Belinda Bentley Wright v. John Andrew Wright ( 2020 )

03/06/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 14, 2020 Session
BELINDA BENTLEY WRIGHT v. JOHN ANDREW WRIGHT
Appeal from the Circuit Court for Shelby County
No. CT-004322-14 Gina C. Higgins, Judge
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No. W2018-02163-COA-R3-CV
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This is a divorce case. Appellant Husband appeals the trial court’s: (1) classification of
certain property; (2) imputation of income for purposes of child support; (3) denial of the
parties’ proposed parenting plan; and (4) award of rehabilitative, transitional, and
alimony in solido to Appellee Wife. We conclude that the trial court erred in: (1) the
classification of certain marital property; (2) the amount of income imputed to the
parties’; (3) denying the parties’ proposed parenting plan absent sufficient findings; (4)
its award of rehabilitative alimony; and (5) in the amount of transitional alimony
awarded.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Reversed in Part, Vacated in Part, Affirmed in Part as Modified, and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY, and ARNOLD B. GOLDIN, JJ., joined.
Stuart B. Breakstone and Adrian Vivar-Alcalde, Memphis, Tennessee, for the appellant,
John Andrew Wright.
Charles W. McGhee and Leah Lloyd Hillis, Memphis, Tennessee, for the appellee,
Belinda Bentley Wright.
OPINION
I. Background
Appellant John Andrew Wright (“Husband”) and Appellee Belinda Bentley
Wright (“Wife”) were married on December 23, 2005 in Salt Lake City, Utah. This was
Wife’s second marriage and Husband’s first marriage. One child, Joshua, was born to the
marriage (Wife has an adult daughter from her previous marriage). At the time of the
divorce hearing, Joshua was 9 years old. The parties, who are Mormon, first lived in
Wheaton, Illinois. They moved to Shelby County in February 2009.
Wife has both a J.D. and an L.L.M. from John Marshall University. In 2009, she
became licensed to practice law in Tennessee and has remained in good standing since
that time. Although Wife is a licensed attorney in Tennessee, she has never practiced.
Since the parties’ marriage, Wife’s only employment has been as an adjunct professor at
the University of Memphis during the Spring 2012 semester; she earned approximately
$4,000 that semester.
Husband holds a Bachelor of Science degree in chemical engineering from
Brigham Young University and a Master of Business Administration degree from
Stanford University. During the marriage, Husband worked for United Airlines in
Chicago from 2001 to 2006. From 2007 to 2014, he worked for AutoZone in Memphis.
Husband received a base salary plus bonuses and was eligible to receive stock options
each year he worked for AutoZone. Not including stock options, Husband’s average
salary for the last three years he worked for AutoZone (i.e., 2012-2014) was $208,714.
Approximately one month after the parties separated, in May of 2015, Husband accepted
AutoZone’s offer of a buy-out; the question of whether Husband was forced to take the
buy-out or whether he voluntarily did so is disputed in the record. He remained
unemployed until the Fall of 2015 when he began work as a consultant for Epsilon
Loyalty Agency. At Epsilon, Husband earned $140 per hour. His 2016 W-2 reflects
income of $126,800, and his 2017 W-2 reflects income of $63,035. Husband testified
that his hours at Epsilon had declined due to factors outside his control.
Approximately ten years prior to the marriage, Husband purchased a home at 7360
Mimosa Lane in Dallas, Texas (the “Texas Property”). At the time of the hearing,
Husband estimated that the Texas Property was valued at $500,000 and was encumbered
with a mortgage of approximately $370,000; he further stipulated that at least $100,000
in marital funds had been used to maintain the Texas Property and to pay the mortgage.
Wife asserted that significantly more martial funds were used to maintain the Texas
Property, thus transmuting it into marital property.
At the time of the marriage, Husband also owned a 401(k) plan with United
Airlines, which had a balance of approximately $46,986. At the time of the marriage,
Husband also owned an IRA with Ameritrade, which had a balance of approximately
$5,904. As discussed below, in October 2007, Husband rolled the entirety of the United
401(k) into a Fidelity IRA. At the time of the rollover, the United 401(k) had a balance
of approximately $119,352.27. No other funds were added to the Fidelity account. The
Fidelity IRA decreased in value due solely to fluctuations in the market, and by May of
2009, the account balance had dropped to approximately $44,069.00. Husband then
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rolled the Fidelity IRA into the existing Ameritrade IRA.
Wife filed her complaint for divorce on October 14, 2014. Husband filed an
answer and counter-complaint on November 3, 2014. On August 17, 2015, the trial court
entered a temporary parenting plan for the minor child. The temporary plan gave the
parties equal parenting time and joint decision making. Prior to trial, the parties advised
the court that they had agreed on a permanent parenting plan that contemplated equal
parenting time. The parties announced that the only issues to be decided regarding
parenting were child support, designation of the primary residential parent, and which
party would be entitled to the tax credit.
The hearing on the divorce began on March 28, 2018 and concluded on April 9,
2018. The trial court entered its final decree of divorce on November 7, 2018; the trial
court’s relevant findings and conclusions are discussed below. Husband appeals.
II. Issues
Husband raises the following issues for review:
1. The trial court erred in its classification of certain marital assets and
liabilities.
2. The trial court erred in its imputation of income for the parties and
finding Husband is willfully underemployed.
3. The trial court erred in not adopting the parties’ proposed [parenting
plan] and adopted a permanent parenting plan that is not in the best
interest of the child.
4. The trial court erred in awarding Wife alimony in solido for payment of
attorney’s fees and three years of transitional alimony.
In the posture of Appellee, Wife raises the following additional issues:
1. Did the trial court err by finding that the property in Texas had both
marital and separate interest.
2. Did the trial court err by finding that 51% of the AmeriTrade IRA was
Husband’s separate property.
3. Should Husband be required to pay Wife’s attorney fees and suit
expenses on appeal.
III. Standard of Review
“We review a non-jury case de novo upon the record with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is
otherwise.” Tennessee Farmers Mut. Ins. Co. v. Debruce, No. E2017-02078-COA-R3-
CV, 2018 WL 3773912, at *3 (Tenn. Ct. App. Aug. 9, 2018) (citing Tenn. R. App. P.
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13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)). The trial court’s conclusions
of law are reviewed de novo and “are accorded no presumption of correctness.”
Brunswick Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d 638, 642 (Tenn. 2008).
IV. Classification of Property
Tennessee Code Annotated section 36-4-121 defines marital property and separate
property, in relevant part, as follows:
(b) For purposes of this chapter
(1)(A) “Marital property” means all real and personal property, both
tangible and intangible, acquired by either or both spouses during the
course of the marriage up to the date of the final divorce hearing and owned
by either or both spouses as of the date of filing of a complaint for divorce .
. . . All marital property shall be valued as of a date as near as possible to
the date of entry of the order finally dividing the marital property;
(B)(i) “Marital property” includes income from, and any increase in the
value during the marriage of, property determined to be separate property in
accordance with subdivision (b)(2) if each party substantially contributed to
its preservation and appreciation;
(ii) “Marital property” includes the value of vested and unvested pension
benefits, vested and unvested stock option rights, retirement, and other
fringe benefit rights accrued as a result of employment during the marriage;
(iii) The account balance, accrued benefit, or other value of vested and
unvested pension benefits, vested and unvested stock option rights,
retirement, and other fringe benefits accrued as a result of employment
prior to the marriage, together with the appreciation of the value, shall be
“separate property.”
***
(D) As used in this subsection (b), “substantial contribution” may include,
but not be limited to, the direct or indirect contribution of a spouse as
homemaker, wage earner, parent or family financial manager, together with
such other factors as the court having jurisdiction thereof may determine;
***
(2) “Separate property” means:
(A) All real and personal property owned by a spouse before marriage,
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including, but not limited to, assets held in individual retirement accounts
(IRAs) as that term is defined in the Internal Revenue Code of 1986 (26
U.S.C.),1 as amended;
***
(C) Income from and appreciation of property owned by a spouse before
marriage except when characterized as marital property under subdivision
(b)(1);
In addition to the provisions of Tennessee Code Annotated section 36-4-121,
Tennessee courts have recognized two methods by which separate property may be
converted into marital property, i.e., commingling and transmutation.
[S]eparate property becomes marital property [by commingling] if
inextricably mingled with marital property or with the separate property of
the other spouse. If the separate property continues to be segregated or can
be traced into its product, commingling does not occur.... [Transmutation]
occurs when separate property is treated in such a way as to give evidence
of an intention that it become marital property. . . . The rationale
underlying these doctrines is that dealing with property in these ways
creates a rebuttable presumption of a gift to the marital estate. This
presumption is based also upon the provision in many marital property
statutes that property acquired during the marriage is presumed to be
marital. The presumption can be rebutted by evidence of circumstances or
communications clearly indicating an intent that the property remain
separate.
Langschmidt v. Langschmidt, 81 S.W.3d 741, 747 (Tenn. 2002) (brackets and ellipses in
original) (citations omitted).
Concerning our review of the trial court’s classification of property in a divorce,
“[q]uestions regarding the classification of property as either marital or
separate, as opposed to questions involving the appropriateness of the
division of the marital estate, are inherently factual.” Owens v. Owens, 241
S.W.3d 478, 485 (Tenn. Ct. App. 2007) (citations omitted). As such, we
employ the familiar standard of review outlined in Rule 13(d) of the
Tennessee Rules of Appellate Procedure. Bilyeu v. Bilyeu, 196 S.W.3d
131, 135 (Tenn. Ct. App. 2005). “As a general rule, assets acquired by
either spouse during the marriage are presumed to be marital property.”
Owens, 241 S.W.3d at 485 (citations omitted). Moreover, when a spouse
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seeks to assert that an asset acquired during the marriage is separate
property, he or she bears the burden of proving that fact by a preponderance
of the evidence. Id. at 485-86 (citations omitted).
Bewick v. Bewick, No. M2015-02009-COA-R3-CV, 2017 WL 568544, at *7 (Tenn. Ct.
App. Feb. 13, 2017).
Here, the parties dispute the trial court’s classification of two assets, i.e., the
Ameritrade IRA and the Texas Property. With the foregoing law in mind, we turn to
address the parties’ respective arguments.
A. Ameritrade IRA
In the final decree of divorce, the trial court divided the Ameritrade IRA as
follows:
Ameritrade IRA, ending 0803. At the time of trial in this matter, the
account balance was $355,767. The parties agreed that at least 41% of this
balance was Husband’s separate property, owned prior to the parties’
marriage. What remained in dispute was what portion of the remaining
59% was marital or separate property. As such, the Court awards Husband
the 41% of this balance, as it existed at the time of trial, as his separate
property. The Court rounds this amount to $146,000. With regard to the
remaining 59%, the Court finds that, in 2005, prior to the parties’ marriage,
the account had a balance of $46,986.42 and by the end of 2006, the
account had a balance of $128,204.23. Then, in 2008, the account had a
value of $146,127.27. These changes in value were due to contributions as
well as market pressures.
The Court finds that between 2005 and 2006, the monies that went
into the account, up to $128,204, were Husband’s separate property and
that this amount appears to be the 41% that the parties agree is Husband’s
separate property. The Court then also finds that it would be equitable to
award Husband an additional $50,000 from this account as his separate
property, taking his share of the account value at the time of trial to
$196,000.
As such, the remaining balance in this account, $159,767, as of the
time of trial, is marital property and shall be divided as follows:
i. The Court further increases the award of $196,000 to Husband by an
additional $15,000 from the marital portion of this account to offset the
award to Wife of 100% of the Epsilon 401k . . . .
ii. Wife shall be awarded, from the marital portion of this account, $119,000
and Husband shall be awarded the remaining $25,767.
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iii. The Court recognizes, however, that after the trial in this matter and prior to
this Court’s ruling, the parties entered into consent orders, allowing
Husband to remove monies from this account in order to meet his ongoing
monthly expenses as well as meet his pendente lite obligations to Wife. All
told, Husband removed, by agreement, $42,821 from his separate portion of
the IRA. As such, Husband’s separate portion of $196,000 is reduced by
$42,821 making Husband’s separate portion $153,179.
iv. Therefore, Husband’s total award from this account is his separate portion
of $153,179, his offset of $15,000 due to Wife receiving the Epsilon 401k,
and his award of the marital portion of $25,767 for a total of $193,946.
v. Once the removal of $42,821 from the IRA balance of $355,767 is taken
into account, the total account balance is $312,946. Husband’s toal award
is $193,946 and Wife’s total award is $119,000. Husband’s award is 62%
of this balance of $312,946 and Wife’s award is 38% [sic] of this balance.
vi. All gains or losses on this account from the time of the last day of trial to
the date of entry of the Final Decree of Divorce, solely due to market
pressure, shall be born proportionally by each of the parties, Wife receiving
38% and Husband receiving 62%.
(Emphasis in original).
In Snodgrass v. Snodgrass, 295 S.W.3d 240 (Tenn. 2009), the Tennessee
Supreme Court addressed the narrow issue of whether a party’s 401(k) account was a
“retirement or other fringe benefit right” related to employment. Snodgrass, 295 S.W.3d
at 249. As set out in context above, under Tennessee Code Annotated section 36-4-
121(b)(1)(B), marital property includes
income from, and any increase in the value during the marriage of, property
determined to be separate property in accordance with subdivision (b)(2) if
each party substantially contributed to its preservation and appreciation; (ii)
. . . the value of vested and unvested pension benefits, vested and unvested
stock option rights, retirement, and other fringe benefit rights accrued as a
result of employment during the marriage;
The Snodgrass Court explained that
Tennessee Code Annotated section 36-4-121(b)(1)(B) contains two
independent definitions of marital property. The first clause refers to
income from and appreciation on separate property that accrues during the
marriage where “each party substantially contributed to [the separate
property’s] preservation and appreciation.” Tenn. Code Ann. § 36-4-
121(b)(1)(B). The second clause refers to “the value of vested and
unvested pension, vested and unvested stock option rights, retirement or
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other fringe benefit rights relating to employment that accrued during the
period of the marriage.” If the property at issue is deemed to fit within this
second clause, then it is marital property without regard to “substantial
contributions” by either spouse. See Batson v. Batson, 769 S.W.2d 849,
857 (Tenn. Ct. App. 1988) (recognizing that “[t]he pension provision is not
modified by the ‘substantial contribution’ requirement preceding it” and
that “pension benefits earned by a spouse during the marriage are marital
property even though the other spouse did not contribute directly to their
preservation or appreciation”).
Once the property is determined to be a pension, stock option,
retirement or other fringe benefit right relating to employment, the issue
becomes one of determining the value of that benefit that accrued during
the marriage. In Umstot v. Umstot, 968 S.W.2d 819 (Tenn. Ct. App. 1997),
our Court of Appeals considered an argument similar to the one being made
by Husband in this case. In Umstot, the husband had a “retirement plan”
that held a balance of $4,437 at the time of marriage. The plan grew by
$154,106 during the marriage. The husband argued that both the premarital
balance and the growth attributable to that amount should have been
deemed his separate property. The Court of Appeals disagreed, stating that
“the critical determination is whether the value ‘accrued’ during the
marriage.” Id. at 822. The court held that “all of Husband's retirement
plan, except $4,437.00, accrued during the marriage.” Id. Accordingly, the
entire balance of the husband’s retirement plan was marital property except
for the premarital balance of $4,437. Id.
We agree with this reasoning. If a contested piece of property fits
within the second clause of (b)(1)(B), then the entire net increase in value
of that property that accrues during the marriage, through whatever means
or methods, is deemed marital, even if the property contains an element of
separate property. See Franklin v. Franklin, C/A No. 03A01-9410-CV-
00364, 1995 WL 371573, at *2 (Tenn. Ct. App. June 21, 1995) (holding
that “everything in Husband's thrift and profit sharing plan, save the $5,091
in there at the time of the marriage, ‘accrued’ after the marriage” and was
therefore marital property because “[t]his code section does not
differentiate between value added by ‘passive income’ and value added by
additional contributions during the marriage”); see also McKee v. McKee,
No. M1997-00204-COA-R3-CV, 2000 WL 666363, at *3 (Tenn. Ct. App.
May 23, 2000) (recognizing that “marital property includes any increase
during the marriage in the value of retirement or pension rights, whether
through passive growth or through either party’s direct or indirect
contribution”).
If, however, the property at issue does not fit within this second
clause and is otherwise deemed to be separate, any income from or
appreciation of the property will remain separate unless a court finds
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sufficient evidence to support a theory of substantial contribution,
commingling, transmutation, gift to the marital estate, or some other theory
by which otherwise separate property may be deemed marital.
Snodgrass, 295 S.W.3d at 247-49 (citations and footnote omitted).
Concerning the distinction between a 401(k) account and an IRA, the Snodgrass
Court, noted that
individuals may participate in a 401(k) plan only through their
employment. See 26 U.S.C.A. § 401 (West 2002). A 401(k) account is
therefore distinct from an Individual Retirement Account (“IRA”), a tax-
deferred and age-sensitive savings vehicle available to individuals outside
of their employment. See generally 26 U.S.C.A. § 408 (West 2002).
Additionally, an employee may possess only one 401(k) account per
employer.
Snodgrass, 295 S.W.3d at 250 (footnote omitted). Based on the foregoing distinction,
the Snodgrass Court went on to clarify its previous opinion in Langschmidt v.
Langschmidt, 81 S.W.3d 741, 747 (Tenn. 2002), stating:
At issue[, in Langschmidt,] were IRAs that had been funded by the
husband prior to his marriage. The wife did not dispute that the premarital
contributions to the accounts remained separate property but argued that the
investment gains in these IRAs that accrued during the marriage were
marital property because the IRAs were retirement benefits. This Court
phrased the issue as “whether the increase in value of a spouse’s separate
[IRA] during the marriage is automatically marital property under Tenn.
Code Ann. § 36-4-121(b)(1)(B) when the IRA is funded entirely with
premarital earnings.” Langschmidt, 81 S.W.3d at 742. We held with
respect to that issue that “the appreciation of a spouse’s IRA during the
marriage is separate property when funded completely with premarital
earnings and absent substantial contribution by the other spouse to the
preservation and appreciation of the IRA.” Id.
***
The IRAs at issue in Langschmidt were not “vested pension,
retirement or other fringe benefit rights” within the meaning of (b)(1)(B)
because they were not associated with the husband’s employment . . . .
Rather, the IRAs at issue in Langschmidt had been funded by the husband
in his individual capacity entirely with premarital funds and prior to his
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marriage. The Langschmidt IRAs were husband’s separate property
because, first and foremost, they did not fit the definition of marital
property set forth in the second clause of (b)(1)(B). By the same token,
because the IRAs at issue in that case were not a product of the husband’s
employment, they did not involve deferred compensation.
Snodgrass, 295 S.W.3d at 253-54 (footnote omitted). So, “absent substantial
contribution by the other spouse to the preservation and appreciation of the IRA,” the
pre-marital value of an IRA and any appreciation in the value of that IRA during the
marriage remain separate property. Conversely, the Snodgrass Court explained that
[t]he right to participate in a 401(k) plan, if exercised, is also capable of
accruing value over time beyond the parties’ contributions, both through
employer contributions and through investment gains. A spouse’s 401(k)
account therefore fits the (b)(1)(B) definition of marital property as a
“retirement or other fringe benefit right[ ] relating to employment.”
Whether the monies within the account are marital property or separate
property depends on when they accrued, not how. See Franklin [v.
Franklin, C/A No. 03A01-9410-CV-00364,] 1995 WL 371573, at *2
[(Tenn. Ct. App. June 21, 1995)] (recognizing that, in assessing marital
portion of retirement benefits, “[t]he critical determination is whether the
value ‘accrued’ during the marriage”).
***
In summary, then, Tennessee Code Annotated section 36-4-
121(b)(2)(C) defines separate property as including “[i]ncome from and
appreciation of property owned by a spouse before marriage” but
specifically excludes such income and appreciation when it is
“characterized as marital property under subdivision (b)(1).” That portion
of a 401(k) account existing on the date of marriage remains separate
property. Because, however, the account is a “retirement or other fringe
benefit right[ ] relating to employment,” id. at (b)(1)(B), the entire net
amount of income and appreciation that was experienced in Husband’s and
Wife’s 401(k) accounts during their marriage is characterized as marital
property, including that which accrued on the premarital balances. See also
Langschmidt, 81 S.W.3d at 749 (“Retirement benefits accrued during the
marriage clearly are marital property under Tennessee law.”).
Snodgrass, 295 S.W.3d at 251.
Viewing the facts of the instant case in light of the Tennessee Supreme Court’s
holdings in Snodgrass, we conclude that the trial court’s application of a percentage-
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based division of this asset was error. Here, it is undisputed that, at the time of the
marriage, Husband’s United 401(k) had a balance of $46,986.42. Under Snodgrass, this
was his separate property; however, any appreciation or contributions to the 401(k)
during the marriage were marital property. During the first year of marriage, i.e., 2006, an
additional $72,364.92 was deposited into the United 401(k). No other funds were added
to the account during the marriage; however, due to the market, and as found by the trial
court, the value of the account rose to $128,204.23 in 2006. Then, in 2008, the account
value rose to $146,127.27. As set out above, the trial court included the percentage of
growth on Husband’s initial $46,986.42 in calculating the portion of the account that was
his separate property. This was error. Under Snodgrass, Husband is not entitled to the
appreciation on the $46,986.42 during the marriage; any increase in value in the 401(k)
account after the marriage is marital property. Husband’s separate property remains
$46,986.42. Snodgrass, 295 S.W.3d at 251 (“That portion of a 401(k) account existing
on the date of marriage remains separate property. Because, however, the account is a
‘retirement or other fringe benefit right[ ] relating to employment,’ the entire net amount
of income and appreciation [in the] accounts during their marriage is characterized as
marital property, including that which accrued on the premarital balances.”) (citations
omitted).
On or about July 18, 2008, Husband rolled the United 401(k) funds into a new
Fidelity IRA. It is undisputed that no other funds, marital or otherwise, were added to the
Fidelity IRA at any time. Thus, Husband’s separate property, i.e., $46,986.42, remained
traceable. Church v. Church, M2004-02702-COA-R3-CV, 2006 WL 2168271, at *7
(Tenn. Ct. App. Aug.1, 2006) (“Property acquired prior to a final [divorce] hearing that is
traceable to separate property constitutes separate property unless it has been gifted to the
marital estate or has been transmuted into marital property through inextricable
commingling with marital estates.”). Thereafter, the Fidelity IRA decreased in value
during the market downturn of 2008. By 2009, the value of the account had fallen to
$44,069.95.
As mentioned above, the Ameritrade IRA, which is now the subject of this appeal,
was opened by Husband prior to the marriage. It is undisputed that at the time of the
marriage, the Ameritrade IRA had a value of $5,973.60. Under Snodgrass, this was
Husband’s separate property. When Husband moved the Fidelity IRA funds into the
existing Ameritrade IRA, his separate property was the $46,986.42 pre-marital value of
the United 401(k), which remained traceable, plus the $5,973.60 pre-marital value of the
Ameritrade IRA. At the time of the hearing, the value of the Ameritrade IRA had grown
to $355,757. The question, then, is whether any amount of the $355,757 over what we
know to be Husband’s separate property, i.e., $52,960.02, is also Husband’s separate
property. We turn to that question.
The Ameritrade IRA was initially funded with Husband’s separate property of
$52,960.02 and marital property consisting of amounts that had accrued and been added
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to the United 401(k) during the marriage, see supra. In this regard, the instant case is
distinguishable from the Langschmidt case, where the Tennessee Supreme Court held
that “the appreciation of a spouse’s IRA during the marriage is separate property when
funded completely with premarital earnings and absent substantial contribution by the
other spouse to the preservation and appreciation of the IRA.” 81 S.W.3d at 742
(emphasis added). Here, the Ameritrade IRA was funded with both marital and separate
property. Furthermore, the account enjoyed significant growth during the marriage.
Because the growth is attributable both to market factors and to contributions made
during the marriage, any amounts over Husband’s initial contribution of $52,960.02 are
marital property. Accordingly, while we affirm the trial court’s finding that this
$355,767 asset contains both separate and marital property, we modify the trial court’s
finding that $196,000 of the asset is Husband’s separate property. Based on the foregoing
analysis, Husband is entitled to $52,960.02 of the Ameritrade IRA as his separate
property. The remaining balance of the account, including any accrual or loss during the
pendency of this appeal, is marital property, which the trial court is instructed to divided
equitably on remand. Our holding does not preclude the trial court from awarding
Husband the additional $15,000 as an offset of the award of the Epsilon account to Wife,
nor is the trial court precluded from subtracting, from Husband’s separate portion of this
account, any monies he withdrew to satisfy his pendente lite obligations.
B. Texas Property
In the final decree of divorce, the trial court divided the Texas Property as follows:
This property was purchased by Husband prior to the marriage and titled
solely in the name of Husband. During the marriage, however, the Court
finds that there are some marital equities in the property due to the
comingling of separate and marital property. Therefore[,] this Court finds
that the property is made of mixed marital and separate property.
The Court finds that the fair market value of this property is
$575,000 based upon Husband’s testimony as well as his pre-trial
submissions. The parties agree that there is an outstanding mortgage on the
home of $372,000, leaving equity in the home of $203,000. Of this amount
of equity, the Court finds that $175,000 is marital property based upon the
marital funds used to refinance the home, the renovations of the home, and
the marital funds used to pay the mortgage above and beyond the rent that
was received from tenants. The remaining $28,000 is Husband’s separate
property.
Husband is awarded sole title and exclusive ownership of the [Texas
Property] as his separate asset. Wife shall be divested of any right, title and
interest in and to said property, and the same shall be vested into Husband.
Husband shall indemnify and hold Wife harmless from any indebtedness or
liability thereon. Husband shall be responsible for paying any and all
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indebtedness associated with said real property, and Husband shall be
further responsible for payment of all other expenses associated with said
property. Wife shall execute a quit claim deed divesting herself of any and
all interest in said property.
The Court also finds that the marital portion of this equity is
$175,000 and that the remaining equity is Husband’s separate property.
On appeal, both parties refute the trial court’s characterization and division of the
Texas Property. Husband argues that the trial court failed to state the basis for its
decision in violation of Tennessee Rule of Civil Procedure 52.01 (“In all actions tried
upon the facts without a jury, the court shall find the facts specially and shall state
separately its conclusions of law and direct the entry of the appropriate judgment.”).
Thus, he contends that the trial court’s ruling on the Texas Property should be vacated
and remanded. We disagree. As set out above, the trial court’s ruling on the Texas
Property contains sufficient findings to indicate its reasoning so as to enable this Court to
review the decision. Having so concluded, we turn to the substantive question of whether
the trial court erred in classifying the Texas Property as both marital and separate.
At trial, Husband maintained that the Texas Property remained his separate
property based on the fact that the property remained titled in his name. At the outset, we
note that the fact that the Texas Property was titled in Husband’s name alone is not
dispositive of the question of whether the property remains Husband’s separate property.
See Cohen v. Cohen, 937 S.W.2d 823, 833 n.12 (Tenn. 1996) (“The fact that no title or
other legal interest has been conveyed to the non-owner spouse is irrelevant. For the
purposes of property division in a divorce, ‘[i]n the final analysis, the status of property
depends not on the state of its record title, but on the conduct of the parties.’” (citations
omitted)). “An asset separately owned by one spouse will be classified as marital
property if the parties themselves treated it as marital property.” Fox v. Fox, No.
M2004-02616-COA-R3-CV, 2006 WL 2535407, at *5 (Tenn. Ct. App. Sept. 1, 2006).
Wife argues that the entire Texas Property was transmuted into marital property
due to the expenditure of joint funds for the maintenance of the property during the
marriage. As very recently explained by this Court:
“[Transmutation] occurs when separate property is treated in such a way as
to give evidence of an intention that it become marital property.”
Snodgrass v. Snodgrass, 295 S.W.3d 240, 256 (Tenn. 2009) (quoting
Langschmidt v. Langschmidt, 81 S.W.3d 741, 747 (Tenn. 2002)). In
determining intent, “the ultimate test is how the property was treated by the
parties.” Strickland v. Strickland, No. M2012-00603-COA-R3-CV, 2012
WL 6697296, at *17 (Tenn. Ct. App. Dec. 21, 2012). Factors include (1)
the use of the property by the family or to support the marriage; (2) shared
control, maintenance, or management of the property; (3) titling the
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property jointly; and (4) use of the non-owner spouses’ credit or separate
funds to pay for or improve the property. Luplow v. Luplow, 450 S.W.3d
105, 114 (Tenn. Ct. App. 2014) (quoting Fox, 2006 WL 2535407, at *3); 2
John Tingley and Nicholas B. Svalina, Marital Property Law § 42:30 (2d
ed.); see also Woodward v. Woodward, 240 S.W.3d 825, 829 (Tenn. Ct.
App. 2007) (use as marital residence); McClellan v. McClellan, 873
S.W.2d 350, 352 (Tenn. Ct. App. 1993) (intent to use as permanent family
home); Kincaid v. Kincaid, 912 S.W.2d 140, 142 (Tenn. Ct. App. 1995)
(use of marital and non-owner spouse’s funds).
Anderson v. Anderson, No. M2018-01248-COA-R3-CV, 2019 WL 3854663, at *5
(Tenn. Ct. App. Aug. 16, 2019). As the proponent of transmutation, Wife has the burden
of establishing same. Nesbitt v. Nesbitt, No. M2006-02645-COA-R3-CV, 2009 WL
112538, at *9 (Tenn. Ct. App. Jan. 14, 2009).
Turning to the record, at the hearing, Husband conceded that at least $100,000 of
marital funds had been used to maintain the Texas Property, to-wit:
Q. Would you agree with me that there’s been substantial marital funds
placed in the [Texas Property] to maintain it and pay the mortgages, to do
improvements, pay taxes?
A. I agree that there have been substantial funds . . . . I would say more
than $100,000.00, which is pretty substantial and that all of those funds
came from my efforts and labor, my income.
***
Q. So it’s your testimony that at least . . . $100,000.00 of marital funds
went into the [Texas Property]?
A. I would stipulate to $100,000.00, yes.
Concerning income received during the marriage from rent on the Texas Property,
Wife entered Trial Exhibit 6, which consists of Wife’s Rule 1006 summary of rental
income from the Texas Property from 2006 until 2016. Wife’s summary indicates that
during the marriage, the parties received gross rents of $253,606.84. Wife’s summary is
corroborated by statements from Remarkable Asset Management, the management
company for the Texas Property from 2009 until 2016.
Concerning expenditures for the mortgage, maintenance, and taxes on the Texas
Property during the marriage, Wife testified, in relevant part, as follows:
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Q. Has the rental income on [the Texas Property] covered the cost of the
mortgage?
A. It has not.
Q. Have there been repairs made to this property during the marriage?
A. There have been maintenance repairs as well as significant renovations
and upgrades made over the course of the years.
Q. Approximately what sort of price range did that renovation encumber?
A. In 2009 it had been vacant for over a year and part of the problem was it
needed to be upgraded. We spent over $20,000.00 in materials and labor as
well as I spent almost two months living down there, painting, dealing with
contractors and purchasing supplies and doing upgrades myself.
Q. The cost of these renovations and this mortgage, what account were
they paid from? Where did that money come from?
A. It came from marital assets . . . . It’s paid for out of the joint marital
account.
***
Q. What w[as] the source of these funds that were used on the [Texas
Property]?
A. These were mostly marital funds; some of my premarital assets as well.
Q. And can you tell the Court what the total expenses were from marital
funds and your separate funds on [the Texas Property during the marriage]?
A. Sure. $552,812.27
In addition to the foregoing testimony, Wife entered Trial Exhibit 7, which is comprised
of her Rule 1006 summary of total expenses for the Texas Property. The summary shows
total expenses of $552,812.27 for the years 2006 through October of 2016. Also, as part
of Trial Exhibit 7, Wife provided monthly bank statements for the parties’ joint checking
account. These monthly statements cover the years 2006 through 2016 and corroborate
the itemization of expenditures listed in Wife’s summary. Wife’s testimony and proof
concerning the rental income from and expenditures on the Texas Property are not
disputed except to the extent that Husband testified, without corroborating proof, that the
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parties spent at least $100,000 in marital funds for maintenance of the Texas Property.
Based on the evidence, “the strength or weakness of Wife’s [transmutation] argument
[largely] depends on the amount of joint maintenance and management” of the Texas
Property. Watson v. Watson, No. E2010-00577-COA-R3-CV, 2010 WL 5549050, *7
(Tenn. Ct. App. Dec. 29, 2010).
In support of her argument that the entire Texas Property was transmuted, through
joint maintenance and management, into marital property, Wife relies on this Court’s
Anderson opinion. In Anderson, Wife helped make loan payments on the promissory
note she signed, and the proceeds from the loan were used in part to refinance the
existing mortgage on the real property husband brought to the marriage. 2009 WL
3631029, at *2. The trial and this Court relied on the wife’s payments to conclude that
the property, which was initially husband’s separate property, was ultimately transmuted
into marital property:
Based on the fact that Ms. Anderson signed the note which allowed Mr.
Anderson to refinance and improve the . . . property and helped him make
the payments, we cannot find that the evidence preponderates against a
finding that the Brick Church Pike property became marital property by
transmutation.
Anderson, 2009 WL 3631029, at *3. Owens v. Owens, 241 S.W.3d 478, 486 (Tenn. Ct.
App. 2007) (affirming trial court’s finding of transmutation where, “[f]or approximately
twenty years, [husband] used marital funds to pay $150 per month to help defray the
mortgage expenses. . . . This evidence is sufficient to support the trial court’s decision to
classify [the] house as marital property.”); Gorbet v. Gorbet, No. W2011-01879-COA-
R3–CV 2012 WL 4847090 (Tenn. Ct. App. Oct. 11, 2012) (finding transmutation where,
inter alia, “Husband paid the mortgage with funds earned during the marriage”).
In the instant case, both parties testified that a substantial amount of marital funds
were used to maintain the Texas Property, including the mortgage payments thereon.
Husband’s uncorroborated testimony that the amount was no more than $100,000 is
disputed by Wife’s corroborated testimony that the amount expended was closer to
$500,000. Despite the disparity in the parties’ respective testimony, the trial court’s
undisputed finding was that the equity in the Texas Property (at the time of the hearing)
was $203,000. The amount of equity available leads us to conclude that the expenditure
of even $100,000 of marital funds on the Texas Property was sufficient to transmute the
entirety into marital property. See Liner v. Liner, No. M2010-00582-COA-R3-CV, 2011
WL 1420883, *3 (Tenn. Ct. App. April 13, 2011) (finding transmutation of real property
where “[t]he mortgage and utilities for the home were paid out of [a] joint account,” and
wife made “non-financial contributions to the ongoing maintenance and management of
the residence”); Hagler v. Hagler, No. E2007-02609-COA-R3-CV, 2009 WL 838163, *3
(Tenn. Ct. App. March 31, 2009) (“In this case, the property was never titled jointly, but
- 16 -
the evidence supports the Trial Court’s conclusion that this property should be treated as
marital. The evidence demonstrated that . . . wife contributed . . . to the maintenance and
improvement of the property. The evidence shows that this property was intended to be
part of the marital estate . . . .”); Daniel v. Daniel, No. M2006-01579-COA-R3-CV, 2007
WL 3202778, at *6 (Tenn. Ct. App. Oct. 31, 2007) (finding transmutation where “[t]he
mortgage, insurance, and taxes on the [] property were paid with the rental proceeds that
had been deposited into a joint bank account held by the parties”). Based on the totality
of the circumstance and the foregoing law, we reverse the trial court’s characterization of
the Texas Property as mixed marital and separate property and remand for an equitable
division of the equity and debt thereon as marital property.
V. Imputation of Income
In its final decree of divorce, the trial court imputed income to both parties for
purposes of child support, to-wit:
5. The Court imputes to Husband $12,000 per month as gross income for
purposes of child support.
6. The Court imputes to Wife $2,000 per month as gross income for
purposes of child support.
As explained by this Court,
[t]he Tennessee Child Support Guidelines provide that income may be
imputed to a parent when the court determines that the parent is voluntarily
underemployed. Wadhwani v. White, No. M2015-01447-COA-R3-CV,
2016 WL 4579192, at *13 (Tenn. Ct. App. Aug. 31, 2016) (citing Tenn.
Comp. R. & Regs. 1240-02-04-.04). The guidelines provide factors to be
considered when determining whether a parent is willfully and voluntarily
underemployed or unemployed. Richardson v. Spanos, 189 S.W.3d 720,
726 (Tenn. Ct. App. 2005). The factors include, inter alia, the parent’s past
and present employment; the parent’s education, training, and ability to
work; the parent’s role as stay-at-home parent; and any additional factors
deemed relevant to the particular circumstances of the case. See Tenn.
Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(iii).
The issue of voluntary underemployment is a question of fact that requires
careful consideration of all the attendant circumstances. Owensby v. Davis,
No. M2007-01262-COA-R3-JV, 2008 WL 3069777, at *4 (Tenn. Ct. App.
July 31, 2008) (citing Richardson, 189 S.W.3d at 726). We afford the trial
court considerable discretion in this determination. Thayer v. Thayer, No.
M2015-00194-COA-R3-CV, 2016 WL 4056316, at *4 (Tenn. Ct. App. July
26, 2016) (citing Willis v. Willis, 62 S.W.3d 735, 738 (Tenn. Ct. App.
- 17 -
2001)). “The trial court’s decision is entitled to a presumption of
correctness, particularly ‘when it is premised on the trial court's singular
ability to ascertain the credibility of the witnesses.’” Id. (citing Reed v.
Steadham, No. E2009-00018-COA-R3-CV, 2009 WL 3295123, at *2
(Tenn. Ct. App. Oct. 14, 2009)).
Ghorashi–Bajestani v. Bajestani, No. E2016–00063–COA–R3–CV, 2017 WL 809880,
at *9 (Tenn. Ct. App. March 1, 2017). As further explained by this Court:
When called upon to determine whether a parent is willfully and voluntarily
unemployed or underemployed, the courts will consider the factors in Tenn.
Comp. R. & Regs. 1240-2-4-.04(3)(d)(2), as well as the reasons for the
party’s change in employment. Demers v. Demers, 149 S.W.3d 61, 69
(Tenn. Ct. App. 2003); Eldridge v. Eldridge, 137 S.W.3d 1, 21 (Tenn. Ct.
App. 2002). If a parent’s reasons for working in a lower paying job are
reasonable and in good faith, the court will not find him or her to be
willfully and voluntarily underemployed. Willis v. Willis, 62 S.W.3d at 738.
The courts are particularly interested in whether a parent’s change in
employment [or amount of income] is voluntary or involuntary, Eldridge v.
Eldridge, 137 S.W.3d at 21, and are more inclined to find willful and
voluntary underemployment when a decision to accept a lower paying job
is voluntary. Demers v. Demers, 149 S.W.3d at 69.
Richardson v. Spanos, 189 S.W.3d, at 726. Furthermore,
[a] determination of willful and/or voluntary underemployment or
unemployment is not limited to choices motivated by an intent to avoid or
reduce the payment of child support. The determination may be based on
any intentional choice or act that adversely affects a parent’s income.
Tenn. Comp. R. & Reg. 1240-2-04-.04(3)(a)(2)(ii). Accordingly, the touchstones for this
inquiry are the reasonableness of the employment decision and whether the choice to take
a lower paying job was voluntary, to-wit:
Our courts will consider the reasonableness of the obligor parent’s
occupational choices in light of surrounding circumstances. See Narus v.
Narus, No. 03A01-9804-CV-00126, 1998 WL 959839 at *2 (Tenn. App.
Ct. Dec. 31, 1998) (no Tenn. R. App. P. 11 application filed) (obligor not
willfully and voluntarily unemployed or underemployed where obligor
chose “to retire at a reasonable age, for legitimate reasons, and otherwise
under reasonable circumstances.”). The trial court must consider whether
the choice to take a lower paying job is made in good faith and whether
some or all of the unrealized earning capacity should be included as
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imputed income.
***
Generally, where a reduced actual income is involved, the fact patterns
differ on whether the leaving of previous employment or other income
producing activity was voluntary. . . .
Ralston v. Ralston, No. 01A01-9804-CV-00222, 1999 WL 562719, at *3 (Tenn. Ct. App.
Aug. 3, 1999).
Concerning whether the parties were willfully and voluntarily unemployed or
underemployed, the trial court’s final decree of divorce states:
The Court also specifically finds that Husband was released, or engineered
his release, from employment that allowed him to be a high-wage earner
and its is highly unlikely that Father will be reemployed in his field of
loyalty analyst. The Court finds that Father has devised a plan not to find
more stable and substantially gainful employment until after the Court
establishes and sets alimony and child support and divides the financial
assets. The Court also finds that Husband is willfully underemployed.
***
The Court finds that Wife is employable but will not likely attempt gainful
employment until after the divorce is final and finances and support have
been established by the Court. Wife has a law degree and is licensed in
Tennessee and has an LLM in good standing.
Turning to the record, during the early part of the marriage, 2006 to 2014,
Husband had solid employment with United Airlines and AutoZone, where he worked as
the director of loyalty and analysis. Husband’s average salary for the last three years he
worked for AutoZone (i.e., 2012-2014) was $208,714 not including stock options. In
2014, Husband took a “buy-out” from AutoZone. After he left AutoZone, Husband was
unemployed until the Fall of 2015, when he took a part-time consultant position with
Epsilon Consulting. Husband earned $140 per hour at Epsilon. In 2016, he earned
$126,800; in 2017, he earned $63,035. Concerning the reduction in his income, Husband
explained:
Regarding my hours [at Epsilon], my consulting hours have declined
significantly over the last year. I’ve acknowledged that. My sponsor who
brought me on board with that consulting agency himself got canned and
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not only did that have a direct result in fewer clients for them . . . [and] no
new work for me. So, yes, my hours did decline, not by my choice.
Husband further admitted that his employment decisions have been influenced by his
desire to spend more time with the parties’ minor child:
There was a . . . full-time versus part-time engagement for three months,
and I did turn down the full-time engagement for three months in lieu of
part-time engagement . . . because I could not . . . keep my son. . . .
Although we acknowledge Husband’s desire to spend time with his son, Husband opined
that his decision to take part-time employment has had a negative effect on his job
prospects, to-wit:
With four years of under—of part-time work, I am effectively damaged
goods right now. I have not damaged myself intentionally. I have not
destroyed the career I’ve spend decades building intentionally . . . . I have
been actively working to identify opportunities from the moment I left
AutoZone . . . .
As noted above, “[t]he determination [of voluntary underemployment] may be based on
any intentional choice or act that adversely affects a parent’s income.” Tenn. Comp. R.
& Reg. 1240-2-04-.04(3)(a)(2)(ii). Here, by his own testimony, Husband made decisions
that may have allowed him more time with his child, but which adversely affected his
ability to earn income comparable to that he enjoyed during the marriage. As such, we
conclude that the trial court did not err in determining that Husband was voluntarily
underemployed for purposes of imputing income to him. That being said, the question
remains whether the amount of income imputed to him was reasonable.
Husband testified that his “average income over the last three years was about
$78,000” but acknowledged that “if I could find a full-time position [I] could earn a little
bit more.” According to Husband’s testimony, he has applied for full-time positions with
base salaries between $100,000 and $130,000:
So the FedEx job was 100 to 120,000 was the stated pay range. I did make
it to the final five in that job, but did not receive the offer . . . There is
another position that I applied for recently. The target pay on that was 120
to 130. It was not a local job. It would have to require moving to Raleigh,
North Carolina . . . . That job was as close a job as I have seen to exactly
what I was doing at AutoZone.
As set out above, the trial court imputed income to Husband of $12,000 per month, or
$144,000 annually. Although less than the $208,714 average salary he earned at
AutoZone, the trial court specifically found that “it’s highly unlikely that [Husband] will
- 20 -
be reemployed in his field of loyalty analyst.” Based on the evidence, we agree.
Nonetheless, from our review, there is no basis in the record for the trial court’s
imputation of $144,000. In determining the proper amount of income to impute, a trial
court should consider a parent’s education, training, and ability to work, as well as past
and present employment. Tenn. Comp. R. & Regs. 1240-2-04-.04(3)(a)(2)(iii). The
court should impute additional income to an underemployed parent in an amount that
reflects that parent’s income potential or earning capacity. Id.; Armbrister v. Armbrister,
No. E2010-01561-COA-R3-CV, 2011 WL 5830466, at *6 (Tenn. Ct. App. Nov. 21,
2011). Based on Husband’s testimony, and the record as a whole, we conclude that there
is an evidentiary basis to support imputation of income to Husband of $120,000 per year,
or $10,000 per month. We, therefore, modify the trial court’s order to reflect this amount
of imputed income.
Concerning Wife, we agree with the trial court’s determination that she “is
employable.” Wife has both a J.D. and an LLM, and she is a licensed attorney. There is
nothing in the record to suggest that she has any disability that would preclude her from
seeking gainful employment. Accordingly, she is voluntarily unemployed. While
acknowledging that Wife has forgone efforts to obtain employment until the divorce is
settled, the trial court imputed income of only $24,000, or $2,000 per month, to her. This
was error.
Under the Child Support Guidelines, when “[t]he tribunal has no reliable evidence
of the parent’s income or income potential; [t]hen, in such cases, gross income for the
current and prior years shall be determined by imputing annual gross income of . . .
twenty-nine thousand three hundred dollars ($29,300) for female parents.” Tenn. Comp.
R. & Reg.1204.2-4-.04(iv)(1). Here, however, Wife testified, in relevant part, that:
Q. Do you believe it’s possible to make up to $50,000.00 with the
[degrees] you have or between thirty and fifty thousand?
A. I know I was able to get a job for $30,000.00 in Chicago and I imagine
ten years later a similar job in Chicago would probably be—I could
probably get paid more.
In view of Wife’s education, she should be fully capable of earning at least $50,000 per
year. Therefore, the trial court’s imputation of income to her of less than the minimum
wage in this State was error. Based on the record, and Wife’s own testimony, we modify
the trial court’s order to reflect an imputed income to Wife of $50,000 per year, or
$4,166.67 per month.
VI. Parenting Plan and Child Support
In divorce cases involving minor children, “the court may . . . award the care,
- 21 -
custody and control of such ... children to either of the parties to the suit or to both parties
in the instance of ... shared parenting ... as the welfare and interest of the ... children may
demand,” Tenn. Code Ann. § 36-6-101(a)(1). Both the primary residential parent
designation and the parenting schedule are driven by the child’s best interest. See id. §§
36-6-106(a), -404(b) (requiring custody determination and parenting plan to be in the best
interest of child); Armbrister, 414 S.W.3d at 693. Courts must fashion a residential
schedule “consistent with the child’s developmental level and the family’s social and
economic circumstances, which encourage[s] each parent to maintain a loving, stable,
and nurturing relationship with the child.” Tenn. Code Ann. § 36-6-404(b). Unless
certain limiting factors found in Tennessee Code Annotated § 36-6-406 are “dispositive
of the child’s residential schedule,” which is not the case here, the court determines the
schedule on the basis of the child’s best interest, relying on a non-exclusive list of factors
found at Tennessee Code Annotated § 36-6-106(a). Id. The determination of a child’s
best interest presents a question of fact. Armbrister, 414 S.W.3d at 692-93; In re T.C.D.,
261 S.W.3d 734, 742 (Tenn. Ct. App. 2007). Thus, we “presume that a trial court’s
factual findings on [best interest] are correct and not overturn them, unless the evidence
preponderates against the trial court's findings.” Armbrister, 414 S.W.3d at 693.
At the outset of the divorce hearing, Wife’s attorney announced that the parties
had reached an agreement concerning the parenting plan. The plan largely followed the
pendente lite schedule and awarded equal parenting time to the parties. Although
Husband indicated that the agreed permanent parenting plan may prove to be unrealistic
if he has to move from Memphis for employment, at the time of the hearing, his concerns
were merely speculative. When presented with the permanent parenting plan, the trial
court stated:
The law says equal parenting schedule, there is a default to the mother as
the primary residential parent.1 That’s what the law says. Now, if you all
1
As a point of edification, Tennessee law does not currently favor one parent over the other in
terms of primary residential parent. Although Tennessee historically implemented the so-called tender
ages doctrine, as explained by this Court:
This view [i.e., the tender ages doctrine preference for the mother to have
custody of minor children] prevailed in Tennessee for decades. See, for example, Parker
v. Parker, 235 S.W.2d 580 (Tenn. 1951); Lyle v. Lyle, 6 S.W. 878, (1888); McAllister v.
McAllister, 57 Tenn. 345 (1872); Robinson v. Robinson, 26 Tenn. 40 (1846); Long v.
Long, 488 S.W.2d 729, (Tenn. App. 1972); Logan v. Logan, 176 S.W.2d 601 (1943). But
the law respecting custodial preference gradually edged away from gender considerations
concurrently with the enactment of legislation and the development of a body of law
dealing with the eradication of discrimination. The trend towards abolition of the
doctrine was halted when the Legislature, in 1987, adopted T.C.A. 36-6-101(d) which
provides:
(d) It is the legislative intent that the gender of the party seeking custody
- 22 -
want to put some proof on otherwise, I’ll hear that, and that takes into
consideration the threshold question: Am I going to approve it otherwise?
All right.
On appeal, Husband argues that the “trial court created the reasonable impression that
testimony regarding the comparative fitness of the parents would not be necessary.” We
agree. Although there is some evidence concerning the parties’ respective parenting
styles and the contentious interactions between them over parenting decisions, the record
is not fully developed in regard to whether deviation from the parties’ proposed plan
would be in the child’s best interest. Nonetheless, the trial court found, in its final decree
of divorce, as follows:
7. The Court recognizes that the parties submitted a Permanent Parenting
Plan that was substantially agreed to by the parties. Said Plan provided for
week on/week off parenting time for the parties. Having reviewed the
proposed Permanent Parenting Plan, however, the Court does not believe
that the Plan is in the best interest of the minor child as the Court has
concerns about whether the parties can jointly parent the child. The Court
concludes that they cannot.
8. The Court finds that Wife has been the homemaker and has stayed home
to care for the minor child. The Court finds that Husband has consistently
been the wage earner, but has turned down job opportunities to maximize
his time with the child. While this would be laudable under other
circumstances, such as the parties were cordial to each other and money
was not an issue, those are not the facts of this case.
9. The Court finds that Wife shall be designated as the primary residential
parent and that the parenting schedule shall be comprised of 232 days per
year for Wife and 133 days per year for Husband.
Tennessee Code Annotated section 36-6-106 (a), to which we refer the trial court,
shall not give rise to a presumption of parental fitness or cause a
presumption in favor or against the award of custody to such party;
provided, however, that in the case of a child of tender years, the gender
of the parent may be considered by the court as a factor in determining
custody after an examination of the fitness of each party seeking custody.
This enactment acknowledges the ancient rule inherent in the tender years
doctrine, but nevertheless parallels the emergent constitutional and civic requirements of
neuter-based human relations.
Gambill v. Gambill, 1988 WL 97026, *1 (Tenn. Ct. App. Sept. 21, 1988). The current iteration of
Tennessee Code Annotated section 36-6-101(d) provides: “It is the legislative intent that the gender of the
party seeking custody shall not give rise to a presumption of parental fitness or cause a presumption or
constitute a factor in favor or against the award of custody to such party.”
- 23 -
lists fifteen factors, including, but not limited to,
(1) The strength, nature, and stability of the child’s relationship with each
parent, including whether one (1) parent has performed the majority of
parenting responsibilities relating to the daily needs of the child;
(2) Each parent's or caregiver's past and potential for future performance of
parenting responsibilities, including the willingness and ability of each of
the parents and caregivers to facilitate and encourage a close and continuing
parent-child relationship between the child and both of the child’s parents,
consistent with the best interest of the child. In determining the willingness
of each of the parents and caregivers to facilitate and encourage a close and
continuing parent-child relationship between the child and both of the
child’s parents, the court shall consider the likelihood of each parent and
caregiver to honor and facilitate court ordered parenting arrangements and
rights, and the court shall further consider any history of either parent or
any caregiver denying parenting time to either parent in violation of a court
order;
***
(5) The degree to which a parent has been the primary caregiver, defined as
the parent who has taken the greater responsibility for performing parental
responsibilities;
(6) The love, affection, and emotional ties existing between each parent and
the child;
(7) The emotional needs and developmental level of the child;
***
(10) The importance of continuity in the child’s life and the length of time
the child has lived in a stable, satisfactory environment;
***
(13) The reasonable preference of the child if twelve (12) years of age or
older. The court may hear the preference of a younger child upon request.
The preference of older children should normally be given greater weight
than those of younger children;
- 24 -
(14) Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules; and
As its truncated findings, supra, suggest, the trial court’s primary reason for
deviation from the parties’ agreed parenting plan was its “concerns about whether the
parties can jointly parent the child.” The trial court failed to elaborate on the basis for
these concerns before concluding that the parents could not jointly parent. “In bench
trials, trial courts must make findings of fact and conclusions of law to support their
rulings.” Hardin v. Hardin, No. W2012-00273-COA-R3-CV, 2012 WL 6727533, at *3
(Tenn. Ct. App. Dec. 27, 2012). Tennessee Rule of Civil Procedure 52.01 states, in
pertinent part, “In all actions tried upon the facts without a jury, the court shall find the
facts specially and shall state separately its conclusions of law and direct the entry of the
appropriate judgment.” “Simply stating the trial court’s decision, without more, does not
fulfill this mandate.” Barnes v. Barnes, No. M2011-01824-COA-R3-CV, 2012 WL
5266382, at *8 (Tenn. Ct. App. Oct. 24, 2012). “[T]he General Assembly’s decision to
require findings of fact and conclusions of law is ‘not a mere technicality.’” Hardin,
2012 WL 6727533, at *3 (quoting In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL
1362314, at *8 (Tenn. Ct. App. May 15, 2009)). Such “findings and conclusions
facilitate appellate review by affording a reviewing court a clear understanding of the
basis of a trial court’s decision.” Lovlace v. Copley, 418 S.W.3d 1, 34 (Tenn. 2013). In
the absence of sufficient findings and conclusions, “‘this court is left to wonder on what
basis the court reached its ultimate decision.’” In re K.H., 2009 WL 1362314, at *8
(quoting In re M.E.W., No. M2003-01739-COA-R3-PT, 2004 WL 865840, at *19 (Tenn.
Ct. App. Apr. 21, 2004)). There is no bright-line test by which to assess the sufficiency of
the trial court's findings, but “the findings of fact must include as much of the subsidiary
facts as is necessary to disclose to the reviewing court the steps by which the trial court
reached its ultimate conclusion on each factual issue.” Lovlace, 418 S.W.3d at 35
(quoting 9C Federal Practice & Procedure § 2579, at 328). Here, we are left to wonder
not only how the trial court reached its determination that the parties could not co-parent,
but we are also left to wonder whether the trial court applied the statutory factors in
reaching its decision. We concede that the trial court appears to apply statutory factor
two in stating that Wife has been the primary caregiver for the child. From the record,
this is true; however, it is also true that the parties intentionally arranged their marriage so
that Husband would be the primary breadwinner, and Wife would stay at home. In this
regard, the trial court failed to consider Husband’s contributions to the care and support
of the child. Moreover, the trial court again faults Husband for his decision not to seek
out-of-town employment so that he can spend more time with the child. While the trial
court may certainly consider this choice in its finding that Husband is voluntarily
underemployed, the decision may actually weigh in Husband’s favor concerning his
desire to parent the child. In fact, the trial court seems to suggest just that—“While this
[i.e., Husband’s decision not to accept out-of-town employment] would be laudable under
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other circumstances, such as the parties were cordial to each other and money was not an
issue, those are not the facts of this case.”
More egregious, however, is the fact that the trial court’s order is silent concerning
the child’s best interest, which is the gravamen of any custody determination and
parenting plan. Tenn. Code Ann. §§ 36-6-106(a), -404(b) (requiring custody
determination and parenting plan to be in the best interest of child). The absence of any
finding concerning the child’s best interest is, by itself, reversible error.
In view of the number of statutory factors, supra, and the importance of the court’s
ultimate decision concerning the best interest of the minor child, the trial court’s findings
are not sufficient either to support its refusal to enter the parties’ proposed parenting plan,
or to support the parenting plan arrived at by the trial court. Perhaps the trial court’s
truncated findings are due to the lack of evidence in the record concerning the statutory
factors and the child’s best interest. Regardless, we vacate the trial court’s permanent
parenting plan. If, on remand, the trial court declines to enter the parties’ agreed plan,
then it is instructed to make sufficient findings concerning the child’s best interest in
view of the statutory factors. To this end, the trial court will likely need to reopen proof
to allow the parties to develop a record on this question.
In view of our modification of the parties’ respective imputed incomes, supra, and
our determination that the trial court erred in failing to adopt the parties’ parenting
agreement absent further findings and/or proof, we vacate the trial court’s calculation of
child support. On remand, the trial court is instructed to recalculate child support in light
of our holdings herein.
VII. Alimony
Tennessee recognizes four types of spousal support: (1) alimony in futuro, (2)
alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony. Tenn. Code
Ann. § 36-5-121(d)(1). A court may award rehabilitative alimony, alimony in futuro,
transitional alimony, or alimony in solido “or a combination of these, as provided in this
subsection (d).” Id. However, as the statute expressly provides, the discretion to award
“a combination of these [types of alimony]” is subject to “subsection (d),” which states
that “[t]ransitional alimony is awarded when the court finds that rehabilitation is not
necessary, but the economically disadvantaged spouse needs assistance to adjust to the
economic consequences of a divorce, legal separation or other proceeding where spousal
support may be awarded, such as a petition for an order of protection.” Tenn. Code Ann.
§ 36-5-121(d)(4). As explained by the Tennessee Supreme Court:
[R]ehabilitative alimony is intended to assist an economically
disadvantaged spouse in acquiring additional education or training which
will enable the spouse to achieve a standard of living comparable to the
standard of living that existed during the marriage or the post-divorce
standard of living expected to be available to the other spouse. See Tenn.
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Code Ann. § 36-5-121(e)(1). See also Robertson [v. Robertson], 76
S.W.3d [337,] at 340-41 [(Tenn. 2002)]; Riggs [v. Riggs], 250 S.W.3d
[453,] at 456 n. 4 [(Tenn. 2002)]. Rehabilitative alimony thus serves the
purpose of assisting the disadvantaged spouse in obtaining additional
education, job skills, or training, as a way of becoming more self-sufficient
following the divorce. Robertson, 76 S.W.3d at 340-41; Isbell v. Isbell, 816
S.W.2d 735, 738–39 (Tenn.1991). . . .
The fourth category of support, transitional alimony, is appropriate
when a court finds that rehabilitation is not required but that the
economically disadvantaged spouse needs financial assistance in adjusting
to the economic consequences of the divorce. Tenn. Code Ann. § 36-5-
121(d)(4), (g)(1); Riggs, 250 S.W.3d at 456 n. 5. Simply put, this type of
alimony “aid[s] the person in the transition to the status of a single person.”
Mills v. Mills, No. M2009-02474-COA-R3-CV, 2010 WL 3059170, at *5
(Tenn. Ct. App. Aug. 4, 2010); see also Montgomery v. Silberman, No.
M2009-00853-COA-R3-CV, 2009 WL 4113669, at *2 (Tenn. Ct. App.
Nov. 24, 2009) (affirming trial court’s award of transitional alimony to wife
“to bridge the gap, so to speak, between her married life and single life”);
Engesser v. Engesser, 42 So. 3d 249, 251 (Fla. Dist. Ct. App. 2010) (en
banc) (describing transitional alimony as “[b]ridge-the-gap alimony”
designed to “smooth the transition of a spouse from married to single life”).
In contrast to rehabilitative alimony, which is designed to increase an
economically disadvantaged spouse’s capacity for self-sufficiency,
transitional alimony is designed to aid a spouse who already possesses the
capacity for self-sufficiency but needs financial assistance in adjusting to
the economic consequences of establishing and maintaining a household
without the benefit of the other spouse’s income. As such, transitional
alimony is a form of short-term support.
Gonsewski v. Gonsewski, 350 S.W.3d 99, 108-109 (Tenn. 2011).
Although “[t]here are no hard and fast rules for spousal support decisions,”
Anderton v. Anderton, 988 S.W.2d 675, 682-83 (Tenn. Ct. App. 1998), in determining
whether to award spousal support, the trial court is required to consider “all relevant
factors,” including:
(1) The relative earning capacity, obligations, needs, and financial
resources of each party, including income from pension, profit sharing or
retirement plans and all other sources;
(2) The relative education and training of each party, the ability and
opportunity of each party to secure such education and training, and the
necessity of a party to secure further education and training to improve such
party’s earnings capacity to a reasonable level;
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(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited to,
physical disability or incapacity due to a chronic debilitating disease;
(6) The extent to which it would be undesirable for a party to seek
employment outside the home, because such party will be custodian of a
minor child of the marriage;
(7) The separate assets of each party, both real and personal, tangible and
intangible;
(8) The provisions made with regard to the marital property, as defined in
§ 36-4-121;
(9) The standard of living of the parties established during the marriage;
(10) The extent to which each party has made such tangible and intangible
contributions to the marriage as monetary and homemaker contributions,
and tangible and intangible contributions by a party to the education,
training or increased earning power of the other party;
(11) The relative fault of the parties, in cases where the court, in its
discretion, deems it appropriate to do so; and
(12) Such other factors, including the tax consequences to each party, as are
necessary to consider the equities between the parties.
Tenn. Code Ann. § 36-5-121(i). Although the court must consider all relevant factors,
the two most important are the need of the disadvantaged spouse and the obligor spouse’s
ability to pay. Gonsewski, 350 S.W.3d at 110 (Tenn. 2011) (citations omitted).
In reviewing a trial court’s award of alimony, we employ the standard set out by
the Tennessee Supreme Court in Gonsewski:
[A] trial court’s decision regarding spousal support is factually driven and
involves the careful balancing of many factors. Kinard v. Kinard, 986
S.W.2d 220, 235 (Tenn. Ct. App. 1998); see also Burlew [v. Burlew], 40
S.W.3d [465], 470 [ (Tenn. 2001)]; Robertson v. Robertson,76 S.W.3d
337, 340-41 (Tenn. 2002). As a result, “[a]ppellate courts are generally
disinclined to second-guess a trial judge’s spousal support decision.”
Kinard, 986 S.W.2d at 234. Rather, “[t]he role of an appellate court in
reviewing an award of spousal support is to determine whether the trial
court applied the correct legal standard and reached a decision that is not
clearly unreasonable.” Broadbent v. Broadbent, 211 S.W.3d 216, 220
(Tenn. 2006). Appellate courts decline to second-guess a trial court’s
decision absent an abuse of discretion. Robertson, 76 S.W.3d at 343. An
abuse of discretion occurs when the trial court causes an injustice by
applying an incorrect legal standard, reaches an illogical result, resolves the
case on a clearly erroneous assessment of the evidence, or relies on
reasoning that causes an injustice. Wright ex rel. Wright v. Wright, 337
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S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d 328,
335 (Tenn. 2010).
Gonsewski, 350 S.W.3d at 105 (footnote omitted)
In its final decree of divorce, the trial court considered the statutory factors and made
the following findings concerning alimony:
a. The relative earning capacity, obligations, needs and financial
resources of each party, including income from pension, profit sharing
or retirement plans and all other sources.
The Court finds that both these parties have substantial
earning capacity, but Husband historically more so than Wife
due to his job history and Wife being an “at-home” mom.
The Husband has been the breadwinner, earning salaries and
assets and acquiring the bulk of the debt of these parties. The
Wife also has need for assistance from Husband based upon
the lifestyle they enjoyed while married.
b. The relative education and training of each party, the ability and
opportunity of each party to secure additional education and training,
and the necessity of a party to secure further education and training to
improve such party’s earning capacity to a reasonable level.
The Husband has a Master’s degree; the Wife has a J.D. and
an LLM. Neither has requested any further education, except
that Wife will likely have to take continuing legal education
classes to bring her legal skills up to speed and to make her
competitive in the job market. There are defined limits on
either of these parties’ ability to earn. Their earning capacity
is not limited.
***
d. The age and mental condition of each party.
Husband is fifty-three (53) years old and Wife is forty-seven
(47) years old. There was no proof that either party had any
mental health condition, although Husband testified that Wife
was depressed and suicidal. The Court makes no use of this
unsubstantiated lay medical testimony. The Court finds that
there is insufficient proof to do more than note this testimony.
***
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f. The extent to which it would be undesirable for a party to seek
employment outside the home, because such party will be custodian of
a minor child of the marriage.
The parties have a minor child who is ten (10) years old and
requires adult supervision. The Wife has traditionally and
historically not worked outside the home. No argument was
put forth that the child no longer needed or required the full
attention of an unemployed parent. While the Husband
testified that he has encouraged Wife to work, he, in
accordance with his religious faith, accepted her role in the
home as homemaker and he has been the provider for this
family.
g. The separate assets of each party, both real and person[al], tangible
and intangible.
The Court makes reference to the separate property that has
been awarded to each of these parties, the assets that have
been divided, both real and personal, and the amount and
value of the liquid assets that each of these parties have been
awarded . . . .
***
i. The standard of living of the parties established during the marriage.
The Court finds that the parties established a standard of
living during the marriage that allowed them to own real
property by way of residences both in Tennessee and Texas,
to travel rather extensively, and purchase as they desired.
They were able to do all this while living within their means.
Only the Husband worked and, after he lost his full time
position in 2014, the parties began liquidating assets to meet
their expenses. The problem is that this standard can no
longer be maintained as the parties are currently situated.
j. The extent to which each party has made such tangible and intangible
contributions to the marriage as monetary and homemaker
contributions intangible and tangible contributions by a party to the
education, training or increased earning power of the other party.
Husband worked and provided financially for the family and
Wife was a dutiful wife and homemaker. Both parties
contributed financially to the marriage. Husband contributed
through his employment. Wife contributed as a homemaker
and caretaker of the parties’ child. In addition, Wife
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contributed some of her separate savings to pay marital
expenses as well as the down payment on the marital
residence. Wife also earned her JD and LLM, in 2008, during
the course of the marriage.
k. The relative fault of the parties, in cases where the Court, in its
discretion, deems it appropriate to do so.
The Court finds that each of the parties [was] at fault for the
breakdown of the marriage with the underlying factor being
that neither party is willing to compromise.
l. Such other factors, including the tax consequences to each party, as are
necessary to consider the equities between the parties.
The Court finds that Wife is the economically disadvantaged
spouse and that she has demonstrated a need for alimony.
Wife has been a stay at home mom and Husband has the
greater earning capacity at this point. Husband has the ability
to pay alimony to Wife.
Based on the foregoing findings, the trial court awarded Wife alimony as follows:
17. Rehabilitative alimony is favored in Tennessee, and is suitable for the
facts of this case. While there has been no indication that Wife intends to
seek additional education and/or training for a job or position, the testimony
was that she needed to gain experience and will likely need to take CLE
classes to become comfortable with the law. The Court finds that one year
of rehabilitative alimony at a rate of $500 per month should be sufficient
for Wife to be rehabilitated in accordance with her skills and training. . . .
18. Transitional alimony is appropriate when the economically
disadvantaged spouse needs assistance due to the economic consequences
of divorce. Its intent is to enable the economically disadvantaged spouse to
adjust to the economic consequences of divorce. The Court finds that it is
appropriate to award Wife transitional alimony in this case as she needs
assistance transitioning from a stay at home mom to the workforce, all
while she serves as care taker for the parties’ child. The child is ten (10)
and needs to be taught independence while he adjusts to the shared
parenting arrangement. Wife shall have three (3) years in which to
transition into the workforce, taking into consideration that the child will be
older and she will have taken the appropriate CLE classes and started her
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journey back into the workforce.
19. Accordingly, the Court awards transitional alimony to Wife in the
amount of $2,000 per month for a period of thirty-six (36) months. . . .
***
21. The Court finds that Wife has incurred attorney fees and litigation costs
in this case in excess of $25,000. The Court finds that Husband shall be
responsible for $25,000.00 of Wife’s attorney’s fees and litigation expenses
which is awarded as alimony in solido . . . .
In the first instance, the trial court’s award of both rehabilitative and transitional
alimony in this case was error. Clearly, Wife does not need to be rehabilitated. She has a
J.D., an L.L.M., and a Tennessee law license. Although, as the trial court finds, “Wife
will likely have to take continuing legal education classes to bring her legal skills up to
speed and to make her competitive in the job market,” continuing legal education is a
requirement for most attorneys in this State. If she chooses law, Wife will be continually
learning throughout her career. Accordingly, Wife is not in need of rehabilitation, and
the trial court’s award of rehabilitative alimony is reversed.
Because Wife has not practiced law since receiving her degree, we concede that
she will require a certain amount of reeducation; however, given her current level of
education, she should be able to achieve this goal in relatively short order. To that end,
we conclude that the trial court’s award of transitional alimony and the duration of same
was correct. However, in view of our previous holding concerning the parties’ imputed
incomes and the classification of certain marital property, we vacate the amount of
transitional alimony and remand for recalculation of same.
As to the award of alimony in solido, due to Wife’s current lack of employment,
her need for transition, and in view of the equities between the parties, we affirm the trial
court’s award of alimony in solido in the amount of $25,000.
VIII. Attorney’s Fees on Appeal
Wife seeks her appellate attorney’s fees under Tennessee Code Annotated section
36-5-103(c), which provides:
The plaintiff spouse may recover from the defendant spouse, and the spouse
or other person to whom the custody of the child, or children, is awarded
may recover from the other spouse reasonable attorney fees incurred in
enforcing any decree for alimony and/or child support, or in regard to any
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suit or action concerning the adjudication of the custody or the change of
custody of any child, or children, of the parties, both upon the original
divorce hearing and at any subsequent hearing, which fees may be fixed
and allowed by the court, before whom such action or proceeding is
pending, in the discretion of such court.2
In Malkin v. Malkin, 475 S.W.3d 252, 263-64 (Tenn. Ct. App. 2015), this Court
explained:
Tennessee Code Annotated section 36-5-103(c) provides for awards of
“reasonable attorney fees incurred in enforcing any decree for alimony,” in
the discretion of the court. Pursuant to this statute, a court may award
attorney’s fees to an alimony recipient who is forced to defend an action to
reduce or terminate that alimony. Henderson v. Henderson, No. M2013-
01879-COA-R3-CV, 2014 WL 4725155, at *12 (Tenn. Ct. App. Sept. 23,
2014) (citing Evans v. Evans, M2002-02947-COA-R3-CV, 2004 WL
1882586, at *13-14 (Tenn. Ct. App. Aug. 23, 2004)); see also Owens v.
Owens, No. M2012-01186-COA-R3-CV, 2013 WL 3964793, at *6 (Tenn.
Ct. App. July 30, 2013), perm. app. denied (Tenn. Nov. 13, 2013)
(“Reasonable fees may be awarded pursuant to § 36-5-103(c) in actions to
enforce a decree for alimony, which has been interpreted as including the
situation where an alimony recipient is forced to defend an action to reduce
or terminate that alimony.”). The statute authorizes awards of attorney’s
fees incurred at trial as well as on appeal. Henderson, 2014 WL 4725155,
at *12. The decision of whether to award attorney’s fees incurred on appeal
is a matter within the discretion of this Court. Yattoni–Prestwood v.
Prestwood, 397 S.W.3d 583, 597 (Tenn. Ct. App. 2012) (citing Archer v.
Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995); Seaton v. Seaton, 516
S.W.2d 91, 93 (Tenn. 1974)).
Simply put, this statute “authorizes courts to award reasonable attorney’s fees to the
prevailing party in an action to enforce any decree for alimony, child support, or child
custody.” Eberbach v. Eberbach, 535 S.W.3d 467, 475 (Tenn. 2017).
“Appellate courts have discretionary authority to award a spouse ‘reasonable
attorney fees incurred in enforcing any decree for alimony’ regardless of whether the fees
are incurred at the original divorce hearing or at any subsequent hearing.” Moon v.
Moon, No. E2015-01470-COA-R3-CV, 2016 WL 1605511, at *8 (Tenn. Ct. App. Apr.
21, 2016) (quoting Tenn. Code Ann. § 36-5-103(c)); see, e.g., Parker v. Parker, No.
E2018-00643-COA-R3-CV, 2019 WL 1531667, at *6 (Tenn. Ct. App. Apr. 9, 2019)
2
The statute was amended effective July 1, 2018, but the amended version only applies
“to actions commenced on or after that date.” 2018 Pub. Acts, c. 905, § 1.
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(considering an appeal from a divorce trial and awarding the wife attorney’s fees because
she “should not be required to use her limited resources to pay for the defense of the trial
court’s award to her of . . . long-term spousal support”); Henderson, 2014 WL 4725155,
at *12 (awarding the wife attorney’s fees she incurred on appeal from a divorce
proceeding when defending against the husband’s attempt to reduce or terminate his
alimony obligation).
In light of the issues involved in this litigation, the respective financial positions of
the parties, and the resolution of the parties’ respective appellate issues, we exercise our
discretion to deny Wife’s request for an award of her reasonable appellate attorney’s fees
and expenses on appeal.
IX. Conclusion
For the foregoing reasons, we: (1) affirm the trial court’s characterization of the
Ameritrade IRA as both marital and separate property; (2) modify the trial court’s
calculation of the portion of the Ameritrade IRA comprising Husband’s separate property
to $52,960.02; (3) remand for the remaining balance on the Ameritrade IRA account,
including any accrual or loss during the pendency of this appeal, to be equitably divided
as marital property; (4) reverse the trial court’s holding that the Texas Property is part
Husband’s separate property and remand for an equitable division of same as marital
property; (5) affirm the imputation of income to the parties as modified herein; (6) vacate
the parenting plan and remand for sufficient findings justifying the trial court’s deviation
from the parties’ agreed plan and/or for further proof; (7) reverse the amount of child
support based on our modification of imputed income and remand for re-calculation of
child support in view of our modification and/or in view of any changes to the parenting
plan; (8) reverse the award of rehabilitative alimony; (9) affirm the award of transitional
alimony and the duration of same; (10) vacate the amount of transitional alimony
awarded based on the modification of imputed income and division of property and
remand for re-calculation of same; (11) affirm the award of alimony in solido; (12) deny
Wife’s request for attorney’s fees on appeal. The trial court’s order is otherwise
affirmed, and the case is remanded for the foregoing purposes and for further proceedings
as may be necessary and are consistent with this opinion. Costs of the appeal are
assessed one-half to the Appellant, John Andrew Wright, and one-half to the Appellee,
Belinda Bentley Wright, for all of which execution may issue if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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