Li Huang Sullivan v. Eric Jason Sullivan ( 2019 )

10/04/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 14, 2019 Session
LI HUANG SULLIVAN v. ERIC JASON SULLIVAN
Appeal from the Chancery Court for Williamson County
No. 45851 James G. Martin, III, Judge
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No. M2018-01776-COA-R3-CV
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This appeal is from a final decree of divorce. The Husband challenges several of the trial
court’s rulings regarding the parenting plan, division of the marital estate, calculation of
child support, and denial of his motion to amend to file a counterclaim for alimony. For
the following reasons, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.
Stanley A. Kweller, Nashville, Tennessee, for the appellant, Eric Jason Sullivan.
Helen Sfikas Rogers, Siew-Ling Shea, and Gene F. Guerre, Nashville, Tennessee, for the
appellee, Li Huang Sullivan.
OPINION
I. FACTS & PROCEDURAL HISTORY
Li Huang Sullivan (“Wife”) and Eric Jason Sullivan (“Husband”) were married in
October 2005. They have two minor children, a seven-year-old daughter (“Daughter”)
and a five-year-old son (“Son”).1 Throughout most of the marriage, Wife worked as a
mortgage banker, and Husband worked as a nurse. The parties’ income varied during the
course of the marriage.
1
The ages noted are the ages of the children at the time the divorce complaint was filed. The
parties also adopted Wife’s nephew, who was an adult at the time of the divorce proceedings.
After eleven years of marriage, Wife filed a complaint for divorce in January
2017, alleging irreconcilable differences and inappropriate marital conduct. In March
2017, Husband filed an answer but did not assert a counterclaim. Wife subsequently filed
a motion for pendente lite “child and family support.” After a hearing, Husband was
ordered to pay “family support” in the amount of $1,000 per month, beginning August 1,
2017. The court further ordered that each party would be responsible for continuing to
pay his or her respective expenses, as listed on the exhibits they filed with the court.
However, the court declined to require Husband to pay any portion of the children’s
private school tuition and reserved the issue for the final hearing.2
Throughout the majority of 2017, the parties engaged in ongoing discovery and
filed several pretrial motions. Husband filed a motion for a temporary restraining order,
alleging that Wife was alienating him from the children.3 Subsequently, Wife filed a
motion for drug testing, alleging that Husband used illegal steroids. Wife also had a
subpoena issued requesting production of Husband’s pharmacy records.4 Husband then
filed a motion for a protective order and to quash the subpoena. However, he later
admitted that the motion was filed in an effort to prevent discovery of his dishonesty in
sworn statements made throughout the proceeding. The trial court entered an order in
November 2017, granting Wife’s motion for drug testing. In December 2017, the trial
court entered an order denying Husband’s motion to quash and temporary restraining
order.
In February 2018, Wife was permitted to amend her complaint to allege that
Husband committed adultery. Along with Wife’s amended complaint, she submitted a
proposed parenting plan. The plan suggested that she be designated as the primary
residential parent and receive 237 days of annual parenting time, and that Husband
receive 128 days.
Husband filed an amended answer to the amended complaint, but again asserted
no counterclaim. Husband admitted that he engaged in extramarital relations
approximately one year prior to the filing of the divorce. Shortly thereafter, Husband
filed a proposed permanent parenting plan. Husband’s plan proposed that he be
designated as the primary residential parent and receive 261 days of parenting time, and
that Wife receive 104 days.
On Thursday, March 29, 2018, the trial court held a pretrial conference. At that
time, the parties discussed the joint statement of assets and liabilities and the expectations
2
It is undisputed that the parties had agreed prior to the filing of the divorce that the children
would attend private school. The children had been attending private school since enrollment age.
3
Husband’s basis for a claim of alienation was Wife’s alleged failure to notify him regarding
activities for the children and that she had taken Daughter to a pediatrician without his knowledge.
4
Wife contends that the basis for the subpoena was due to finding drug paraphernalia in the
home.
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for the upcoming trial the following week. The next day, after the clerk’s office had
closed, Husband faxed an emergency motion for leave to file a counter-complaint.5
Husband requested that he be allowed to assert a claim for alimony.
Wife opposed Husband’s motion and filed a response and memorandum of law in
opposition. Husband’s motion was heard on the first day of trial.6 The trial court denied
Husband’s motion, finding inter alia that the “divorce had been pending for 15 months”
and “to allow Husband to amend his pleadings two days before trial would be unduly
prejudicial to Wife.” The court also approved a stipulation on assets belonging to third
parties and a stipulation of an amended joint statement of assets and liabilities, filed by
the parties. The parties agreed to the valuation of the parties’ assets and liabilities with
the exception of the marital home and certain vehicles owned by the parties. Although
the parties largely agreed on the valuation of their assets and liabilities, they did not agree
as to the equitable division of the marital estate.
The divorce was tried over five non-consecutive days. During the course of trial,
the court heard a substantial amount of testimony. The record contains over eight
hundred pages of testimony from various individuals, along with evidentiary depositions
and numerous exhibits. Much of the testimony focused on the care of the children, both
prior to and after the filing of the divorce.
Two months after the last date of trial, the court entered an interlocutory order,
finding that Husband engaged in inappropriate marital conduct and addressing the
division of assets and debts, along with interim parenting time for the parties.7 The stated
purpose of the interlocutory order was to allow the parties to “make plans for themselves
and their children,” while the court completed a comprehensive memorandum and order
that would address all issues. Shortly thereafter, an agreed order was entered modifying
the summer parenting time.
On July 11, 2018, the trial court entered a memorandum and order, containing
more than eighty pages, with detailed findings of facts and conclusions of law. The order
thoroughly discussed the testimony of various witnesses, the credibility of the parties, and
the concerns of the court.8 The court divided the parties’ assets and debts in a manner the
5
The “FILED” date on the motion indicates it was filed on March 29, 2018. However, the trial
court’s order from the April 2, 2018 hearing, the statements from Husband’s counsel at the hearing, and
the fax date at the top of the motion indicated it was filed on March 30, 2018.
6
The first day of trial was April 2, 2018, in accordance with a pretrial order entered on November
14, 2017.
7
Husband stipulated to the ground of adultery. He also stipulated to the ground of inappropriate
marital conduct, but only to the extent that adultery is inappropriate marital conduct.
8
We will further discuss the testimony of various witnesses and specific findings of the trial court
in conjunction with the specific issue raised.
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court deemed equitable. Wife was awarded $717,129.90 in marital assets and Husband
was awarded $591,904.17 in assets.
In formulating the parenting plan, the court analyzed the evidence and applicable
statutory factors. Wife was named the primary residential parent and granted sole
decision-making authority for the children regarding education, non-emergency health
care, and religious upbringing.9 Husband and Wife each had decision-making authority
for the children regarding extracurricular activities. The residential parenting schedule
provided for Husband to exercise parenting time with the children: (1) every other
weekend from 5:00 p.m. on Friday until 5:00 p.m. on Sunday;10 (2) 5:00 p.m. until 7:00
p.m. on Thursday following the weekend when he exercised parenting time and Tuesday
of the week that he did not exercise weekend visitation; (3) alternating holidays and
school breaks; and (4) alternate weeks during the summer, with Husband receiving the
first week of each summer. The plan allocated 269 days to Wife and 96 days to Husband.
Child support was calculated based upon the parties’ gross monthly income.
Included in the child support worksheet were work-related childcare expenses and
expenses for the children’s private education. The children had attended a private school
throughout the parties’ marriage. Daughter had a learning disability, along with other
diagnoses, which required special services to meet her educational needs. The trial court
ordered that Wife could choose the school she deemed appropriate for the children. Wife
elected to enroll Daughter in Currey Ingram Academy, and the cost for Daughter’s tuition
($41,397 annually) was included in the child support worksheet. Son attended Christ
Presbyterian Academy, where the tuition was $14,433 per year. Husband was ordered to
pay Wife $2,032.97 per month in child support. The child support calculation included
an $883.97 upward deviation for Husband, to reflect his nineteen percent (19%) pro rata
share for both children’s private education.
Wife requested an award of attorney’s fees, which was denied by the trial court.
After entry of the memorandum and order, both Husband and Wife filed motions to alter
or amend the order. Wife requested the court reconsider her request for attorney’s fees
and expenses. Husband requested modifications in his parenting time, child support, and
division of the marital assets and liabilities. The court entered an order denying both
parties’ motions to alter or amend. Husband timely filed a notice of appeal.
II. ISSUES PRESENTED
9
The parenting plan designates that Wife has decision making authority regarding religious
upbringing. However, in the decision making section of the permanent parenting plan, it also states:
“[e]ach parent may make decisions pertaining to religious upbringing when the children are with them
and in their care.”
10
The trial court also found that if Husband’s work schedule allowed, he was authorized to pick
up the children from school rather than waiting until 5:00 p.m.
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Husband presents the following issues, as we perceive them, for review on appeal:
1. Whether the trial court erred in determining that Wife should be designated the
primary residential parent;
a. Whether the trial court erred in awarding Husband less parenting time than
Wife suggested in her proposed permanent parenting plan;
b. Whether the trial court abused its discretion by awarding Husband less
parenting time as a form of punishment for Husband’s dishonesty;
2. Whether the trial court erred in determining the amount of child support awarded;
a. Whether the trial court erred in ordering that Husband pay a pro rata share
of the children’s “work-related childcare” and private educational expenses;
3. Whether the trial court erred in its division of marital assets;
4. Whether the trial court erred in denying Husband’s motion to amend to file a
counterclaim for alimony.
In the posture of appellee, Wife seeks an award of attorney’s fees for trial and on appeal.
For the following reasons, we affirm the decision of the chancery court.
III. DISCUSSION
A. Standard of Review
Generally, in non-jury cases, we review the trial court’s findings of fact de novo
with a presumption of correctness unless the evidence preponderates to the contrary.
Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013).
We review questions of law de novo, attaching no presumption of correctness to the trial
court’s legal conclusions. Armbrister, 414 S.W.3d at 692 (citing Kendrick v. Shoemake,
90 S.W.3d 566, 569 (Tenn. 2002)).
Notably, however, our specific standard of review depends, in large part, on the
issues that the parties have presented to this Court. Consequently, we will discuss each
applicable standard of review in correlation with the issue presented.
B. Permanent Parenting Plan
Husband raises several issues regarding the trial court’s formulation of the
permanent parenting plan. The Tennessee Supreme Court has repeatedly emphasized
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“the limited scope of review to be employed by an appellate court in reviewing a trial
court’s factual determinations in matters involving child custody and parenting plan
developments.” C.W.H. v. L.A.S., 538 S.W.3d 488, 495 (Tenn. 2017). The Court stated:
“the appropriate standard of ‘review of the trial court’s factual findings is de novo upon
the record, accompanied by a presumption of the correctness of the findings, unless the
preponderance of the evidence is otherwise.’” Id. (quoting Armbrister, 414 S.W.3d at
692-93). The Court reasoned that:
[T]rial courts are in a better position to observe the witnesses and assess
their credibility; therefore, trial courts enjoy broad discretion in formulating
parenting plans. [Armbrister, 414 S.W.3d] at 693 (citing Massey-Holt v.
Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007)). “Thus, determining the
details of parenting plans is ‘peculiarly within the broad discretion of the
trial judge.’” Id. (quoting Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn.
1988)). Appellate courts should not overturn a trial court’s decision merely
because reasonable minds could reach a different conclusion. Eldridge v.
Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).
Id. at 495. Furthermore, a trial court abuses its discretion when its ruling “‘falls outside
the spectrum of rulings that might reasonably result from an application of the correct
legal standards to the evidence found in the record.’” Armbrister, 414 S.W.3d at 693
(quoting Eldridge, 42 S.W.3d at 88).
Here, Husband argues that the court abused its discretion in naming Wife as the
primary residential parent and allocating him less parenting time than suggested by Wife.
The core of Husband’s argument is that the trial court made its decision to punish him for
testifying falsely throughout the proceedings.11 Respectfully, we find this argument
somewhat disingenuous. Husband does not cite any specific references to the record to
support that argument, but merely speculates that the trial court’s overall formulation of
the parenting plan served as a consequence for his dishonesty.12
It is apparent from the record that Husband and Wife cannot agree on how best to
parent the children. The parents agreed at trial that the court must designate a “captain of
the ship.” Therefore, the court was tasked with the responsibility of formulating a
permanent parenting plan. Creating a parenting plan “is one of the most important
responsibilities courts have.” Armbrister, 414 S.W.3d at 696. As explained by this Court,
11
Husband admitted at trial that he lied several times under oath because he was fearful of the
impact that the truth regarding some of his behaviors would have on the case.
12
Rule 6 of the Tennessee Rules of the Court of Appeals requires an appellate brief to contain a
written argument in regard to each issue on appeal, with a statement of the alleged erroneous action of the
trial court, as well as a specific reference to the record where such action is recorded.
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“[t]rial courts must be able to exercise broad discretion in these matters.” Gaskill v.
Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996).
i. Primary Residential Parent and Residential Schedule
In the development of a parenting plan, the court is required to determine a
residential schedule, which designates a primary residential parent. Tenn. Code Ann. §
36-6-402(5). The trial court must consider the factors listed in Tennessee Code
Annotated section 36-6-106(a)(1)-(15) to ascertain the best interest of the child, in
determining a residential schedule and naming a primary residential parent.13 See Tenn.
Code Ann. § 36-6-404(b); Tenn. Code Ann. § 36-6-106(a). The factors set forth in
Tennessee Code Annotated section 36-6-106(a), are as follows:
(1) The strength, nature, and stability of the child’s relationship with each
parent, including whether one (1) parent has performed the majority of
parenting responsibilities relating to the daily needs of the child;
(2) Each parent’s or caregiver’s past and potential for future performance of
parenting responsibilities, including the willingness and ability of each of
the parents and caregivers to facilitate and encourage a close and continuing
parent-child relationship between the child and both of the child’s parents,
consistent with the best interest of the child. In determining the willingness
of each of the parents and caregivers to facilitate and encourage a close and
continuing parent-child relationship between the child and both of the
child’s parents, the court shall consider the likelihood of each parent and
caregiver to honor and facilitate court ordered parenting arrangements and
rights, and the court shall further consider any history of either parent or
any caregiver denying parenting time to either parent in violation of a court
order;
(3) Refusal to attend a court ordered parent education seminar may be
considered by the court as a lack of good faith effort in these proceedings;
(4) The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care;
13
The court shall consider the factors found in section 36-6-106(a)(1)-(15), if “the limitations of
§ 36-6-406 are not dispositive of the child’s residential schedule.” Tenn. Code Ann. § 36-6-406(b). The
trial court ruled that § 36-6-406 did not apply to the case. Additionally, Husband and Wife do not argue
that any restrictions in § 36-6-406 are applicable to the facts of this case.
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(5) The degree to which a parent has been the primary caregiver, defined as
the parent who has taken the greater responsibility for performing parental
responsibilities;
(6) The love, affection, and emotional ties existing between each parent and
the child;
(7) The emotional needs and developmental level of the child;
(8) The moral, physical, mental and emotional fitness of each parent as it
relates to their ability to parent the child. . . . ;
(9) The child’s interaction and interrelationships with siblings, other
relatives and step-relatives, and mentors, as well as the child’s involvement
with the child's physical surroundings, school, or other significant
activities;
(10) The importance of continuity in the child’s life and the length of time
the child has lived in a stable, satisfactory environment;
(11) Evidence of physical or emotional abuse to the child, to the other
parent or to any other person. . . . ;
(12) The character and behavior of any other person who resides in or
frequents the home of a parent and such person's interactions with the child;
(13) The reasonable preference of the child if twelve (12) years of age or
older. The court may hear the preference of a younger child upon request.
The preference of older children should normally be given greater weight
than those of younger children;
(14) Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules; and
(15) Any other factors deemed relevant by the court.
Tenn. Code Ann. § 36-6-106(a)(1)-(15). In determining a child’s best interest, it is
incumbent upon the court to fashion a parenting plan that allows each parent to enjoy the
maximum participation possible in the life of the child consistent with the applicable
statutory factors. Tenn. Code Ann. § 36-6-106(a).
Turning back to the case before us, the record reveals that the trial court conducted
a thorough and unbiased assessment of the evidence presented. In designating Wife as the
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primary residential parent and allocating parenting time to each party, the trial court
considered the applicable statutory factors, ruling as follows:
1. The evidence establishes that both parents have a strong, loving, and
stable relationship with the children. Since shortly after [Son’s] birth, the
parents have engaged the services of a nanny who has provided for the
children’s day-to-day needs from the time they get up in the morning until
one or both parents arrive in the evening. The nanny provided services
Monday through Friday each week, during vacations, and other times when
necessary. Both parents were engaged in the decision to employ their first
nanny, terminate the services of their first nanny, and employ their second
nanny, who currently provides for the children on a day-to-day basis. Prior
to the filing of the complaint for divorce, when the nanny needed to consult
with the parents, Mr. Sullivan was available more often because of his work
schedule. The same is true when there was a need to communicate with a
teacher or a health care provider. Since January 2017, both parents have
been fully engaged in communicating with the children’s nanny, their
teachers, and health care providers.
Prior to January 2017, Ms. Sullivan often arrived home after the
nanny departed, which was generally at 6:00 p.m. Mr. Sullivan would
provide care for the children until Ms. Sullivan’s arrival. Both parties
provided care for the children on weekends. On occasion, however, Ms.
Sullivan worked from home and Mr. Sullivan would be responsible for
caring for the children during that time if the nanny was not present or
available. Ms. Sullivan and the nanny provided care for the children when
Mr. Sullivan traveled.
2. Both parents have demonstrated a history of performing parental
responsibilities. They mutually decided to provide a private education for
their children. They mutually agreed on daycare, pre-kindergarten,
kindergarten, and elementary school facilities. When it became evident that
[Daughter] was not able to cope with the demands of the regular classroom
environment at Christ Presbyterian Academy, the parties disagreed on her
placement. [Daughter] was tested both before and during the divorce
proceedings. Based on the results of the testing, the recommendations of
the teachers, and each parent’s investigation, Ms. Sullivan decided to enroll
[Daughter] in the Foundation Christian Academy home school program and
the i-Hope Tutorial Program. Mr. Sullivan preferred to enroll [Daughter] at
Grassland Elementary School. Mr. Sullivan acknowledges that part of his
motivation is the cost associated with continuing [Daughter’s] education at
Foundation Christian Academy and i-Hope. Similarly, both parties visited
Curry-Ingram Academy [sic], a school designed to meet the individual
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needs of special education students. At the time of trial, neither party had
made any decision as to whether enrolling [Daughter] at Curry-Ingram
Academy [sic] would be beneficial. Mr. Sullivan continued to advocate for
Grassland Elementary School, a school that is part of the Williamson
County School district.
Selecting an educational institution for each child, when it is within
the parents’ ability to pay the cost of that institution, is one of the most
important exercises in parental responsibility. It is evident to the Court that
Ms. Sullivan is willing to work as hard as it takes to provide for [Daughter]
and [Son’s] education. On the other hand, Mr. Sullivan is content with
pursuing his current occupation, which also affords him the luxury of
working out two hours a day in the gym.
Further, the Court is required to look at the willingness of each
parent to facilitate and encourage a close and continuing parent-child
relationship between the other parent and the children. There is no evidence
that Ms. Sullivan has done anything prior to or since the divorce that would
disrupt the relationship between Mr. Sullivan and the children. In fact, the
evidence establishes that after Ms. Sullivan filed her Complaint for divorce,
Mr. Sullivan turned the parent-child relationship into a contest between
himself and Ms. Sullivan. He has needlessly involved law enforcement in
two incidents at the parties’ home, both of which frightened the children. In
addition, Mr. Sullivan engaged in the childish conduct of videotaping
[Daughter] while at the same time encouraging [Daughter] to falsely accuse
Ms. Sullivan of slapping her after the incident when [Daughter] poured
Sprite over her brother in the automobile on the way home. Further, Mr.
Sullivan complained to Ms. Stewart [Daughter’s tutor] about alleged
domestic violence while in front of [Daughter]. This was after he already
told [Daughter] and [Son] that Ms. Sullivan was “dangerous” during the
course of the “Sprite” incident.
It was acknowledged at trial by the parties, the nannies, [Daughter’s]
teachers, and others that [Daughter] is not an honest child and for Mr.
Sullivan to encourage further dishonesty is of great concern to the Court.
Mr. Sullivan’s behavior is a detriment to the children’s relationship with
Ms. Sullivan. His dishonesty and his willingness to encourage the children
to be dishonest do not serve any purpose other than to promote his own
self-interest. It remains to be seen whether Mr. Sullivan will honor and
facilitate the Court-ordered parenting arrangements and rights. The Court
has full confidence that Ms. Sullivan will do so.
3. Both parties have attended the parent education seminar.
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4. Both parties have demonstrated a disposition in the past to [e]nsure that
[Daughter] and [Son] are well fed, well clothed, and are provided excellent
medical care, education, and other necessary care. The Court has full
confidence that Ms. Sullivan will continue to do so and believes that Mr.
Sullivan will do so, if it is within his chosen economic ability.
5. The parties have relied in large measure on their nanny to perform
parental responsibilities. Since the divorce proceedings began in January
2017, both parties have actively engaged with the nanny, the children’s
teachers, and the children’s health care providers. Prior to the institution of
divorce proceedings, Mr. Sullivan was more available than Ms. Sullivan
was when the need arose to address issues involving the children.
6. Both parties have strong love, affection, and emotional ties with the
children.
7. The evidence establishes that [Son] is a normal, well-developed child. He
is doing well in school. He participates in a number of extracurricular
activities. On the other hand, [Daughter] is severely challenged. She suffers
from ADHD and dyslexia. She cannot matriculate in a normal classroom.
She is overwhelmed by the stimuli she experiences in such a setting.
Most importantly, however, as the experts who have tested
[Daughter] have characterized it, [Daughter] is in great need of routine,
discipline, and consistency. The Court heavily relied on the reports and/or
the experts’ testimonies in coming to its conclusions regarding [Daughter’s]
education and the allocation of parenting time. The Court believes that a
consistent, stable routine is in [Daughter’s] best interest, especially during
the school year. Both parents recognize [Daughter’s] deficiencies.
However, the parents have very different views on how those deficiencies
should be addressed. Mr. Sullivan embraces the notion that [Daughter]
should be medicated. Ms. Sullivan opposes medication because of the side
effects that can result but will agree to the use of medication if
recommended by [Daughter’s] health care provider. The immediate and
future challenges for [Daughter] are significant. The Court finds that Ms.
Sullivan is better equipped to meet those challenges.
8. The Court is very concerned about Mr. Sullivan’s moral, mental, and
emotional fitness as it relates to his ability to parent the children. The
Court’s concern has nothing to do with Mr. Sullivan’s sexual orientation.
Throughout the course of the trial, Mr. Sullivan was very emotional. He
was emotional in discussing his dishonesty. He was emotional in discussing
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the children. Yet, Mr. Sullivan did not seem to engage in the same kind of
emotional struggle when he lied in his answers to interrogatories. He was
not concerned when he lied in his responses to questions at his deposition
or when he lied to his mother about his infidelity, and when he lied on
numerous occasions during his trial testimony. He was not bothered when
he engaged in sexual activity that might expose him or potentially expose
his wife to HIV by engaging in sexual relations with her without disclosing
his prior conduct. He did not fret when he started taking medication to
prevent HIV without disclosure to his wife or when he encouraged
[Daughter] to lie regarding her mother’s conduct when [Daughter] was
disciplined for pouring Sprite over her brother in her mother’s car. He
attempted to portray himself as a victim when he engaged law enforcement
at the parties’ home when Ms. Sullivan had done nothing to warrant
involvement by the police. He has also attempted to garner support from
third parties such as when Mr. Sullivan had the conversation in front of
[Daughter’s] tutor accusing Ms. Sullivan of being violent toward him. He
has exhibited controlling behaviors such as when he placed a tracking
device on his wife’s vehicle for several months for no discernible reason or
when he requested the children’s teachers forward all communications to
him while leaving Ms. Sullivan out of those same communications. Mr.
Sullivan has refused to correct the children’s bad behavior such as when he
allows [Daughter] to walk around the house naked and use the “F” word.
Further, it is concerning that Mr. Sullivan regularly went about the house
and slept with the children in nothing but a tight bikini type garment, and
only stopped the behavior after the counselor told him to stop.
The Court is also concerned by some of Mr. Sullivan’s other
behaviors. First, Mr. Sullivan kept his needles and illegal drugs in his
bathroom cabinet where the children could reach them and not put them in
the garage refrigerator as suggested by Ms. Sullivan. Second, he left his sex
toy where [Son] could find it and start playing with it. Third, Mr. Sullivan
watched sexually explicit movies easily accessible by the children on
Netflix. The foregoing evidence, together with the other evidence
introduced at trial, supports the conclusion that Mr. Sullivan has no moral
compass to aid him in his desire to be the primary residential parent and/or
role model for the parties’ children. There was no credible evidence of
similar complaints about Ms. Sullivan.
9. The evidence establishes that the relationship between [Daughter] and
[Son] is a fairly normal brother/sister relationship. The children have a
strong relationship with their paternal grandmother, Ms. Chambless. Ms.
Sullivan also has a strong relationship with Ms. Chambless. Each child has
a group of friends drawn from their school, neighborhood, and other
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activities. The Court anticipates that the children will continue with these
relationships.
10. The divorce has been disruptive to the children, as would normally be
expected. Once the parties physically separate, the Court anticipates further
disruption. Accordingly, it is incumbent on the Court to fashion a parenting
plan that will provide the children as much continuity as possible in relation
to their current living and educational circumstances.
11. The Court does not find that either child has been physically or
emotionally abused.
12. There is no evidence that the character or behavior of any person who
resides in or frequents the home of the parents, other than the parties’
nanny, has had any influence on the children. The Court does not find
either of the parties’ nannies has had a negative influence in the children.
13. Given the age of the children, this factor is not applicable.
14. Once Ms. Sullivan began her employment at CapStar on April 1, 2014,
her schedule became more flexible, albeit demanding. She has been able to
work in a high pressure, stressful environment and maintain a calm and
deliberate demeanor. However, Ms. Sullivan has worked long hours and
has often worked from home. Mr. Sullivan’s work has required that he
travel on occasion. He has been able to minimize his travel in the months
leading up to the divorce trial. Otherwise, Mr. Sullivan’s work schedule
affords him the opportunity to exercise at a gym approximately two hours
each day. The uncorroborated proof from Mr. Sullivan is that he has
received good reviews in his work performance. The nannies have taken the
children to visit Mr. Sullivan at the gym during the time that he was
exercising and Mr. Sullivan has taken the children to the gym with him on
occasion when he was exercising. He would leave them in the gym’s
daycare facility. The nannies have also taken the children to Ms. Sullivan’s
work place to visit with her on occasion during work hours. In fashioning
the parenting plan, the Court does not find any accommodations necessary
to meet the employment needs of either parent.
15. The Court finds no other factors to be relevant in establishing a
permanent parenting plan.
After an extensive review of the record, we agree with the findings of the trial
court. The findings were wholly supported by the evidence presented at trial and the
entirety of the record. Notably, Husband does not argue that the factual findings of the
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trial court were inaccurate. Rather, he argues that the findings show that the trial court
punished him for his admitted dishonesty. We cannot agree.
First, Husband broadly takes issue with the trial court’s designation of Wife as the
primary residential parent and the allocation of parenting time. The arguments he makes
to support his position are: (1) he was the “primary residential parent” prior to the filing
of the divorce, (2) Wife proposed thirty-eight more days of parenting time than the trial
court awarded him; therefore the trial court’s reduction in his parenting time “is evident
punishment . . . for [Husband’s] misstatements and dishonesty[,]” and, (3) the trial court’s
best interest analysis supports him receiving more parenting time. The core of each of
these arguments is that the trial court became “overwhelmed” with his dishonesty and
abused its discretion by improperly giving more weight to his moral, mental, and
emotional fitness as it relates to his ability to parent the children. Husband does not
dispute that the trial court may consider his credibility in its analysis. He concedes that
the trial court correctly found that he had lied to the court on multiple occasions. While
Husband acknowledges his deceitful actions, he requests this Court find that the trial
court abused its discretion by punishing him for such actions. We decline to do so.
In the court’s analysis of the first statutory factor concerning “[t]he strength,
nature, and stability of the child’s relationship with each parent . . .[,]” the trial court
found that, prior to the divorce, Husband was the more available parent at times.
Husband contends that such finding supports a conclusion that he was the primary
caregiver. The Husband’s mother, Daughter’s teacher, the nannies, and even the parties
themselves, testified that both Husband and Wife were involved in the daily care of the
children. While it is correct that Husband’s work schedule allowed him to be more
present in the children’s daily routines, it was also evident that Husband preferred to be
one that made everyday decisions regarding the children.
Husband now asks this Court to construe the facts to find that his actions prior to
the divorce entitle him to more parenting time. The record is clear that Wife did work
long hours to be the primary financial contributor for the family, while Husband handled
the daily needs of the children. However, despite the parents’ respective roles, the record
does not support a conclusion that either parent was absent from the children’s lives or
more involved than the other. To the contrary, the record establishes that both parents
substantially contributed to the overall care of the children. A large amount of testimony
was elicited from teachers and experts regarding the actions the parents had taken to
ensure the special educational needs of Daughter were met, counseling was set-up for the
children, and that the children participated in extracurricular activities. The children were
afforded these opportunities because of the involvement of both parents, whether it was
financially, emotionally, or physically.
Husband next argues that the trial court’s allocation of parenting time is evidence
that he was being punished for his dishonesty. Husband contends that because Wife
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proposed that he receive more parenting time than the trial court awarded, the trial court
was undoubtedly punishing him for testifying falsely. Husband’s argument is nothing
more than mere speculation. He makes no references to the record to support this
contention. We remind Husband that, “[t]he weight, faith, and credit to be given the
witnesses’ testimony lies in the first instance with the trier of fact . . . .” Whitaker v.
Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). Furthermore “[c]ustody and
visitation determinations often hinge on subtle factors, including the parents’ demeanor
and credibility during the divorce proceedings themselves.” Gaskill, 936 S.W.2d at 631.
As such, it was entirely permissible for the court to consider Husband’s credibility in its
analysis. The trial court found that Husband was not credible and specifically referenced
his lack of credibility in addressing statutory factors two and eight in Tennessee Code
Annotated section 36-6-106.
When fashioning the parenting schedule, the trial court weighed the factors
discussed above, and concluded that the children should be with Wife during the school
year. Specifically, in reference to Daughter’s educational needs, the court found that she
needed a “consistent, reliable, and predictable routine.” The court reasoned that, based
upon Daughter’s school reports and the testimony of various witnesses, a consistent
schedule was necessary for her academic progress. To achieve consistency for Daughter,
the trial court found that she would need to reside with Wife, in the same residence,
during the school year. The trial court allocated parenting time in a fashion that it
determined would provide the children with the most consistency, while still allowing
Husband to enjoy frequent contact with the children. This finding refutes Husband’s
argument that his parenting time was reduced as a form of punishment. The trial
specifically stated:
[T]he children need frequent contact with their father as well. Because of
the differences between the parents, the Court does not believe that
[Daughter] will be able to experience the same kind of consistency needed
for her academic performance if she is not in the same residence during the
school year when the need for such consistency is most critical. However,
in addition to the frequency of contact with Mr. Sullivan through the day-
to-day schedule fashioned by the Court, Mr. Sullivan will also have the
right to attend all of the children’s extracurricular activities, their school
functions, and interact with the children in similar settings as part of his
parenting rights. They will simply not be sleeping at his residence as often
as they are sleeping at Ms. Sullivan’s residence.
Summarily, we do not find that the evidence preponderates against the trial court’s
findings. Again, while we understand that Husband is unsatisfied with the trial court’s
decision, we reiterate that:
It is not the function of appellate courts to tweak a visitation order in the
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hopes of achieving a more reasonable result than the trial court. Appellate
courts correct errors. When no error in the trial court’s ruling is evident
from the record, the trial court’s ruling must stand. This maxim has special
significance in cases reviewed under the abuse of discretion standard. The
abuse of discretion standard recognizes that the trial court is in a better
position than the appellate court to make certain judgments. The abuse of
discretion standard does not require a trial court to render an ideal order,
even in matters involving visitation, to withstand reversal. Reversal should
not result simply because the appellate court found a “better” resolution.
See State v. Franklin, 714 S.W.2d 252, 258 (Tenn. 1986) (“appellate court
should not redetermine in retrospect and on a cold record how the case
could have been better tried”); cf. State v. Pappas, 754 S.W.2d 620, 625
(Tenn. Crim. App. 1987) (affirming trial court’s ruling under abuse of
discretion standard while noting that action contrary to action taken by the
trial court was the better practice); Bradford v. Bradford, 51 Tenn. App.
101, 364 S.W.2d 509, 512-13 (1962) (same). An abuse of discretion can be
found only when the trial court’s ruling falls outside the spectrum of rulings
that might reasonably result from an application of the correct legal
standards to the evidence found in the record. See, e.g., State ex. rel Vaughn
v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000).
Eldridge, 42 S.W.3d at 88. The trial court was tasked with the responsibility of
formulating a parenting plan that was in the best interest of the children. After
reviewing every document in the voluminous record and considering Husband’s
arguments, we cannot say the trial court abused its discretion. We decline to modify the
decision of the trial court for the simple purpose of achieving a result that favors
Husband.
ii. Child Support
We next turn to the trial court’s calculation of child support, specifically the issue
of work-related childcare expenses and extraordinary expenses. Husband argues that
expenses for work-related childcare and the cost of the children’s private education
should not have been included in the child support calculations. Alternatively, he argues
that the work-related childcare costs were not “reasonable” expenses.
The child support guidelines address work-related childcare expenses. The
guidelines provide that “additional expenses” for “work-related childcare shall be
included in the calculations to determine child support” and “shall be divided between the
parents pro rata based upon the [percentage of income] of each parent to determine the
total Presumptive Child Support Order and shall be included in the written order of the
tribunal together with the amount of the [basic child support obligation].” Tenn. Comp.
R. & Regs. 1240-02-04-.04(8)(a)(1), (3). “Work-related childcare” costs are defined as:
“expenses for the care of the child for whom support is being determined which are due
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to employment of either parent or non-parent caretaker.” Tenn. Comp. R. & Regs. 1240-
02-04-.02(29)(a). Accordingly, childcare expenses must be “appropriate to the parents’
financial abilities and to the lifestyle of the child if the parents and child were living
together.” Tenn. Comp. R. & Regs. 1240-02-04-.04(8)(c)(1).
In contrast, “extraordinary educational expenses,” including “private elementary
and/or secondary schooling,” are considered as a deviation from the standard child
support amount, rather than an additional expense. Tenn. Comp. R. & Regs. 1240-02-04-
.07(2)(d) & (d)(1)(i). A deviation for extraordinary expenses is determined on a “case-by-
case basis,” and it is within the discretion of the trial court to determine whether such
expenses should be “added to the presumptive child support.” See id.; Beyer v. Beyer, 428
S.W.3d 59, 74 (Tenn. Ct. App. 2013) (“A trial court may order an upward deviation from
the Guidelines for extraordinary educational expenses which include tuition and other
expenses associated with private school attendance.”).
Similar to work-related childcare expenses, the education expenses must be
“appropriate to the parents’ financial abilities and to the lifestyle of the child if the
parents and child were living together.” Tenn. Comp. R. & Regs. 1240-02-04-
.07(2)(d)(1)(i). As recently explained in Vance v. Vance, No. M2017-00622-COA-R3-
CV, 2018 WL 1363323, at *5 (Tenn. Ct. App. Mar. 16, 2018), the guidelines instruct the
trial court to make “written findings” if a deviation is awarded. The trial court’s order
must include:
1. The reasons for the change or deviation from the presumptive amount of
child support that would have been paid pursuant to the Guidelines; and
2. The amount of child support that would have been required under the
Guidelines if the presumptive amount had not been rebutted; and
3. How, in its determination,
(i) Application of the Guidelines would be unjust or inappropriate in the
particular case before the tribunal; and
(ii) The best interests of the child for whom support is being determined
will be served by deviation from the presumptive guideline amount.
Id. at *5-6 (citing Tenn. Comp. R. & Regs. 1240-02-04-.07(1)(c)). Furthermore, “[i]f a
deviation is allowed for extraordinary educational expenses, a monthly average of these
expenses shall be based on evidence of prior or anticipated expenses and entered on the
Worksheet in the deviation section.” Tenn. Comp. R. & Regs. 1240-02-04-
.07(2)(d)(1)(iii).
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Here, the record contains evidence regarding the parties’ income, the work-related
childcare expenses, and the cost for the children’s private education. As to income and
earning capacity, the trial court found that Husband was forty-five years old, and Wife
was forty-one years old. Husband and Wife began their marriage with similar salaries
and relatively no debt. Wife testified that her income had substantially increased from
$60,000 at the beginning of the marriage to over $300,000 at the time of trial. Husband
worked as a nurse, having obtained a master’s of science degree in nursing, with a
specialty in neonatal intensive care. He was employed as a clinical quality improvement
specialist. His salary was approximately $91,000 a year. Wife testified that although her
income had increased, Husband also had opportunities to increase his income. She
testified that Husband had the ability to advance his career by taking the exam to be a
licensed nurse practitioner. However, Husband chose not to take the exam and testified
that he no longer meets the criteria to become a neonatal nurse practitioner.
Notably, the parties do not dispute their respective incomes as reflected on the
child support worksheet entered with the permanent parenting plan. Wife’s monthly
salary was reported as $32,120.83 and Husband’s was $7,590.83. The trial court also
found that work-related childcare expenses for the parties’ nanny and extraordinary
expenses for the children’s private education should be included in the child support
worksheet. Additionally, the trial court found each party would be responsible for their
respective pro rata share. The parties agreed that the monthly cost of the nanny was
$2,770.67. During the trial, neither party disputed the reasonableness of this fee.
However, after trial, Husband argued in his motion to alter or amend that “such nanny is
not reasonable work-related childcare.” He further argued that such an expense was
unnecessary based upon the children’s ages and full-time school enrollment. He
maintains that argument on appeal, suggesting that the nanny expense is both
unnecessary and unreasonable.
In reviewing the trial court’s findings regarding the work-related childcare
expenses, we find no error. The trial court appropriately found that the children had
enjoyed the services of a nanny since Son was six months old. Further, prior to
disposition of the case, both parties relied heavily on a nanny for the daily tasks for the
children. There is nothing in the record to indicate that Husband is unable to pay his pro
rata share of the cost or that such expense is unreasonable. Additionally, the record is
devoid of any evidence that would suggest that the parties intended to forego the use of a
nanny, had they remained living together. The trial court properly included the expenses
in the child support worksheet pursuant to the guidelines.
As to the children’s private education, the parties testified to each child’s
academic progress. Testimony was elicited from one of Daughter’s teachers, and
numerous exhibits were introduced, including an evidentiary deposition and the
children’s school records. At the time of trial, Son was completing kindergarten at Christ
Presbyterian Academy (“CPA”), a private school. The parties testified that the annual
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tuition for CPA was $13,005. Daughter was completing second grade through a home
school program, Foundation Christian Academy and “i Hope.”14 The tuition for
Foundation Christian Academy was $3,000 and “i Hope” tutoring cost was $20,412. The
testimony presented at trial indicated that Son was thriving at CPA. However, Daughter
had several diagnoses that hindered her educational progress. She had two
psychoeducational evaluations and other testing to measure her cognitive, academic, and
behavioral functioning. Daughter tested in the one percentile in many areas. She was
diagnosed with dyslexia and attention deficient hyperactivity disorder. The evidentiary
deposition of Shanna J. Reece, Ph.D., was introduced as an exhibit at trial. Dr. Reece
opined that Daughter needs a structured environment with specific routines. She further
testified that Daughter’s limitations could lead to frustration and behavioral problems.
Jodie Stewart, a teacher for Daughter, testified regarding Daughter’s educational
needs and progress.15 She characterized Daughter as being loving, thoughtful, and
artistic. However, she indicated that Daughter can be “manipulative” like many children
and adults. Ms. Stewart explained that there have been times that Daughter would
fabricate stories. Ms. Stewart would correct Daughter; however, she explained that
Daughter would acknowledge the wrong and then she would forget and repeat the action.
As to Daughter’s continued educational needs, Ms. Stewart did not believe public school
was the best option. When asked if Daughter would be able to handle a public school
environment, she stated: “. . . I think putting . . . [Daughter] back into a lion’s den, if you
will, for where she’s at, I think it would be extremely detrimental.”
Despite Dr. Reece’s and Ms. Stewart’s opinions, Husband and Wife had different
proposals for the children’s continued education. Husband testified that he believed
public school was an option for both children. Wife did not agree that public school
would meet the needs of the children. As for Daughter, Wife was unsure what private
educational program would be best. She and Husband had explored placing Daughter at
Currey Ingram Academy, a school designed to meet the individual needs of special
education students. Both parties had toured the school and spoken with school personnel
prior to trial; however, a decision had not been made regarding enrollment. Wife testified
that, at the time of trial, the tuition for Currey Ingram Academy was $39,000 per year.
Based upon the parties’ income, Husband’s pro rata share for the children’s private
education was nineteen percent and Wife’s was eighty-one percent. The trial court found
that Husband offered “no credible evidence” to support his position that the children
14
Foundation Christian Academy is a home school program under the umbrella of Christ
Presbyterian Academy. “i Hope” is a special learning center that provides educational services for
children, using a specialized program. It is unclear from the record as to the precise name of “I Hope” as
it is referenced throughout the record as “I Hope,” “i-Hope,” “ihope,” or “i hope.”
15
Ms. Stewart is a speech-language therapist as well as a reading specialist. She is the owner of
“i Hope” and teaches students with dyslexia and other disabilities. She has thirty-five years of experience
in teaching children in both private and public educational settings.
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should attend public school. The court found of importance that the parties had made the
decision for their children to attend a private school prior to the divorce.
The trial court found that Son had done well at CPA; however, from the evidence
presented, it found that Daughter thrived best in a “one-on-one” learning environment.
The trial court concluded that the parties had the financial ability to afford private
education for the children and that the children should remain in a private school.
Specifically, the trial court found that Son would continue his education at CPA and
Daughter would continue her education at “i-Hope and Foundation Christian Academy,
or any other education facility,” chosen by Wife. (emphasis added). A deviation for
extraordinary educational expenses was awarded and included in the child support
worksheet and permanent parenting plan. The child support worksheet reflects that the
cost for Son’s tuition, at CPA, was $14,433 annually, and Daughter’s tuition, at Currey
Ingram Academy, was $41,397 annually.
Husband argues that the trial court erred in allowing Wife “to select a school
which is the most expensive private school in the Middle Tennessee area for one of the
parties’ minor children . . . .” Notably, Husband does not raise any arguments regarding
the tuition costs for Son at CPA. Further, he does not challenge Wife being designated as
the sole decision-maker for the children’s education. Rather, he centers his argument on
the increased cost of Currey Ingram Academy. It is undisputed that Daughter has
educational concerns that facilitated specialized programs. The trial court, as noted
above, made specific findings regarding the children’s needs and the conclusion to
designate Wife as the primary residential parent, with sole decision-making authority
regarding the children’s education.
Husband contends that requiring him to pay the extraordinary educational
expenses “imposes a financial burden on him” not recognized by the child support
guidelines. However, in his brief, he has failed to cite to any evidence in the record to
support this contention. The trial court properly assessed the financial abilities of the
parents and the best interest of the children, in determining the deviation to be awarded
for the extraordinary educational expenses. Accordingly, we do not find the trial court
abused its discretion in ordering a deviation for extraordinary educational expenses. We
affirm the decision of the trial court as to the issue of child support.
C. Division of Marital Estate
Husband next takes issue with the division of the marital estate. We begin
addressing this issue by noting, “it is not our role to tweak the manner in which a trial
court has divided the marital property.” Owens v. Owens, 241 S.W.3d 478, 490 (Tenn. Ct.
App. 2007) (citing Morton v. Morton, 182 S.W.3d 821, 834 (Tenn. Ct. App. 2005)).
“Rather, our role is to determine whether the trial court applied the correct legal
standards,” and weighed the applicable statutory factors in a manner that “is consistent
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with logic and reason, and whether the trial court’s division of the marital property is
equitable.” Id. (citations omitted).
Turning to Husband’s argument, in his brief, he contends that the trial court erred
in its division of marital assets. However, again Husband’s central argument is that the
trial court inequitably divided the marital estate as another form of punishment for his
dishonesty to the court. Once again, he failed to cite specific references to the record to
support this contention. Even more egregiously, Husband failed to include with his brief
a proper table, in compliance with Rule 7 of the Rules of the Court of Appeals. Rule 7
provides, in relevant part:
a) In any domestic relations appeal in which either party takes issue with
the classification of property or debt or with the manner in which the trial
court divided or allocated the marital property or debt, the brief of the party
raising the issue shall contain, in the statement of facts or in an appendix, a
table in a form substantially similar to the form attached hereto. This table
shall list all property and debts considered by the trial court, including: (1)
all separate property, (2) all marital property, and (3) all separate and
marital debts.
(b) Each entry in the table must include a citation to the record where each
party’s evidence regarding the classification or valuation of the property or
debt can be found and a citation to the record where the trial court’s
decision regarding the classification, valuation, division, or allocation of the
property or debt can be found.
Id. (emphasis added).
Here, Husband did include attachments to his brief, which he contends complied
with Rule 7. However, the attachments are merely a reproduction of the trial court’s
division of property, and the amended joint statement of assets and liabilities filed by the
parties. While the attachments may, somewhat, provide us with valuations of the parties’
separate and marital property and separate and marital debt, it does not comply with Rule
7. Wife noted the deficiency in her brief. Husband argued in his reply brief that he had
complied with Rule 7. We emphasize that Rule 7 provides an exemplar. A table in
compliance with Rule 7 would be substantially similar to this:
Separate Property
Appellant’s Appellee’s Value Found by the Party To Whom
Property
Value Value Trial Court Awarded
1. Description $ $ $ Husband or Wife
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(citation to the (citation to the (citation to the (citation to the
record) record) record) record)
Marital Property
Appellant’s Appellee’s Value Found by Party To Whom
Property
Value Value the Trial Court Property Awarded
$ $ $ Husband or Wife
1. Description (citation to (citation to the (citation to the (citation to the
the record) record) record) record)
Debt
Appellant’s Appellee’s Value Found by Party To Whom
Property
Value Value the Trial Court Property Awarded
$ $ $ Husband or Wife
1. Description (citation to (citation to the (citation to the (citation to the
the record) record) record) record)
Total Separate Property awarded to Husband as valued by: Husband: $
Wife: $
Trial Court: $
Total Marital Property Awarded to Husband as valued by: Husband: $
Wife: $
Trial Court: $
Total Debt allocated to Husband as valued by: Husband: $
Wife: $
Trial Court: $
Total Separate Property awarded to Wife as valued by: Husband: $
Wife: $
Trial Court: $
Total Marital Property Awarded to Wife as valued by: Husband: $
Wife: $
Trial Court: $
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Total Debt Allocated to Wife as valued by: Husband: $
Wife: $
Trial Court: $
In order to comply with Rule 7, a party must do more than simply reproduce the
findings of the trial court. We have explained the necessity of the requirements of Rule
7, stating:
[I]t is essential that the parties comply with Rule 7 in order to aid this Court
in reviewing the trial court’s decision. The table required by Rule 7, allows
this Court to easily and correctly determine the valuation and distribution of
the marital estate as ordered by the trial court. Further, the Rule 7 table,
allows this Court to ascertain the contentions of each party as to the correct
valuations and proper distribution, as well as the evidence in the record
which the party believes supports its contention. Consequently, a table, in
full compliance with Rule 7, is vital as this Court must consider the entire
distribution of property in order to determine whether the trial court erred.
Moreover, this Court is under no duty to minutely search the record for
evidence that the trial court’s valuations may be incorrect or that the
distribution may be improper.
Kanski v. Kanski, No. M2017-01913-COA-R3-CV, 2018 WL 5435402, at *6 (Tenn. Ct.
App. Oct. 29, 2018) (citing Harden v. Harden, No. M2009-01302-COA-R3-CV, 2010
WL 2612688, at *8 (Tenn. Ct. App. June 30, 2010). Furthermore, “where an appellant
fails to comply with this rule, that appellant waives all such issues relating to the rule’s
requirements.” Id at *6. (quoting Stock v. Stock, No. W2005-02634-COA-R3-CV, 2006
WL 3804420, at *5, n.3 (Tenn. Ct. App. Dec. 28, 2006)).
As stated above, our role is to analyze whether the overall division of the marital
estate was equitable. In order for us to properly complete this role, it is unequivocally
essential for a litigant to include proper citations to the record for all proposed values of
the marital estate. Here, Husband failed to include citations to the record wherein
evidence was presented regarding the classifications, valuations, and division of the
property. See generally Tenn. Ct. App. R. 7. The few citations Husband provided were in
reference to the trial court’s findings regarding the marital home. Without proper
citations to the record, our ability to conduct a meaningful appellate review is hindered.
Based upon Husband non-compliance with Rule 7, we conclude that he has waived all
issues related to the classification, valuation, and division of the marital property and
debt. We affirm the trial court’s division of the entire marital estate.
D. Motion to Amend
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We next review Husband’s fourth issue regarding denial of his motion to amend to
assert a counterclaim for alimony. The Tennessee Rules of Civil Procedure address
amendments, claims, and defenses. Specifically, in regard to amendments, we have
succinctly explained:
Rule 15.01 governs amendments. It provides, in relevant part:
A party may amend the party’s pleadings once as a matter of
course at any time before a responsive pleading is served or,
if the pleading is one to which no responsive pleading is
permitted and the action has not been set for trial, the party
may so amend it at any time within 15 days after it is served.
Otherwise a party may amend the party’s pleadings only by
written consent of the adverse party or by leave of court; and
leave shall be freely given when justice so requires.
Tenn. R. Civ. P. 15.01 (emphasis added). This rule “applies equally to
plaintiffs and defendants who seek to amend their pleadings.” Pratcher, [v.
Methodist Healthcare Memphis Hosps.,] 407 S.W.3d [727,] 741 [(Tenn.
2013).] The Tennessee Supreme Court has “emphasized the liberality of
this rule where pre-trial amendments are sought.” Gardiner v. Word, 731
S.W.2d 889, 891 (Tenn. 1987). According to the Court, the rule “‘needs no
construction, it means precisely what it says, that leave shall be freely
given.’” Id. (quoting Branch v. Warren, 527 S.W.2d 89, 92 (Tenn. 1975)).
Tennessee courts adhere to “the time-honored principle that ‘the
determination of whether to allow an amendment to the pleadings is left to
the sound discretion of the trial court.’” Pratcher, 407 S.W.3d at 741
(quoting George v. Bldg. Materials Corp. of Am., 44 S.W.3d 481, 486
(Tenn. 2001)). “Trial courts have broad authority to decide motions to
amend pleadings and will not be reversed absent an abuse of discretion.” Id.
(citing Hawkins v. Hart, 86 S.W.3d 522, 532 (Tenn. Ct. App. 2001)). This
standard of review does not allow us to substitute our judgment for that of
the trial court. Id. at 742. However, the liberal language of Rule 15.01 has
“substantially lessened the exercise of pre-trial discretion on the part of the
trial judge.” Gardiner, 731 S.W.2d at 891.
Numerous factors should guide a trial court’s discretionary decision
regarding whether to allow a late-filed amendment, including “undue delay,
bad faith by the moving party, repeated failure to cure deficiencies by
previous amendments and futility of the amendments.” Pratcher, 407
S.W.3d at 741 (citing Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. Ct.
App. 1979)).
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Stephens v. Home Depot U.S.A., Inc., 529 S.W.3d 63, 76-77 (Tenn. Ct. App. 2016).
In the instant case, Husband timely filed an answer on March 14, 2017, but did not
assert a counterclaim. In February 2018, Wife was granted permission to amend her
complaint to allege adultery. Husband promptly filed an amended answer but again did
not assert a counterclaim. At the beginning of the trial on April 2, 2018, Husband’s
counsel indicated that on March 30, 2018, she had fax-filed an emergency motion to
amend. The motion requested that Husband be allowed to file a counterclaim for
alimony. The basis for Husband’s argument was, despite the late filing of the motion, all
parties were aware that alimony would be an issue at trial. He contended that the parties
had discussed the issue in pretrial discovery. Husband concedes that he made no attempt
to file a claim for alimony prior to March 30, 2018.
After a hearing on the motion, on the first day of trial, the trial court denied the
motion. The trial found, inter alia, that:
Husband delayed filing the Emergency Motion until Friday evening March
30, 2018, two days before the trial which started on Monday, April 2, 2018,
to ask for a continuance and to seek leave to file new pleadings. The Court
finds that this delay [sic] unacceptable and in bad faith. There is no excuse
for this delay. If the Court should grant Mr. Sullivan a continuance for Wife
to file a reply to the counterclaim and conduct additional discovery it would
leave the parties in a living situation that appear[ed] to be fairly strained, if
not intolerable.
Husband argued in his brief filed on March 22, 2018 that he was seeking
alimony. However, Husband’s brief is not a pleading under the Tennessee
Rules of Civil Procedure. While, the Court cannot state that it would be
futile to allow the amendment for a claim of alimony, the history of this
case reflects that both parties earn a good living. Mr. Sullivan earns
something in the range of $90,000 a year. Wife earns three plus time[s] that
amount of money. The marriage of 12 years is of moderate duration. For
Husband to receive alimony until he dies or remarries, the Court would
have to determine that Husband cannot be rehabilitated and the Court will
need a plan of rehabilitation. Husband has a Master[’]s degree and
Bachelor[‘]s degree and this form of alimony does not appear to be
applicable. Transitional alimony does not seem to fit either because that
form of alimony is ordinarily designed to ease a person back into the
workplace where they have been out of the workplace but have skills. It is
usually for individuals who do not require rehabilitation but just time to
readjust and to get into the workplace to earn a living and support
themselves. Alimony in solido might fit this case but to allow the Husband
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to amend his pleadings two days before trial would be unduly prejudicial to
Wife.
Husband asks this Court to find that the trial court abused its discretion by denying
his late-filed motion. He again maintains that the trial court’s action was another form of
punishment, without citing specific references to the record. Upon review of the record,
we are not persuaded that the trial court abused its discretion. We affirm the decision of
the trial court with regard to this issue.
E. Attorney’s Fees
As a final issue, we address whether Wife should be awarded attorney’s fees and
expenses. The trial court made the following findings regarding Wife’s request for
attorney’s fees:
Ms. Sullivan incurred attorney’s fees and expenses of $123,637.18 of
which she had paid $54,959.72 and owes $68,677.44. Mr. Sullivan has
incurred attorney’s fees and expenses in the amount $65,846.50, of which
he has paid $44,500.50 and owes $21,346.00. The balance of attorney’s
fees and expenses incurred by each party are marital debts. . . . Of the
attorney’s fees and expenses incurred by Ms. Sullivan, approximately
$20,000 of those attorney’s fees and expenses, as detailed in the Affidavit
of [sic] filed on her behalf, were attributable to unnecessary litigation
caused by Mr. Sullivan. For example, Mr. Sullivan filed contempt
proceedings and other motions that were without merit. He sought to
prevent Ms. Sullivan from obtaining records from Walgreens and CVS
pharmacies, which ultimately brought out Mr. Sullivan’s lies in both his
written discovery responses and in his deposition. The Court would award
Ms. Sullivan $20,000 of the attorney’s fees and expenses she has incurred
in connection with these proceedings, but knows of no authority for doing
so except as alimony in solido. Ms. Sullivan has not provided the Court
with any authority for such award otherwise. Ms. Sullivan has not asked for
alimony and had she done so, she would not be entitled to alimony pursuant
to Tenn. Code Ann. § 36-5-121.
It is within the discretion of the trial court to award attorney’s fees. Eberbach v.
Eberbach, 535 S.W.3d 467, 475 (Tenn. 2017). Additionally, absent an abuse of
discretion, appellate courts will not interfere with the trial court’s ruling. Id. Wife argues
that the trial court also had the statutory authority to award her attorney fees concerning
the adjudication of custody of the children, as set forth in Tennessee Code Annotated
section 36-5-103(c). She contends that the mere fact that she did not request alimony in
solido does not prevent the trial court from awarding the fees. Tennessee Code
Annotated section 36-5-103(c)(2017) provided as follows:
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The plaintiff spouse may recover from the defendant spouse, and the spouse
or other person to whom the custody of the child, or children, is awarded
may recover from the other spouse reasonable attorney fees incurred in
enforcing any decree for alimony and/or child support, or in regard to any
suit or action concerning the adjudication of the custody or the change of
custody of any child, or children, of the parties, both upon the original
divorce hearing and at any subsequent hearing, which fees may be fixed
and allowed by the court, before whom such action or proceeding is
pending, in the discretion of such court.
Id.16
We agree with the trial court that an award of attorney’s fees in a divorce case may
constitute alimony in solido. See Gonsewski v. Gonsewski, 350 S.W.3d at 99, 113 (Tenn.
2011). We further agree that, when deciding whether to award attorney’s fees as alimony
in solido, the trial court must consider the relevant factors set forth in Tennessee Code
Annotated section 36-5-121(i). Id. However, Tennessee Code Annotated section 36-5-
103(c) provides another avenue for an award of attorney’s fees. Although we do not
agree with the trial court’s reasoning, in reviewing the entire record, we do not find that
the trial court abused its discretion in denying Wife’s request for attorney’s fees at trial.
As to Wife’s request for attorney’s fees on appeal, we consider, “the requesting
party’s ability to pay, the requesting party’s success on appeal, whether the appeal was
taken in good faith, and any other relevant equitable factors.” Culbertson v. Culbertson,
455 S.W.3d 107, 158 (Tenn. Ct. App. 2014). While we understand the financial burdens
these proceedings have placed on both parties, given Wife’s financial position, we do not
find an award of attorney’s fees on appeal is appropriate. Therefore, we deny Wife’s
request for attorney’s fees on appeal.
IV. CONCLUSION
For the aforementioned reasons, the decision of the chancery court is affirmed and
the case remanded for further proceedings as may be necessary. Costs of this appeal are
taxed to the appellant, Eric Jason Sullivan, for which execution may issue if necessary.
_________________________________
CARMA DENNIS MCGEE, JUDGE
16
The statute was amended on July 1, 2018, but the amendment does not apply to this action. See Tenn.
Code Ann. § 36-5-103(c)(2018).
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