfield, 395 S.W.3d at 115. Our statutory scheme indicates a legislative preference
favoring the short-term forms of spousal support, rehabilitative and transitional alimony, over
the long-term types of support, alimony in futuro and alimony in solido. See Tenn. Code
Ann. § 36-5-121(d)(2)-(3); Mayfield, 395 S.W.3d at 115; Riggs v. Riggs, 250 S.W.3d 453,
456 (Tenn. Ct. App. 2007). Alimony in futuro, at issue in the case at bar, may be appropriate,
however, when rehabilitation of the economically disadvantaged spouse is not feasible. See
Tenn. Code Ann. § 36-5-121(d)(4). Tennessee Code Annotated § 36-5-121(f)(1) further
provides:
Alimony in futuro, also known as periodic alimony, is a payment of
support and maintenance on a long term basis or until death or remarriage of
the recipient. Such alimony may be awarded when the court finds that there
is relative economic disadvantage and that rehabilitation is not feasible,
meaning that the disadvantaged spouse is unable to achieve, with reasonable
effort, an earning capacity that will permit the spouse’s standard of living after
the divorce to be reasonably comparable to the standard of living enjoyed
during the marriage, or to the post-divorce standard of living expected to be
available to the other spouse, considering the relevant statutory factors and the
equities between the parties.
It is well settled that “trial courts in Tennessee have broad discretion to determine
whether spousal support is needed and, if so, to determine the nature, amount, and duration
of the award.” Mayfield, 395 S.W.3d at 114; see also Fickle v. Fickle, 287 S.W.3d 723, 736
(Tenn. Ct. App. 2008). Tennessee Code Annotated § 36-5-121(i) (Supp. 2013) provides that
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when determining the nature and amount of an alimony award, the trial court should consider
all relevant factors, including:
(1) 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;
(2) 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 earnings capacity to a reasonable level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited to, physical
disability or incapacity due to a chronic debilitating disease;
(6) 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;
(7) The separate assets of each party, both real and personal, tangible and
intangible;
(8) The provisions made with regard to the marital property, as defined in §
36-4-121;
(9) The standard of living of the parties established during the marriage;
(10) 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;
(11) The relative fault of the parties, in cases where the court, in its discretion,
deems it appropriate to do so; and
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(12) Such other factors, including the tax consequences to each party, as are
necessary to consider the equities between the parties.
“Although each of these factors must be considered when relevant to the parties’
circumstances, ‘the two that are considered the most important are the disadvantaged
spouse’s need and the obligor spouse’s ability to pay.’” Gonsewski, 350 S.W.3d at 110
(quoting Riggs, 250 S.W.3d at 457).
In its Final Judgment, the trial court made the following factual findings in relevant
part:
The Court will now address the issue of alimony. Generally speaking,
when a spouse has no recent history of employment and would have difficulty
finding suitable employment, alimony is proper. Of course the paying party
must have the ability to pay. Both parties, as a result of this litigation have
substantial assets. The Court has given consideration to all the factors and
refers to the Court’s comments in Section 4 above. I might add that there is
no concrete evidence in the record as to any adverse mental condition of either
party, even though this has been an extremely stressful situation for both
parties. Their obligations and needs are about the same. Husband’s income
has been steadily decreasing for the last five (5) years and has gone from
$322,742.00 in 2007 to $62,610 in 2011, and the balance sheet for McCarter
Auction, Inc. shows a negative net income as of March 31, 2012. See Exh.
#24. The economy has had a devastating [effect] on the auction business as
shown by the testimony of Husband. These parties are both fortunate in
having access to retirement plans and will soon be able to apply for social
security benefits. Their standard of living cannot be maintained. Wife has
submitted a monthly expense affidavit totaling $14,137.00. It was admitted
that the figures used were not based on actual expenses and were projections.
Well, this admission destroys the reliability of the statement, and the Court
wishes that it had not been sworn to. Items such as Mission Trips – $4167.00,
Condo upkeep – $1250.00, if omitted, would reduce the amount tremendously.
Monthly upkeep of a Hilton Head Condo may be something that is cost
prohibitive. Same is true as to Mission Trips. Also the Court cannot overlook
the fact that the Wife stated in her Petition for Temporary Spousal Support,
filed on Nov. 1, 2011 that her needed support would “be in the approximate
amount of minimally $5,000 a monthly.” This is just another reason for the
Court to be unable to give credibility to a person who is playing fast and loose
with the Court. At this time, the Court can do no more than continue alimony
at the rate of $500.00 per week, to be paid monthly beginning January 1, 2013,
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in the amount of $2166.67. This will be subject to modification and will
terminate upon the death, remarriage, or cohabiting with a person of the
opposite sex.
We determine that the evidence preponderates in favor of these factual findings. As
the court observed in its summary of the parties’ status, both have attained an age when it
may be difficult for them to obtain new employment, particularly in an unfamiliar field or
industry. Husband is the more advantaged of the two in terms of future opportunities to earn
money through his labor because he is a successful business owner and licensed professional.
He is also, however, responsible for maintaining a viable business while facing a decreased
demand for auction sales and his own serious health concerns. In distributing the marital
estate, the trial court specifically found that “each party should have the same ability to
acquire future capital and income by using the assets they will acquire as a result of this
litigation.” The court attempted to distribute the marital property so as to facilitate each
party’s potential to earn income from the property awarded.
As to the trial court’s finding that Wife’s claimed expenses were projected rather than
realized, this became evident when Wife was questioned regarding her expense statement at
trial. Wife was consistently unable to verify the expense amounts she had sworn to in her
affidavit, and she had difficulty explaining how she arrived at the specific amounts.
Considering the statutory factors and the broad discretion of the trial court, we conclude that
the trial court did not abuse its discretion in awarding alimony in futuro to Wife in the
amount of $500.00 weekly.
B. Selected Litigation Expenses and Attorney’s Fees
We also address in this section Wife’s assertion that the trial court erred by allocating
the debt incurred when, pursuant to the trial court’s order, the parties procured a loan so that
Wife could pay the funds toward her litigation expenses and attorney’s fees. Because
Husband eventually repaid the loan with interest, in a total amount of $27,951.79, the court
required Wife to repay Husband this amount. In addition, Wife argues that the court erred
by ordering her to assume responsibility for a $26,548.00 invoice from the accounting firm
of Coulter & Justus for Ms. Harwell’s services.
We determine these allocations of responsibility to be an allocation of Wife’s
litigation expenses and attorney’s fees, rather than an allocation of marital debt. An award
of litigation expenses and attorney’s fees is fundamentally an award of alimony in solido.
See Fox v. Fox, 657 S.W.2d 747, 749 (Tenn. 1983) (“If a spouse does not have separate
property of her own which is adequate to defray the expenses of suit, certainly she should not
be denied access to the courts because she is unable to procure counsel.”); Herrera v.
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Herrera, 944 S.W.2d 379, 390 (Tenn. Ct. App. 1996) (considering the trial court’s award of
attorney’s fees and related expenses as an additional award of alimony in solido). The trial
court’s decision regarding litigation expenses and attorney’s fees in a divorce proceeding is
within the sound discretion of the trial court and will not be disturbed upon appeal unless the
evidence preponderates against it. Storey v. Storey, 835 S.W.2d 593, 597 Tenn. Ct. App.
1992).
In determining Wife to be responsible for the fees at issue, the trial court specifically
found in pertinent part:
The record reflects that Husband paid his first attorneys $90,000.00.
It is not known what the fee of his present attorney is. Husband has paid all
Court Reporting expenses of $5,709.86, through a certain date. Woodford &
Asso. fee of $15,100.00, Trinity Valuation Consulting [Group’s] fee of
$7,500.00, and Jeff Sims’ fee of $500 for farm equipment appraisal have all
been paid by Husband.
It appears from Exh. #48, that Wife has paid her last attorney
$28,000.00 and still owes him $44,338.30 through May 2, 2012. A lien is
imposed on [Wife’s] property to secure the payment of this fee balance.
Each party is responsible for the payment of their respective attorneys’
fees. Husband will be relieved from any obligation on the $25,000.00 note he
signed with Wife for a payment to her present attorney. The parties will be
equally responsible for all court reporter fees, the court costs, Jeff Sims’
appraisal, Woodford & Asso. fee, Trinity Valuation Consulting [Group’s] fee,
the S.C. law suit expense, and the D.W. Dodgen fee of $744.00. The fee to
Coulter & Justus for $26,548 will be paid by Wife, because it was an
unnecessary expense, ill advised, shockingly expensive and designed to assist
Wife in matters other than involved in this case.
Regarding the $26,548.00 in fees Wife incurred with Coulter and Justus for Ms.
Harwell’s services, Ms. Harwell testified that in addition to reviewing Mr. Fleming’s
valuation report of McCarter Auction, she spent approximately fifty hours meeting with
Wife, at a billing rate of $250.00 per hour, to develop Wife’s proposal for equitable
distribution of the marital estate. At the time Ms. Harwell rendered this testimony in April
2012, Wife had not agreed to allow Ms. Harwell to “release” her proposal. It was only after
further consultation with Ms. Harwell that Wife presented her proposal at trial on May 3,
2012.
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In contrast, Husband presented an advance estimate from Mr. Fleming’s firm in the
amount of $7,500.00 for completion of the valuation report, and the trial court approved this
fee as reasonable in an order entered January 13, 2012. In the same order, the trial court gave
Wife the option of submitting to the court a cost estimate from an alternative business
valuator provided the valuation could still be completed for $7,500.00 or less. Wife instead
presented the court with a preliminary invoice from Colter and Justus in the amount of
$20,548.00 through Ms. Harwell’s testimony in April 2012. Wife subsequently presented
the court with the full invoice in the amount of $26,548.00 following Ms. Harwell’s
testimony in May 2012. We determine that the trial court did not abuse its discretion in
allocating sole responsibility to Wife for the Colter and Justus invoice and for the previous
$25,000.00 loan that Wife applied to litigation expenses and attorney’s fees. Wife was
awarded sufficient assets in the property division from which to pay the fees at issue.
VI. Denial of Motions for Recusal
Wife contends that the trial court erred by denying her multiple motions requesting
the judge’s recusal. Wife particularly takes issue with the trial court’s decision to proceed
with trial in her absence on April 19, 2012, and she asserts that certain comments made by
the judge during the proceedings as a whole were illustrative of bias against Wife. Husband
asserts that the judge remained fair and impartial throughout the divorce proceedings. We
conclude that the trial court did not abuse its discretion in denying Wife’s motions for
recusal.
The grant or denial of a motion for recusal “‘rests in the sound discretion of the trial
judge and should not be reversed on appeal unless the record reveals a clear abuse of that
discretion.’” Moody v. Hutchison, 247 S.W.3d 187, 202 (Tenn. Ct. App. 2007) (quoting Irvin
v. Johnson, No. 01-A-01-9708-CV-00427, 1998 WL 382200 at *2 (Tenn. Ct. App. July 10,
1998)) (internal citation omitted). As our Supreme Court has explained:
Tennessee Supreme Court Rule 10, Canon 3(E)(1) states, “A judge shall
disqualify himself or herself in a proceeding in which the judge’s impartiality
might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party’s
lawyer . . . .”5 We have held that a recusal motion should be granted when “the
judge has any doubt as to his or her ability to preside impartially in the case”
or “‘when a person of ordinary prudence in the judge’s position, knowing all
of the facts known to the judge, would find a reasonable basis for questioning
the judge’s impartiality.’” Davis [v. Liberty Mut. Ins. Co.], 38 S.W.3d [560,]
5
Effective July 1, 2012, this provision is located within Tenn. Sup. Ct. R. 10, Canon 2.11(A)(1).
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564-65 [(Tenn. 2001)] (quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn.
Crim. App. 1994)). Even if a judge believes he can be fair and impartial, the
judge should disqualify himself when “‘the judge’s impartiality might be
reasonably questioned’” because “the appearance of bias is as injurious to the
integrity of the judicial system as actual bias.” Id. (quoting Tenn. Sup. Ct. R.
10, Canon 3(E)(1)).
Bean v. Bailey, 280 S.W.3d 798, 805 (Tenn. 2009); see also Malmquist v. Malmquist, 415
S.W.3d 826, 838-39 (Tenn. Ct. App. 2011). “Adverse rulings and ‘the mere fact that a
witness takes offense at the court’s assessment of the witness,’ do not provide grounds for
recusal, however, in light of the ‘adversarial nature of litigation.’” Watson v. City of Jackson,
___ S.W.3d ___, No. W2014-00100-COA-T10B-CV, 2014 WL 575915 at *9 (Tenn. Ct.
App. Feb. 13, 2014) (quoting Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 565 (Tenn.
2001)).
The instant action originally came before Judge Richard R. Vance, who subsequently
entered a recusal, sua sponte, “for good and sufficient cause” in an order entered August 12,
2010. The case was reassigned to Judge Ben W. Hooper, II, on August 19, 2010. Through
his former counsel, Husband filed a motion for recusal on October 11, 2011, averring that
the court’s grant to Wife of a continuance on October 3, 2011, evinced a pattern of delay that
appeared designed to “punish” Husband for seeking a divorce. Wife subsequently filed a
response, stating the following in pertinent part:
1. There is no allegation of any judicial impropriety.
2. There is no suggestion of a violation of any of the [canons] of
judicial ethics.
3. The court on October 3, 2011 allowed the case to be continued
for a variety of reasons which he did in a Memorandum
Opinion.
4. The Motion to Recuse was done solely and only for the purpose
of delaying the orderly progress of this court.
If the court was required to recuse itself on any adverse ruling, against
one side or the other, the court would never be allowed to finish any case.
The trial court denied Husband’s motion for recusal in an order entered November 1, 2011.
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Wife filed her first motion requesting the judge’s recusal on December 6, 2011. She
subsequently filed a motion for recusal on each of the following dates: January 18, 2012
(within motion to alter or amend the judgment); March 9, 2012; May 24, 2012 (within post-
trial brief); and January 25, 2013 (within motion for new trial). Each time the trial court
denied Wife’s successive motions for recusal, it referenced its initial memorandum opinion
denying Husband’s previous recusal motion and incorporated its rationale for declining to
recuse, complete with citations to legal authority. In sum, the trial court repeatedly
emphasized that the judge harbored no prejudice or bias toward either party. In denying
Wife’s first motion for recusal during the opening day of trial on December 7, 2011, the trial
court responded to Wife’s allegation that the court appeared to be under a “mysterious
pressure” to resolve the case by summarizing the case’s procedural history to that point and
stating the following:
All of this is part of the pressure the Court has mentioned in trying to get this
case resolved, not to mention the Court’s absolute duty to try cases and dispose
of them as expeditiously as possible. Protracted litigation is unnecessary in
most cases, and it’s cost prohibitive to the parties. The final part of the
pressure or rather the mysterious pressure is the Court’s interest in trying to
avoid the loss of respect by the litigants of our system of justice. Yes, pressure
but not prejudice.
The fault-based portion of the trial concluded on December 8, 2011, with the trial
court granting a divorce to both parties in its order entered January 6, 2012. Thereafter, Wife
filed four motions for continuance between entry of the order granting a divorce and the date
the property division portion of the trial began on April 19, 2012. The first of these motions,
filed February 10, 2012, was due to Wife’s counsel’s illness, and the trial court granted the
continuance with no objection from Husband. The next two motions for continuance, filed
February 23 and March 20 respectively, averred that Wife was too ill to appear in court and
were opposed by Husband. The trial court granted both of these motions, but in the second
instance and upon the filing of a note from Wife’s doctor that was difficult to read, the court
ordered Wife to provide a legible note from her doctor stating whether in his opinion Wife
had been too ill on the two previous trial dates to appear in court. Wife’s doctor
subsequently filed a letter, dated April 12, 2012, noting that Wife suffered from sinusitis and
tendinitis but stating in pertinent part: “As far as addressing the issue of Ms. McCarter[‘s]
capability to attend court, in Dr. Israel[‘s] medical opinion, she was well enough to attend
both her scheduled court dates.”
On April 18, 2012, one day before trial was set, Wife filed another motion for
continuance, averring that she was too physically ill to appear. During a telephonic
conference with counsel for both parties participating, the trial court denied Wife’s motion
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and stated that trial would begin the next day. On April 19, 2012, Wife did not appear in
court, and her counsel renewed the motion to continue, questioning the veracity of the letter
from her doctor. The court found that Wife had failed to provide proof that she was too ill
to appear and that Wife had “by design done everything possible to keep this case from being
tried.” The court stated in pertinent part:
[T]oday with me finding that there has been a plan or scheme to keep this case
from going to trial, I cannot condone that. We will proceed today. I will give
you all time, one hour, or sooner, I hope, to give [Wife] the option of either
being here or if she prefers not to be present, she does not have to be here.
That will be her choice.
But the Court finds that there is nothing to convince me, even by as
much as a preponderance of the evidence that she’s too ill to appear. There is
nothing that would support that finding.
So we’re going to adjourn. It’s about ten o’clock. I will resume at
eleven o’clock. And if you all can get her here any quicker, let me know when
she arrives. Or if she decides not to come, we’re going to proceed.
Following a one-hour recess, Wife’s counsel announced that he had spoken with Wife
via telephone and that she maintained that she was too ill to appear. Wife’s counsel orally
moved for the judge to recuse himself. The court denied the motion. Wife’s counsel then
requested permission for an interlocutory appeal of the recusal denial, pursuant to Tennessee
Rule of Appellate Procedure Rule 9, and the trial court denied permission. As Wife’s
counsel requested additional time to consult with Wife, the trial court recessed from 11:20
a.m. to 1:00 p.m. Following this recess, the proceedings recommenced with Mr. Fleming’s
expert testimony and without Wife present.
The next day on April 20, 2012, Wife appeared in court with proceedings in progress
and the cross-examination of Husband about to begin. Wife’s counsel orally moved for a
continuance, which the trial court denied. Wife personally explained that she wanted her
“voice to be heard” and to “feel [her] best” when she appeared in court. The trial court
explained:
I have heard that, but again, we cannot accommodate people to be at
their very best when they come to Court or when they testify. I’m talking in
general terms. If you’re able to be here and participate, which you are, you’re
here. . . . If you will, please make yourself comfortable here and let’s continue
with this trial.
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Thereafter, Wife remained in court for the duration of the proceedings on April 20, 2012, and
appeared before the court on the closing day of trial, May 3, 2012.
On appeal, Wife argues that the trial court’s decision to proceed without Wife present
on April 19, 2012, was indicative of the court’s bias against Wife. We disagree. We
conclude that the evidence does not preponderate against the trial court’s finding that Wife
attempted to delay the divorce proceedings. We further conclude that the court offered ample
opportunity for Wife to appear. In addition, the record demonstrates that Wife was
represented by counsel throughout all aspects of the proceedings and was afforded full
opportunity to testify herself and, through counsel, to cross-examine all opposing witnesses.6
Upon our careful and thorough review of the record, including transcripts
memorializing five days of trial and multiple hearings, we discern no indication of bias or
prejudice expressed or implied by the judge. See, e.g., Watson, ___ S.W.3d at ___, 2014 WL
575915 at *13 (“Although we are cognizant of the fact that the trial judge declined to grant
any of [the appellant’s] pro se post-trial motions, it is well-settled that ‘[a]dverse rulings by
a trial judge . . . are not usually sufficient to establish bias.’” (quoting Ingram v. Sohr, No.
M2012-00782-COA-R3-CV, 2013 WL 3968155 at *31 (Tenn. Ct. App. July 31, 2013)).
Moreover, we conclude that the judge’s management of the proceedings and comments to
the litigants consistently demonstrated patience and dedication to fairness even when faced
with multiple procedural delays. See Malmquist, 415 S.W.3d at 840 (“The fact that [the trial
court judge] helmed this litigation, without apparent bias, even in the face of difficult
litigants and protracted litigation, supports his discretionary decision to remain on the case
to see it concluded.”). The trial court did not err by denying Wife’s motions for recusal.
VII. Conclusion
For the reasons stated above, we affirm the judgment of the trial court. This case is
remanded to the trial court for enforcement of the judgment and collection of costs below.
Costs on appeal are taxed to the appellant, Debra Lynn Walker McCarter.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
6
As to Wife’s related allegation that the trial court engaged in a “collegial conversation” with
Husband personally at the close of proceedings on December 8, 2011, over a proposed survey map, we
determine the allegation to be groundless as counsel for both parties were present and the court clearly
understood that the division drawn on the survey was a proposal only.
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