Shem Malmquist v. Danielle Malmquist ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
October 15, 2010 Session
SHEM MALMQUIST v. DANIELLE MALMQUIST
Direct Appeal from the Circuit Court for Shelby County
No. CT-001298-05 Jerry Stokes, Judge
No. W2007-02373-COA-R3-CV - Filed March 25, 2011
This is a divorce case involving a short-term marriage. The husband is a pilot at FedEx and the wife
is highly educated. They have two children together. After less than five months of marriage, the
husband filed for divorce alleging irreconcilable differences and inappropriate marital conduct. The
wife counter-claimed, and unnecessarily protracted litigation ensued. The parties inundated the trial
court with filings over a two-year period, many of which contained alarming but ultimately unproven
accusations. After one transfer of the case and the withdrawal of many attorneys, the parties
proceeded to trial during which they presented the live testimony of 30 witnesses and introduced 122
exhibits. The trial court awarded a divorce to both parties on the ground of inappropriate marital
conduct, designated the husband as primary residential parent, granted the wife supervised visitation
with the children twice a week, awarded the wife half of the 401k benefits the husband accrued
during the marriage, and provided the wife transitional alimony for four months. The wife appeals.
We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.
Danielle Malmquist, Pro se.
Shem Malmquist, Pro se.
OPINION
I. Background and Procedural History
The plaintiff/appellee, Shem Malmquist (“Husband”), and the defendant/appellant, Danielle
Malmquist (“Wife”), began a romantic relationship in 2003 after Husband—then married to his
second wife—placed a personal ad in a California newspaper. The parties dated and later resided
together for several months after Wife become pregnant with their first child. After a brief split, the
couple reconciled and Wife became pregnant with their second child. Husband then moved to
Memphis, Tennessee with his job as a pilot at FedEx. He sold his California residence and used a
portion of the proceeds to pay off Wife’s student loans as well as her outstanding obligation on a
BMW automobile. He also used a portion of the proceeds, which he deposited in a joint bank
account opened in Memphis, to purchase a home in Germantown, Tennessee. Despite Wife’s
protestations, Husband placed the Germantown residence in his name only. The parties eventually
married on October 27, 2004—the same day Husband received a divorce from his second wife—and
Wife moved into the Germantown residence. Wife lived at the Germantown residence for a short
period before giving birth to their second child in February 2005.
In early March 2005, the parties had a fight during which Wife admittedly punched Husband
in the face. Local police responded, interviewed the parties, and arrested Wife. Husband shortly
thereafter filed a complaint for divorce alleging Wife was emotionally unstable, physically abusive,
verbally abusive, and suffering from severe postpartum depression. According to Husband, Wife’s
physical assaults included an attack during which she incidentally struck her first child as well as a
separate attack during which she struck Husband and threw a glass vase at his head. Husband further
alleged Wife had a history of filing false claims with the police and the courts, including a false
claim against Husband’s ex-wife for kidnapping the parties’ first child. Husband concluded Wife’s
actions constituted inappropriate marital conduct and posed a substantial risk of immediate and
irreparable harm to Husband and the children. Husband accordingly sought a grant of divorce and
an appointment as primary residential parent of the parties’ children.
Husband also requested that the trial court order Wife to undergo an immediate psychological
evaluation, enjoin Wife from seeing the children except through supervised visitation, and order
Wife to vacate the Germantown residence following an expedited hearing. In response, the trial
court set an expedited hearing on the request for injunctive relief and psychological evaluation. The
court ordered both parties to undergo a psychological evaluation and to deliver the psychologist’s
report to the court prior to the hearing. The court further ordered Wife to appear and show cause
why Husband’s prayer for relief should not be granted. Wife responded with an answer and counter-
complaint for divorce. In her answer, Wife rejected Husband’s characterization of their physical
altercations. She alleged, to the contrary, Husband’s physically and verbally abusive behavior forced
her on numerous occasions to defend herself. Wife contended the March 3 incident, for example,
stemmed from Husband’s forcing himself on her sexually despite her demands that he stop, and she
only struck Husband in order to protect herself. Wife further contended Husband’s account of the
March altercation was incomplete. According to Wife, she immediately drove to First Tennessee
Bank after discovering her purse with all her credit cards and asset information had disappeared
during the short time when Husband had exclusive use of the home. She reportedly discovered
Husband “cleaning out” the parties’ joint bank account, which she attempted to prevent to no avail.
Thereafter, a confrontation ensued over personal files Wife discovered in Husband’s vehicle, and
Husband allegedly punched Wife in the stomach.
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Wife’s counter-complaint added that Husband, not Wife, was unfit to care for the parties’
children pending psychological evaluation. Wife alleged that, in addition to the March incident,
Husband had on several occasions during the marriage forced himself on her. He also placed her in
fear multiple times when he punched, cut, and otherwise attempted to harm himself. Wife contended
these actions, in conjunction with Husband’s removal of the young children from their mother,
demonstrated a substantial risk of immediate and irreparable injury to the children. Wife accordingly
asked the court to order a psychological evaluation, order Husband to remain away from the marital
residence during the divorce, order Husband to replace $9,000 in marital funds removed from the
parties’ joint bank account, grant her a divorce on the ground of inappropriate marital conduct or
irreconcilable differences, designate her as primary residential parent, and equitably divide the
parties’ marital property. Wife also requested an award of alimony, child support, attorney’s fees,
and expenses.
On March 10, 2005, the parties entered a consent order on custody of the children pending
the expedited hearing. The parties agreed Husband would have temporary physical custody of their
first child and Wife would have temporary physical custody of their second child. The parties further
agreed Wife would vacate the Germantown residence and Husband would pay for Wife to stay in
a hotel room with at least two furnished bedrooms. The consent order permitted Wife to take the
baby furniture and necessities with her and required Husband to reimburse her for certain expenses.
The consent order also established a temporary visitation schedule for each parent and required all
discussions between Husband and Wife regarding the children to occur through counsel. Finally,
the order provided Dr. John Ciocca would conduct the court-ordered psychological evaluations of
both parties and report his findings. On March 22, 2005, the parties agreed to continue the expedited
hearing and remain bound by the March 10 consent order as slightly amended.
The March 10 consent order governed the custody and visitation issues until late November
2005. In the interim, the court appointed a guardian ad litem for the minor children. Wife moved
for and received support pendente lite, which remained a constant source of dispute throughout the
case. The parties filed and fiercely litigated various motions. Minor disputes turned into
irreconcilable conflicts. Attorneys came and went.1 Competing petitions for contempt were filed.
Motions to compel were filed. All the while the parties incurred substantial attorney’s fees.
The case appears to have taken a turn for the worse in November 2005.2 According to Wife,
Husband appeared at her apartment on November 30, 2005, while she was exercising visitation with
1
Dorothy Pounders of the Pounders Coleman law firm represented Husband for the entirety of the
trial court proceedings. Wife, on the other hand, employed at least nine different attorneys.
2
The GAL filed a petition to place the children in foster care which suggests the intense acrimony
may have started well before November 30. She stated in her petition the parties made numerous, if not
daily, allegations of abuse and neglect throughout this case. Her petition asserts “[t]he children were
constantly subjected to doctor or emergency room visits to document allegations and the police were called
so frequently that they know and dread the names of the parties.”
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one of the children.3 Husband reportedly threw an unidentified substance on her and the child and
struck her with something wrapped in his hand. Wife thereafter rushed the child to the hospital
because she believed he had ingested a foreign substance.4
Husband offered an entirely different version of events. According to Husband, he learned
from the GAL shortly after having dinner with friends on the evening in question that Wife and one
of their children had been taken to the hospital. He contacted the Germantown Police Department
(“GPD”) and a detective asked to meet with him. The detective explained Wife had alleged Husband
physically assaulted her and exposed the child to a petroleum-based product. Husband met with
GPD and later filed a petition to restrict Wife’s visitation. Husband asserted in his petition that
Wife’s claims were false and lodged only to prevent him from parenting his children.
The November 30 incident initiated investigations by both GPD and the Department of
Children’s Services (“DCS”). Neither GPD nor DCS ultimately took action against Husband. The
incident appears, however, to have spurred Husband, DCS, the GAL, and the maternal grandparents
to file dependency and neglect petitions with the Shelby County Juvenile Court.5 On December 27,
2005, a juvenile court referee found the children in immediate need of protection and awarded
temporary custody to Husband. The parties subsequently entered a consent order briefly allowing
Wife to exercise supervised visitation with the children. Unfortunately, this order resulted in a
second set of serious allegations regarding the exposure of the children to gasoline. Husband
responded to these allegations with a petition for injunctive relief to prohibit Wife from exercising
visitation with the children. Husband’s petition explained Wife filed a complaint with DCS alleging
one of the children’s diapers smelled of gasoline, which Husband alleged could only have occurred
as a result of Wife’s intentional conduct.
On February 24, 2006, the juvenile court sustained Husband’s and the GAL’s petitions for
dependency and neglect, awarded custody of the children to Husband, and granted Wife supervised
3
The statement of the evidence suggests Wife testified that this event involved the parties’ first child.
The GAL’s petition for dependency and neglect alleges the incident concerned the parties’ second child, as
does Father’s petition. The trial court’s statement of the evidence may contain a scrivener’s error or Wife
may have testified regarding their first child. We are unable to determine which is the case on the record
before us. Nevertheless, the significance of the event does not depend on which child was allegedly
subjected to harm.
4
The GAL suggested in a petition filed with the trial court that treatment of the parties’ second child
revealed he swallowed nothing harmful.
5
The maternal grandparents also filed a motion to intervene in the divorce case, which the trial court
granted. They participated in the case for a period but later voluntarily non-suited their intervening petition
for custody as well as their appeal from the juvenile court’s finding of dependency and neglect.
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visitation at the Exchange Club Family Center (“Exchange Club”) for one hour per week.6 Wife
appealed the juvenile court’s decision and the circuit court assumed jurisdiction over the de novo
hearing. The circuit court thereafter consolidated the dependency and neglect proceedings with the
divorce case.7
The case continued to spiral downward after Wife lost custody of the children. On May 22,
2006, Husband filed a petition for injunctive relief asking the court to enjoin Wife from filing any
pleading in any other court, including the Superior Court of California for San Mateo County,
requesting adjudication of issues presently before the Shelby County Circuit Court. Husband
explained Wife caused to be filed a temporary restraining order and child custody order in the
California court which awarded physical and legal custody of the parties’ children to Wife. Wife
attempted to have Shelby County law enforcement execute this order in May 2006 and deliver
custody of the children to Wife in direct violation of the Tennessee custody order.
On May 24, 2006, the Honorable James Russell transferred the case due to a conflict. The
Honorable Jerry Stokes acquired responsibility for the case under a random selection process and
presided over the divorce through completion. On June 1, 2006, Judge Stokes entered an order on
Husband’s prior request for injunctive relief. The court enjoined Wife from filing any pleading or
proceeding in any other court, including the Superior Court of California for San Mateo County,
regarding adjudication of any issue within the jurisdiction of the circuit court including requests for
custody of the children and temporary support. The court further required Wife to relinquish to
Husband any travel documents she may have had in her possession for either child including but not
limited to passports. The court also awarded Husband attorney’s fees and litigation expenses for
having to file and proceed with his petition. This issue, however, would remain a source of dispute
throughout the proceedings.
On June 2, 2006, Wife petitioned for an order of protection against Husband. Her petition
alleged:
On 1/21/2005 while I was trying to protect [our first child] from one of [Husband’s]
rages, [Husband] pushed [us] down three flights of stairs while I was eight months
pregnant. I was transported to the Emergency Room and suffered a grade four
sprained ankle and an injured hip. On 3/03/2005 in front of both children [Husband]
assaulted me and raped me and knocked [our second child], then a newborn, down
on the ground. On 11/30/2005 [Husband] attacked me with a knife and tried to make
[our second child] drink Kerosene. Both [my second child] and I were transferred
to the Emergency Room and I suffered concussion, a hip injury and wounds. Since
11/30/2005 I have been stalked and harassed by private investigators hired by
6
The circuit court later modified the visitation schedule to provide Wife six hours of supervised
visitation per week at the Exchange Club.
7
The record on appeal does not include the record of the juvenile court proceedings.
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[Husband]. In 3/2006 & 4/2006 [Husband] sent my family a letter stating that if I
attempted to visit the children “an unexplained accident will occur to the children.”
On 4/3/2006 [Husband] drugged me and raped me which is currently under
investigation. On 5/08/2006 I had to call the police because I was followed from my
parent’s house in California to my Grandmother’s house. On 5/24/2006 my father,
Claudio Nicolosi[,] recived [sic] a note on his apartment door in Cordova, Tennessee
that stated “Bitch watch out your [sic] dead.”8
Wife received an ex parte order of protection and Judge Stokes ordered Husband to appear
and show cause why an order of protection should not issue. Wife thereafter served her ex parte
order of protection on Husband’s employer. This led Husband to file a petition for civil and criminal
contempt, as well as further injunctive relief, alleging Wife violated the automatic injunction
imposed pursuant to Tennessee Code Annotated section 36-4-106(d)(3) by harassing several FedEx
employees and serving the ex parte order of protection on the airline’s Pilots Association.9 The trial
court granted Husband’s request for injunctive relief.
On June 7, 2006, Wife allegedly appeared before the Superior Court of San Mateo County
to litigate the temporary restraining order and child custody order previously filed. It appeared to
Husband that Wife would attempt once again to have Shelby County law enforcement execute the
California order. Husband therefore filed an emergency petition to prevent Wife from contacting
the children in any manner, removing the children from Husband, or removing the children from the
jurisdiction. He also filed a petition for criminal contempt, citing Wife’s willful disregard of the
order prohibiting Wife from proceeding in the California court on any matter within the circuit
court’s jurisdiction. In addition, Husband filed an emergency petition to enjoin Wife from coming
about Husband’s residence, coming about any of the children’s scheduled appointments, and
communicating with Husband. The court granted Husband’s request for injunctive relief and
prohibited Wife, inter alia, from communicating with Husband.
Wife’s inability to contact Husband did not prevent subsequent disputes from arising. On
July 31, 2006, Wife filed a pro se petition for contempt alleging Husband willfully disregarded his
obligation to pay Wife’s credit card expenses as set forth in the March 10 consent order. She further
submitted Husband violated a mandatory injunction prohibiting him from cancelling Wife’s car
8
The trial exhibits provide further insight on the alleged rape. Wife alleged Husband entered her
hotel room through a window, tied her up, and raped her while holding his hand over her mouth. She
believed Husband had an accomplice, stating an unidentified woman may have slipped something in Wife’s
drink when she picked up food at a local restaurant. The Rape Crises Center administered a rape kit, an
investigation ensued, police interviewed Husband and took a DNA sample, but the Tennessee Bureau of
Investigation (“TBI”) found no evidence of Husband’s semen. As a result, no criminal charges were filed.
9
Tennessee Code Annotated section 36-4-106(d)(3) automatically imposes “[a]n injunction
restraining both parties from harassing, threatening, assaulting or abusing the other and from making
disparaging remarks about the other to or in the presence of any children of the parties or to either party's
employer.” Tenn. Code Ann. § 36-4-106(d)(3) (2010).
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insurance. Husband subsequently moved to sanction Wife under Rule 11.02 of the Tennessee Rules
of Civil Procedure. He also filed another petition for criminal contempt, this one concerning an
alleged violation of the order prohibiting Wife from harassing FedEx employees. Additionally, the
GAL filed an emergency petition to prohibit Wife from posting photographs and information about
the minor children on a blog entitled “Custody Battle in Memphis” airing her side of the continuing
divorce dispute, which the trial court later granted.10 In light of the continued allegations made
against both parties, the maternal grandparents also filed a petition for custody of the children.
Extensive litigation continued regarding these and other matters for several months. In the
meantime, several non-parties became embroiled in the dispute. An employee of Baptist Memorial
Hospital, for example, moved for a protective custody order to relieve her of any duty to testify
regarding personal information and to require her to testify only in the judge’s chambers without the
parties present. She asserted in her motion that Husband subpoenaed her to testify regarding her role
at the hospital. She thereafter received multiple threatening letters from Wife warning her not to
testify in the divorce case.11 One of the letters reportedly stated: “This is your last warning, do not
testify on September 11, 2006 or I be [sic] inventive on how I pour gasoline on you and light you on
fire. Stay out of my business. No more warnings.” Wife, on the other hand, moved for an
injunction prohibiting Husband’s new girlfriend and her child from having any contact with the
parties’ minor children. And she later filed a motion to “Determine Why Courts Believe the
Children’s Interest is Best Served by Not Having Contact With Asian Mother” in which she alleged
a Memphis police officer told her if she did not “straighten out her eyes” she would never get her
children back. Additionally, Wife filed a motion against Husband’s attorney alleging the attorney
conspired with Husband to place Wife and her children under duress and force Wife to sign the
March 10 consent order addressing custody.
The divorce became so contentious that one of the non-parties, The Exchange Club, declined
to participate further in the case citing the conflict between Husband and Wife.12 The Exchange
10
“Wife’s Custody Battle in Memphis” blog states its purpose as follows:
THANK YOU FOR VISITING MY SITE. I HAVE CREATED THIS SITE IN AN
EFFORT TO ADDRESS THE RACISM AND INTERNAL CORRUPTION THAT STILL
EXIST (sic) IN MEMPHIS, TENNESSEE. IT IS 2006 YET MEMPHIS HAS BEEN IN
A TIME WARP. I AM AN ASIAN AMERICAN THAT HAS BEEN STRIPPRED (sic) OF
HER CHILDREN BECAUSE OF THE COLOR OF MY SKIN AND THE SHAPE OF MY
EYES. I HAVE BEEN STABBED, RAPED, AND DOUSED IN GASOLINE BY MY
HUSBAND, SHEM MALMQUIST, (IS CAUCASIAN) YET THE POLICE ARE
UNWILLING TO CONDUCT AN INVESTIGATION.
11
One of the trial exhibits suggests a handwriting expert determined Wife authored the threatening
letter.
12
This may have stemmed in part from Wife’s allegation that an unidentified man approached her
(continued...)
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Club explained to Wife by letter it had tried for several months to work with Wife regarding
visitation, but it had become apparent that the Exchange Club could no longer accommodate her
needs. The letter added that “it is evident that this case is placing excessive demand on our resources
to effectively provide visitation resources to you.” The Exchange Club further explained in a letter
addressed to the GAL:
The Exchange Club Family Center provides supervised visitation services in
order to create an atmosphere where the emotional and physical well-being of
children is fostered. We strive to assist parents in maintaining healthy relationships
with their children in a non-conflict, neutral environment. As such, we reserve the
right to determine whether or not we can adequately provide supervised visitation
services when families are court ordered.
....
As stated, our purpose in providing supervised visitation is to create an
environment for parents to conduct themselves in a manner that clearly demonstrate
[sic] that they are putting their own interests aside (which is often very hard to do)
and focusing on establishing and maintaining a healthy, nurturing relationship with
their children. The Malmquist case has consistently placed undue demand on our
resources to effectively continue providing services, leading us to feel it necessary
to terminate this case.
After the Exchange Club’s withdrawal, the trial court ordered visitation at West Tennessee Family
Solutions (“WTFS”). WTFS, however, also refused to further provide Wife services after a period
due to “unanticipated contacts” to the agency from outside sources.
The parties’ barrage of motions and petitions continued as the case trudged forward, many
necessitated by Wife’s previous pro se motion filings and her actions in filing additional lawsuits.
Dorothy Pounders, for example, moved to withdraw as Husband’s counsel because Wife filed a civil
action in Shelby County General Sessions Court alleging “extortion, fraud, misrepresentation, [and]
duress” against the law firm of Pounders Coleman and one of its associates. Husband’s attorney
explained she feared the firm’s interests in defending the general sessions lawsuit might materially
limit its ability to continue representation of Husband. The trial court eventually denied the motion
to withdraw. Wife responded with separate motions to disqualify the GAL and to disqualify
attorneys from the Pounders Coleman law firm.
Husband tried somewhat to stem the tide of litigation, petitioning for injunctive relief to
prohibit Wife from filing any court actions against judges, the GAL, employees, courtroom
12
(...continued)
during her second visit at the Exchange Club and threw a liquid substance on her. The police and the
Exchange Club’s security team investigated the incident but no charges were ever filed.
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personnel, Husband, Husband’s counsel, Husband’s employer, any witnesses, any family members,
or any other persons associated with the case pending further orders of the court.13 Husband alleged
Wife had pursued a pattern of abuse of process and the filing of frivolous complaints to intimidate
witnesses, attorneys, and court personnel. In addition to the complaint filed against Husband’s
attorney, he asserted Wife had filed administrative complaints against police officers and court
personnel involved in the divorce case, an action against FedEx, and an action against his ex-wife
and fourteen-year-old child in California.14 The excessive filing of motions and petitions continued
unabated. The release of the GAL’s report became a highly disputed issue, entangling several
additional non-parties in the conflict between Husband and Wife. Issues of contempt remained a
source of contest. And Wife accused the GAL of misconduct, illegal activity, and violations of the
ethical rules governing lawyers.
The trial court, much to its credit, managed to conduct a trial in April 2007. The parties
presented the live testimony of 30 witnesses, the deposition testimony of 1 witness, and 122 trial
exhibits over several days.15 The live witnesses included Wife; Husband; Husband’s second wife,
Rebecca Malmquist; Dr. Fred Steinberg, PH.D; Dr. John Ciocca, PH.D; Dr. Neil Aranov, PH.D;
Wife’s sisters, Lisa and Elizabeth Nicolosi; Wife’s father, Claudio Nicolosi; the guardian ad litem,
Gina Higgins; and a forensic investigator with the TBI, Quadri Devnam.
As one might expect, Husband and Wife offered starkly contrasting testimony with respect
to the altercations that arose during and after the marriage. The GAL’s testimony suggested,
however, Wife was the primary cause of the problems concerning the children. The GAL testified
she investigated each and every allegation the parties made and found no evidence to support the
allegation that Husband abused the children. She further testified the unusual incidents which
occurred throughout the proceedings ceased when Husband obtained custody of the children.
13
The parties had previously entered into a consent order enjoining each of them from filing suits or
charges, whether civil or criminal, against the other without receiving written permission from the court.
14
One of the trial exhibits, for example, is a complaint for violation of civil rights, violation of federal
consumer protection law, malicious harassment, outrageous conduct, malicious prosecution, defamation, and
civil conspiracy. Wife filed this complaint against the City of Memphis, Memphis Police Officer Michael
Akin, individually and in his official capacity; Memphis Police Officer Melanie Howe, individually and in
her official capacity; Bartlett Police Captain David Cupp, individually; City of Germantown; Germantown
Police Captain Lee Covey, individually and in his official capacity; Germantown Police Detective W.E.
Stemmler, individually and in his official capacity; Germantown Police Officer Cannon, individually and
in his official capacity; Lisa Tucker Akin, individually and under apparent color of authority; Shem
Malmquist; and John Doe 1-10. Wife also filed an administrative complaint against Memphis Police Officer
Michael Akin alleging he used department resources to supply his wife, private investigator Lisa Akin,
information about Wife. Officer Akin responded that he accessed the Memphis Police Department kiosk
only due to constant threats and harassment by Wife. He ultimately received a two-day suspension for
violation of MPD regulations.
15
Wife asserted at oral arguments the trial lasted fourteen days.
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According to the GAL, the children appeared to be safe and fairly well-adjusted after residing with
Husband for a period. She accordingly recommended the trial court name Husband the primary
residential parent and continue the supervision of Wife’s parenting time.
In addition, one of the several mental health professionals offered troubling testimony
concerning Wife. Dr. Steinberg testified Wife yielded a clinically significant profile after
administration of the Minnesota Multiphasic Personality Inventory-2 (“MMPI-2”) and the Rorschach
Inkblot Technique. He explained that testing of Wife revealed an elevation on the paranoia scale and
anti-social personality traits. He also described Wife’s reality testing as poor. According to Dr.
Steinberg, Wife evidenced bizarre-thinking, perceived herself as a victim of conspiratorial plots, and
exhibited feelings of persecution. Dr. Steinberg testified this type of persecution mentality is a
delusional disorder. He further testified that Wife received a Global Assessment of Function
(“GAF”) score of 50, which reflected a low level of functioning. Dr. Steinberg’s report detailed his
findings and added:
It is significant that [Wife] yielded an abnormal MMPI-2 profile, considering
the circumstances of the present evaluation. Most individuals are defensive and
attempt to present themselves as normal, particularly when in the midst of a custody
conflict. [Wife] was unable to do this within this present evaluation. She expressed
serious psychopathology with indications within the data consistent with delusional
thinking. The Rorschach indicated poor reality testing. These features are consistent
with an individual who is unaware that her thoughts are aberrant.
The Court will ultimately assess whether [Wife’s] allegations have merit. It
is very possible that she is issuing allegations which are either deceitful or delusional.
These two possibilities do not have to be mutually exclusive. The psychological test
data indicate the possible presence of a psychiatric disturbance that most fits the
criteria of a Delusional Disorder and a personality disorder with antisocial and
borderline features.
The other mental health professionals who examined the parties offered varying views.
Wife’s psychologist disputed the findings of Dr. Steinberg. Dr. Aranov described Dr. Steinberg’s
hand-scoring of Wife’s MMPI-2 as fraught with error, adding that his testing of Wife revealed no
significant elevations. Having treated Wife approximately 60 times, Dr. Aranov disagreed with the
description of Wife as a “crazed” person. Dr. Ciocca likewise testified his testing of Wife did not
reveal significant elevations but cautioned he did not complete his report because the parties’
attorneys requested he go no further in his evaluation. Dr. Ciocca testified his findings may have
changed had he completed the report.
A fourth psychologist, Dr. John Hutson, PH.D., evaluated the parties but did not testify at
trial. Dr. Hutson reported in a letter to the GAL:
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[Husband] was administered an MMPI-2 and a Millon Clinical Multiaxial
Inventory-III on March 10, 2005 by Dr. John Ciocca. The testing had marginal
validity because he attempted to place himself in an overly positive light by
minimizing his faults and denying his problems. He is not very introspective or
insightful about his own behavior. He is not particularly open to psychological self-
evaluation and is somewhat rigid and inflexible in his approach to problems.
[Husband] appears to have good social skills and has little difficulty interacting with
others. He does not appear to be overly anxious or prone to develop unrealistic fears.
Under conditions of stress, however, he has a tendency to develop physical problems
and has difficulty openly expressing anger. He is likely to be seen as somewhat
conventional and not assertive but self-centered and attention seeking. He has a
strong need for affection from others. His sociability may be somewhat superficial
and mask an overlying irritability and arrogance. Diagnostically, he shows evidence
of histrionic personality traits and some narcissistic characteristics.
....
[Wife] was administered an MMPI-2 on March 10 and a Millon on March 11
by Dr. Ciocca. There was a considerable amount of similarity in the results in her
testing with those of her husband. She also responded in a rather defensive manner,
attempting to project a favorable self-image. She has a very high need to be seen in
a positive light, is rather inflexible and unrealistic, and has an exaggerated sense of
personal virtue. Like her husband, she is also rather naive and uninsightful about her
psychological functioning. She seems to have a tendency to blame others, to be
irritable, and to be argumentative. This tends to cause problems in relationships and
her high degree of interpersonal hypersensitivity can lead to periods of instability
when stressed. She also is outgoing and sociable with a strong need to be around
others. The results, however, do show that she is more prone to violent behavior
when angry. On the Millon, she shows evidence of obsessive compulsive disorder.
However, her next three highest scores, all of which are significant, nearly mirror her
husband’s and include desirability, histrionic and narcissistic traits.
....
. . . . Given their level of education, intelligence, and age, one has to wonder how
two children came to be born in such a brief period of time into a relationship with
virtually no stability. Both parents are seen as rather emotionally needy, self-
centered, and socially shallow. The one strength that [Husband] brings is that he has
built a successful career over a significant period of time which has required him to
be emotionally stable and free of any substance abuse problems. He obviously works
in a closely supervised environment where any problems would be difficult to
conceal. [Wife], on the other hand, seems to have a very warm and supportive family;
however, by their own admission, they know little about her, especially from the time
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she left the University of California Berkeley until the present day.
The trial court ultimately resolved the theories set forth in the conflicting expert proof in favor of Dr.
Steinberg.
On July 11, 2007, the trial court entered a final decree of divorce which contained several
findings relevant to this appeal.16 First, the court found each party engaged in conduct warranting
the grant of a divorce against the other and declared the parties divorced pursuant to Tennessee Code
Annotated section 36-4-129(b). Second, the court named Husband the primary residential parent.
The court continued supervision of Wife’s parenting time, awarding her parenting time twice a week
for up to four hours per session and additional time on holidays. Third, the court determined the
401k benefits Husband accrued during the marriage represented the only marital property subject to
equitable distribution, which the court divided evenly between the parties. Fourth, the court awarded
Wife transitional alimony for four months in the amount of $2,500, rejecting her request for
attorney’s fees. Fifth, the court ordered each party to pay a portion of the GAL’s fees, deemed those
fees child support, and placed a lien on Wife’s portion of Husband’s 401k benefits to ensure
payment. Sixth, the court dismissed Husband’s petition for contempt, finding Wife had not willfully
failed to pay child support. Finally, the court permanently enjoined each party from coming around
the other except for child visitation purposes or court proceedings. Wife timely appealed.17
The trial court’s resolution of the substantive issues between the parties did not slow the pace
of litigation. Wife’s initial post-trial filings included a Rule 60 motion for recusal, relief from
judgment, and new trial; an emergency petition for injunctive relief to prohibit Husband’s fourth
wife from spending time unsupervised with the children pending a psychological evaluation; a
second motion for recusal; a motion to disqualify the GAL; and a motion for sanctions against
Pounders Coleman. Pertinent to this appeal, Wife filed a motion to compel the court reporter to
produce a copy of duplicate tapes of the trial proceedings, which the parties later dismissed by
consent. Wife explained in her papers before the trial court and this Court that a dispute arose
between her and the court reporter over the cost of the transcript. Wife apparently filed suit against
the court reporter for breach of contract in the Shelby County General Sessions Court. The transcript
nevertheless remained unavailable to this Court for the purposes of appeal. Husband filed motions
of his own, including a motion to dismiss the appeal for failure to timely file the trial transcript. This
Court denied Husband’s motion to dismiss and remanded for consideration of Wife’s Rule 60
motion.
16
The court also entered an order on the petitions for dependency and neglect finding Husband and
the GAL did not clearly and convincingly prove the allegations of their petitions. Neither party challenges
the court’s ruling on dependency and neglect.
17
The trial court’s final decree ordered the parties to prepare a permanent parenting plan and child
support worksheet based upon its findings. The parties filed and the court approved the parenting plan and
child support worksheet on December 14, 2007.
-12-
On remand, the trial court entered an order denying Wife’s motion for Rule 60 relief. Wife
subsequently filed the trial court’s order, a statement of the evidence, and a notice of the current
unavailability of the trial transcript with this Court. We responded with an order requiring Wife to
file her statement of the evidence with the trial court pursuant to Rule 24 of the Tennessee Rules of
Appellate Procedure. Husband thereafter renewed his motion to dismiss the appeal for failure to file
a transcript, which led this Court to remand the case once again to the trial court for approval of the
record and authentication of the exhibits. This Court in its discretion permitted the late filing of a
transcript through March 9, 2009, but required Wife to submit a statement of the evidence if the
transcript remained unavailable.
Wife filed a portion of the purported trial transcript on remand. Although Wife did not
procure a transcript from the court reporter, she did receive a copy of the tape recordings. It appears
Wife copied, reviewed, and transcribed these tapes. She later filed her transcript and statement of
the evidence with the trial court. Husband responded with a detailed objection to Wife’s filing and
her statement of the evidence. He asserted the transcript contained numerous errors including the
attribution of testimony to incorrect or unnamed witnesses. He added that Wife entered only a
portion of the transcript that was available from the audio recordings, excluding much of the
testimony favorable to Husband. Additionally, he stated Wife repeated portions of the transcript and
placed them out of context. The trial court agreed with Husband and filed an order titled “Non
Certification of the Record” refusing to certify the purported transcript as a fair and accurate account
of the proceedings before the court. The court instead prepared and filed its own statement of the
evidence.
Nearly a year-and-a-half after Wife filed a notice of appeal, the briefing stage of this appeal
began. The onslaught of filings continued. The parties filed motions regarding the integrity of the
record, a motion to remand, and a motion for consideration of post-trial facts. The parties filed
numerous motions and responses related to extension of the briefing schedule. Wife moved to strike
Husband’s brief. The parties filed multiple motions to continue oral arguments. Husband filed
multiple notices alleging he had not received Wife’s appellate filings. Husband filed a motion to
require the appellate court clerk to forward copies of Wife’s pleadings to Husband. Wife moved to
vacate an order of the trial court. Wife moved to reconsider correcting the record. Husband filed
a notice of bankruptcy.18 Wife moved to stay the appeal. Many of these filings eclipsed 30 pages
including attachments. Most filings generated a response. Many responses gave rise to a reply. And
this Court diligently proceeded to respond to each filing by order. The parties, both pro se, finally
appeared before this Court for oral arguments in October 2010.19
Having determined there is no remaining impediment to our review, we now turn to the
18
Husband later filed notice with this Court demonstrating he dismissed his bankruptcy petition.
19
Wife raised a number of arguments during oral arguments that she did not raise in her brief, relying
on facts which find no support in the record. We explained at that time our review is limited to the record
before us, which we reiterate here.
-13-
issues presented in the parties’ briefs.20
II. Issues Presented
Wife raises the following issues, as we perceive them, for review:
(1) Whether this Court must dismiss this appeal for lack of a final judgment;
(2) Whether the appellate record is so corrupt due to no fault of Wife that we
must remand for correction;
(3) Whether the trial court abused its discretion during the allocation of parental
responsibility;
(4) Whether the trial court abused its discretion during the classification and
division of marital property;
(5) Whether the trial court abused its discretion when it awarded short-term,
transitional alimony to Wife;
(6) Whether the trial court abused its discretion when it ordered the parties to pay
their own attorney’s fees; and
(7) Whether the trial court abused its discretion when it ordered Wife to pay a
portion of the guardian ad litem fees.
Wife also presents issues on whether the trial court erred in imputing income to Wife, whether the
trial court erred when it deemed its award of guardian ad litem fees as child support, and whether
the trial court erred when it placed a lien on Wife’s portion of Husband’s 401k to secure Wife’s
payment of the guardian ad litem fees. Wife, however, offers at best skeletal arguments on these
issues supported by insufficient citation to legal authority or the record. These arguments are
20
Although we denied Wife’s motion to stay, we briefly delayed deciding this appeal while
attempting to verify whether Wife’s argument in another appeal might affect the validity of the statement of
the evidence. Wife asserted in her motion that a separate appeal concerning Judge Stokes’s decision not to
recuse himself following his purported receipt of a death threat might void the statement of the evidence.
Out of an abundance of caution, we waited until the filing of Wife’s brief in the aforementioned appeal to
determine whether she offered any argument in those proceedings that might affect our ability to rely on the
current statement of the evidence. We are satisfied she offered none. We further note she did not raise the
issue of recusal in this appeal or file a motion for consideration of post-judgement facts related to the alleged
death threat.
-14-
therefore waived.21 See Tenn. R. App. P. 27(a)(7); Tenn. Ct. App. R. 6(a), (b); Bean v. Bean, 40
S.W.3d 52, 55-56 (Tenn. Ct. App. 2000) (citations omitted).
III. Standard of Review
This Court reviews a trial court’s findings of fact de novo upon the record with a presumption
of correctness. Tenn. R. App. P. 13(d). We will reverse a trial court’s factual finding only if the
evidence preponderates against it. Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000) (citation
omitted). The evidence will preponderate against a trial court’s factual finding if the record supports
another finding of fact with greater convincing evidence. Mosley v. McCanless, 207 S.W.3d 247,
251 (Tenn. Ct. App. 2006) (citations omitted). Factual findings based on the trial court’s assessment
of witness credibility receive a higher degree of deference. See Keyt v. Keyt, 244 S.W.3d 321, 327
(Tenn. 2007) (citations omitted) (citation omitted). We will overturn factual findings that hinge on
the credibility of the witnesses only if clear and convincing evidence demonstrates error in the
court’s conclusion. Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). We review
the trial court’s resolution of legal questions de novo with no presumption of correctness. Bowden
v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000).
As we will explain herein, this Court reviews most issues decided in a divorce dispute for
an abuse of discretion. A trial court abuses its discretion if it (1) applies an incorrect legal standard,
(2) reaches an illogical or unreasonable decision, or (3) bases its decision on a clearly erroneous
evaluation of the evidence. Elliott v. Cobb, 320 S.W.3d 246, 249-50 (Tenn. 2010) (citation omitted).
A trial court also abuses its discretion if it strays beyond the applicable legal standards or when it
fails to properly consider the factors that customarily guide a discretionary decision. Lee Med., Inc.
v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (citation omitted). The abuse of discretion standard
does not permit this Court to second-guess the lower court’s judgment or merely substitute an
alternative we prefer. Id. (citations omitted). We must instead affirm the discretionary decision so
long as reasonable legal minds can disagree about its correctness. Eldridge v. Eldridge, 42 S.W.3d
82, 85 (Tenn. 2001) (citations omitted).
21
We state once again litigants cannot expect this Court to do their work for them. Bean v. Bean, 40
S.W.3d 52, 56 (Tenn. Ct. App. 2000) (citations omitted). “It is not the role of the courts, trial or appellate,
to research or construct a litigant’s case or arguments for him or her. . . .” Sneed v. Bd. of Pro’l
Responsibility, 301 S.W.3d 603, 615 (Tenn. 2010). The adversarial system of justice is premised on the idea
that “appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as
arbiters of legal questions presented and argued by the parties before them.” State v. Northern, 262 S.W.3d
741, 767 (Tenn. 2008) (Holder, J., concurring in part and dissenting in part) (quoting Carducci v. Regan, 714
F.2d 171, 177 (D.C. Cir. 1983)) (internal quotation marks omitted). Thus, “where a party fails to develop
an argument in support of his or her contention or merely constructs a skeletal argument, the issue is
waived.” Sneed, 301 S.W.3d at 615.
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IV. Analysis
This is not a complicated divorce case.22 It concerns a short-term marriage, two children, and
one marital asset. As Wife concedes in her brief, this dispute “quickly became more about the
divorce process itself than the marriage.” Scandalous accusations arose. Mysterious threats were
levied. DCS intervened. Numerous petitions, complaints, and motions were lodged. Substantial
attorney’s fees and guardian ad litem fees were incurred. Numerous non-parties found themselves,
willingly and unwillingly, at the center of a mounting storm. The result is a case that Wife candidly
describes as “bizarre in its procedural history” and a trial record that spans thirty-five volumes
excluding a verbatim transcript of the lengthy trial.
As in prior cases, the parties disagree about “[j]ust how this case was derailed into such
malevolence and expense.” Andrews v. Andrews, W2009-00161-COA-R3-CV, 2010 WL 3398826,
at *11 (Tenn. Ct. App. Aug. 31, 2010) (quoting the trial court) (internal quotation marks omitted),
perm. app. denied (Tenn. March 9, 2011). One might argue the tortuous history of this case is yet
another “mark of the failure of the legal system to effectively deal with and minimize the emotional
and financial conflicts inherent in ending . . . marriage.” Id. (quoting the trial court) (internal
quotation marks omitted). For our part, we will not entertain Wife’s request to further delay
resolution of this case. We will instead use the tools at our disposal to provide the parties some
sense of finality.
A. Final Judgment
The first question before this Court is whether we must dismiss this appeal for lack of subject
matter jurisdiction. This Court’s subject matter jurisdiction is limited to final judgments except
where otherwise provided by procedural rule or statute. Bayberry Assocs. v. Jones, 783 S.W.2d 553,
559 (Tenn. 1990) (citing Aetna Cas. & Sur. Co. v. Miller, 491 S.W.2d 85, 86 (Tenn. 1973)). Rule
3(a) of the Tennessee Rules of Appellate Procedure provides:
In civil actions every final judgment entered by a trial court from which an appeal lies
to the Supreme Court or Court of Appeals is appealable as of right. Except as
otherwise permitted in rule 9 and in Rule 54.02 Tennessee Rules of Civil Procedure,
if multiple parties or multiple claims for relief are involved in an action, any order
that adjudicates fewer than all the claims or the rights and liabilities of fewer than all
the parties is not enforceable or appealable and is subject to revision at any time
before entry of a final judgment adjudicating all the claims, rights, and liabilities of
all parties.
Tenn. R. App. P. 3(a). Because the trial court did not certify the final decree as final pursuant to
Rule 54.02, the court’s order is appealable as a matter of right only if it resolves all the claims rights,
22
We do not downplay the competing allegations of verbal and physical abuse in the parties’
pleadings. Such allegations, however, are sadly not uncommon in divorce cases.
-16-
and liabilities of the parties.
Wife contends the final decree of divorce in this case, which she appealed, is not a final
judgment because the trial court did not adjudicate two separate petitions for contempt she filed in
2006. We agree the cited petitions appear to remain unresolved. It also appears to this Court that
three additional petitions for contempt filed in 2005 remain unresolved. While these petitions may
have been previously dismissed or adjudicated as Husband suggests, the record before us does not
demonstrate the parties or the trial court resolved these matters prior to the entry of the court’s final
decree of divorce. The trial court’s final decree is therefore not a Rule 3(a) final judgment because
it does not resolve all the claims, rights, and liabilities of the parties. See Davis v. Davis, 224 S.W.3d
165, 168 (Tenn. Ct. App. 2006).
The absence of a final judgment poses a problem. We typically dismiss appeals from non-
final judgments for lack of subject matter jurisdiction. This Court has, however, exercised
jurisdiction over non-final judgments under the authority of Rule 2 of the Tennessee Rules of
Appellate Procedure. Rule 2 states:
For good cause, including the interest of expediting decision upon any matter,
the Supreme Court, Court of Appeals, or Court of Criminal Appeals may suspend the
requirements or provisions of any of these rules in a particular case on motion of a
party or on its motion and may order proceedings in accordance with its discretion,
except that this rule shall not permit the extension of time for filing a notice of appeal
prescribed in Rule 4, an application for permission to appeal to the Supreme Court
from the denial of an application for interlocutory appeal by an intermediate appellate
court prescribed in Rule 9(c), an application for permission to appeal to the Supreme
Court from an intermediate appellate court’s denial of an extraordinary appeal
prescribed in Rule 10(b), an application for permission to appeal prescribed in Rule
11, or a petition for review prescribed in Rule 12.
Tenn. R. App. P. 2 (emphasis added). Our supreme court has interpreted Rule 2 to permit
suspension of Rule 3(a) for good cause. Bayberry, 783 S.W.2d at 559.
This Court exercised its authority to suspend Rule 3(a) in Ruff v. Raleigh Assembly of God
Church, Inc., W2001-02578-COA-R3CV, 2003 WL 21729442 (Tenn. Ct. App. July 14, 2003), perm.
app. denied (Tenn. Jan. 5, 2004). We explained:
In order to suspend the requirements of Rule 3(a), this Court must affirmatively show
that the rule is suspended and must give a “good reason” for the suspension. See
Bayberry Assocs., 783 S.W.2d at 559; see also Tenn. R. App. P. 2. The stated
purpose behind Rule 2 is to empower the courts “to relieve litigants of the
consequences of noncompliance with the rules in those circumstances in which it is
appropriate to do so.” Tenn. R. App. P. 2 (advisory commission comment).
-17-
Ruff, 2003 WL 21729442, at *5. In Ruff, we found it appropriate to relieve the appellant of
noncompliance with Rule 3(a) in an appeal “with a tortured history” where the parties had been
entangled in court proceedings for over ten years. Id. We reasoned suspension of Rule 3(a) was
appropriate under the facts because the parties deserved some form of closure. Id.
The parties in this hotly contested divorce case equally deserve closure. The principal
impediment to both parties moving on from their unsuccessful experiment as a married couple is the
pending divorce dispute. It is clear the issues pending before this Court will remain highly disputed
until final resolution of this case. It is also evident these parties will litigate any and all potential
sources of dispute arising in this or related cases so long as this case is pending. Although we do not
favor the suspension of Rule 3(a), remanding this case to the trial court to resolve the aforementioned
petitions for contempt would not facilitate review of the issues before us. It would only cause further
strife and delay. We therefore find good reason to suspend the requirements of Rule 3(a) and
exercise jurisdiction over this appeal.
B. Record on Appeal
The next question before this Court is whether the record on appeal is so “corrupt” as to
preclude meaningful review of the trial court’s decision. Wife argues the appellate record is both
inadequate and incapable of correction despite her best attempts to prepare an accurate record. She
contends the trial court and the court clerk have submitted an incomplete and corrupt record where:
(1) the trial court did not authenticate any of the exhibits included in the record, (2) the record
contains several large notebooks titled “Shem Malmquist Exhibits” that were not before the court
at trial, (3) the record excludes at least one trial exhibit, (4) the court clerk did not include the record
from the dependency and neglect proceedings, (5) the court clerk did not include filings related to
an order of protection, and (6) the trial court’s statement of the evidence excluded the testimony of
thirteen witnesses. She contends remand is necessary as a matter of due process because she had no
hand in creating the numerous deficiencies which prevent full and fair review. In addition to
remand, Wife asks this Court to order supplementation of the statement of the evidence through
either the admission of the trial transcript or the re-taking of the testimony in open court.
Wife stands in a difficult position because it is first and foremost the appellant’s duty to
provide a record that allows meaningful appellate review. Marra v. Bank of New York, 310 S.W.3d
329, 335 (Tenn. Ct. App. 2009) (citing Tenn. R. App. P. 24(b); McDonald v. Onoh, 772 S.W.2d 913,
914 (Tenn. Ct. App. 1989)). “The burden is upon the appellant to show that the evidence
preponderates against the judgment of the trial court.” Outdoor Mgmt., LLC v. Thomas, 249 S.W.3d
368, 377-78 (Tenn. Ct. App. 2007) (citing Capital City Bank v. Baker, 442 S.W.2d 259, 266 (Tenn.
Ct. App. 1969)). “The burden is likewise on the appellant to provide the Court with a transcript of
the evidence or a statement of the evidence from which this Court can determine if the evidence does
preponderate for or against the findings of the trial court.” Id. at 378. “The result is generally that
where factual issues are raised, without an appellate record containing the facts, this court cannot
perform a de novo review or determine the preponderance of the evidence.” Tarpley v. Hornyak, 174
S.W.3d 736, 740 (Tenn. Ct. App. 2004) (citing Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App.
-18-
1992)). “Therefore, in such cases, we usually assume that the record, had it been preserved, would
have contained sufficient evidence to support the trial court’s factual findings.” Id. (citations
omitted).
We find no reason to depart from the traditional rules placing the duty to provide a sufficient
record on the appellant. Any deficiency in Wife’s position on appeal resulting from the abridged
account of a very lengthy trial is attributable to her. The sole reason we are without a full and
complete transcript of the trial proceedings is because Wife declined to procure it. The only reason
the statement of the evidence does not include a more extensive recitation of testimony allegedly
favorable to Wife is because she did not provide the trial court with a fair, accurate, and complete
account of the proceedings. Wife must now reap what she has sowed. It would create a perverse
incentive to remand for further proceedings, including the retaking of evidence, where the sole
impediment to unabridged review of the first trial—one producing an unfavorable result from Wife’s
perspective—is Wife’s refusal to procure the transcript admittedly available to her.
We further conclude none of the alleged deficiencies in the record affect our ability to
evaluate the trial court’s decision. Wife has not shown that inclusion of the notebooks titled “Shem
Malmquist Exhibits,” the alleged removal of at least one trial exhibit, the absence of the record from
the dependency and neglect proceedings, or the alleged failure to include filings related to an order
of protection will impact our decision in any way. The notebooks are easily ignored even if we
assume they were improperly included. The record from the dependency and neglect hearing is
irrelevant with respect to the issues before us. Wife provides no indication of what the alleged
missing exhibit—Volume 43 of the record designates a handwritten note marked “Emails” as exhibit
#103—would demonstrate, who presented the exhibit, or how it would alter this Court’s review.23
23
Wife asserted at oral arguments the missing exhibit contained exchanges between her and the GAL
which she alleged demonstrated the racial bias of the GAL. Wife, however, has provided this Court no basis
upon which to determine whether her assertion is true. The record nevertheless contains other trial exhibits
allegedly demonstrating the racial bias of the GAL. One exhibit, which purports to be from the Germantown
Police Department, contains a mugshot of Wife and states:
THIS ASIAN WOMAN IS DANGEROUS AND HAS A HISTORY OF CRIMINAL
ACTIVITY. LIKE MOST ASIANS WE WANT TO REMOVE THIS [sic] HER FROM
TENNESSEE INTO A MENTAL INSTITUTION OR PRISION [sic]. ACCORDING TO
DR. HUTSON AND DR. STEINBERG MS. NICOLOSI HAS AN ANTI-SOCIAL
DISORDER AND PSYCHOPATHIC TENDENCIES (SOCIOPATH). DUE TO MS.
NICOLOSI [sic] UNSTABLE BEHAVIOR SHE IS NOT ALLOWED ANY CONTACT
WITH HER CHILDREN. THE CHILDRENS [sic] ATTORNEY, GINA HIGGINS IS
ASSISTING US MAKING SURE THAT MS. NICOLOSI WILL NEVER BE ALLOWED
TO SEE OR HARM THESE CHILDREN AGAIN. IF YOU HAVE ANY INFORMATION
OR NEED CLARIFICATION ABOUT MS. NICOLOSI CALL LT. MELONIE HOWE AT
THE MEMPHIS POLICE DEPARTMENT. 901-373-3883.
(continued...)
-19-
The same is true for the papers related to an order of protection allegedly not included in the record.
Of course, we could review Wife’s contentions in greater detail had Wife provided the trial transcript
for our review. She did not, and we are without good reason to further delay the resolution of this
case.
We reject the suggestion that the trial court’s statement of the evidence does not provide a
satisfactorily fair, accurate, and complete account of the trial because the court did not recount all
of the testimony of witnesses purportedly favorable to Wife. Rule 24 of the Tennessee Rules of
Appellate Procedure governs the filing of a statement of the evidence where the transcript is
unavailable. It states, in pertinent part:
(c) Statement of the Evidence When No Report, Recital, or Transcript Is
Available. If no stenographic report, substantially verbatim recital or transcript of the
evidence or proceedings is available, the appellant shall prepare a statement of the
evidence or proceedings from the best available means, including the appellant’s
recollection. The statement should convey a fair, accurate and complete account of
what transpired with respect to those issues that are the bases of appeal. The
statement, certified by the appellant or the appellant’s counsel as an accurate account
of the proceedings, shall be filed with the clerk of the trial court within 60 days after
filing the notice of appeal. Upon filing the statement, the appellant shall
23
(...continued)
A second exhibit—an unsigned, typewritten letter purportedly from Husband’s private investigator to the
Tennessee Department of Commerce and Insurance—contains similar language:
I am attaching some additional information about Danielle Nicolosi Malmquist. Mrs. Gina
Higgins, assigned to the Malmquist children [sic] case has recently provided me with some
additional reports that will assist you in seeing that Ms. Malmquist is not a stable person.
Ms. Higgins indicates that Ms. Malmquist [sic] Asian ways have lead [sic] her to be driven
out of Shelby County and her children [sic]. . . . Ms. Malmquist was determined to be a
psychopath by several court appointed psychologist [sic] that are involved in this case. I
have spoken with the GAL on several occasions and she is of the same opinion that I am
about the children’s safety being at risk around Ms. Malmquist. Ms. Higgins believes that
Ms. Malmquist [sic] unstable Asian Culture leads her to be a risk around her children. The
oriental couple, He’s, who recently caused many problems in Shelby County used their child
to escape deportation. Hopefully soon Ms. Malmquist will be deported out.
To say the least, the authenticity of these exhibits was a source of dispute. Their inclusion in the record
nevertheless demonstrates the trial court had before it evidence purportedly showing the bias of the GAL due
to Wife’s race. Additionally, the trial court specifically noted Wife’s testimony that the GAL was biased
against Asian-Americans. The trial court’s final decree impliedly rejected the assertion of bias, the
credibility of Wife, and the reliability of her trial exhibits. It is therefore inconceivable that the missing
exhibit, even if we assume it is not a stack of emails provided elsewhere in the record, would unravel the
basis for the trial court’s decision. We also note Wife asserted at oral arguments—but not in her appellate
brief—that Exhibits #65, #91, and #92 were missing from the record. This statement was demonstrably false.
-20-
simultaneously serve notice of the filing on the appellee, accompanied by a short and
plain declaration of the issues the appellant intends to present on appeal. Proof of
service shall be filed with the clerk of the trial court with the filing of the statement.
If the appellee has objections to the statement as filed, the appellee shall file
objections thereto with the clerk of the trial court within fifteen days after service of
the declaration and notice of the filing of the statement. Any differences regarding
the statement shall be settled as set forth in subdivision (e) of this rule.
....
(e) Correction or Modification of the Record. If any matter properly
includable is omitted from the record, is improperly included, or is misstated therein,
the record may be corrected or modified to conform to the truth. Any differences
regarding whether the record accurately discloses what occurred in the trial court
shall be submitted to and settled by the trial court regardless of whether the record
has been transmitted to the appellate court. Absent extraordinary circumstances, the
determination of the trial court is conclusive. If necessary, the appellate or trial court
may direct that a supplemental record be certified and transmitted.
Tenn. R. App. P. 24(c), (e) (emphasis added).
The trial court’s decision to enter its own statement of the evidence amounted to an implied
recognition that Wife’s statement of the evidence did not fairly portray the events at trial. Although
the trial court recited the relevant testimony of some of Wife’s witnesses, its decision to exclude a
recitation of testimony by others might indicate a number of things. It might indicate the trial court
found such testimony was unnecessary to provide a fair, accurate, and complete account of what
transpired with respect to the issues serving as the bases of this appeal. It might indicate the trial
court found such testimony not credible or wholly irrelevant. Or it might simply indicate the trial
court had an insufficient basis upon which to recount accurately the testimony of these witnesses.
In any event, we conclude the trial court fulfilled its duty under the unique circumstances of this case
and find its determination conclusive. The alternative, in our view, is to conclude Wife did not
provide a sufficient record for review and summarily affirm the trial court’s decision. We instead
choose to review the case on its merits. We also find good reason under the facts to suspend the
requirements of Rule 24 to the extent, if any, the trial court’s statement of the evidence provides an
incomplete account of the events before it because the court did not recount the testimony of all 30
witnesses who testified.
Finally, Wife’s contention regarding the trial court’s alleged failure to authenticate the trial
exhibits does not persuade us she is entitled to remand. Rule 24 of the Tennessee Rules of Appellate
Procedure provides, in pertinent part:
(f) Approval of the Record by Trial Judge or Chancellor. The trial judge shall
approve the transcript or statement of the evidence and shall authenticate the exhibits
-21-
as soon as practicable after the filing thereof or after the expiration of the 15-day
period for objections by appellee, as the case may be, but in all events within 30 days
after the expiration of said period for filing objections. Otherwise the transcript or
statement of the evidence and the exhibits shall be deemed to have been approved
and shall be so considered by the appellate court, except in cases where such
approval did not occur by reason of the death or inability to act of the trial judge.
Tenn. R. App. P. 24(f). Contrary to an assertion in Wife’s brief, the court clerk filed numerous
volumes of exhibits individually and collectively stamped “Filed Jun 01 2009 Clerk of the Courts”
after the court considered Wife’s statement of the evidence and Husband’s objection thereto. The
court thereafter filed an order in June 2006, entered nunc pro tunc to April 17, 2006, decertifying the
partial transcripts Wife filed. Importantly, the order submitted for review on appeal the court’s
previous statement of the evidence “along with the exhibits which were authenticated by this [c]ourt
and hereby made part of the record.” We therefore disagree the trial court failed to authenticate the
exhibits in the record. Also, we again find good reason to excuse any technical noncompliance, if
any, with the mandates of Rule 24, noting Wife does not question the validity of the trial exhibits
in the record. We decline to remand this case and conclude the record provides a satisfactory basis
for review.
C. Allocation of Parental Responsibility
The next issue before this Court is whether the trial court abused its discretion when it
allocated parental responsibility for the parties’ two children. The allocation of parental
responsibility is one of the most important decisions confronting the courts. Chaffin v. Ellis, 211
S.W.3d 264, 286 (Tenn. Ct. App. 2006) (citation omitted). The overriding goal of a trial court is to
approve a parenting plan that promotes the best interests and welfare of the child, regardless of the
parents’ interests in the resulting parenting arrangement. Burden v. Burden, 250 S.W.3d 899, 909
(Tenn. Ct. App. 2007) (citation omitted). “[I]n fact, the interests of the parents are secondary to
those of the children.” Id. (quoting Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct.
App. 1997)) (emphasis in original) (internal quotation marks omitted).
“No hard and fast rules exist for determining which [parenting] arrangement will best serve
a child’s needs; inquiry is factually driven and requires courts to carefully weigh numerous
considerations.” Hogue v. Hogue, 147 S.W.3d 245, 251 (Tenn. Ct. App. 2004) (citing Gaskill v.
Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996)). Courts favor the right of the alternative
residential parent to reasonable parenting time. See Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.
2001) (citations omitted). Courts, however, may limit or eliminate a parent’s unsupervised parenting
time if there is definite evidence to show the exercise of that right would jeopardize the child. See
id. (citations omitted) (internal quotation marks omitted). The best interests and welfare of a child
may require the trial court to place limitations on the parenting time of either or both of the parents.
Hogue, 147 S.W.3d at 251 (citing D v. K, 917 S.W.2d 682, 685 (Tenn. Ct. App. 1995)).
“In choosing which parent to designate as the primary residential parent for the child, the
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court must conduct a ‘comparative fitness’ analysis, requiring the court to determine which of the
available parents would be comparatively more fit than the other.” Ellis, 211 S.W.3d at 286 (citing
Bah v. Bah, 668 S.W.2d 663, 666 (Tenn.1983)). “In engaging in this analysis, the court must
consider the factors set out in Tennessee Code Annotated § 36-6-106(a).” Id. (footnote omitted).
Trial courts have broad discretion when allocating parental responsibility, but their determinations
“must be based on the proof at trial and the applicable principles of law.” Id. (citation omitted).
“The decision frequently hinges on the credibility of the witnesses at trial, a matter that is within the
sound discretion of the trial court; consequently, appellate courts are loathe to second-guess a trial
court’s conclusion.” Id. at 286-87 (citations omitted).
Appellate courts review a trial court’s allocation of parental responsibility for an abuse of
discretion. See Fulbright v. Fulbright, 64 S.W.3d 359, 365 (Tenn. Ct. App. 2001) (citation omitted).
It is not within the province of appellate courts to tweak a parenting plan in hopes of achieving a
better result than the trial court. See Eldridge, 42 S.W.3d at 88. As our supreme court has
explained,
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 [parental responsibilities], 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).
Id. The trial court’s discretion, however, is not unbounded. Hogue, 147 S.W.3d at 251 (citation
omitted). The court must base its decision upon proof and apply the appropriate legal principles.
Id. (citation omitted).
The General Assembly has codified two lists of factors courts must consider before allocating
parental rights and responsibilities in a divorce case.24 See Tenn. Code Ann. § 36-6-106(a) (2010);
24
The existence of two separate statutory frameworks that expressly apply when allocating custody
(continued...)
-23-
Tenn. Code Ann. § 36-6-404(b) (2010). Tennessee Code Annotated section 36-6-106(a) requires
a trial court to determine custody on the basis of the child’s best interests and “consider all relevant
factors, including the following, where applicable”:
(1) The love, affection and emotional ties existing between the parents or
caregivers and the child;
(2) The disposition of the parents or caregivers to provide the child with food,
clothing, medical care, education and other necessary care and the degree to which
a parent or caregiver has been the primary caregiver;
(3) The importance of continuity in the child’s life and the length of time the
child has lived in a stable, satisfactory environment; provided, that, where there is a
finding, under subdivision (a)(8), of child abuse, as defined in § 39-15-401 or §
39-15-402, or child sexual abuse, as defined in § 37-1-602, by one (1) parent, and
that a nonperpetrating parent or caregiver has relocated in order to flee the
perpetrating parent, that the relocation shall not weigh against an award of custody;
(4) The stability of the family unit of the parents or caregivers;
(5) The mental and physical health of the parents or caregivers;
(6) The home, school and community record of the child;
(7)(A) The reasonable preference of the child, if twelve (12) years of age or
older;
(B) The court may hear the preference of a younger child on request. The
24
(...continued)
and/or parental responsibility in a divorce case creates room for confusion on precisely how courts should
go about deciding such issues and how best to describe the results they reach. The terms “custody” and
“visitation” found in Tennessee Code Annotated section 36-6-101 et seq., while not entirely obsolete, are
outmoded when considering a determination of parental responsibility under Tennessee Code Annotated
section 36-6-401 et seq., which was adopted in part to change the language of child custody decisions. See
Janet Leach Richards, Richards on Tennessee Family Law, § 8-2(e) (3d ed. 2008) (footnotes omitted). Judge
Don. R. Ash, one of the leading proponents of reform, explains the need to recast the terminology of custody
decisions: “The archaic terms ‘custody’ and ‘visitation’ convey ownership over the child and imply that one
party is merely a visitor in the home. These terms should be replaced with more user-friendly words.” Judge
Don R. Ash, Bridge Over Trouble Water: Changing the Custody Law in Tennessee, 27 U. Mem. L. Rev. 769,
801 (2007) (footnote omitted). The parenting plan statute did just that, replacing the traditional concepts of
joint legal and physical custody with a new concept: the residential parenting schedule. 19A W. Walton
Garrett, Tennessee Practice Series: Tennessee Divorce, Alimony and Child Custody § 26:3, at 78 (2d rev.
ed. 2007). As a result, traditional terms such as custody, visitation, custodial parent, and noncustodial parent
have given way to new terms, e.g., “residential schedule, temporary and permanent parenting plans, primary
residential parent, alternate residential parent, and parenting responsibilities.” Richards, supra, at § 8-2(e)
(footnotes omitted). The Code nevertheless harbors remnants of the old regime which are equally applicable
to the decision of parenting issues before us. Because the change in terminology incorporated into the
parenting plan statute was intended to inspire parties to move beyond the win-lose mentality present in
previous disputes over parental responsibility, see id., it is unclear why the legislature has not revised other
statutory provisions to incorporate similar terms. We have attempted in this opinion to recast the issues
presented in the more user-friendly language.
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preferences of older children should normally be given greater weight than those of
younger children;
(8) Evidence of physical or emotional abuse to the child, to the other parent
or to any other person; provided, that, where there are allegations that one (1) parent
has committed child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual
abuse, as defined in § 37-1-602, against a family member, the court shall consider all
evidence relevant to the physical and emotional safety of the child, and determine,
by a clear preponderance of the evidence, whether such abuse has occurred. The
court shall include in its decision a written finding of all evidence, and all findings
of facts connected to the evidence. In addition, the court shall, where appropriate,
refer any issues of abuse to the juvenile court for further proceedings;
(9) The character and behavior of any other person who resides in or
frequents the home of a parent or caregiver and the person’s interactions with the
child; and
(10) 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.
Tenn. Code Ann. § 36-6-106(a).
Tennessee Code Annotated section 36-6-404 requires courts to establish a permanent
parenting plan in divorce cases. Tenn. Code Ann. § 36-6-404(a). The permanent parenting plan
must set forth a residential schedule in consideration of the following factors:
(1) The parent’s ability to instruct, inspire, and encourage the child to prepare
for a life of service, and to compete successfully in the society that the child faces as
an adult;
(2) The relative strength, nature, and stability of the child’s relationship with
each parent, including whether a parent has taken greater responsibility for
performing parenting responsibilities relating to the daily needs of the child;
(3) The willingness and ability of each of the parents to facilitate and
encourage a close and continuing parent-child relationship between the child and the
other parent, consistent with the best interests of the child;
(4) Willful refusal to attend a court-ordered parent education seminar may be
considered by the court as evidence of that parent’s lack of good faith in these
proceedings;
(5) The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care;
(6) 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;
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(7) The love, affection, and emotional ties existing between each parent and
the child;
(8) The emotional needs and developmental level of the child;
(9) The character and physical and emotional fitness of each parent as it
relates to each parent’s ability to parent or the welfare of the child;
(10) The child’s interaction and interrelationships with siblings and with
significant adults, as well as the child’s involvement with the child’s physical
surroundings, school, or other significant activities;
(11) The importance of continuity in the child’s life and the length of time the
child has lived in a stable, satisfactory environment;
(12) Evidence of physical or emotional abuse to the child, to the other parent
or to any other person;
(13) 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;
(14) 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;
(15) Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules; and
(16) Any other factors deemed relevant by the court.
Tenn. Code Ann. § 36-6-404(b)(1)–(16).
The trial court expressly relied on Tennessee Code Annotated sections 36-6-106(a) and
-404(b) when allocating parental responsibility in this case. Most of the relevant statutory factors
favored Husband. The court found Husband served as primary caregiver to the children from
December 2005 forward; Husband provided continuity and stability in the children’s life; Husband
exhibited a willingness to foster future good relations with Wife and believed the children should
have a close relationship with Wife; Husband tested reasonably well on the psychological
examinations and had the financial wherewithal to care for the children; Husband maintained a
flexible work schedule, allowing him to work many days out of the home while the children were
with him;25 no agency assigned to investigate the numerous serious allegations against Husband with
respect to the children found evidence of any intentional or accidental wrongdoings; and the
Tennessee Bureau of Investigation found insufficient evidence to charge Husband in the alleged rape
of Wife.
Many of these factors, on the other hand, weighed against Wife’s position. The trial court
found Wife visited the children inconsistently, demonstrated an unstable environment, and did not
facilitate a close and continuing relationship between the children and Husband. Although Wife
25
Husband explained at trial he works mainly from home arranging and monitoring flights
worldwide.
-26-
asserted the cost of visitation as a concern, the court noted Wife visited her psychologist at least 60
times during the same period but visited her children less than half that number. Further, Wife
continued to register economic complaints even after the trial court ordered Husband to pay half of
the hourly fee, visiting the children only twice between September 2006 and February 2007.
Additionally, the court found Wife initiated efforts to take the children back to California under the
guise of a California custody order at a time when the court had full jurisdiction of the divorce matter
and the dependency and neglect case.
The court further found Wife did not fare particularly well on the psychological
examinations. The court recognized Wife received multiple mental health evaluations but
emphasized the findings of Dr. Steinberg. The Court relied on Dr. Steinberg’s findings that Wife
revealed traits that bordered on delusional, showed tendencies to portray herself as a constant victim,
and showed prosecutorial tendencies. Dr. Steinberg explained his reference to prosecutorial
tendencies as describing a person who accuses and blames others coupled with bizarreness consistent
with paranoid thinking. The court also placed reliance on Dr. Steinberg’s testimony that Wife’s
GAF score of 50 reflected a person with a low level of functioning, giving cause for concern. The
court added, “Wife will not seek to bring closure to this seemingly endless litigation, despite her own
treating psychologist’s advice to bring an end to this litigation, which he states is the major source
of her mental anxiety.” Finally, the court emphasized that Wife frequently received treatment by
multiple psychologists and psychiatrists and was taking several mood-altering medications at the
time of the trial.
Not all factors favored Husband over Wife. The court found, for example, both parties
demonstrated affection for the children and the children had strong attachments to both parents. The
court also found no evidence that any person who resided in or frequented either party’s home posed
a threat of potential harm to the children. Additionally, the court found no evidence to show the
numerous allegations concerning abuse of the children made throughout this case were credible or
that the children suffered from any of these alleged events. The court weighed these and other
factors before concluding in its discretion that Husband would serve as primary residential parent
of the parties’ children and Wife would receive supervised visitation.
Wife argues the trial court abused its discretion when allocating parental responsibility. She
asserts the court placed too much emphasis on Dr. Steinberg’s report and testimony, arguing the
court should have given more weight to the findings of Drs. Hutson, Ciocca, and Aranov. She
further argues the trial court relied too heavily on the continuity of placement, Husband’s income,
and Wife’s lack of visitation as factors supporting Husband. According to Wife, much of the
damaging evidence against her resulted from Husband’s legal maneuvering during the course of
litigation, which she argues should not serve as the basis of the court’s decision on parental
responsibility. She concludes the trial court abused its discretion when it named Husband primary
residential parent, as well as when it restricted her parenting time without finding a substantial risk
of harm to the children.
-27-
Wife, however, cites to virtually no facts in the record to support her position.26 She has
resultantly failed to demonstrate the evidence preponderates against the factual findings underlying
the court’s decision or to provide any basis upon which to overturn the trial court’s resolution of
conflicting expert testimony in favor of Dr. Steinberg. See Brown v. Crown Equip. Corp., 181
S.W.3d 268, 275 (Tenn. 2005) (citation omitted) (stating “[t]he weight of the theories and the
resolution of legitimate but competing expert opinions are matters entrusted to the trier of fact”);
Johnson v. Mid Wesco, Inc., 801 S.W.2d 804, 806 (Tenn. 1990) (citation omitted) (recognizing trial
courts have discretion to accept the opinion of one expert over that of another); Estate of Fetterman
v. King, 206 S.W.3d 436, 445 (Tenn. Ct. App. 2006) (citation omitted) (explaining the resolution
of conflicting expert testimony falls within the province of the trier of fact). Additionally, Wife has
failed to persuade us the trial court abused its discretion during its evaluation of the relevant statutory
factors.
The closer question is whether the trial court abused its discretion when it limited Wife’s
award of parenting time to supervised visitation. Tennessee Code Annotated section 36-6-406
permits a court to limit a parent’s residential parenting time. It provides, in pertinent part:
(d) A parent’s involvement or conduct may have an adverse effect on the
child’s best interest, and the court may preclude or limit any provisions of a parenting
plan, if any of the following limiting factors are found to exist after a hearing:
26
Wife’s brief consistently violates Rule 27 of the Tennessee Rules of Appellate Procedure which
provides, in pertinent part:
(a) Brief of the Appellant. The brief of the appellant shall contain under appropriate
headings and in the order here indicated:
....
(7) An argument, which may be preceded by a summary of argument, setting forth:
(A) the contentions of the appellant with respect to the issues
presented, and the reasons therefor, including the reasons why the
contentions require appellate relief, with citations to the authorities and
appropriate references to the record (which may be quoted verbatim) relied
on; and
(B) for each issue, a concise statement of the applicable standard
of review (which may appear in the discussion of the issue or under a
separate heading placed before the discussion of the issues);
....
(g) Reference in Briefs to the Record. Except as provided in rule 28(c), reference
in the briefs to the record shall be to the pages of the record involved. Intelligible
abbreviations may be used. If reference is made to evidence, the admissibility of which is
in controversy, reference shall be made to the pages in the record at which the evidence was
identified, offered, and received or rejected.
Tenn. R. App. P. 27.
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(1) A parent’s neglect or substantial nonperformance of parenting
responsibilities;
(2) An emotional or physical impairment that interferes with the parent’s
performance of parenting responsibilities as defined in § 36-6-402;
(3) An impairment resulting from drug, alcohol, or other substance abuse that
interferes with the performance of parenting responsibilities;
(4) The absence or substantial impairment of emotional ties between the
parent and the child;
(5) The abusive use of conflict by the parent that creates the danger of damage
to the child’s psychological development;
(6) A parent has withheld from the other parent access to the child for a
protracted period without good cause;
(7) A parent’s criminal convictions as they relate to such parent’s ability to
parent or to the welfare of the child; or
(8) Such other factors or conduct as the court expressly finds adverse to the
best interests of the child.
Tenn. Code Ann. § 36-6-406(d)(1)–(8) (2010). In addition, the parenting plan statute requires the
trial court to “[m]inimize the child’s exposure to harmful parental conflict.” Tenn. Code Ann. §
36-6-404(a)(3).
We conclude the trial court did not abuse its discretion in allocating parental responsibility
under the facts of this case, especially where the unusual and potentially harmful events concerning
the children ceased after the court ordered supervision of Wife’s parenting time on a temporary basis.
We conclude the court properly accounted for the relevant statutory factors when it named Husband
primary residential parent. Also, the trial court restricted Wife’s unsupervised parenting time only
upon a finding of facts supporting its restriction. To the extent the trial court erred by not expressly
stating its reliance on Tennessee Code Annotated section 36-6-406, we conclude the evidence in the
record supports the imposition of supervised parenting time as set forth in the trial court’s order.27
We expressly find Wife’s instability, mental health issues, abusive use of litigation to create conflict,
refusal to promote a relationship between the children and their father, and attempt to remove the
children from the jurisdiction are all such factors adverse to the best interests of the children and
which support supervision of her parenting time. We find definite evidence in the record to
demonstrate that awarding Wife unsupervised parenting time would jeopardize the children
physically and emotionally.
We disagree with the suggestion that Tennessee Code Annotated section 36-6-301 precludes
the imposition of supervised parenting time under the facts. That provision states:
27
Due to Wife’s decision not to procure the verbatim trial transcript, we are unable to determine
whether additional testimony exists to support the court’s decision.
-29-
After making an award of custody, the court shall, upon request of the non-custodial
parent, grant such rights of visitation as will enable the child and the non-custodial
parent to maintain a parent-child relationship unless the court finds, after a hearing,
that visitation is likely to endanger the child’s physical or emotional health. In
granting any such rights of visitation, the court shall designate in which parent’s
home each minor child shall reside on given days of the year, including provisions
for holidays, birthdays of family members, vacations and other special occasions. If
the court finds that the non-custodial parent has physically or emotionally abused the
child, the court may require that visitation be supervised or prohibited until such
abuse has ceased or until there is no reasonable likelihood that such abuse will recur.
The court may not order the department of children’s services to provide supervision
of visitation pursuant to this section except in cases where the department is the
petitioner or intervening petitioner in a case in which the custody or guardianship of
a child is at issue.
Tenn. Code Ann. § 36-6-301 (2010). The trial court granted Wife such rights as will enable her to
maintain a parent-child relationship with her children if she so chooses. Although a finding of
emotional or physical abuse permits the imposition of supervised visitation under the cited statutory
provision, we disagree that restriction of Wife’s parenting time is appropriate only upon such
findings. The plain language of Tennessee Code Annotated section 36-6-301 suggests restriction
of visitation is appropriate if unsupervised visitation “is likely to endanger the child’s physical or
emotional health.” Tenn. Code. Ann. § 36-6-301. Tennessee Code Annotated section 36-6-406
likewise permits the limitation of any provision of a parenting plan, including the provision related
to the residential schedule. In light of our previous conclusion that Tennessee Code Annotated
section 36-6-406 applies here, we find ample support for the award of supervised parenting time.
The trial court’s allocation of parental responsibility is affirmed.
D. Transmutation & Commingling
The next question before this Court is whether the trial court erred when it classified the
Germantown residence and its furnishings as separate property.28 The first step in dividing a marital
estate is to identify all of the parties’ property interests. Keyt, 244 S.W.3d at 328 (citation omitted).
The next step is to classify the property as either marital or separate. Id. (citations omitted). The
correct classification of property is essential because the statutory provisions governing divorce
provide only for the equitable distribution of marital property. Batson v. Batson, 769 S.W.2d 849,
856 (Tenn. Ct. App. 1988) (citation omitted). Parties are entitled to their separate property without
consideration of the equities between them. Id. “Because the courts do not have the authority to
make an equitable distribution of separate property, whether separate property should be considered
marital is a threshold matter.” Keyt, 244 S.W.3d at 328 (citation omitted). “As such, a spouse
seeking to include the other spouse’s separate property in the marital estate has the burden of proving
28
Wife concedes in her brief that Husband acquired the furnishings at issue during the purchase of
the Germantown residence.
-30-
that the property fits within the statutory definition of marital property.” Id. (citation omitted).
All real and personal property acquired prior to a marriage is separate property. Tenn. Code
Ann. § 36-4-121(b)(2)(A). Separate property may nevertheless become part of the marital estate
under the doctrines of transmutation and commingling. Langschmidt v. Langschmidt, 81 S.W.3d
741, 747 (Tenn. 2002).
[Transmutation] occurs when separate property is treated in such a way as to give
evidence of an intention that it become marital property. One method of causing
transmutation is to purchase property with separate funds but to take title in joint
tenancy. This may also be done by placing separate property in the names of both
spouses. The rationale underlying both these doctrines is that dealing with property
in these ways creates a rebuttable presumption of a gift to the marital estate. This
presumption is based also upon the provision in many marital property statutes that
property acquired during the marriage is presumed marital. The presumption can be
rebutted by evidence of circumstances or communications clearly indicating an intent
that the property remain separate.
Eldridge v. Eldridge, 137 S.W.3d 1, 13-14 (Tenn. Ct. App. 2002) (quoting Batson, 769 S.W.2d at
858); accord Woodward v. Woodward, 240 S.W.3d 825, 829 (Tenn. Ct. App. 2007) (quoting
Langschmidt, 81 S.W.3d at 747). “The related doctrine of commingling concerns instances where
separate property becomes marital property when the separate property is inextricably mingled with
marital property or the other spouse’s separate property.” Eldridge, 137 S.W.3d at 14 (citation
omitted). “Commingling does not occur if the separate property can be traced into its product or if
the separate property continues to be segregated.” Id. (citation omitted).
The trial court determined the Germantown residence and its furnishing were separate
property. The court relied on the following facts: (1) Husband purchased the home before the parties
married in October 2004; (2) Husband purchased the home solely with his funds; (3) the deed and
promissory note to the property were in Husband’s name only, (4) Wife’s signature was not found
on any deed to the property or any closing documents; (5) Wife provided no evidence to show she
made a substantial contribution to the preservation and appreciation of the home during the marriage;
(6) Husband lived at the home, paid the notes on the property, and maintained the property the entire
period during which they lived there as a married couple; and (7) Husband took no action to
demonstrate transmutation of the property to marital property. The court further found certain
vehicles owned prior to the marriage were the separate property of the parties and that Wife’s
clothing was her separate property. It concluded each party was “vested with his or her separate
property, free and clear of any claim by the other.”
Wife argues the trial court erred when it determined the Germantown residence and its
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furnishings were separate property.29 She contends without a single citation to evidence in the record
that the trial court erroneously classified said property as separate “relying only on the record title
and the fact that the Husband purchased the home prior to the marriage.” Wife submits in her brief:
In this case, there is no dispute that the parties had a joint bank account from
which the Husband drew the money for the down payment of the marital residence
($74,000). There is no dispute that the parties resided together in California prior
[to] the Husband's purchase of the home and that the Wife came to Tennessee and
moved into the residence with the Husband. There is also no dispute that the
Husband continued to use his income (marital property) to pay the mortgage
indebtedness through the marriage and divorce process.
Wife concludes these alleged facts demonstrate her right to “at least one-half of the fair market value
(or at least one-half of the down payment) and one-half of the furnishings from the real property. .
. .” We disagree.
Wife has failed to demonstrate that the evidence preponderates against the trial court’s factual
findings or that the trial court erred as a matter of law. She does not cite a single piece of evidence
to support her assertions, nor does the evidence in the record contradict the court’s findings. The
statement of the evidence shows Wife agreed at trial that Husband purchased the Germantown
residence prior to their marriage with proceeds from the sale of his California home. Although she
purportedly helped Husband renovate the California home prior to its sale, she was unable to produce
any receipts or records demonstrating she invested funds in the California property or obtained an
ownership stake in the property. While Husband concedes the parties established a joint bank
account prior to the marriage, he testified he purchased the home solely with funds traceable to his
separate assets.
As Husband explains in his brief, the trial exhibits supported a finding that he purchased the
Germantown residence with his separate funds. The trial exhibits showed he and Wife funded the
joint bank account with checks to Husband in the amount of $96,795 and a single check to Wife in
the amount of $300. These deposits included one $80,000 check transferring funds from Husband’s
separate checking account at Chaffey Credit Union, which represented proceeds from the sale of his
California home. Husband testified he thereafter purchased the Germantown residence with a
portion of these funds, withdrawing $74,000 from the joint bank account. Our review of the record
supports Husband’s description of these exhibits. We accordingly find the evidence does not
preponderate against the trial court’s conclusion that Husband purchased the Germantown residence
with solely his funds prior to the marriage.
The remaining question is whether the evidence in the record demonstrates that transmutation
or commingling occurred. We agree with Wife’s assertion that record ownership of an asset does
29
Wife’s brief reproduces lengthy passages from prior cases addressing transmutation and
commingling but does not establish which doctrine she relies on here.
-32-
not always control its classification. See Altman v. Altman, 181 S.W.3d 676, 680-81 (Tenn. Ct. App.
2005). Courts may consider several factors when determining whether transmutation has occurred,
including:
(1) the use of the property as a marital residence; (2) the ongoing maintenance and
management of the property by both parties; (3) placing the title to the property in
joint ownership; and (4) using the credit of the non-owner spouse to improve the
property.
Fox v. Fox, M2004-02616-COA-R3-CV, 2006 WL 2535407, at *5 (Tenn. Ct. App. Sept. 1, 2006)
(citation omitted). The trial court placed little reliance on Wife’s brief stay at the Germantown
residence as a factor demonstrating transmutation. The court instead emphasized facts showing
Husband never titled the residence in Wife’s name, her name never appeared on the documents
related to its purchase, and Husband maintained the property at all times during the marriage.
Additionally, Husband testified the residence remained titled in his name only, even though Wife
had asked him to title the property jointly. Having reviewed the record, we agree with the trial
court’s determination that transmutation did not occur. We further conclude Wife has not
demonstrated that commingling occurred. We accordingly affirm the trial court’s classification of
the Germantown residence and its furnishings as separate property.
E. Alimony
The next question before this Court is whether the trial court abused its discretion when it
awarded Wife four months of transitional alimony in the amount of $2,500. Tennessee Code
Annotated section 36-5-121 provides courts discretion to award spousal support “according to the
nature of the case and the circumstances of the parties.” Tenn. Code Ann. § 36-5-121(a) (2010).
This discretion includes authority to award “rehabilitative alimony, alimony in futuro, also known
as periodic alimony, transitional alimony, or alimony in solido, also known as lump sum alimony
or a combination of these . . . .” Tenn. Code Ann. § 36-5-121(d)(1). The intent of the General
Assembly is that “a spouse, who is economically disadvantaged relative to the other spouse, be
rehabilitated, whenever possible, by the granting of an order for payment of rehabilitative alimony.”
Tenn. Code Ann. § 36-5-121(d)(2) (2010).
Rehabilitative alimony is, however, sometimes insufficient to support the requesting spouse.
At other times, it is unnecessary. The Code therefore provides a number of options courts may
consider when evaluating the issue of alimony. Courts may order the payment of long-term support
until the death or remarriage of the recipient where there is relative economic disadvantage and
rehabilitation is not feasible, Tenn. Code Ann. § 36-5-121(d)(3); the payment of alimony in futuro
instead of rehabilitative alimony if rehabilitation of the recipient is not feasible; Tenn. Code Ann.
§ 36-5-121(d)(4); the payment of alimony in futuro in addition to rehabilitative alimony if a spouse
can only be partially rehabilitated, Tenn. Code Ann. § 36-5-121(d)(4); the payment of transitional
alimony if the court finds that rehabilitation is unnecessary, but the economically disadvantaged
spouse needs assistance to adjust to the economic consequences of a divorce, legal separation or
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other proceeding, Tenn. Code Ann. § 36-5-121(d)(4); and the payment of alimony in solido in lieu
of, or in addition to, any other alimony award where appropriate, Tenn. Code Ann. § 36-5-121(d)(5).
Tennessee Code Annotated section 36-5-121(i) sets forth the factors governing a trial court’s
decision to award alimony, if any, to a requesting spouse:
(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
(12) Such other factors, including the tax consequences to each party, as are
necessary to consider the equities between the parties.
Tenn. Code Ann. § 36-5-121(i)(1)–(12) (2010).
It is well-settled that the two most important factors relating to a trial court’s award of
alimony are the need of the economically disadvantaged spouse and the opposing spouse’s ability
to pay. E.g. Watson v. Watson, 309 S.W.3d 483, 497-98 (Tenn. Ct. App. 2009) (citation omitted);
Williams v. Williams, 286 S.W.3d 290, 295-96 (Tenn. Ct. App. 2008) (citations omitted). The trial
court’s evaluation of the relevant factors is nevertheless entitled to considerable deference on appeal.
“The amount, if any, and type of alimony to be awarded is within the sound discretion of the trial
court in view of the particular circumstances of the case and a consideration of the relevant factors
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set forth in Tenn. Code Ann. § 36-5-121(i)(1-12).” Farnham v. Farnham, 323 S.W.3d 129, 143
(Tenn. Ct. App. 2009); accord Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995). “Appellate
courts are, therefore, reluctant to second guess a trial court’s decision regarding alimony ‘unless it
is not supported by the evidence or is contrary to the public policy embodied in the applicable
statutes.’” Watson, 309 S.W.3d at 497 (quoting Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct.
App. 1994)).
Wife contends the trial court abused its discretion when it awarded her short-term,
transitional alimony. Her main contention is that the trial court focused too heavily on the brevity
of the marriage when evaluating the issue of alimony. She also argues, again without sufficient
citation to evidence in the record to support her factual assertions, that the trial court should have
focused more on the disparity of the parties’ income, Husband’s admitted affair, and her significant
financial need. Wife concludes the court’s award did not provide sufficient funds to aid her
transition back into the workplace. She accordingly requests an award of rehabilitative alimony for
three years in the amount of $3,200 per month.
Husband argues the trial court did not abuse its discretion. He argues the trial court
appropriately considered the above statutory factors when awarding alimony. Husband argues Wife
has not demonstrated a need for further education given her Bachelor’s Degree in Architecture,
Master’s Degree in Architecture, and Master’s Degree in Real Estate Development. Husband further
argues Wife refused to work during the pendency of these proceedings despite the admonishments
of the trial court and despite establishing no physical condition that would prevent her from
obtaining a job. Additionally, Husband contends his ability to pay has diminished greatly as a result
of these proceedings, despite his monthly income of approximately $22,000. Husband explains the
present divorce litigation has significantly burdened his financial estate, as well as required him to
support the parties’ children since December 2005 without any assistance from Wife. Husband
points to additional factors supporting the trial court’s decision including Wife’s conduct before and
during the divorce, the brevity of the marriage, and the resulting lack of change in Wife’s standard
of living.
Having reviewed the record, we find no abuse of discretion in the trial court’s decision. The
court expressly relied on the short duration of the marriage, the age and mental condition of the
parties, the standard of living during the marriage, and the provisions made with regard to the marital
property when evaluating this issue. Wife has not demonstrated the trial court erred when it relied
on these factors nor has she pointed to evidence in the record that would compel a contrary
conclusion. The determination of alimony lies within the discretion of the trial court, which it has
appropriately exercised under the facts of this case. We affirm the trial court’s decision to award
Wife four months of transitional alimony in the amount of $2,500.
F. Attorney’s Fees
We next consider whether the trial court abused its discretion when it declined to award
attorney’s fees to Wife. Courts often treat an award of attorney’s fees as alimony in solido. Watson,
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309 S.W.3d at 500 (citing Yount v. Yount, 91 S.W.3d 777, 783 (Tenn. Ct. App. 2002); see also
Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn. Ct. App. 1988) (citing Crouch v. Crouch, 385 S.W.2d
288, 294 (Tenn. Ct. App. 1964)). As with any other award of alimony, the determination of whether
to award attorney’s fees “is a matter for the discretion of the trial court in view of the particular
circumstances.” Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995) (quoting Ingram v. Ingram, 721
S.W.2d 262, 264 (Tenn. Ct. App. 1986) (internal quotation marks omitted). Trial courts have
discretion to determine whether the relevant statutory factors warrant an award of attorney’s fees in
a given case. Owens v. Owens, 241 S.W.3d 478, 495-96 (Tenn. Ct. App. 2007) (citations omitted).
Appellate courts will not interfere with that determination unless the trial court abuses its discretion.
Aaron, 909 S.W.2d at 411; Watson, 309 S.W.3d at 500 (citation omitted).
An award of attorney’s fees is appropriate in most cases where the record shows one spouse
needs an award of fees to defray the costs of litigation and the other party has the ability to pay it.
Fickle v. Fickle, 287 S.W.3d 723, 737 (Tenn. Ct. App. 2008) (citing Riggs v. Riggs, 250 S.W.3d 453,
460 (Tenn. Ct. App. 2007); Harwell v. Harwell, 612 S.W.2d 182, 185 (Tenn. Ct. App. 1980)). It is
also appropriate where the economically disadvantaged party incurs increased litigation expenses
due to the obstructionist tactics and legal maneuvering of the opposing spouse. Id.; Gilliam, 776
S.W.2d at 86-87. It follows, however, that courts may consider whether the economically
disadvantaged spouse is the party guilty of using the judicial process as a retaliatory weapon. See
Tenn. Code Ann. § 36-5-121(i)(12) (permitting reliance on such other factors “as are necessary to
consider the equities between the parties”). The fact that the party engaging in a course of conduct
creating substantial and otherwise unnecessary attorney’s fees is less financially secure than the
bread-winning spouse does not immunize his or her conduct. Further, the financial status of the
culpable party should not dissuade the court from discouraging such conduct in the future through
either the withholding or limitation of a fee award.
Wife argues the trial court abused its discretion when it made her responsible for the
attorney’s fees she incurred during this lengthy divorce case. She submits Husband’s actions
primarily caused her to incur a substantial portion of her attorney’s fees during the course of
litigation. She argues, for example, that Husband’s actions necessitated her defense of a dependency
and neglect action, her filing of a federal lawsuit to stop harassment by a Memphis police officer,
her attendance at multiple costly psychological evaluations, and her payment of increased fees to
spend time with her children.30 Wife adds that an award of fees is appropriate because Husband is
in a better position to pay them. She concludes the trial court abused its discretion and asks this
Court to remand this case for a determination on the amount of Wife’s fees that Husband must pay.
Husband responds that Wife primarily caused the enormous expense associated with this
case. He argues:
30
We note other parties filed dependency and neglect petitions which also required Wife to defend
a charge of dependancy and neglect. Further, Wife consented to the second and third psychological
evaluations.
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i. It was Wife that alleged that Husband had attacked her and children on
November 30, 2005, but could provide no evidentiary support of her
allegation, resulting in the matter being brought before the Juvenile Court.
ii. It was Wife who claimed Husband put gasoline on one of the minor children,
resulting in a second Juvenile Court hearing. Wife provided no evidentiary
support for the allegation aside from her allegation.
iii. It was Wife who made claim that Husband had raped her. Wife provided no
evidentiary support for the allegation aside from her allegation.
iv. It was Wife who initiated action in California during the pendency of
proceedings in Tennessee in an attempt to circumvent the Tennessee Courts.
v. It was Wife who initiated litigation against multiple parties, including
potential fact witnesses for Husband, all arising out of this divorce action.
vi. It was Wife who initiated litigation against Husband’s lawyer.
vii. It was Wife who made false affidavit and attempted to garnish Husband’s
wages, even though there was no Court Order supporting such.
viii. It was Wife that obtained Counsel in California in a second attempt to have
California take jurisdiction regarding the minor children.
Our review of the record supports a conclusion that both parties contributed to the attorney’s
fees incurred during this case. It further reveals, however, that Wife initiated the majority of the
costly, time-consuming, and needless disputes. It was Wife who continuously hurled accusations
without evidentiary support. It was Wife who initiated proceedings in California in an effort to
contravene the pending Tennessee custody orders. And, as the trial court expressly found, it was
Wife who would not seek closure in this “seemingly endless litigation.”31 We therefore find no
abuse of discretion in the trial court’s decision to deny Wife’s request for attorney’s fees.
G. Guardian Ad Litem Fees
We consider as a final matter whether the trial court abused its discretion when it required
Wife to pay half of the GAL’s fees previously ordered by the court and half of the balance due to the
GAL in the amount of $17,000. Rule 17.03 of the Tennessee Rules of Civil Procedure permits the
appointment of a guardian ad litem “to defend an action for an infant or incompetent person who
31
It is also Wife who has continued a similar course of action on appeal. Whereas the appellate
filings in a typical divorce case fit neatly within a single legal-size folder, the filings in this case occupy an
entire banker’s box.
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does not have a duly appointed representative, or whenever justice requires.” Tenn. R. Civ. P. 17.03.
It also provides a trial court discretion to “allow the guardian ad litem a reasonable fee for services,
to be taxed as costs.” Id. Appellate courts accordingly review an award of guardian ad litem fees
for an abuse of discretion. Keisling v. Keisling, 196 S.W.3d 703, 726 (Tenn. Ct. App. 2005)
(citations omitted).
Wife challenges the reasonableness of the GAL’s fee request, suggesting the GAL did not
provide an itemized billing statement for the additional request of $17,000. Wife contends,
analogizing to an award of attorney’s fees, that the party seeking an award of guardian ad litem fees
bears the burden to demonstrate the requested fees are reasonable and related to the litigation. She
raises various arguments about the responsibility of the person requesting fees to present an affidavit
or other proof itemizing the fees, the right of a party opposing the request to cross-examine the
requesting person as to the reasonableness of the fees, and the ability of the trial court to rely on its
knowledge of the case to determine a reasonable fee.
Wife’s position suffers from a fatal deficiency, however, even if we assume arguendo that
decisions evaluating the reasonableness of an attorney’s fees award provide guidance on the issue
before us. Wife cites to nothing in the record to demonstrate whether the GAL testified regarding
her services, whether the trial court denied Wife an opportunity to cross-examine the GAL with
respect to the reasonableness of her fees or to present evidence on what a reasonable fee would be,
whether the trial court made its determination based on an independent evaluation of the relevant
factors, whether Wife disputed the amount of the fee at trial, or whether Wife was denied an
opportunity to challenge the reasonableness of the GAL’s fee through no fault of her own. See
generally Madden Phillips Const., Inc. v. GGAT Dev. Corp., 315 S.W.3d 800, 831 (Tenn. Ct. App.
2009) (discussing the law applicable to a request for attorney’s fees); Robert E. Burch, Trial
Handbook for Tennessee Lawyers § 33:16 (2009-2010 ed.) (same). The record is silent on what
transpired at trial with regard to guardian ad litem fees. We must therefore presume the evidence
supported the award of fees and are unable to conclude the trial court abused its discretion.32 We
affirm the trial court’s award of guardian ad litem fees.
V. Conclusion
Divorce cases can be emotional, difficult affairs. This divorce has been especially
contentious. The parties’ animosity towards one another has grown to the point where the trial court
felt it necessary to prohibit the parties from contacting each other for any reason except where
absolutely necessary. We wish it were not the case, but the trial court’s action appears entirely
32
We note, however, the GAL filed at least one affidavit containing an itemized billing statement
with the trial court prior to trial. This affidavit contains a detailed list of the GAL’s time and efforts. It
demonstrates the GAL dedicated nearly 250 hours to this dispute between July 1, 2006, and February 8,
2007, much of which Wife necessitated. Also, we note the pure volume of filings before the trial court, the
seriousness of the allegations made, and the overall divisiveness of this case suggest the award of guardian
ad litem fees was entirely reasonable.
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prudent under the facts. The parties offer no suggestion to the contrary. The resolution of this
divorce case, however, will not conclude the opportunities for dispute between Husband and Wife.
As we have seen in similar divorces cases, the entry of a final decree is often seen as nothing but an
invitation to move for its modification. We nevertheless hope the parties will exercise restraint as
they move forward, focusing on the best interests of their children.
We admonish the parties, particularly Wife, to consider the following statement one
Tennessee trial judge traditionally shares with parents involved in a parenting dispute:
Your children have come into this world because of the two of you. Perhaps you two
made lousy choices as to whom you decided to be the other parent. If so, that is your
problem and your fault.
No matter what you think of the other party–or what your family thinks of the other
party–those children are one half of each of you. Remember that, because every time
you tell your child what an idiot his father is, or what a fool his mother is, or how bad
the absent parent is, or what terrible things that person has done, you are telling the
child that half of him is bad.
That is an unforgivable thing to do to a child. That is not love; it is possession. If
you do that to your children, you will destroy them as surely as if you had cut them
into pieces, because that is what you are doing to their emotions.
I sincerely hope you do not do that to your children. Think more about your children
and less of yourselves, and make yours a selfless kind of love, not foolish or selfish,
or they will suffer.
Ash, supra, at 771-72 (quoting a letter from Judge Dotson Haas, Walker, Minnesota that Judge Don
Ash traditionally recites) (internal quotation marks omitted). The time, effort, and money spent in
continual litigation not only harms the parties emotionally and financially, but it also harms those
who have no choice in the matter: their children. The parties’ tumultuous time together is over. We
hope they will now focus to the best of their ability on providing a nurturing environment for their
children.
For the foregoing reasons, we affirm the decision of the trial court and remand for
consideration of any outstanding petitions for contempt. Costs of this appeal are taxed to the
appellant, Danielle Malmquist, for which execution may issue if necessary.
_________________________________
DAVID R. FARMER, JUDGE
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