Sima Khayatt Kholghi v. Reza Aliabadi ( 2020 )

09/18/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 7, 2020 Session
SIMA KHAYATT KHOLGHI v. REZA ALIABADI
Appeal from the Circuit Court for Davidson County
No. 16D-1706 Phillip R. Robinson, Judge
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No. M2019-01793-COA-R3-CV
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This is an appeal from a divorce proceeding. The parties were married for around thirty
years, during which time the husband built a successful business and the wife was a
homemaker and stay-at-home mother to the parties’ two children. After five days of trial,
the trial court classified, valued, and divided the parties’ sizeable marital estate; awarded
the wife alimony in futuro; and ordered the husband to pay a portion of the wife’s attorney’s
fees. Both parties raise various issues on appeal. For the following reasons, we affirm the
decision of the circuit court and remand for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which ARNOLD B.
GOLDIN and KENNY W. ARMSTRONG, JJ., joined.
Donald Capparella and Kimberly Macdonald, Nashville, Tennessee, for the appellant, Reza
Aliabadi (on appeal only).
Helen Sfikas Rogers and Stella V. Kamm, Nashville, Tennessee, for the appellee, Sima
Khayatt Kholghi.
OPINION
I. FACTS & PROCEDURAL HISTORY
Reza Aliabadi (“Husband”) and Sima Khayatt Kholghi (“Wife”) both grew up in
Iran. Husband came to the United States in 1978 at the age of 17. He obtained his GED
in Nashville and attended college for about a year before he and his father started a rug
business in 1981 called Marketing and Sales Management Corporation d/b/a MSM
Industries (“MSM”). In addition to selling rugs, MSM imported and sold nonslip rug pads.
Wife moved to the United States in 1983 at the age of 19. She attended high school
in Denver, Colorado, for one semester and took classes in English as a second language
because she could only understand very basic conversational English. She obtained a high
school diploma and took classes at a community college, but the classes were too difficult
for her. Wife lived with her parents, who had their own rug store in Denver, and she
occasionally helped them at the store without pay.
Wife’s family began conducting business with MSM, and in 1988, Wife met
Husband while he was selling rug pads. In November 1988, the parties had a religious
marriage ceremony in Nashville. On February 14, 1989, they had a legal marriage
ceremony at the courthouse.
Around the time of the marriage, MSM began manufacturing its own nonslip rug
pads utilizing custom-made machinery. Husband and his father had purchased five acres
of land in Smyrna, Tennessee, and constructed a manufacturing plant. Husband and his
father also continued to operate their rug store. Wife occasionally worked at the store,
answering the telephone, taking orders for rug pads, and interacting with customers. She
also traveled to trade shows with Husband. However, Husband never paid Wife a salary
or wages for her work.
In 1993, Wife gave birth to a daughter and stopped working at the store. In 1997,
the parties had a son. Wife was a homemaker and stay-at-home mother for the remainder
of the marriage. Husband’s business continued to grow, which required him to travel
frequently, especially to China. In 2002, Husband and his father bought an adjacent
commercial property in Smyrna, for a total of twelve acres. Their business struggled
financially in 2008 during the economic downturn, and Husband borrowed large sums of
money from members of Wife’s family in Denver. Husband and his father closed their rug
store around that time. Eventually, however, MSM became very successful at
manufacturing not only rug pads but other nonslip products, including yoga mats, shelf
liners, grocery case liners, and toolbox liners. MSM had around eighty employees. At the
time, MSM had two employees who lived out-of-state but traveled to Smyrna on a regular
basis. In order to avoid their frequent hotel bills, Husband and his father purchased a four-
bedroom home in Nashville, at 500 Cinnamon Place, and rented it to MSM for the use of
the two out-of-state employees.
Husband handled all of the parties’ financial matters. The parties built a home in
Nashville with over 12,000 square feet and valued at over $2 million. They had a
housekeeper, luxury vehicles, and enjoyed traveling. Both children attained the age of
majority during the marriage. Toward the end of the marriage, Wife accused Husband of
adultery. She saw hotel reservations for two guests on Husband’s phone and a suspicious
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text message from a woman thanking Husband for giving her so much money. Wife
eventually filed a complaint for divorce on September 8, 2016.1 She asked the court to
grant her a divorce, equitably divide the parties’ marital estate, and award her alimony and
attorney’s fees. Husband filed an answer and counter-complaint for divorce.
On May 22, 2017, Wife filed a motion for pendente lite support. Wife asserted that
Husband had recently moved out of the marital residence, and although he continued to
pay the basic customary household expenses for the home, he had informed Wife that she
was limited to only $2,000 per month from their joint bank account. In addition, Husband
had replaced Wife’s credit card, which previously had a spending limit of $30,800, and
given her a new card with a spending limit of $3,500 per month. At the same time, Wife
alleged, Husband allowed the parties’ grown children to retain their cards and make
charges to the parties’ credit card account. Wife asserted that Husband was spending nearly
$5,000 per month on the parties’ grown children. She attached Husband’s deposition
testimony and his current income and expense statement, which reflected expenses of
$33,888.54 per month. This included $1,944 for their daughter’s apartment, $685 for their
son’s apartment, $683 for their daughter’s car payment, and $323 for their son’s car
payment, in addition to other expenses for them. Husband was also investing $4,000 per
month into investment accounts for the grown children, and both accounts had balances
exceeding $40,000. Husband conceded during his deposition that there was no reason why
the children could not use those account balances to pay for their own expenses, adding,
“I’m just a dad taking care of it.”
Additionally, Wife alleged that Husband had moved out of the marital residence and
into a Brentwood apartment where he was paying $3,000 per month in rent. She suggested
that Husband could have moved into the home on Cinnamon Place, which was a four-
bedroom home currently being used only periodically by one out-of-town employee of
MSM. Wife also complained that Husband had just purchased a 2016 Porsche Panamera
for himself, and he was spending around $2,000 per month on that payment alone while
limiting her to only $2,000 from their joint checking account. Wife asserted that Husband
was the president and CEO of “a multinational company” grossing approximately $10
million per year, while she was a homemaker with no other income. Wife submitted an
income and expense statement listing $14,483 for her monthly expenses, including a
housekeeper and personal chef. She requested an award of pendente lite support in the sum
of $10,000 per month to enable her to pay for her customary standard of living, attorney’s
fees, and expenses for repairs to the marital home in anticipation of listing it for sale.
Husband filed a response in opposition to the motion for pendente lite support,
1
Upon the filing and service of the complaint for divorce, a temporary injunction went into effect
“restraining and enjoining both parties from transferring, assigning, borrowing against, concealing or in
any way dissipating or disposing, without the consent of the other party or an order of the court, of any
marital property.” Tenn. Code Ann. § 36-4-106(d)(1).
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arguing that Wife’s request was unreasonable and excessive. He maintained that $2,000
per month in funds and $3,500 per month in credit card access was sufficient in light of the
fact that he continued to pay the bills associated with the marital residence. Husband
claimed that he canceled Wife’s credit card because she charged attorney’s fees to the
account and exceeded the credit limit by over $12,000. He acknowledged paying $2,000
per month for the new Porsche payment but noted that he was also paying $1,350 per month
for Wife’s Audi lease. He claimed that his decision to rent an apartment for $3,000 was
justified because he wanted to be near his parents’ residence in light of their advanced age
and the fact that he picked up his 85-year-old father in the mornings before commuting to
work. Husband claimed that his apartment was only 2.8 miles away from his parents’
residence and that the Cinnamon Place home was 9 miles away. He agreed to pay
contractors directly for repairs to the marital home but insisted that Wife did not need any
additional pendente lite support. Husband asked the court to order the sale of the marital
home to pay the parties’ attorney’s fees. He claimed that “a large portion” of the income
reflected on his tax returns went to pay the mortgage on his commercial property and that
he did not actually receive that income.
The trial court held a hearing on the motion for pendente lite support on June 9,
2017. The record before us only contains a transcript of the trial court’s oral ruling at the
end of the hearing. At the outset, the trial judge admonished both parties regarding their
excessive spending, explaining that they could no longer do as they wished now that the
divorce action was pending. The trial judge explained that he frowned upon “husbands
running off the deep end and spending and wasting money” but also divorcing wives
“going on spending sprees” and expecting their husbands to pay for it. The trial judge
deemed some of the expenses on Wife’s income and expense statement “outrageous.” As
for Husband, the trial judge said he did not know of any reason why Husband could not
reside in the Cinnamon Place home rather than renting an apartment for $3,000 per month.
The trial judge stated that Husband would have the option of moving into the house he
jointly owned with his father, and if he did not, “as far as I’m concerned, that’s a dissipation
every month, and the Court will deal with that at the final hearing.” As for the Porsche,
the trial judge remarked, “It’s hard for me to get too upset about $2,000 for a Porsche when
the wife is spending certainly less but a substantial amount for her vehicle.” However, the
trial judge cautioned Husband that he was “not a fan of supporting adult children beyond
what you’re supporting your spouse.” The trial judge said he expected Husband’s charges
for the parties’ grown children to “be more reasonable.” He added, “this Court is not going
to approve $7,000 a month for your children to charge on credit cards.” The trial judge
said he was not going to impose a specific limit on what Husband could spend on the
children, but, he added, “if it continues this high, the court is going to consider that a
dissipation also.”
Ultimately, the trial judge ordered Husband to provide Wife with a credit card with
a limit of $15,000, but the judge directed Wife to spend no more than $7,000 per month
except in the case of an emergency. He eliminated Wife’s $2,000 per month withdrawal
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from the joint checking account. Husband was ordered to continue paying the mortgage
and utilities for the marital residence in addition to all insurance. Wife was required to pay
for other household expenses such as yard maintenance, pest control, security system,
housekeeper, etc. The trial judge declined to order Husband to pay Wife’s attorney’s fees
because he had been paying them voluntarily, but he directed Wife to file a motion if it
became an issue.
Thereafter, Wife filed an affidavit of the parties’ realtor, who described numerous
repairs that needed to be made before the marital residence could be listed for sale. The
realtor stated that the home was “in such disrepair” that it was “not marketable in its present
state.” Husband opposed making the repairs and suggested listing the property “as is,”
claiming that his company did not have enough “cash flow” to support spending $100,000
on home repairs. He submitted an affidavit from MSM’s vice president of finance, Mark
Noel, who conceded that “the company grosses over $10 million per year” but said that
other factors should be taken into account “when evaluating [Husband’s] financial
liquidity.” He explained that MSM was currently importing large quantities of inventory
in advance from China in order to improve its profit margins, and it did not currently have
sufficient cash flow to allow Husband to withdraw $100,000 from the company.2 After a
hearing, the trial court directed the parties’ realtor to prioritize which repairs from the home
inspection report were most needed. The court would then determine the repairs to be
completed and require Husband to pay for the ordered repairs, but he would be repaid “off
the top” after the sale of the house.
Husband subsequently filed a motion seeking permission to obtain a home equity
line of credit (“HELOC”) to pay for the repairs to the marital residence. Wife opposed the
motion on the basis that a HELOC would needlessly dissipate the marital assets. She
claimed that Husband was using “accounting gymnastics” to make it appear as if his
business was not profitable and he lacked access to cash. Wife also claimed that Husband
had stopped paying for her attorney’s fees, claiming an inability to pay, while spending
$3,000 per month on his apartment and thousands of dollars in expenses for their grown
children. After another hearing, the trial court entered an order allowing Husband to obtain
a HELOC to pay for the repairs to the marital home. The court also ruled that Husband
would pay Wife’s pendente lite support payments by direct deposit of $7,000 to her bank
account rather than utilizing the credit card.
The divorce trial was held over the course of four days in January 2019. A great
deal of the testimony centered on the valuation of MSM and Husband’s income. Each
party presented expert testimony of a certified public accountant as to these issues.
Determining Husband’s income was no easy task. According to Tom Price, Wife’s expert
2
Testimony at trial established that MSM had increased its inventory at the business in the last
couple of years in part because it had partnered with Amazon and had to maintain a sufficient supply of
inventory to be able to meet two-day shipping requirements.
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witness, both Husband and his father had historically taken what they designated as
“shareholder loans” from MSM every month in addition to traditional compensation. He
explained that Husband and his father typically used the company credit cards for both
personal and business expenses. When the bill arrived each month, they would simply tell
the company’s accountant which expenses they deemed “personal” or “business.” The
designated “business” expenses would be expensed through the business. The “personal”
expenses would also be paid by MSM but would be recorded as a “loan” to each
shareholder. Mr. Price testified that these so-called shareholder loans had been carried on
the company books for years. However, there was no loan document reflecting any loan
terms, no collateral, and no interest owed or paid. According to the company’s records,
MSM paid Husband traditional W-2 compensation of around $215,000 per year. However,
each month Husband would void his paycheck, and the amount of the voided paycheck
would then be credited as a payment toward his shareholder loans. In August 2016, the
month before the complaint for divorce was filed on September 8, MSM records showed
that Husband owed $592,285.96 in shareholder loans. By November 2018, just before
trial, his shareholder loan balance had increased to $1,781,624.46, the largest balance in
the history of the company. Thus, in addition to his traditional compensation, Husband
had drawn $614,985.70 in personal shareholder loans from the company in 2016 and
$449,420.17 in shareholder loans from the company in 2017. In 2018, Husband’s
shareholder loan balance increased by another $383,000. Husband’s “personal” charges
making up the shareholder loans included some items that benefitted Wife, such as
payment of the mortgage for the marital home and the parties’ attorney’s fees. However,
other expenditures did not benefit Wife, such as Husband’s apartment rent and related bills,
a portion of the payment for his Porsche, and expenses for his grown children.
No one could really explain why Husband and his father chose to characterize their
spending as “shareholder loans” rather than additional traditional compensation. The
company’s vice president of finance, Mr. Noel, testified that the practice of taking these
“advances” began before he was employed at the company and that the loan balance had
never been repaid to zero during his twelve years of employment. He opined that, as
owners, Husband and his father could take money out of the company as they saw fit. Mr.
Noel acknowledged that he did not know of any reason why the shareholders would not
have simply increased their salary and said he thought “it could have been done either
way.” Wife’s expert, Mr. Price, suggested that the shareholders might be characterizing
the payments as loans rather than income to avoid the Medicare tax of 2.9% and the six
percent “Hall tax” imposed by the State of Tennessee on corporate distributions.3 When
Mr. Price valued the business, he reclassified the so-called shareholder loans as shareholder
equity distributions (income or cash flow to Husband) because they had been carried on
the books for years, they were not repaid to zero, there was no loan document or interest
paid, and he did not believe the loans would have been repaid anytime in the near future.
Mr. Price also noted that one of MSM’s own documents referred to the shareholder loans
3
MSM operated as a subchapter S corporation.
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as “Owner Equity Distributions.” Husband’s expert, Vic Alexander, considered the
shareholder loans to be valid obligations but conceded that he would not recommend the
practice of making a loan of $1.7 million with no collateral. When Husband was asked
during his deposition why he borrowed from the company rather than taking out additional
compensation, he replied, “I guess taxes and -- I have no idea. I don’t think it makes any
difference at the end of the year.” Wife testified that she had signed the parties’ joint tax
returns over the years but was unaware that Husband was supposedly borrowing money
from MSM rather than earning it as income.
Aside from the issue of shareholder loans, Husband also received rental income
from MSM due to his one-half ownership of the 12-acre commercial property and
manufacturing plant in Smyrna and the Cinnamon Place home in Nashville. In 2017,
Husband received $317,400 in annual rental income for the Smyrna property and $21,600
in annual rental income for the Cinnamon Place property. At the time of trial, Husband
was receiving around $32,000 per month in rent from MSM for the Smyrna property, but
he used approximately $30,000 of that sum to pay the sizeable mortgage payment on the
property. He was receiving $1800 per month in rental income for the unencumbered
Cinnamon Place property.
Wife’s expert and Husband’s expert agreed that Husband’s tax returns for the past
three years reflected an average pre-tax pre-interest “cash flow,” or gross revenue, of
$643,259 per year, which included his traditional compensation and rental income but not
any shareholder loans. The experts also acknowledged that the numbers reflected on the
most recent tax returns for MSM and the parties were somewhat skewed because of large
atypical write-offs taken by MSM during the divorce proceeding. Specifically, in 2016
and 2017, MSM decided to take large deductions for a bad debt of $641,000 from the rug
store that had closed ten years earlier and $410,000 in connection with the rug store’s old
inventory.4 The bad debt write-off also impacted Husband’s personal return. Putting the
nonrecurring write-off aside, Wife’s expert conceded that the “more accurate” annual cash
flow average for Husband was $536,356. Husband’s post-divorce income and expense
statement listed $46,000 per month in “net income” from MSM, which included his
monthly salary and rental income but not shareholder loans. It listed $54,950 in monthly
4
The trial court would eventually find “the timing of the write-off suspect in light of the failure of
the company to take such write-offs in the past.” The court explained:
The Court finds that while it is not unusual for a company to write off obsolete inventory,
there is no evidence that MSM has ever written off obsolete inventory in the history of this
company. . . . The effect of this adjustment resulted in a gross profit percentage which was
significantly less than in recent years.
The court found that MSM showed a loss for 2017 “due to the $410,000 write off,” when it would have had
positive earnings without the write-off. Thus, the court found that consideration of the write-off “unfairly
skews the value of the company” and “skews the valuation of the parties’ share of the business which the
Court finds to be unreasonable and unjust under the circumstances.”
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expenses, for a monthly deficit of $8,950.
Husband was 59 years old at the time of trial and in good health. He and Wife had
been legally married for nearly thirty years. He attempted to explain the suspicious text
message and denied making hotel reservations for himself and another adult, claiming that
the booking application he used set two guests by default. The reservations showing two
adults were for hotels not only in China but also in San Diego, Seattle, Chicago, and
Germantown, Tennessee.
Husband testified that after Wife filed for divorce, he moved out of the master
bedroom and into another bedroom in their 12,000-square-foot home. He testified that he
decided to move out after an argument escalated between him and Wife. Husband testified
that the four-bedroom Cinnamon Place house was being used by MSM for an engineer
from New York who traveled to Nashville two weeks per month. He testified that because
he treated the Cinnamon Place house as a rental property on his own tax returns and the
rent as a business expense on MSM’s returns, he could not live in it for more than fourteen
days without impacting the way it was classified for tax purposes. The Cinnamon Place
property had recently been appraised for $360,000.
The commercial property and manufacturing plant in Smyrna had recently been
appraised for $9.9 million. Husband contended that some if not all of the commercial
property and the business value should be classified as his separate property because he
owned them prior to the marriage. In the event that a portion of the business was deemed
marital, Husband proposed valuing the “marital portion” of his one-half interest in MSM
at approximately one million dollars, but he pointed out that he owed the company about
$1.7 million in shareholder loans. Thus, on his proposed division of property, he valued
his one-half interest in the business as a negative number and reflected it only as a debt of
$565,788 owed to MSM and to be assigned to Husband.
Husband testified that in the event of his father’s death, his father’s interest in MSM
would go into a trust for the benefit of Husband’s mother during her lifetime. Husband
was an only child and testified that he would become the beneficiary of the trust at his
mother’s death. He also testified that he and his father had a buy-sell agreement that would
govern what happened in the event of death. Husband’s father was 87 years old, and his
mother was 82.
Husband conceded that he had stopped paying for his and Wife’s attorney’s fees
roughly a year before trial but insisted that he did not have the funds to do so. Husband
testified that he borrowed money from his father during the divorce proceeding to pay the
parties’ personal income tax obligation of approximately $70,000 and to purchase Wife’s
Audi at the end of its lease for around $40,000. He also maintained that he did not have
the money to pay for the repairs to the marital home and so it was necessary for him to
utilize the HELOC, which had a balance of $130,000 at the time of trial. Husband and his
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father also took out an additional $200,000 loan against the Smyrna property during the
divorce proceeding.
Despite his claimed inability to pay the aforementioned expenses, Husband testified
that he deemed it appropriate to purchase his Porsche for approximately $100,000 because
he thought it helped his business image. His monthly car payment was roughly $2,000.
His apartment rent had increased to $3,200 per month. Husband also acknowledged that
he had continued to pay his adult children’s expenses through the business as shareholder
loans. The parties’ daughter was twenty-five years old, living in an apartment in Atlanta,
and employed full-time throughout the divorce proceeding. She was a college graduate,
and Husband and Wife had paid for her college education. The parties’ son was twenty-
one years old and living in Denver, working for Wife’s family in their business. Husband
testified that after the trial judge admonished him not to spend so much on the parties’
children at the pendente lite hearing, his father began paying for the children’s expenses
and charging it against his own shareholder loans from MSM. Husband acknowledged that
“[n]ow it’s just charged to [his] father’s account instead of [his] account.”
Husband did not dispute Wife’s calculation that he paid around $47,000 in credit
card charges by his son and daughter just while the divorce was pending. Husband also
contributed $4,000 per month to UTMA investment accounts for their grown children
through 2017.5 According to Wife’s calculation, Husband deposited $40,000 in the
children’s investment accounts during the divorce proceeding without her knowledge or
consent. By the time of trial, the children’s accounts each had a balance of approximately
$70,000. Husband also acknowledged making deposits to another account for Son during
the divorce proceeding.
Husband testified that he believed Wife was capable of working full-time. He
opposed her request for alimony in futuro and suggested that she should be limited to
transitional or rehabilitative alimony. Regarding her ability to work, Wife presented the
testimony of Linda Jones, a certified rehabilitation counselor who had performed a
vocational evaluation of Wife prior to trial. Because of Wife’s level of education and the
fact that she was primarily educated in Iran, Ms. Jones thought it was important to
administer an achievement test to gauge Wife’s abilities in basic subjects. She used
standardized testing commonly used in her field as a brief assessment of educational
achievement. Ms. Jones testified that Wife’s greatest problem areas were in language and
verbal skills. Her word reading, sentence comprehension, and spelling were all below the
tenth percentile. Her verbal language scores were in the fifth to ninth percentile. Wife’s
math computation skills were better but only at the eighteenth percentile. Her “grade level”
equivalency was between grades five and eight for each of the various subjects. Given that
Wife did not speak English as her first language, Ms. Jones was not surprised at the low
5
The Tennessee Uniform Transfers to Minors Act is codified at Tenn. Code Ann. § 35-7-101, et
seq.
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reading comprehension levels. She explained that this level of performance was common
for someone who did not have a broad background in the English language. Ms. Jones
testified that Wife was “very cooperative” and appeared to be making a genuine effort,
even asking to revisit questions again when she finished. Ms. Jones had been trained to
identify when people might be trying to manipulate a test, but she did not have any such
concerns about Wife.
Ms. Jones also testified that Wife could text message on her smartphone but did not
email regularly because of her difficulty writing in English, and she did not know how to
use Word or Excel, which were basic programs used in the workplace. Ms. Jones testified
that Wife had no meaningful work history or work skills. Ms. Jones also administered a
career assessment inventory for Wife, which was meant to help her choose a job consistent
with her interests. She testified that the jobs for which Wife indicated the highest level of
interest would require one to two years of training or education. In addition, Ms. Jones
opined that Wife would probably need one year of adult basic skills training to improve
her language skills before beginning that additional education. Wife was around age 55 at
the time of trial, so Ms. Jones estimated that Wife could complete such training by around
age 58. At that age, Ms. Jones believed that the additional benefit Wife would eventually
earn in the workplace would be outweighed by the cost of such training.
Ms. Jones researched the median earnings of female high school graduates at age
twenty, nationally and in Nashville. She considered the income for two readily available
job examples: fast food workers and retail sales workers. Using these figures, Ms. Jones
estimated that Wife could earn between $17,000 and $19,000 per year if she was able to
find a fulltime job. Ms. Jones confirmed that Wife had not applied for any jobs during the
divorce proceeding.
Wife continued to reside in the marital residence at the time of trial, as it had not
been sold. Because of the delays with the home repairs, it was only placed on the market
in October 2018, three months before trial. The home had three levels with an elevator,
six bedrooms, eight full and three half baths, a theater room, an exercise room with a steam
shower, two full kitchens, six fireplaces, laundry rooms on each level, a pool with a
fountain and outdoor shower, and a heated driveway. The home had recently been
appraised for $2.2 million, and it was listed for sale at $2.5 million. Wife predicted that
after the sale and payment of the mortgage and the sales commission, the parties would
receive around $649,000 in proceeds from the sale of the home.
Wife was taking seven medications on a daily basis for issues such as attention
deficit disorder, depression, thyroid issues, and neck pain. She had previously had surgery
due to cancer and been hospitalized due to a blood clot but was in fairly good health at the
time of trial. Wife was considering looking for a job but had not yet started searching. Her
only source of income was the $7,000 per month pendente lite support payment from
Husband pending the sale of the marital residence. Husband also continued to pay the
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mortgage, property taxes, utilities, and insurance for the parties.
Wife’s post-divorce income and expense statement listed zero income and $13,934
in monthly expenses. She testified that this level of spending reflected the standard of
living during the marriage. Wife planned to move to Denver and buy a house there in order
to be near her family. She sought an award of alimony in futuro of at least $10,000 per
month.
A significant amount of testimony focused on the issue of whether Wife might own
an interest in property in Iran. She was one of five children. Her mother was around 83
years old, and her father had passed away in 2010. Wife testified that she did not even
know if her father had a will until the issue was brought up during this divorce proceeding.
Her sister in Denver was the personal representative of her father’s estate when he died,
and Wife had executed a power of attorney giving her sister authority to act for Wife. Wife
testified that when her father died, she and her siblings inherited their childhood home in
Iran, but the house was sold and most of the money went to pay off a large debt owed by
her brother. Wife’s sister who had power of attorney signed the necessary sale documents
for herself and for Wife. Wife said her remaining share of the proceeds was around
$80,000, but that was not money that she ever actually received. Wife explained that she
never actually received any money after her father’s death, as individuals were unable to
bring money from a bank in Iran to the United States because of the relationship between
the two countries. Because of the inability to transfer the funds, her sister took each of the
three sisters’ shares of the inheritance and gave the money to a cousin to invest in real
property. Wife testified that they collectively purchased a condominium, but that an
Iranian bank put a lien on the property and took that property due to debts owed by their
father and brother. Thus, she testified at trial that this real estate was “gone.”
Wife testified that her mother had come to live in the United States for a few years
but that she also still owned a home in Iran. Wife further testified that she learned during
this divorce proceeding that her mother had put the home in Iran in the names of her three
daughters but retained the right to live there.6 An English translation of the original Persian
“Conveyance Document” was introduced at trial, and it stated that “[t]he interests of the
conveyed real estate will belong to the conveyor during her lifetime (for 30 years)[.]”
During discovery, Wife had stated that she had “no present interest” in the property, the
home was titled to her mother as “something akin to a life tenant,” and Wife would “guess”
the home was worth around $850,000 in U.S. currency. At trial, Wife insisted that she
really did not know how much the home was worth. In the event of her mother’s death,
Wife said she also expected to receive one-fifth of a one-fifth share of her family’s rug
business in Denver, equivalent to four percent, in the event that the business was still
ongoing at that time.
6
Wife’s sister testified during her deposition that their mother had power of attorney “from all of
us” and could sign for the siblings.
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In addition to presenting the testimony of the various accountants and appraisers,
the parties introduced into evidence thousands of pages of exhibits. At the conclusion of
the four-day trial on January 30, 2019, the trial court took the matter under advisement.
Before the trial court entered a written order in the matter, Wife filed a motion to reopen
the proof to consider the parties’ 2018 joint tax return. The trial court entered an order
reopening the proof upon agreement of the parties. The order stated that the proof would
be reopened in an effort to more accurately ascertain Husband’s correct income and to
further consider the valuation of MSM.
The trial court heard additional testimony on June 17, 2019. According to the
parties’ tax return, Husband had an adjusted gross income of $396,200 for 2018. Husband
testified that this sum included his salary of around $204,000; profit from MSM of $20,000;
and $164,000 in rental income that he never actually received in hand. He testified that the
$20,000 profit was taxable as income to him even though he never withdrew that amount
from the company, although he acknowledged that he could have done so. He testified that
if one considered his tax liability of $75,000, he only “realized” $130,000 for the year.
Husband said that he was also continuing to borrow shareholder loans from MSM in order
to afford paying the mortgage and bills on the marital home and pendente lite alimony of
$7,000 per month. Husband acknowledged that he continued to drive the Porsche and pay
its $2,000 monthly payment. Husband’s expert, Mr. Alexander, also testified regarding
Husband’s income and answered some questions for the trial judge regarding alternative
valuations of MSM.
The trial court entered a final decree of divorce on June 27, 2019. The order itself
spanned forty-five pages, and additional spreadsheets were attached. Wife was awarded a
divorce from Husband on the ground of inappropriate marital conduct. After making
various findings regarding the parties’ educational, work, and medical histories, and
summarizing the relevant events surrounding their thirty-year marriage, the trial court
proceeded to equitably divide the marital estate. The marital home was still listed for sale.
The trial court found that it was a marital asset with a fair market value of $2.2 million
based on the most recent appraisal. The trial court added, “The property is currently on the
market for sale, and the sale price shall determine the actual fair market value of the
property and the resulting proceeds subject to division. However, for the purposes of the
Court’s division of assets, the Court will use the appraised value.” After subtracting the
mortgage indebtedness, the HELOC loan of $130,000, and an eight percent sales
commission of $176,000, the trial court found that “the anticipated equity subject to
division will be $649,065.”
The trial court found that the fair market value of the unencumbered Cinnamon
Place property was $360,000, such that the value of Husband’s one-half share after
subtracting a real estate commission would be $165,600. The trial court found that the fair
market value of the Smyrna commercial property was $9.9 million, but after subtracting
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the mortgages, the resulting equity would be $3,071,328, and Husband’s one-half share
would be $1,535,664. The court found that Husband’s interest in the real property at the
time of the marriage was valued at $82,000, and this would constitute his separate property.
However, the remaining appreciation in equity would constitute marital property. As such,
the final value of the Smyrna property as a “marital asset” was $1,453,664.
After an in-depth analysis of the expert reports and valuations, the trial court valued
Husband’s one-half interest in MSM at $2,420,000. The court valued Husband’s share of
MSM at the time of the marriage at $250,000, which would constitute his separate property.
Therefore, the final value of MSM as a “marital asset” was $2,170,000. Next, the trial
court noted Husband’s insistence that the value of his interest in MSM “should be offset
against the amount of the loans which he owes to the company.” The trial court noted that
if it subtracted the $1.7 million in shareholder loans from its finding as to the value of the
marital asset, Husband’s interest in MSM would only be valued at $388,376. Ultimately,
the trial court declined to deduct the full amount of the shareholder loan, with the following
explanation:
. . . Wife had neither control over the Husband’s borrowing from the
company nor any input into how the loan proceeds were spent. While some
of these proceeds clearly benefited the Wife either directly or indirectly,
other such expenditures were detrimental to her by reducing the value of her
equitable interest in the parties’ share of the business.
The Wife alleges that the Husband has dissipated the marital estate by
his extravagant lifestyle, both before the filing of her complaint for divorce
in September, 2016 and during the approximate 29 months that the divorce
action was pending. Among these expenses were $1,928 per month for a
2016 Porsche sports car totaling approximately $44,342; $3,000 to $3,200
per month for an apartment totaling approximately $87,000, when cheaper
alternatives were readily available; the payment of the parties’ adult
children’s living expenses including his adult daughter’s rent, utilities and
car note and his son’s apartment rent and leased vehicle; paying the
children’s personal expenses on the MSM Industries’ credit card and his Citi
Bank credit card in the amounts of $9,068 and $46,857 respectively; deposits
directly into his adult son’s checking account in the amount of approximately
$22,314; and deposits totaling approximately $40,000 into his adult
children’s U[TM]A accounts during the pendency of this action. The Court
finds the total of these extravagant, unnecessary and dissipative expenses to
be approximately $249,581. (See Trial Exhibits #97, #107A and B, #108,
#109 and the Court’s pendente lite order dated July 14, 2017.) Control over
the charges that the Husband made on the company’s credit card each month
was his alone. He directed the company’s accountant as to which expenses
were to be treated as business-related and which expenses were his personal
expenses, adding to his growing loan balance owed to the company. Further,
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there was never any accounting of his personal expenditures. Based on the
evidence, it is clear to this Court that a portion of these charges were for
accommodations for another adult, and on occasion a child, to join him while
he was purportedly out-of-town on business. There is no evidence that these
“guests” were the Wife or the parties’ children. Indeed, the evidence is to
the contrary. Such expenditures were not in furtherance of the parties’
marital relationship and, therefore, constitute a further dissipation of the
parties’ marital assets. Considering the above dissipation, the exact amount
of which is impossible to calculate; the tremendous disparity in the parties
income; and the likelihood that the Husband will never be required to repay
his share of loans from the company, the Court finds that of the $1,781,624
the Husband borrowed from the company, $1,350,000 of the loans constitute
legitimate marital expenses from which the Wife received benefits and shall
be offset against the value of the company. The remaining $431,624 shall
constitute the Husband’s dissipation in the amount of $249,581 and
approximately $182,043 in separate debts for which he shall not receive
credit against the value of the company and for which he shall be personally
responsible. Based on the foregoing, the Court finds the value of the parties’
interest in MSM Industries to be $820,000. Further, the Court finds that the
Husband shall be personally responsible for the total indebtedness which he
has borrowed from MSM Industries and shall indemnify and hold the Wife
harmless thereon.
The trial court found that Wife owned a one-third interest in her mother’s home in
Iran, which was gifted to her by her mother. The trial court found that neither party
expressed an opinion as to the value of the property or provided the court with an appraisal.
“Without competent evidence,” the trial court explained, “the Court cannot determine the
value of the property but does find that the Wife’s interest constitutes her separate
property.”
In sum, the trial court found that the total value of the parties’ marital estate was
$3,292,816. The trial court proceeded to make findings regarding every statutory factor
listed for consideration when equitably dividing the marital estate. See Tenn. Code Ann.
§ 36-4-121(c). Considering all of the factors, the trial court concluded that “the marital
estate should be divided disproportionately in favor of the Wife.” By necessity, the trial
court noted, Husband would be awarded MSM, which would produce substantial income
and allow Husband to acquire future assets. However, the trial court explained, there was
no income-producing property available to award to Wife to generate income for her.
Therefore, the court found it equitable to award Wife “approximately 60%” of the marital
estate and Husband “approximately 40%.” The trial court awarded Wife sixty percent of
the anticipated sale proceeds from the house and awarded Husband forty percent. Wife
was awarded the Audi, while Husband was awarded the Porsche. Husband was also
awarded the parties’ Gulfstream recreational vehicle valued at $40,000. The trial court
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valued and allocated the parties’ various checking and savings accounts totaling around
$17,000, their investment and retirement accounts totaling approximately $134,000, and
the furnishings in the marital residence and the business. Because Husband was awarded
all of the business-related marital assets, Wife was awarded a judgment against Husband
“to adjust the equities between the parties” and to accomplish an equitable division of the
marital estate. Specifically, Husband was ordered to pay a judgment of $1,325,170 in favor
of Wife, at the rate of $100,000 per year until paid in full. Upon the sale of the marital
home, Husband’s share of the proceeds would be applied to the outstanding judgment owed
to Wife.
The trial court then considered the issue of spousal support. Again, the trial court
expressly considered all of the statutory factors for consideration when awarding alimony.
See Tenn. Code Ann. § 36-5-121(i). It concluded that Wife had an earning capacity of
between $17,000 and $19,000 per year. It found that Husband had a pre-tax pre-interest
“cash flow” of $536,056 per year from 2015 to 2017. It found that his income based on
his tax returns was approximately $400,000 during those years and also in 2018. The trial
court found that many of Husband’s monthly expenses were excessive and unnecessary
and/or duplicative. Despite his significant expenses, the trial court found that “he has the
ability to pay spousal support.” The court also found many of Wife’s monthly expenses
excessive and reduced or eliminated many. The trial court ultimately concluded that Wife
had a need of $9,644 per month based on legitimate expenses. However, it found that she
should be capable of earning $1,500 per month ($1,336 after taxes). As such, it found that
she needed $8,308 per month in alimony in futuro. The order provided that Husband would
not begin paying alimony in futuro until the marital residence sold, and he was directed to
continue complying with the pendente lite support order until that time.
Finally, the trial court addressed the issue of attorney’s fees. The trial court noted
that Wife claimed approximately $70,000 in outstanding attorney’s fees and $29,707 in
expert witness fees. Husband claimed to have unpaid attorney’s fees totaling $108,940.
The trial court discussed the fact that Husband experienced difficulties during the litigation
securing information regarding Wife’s interests in assets, including those in Iran. It found
that Wife had likely failed to exercise any due diligence to determine whether any
ownership interest existed. Because of her inaction, the trial court found, Husband was
required to take depositions of Wife’s family members outside the State of Tennessee. The
trial court acknowledged that Wife’s interest in the property in Iran was difficult for her to
access and utilize but noted that it was nonetheless an ownership interest. The court found
that Husband was compelled to expend unnecessary resources in an effort to secure
information that should have been forthcoming and easily ascertainable by Wife. It found
that Husband should not be responsible for the additional and unnecessary attorney’s fees
and litigation costs that resulted. The trial court also acknowledged that Husband had
already paid a portion of Wife’s attorney’s fees and expert fees during the litigation. As a
result, it ordered Husband to pay $40,000 of Wife’s outstanding attorney’s fees in addition
to her expert fee of $29,707.
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Within days of the entry of the final decree of divorce, an agreed order was entered
reducing the listing price of the marital home from $2.5 million to $2.2 million. Wife filed
a motion to alter or amend, asking the court “to reexamine the issue of attorney’s fees” and
increase her award. She acknowledged that her outstanding attorney’s fees as reflected on
an exhibit at trial totaled $70,769.80. However, Wife claimed that the aforementioned
exhibit only reflected what she owed “up to the date the trial commenced.” Wife asserted
that she currently owed $124,851.69 in attorney’s fees, including the “trial fees” she
incurred. Additionally, Wife acknowledged that her trial exhibit reflected $29,707.01
owed to her expert witness at the time of trial, but Wife claimed that she “now owes”
$55,378.05 with the trial fees she incurred. Accordingly, Wife asked the court “to consider
these total amounts owed in apportioning attorney fees and make any changes to Husband’s
responsibility for Wife’s fees that the Court deems necessary under the circumstances.”
Husband filed a response arguing that the case was tried over the course of five days, during
which the trial court thoroughly considered all issues presented, and that there was no
reason to relitigate the issue of attorney’s fees. After another hearing, the trial court entered
an order providing that “Wife’s request for the Court to consider Wife’s trial and post trial
attorney fees and reallocate the share of fees for which [Husband] would be responsible is
denied.” Husband timely filed a notice of appeal to this Court.
II. ISSUES PRESENTED
Having retained new counsel on appeal, Husband presents the following issues for
review, which we have quoted from his brief but rearranged:
1. Whether the trial court’s calculation of the marital estate and property
division improperly relied on the appraised and inflated value of the marital
home when the trial court found that the home’s true value is its ultimate sale
price?
2. Whether the court-ordered extensive payments to maintain the marital
home while the home is listed for sale should be credited to [Husband] and
made a part of the property division when they greatly exceed his proven
cash-flow and the court-ordered alimony payments to [Wife]?
3. Whether the evidence preponderates against the trial court’s finding
of dissipation during the divorce proceedings regarding [Husband’s] paying
apartment rent, car payments, and support for the parties’ adult children,
resulting in an erroneous valuation of the marital share of the business, when
(1) [Husband’s] spending reflected his typical expenses during the parties’
marriage; (2) the trial court treated all payments for these categories as
dissipation, contrary to its own findings; and (3) the record lacked any
evidence that these expenses were made to hide, deplete, or divert from
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marital property?
4. Whether the trial court’s property division and alimony calculations
failed to appropriately consider the parties’ separate property, contrary to
Tennessee statute, when (1) the evidence demonstrated [Wife] has an interest
in a very substantial piece of real property; and (2) the evidence did not
support the finding of [Husband’s] supposed inheritance from his family,
including the business?
5. Whether the alimony award should be reversed if the property
division is reversed?
6. Whether the trial court abused its discretion in calculating alimony
when (1) the trial court failed to calculate any reasonable amount of monthly
expenses for [Husband]; (2) the evidence clearly demonstrates that
[Husband’s] cash-flow is substantially lower than the court’s finding on his
income; and (3) [Husband’s] personal and court-ordered obligations greatly
exceed his monthly cash-flow?
In her posture as appellee, Wife restated the issues raised by Husband and also presented
the following additional issues for review:
1. Whether the trial court erred when it did not order Husband to pay a
larger portion of Wife’s attorney’s fees and expert costs; and
2. Whether Wife is entitled to attorney’s fees on appeal.
For the following reasons, we affirm the decision of the circuit court and remand for further
proceedings.7
7
Husband argued in his reply brief that Wife had “waived a majority of her arguments on appeal
by failing to include them in her statement of issues,” including her arguments regarding the parties’
incomes, the shareholder loans, the property in Iran, and Husband’s credibility. Husband cites to various
portions of Wife’s brief from the statement of facts and her argument with respect to the issues of property
division and alimony. We do not find that Wife waived her ability to argue these issues by failing to
designate additional issues on appeal. “Rule 27 of the Tennessee Rules of Appellate Procedure [] generally
only requires that an appellee’s brief contain a statement of the issues presented for review ‘[i]f [the]
appellee is also requesting relief from the judgment.’” Wilson v. City of Memphis, No. W2014-01822-
COA-R3-CV, 2015 WL 4198769, at *11 n.9 (Tenn. Ct. App. July 13, 2015) (quoting Tenn. R. App. P.
27(b)). In Wilson, for example, we found no waiver where the appellee “only seeks to uphold the trial
court’s judgment,” as she did not “appear to be seeking any affirmative relief from this Court.” Id. See
also Mid-S. Maint. Inc. v. Paychex Inc., No. W2014-02329-COA-R3-CV, 2015 WL 4880855, at *9 (Tenn.
Ct. App. Aug. 14, 2015) (explaining that “if Appellees’ argument . . . seeks affirmative relief from this
Court, their failure to designate this argument as an issue in their brief will be fatal to this Court’s review.”)
Here, Wife restated and responded to Husband’s issues and asked this Court to affirm the trial court’s
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III. DISCUSSION
A. Valuation of the Marital Home
The first issue we will address is Husband’s contention that “the trial court’s
calculation of the marital estate and property division improperly relied on the appraised
and inflated value of the marital home when the trial court found that the home’s true value
is its ultimate sale price.” Husband asserts that “[t]he trial court’s decision to use the actual
value of the marital home, which it ordered must be sold, to value the marital estate, while
at the same time using the much higher appraised value of the home to calculate the
property division, was fatally inconsistent and must be reversed.”
Despite Husband’s contention, we find nothing in the record to suggest that the trial
court “valued the marital home in two contradictory ways” or used a “much higher”
appraisal value that exceeded “the actual value” of the marital home. The final decree of
divorce states,
The Court finds [the marital home] to be a marital asset with a fair market
value of approximately $2.2 million based on the certified appraisal
introduced into evidence. (See Trial Exhibit #28.) . . . The property is
currently on the market for sale, and the sale price shall determine the actual
fair market value of the property and the resulting proceeds subject to
division. However, for the purposes of the Court’s division of assets, the
Court will use the appraised value.
After subtracting the mortgage and HELOC balances and the estimated real estate
commission, the trial court found “the anticipated equity subject to division will be
approximately $649,065.” The home was listed for $2.5 million at the time of trial.
However, within days of the entry of the divorce decree, the parties agreed to lower the
price from $2.5 million to $2.2 million.
Husband asks this Court to “reverse the property division to clarify what the trial
court meant[.]” The only caselaw he cites in support of this issue is McAlister v. McAlister,
No. M2009-02379-COA-R3-CV, 2010 WL 2977873, at *1 (Tenn. Ct. App. July 28, 2010),
which involved a post-divorce petition to enforce a final decree filed eight years after its
entry. As in this case, the final decree referred to both percentages and precise numbers.
Id. The divorce decree stated:
[T]he Court makes the finding that the value of the marital residence is
$112,500.00. . . . The Court finds that each party’s reasonable share of that
residence is 50% or $56,250.00 each. It is ORDERED, ADJUDGED AND
rulings. She did not waive those arguments by failing to designate additional issues.
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DECREED that the Court awards to [Wife] as alimony in solido one-half of
[Husband’s] share of $56,250.00, for an additional share of the house
awarded to [Wife] in the amount of $28,125.00. Therefore, when the house
is sold and if the same does bring $112,550.00, [Husband’s] share would be
$28,125.00. The remaining balance is hereby awarded to [Wife]. The Court
therefore awards to [Wife] 75% of the marital residence and 25% of the
marital residence is awarded to [Husband], the value of which as of this date
awarded is $28,125.00. The Court further finds that to provide [Wife] with
her 75% share of [Husband’s] Pepsico Deferred Compensation Account, the
Court awards her an additional four percent (4%) of the value of the marital
residence. Therefore, when the house is sold upon the youngest child turning
18, [Wife] shall receive 79% of the proceeds as her one-half share of the
marital residence plus the alimony in solido plus her 75% share of the
Pepsico Account, which is a distribution of marital property. Therefore, with
the percentage the Court has finally arrived at, [Husband’s] share of the
marital residence is 21% or the amount awarded to [Husband] as a share of
the marital residence is placed at $23,625.00, which amount he shall be paid
when the marital residence is sold when the youngest child reaches the age
of 18 or graduates from high school whichever is last.
Id. at *2. When the house was sold years later, the wife insisted that the husband was
bound by the “specific dollar figure[s]” cited in the decree, while the husband claimed that
he was required to pay her the percentage. Id. at *3. This Court agreed with the husband.
We explained:
The Final Decree uses the dollar figures to illustrate how the holding with
regard to the percentages will play out if, and only if, the house sells for a
specific stated amount. This position is shown by the Trial Court’s use of
the wording “when the house is sold and if the same does bring
$112,550.00, ....“ (emphasis added). By clear implication, if the house does
not bring that amount when sold then the numbers used in the illustration will
change. The Trial Court placed a value on the house at the time of the divorce
in order to assist it in equitably distributing the marital property. However,
the Trial Court implicitly acknowledged that it had no way of knowing how
much the house would sell for as the Final Decree provided that Wife could
remain in the house until “the youngest child reaches the age of 18 or
graduates from high school whichever is last.” If the house now sells for
more than the value placed upon it in the Final Decree, then both parties will
receive the benefit of any increase in value. Conversely, both will share the
loss if there is a decrease in value. We do not find that the Final Decree
intended for Wife alone to benefit from such a potential windfall or to bear
such a potential loss.
Although perhaps not written as clearly as possible, the Final Decree
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provided that if the parties could not agree on the disposition of the house it
would be sold, with Husband to receive 21% of the net proceeds and Wife to
receive 79% of the net proceeds.
Id. at *4.
In the case before us, the trial court’s order stated that the court was using the
appraised value for purposes of equitably dividing the marital estate but that “the sale price
shall determine the actual fair market value of the property and the resulting proceeds
subject to division.” As such, the trial court only calculated $649,065 as “the anticipated
equity subject to division.” (emphasis added). There is no need for additional clarification
at this point. As in McAlister, because the trial court used percentages, “both parties will
receive the benefit of any increase in value,” and “both will share the loss if there is a
decrease in value.”8 Id.
B. Credit for Pendente Lite Payments
Next, Husband argues that “[t]he over $350,000 in payments that [Husband] has
made to maintain the marital home while it was waiting to be sold should be credited
towards him, and considered as part of the property division, requiring a reversal of the
property division.” Husband’s calculation appears to consist of the amount he had paid
from the date of the pendente lite order until the filing of his brief on appeal. He does not
cite any authority in support of this argument except for “the statute for dividing marital
property,” Tenn. Code Ann. § 36-4-121(c).9 In addition, he fails to cite to any location in
the record to demonstrate that he raised this argument during the five-day trial or at any
other stage before the trial court. Husband did not mention this argument in his pretrial
brief or include such a “credit” in his proposed division of marital property submitted as
an exhibit at trial. As such, we deem the argument waived on appeal. See Martin v. Rolling
Hills Hosp., LLC, 600 S.W.3d 322, 336 (Tenn. 2020) (“[A]s a general rule, issues raised
for the first time on appeal are waived.”) (quotation omitted).
C. Shareholder Loans
We now turn to the more complicated issue regarding the valuation of MSM, the
shareholder loans, and dissipation. “Once property has been classified as marital property,
the court should place a reasonable value on property that is subject to division.” Luplow
v. Luplow, 450 S.W.3d 105, 109 (Tenn. Ct. App. 2014). “‘[W]hen valuation evidence is
8
We reject Husband’s suggestion that the equalizing judgment awarded to Wife must also be
changed depending on the ultimate sale price of the house.
9
This Court found it improper to adjust the division of marital property for pendente lite alimony
received during the divorce proceedings in Barnes v. Barnes, No. M2012-02085-COA-R3-CV, 2014 WL
1413931, at *11-13 (Tenn. Ct. App. Apr. 10, 2014), and in Zimmerman v. Zimmerman, No. M2008-01722-
COA-R3-CV, 2009 WL 1608990, at *7 (Tenn. Ct. App. June 9, 2009).
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conflicting, the court may place a value on the property that is within the range of the values
represented by all the relevant valuation evidence.’” Brown v. Brown, 577 S.W.3d 206,
214 (Tenn. Ct. App. 2018) (quoting Owens v. Owens, 241 S.W.3d 478, 486 (Tenn. Ct. App.
2007)). Because “decisions regarding valuation of property present issues of fact, [] the
trial court’s decision regarding value is entitled to great weight on appeal and ‘will not be
second-guessed unless [it is] not supported by a preponderance of the evidence.’” Id. at
214-15 (quoting Owens, 241 S.W.3d at 486).
After valuing the property, “the trial court must divide the marital estate equitably
by weighing the relevant factors enumerated in Tennessee Code Annotated section 36-4-
121(c).” Larsen-Ball v. Ball, 301 S.W.3d 228, 234 (Tenn. 2010). One of those statutory
factors requires the court to consider:
(5)(A) The contribution of each party to the acquisition, preservation,
appreciation, depreciation or dissipation of the marital or separate property,
including the contribution of a party to the marriage as homemaker, wage
earner or parent, with the contribution of a party as homemaker or wage
earner to be given the same weight if each party has fulfilled its role;
(B) For purposes of this subdivision (c)(5), dissipation of assets means
wasteful expenditures which reduce the marital property available for
equitable distributions and which are made for a purpose contrary to the
marriage either before or after a complaint for divorce or legal separation has
been filed.
Tenn. Code Ann. § 36-4-121(c)(5). Thus, “[a] party’s dissipation of marital or separate
property is one of many factors a trial court may take into consideration in making an
equitable division of a marital estate.” Trezevant v. Trezevant, 568 S.W.3d 595, 616 (Tenn.
Ct. App. 2018). “Whether a party has dissipated marital assets is a finding of fact to be
made by the trial court.” Wise v. Bercu, No. M2017-01277-COA-R3-CV, 2019 WL
4747187, at *11 (Tenn. Ct. App. Sept. 30, 2019). “Whether dissipation has occurred
depends on the facts of the particular case.” Larsen-Ball, 301 S.W.3d at 235 (citing 24
Am.Jur.2d Divorce and Separation § 526 (2009)). It will often be a “‘fact and credibility
driven decision.’” Slocum v. Slocum, No. M2016-01881-COA-R3-CV, 2017 WL
4804553, at *6 (Tenn. Ct. App. Oct. 24, 2017) (quoting Watson v. Watson, 309 S.W.3d
483, 492 (Tenn. Ct. App. 2009)).
Our analysis of this issue is somewhat complicated by the fact that this case does
not involve a mere wasteful expenditure of a singular marital asset. As Husband notes in
his brief, the trial court’s finding of dissipation was “imbedded” within its business
valuation of MSM. Husband’s spending led to the creation of a substantial debt, which,
although not characterized as “marital debt” by the parties, had the effect of reducing the
value of a sizeable marital asset. Indeed, using the valuation figures calculated by
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Husband’s expert, Husband claimed that he had no marital equity or interest remaining in
MSM at the time of the divorce trial, and he proposed that MSM should simply be listed
as a negative interest on the marital balance sheet. Thus, the trial court’s decision with
respect to this issue involved the valuation of a marital asset, the consideration of debt, and
related issues of dissipation. The trial court discussed the issue of dissipation in the section
of the divorce decree valuing the marital property and again when discussing the statutory
factors for equitably dividing the marital estate, particularly factor (c)(5).
No matter how we precisely characterize the issue, the trial court’s decision on such
matters is entitled to deference on appeal. Appellate courts “give great weight to the trial
court’s division of marital property and ‘are disinclined to disturb the trial court’s decision
unless the distribution lacks proper evidentiary support or results in some error of law or
misapplication of statutory requirements and procedures.’” Larsen-Ball, 301 S.W.3d at
234 (quoting Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007)). The division of the marital
estate “is not a mechanical process,” and the trial court has “broad discretion” in its
decision. Id.
To briefly recap, Husband and his father had historically taken what they designated
as “shareholder loans” from MSM over and above their traditional salaries. They used the
company credit cards for both personal and business expenses, and MSM paid the monthly
credit card bills. Husband would tell the company’s accountant which expenses he deemed
“personal” or “business,” and the personal expenses would be recorded as a “loan” to
Husband. There was no loan document, no collateral, and no interest owed or paid.
Husband would void his monthly paycheck, and that amount would be credited as a
payment toward his loan balance. In August 2016, before the complaint for divorce was
filed on September 8, Husband owed $592,285.96 in shareholder loans. However, his loan
balance tripled during the divorce proceeding. In addition to his traditional compensation,
Husband charged $614,985.70 in shareholder loans in 2016; $449,420.17 in shareholder
loans in 2017; and around $383,000 in 2018. His loan balance was at an all-time high of
$1,781,624.46 by November 2018, shortly before trial. His father’s loan balance was only
$128,119.27. Some of Husband’s credit card charges benefitted Wife, such as payment of
the mortgage for the marital home and the parties’ attorneys’ fees. However, many of the
other charges did not benefit Wife, such as Husband’s apartment rent and related bills, part
of the payment for his Porsche, and living expenses for his grown children.
The trial court valued the marital portion of Husband’s one-half interest in MSM at
$2,170,000. The court noted Husband’s argument that his entire shareholder loan balance
of $1,781,624 should be offset against that value when valuing the parties’ marital asset.
The trial court noted that if it did so, the value of Husband’s marital interest in MSM would
only be $388,376. The trial court ultimately declined to offset the entire balance of the
shareholder loan, finding that a portion of the loan represented “dissipation of the parties’
marital assets” by Husband. Specifically, the trial court only offset $1,350,000 of
shareholder loans against the value of the business as “legitimate marital expenses,”
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holding that the remaining $431,624 in shareholder loans constituted dissipation by
Husband. By our calculation, the trial court deemed 75% of the shareholder loans as
legitimate and 25% as dissipation. This resulted in the trial court reducing its valuation of
the parties’ marital share of MSM from $2,170,000 to $820,000 because of the shareholder
loans.
The trial court gave a lengthy explanation for its decision to classify a portion of the
shareholder loans as dissipation. Simply put, the trial court found that “during the
pendency of this divorce, the Husband has dissipated the marital estate by his extravagant
spending.” The court found that Wife did not have control over Husband’s borrowing from
the company or any input into how the shareholder loans were spent. It found that some
expenditures did not benefit her and in fact “were detrimental to her by reducing the value
of her equitable interest in the parties’ share of the business.” For instance, the trial court
specifically found certain charges “extravagant, unnecessary and dissipative,” including
$1,928 per month on Husband’s new Porsche, totaling $44,342 in payments during the
divorce proceeding; $3,000 to $3,200 in monthly apartment rent, totaling $87,000 during
the divorce proceeding; rent, utilities, and car payments for the grown children, for which
the trial court did not assign a total value; $55,925 in credit card charges by the grown
children; $22,314 in deposits to the adult son’s checking account; and $40,000 in deposits
to the children’s investment accounts. The total of these specifically mentioned charges
was $249,581 (without including any value for rent and vehicles for the children).10 The
trial court found that Husband “insist[ed] on” driving a new Porsche and “insisted on”
renting an apartment for $3,200 per month when cheaper alternatives were readily
available, he could have remained in the marital residence, and he and his father owned the
four-bedroom Cinnamon Place residence nearby. It found that he contributed to the grown
children’s investment accounts and paid their rent, utilities, car insurance, telephone
service, and automobile leases. “To fund all of the foregoing,” the trial court found,
“Husband was borrowing against his business equity.” By listing these expenses as loans
from the business, Husband was “diminishing the value of [his] and Wife’s ownership
interest.” The court found that there was never any accounting of his personal
expenditures, and Husband had total control over the business with little to no accounting
to his elderly father. It found that “his repayment of the approximately $1.78 million debt
to [MSM] [was] unlikely.” The trial court found that some of Husband’s additional charges
were for travel accommodations that included another adult that constituted “further
dissipation” of marital assets. It found Husband’s explanation of his hotel bookings “was
unconvincing and not credible.” The trial court found that it was “impossible to calculate”
the exact amount of Husband’s dissipation. However, considering all of these facts, the
tremendous disparity in the parties’ incomes, and “the likelihood that the Husband will
10
It appears that the trial court may have inadvertently omitted a value for the payment of the
children’s rent, utilities, and car payments. However, the trial court cited an exhibit that listed $56,429.49
in spending for this category in 2016 and $29,784.67 in spending for this category in 2017. In Husband’s
brief on appeal, he included an additional sum of $78,300 for this category.
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never be required to repay his share of loans from the company,” the trial court limited the
offset against the value of MSM to only $1,350,000 of the claimed loans. The trial court
added, “The remaining $431,624 shall constitute the Husband’s dissipation in the amount
of $249,581 and approximately $182,043 in separate debts for which he shall not receive
credit against the value of the company and for which he shall be personally responsible.”
The trial court found that subtracting these sums from the shareholder loans “adjusted the
equities” between the parties.
The sole issue Husband raises on appeal is whether his spending met “the legal
requirements for dissipation.” In response, Wife maintains that Husband’s spending did
qualify as dissipation. However, Wife points out that the trial court additionally found it
“highly unlikely” that Husband would ever repay his shareholder loan. She notes her
position at trial was that the value of MSM should not be reduced by these so-called
“loans.” Wife suggests that the trial court reached an “equitable result” by recognizing
most of the shareholder loan as genuine or “legitimate” but considering the remainder as
dissipation.
“Dissipation of marital property occurs when one spouse uses marital property,
frivolously and without justification, for a purpose unrelated to the marriage and at a time
when the marriage is breaking down.” Altman v. Altman, 181 S.W.3d 676, 681-82 (Tenn.
Ct. App. 2005).
The factors that courts most frequently consider when determining whether
a particular expenditure or transaction amounts to dissipation include: (1)
whether the expenditure benefitted the marriage or was made for a purpose
entirely unrelated to the marriage; (2) whether the expenditure or transaction
occurred when the parties were experiencing marital difficulties or were
contemplating divorce; (3) whether the expenditure was excessive or de
minimis; and (4) whether the dissipating party intended to hide, deplete, or
divert a marital asset.
Id. at 682. According to the relevant statute, dissipation means wasteful expenditures that
reduce the marital property available for equitable distribution “made for a purpose
contrary to the marriage either before or after a complaint for divorce or legal separation
has been filed.” Tenn. Code Ann. § 36-4-121(c)(5)(B) (emphasis added). “The timing of
the expenditure or transaction is extremely relevant. It is unlikely that expenditures that
were typical or commonplace during the marriage will constitute dissipation, especially
when the other spouse acquiesced in them.” Altman, 181 S.W.3d at 683 n.5.
Husband seems to suggest that because the parties typically spent extravagantly
during the marriage, he could continue to spend as he desired during the divorce. We
respectfully disagree. Tennessee Code Annotated section 36-4-106 provides:
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(d) Upon the filing of a petition for divorce or legal separation, and upon
personal service of the complaint and summons on the respondent or upon
waiver and acceptance of service by the respondent, the following temporary
injunctions shall be in effect against both parties until the final decree of
divorce or order of legal separation is entered, the petition is dismissed, the
parties reach agreement, or until the court modifies or dissolves the
injunction, written notice of which shall be served with the complaint:
(1)(A) An injunction restraining and enjoining both parties from transferring,
assigning, borrowing against, concealing or in any way dissipating or
disposing, without the consent of the other party or an order of the court, of
any marital property. . . .
(B) Expenditures from current income to maintain the marital standard of
living and the usual and ordinary costs of operating a business are not
restricted by this injunction. Each party shall maintain records of all
expenditures, copies of which shall be available to the other party upon
request.
Tenn. Code Ann. § 36-4-106. “Thus, the legislature has provided that parties to a divorce
action are charged with preserving the marital estate during the pendency of the divorce.”
Armstrong v. Armstrong, No. M2006-02713-COA-R3-CV, 2008 WL 624862, at *8 (Tenn.
Ct. App. Mar. 5, 2008). When dividing the marital estate, courts are directed to consider
the “contribution of each party to the acquisition, preservation, appreciation, depreciation
or dissipation” of the marital property. Tenn. Code Ann. § 36-4-121(c)(5)(A) (emphasis
added). The trial court can allocate marital debt in a manner that will “protect the spouse
who did not incur the debt from bearing responsibility for debts that are the result of
personal excesses of the other spouse.” Alford v. Alford, 120 S.W.3d 810, 814 (Tenn.
2003).
On appeal, Husband asks this Court to review some of the individual categories of
spending mentioned by the trial court and to alter the totals for each category. For instance,
Husband acknowledges that he and his wife were leasing vehicles during the marriage, and
when his lease expired on his “older Porsche” during the divorce proceeding, he “chose to
purchase a newer Porsche for $1,927.94 per month.” This was an increase from his
previous monthly lease payment of $1,306.35. Husband argues that his purchase of a
newer Porsche was not so atypical as to amount to dissipation, or if it was, then the trial
court should have limited the dissipation finding to the amount of the increased payment.
As for the expenditures on the children, Husband does not dispute most of that spending
but does deny that he deposited as much money into his son’s checking account as recited
by the trial court.11
11
Husband does not dispute that his spending included around $175,000 for his grown children,
including $78,300 for their “living expenses” such as rent, utilities, and car notes; $55,925 for the children’s
credit card charges; $40,000 in deposits to their investment accounts; and two to three thousand dollars in
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We decline Husband’s invitation to tweak the trial court’s valuation of MSM in such
a piecemeal fashion. See Telfer v. Telfer, 558 S.W.3d 643, 657 (Tenn. Ct. App. 2018)
(“We are very much disinclined to tinker with a lower court’s decisions regarding the
division of a marital estate.”). Ultimately, the appropriateness of a trial court’s division
depends on its results. Pack v. Pack, No. M2018-00491-COA-R3-CV, 2019 WL 1934818,
at *7 (Tenn. Ct. App. Apr. 30, 2019); see, e.g., Singla, 2018 WL 6192232, at *25 (“The
finding that Husband did not dissipate as much of the marital assets as found by the Trial
Court does not change the analysis in any significant manner. We find no error in the Trial
Court’s distribution of the marital assets as the distribution remains equitable[.]”); Bewick
v. Bewick, No. M2015-02009-COA-R3-CV, 2017 WL 568544, at *10 (Tenn. Ct. App. Feb.
13, 2017) (“[E]ven assuming that Husband did not dissipate assets to the extent found by
the trial court, we find no basis to disturb the trial court’s division of the marital estate.”);
Altman v. Altman, 181 S.W.3d 676, 681 (Tenn. Ct. App. 2005) (“While we have
determined that the evidence does not support the trial court’s conclusion that Ms. Altman
dissipated marital funds[], we find that the manner in which the trial court divided the
marital estate was equitable based on the factors in Tenn. Code Ann. § 36-4-121(c).”); Wix
v. Wix, No. M2000-00230-COA-R3-CV, 2001 WL 219700, at *7 (Tenn. Ct. App. Mar. 7,
2001) (“[T]he trial court erred by concluding that Mr. Wix had dissipated a marital asset .
. . . However, this error does not undermine the remainder of the trial court’s analysis
regarding the division of the marital property and the allocation of the parties’ debts.”)
Here, the trial court acknowledged that it was impossible to calculate the exact total
of Husband’s wasteful and unnecessary expenditures. Even if we were to conclude that
some portion of the expenditures would not neatly fit the definition of dissipation, the trial
court was still authorized to consider Husband’s extreme spending and record-high
shareholder loan balance as a failure to preserve MSM as a marital asset. “Under Section
36-4-121(c)(5), in dividing the marital estate, the trial court is also directed to consider the
contribution of each party toward the ‘preservation’ of marital or separate assets.” Hayes
v. Hayes, No. W2010-02015-COA-R3-CV, 2012 WL 4936282, at *8 (Tenn. Ct. App. Oct.
18, 2012). In the context of marital property, “preservation” of assets means “‘keeping
[them] safe from harm; avoiding injury, destruction, or decay; maintenance . . . not the
creation, but the saving of that which already exists, and implies the continuance of what
previously existed.’” Id. (quoting Flannary v. Flannary, 121 S.W.3d 647, 651 (Tenn.
2003)) (emphasis added). “If a party is found to have dissipated or ‘failed to preserve’ a
marital asset the trial court may adjust the division of marital property accordingly.”
Armstrong, 2008 WL 624862, at *8.
In Pack v. Pack, No. M2018-00491-COA-R3-CV, 2019 WL 1934818, at *7 (Tenn.
deposits to their son’s checking account. Compare Singla v. Singla, No. M2017-01278-COA-R3-CV, 2018
WL 6192232, at *24 (Tenn. Ct. App. Nov. 27, 2018) (affirming the trial court’s finding that a husband
dissipated the marital estate by transferring $45,000 to his parents for their support).
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Ct. App. Apr. 30, 2019), for example, the trial court found that the husband dissipated
marital assets by losing $170,000 in marital funds on risky short-term trades in the stock
market. The trial court added that even if the trading did not constitute dissipation, it was
appropriate to consider “as evidence of his failure to preserve the marital property.” Id.
On appeal, we held that although husband’s history of wasteful expenditures would not
meet the definition of dissipation “as that term is defined in the statute,” it could
nevertheless be considered “as a failure to preserve marital assets.” Id. at *9. We stated,
“Irrespective of whether the court mischaracterized Husband’s stock trading as a
‘dissipation’ of marital assets or a ‘failure to preserve the marital property,’ this fact alone
does not undermine the validity of the manner in which the trial court divided the parties’
marital estate[.]” Id. at *8. See also Flannary, 121 S.W.3d at 651 (“Husband’s careless
handling of the funds could be characterized as a failure to preserve a marital asset under
Tennessee Code Annotated section 36-4-121(c)(5).”); Downing v. Downing, No. M2010-
00045-COA-R3-CV, 2011 WL 2418732, at *7 (Tenn. Ct. App. June 13, 2011) (concluding
that a husband “dissipated the value” of the equity in the marital home by increasing the
mortgage debt without consulting with the wife); Deakins v. Deakins, No. E2008-00074-
COA-R3-CV, 2009 WL 3126245, at *16-17 (Tenn. Ct. App. Sept. 30, 2009) (finding that
a husband’s excessive and reckless spending of HELOC funds resulting in a substantial
encumbrance on the marital home constituted dissipation, but noting that even if the
“dissipation” finding was erroneous, it did not render the property division inequitable);
Marciante v. Perry, No. M2006-02654-COA-R3-CV, 2008 WL 820502, at *7-8 (Tenn. Ct.
App. Mar. 26, 2008) (concluding that the withdrawal of $110,000 from a retirement
account for day trading and a child’s college expenses did not constitute dissipation but
that it could be considered regarding each party’s contribution to the preservation,
appreciation, depreciation, or dissipation of the marital property); Stock v. Stock, No.
W2005-02634-COA-R3-CV, 2006 WL 3804420, at *6 (Tenn. Ct. App. Dec. 28, 2006)
(concluding that a wife’s role in the disappearance of $240,000 could be characterized as
failing to preserve a marital asset); Robinson v. Robinson, No. W2003-01836-COA-R3-
CV, 2005 WL 1105188, at *18-19 (Tenn. Ct. App. May 9, 2005) (concluding that a
husband dissipated his businesses by failing to preserve them, when he and his father
orchestrated the demise of the businesses in order to prevent the wife from receiving any
value from them in the divorce).
At the outset of the divorce proceeding, Husband was admonished to limit his
spending on the parties’ grown children and what the trial court deemed wasteful
expenditures. Instead, Husband increased his shareholder loan balance by over one million
dollars in the course of two years. He was driving a new Porsche and renting an expensive
apartment while at the same time claiming an inability to pay for Wife’s attorney’s fees or
repairs to the marital home. He vehemently opposed providing spending money to Wife
while at the same time providing tens of thousands of dollars to the parties’ two grown
children and charging it as shareholder loans. This reduced the marital property available
for equitable distribution. During Husband’s testimony at trial, the trial judge asked
Husband directly if he was borrowing shareholder loans from MSM and using the money
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to pay his grown children’s expenses. Husband replied, “Yes. As I explained, Your Honor,
they’re my kids. I’ve done everything I could for them.” The trial judge then responded,
“First obligation is to your spouse.” The trial judge observed that Husband was “using that
debt to minimize the value of your company.” Given the trial court’s responsibility to
consider Husband’s “preservation” or “depreciation” of marital assets, Tenn. Code Ann. §
36-4-121(c)(5), we discern no reversible error in the trial court’s decision to recognize 75
percent of the shareholder loan balance as legitimate and 25 percent as illegitimate.
This Court considered an analogous situation in Echols v. Echols, No. E1999-
00619-COA-R3-CV, 2000 WL 688589 (Tenn. Ct. App. May 30, 2000) perm app. denied
(Tenn. Jan. 8, 2001). In that case, the husband argued that the trial court erred by failing
to find that he owed an outstanding debt to his corporation that would reduce the portion
of the marital estate awarded to him by $193,596. Id. at *1. The husband’s accountant
testified that the husband incurred this indebtedness by receiving “advances” from his
corporation, averaging $141,439 per year. Id. at *3. The corporation would periodically
issue him a bonus check that would be applied to reduce his indebtedness. Id. His
accountant explained that “[Husband] just got in the habit of he’d just make a loan and
borrow it from the company and then we’d declare a bonus later and try to wipe out as
much as we could of the loan.” Id. He testified that the husband had a “salary” of about
$107,000 per year. Id. In addressing the indebtedness, the trial court noted that the husband
had control over the loans from the corporation as well as the repayment schedule. Id. It
found that he used the loan account to control the amount of income he took from the
business. Id. The trial court ultimately decided that it would take the debt into account,
but that it would not treat the loan “as a finite figure” and that there should not be a specific
reduction in the husband’s estate by the amount he owed the corporation. Id. On appeal,
we found that the evidence did not preponderate against the trial court’s determination that
the husband’s “debt” to the corporation was “a suspect obligation” and not a “legitimate”
debt. Id. at *3-4. We noted that the husband had exclusive control over when and by how
much his indebtedness was paid, which was “not characteristic of a typical loan.” Id. at
*3. The evidence supported a finding that the “loan” was “not a debt per se” but “a means
by which Husband could control the amount of his income” from the corporation. Id.
Furthermore, we concluded that the husband’s transfer of approximately $50,000 in marital
assets to his corporation at or near the time of the divorce to purportedly reduce this suspect
“debt” constituted the dissipation of marital assets. Id. at *5.
Again, in this case, the trial court did find it appropriate to recognize the majority
of the shareholder loan as a legitimate debt.12 This reduced the valuation of MSM (a
marital asset awarded to Husband) from $2,170,000 to $820,000 solely because of the
shareholder loan. However, considering the fact that the trial court found it “highly
12
In the case at bar, the trial court expressed concern that “for the Court to treat such loans as a
dividend could provide a basis for the Internal Revenue Service to do likewise, creating an immediate and
significant tax liability for possibly both of the parties.”
- 28 -
unlikely” that the loan would ever be repaid, combined with the fact that Husband had
engaged in wasteful spending that significantly increased the amount of the loan balance,
the trial court declined to recognize all of the loan balance as legitimate debt and ordered
Husband to be solely responsible for the remainder in the event that it was repaid.
Considering the very wide discretion afforded to the trial judge in its distribution of the
marital estate, and the unique circumstances of this case, we cannot say that the trial court’s
decision was outside the range of acceptable alternatives. “The trial court is empowered
to do what is reasonable under the circumstances and has broad discretion in the equitable
division of the marital estate.” Keyt, 244 S.W.3d at 328.
D. Separate Property
The next issue raised by Husband is “Whether the trial court’s property division and
alimony calculations failed to appropriately consider the parties’ separate property,
contrary to Tennessee statute, when (1) the evidence demonstrated [Wife] has an interest
in a very substantial piece of real property; and (2) the evidence did not support the finding
of [Husband’s] supposed inheritance from his family, including the business?”
1. Wife’s mother’s home in Iran
First, Husband argues that the trial court abused its discretion by failing to value
Wife’s one-third interest in her mother’s home in Iran. At a hearing on discovery matters
in 2017, Husband’s attorney stated, “I’m getting reports this thing might be worth $7
million.” In her supplemental discovery responses in 2018, Wife stated, “I know this
property to be valuable. I am not a professional appraiser, but I would guess it is worth
about $850,000 US.” Then, at trial in 2019, the following exchange occurred between
Husband’s counsel and Wife:
Q. Ma’am, that house has a value of $850,000, doesn’t it?
A. I do not know the price. Last time prices were $7 million, so I don’t
know.
Q. That house has a value of $850,000, doesn’t it?
A. I still – the answer is no. I mean, you want to do this like – each time
I can say no and no and no, and then you can go on until I make a
mistake and say something. But, no, I do not know how much this
house costs.
Husband testified that he attempted to obtain an appraisal of the property in Iran but that it
was a difficult process involving the judiciary, and when the appraiser went to the property,
“they refused to let them in.”
On appeal, Husband suggests that the trial court ignored Wife’s interest in this asset,
but the record does not support his assertion. One of the factors for the trial court to
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consider when dividing the marital estate is “[t]he value of the separate property of each
party.” Tenn. Code Ann. § 36-4-121(c)(6). Likewise, when considering an award of
alimony, the trial court is to consider “[t]he separate assets of each party, both real and
personal, tangible and intangible[.]” Tenn. Code Ann. § 36-5-121(i)(7). Here, the trial
court’s final decree stated:
The Wife owns an interest in certain real estate located at No. 2 Ba
Honar in Mashhad, Iran which was gifted to her by her mother. Neither party
has expressed an opinion as to the value of this property nor has any appraisal
on this property been provided to the Court. Without competent evidence,
the Court cannot determine the value of the property but does find that the
Wife’s interest constitutes her separate property. . . .
...
Although the Wife has a 33.3% interest in real estate in Iran, she
cannot transfer money outside that country due to the current political
climate. The value of this real estate is unknown. The Court finds that other
than this property and her share of the marital estate, the Wife has no other
assets and no separate estate. . . .
Thus, the trial court clearly considered that Wife has a one-third interest in her mother’s
home in Iran as her separate property.13 It simply failed to place a value on it because it
found a lack of competent evidence on that issue.
Looking at Husband’s asset and debt statement and proposed equitable division,
which he submitted as an exhibit at trial, he did not place any value on the Mashhad home
either, or Wife’s interest in it. His proposal simply stated:
13
In his reply brief, Husband suggests that the trial court “made a finding that this property both
was and was not her separate property, contradicting itself.” He argues that the trial court “erred with its
contradictory finding that it is both separate property and not separate property.” Having carefully reviewed
the pages cited by Husband and the entire order, we find no support for this statement. The trial court
consistently referred to the interest as Wife’s separate property.
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Thus, the trial court took the same approach that Husband proposed in his exhibit. Having
suggested the very action about which he now complains, Husband is not entitled to relief
on appeal. See Tenn. R. App. P. 36(a).
2. Husband’s inheritance
Husband also argues that the trial court erred by “assuming that he will inherit his
parent’s estate in full at their death.” Husband argues that the record does not contain a
“will or similar estate document showing that this is true.” Husband acknowledges his own
trial testimony that his father’s interest in MSM will go to a trust at his death for the benefit
of Husband’s mother, and that “[Husband] would not receive anything from the trust until
her death as well.” At trial, Husband also acknowledged that he and his father had a buy-
sell agreement that governed what would happen in the event of death. Still, he argues,
“The evidence preponderated against the trial court’s finding that [Husband] has some
inheritance he will realize at some point in the future and speculated as to its connection to
his economic situation or ability to pay alimony.” He argues that “the trial court abused its
discretion in considering this finding as part of the property division and alimony analyses,
requiring reversal.”
We find no reversible error in the trial court’s consideration of this issue. The final
decree stated:
The Husband has skills as a salesman and the manager of the family business
which continues to be successful and has generated excellent income in the
past. He is an only child, and both of his parents are advanced in years. The
Husband will certainly inherit his parents’ estate which includes the other
one-half interest in the business. It is anticipated that the Husband will
continue to run the business and enjoy a substantial income. . . .
....
The Husband will leave the marriage with a significant debt load.
However, he owns a 50% interest in an on-going business concern that
clearly generates significant income. Further, he is an only child, and both
of his parents are of advanced years. As result, the Husband exercises almost
total control of the business and will almost certainly inherit the other 50%
of the business upon the death of his parents.
Husband conceded at trial that he is the beneficiary of the trust at his mother’s death. His
deposition testimony was also submitted at trial, in which he was asked, “Have you talked
with your father about at his death you would continue to take care of your mother and then
receive the assets?” Husband replied, “That’s understood.”
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The trial court has broad discretion to consider equitable factors that it deems
appropriate when dividing the marital property and awarding alimony. See Tenn. Code
Ann. § 36-4-121(c)(12) (directing the court to consider “[s]uch other factors as are
necessary to consider the equities between the parties”); Tenn. Code Ann. § 36-5-
121(i)(12) (requiring consideration of “[s]uch other factors . . . as are necessary to consider
the equities between the parties”). Clearly, this would include the fact that Husband is
likely to become the sole owner of MSM at the death of his parents, who are already of
advanced age. The trial court did not err in its consideration of this issue.
E. Reversal of Property Division
Husband’s next issue was premised on this Court’s reversal of the trial court’s
marital property division based on the issues raised above. In the event that we ruled in his
favor on the first issues and reversed the property division, Husband argued that reversal
of the alimony award must necessarily follow. Because we found no basis for reversing
the division of marital property, this issue is pretermitted.
F. Calculation of Alimony
We now turn to the issue of alimony. Husband argues that the trial court’s alimony
ruling was “clearly unreasonable” because he does not have the ability to pay the amount
awarded by the trial court.
In Tennessee, trial courts are afforded “wide discretion in determining matters of
spousal support.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). A spousal
support decision “is factually driven and involves the careful balancing of many factors.”
Id. As such, “trial courts have broad discretion to determine whether spousal support is
needed and, if so, the nature, amount, and duration of the award.” Id. When reviewing a
spousal support award on appeal, our role “‘is to determine whether the trial court applied
the correct legal standard and reached a decision that is not clearly unreasonable.’” Id.
(quoting Broadbent v. Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006)). We are “‘generally
disinclined to second-guess a trial judge’s spousal support decision.’” Id. (quoting Kinard
v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998)). Our standard of review “does not
permit an appellate court to substitute its judgment for that of the trial court” and recognizes
that “‘the decision being reviewed involved a choice among several acceptable
alternatives.’” Id. (quoting Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010)).
When reviewing an alimony award, we “presume that the decision is correct and should
review the evidence in the light most favorable to the decision.” Id. at 105-06.
The trial court devoted ten pages of the final order to its analysis of spousal support.
It specifically analyzed each of the statutory factors for consideration. The court noted that
this was a long-term marriage of thirty years and that Husband was 59 years old while Wife
was approximately 55. The court found Husband “healthy and energetic” while Wife had
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been treated for cancer and some other issues but did not have any significant disability or
illness. The trial court found that the parties had established a “very high” standard of
living during the marriage, living in a large home that was expensively furnished and
driving luxury vehicles. It found that neither the parties nor their children “wanted for
anything” over the last fifteen years of the marriage.
The trial court acknowledged that Wife was awarded a disproportionate share of the
marital estate but noted that none of the assets awarded to her would produce any
significant income. The court anticipated that Wife would in all probability have to use a
portion of the assets to purchase a new residence. The trial court acknowledged that
Husband would leave the marriage with a significant debt load but pointed out that he
would own one-half of an ongoing business that was clearly generating significant income.
It also noted that Husband retained a portion of his interest in MSM and a portion of the
commercial property in Smyrna as separate property. Also, as previously noted, the court
considered the fact that Husband would almost certainly inherit his father’s one-half
interest upon the death of his parents, who were already of advanced age.
The trial court found a “great disparity in the earning capability of the parties,”
considering that Wife had “almost no work experience” while Husband had “decades of
sales and business management skills.” It found that Wife primarily worked as a mother
and homemaker during the marriage. It found that she would not be able to rehabilitate
herself to earn a salary remotely equivalent to Husband’s. The trial court found that Wife’s
age and limited reading skills would make it difficult for her to compete in the job market.
However, the court concluded that “[i]f given an opportunity in the right job,” she could
earn between $17,000 and $19,000 per year, or $1,336 per month after taxes. Wife’s
income and expense statement listed zero income and $13,934 in monthly expenses. The
trial court carefully reviewed Wife’s expenses and reduced or eliminated many, leaving
$9,644 in monthly expenses that the court deemed reasonable. Subtracting her potential
income from that figure, the trial court found that Wife needed alimony of $8,308 per
month.
The court noted that Husband was awarded the parties’ business interests and that
he “has substantial cash flow.” It found that Husband’s “average pre-tax, pre-interest cash
flow” was $536,056 between 2015 and 2017, and in 2018, his tax return reflected income
of $396,200. It also noted that Husband’s actual reported “wages” were only $206,615.
Husband’s post-divorce income and expense statement stated that he received $46,000 per
month in “net income” from MSM, which Husband explained consisted of his salary and
rental income.
Husband’s post-divorce income and expense statement listed $54,950 in monthly
expenses. Thus, he claimed a monthly deficit of negative $8,950. The trial court also
reviewed Husband’s expenses and found some of them excessive and unnecessary, such as
his Porsche payment and $3,288 monthly apartment rent. The trial court then referenced
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Husband’s “list of his other monthly expenses . . . of approximately $33,888.” That was
the total listed on Husband’s monthly expense statement at the time of the pendente lite
hearing in 2017. The 2017 expense list was also submitted as an exhibit at trial during
Wife’s testimony and discussed with regard to Husband’s level of spending, especially on
the children. In its alimony analysis, the trial court noted that this list contained
“duplications of expenses,” which the court subtracted. It then concluded, “This leaves
monthly expenses of $24,556 in addition to those listed above for a total of approximately
$80,324 per month.”
The trial court found that “despite the significant debt with which the Husband
leaves the marriage, the Court finds he has the ability to pay spousal support.” It ordered
Husband to pay alimony in futuro of $8,308 per month beginning after the sale of the
marital residence. Pending the sale, Husband would continue to comply with the pendente
lite support order already in place.
On appeal, Husband argues that the trial court “did not make a finding as to
[Husband’s] reasonable monthly expenses from which to calculate his ability to pay
alimony.” From our review of the trial court’s lengthy analysis, the trial court did make a
finding as to Husband’s expenses. After reviewing both of Husband’s income and expense
statements and concluding that numerous expenses should be removed, it stated, “This
leaves monthly expenses of $24,556 in addition to those listed above for a total of
approximately $80,324 per month.” Thus, it appears that the trial court erroneously
combined Husband’s expenses from both income and expense statements to reach its total.
Husband’s own “Post-Divorce Income & Expense Statement” lists only $54,950 in
expenses.
We deem it appropriate to look only to the expenses listed on Husband’s updated
post-divorce income and expense statement. On that statement, Husband listed $54,950 in
monthly expenses, but this sum included his payment of the mortgage and related bills for
the marital home. Because Husband’s alimony in futuro obligation will not begin until the
marital home sells, those expenses should be deducted from his post-divorce expense total
for purposes of determining his ability to pay alimony in futuro. According to Husband’s
brief on appeal, the mortgage, utilities, and insurance on the marital home total $11,403.58
per month. Subtracting this sum from Husband’s expense list, we reach a monthly total of
$43,546.42. Husband’s post-divorce expense list also included the following additional
payments attributable to the marital residence: $537 for the HELOC payment; $140 for the
Homeowners Association; and $1,285 for property taxes. Subtracting these expenses that
will not be necessary once the marital home is sold, we reach a monthly total of $41,584.42.
Husband also included a full car payment of $1,928 for his Porsche, when his corporate
vice president of finance testified that Husband only pays ten percent of the payment from
his shareholder loan while the business pays ninety percent. As such, we reduce Husband’s
monthly vehicle payment to $192.80. This reduces Husband’s monthly expense by another
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$1,735.20, to $39,849.22 in total monthly expenses.14
Again, Husband’s own income and expense statement listed $46,000 in monthly net
income from salary and rental income alone. This did not include the substantial amount
of shareholder loans that Husband receives each month. Husband withdrew $614,985.70
in shareholder loans in 2016; $449,420.17 in 2017; and around $383,000 in 2018. Both of
the experts at trial (and also Husband) agreed that the parties were able to live their
extravagant lifestyle because of the shareholder loans. Wife’s expert explained that
Husband’s reported salary simply did not align with his claimed expenses of over $50,000
per month or the assets he had accumulated. He said Husband required distributions from
the company to maintain that level of spending. Husband’s expert likewise testified that
Husband had been able to meet his obligations exceeding his cash flow because of the
shareholder loans from the company. Husband also acknowledged that in order to live in
a $2.5 million home and maintain the family’s standard of living, he was borrowing from
the company to pay for it all. Husband now insists that he was simply living beyond his
means. Although that may be true to some extent, we think the evidence shows that
Husband does have the means to maintain his extravagant lifestyle. There is nothing in the
record to suggest that Husband will not continue to have access to shareholder loans, and
we agree with the trial court’s conclusion that it is highly unlikely that Husband will ever
repay the obligation. As the trial court noted in its alimony analysis, “Husband is in total
control of the income.”
In the Echols case discussed above, in which the husband had a similar “suspect”
debt obligation to his corporation, this Court found it appropriate to consider his “average
advances from the Corporation of over $140,000 annually” when reviewing the award of
alimony.15 2000 WL 688589, at *7. The alimony statute broadly permits the consideration
of each party’s “financial resources” in addition to any other factor affecting the equities
between the parties. Tenn. Code Ann. § 36-5-121(i)(1), (12). Considering Husband’s
monthly net income of $46,000, his additional access to shareholder loans, and his monthly
expenses, the record supports the trial court’s conclusion that he has the ability to pay
alimony in futuro of $8,308 per month.
Husband also “requests a credit for the amounts paid pursuant to the Pendente Lite
order that exceed his ability to pay.” Again, however, he cites no authority for his argument
that he is entitled to such a credit and does not point to anywhere in the voluminous trial
14
We recognize that Husband will also have an annual payment to Wife for the judgment to
equalize the division of marital property.
15
This situation is distinguishable from Goodman v. Goodman, 8 S.W.3d 289, 292 (Tenn. Ct. App.
1999), in which the husband was borrowing “from a trust in which his mother [was] the beneficiary.” He
had to pay back the loans with interest, and his mother could end the loans at any time. Id. at 294.
Considering these facts, we held that such loans should not have been considered as income to the husband
for purposes of setting alimony. Id. at 295.
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record where he requested such a credit before the trial court.16 Husband is not entitled to
the requested relief on appeal.
G. Attorney’s Fees
Finally, we address Wife’s issues regarding attorney’s fees. Wife argues that the
trial court erred by failing to order Husband to be responsible for a larger portion of her
attorney’s fees and expert witness fees. Wife notes that she raised this issue in her motion
to alter or amend.
In the final decree of divorce, the trial court found that Wife claimed $70,769 was
owed to her attorney and that $29,707 was owed to her expert witness. It found that
Husband owed his attorney $108,940. In analyzing Wife’s request for Husband to pay her
attorney’s fees, the trial court noted its observation during the proceedings that Husband
experienced difficulties securing information regarding Wife’s ownership interest in assets
both inside the United States and abroad. The trial court found that “Wife pled ignorance”
when asked about her assets, which necessitated the taking of depositions of her family
members outside the State of Tennessee. It noted that Husband’s efforts led to the
discovery of Wife’s one-third interest in the home in Iran and the possibility of an interest
in assets belonging to her parents in Denver. The trial court recognized that Wife’s interest
in the property in Iran was difficult for her to access and utilize but said “the ownership
interest exists nonetheless.” The court found that Wife either intentionally attempted to
hide her interest or, more likely, failed to exercise due diligence to determine whether an
ownership interest existed. In either event, the court reasoned, Husband was “compelled
to expend unnecessary resources in an effort to secure information” that should have been
forthcoming from Wife. The court found that this resulted in both parties expending
additional and unnecessary attorney’s fees, for which Husband should not be responsible.
As a result, the court explained that it was reducing Wife’s attorney’s fee award due to the
unnecessary fees incurred by both parties. Husband was ordered to pay Wife’s outstanding
expert witness fee of $29,707 in addition to $40,000 toward her outstanding attorney’s fee.
The trial court noted that Husband had already paid an additional portion of Wife’s
attorney’s fees during the divorce proceeding without being ordered to do so.17
Thereafter, Wife filed a motion to alter or amend, asking the court to “reexamine”
the issue of attorney’s fees. She conceded that her exhibits at trial only reflected the
16
This Court rejected a similar argument in Inzer v. Inzer, No. M2008-00222-COA-R3-CV, 2009
WL 2263818, at *10 (Tenn. Ct. App. July 28, 2009) (“Husband also sought a credit for the $12,000 in
alimony pendente lite paid during the six months before the final judgment was entered . . . . Husband cites
no authority justifying his request for a credit against the final alimony award and we find no basis for
granting his request.”).
17
The trial exhibit reflecting Wife’s itemization of attorney’s fees showed $167,307.77 billed
through December 31, 2018, with payments of $96,537.97 and an outstanding balance of $70,769.80.
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amounts she owed “up to the date the trial commenced.”18 After adding the amounts
incurred for the original four-day trial in addition to the additional hearing for reopening
the proof, Wife claimed that she currently owed $124,851.69 for attorney’s fees and
$55,378.05 for expert fees. She asked the court to “consider these total amounts” and
“make any changes” to the final decree of divorce that the court deemed necessary.
Husband filed a response, asserting that the parties had already completed a five-day trial,
the trial court had thoroughly considered all the issues in a 47-page order, and Wife offered
no explanation as to why it was necessary to relitigate the issue of attorney’s fees. After a
hearing, the trial court entered an order denying the motion to alter or amend, stating that
Wife’s request for the court to consider her trial and post-trial attorney’s fees and to
reallocate the award was denied.
We will review the trial court’s two orders on this matter separately, beginning with
the ruling in the final decree of divorce. An award of attorney’s fees is appropriate in a
divorce proceeding “‘when the spouse seeking them lacks sufficient funds to pay his or her
own legal expenses, or the spouse would be required to deplete his or her own resources to
pay them.’” Olinger v. Olinger, 585 S.W.3d 919, 922 (Tenn. Ct. App. 2019) (quoting
Gonsewski, 350 S.W.3d at 113). Whether to award such fees is in the sound discretion of
the trial court. Id. “While there are no strict parameters for the exercise of such discretion,
an award of attorney’s fees should generally be ‘just and equitable under the facts of the
case.’” Cooley v. Cooley, 543 S.W.3d 674, 687 (Tenn. Ct. App. 2016) (quoting Sherrod v.
Wix, 849 S.W.2d 780, 785 (Tenn. Ct. App. 1992)).
Given the trial court’s reasoned explanation for its decision to award Wife only a
portion of her outstanding attorney’s fees, we cannot say that the trial court abused its
discretion. “We have no qualms with the trial court’s refusal to sanction an award for fees
that it determined were unnecessarily incurred.” Erdman v. Erdman, No. M2018-01668-
COA-R3-CV, 2019 WL 6716305, at *6 (Tenn. Ct. App. Dec. 10, 2019).
We now turn to the denial of Wife’s motion to alter or amend.
As a general matter, there are four basic grounds upon which a motion to
alter or amend may be granted. First, the moving party may demonstrate that
it is necessary to correct manifest errors of law or fact upon which the
judgment is based. Second, the motion may be granted to permit the moving
party to present newly discovered or previously unavailable evidence. Third,
the motion may be justified by an intervening change in the controlling law.
Fourth, the motion may be granted when necessary to prevent a manifest
injustice.
18
Wife’s trial brief stated, “Wife estimates her unpaid attorney fees and costs will be between
$60,000 to $80,000 as accumulated during this case and for the trial.”
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Bough v. Tenn. Dep’t of Corr., No. E2017-02350-COA-R3-CV, 2018 WL 4181877, at *3
(Tenn. Ct. App. Aug. 30, 2018) perm. app. denied (Tenn. Jan. 17, 2019) (quoting Hughes
v. Tenn. Bd. of Parole, No. W2005-00838-COA-R3-CV, 2005 WL 3479632, at *4 (Tenn.
Ct. App. Dec. 20, 2005)).
Essentially, Wife asked the court to consider evidence not presented at the original
trial.
When a party files a Rule 59 motion seeking to alter or amend a judgment
and attempts to present additional evidence in support of such a motion, the
trial court should consider: the moving party’s effort to obtain the additional
evidence that the moving party seeks to present; the moving party’s
explanation for failing to offer the evidence earlier in the proceedings; the
importance of the new evidence to the moving party’s case; the unfair
prejudice to the non-moving party; and any other relevant consideration.
Sellers v. Walker, No. E2014-00717-COA-R3-CV, 2015 WL 1934489, at *7 (Tenn. Ct.
App. Apr. 29, 2015) (quoting Legens v. Lecornu, No. W2013-01800-COA-R3-
CV, 2014 WL 2922358 at *14-15 (Tenn. Ct. App. June 26, 2014)). “In order to sustain a
motion to alter or amend under Rule 59.04 based on newly discovered evidence, ‘it must
be shown that the new evidence was not known to the moving party prior to or during trial
and that it could not have been known to him through exercise of reasonable
diligence.’” Kirk v. Kirk, 447 S.W.3d 861, 869 (Tenn. Ct. App. 2013) (quoting Seay v. City
of Knoxville, 654 S.W.2d 397, 399 (Tenn. Ct. App. 1983)). When the litigants have already
had a trial and one party seeks to present new evidence by a motion to alter or amend,
courts should be cautious in altering the judgment. Legens, 2014 WL 2922358, at *15.
“Rule 59.04 motions are not opportunities to re-litigate the issues previously adjudicated
at trial.” Burris v. Burris, 512 S.W.3d 239, 247 (Tenn. Ct. App. 2016).
“A trial court’s decision on a motion to alter or amend is reviewed under an abuse
of discretion standard; this standard of review does not permit the appellate court to
substitute its judgment for that of the trial court.” Harmon v. Hickman Cmty. Healthcare
Servs., Inc., 594 S.W.3d 297, 298 (Tenn. 2020). Here, the trial court’s order states that the
trial court denied Wife’s request for the court to consider her additional attorney’s fees
after hearing argument of counsel “and testimony of the parties.” We have no transcript of
the hearing and no basis for concluding that the trial court abused its discretion in denying
the motion to alter or amend.
Finally, Wife requests an award of her attorney’s fees on appeal. She cites no
statutory or contractual authority for her request but appeals to the discretion of this Court.
We respectfully deny Wife’s request for attorney’s fees on appeal. See In re Mattie L., No.
W2018-02287-COA-R3-PT, 2020 WL 1867372, at *8 (Tenn. Ct. App. Apr. 14, 2020)
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perm. app. granted (Tenn. Aug. 11, 2020)19 (“We decline to award attorney’s fees to a
party that cannot identify a contractual, statutory, or some other basis for such an award.”)
IV. CONCLUSION
For the aforementioned reasons, we affirm the decision of the circuit court and
remand for further proceedings consistent with this opinion. Costs of this appeal are taxed
equally to the appellant, Reza Aliabadi, and to the appellee, Sima Khayatt Kholghi, for
which execution may issue if necessary.
_________________________________
CARMA DENNIS MCGEE, JUDGE
19
The application for permission to appeal filed in In re Mattie L. addressed other grounds and did
not raise any issue regarding the opposing party’s request for attorney’s fees on appeal.
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