Kisha Dean Trezevant v. Stanley H. Trezevant, III ( 2018 )

04/25/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 21, 2018 Session
KISHA DEAN TREZEVANT v. STANLEY H. TREZEVANT, III
Direct Appeal from the Circuit Court for Shelby County
No. CT-003516-13 Donna M. Fields, Judge
No. W2017-00715-COA-R3-CV
This is a divorce case between parties who amassed a great amount of wealth and lived
an extravagant lifestyle for many years. There are no minor children involved, and this
appeal is limited to the trial court’s identification, classification, valuation, and division
of marital property, the trial court’s awards of alimony to Wife, and Husband’s
convictions for several counts of criminal contempt. One of the most salient issues raised
by Husband on appeal relates to the trial court’s decision to use a financial statement
prepared by Husband in 2012 to value several properties in the marital estate rather than
the certified appraisals that were prepared in the course of litigation for the purpose of
valuing the marital estate. According to Husband, this resulted in the court grossly over-
valuing the marital estate. For the reasons stated herein, we affirm the trial court’s
identification and classification of marital property as well as the trial court’s findings
and sentencing related to Husband’s criminal contempt. We vacate the trial court’s
valuation and distribution of the parties’ marital property and awards of alimony. We
remand the case to the trial court for further proceedings consistent with this Opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
part, Vacated in part, and Remanded
BRANDON O. GIBSON, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR, P.J., M.S., and J. STEVEN STAFFORD, P.J., W.S., joined.
Donald N. Capparella, Nashville, Tennessee, for the appellant, Stanley H. Trezevant, III.
Mitchell David Moskovitz and Adam Noah Cohen, Memphis, Tennessee, for the
appellee, Kisha Dean Trezevant.
OPINION
I. FACTS & PROCEDURAL HISTORY
Stanley H. Trezevant, III1 (“Husband”) and Kisha Dean Trezevant (“Wife”) were
married in September 1990. Two daughters were born of the marriage, both of whom
reached the age of majority before this case went to trial. Husband has a degree in
business management from the University of Memphis and has been an extremely
successful real estate entrepreneur throughout the parties’ marriage. Wife obtained a
GED at age seventeen and earned a degree in creative literature during the parties’
marriage. Wife assisted Husband to some extent with his business ventures, but she did
not otherwise work outside the home.
On August 15, 2013, Wife filed for divorce, alleging irreconcilable differences and
that Husband was guilty of inappropriate marital conduct. In her complaint for divorce,
Wife sought a divorce from Husband, a division of the marital estate, and awards of
alimony, attorney’s fees, and suit expenses.2 Husband filed an answer and a counter-
complaint for divorce against Wife on February 21, 2014, agreeing that the parties should
be divorced based on irreconcilable differences, but denying his own marital misconduct
and alleging that Wife was the party guilty of inappropriate marital conduct.
Throughout the marriage, Husband was very successful at his work, and the
parties amassed a tremendous estate. By virtue of this success, the parties enjoyed an
extravagant lifestyle. The marital residence consisted of a 10,500 square foot home
containing six bedrooms, nine bathrooms, and a five car garage. In addition to their
principal residence in Shelby County, Tennessee, the parties also maintained several
vacation homes during their marriage, including properties in the Cayman Islands, an
expansive lake home, and a home in Oxford, Mississippi. The parties took expensive
international trips to destinations such as France, Spain, Greece, the Cayman Islands, and
Jamaica. The family also enjoyed other trips to the U.S. Open, the Grammy Awards,
West Palm Beach for diamond shopping, and Miami and New York to shop for clothing.
Husband and Wife were members of sporting and social clubs in Memphis. The family
drove luxury vehicles such as Range Rovers, Land Rovers, Mercedes Benz convertibles,
and others.
The material possessions amassed by the parties are the impetus for both the
protraction of the proceedings below as well as for this appeal. As stated previously,
1
Husband is also known as “Trip” Trezevant.
2
In Wife’s Complaint, she also initially sought to be named the primary residential parent of the parties’
daughter who was still seventeen years old at the time. That daughter, however, turned eighteen during
the pendency of this matter, and the parenting issues thereafter became moot.
2
Husband is in the real estate business. He established Trezevant Enterprises, Inc., which
became a real estate management, development, and maintenance company and also does
construction and leasing. The marital estate included approximately 49 commercial and
residential properties. The procedural history of this case is littered with volumes upon
volumes of pleadings, transcripts, and exhibits designed to identify, value, and/or
distribute the parties’ wealth. Among other things, the sheer size of the parties’ estate,
the complexities involved in valuing commercial property, including international
property, and what the trial court found to be Husband’s deliberate attempts to hide
assets, contributed to the convoluted process of identifying, classifying, valuing, and
distributing the parties’ marital estate in this case. The trial court eventually determined
the gross value of the marital estate, excluding personal property, trusts, and not
accounting for debt, to be $44,339,611.00.
During the pendency of the divorce, the parties engaged in a lengthy seven-day
hearing before a divorce referee regarding pendente lite support for Wife. The divorce
referee ordered, and the trial court affirmed, that Husband should pay Wife $20,000.00
per month in pendente lite support. Also prior to the trial of this matter, the trial court
held a separate hearing on issues related to Wife’s separate property. During the
marriage, Husband gave Wife several checks totaling $4,221,000.00. Wife claimed that
this money was a gift to her from Husband and, therefore, her separate property. The
trial court agreed.
The actual divorce trial was held on September 12, 13, 14, 15, 16, and October 13
and 14, 2016. The trial court issued an oral ruling from the bench on December 16, 2016.
Thereafter, the court conducted additional hearings to settle disputes over the final decree
of divorce. The final decree was entered on March 1, 2017 (“Final Decree”). In the Final
Decree, the trial court reaffirmed its previous ruling regarding Wife’s separate property.
The court denied Husband’s claims that certain assets were separate property. The court
declared the parties divorced pursuant to Tennessee Code Annotated section 36-4-129,
with both parties acknowledging post-separation marital fault.
Two appraisers testified at trial – Todd Glidewell and Rip Walker – regarding
twenty of the more valuable properties in the marital estate. Wife did not object to Mr.
Glidewell or Mr. Walker’s appraisals or their testimony, nor did she provide competing
appraisals or expert testimony. She simply relied on values of the property listed on a
financial statement created by Husband in 2012, which generally valued the properties
much higher than the appraisals. According to Husband, Wife chose the appraisers and
then right before trial decided to rely on Husband’s 2012 Financial Statement for the
value of several of the parties’ properties – particularly those properties that she
requested the court distribute to Husband. In the Final Decree, the trial court divided the
marital estate by creating a list of the marital assets, assigning the court’s determination
3
of that asset’s fair market value less the debt on the property, and stating whether each
asset was awarded to Husband or Wife. Husband complains that the court gave Wife the
properties with the un-inflated values. The parties did not dispute the amount of debt on
the properties. Therefore, according to Husband, because the trial court used inflated
values from the 2012 Financial Statement for many of the properties awarded to him,
Husband asserts that the court overvalued the property given to him in the divorce by
more than $24 million. To help balance the division of the marital estate, which was
divided $34,204,026.00 to Husband and $10,135,585.00 to Wife, the trial court awarded
Wife $7,500,00.00 in alimony in solido.
The trial court also found that Husband dissipated marital assets by transferring
$2,145,131.00 to his attorney and friend, Norman Klein, in the Cayman Islands.
Husband contended that Mr. Klein was his business partner in a real estate transaction
and that he was simply reimbursing Mr. Klein for his portion of the sale of some real
estate. Wife suggested that Mr. Klein was holding the money for Husband until the
divorce was over. The trial court agreed with Wife and found that Wife’s portion of
these funds would have been $1,072,565.50. Apparently, rather than requiring Husband
to reimburse Wife for this amount, the court decided that this amount would operate to
“offset” the sum of money the court had determined to be Wife’s separate property.
Wife claimed at trial that her monthly expenses amounted to $32,132.00, and that
this was a reduced amount from what she was accustomed to spending. The trial court
awarded Wife alimony in futuro in the amount of $25,000.00 per month for the first 72
months following the Final Decree, and $20,000.00 per month for each month thereafter.
Husband was also ordered to pay $464,890.92, which represented one half of Wife’s
attorney’s fees.
Another main issue in this case was Husband’s multiple counts of criminal
contempt. On September 19, 2014, the trial court entered a consent order granting Wife’s
petition for civil and criminal contempt against Husband. Therein, Husband agreed that
he was in criminal contempt for executing an option and sale agreement for Unit 305 of
the Kisha Condominium complex in the Cayman Islands. He also agreed that he was in
civil contempt for failing to comply with the divorce referee’s order and agreed to make
purge payments in the amount of $290,000.00 and to pay a portion of Wife’s attorney’s
fees. On June 29, June 30, and July 1, 2015, the trial court held a hearing on the pending
matters related to additional petitions for contempt filed by Wife. The court again found
Husband guilty of criminal contempt for failing to abide by court orders related to turning
over sums of money, and he was incarcerated on July 1, 2015. Husband was released on
July 6, 2015, and ordered to make a purge payment to Wife.
Wife filed another petition for civil and criminal contempt against Husband on
4
October 14, 2015. This petition was tried in the final divorce trial, and the results thereof
are the subject of Husband’s appeal in this matter. In this petition, Wife generally
asserted that Husband had been hiding assets and manipulating appraisals of the marital
properties. According to Wife, Husband was deliberately trying to deceive Wife and the
court as to the value of the marital estate. Wife again filed a petition on March 30, 2016,
alleging that Husband was engaging in additional contemptuous activity, including lying
to Wife and the court about his financial status and the amount of property taxes owed on
the parties’ property. In the Final Decree, the trial court found Husband guilty of
nineteen separate additional counts of criminal contempt. He was ordered to serve 55
days in jail. This sentence has been stayed pending appeal.
Husband timely filed a notice of appeal on March 31, 2017.
II. ISSUES PRESENTED
Husband presents the following issues for review on appeal:
1. Whether the trial court erred in finding Trip’s Nurseries and the
Nonconnah properties were marital property, and for failing to order
Wife to return Husband’s separate silver collection and account for
the marital silver she took?
2. Whether the trial court erred when it found $4,221,000 of cash
transfers of marital property to Wife by Husband were gifts and
therefore Wife’s separate property?
3. Whether the trial court erred in finding dissipation of funds in
Husband’s transactions with Norman Klein where (1) Wife
introduced no proof of dissipation, and (2) the proof overwhelmingly
showed that Husband and Norman Klein had a 50/50 partnership
with respect to the Cayman Island property that they sold?
4. Whether the evidence preponderates against the trial court’s
valuation of Husband’s share of the marital estate where it over-
valued Husband’s share by relying on an unsigned, unsworn,
unaudited 4.5 year old financial statement, rejecting the only expert
proof in this case based upon a great many far more recent certified
property appraisals?
5. Whether the awards of alimony in solido and alimony in futuro
should be reversed where (1) the division of marital property must
5
be reversed because of the gross over-valuation of Husband’s share
of the marital estate, (2) the trial court failed to consider the
reduction in Husband’s ability to pay having lost the substantial
income from marital properties given to Wife, (3) the trial court
failed to consider the change in Wife’s need based upon the income
from the property she received, and (4) Wife was found by the trial
court to have over $4.2 Million in separate property?
6. Whether the trial court’s award of $464,890.92 in attorney’s fees as
alimony in solido should be reversed where (1) the division of
marital property should be reversed, and (2) Wife did not lack
sufficient funds to pay her own attorneys?
7. Whether the trial court should reverse criminal contempt counts
against Husband where (1) the court failed to follow the
requirements for proper sentencing, and (2) there was not proof of
criminal contempt beyond a reasonable doubt?
Wife presents the following additional issue, as restated, on appeal:
8. Whether Wife is entitled to her attorney’s fees incurred on appeal.
III. DISCUSSION
This case was tried by the trial court without a jury. We therefore review the trial
court’s findings of fact de novo with a presumption of correctness unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d
685, 692 (Tenn. 2013). Also, because the trial court has the opportunity to observe the
demeanor of the witnesses and hear the in-court testimony, we afford considerable
deference to the trial court’s credibility determinations and the weight given to oral
testimony.3 Andrews v. Andrews, 344 S.W.3d 321, 339 (Tenn. Ct. App. 2010). We
review the trial court’s conclusions of law de novo with no presumption of correctness.
Hyneman v. Hyneman, 152 S.W.3d 549, 553 (Tenn. Ct. App. 2003).
We address Husband’s issues on appeal in a different order than he presented them
in his brief. The process for disposition of marital property in a divorce is (1)
identification of the parties’ property, (2) classification of the parties’ property as marital
or separate property, (3) valuation of the property, (4) distribution of the property, and
then a determination of whether an award of spousal support is warranted may follow.
See Keyt v. Keyt, 244 S.W.3d 321, 328 (Tenn. 2007) (noting that “[b]ecause the courts do
3
Of particular importance in this case, the trial court found Husband to have zero credibility.
6
not have the authority to make an equitable distribution of separate property, whether
separate property should be considered as marital is a threshold matter.”). “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) (citing Edmisten v. Edmisten, No. M2001-00081-COA-R3-CV, 2003 WL
21077990, at *11 (Tenn. Ct. App. May 13, 2003)). After this valuation, the trial court is
to divide the marital property in an equitable manner considering the statutory factors
listed in Tennessee Code Annotated section 36-4-121(c). Luplow, 450 S.W.3d at 109-
110. “The equitable division of marital property is a fact-intensive inquiry involving the
careful weighing of the relevant statutory factors.” Brainerd v. Brainerd, No. M2015-
00362-COA-R3-CV, 2016 WL 6996365, at *5 (Tenn. Ct. App. Nov. 30, 2016) (no perm.
app. filed). The trial court has broad discretion in fashioning an equitable distribution of
marital property, and an appellate court will defer to the trial court’s distribution unless it
is inconsistent with the statutory factors or lacks proper evidentiary support. Baggett v.
Baggett, 422 S.W.3d 537, 543 (Tenn. Ct. App. 2013).
1. Classification of Marital vs. Separate Property
We begin our analysis with Husband’s allegations of error related to the
classification of the parties’ property as either marital or separate property. The
definition of “marital property” includes the following:
“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 the filing of a complaint for divorce, except
in the case of fraudulent conveyance in anticipation of filing, and including
any property to which a right was acquired up to the date of the final
divorce hearing, and valued as of a date as near as reasonably possible to
the final divorce hearing date.
Tenn. Code Ann. § 36-4-121(b)(1)(A). A party’s separate property, on the other hand,
includes the following:
“Separate property” means:
(A) All real and personal property owned by a spouse before marriage . . . ;
(B) Property acquired in exchange for property acquired before the
marriage;
7
(C) Income from and appreciation of property owned by a spouse before
marriage except when characterized as marital property under subdivision
(b)(1);
(D) Property acquired by a spouse at any time by gift, bequest, devise or
descent;
(E) Pain and suffering awards . . . ;
(F) Property acquired by a spouse after an order of legal separation
Tenn. Code Ann. § 36-4-121(b)(2)(A)-(F). The determination of what is marital and
what is separate property pursuant to Tennessee Code Annotated section 36-4-121 is a
question of fact. Luplow, 450 S.W.3d at 109. The trial court’s classification of marital
property is, therefore, subject to the trial court’s sound discretion and will be given great
weight on appeal. Dunlap v. Dunlap, 996 S.W.2d 803, 814 (Tenn. Ct. App. 1998) (citing
Harris v. Corley, No. 01A01-9011-CH-00415, 1991 WL 66447, at *5 (Tenn. App. May
1, 1991)). “In accordance with rule 13(d) of the Tennessee Rules of Appellate Procedure,
the trial court’s classification and division of marital property enjoys a presumption of
correctness and will be reversed or modified only if the evidence preponderates against
the court’s decision.” Id.
A. Trip’s Nurseries
Husband first asserts that the trial court erred in finding that the Trip’s Nurseries
business was marital property rather than his own separate property. According to
Husband, he started and owned Trip’s Nurseries before the marriage, and he argues that
there is nothing in the record to support the theory that these assets were transmuted
during the marriage. At trial, Husband testified that, after college, he worked doing
landscaping and commercial property maintenance services and started the Trip’s
Nurseries business in 1980, which was ten years prior to his marriage to Wife. To the
contrary, Wife contends that Trip’s Nurseries was purchased long after the parties were
married and that Husband did not meet his burden of proving that this was his separate
property. Moreover, Wife contends that Husband actually abandoned this argument at
trial.
On the issue of whether Trip’s Nurseries was marital or separate property, the trial
court found as follows:
Husband contended in his Rule 14 filings4, and at trial, that a number of
4
Rule 14 of the Local Rules of Practice for Shelby County, Tennessee pertains to “domestic relations
8
Trip’s Nursery’s assets were his separate property. Those were as follows:
Two (2) 2001 Chevy Vans; 2012 Land Rover; New Holland Tractor; 2004
Ford F450; 2002 Ford F250; Inventory; and Tools.
It is clear from Husband’s very description of the assets in question that
they were acquired during the marriage. Moreover . . . Husband testified at
trial that he sold the Trip’s Nurseries business in 1998, during the marriage.
He later claimed to reacquire the business during the marriage. Husband
did not trace any funds from separate property to evidence reacquisition of
the Nursery. However, the Court has awarded Trip’s Nursery business to
Mr. Trezevant.
cases.” In a case such as the one at hand, Rule 14(C) requires the parties to a contested divorce in which
alimony is an issue to file
no later than ninety (90) days before trial, a sworn statement setting forth the party’s
income, a list of expenses, and a description and valuation (or estimate) of real and/or
personal property possessed in any form, the state of its title, and the party’s claimed
interest in such property. The sworn statement must also include, if known, or if the
information is reasonably procurable, the income and property interest of the opposing
party, both real and personal, and the valuation thereof. Any changes in the statement
while the case is pending must be disclosed as soon as possible, and not later than ten
(10) days before the trial.
Local Rules of Practice for Shelby Co., Tenn., Rule 14(C)(1). Subsection (D) of Rule 14 requires counsel
for parties in a contested divorce case to deliver to the trial judge a memorandum at least twenty-four (24)
hours before the trial that includes:
(a) Certification that the party’s Rule Fourteen (C) affidavit of income and expenses has
been filed.
(b) Whether the client seeks a divorce, legal separation, separate maintenance or to
remain married.
(c) Whether grounds can be stipulated to avoid proof. (T.C.A. § 36-4-129).
....
(h) Proposed disposition of the marital residence.
(i) Fair market value of the marital residence and amount of mortgage.
(j) Proposed disposition of any other real property and its fair market values.
(k) Proposed division of debts.
(l) Specific items of personalty sought, and its value.
(m) The amount and type of alimony sought.
(n) The amount of attorney’s fee sought.
(o) Certification that the above written proposals were submitted to opposing counsel at
least 24 hours before the trial.
Local Rules of Practice for Shelby Co., Tenn., Rule 14(D).
9
Husband failed to meet his burden of proving that these particular assets
were acquired with separate funds. Moreover, to the extent that Husband
ever truly had a separate property interest in any portion of these assets,
same has been transmuted into marital property. As set forth in more detail
above, all of the various properties owned by the parties feed into and
comprise Trezevant Enterprises, Inc., Trip’s Nursery. Based upon all of the
foregoing, all of the “Trip’s Nursery” assets that Husband claimed were his
separate property are, in fact, marital property.
(Internal citations omitted.)
Because Tennessee Code Annotated section 36-4-121(b)(1)(A) defines marital
property as “all real and personal property, both tangible and intangible, acquired by
either or both spouses during the course of the marriage,” when Trip’s Nurseries was
acquired is of specific import. If acquired during the marriage, the business and its assets
would presumptively be classified as marital property. Husband asserts that the trial
court incorrectly found that he sold Trip’s Nurseries in 1998, which would have been
during the parties’ marriage. According to Husband, he actually sold Trip’s Nurseries in
1988 and reacquired it in early 1990 before his marriage to Wife in September 1990. He
therefore also disputes the trial court’s finding that he claimed to have reacquired Trip’s
Nurseries during the marriage. Finally, Husband argues that the trial court’s finding that
any of his separate property had been transmuted is merely conclusory and that there are
insufficient factual findings to support that theory.
Our review of the voluminous record confirms Husband’s assertion that he
testified at trial that he sold the business of Trip’s Nurseries to a group of investors in
1988, rather than 1998. However, he does not make a convincing argument on appeal for
this Court to reverse the trial court’s finding that Trip’s Nurseries is marital property. We
conclude that the evidence does not preponderate against the trial court’s decision to
classify Trip’s Nurseries as marital property. Although Husband testified that he
reacquired some interest in the business of Trip’s Nurseries before the marriage, Wife
presented evidence that two of the properties owned by Trip’s Nurseries that Husband
asserted were his separate property, 7038 Poplar Avenue and 6993 Poplar Avenue, were
purchased long after the parties were married. Husband, therefore, had the burden of
proving that this was his separate property, and the record is sparse at best on Husband’s
efforts to establish this or trace Trip’s Nurseries’ current assets to his separate property.
Husband also argues that the trial court erred in concluding that if Trip’s Nurseries
was ever his separate property, it had been converted into marital property by virtue of
transmutation.
10
[S]eparate property may be converted into marital property by
commingling or transmutation. Langschmidt v. Langschmidt, 81 S.W.3d
741, 747 (Tenn. 2002). Our supreme court has explained how the doctrines
of commingling and transmutation work:
[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.
Cox v. Cox, No. E2016-01097-COA-R3-CV, 2017 WL 6517596, at *4 (Tenn. Ct. App.
Dec. 20, 2017) (no perm. app. filed) (quoting Langschmidt, 81 S.W.3d at 747 (alteration
in original) (quoting 2 Homer H. Clark, The Law of Domestic Relations in the United
States § 16.2 at 185 (2d ed. 1987)). There is sufficient evidence in the record to support
the trial court’s conclusion of transmutation of any of Trip’s Nurseries that might have
ever been his separate property. Marital funds were used to purchase the later-acquired
properties that comprised Trip’s Nurseries, and all of the various properties owned by the
parties appear to have been under the umbrella of Trezevant Enterprises, Inc., which was
a marital asset. Trip’s Nurseries, like the parties’ other commercial properties, was held
out as the parties’ joint property. “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. M. 2004-02616-COA-R3-CV, 2006 WL 2535407, at *5 (Tenn. Ct. App. Sept.
1, 2006).
B. Nonconnah Properties
At trial, Husband argued that the following five properties, referred to as the
“Nonconnah Properties,” were his separate property:
I. 0 Cherry Road
11
6.33 acres
Memphis, TN
Titled: American Sign Co., GP
....
II. 0 Goodlett
Memphis, TN 38118
3.09 acres (vacant land)
Titled: Stanley H. Trezevant, III
....
III. 0 Goodlett
Memphis, TN 38118
2.041 acres (vacant land)
Titled: Stanley H. Trezevant, III
....
IV. 0 Nonconnah Circle
Memphis, TN 38118
7.337 acres (vacant land)
Titled: Stanley H. Trezevant, III
....
V. Vacant land near Perkins & I-240
Memphis, TN 38118
21.386 acres (vacant land)
12
Titled: Stanley H. Trezevant, III
The trial court rejected Husband’s contention that these were his separate
properties, finding the Nonconnah Properties to be part of the marital estate:
Husband and each of his two (2) siblings inherited a 33.33% interest in the
“Nonconnah Properties” in 2007. Because these properties were
“worthless,” Husband purchased brother and sister’s interests in the
Nonconnah properties. The Quitclaim Deeds expressly reflect that, in 2011
and 2012, Husband paid consideration to his brother and sister for the
remaining 66.67% of these properties.
....
There is no question that all of the equity in and to these Nonconnah
properties is all marital property. There is no dispute that, during the
marriage, the parties paid taxes on these properties with marital funds. . . .
Since, by Husband’s own admission, these properties were worthless when
Husband inherited and/or later purchased his interest in and to same, the
entire current values of the properties are marital property.
This Honorable Court likewise finds that any portion of this real estate
itself that may have, at one time, been classified as Husband’s separate
property has since been transmuted into marital property.
....
In the present case, all of the various properties owned by the parties feed
into and comprise Trezevant Enterprises, Inc. (hereinafter TEI), including
these “Nonconnah properties” at issue. The proof at trial reflected that
Husband never treated any of these properties as separate property. To the
contrary, the proof reflected that, regardless of the nature of their
acquisition, the parties treated all of these properties as if they were jointly
owned. A 2005 TEI Corporation Annual Report . . . . reflected that Wife
was an officer in TEI. An email from Husband to Neal Graham dated
August 12, 2013 reflected that Wife was still listed as secretary at that
point.
Husband and Wife obligated themselves on notes, which were secured by
deeds of trusts, for certain of the TEI properties. Husband has testified
13
more than once that Wife had full access to all of the bank accounts
associated with the various TEI properties.
....
Based upon all of the foregoing, this Honorable Court expressly finds that
these “Nonconnah properties” are marital property. Any portion of these
Nonconnah properties which may have legitimately been classified at one
time as Husband’s separate property have been transmuted into marital
property.
(Internal citations omitted.)
On appeal, Husband alleges that the trial court erred in finding the Nonconnah
Properties to be marital property. We note, however, that Husband devoted little of his
brief to developing this issue and he offers only a tenuous argument in fact and law to
support his position.
Husband and his two siblings each inherited a 33.33% interest in the Nonconnah
Properties in 2007. At trial, Husband asserted that, in 2012, his two siblings each gifted
their 33.33% interests in the Nonconnah Properties to Husband, thus giving Husband full
ownership of the Nonconnah Properties. As we outlined above, a party’s separate
property includes “[p]roperty acquired by a spouse at any time by gift, bequest, devise or
descent.” Tenn. Code Ann. § 36-4-121(b)(2)(D). According to Husband, because he
inherited one-third of his interest and was gifted the other two-thirds, his entire ownership
interest in the Nonconnah Properties should have been classified as his separate property.
As the party claiming that property acquired during the marriage is separate property,
Husband had the burden of proof on this issue. See Owens v. Owens, 241 S.W.3d 478,
485-86 (Tenn. Ct. App. 2007).
The trial court determined that Husband did not meet that burden. With respect to
the two-thirds interest Husband claimed he was gifted from his siblings, the trial court
looked to the deeds transferring the property to Husband and found that the deeds
themselves stated that Husband paid consideration in the amount $10.00 for each interest,
thereby negating Husband’s assertion that these were gifts. On appeal, Husband relies
on his own testimony that he did not actually pay anything for these properties. The trial
court, however, found Husband to have no credibility. Furthermore, the trial court found
that since, by Husband’s own admission the properties were worthless when he acquired
them, “the entire current values of the properties are marital property” by virtue of
Husband’s use of marital funds to contribute to the preservation and appreciation of the
property’s interest. See Mahaffey v. Mahaffey, 775 S.W.2d 618, 623 (Tenn. Ct. App.
14
1989). The determination of what is marital and what is separate property pursuant to
Tennessee Code Annotated section 36-4-121 is a question of fact and is subject to the
standard of review in Tennessee Rule of Appellate Procedure 13(d). Luplow v. Luplow,
450 S.W.3d 105, 109 (Tenn. Ct. App. 2014); Dunlap v. Dunlap, 996 S.W.2d 803, 814
(Tenn. Ct. App. 1998) (citing Harris v. Corley, No. 01A01-9011-CH-00415, 1991 WL
66447, at *5 (Tenn. App. May 1, 1991)). The evidence in the record does not
preponderate against the trial court’s findings on the Nonconnah Properties, and we
affirm the trial court’s determination that the Nonconnah Properties are marital property.
C. Marital Silver
Husband and Wife have been litigating the distribution of their silver collection for
more than four years, and they continue to do so on appeal. On September 6, 2013,
Husband filed a motion to compel Wife to return personal property missing from the
parties’ residence. Therein, Husband alleged that Wife took several pieces of marital
silver before leaving the marital residence that she never returned. Wife responded by
admitting that she took various pieces of silver from the home but that she did not do so
surreptitiously, as Husband suggested. The matter was heard on November 8, 2013, and
on November 20, 2013, the trial court ruled that Wife must return any of Husband’s
separate silver that she had in her possession. Further, if Wife kept any silver she took
from the marital residence, she must make a list of the same and state why she believed it
was not Husband’s separate property.
At trial, Husband contended that Wife had still not returned all of the silver to
which he was entitled. Wife testified that she originally removed the items of silver from
the marital residence in order to host a party for her nephew’s birth. Wife listed all of the
silver that she removed from the home in her sworn answers to Husband’s discovery
requests. Wife testified that, after the baby shower, she returned the items that were
Husband’s separate property to Husband’s attorney at the time. According to Wife, the
items of marital silver she retained had been purchased during the marriage or were given
to the parties as wedding gifts.
In the Final Decree, the trial court found that Husband had not carried his burden
of proving that Wife kept any items of silver to which she was not entitled. In that
regard, the trial court found as follows:
Husband dedicated a great deal of [time at trial] to the allegations contained
in his November 8, 2013 Petition to Compel Wife to Return Items to
Marital Residence. More specifically, Husband contended that Wife had
removed certain marital silver, certain of Husband’s alleged silver, and
certain of Husband’s mother’s jewelry.
15
Husband has failed to meet his burden of proving that Wife removed and
kept any of these items, including the alleged separate family silver. At
trial, some 3 years after Mr. Trezevant’s first allegation of theft on the part
of Mrs. Trezevant, Mr. Trezevant presented a new, never before seen, list of
purported missing silver and his value of each. Mr. Trezevant is a real
estate expert. He has no expertise in personal property values. The list is
not admissible as competent proof. Mrs. Trezevant returned a number of
items of silver to Mr. Trezevant at the time of trial, which she had been
holding at the Court’s direction to protect those items for Mr. Trezevant.
Husband’s November 8, 2013 Petition shall be dismissed at Husband’s
cost. Each party shall keep the silver in their respective possession. To the
extent that Wife has two candelabras, Wife shall provide one to Husband.
Husband argues on appeal that this Court should remand the matter of the silver
with an instruction to the trial court to require Wife to account for the silver she has taken
and not returned. However, the evidence in the record does not preponderate against the
trial court’s finding that Husband failed to prove that Wife retained any silver to which he
was entitled. Wife testified that she returned all items of silver that were Husband’s. The
trial court had the opportunity to observe the demeanor of the witnesses and hear the in-
court testimony regarding the marital silver, and we must afford considerable deference
to the trial court’s credibility determinations and the weight that the court gave to the oral
testimony presented. See Andrews v. Andrews, 344 S.W.3d 321, 339 (Tenn. Ct. App.
2010). Whether to believe Husband or Wife on this point is within the trial court’s
discretion. Our review of the record does not preponderate against the trial court’s
finding that Husband failed to prove Wife had taken and kept any of his silver. We,
therefore, affirm the court’s holding regarding the parties’ silver collection.
Husband also argues that it was reversible error for the trial court to reject
Husband’s testimony regarding the value of the silver. We agree with Husband to the
extent that it was error to find Husband incompetent to testify as to the value of his own
personal property. See Tenn. R. Evid. 701(b); Head v. Head, No. M1009-01351-COA-
R3-CV, 2010 WL 3853291 (Tenn. Ct. App. 2010) (citing Crook v. Mid-South Transfer &
Storage, Inc. 499 S.W.2d 255, 260 (Tenn. Ct. App. 1973) (citing McKinnon v. Michaud,
260 S.W.2d 721 (Tenn. Ct. App. 1953) (“stating it is permissible for an individual to
testify as to the value of his or her personal property even though he or she does not
qualify as an expert”)). However, we conclude that this error was harmless in light of the
foregoing conclusion affirming the trial court’s determination that Husband failed to
prove Wife kept any silver to which he was entitled.
D. Gifts to Wife
16
Husband claims that the trial court erred in finding that the following transfers of
funds he made to Wife were gifts and her separate property:
A. November 1, 2007 – $1,250,000.00
B. February 23, 2010 – $1,000,000.00
C. February 23, 2010 – $1,000,000.00
D. September 1, 2010 – $ 200,000.00
E. January 27, 2011 – $ 546,000.00
F. September 27, 2011 – $ 200,000.00
G. December 24, 2012 – $ 25,000.00
According to Wife, the explanation for the checks/gifts is as follows:
A. November 1, 2007 – Check to Wife for $1,250,000.00
Husband received approximately $14,500,000.00 in net proceeds from the sale of
five properties in October 2007. Weeks later, Husband gifted $1,250,000.00 of those
proceeds to Wife on November 1, 2007. Wife testified that Husband told her that he
wanted to give her $1,000,000.00 and an extra $250,000.00 so that she could buy some
jewelry.
B. February 23, 2010 – Check to Wife for $1,000,000.00
February 23 is Wife’s birthday. On February 23, 2010, Husband gave Wife a
check for $1,000,000.00 as a birthday gift and told her she looked like a million dollars.
C. February 23, 2010 – Check to Wife for $1,000,000.00
Immediately after gifting Wife the aforementioned $1,000,000.00 check, on
Wife’s birthday in 2010, Husband gave wife a second check for $1,000,000.00 as a
birthday gift. He told her that saying she looked like a million dollars was too cliché, so
he gifted her a total of $2,000,000.00.
17
D. September 1, 2010 – Check to Wife for $200,000.00
September 1 is the parties’ wedding anniversary. On September 1, 2010, Husband
gifted a $200,000.00 check to wife as an anniversary gift.
E. January 27, 2011 – Check to Wife for $546,000.00
This check from Husband to Wife for $546,000.00 was repayment by Husband for
money he previously borrowed from Wife out of her separate assets. Wife presented
emails as evidence at trial in which Husband referred to this transaction as being his
repayment for money Wife loaned to him. Husband also testified before the divorce
referee regarding this transaction being a loan.
F. September 27, 2011 – Check to Wife for $200,000.00
According to Wife, this check was a belated anniversary gift for the parties’ 2011
wedding anniversary. Wife testified that she was initially shopping for jewelry for her
anniversary gift that year, but when she could not find anything she liked, Husband
simply wrote her a $200,000.00 check for her to buy the jewelry whenever she found
what she wanted. When she received the money, Wife wrote in the memo line of the
check “Anniv. Gift.” Wife also asserts that, since this check was given to her nearly two
full years before the divorce was filed, Wife was in no way anticipating making an
argument that this was her separate property at a later date when she wrote “Anniv. Gift”
in the memo line of the check.
G. December 24, 2012 – Check to Wife for $25,000.00
Husband gave this check to Wife on Christmas Eve 2012 as a Christmas Gift.
Wife also produced an email at trial from Husband to Wife in which Husband referenced
this amount being a Christmas gift.
The issues related to Wife’s separate property were decided by the court before the
divorce trial and final decree. The hearing on these matters was held on December 14
and 15, 2015.5 According to the court, in determining whether these transfers were gifts
from Husband to Wife, the court took into account the following:
[S]tatements of counsel; testimony of [Wife]; testimony of [Husband];
exhibits introduced into evidence, Memorandum of Facts and Law
5
The court did reference this order in its Final Decree.
18
submitted by Wife, Memorandum of Facts and Law submitted by Husband,
two (2) post hearing submissions dated December 16, 2016, provided by
counsel for Wife, two (2) post hearing submissions dated December 22,
2015 and January 5, 2016, respectively, by counsel for Husband, additional
transcripts from prior court appearances, (all of which have been marked as
late filed exhibits); and upon the entire record in this cause[.]
The court further found:
The proof clearly established the three necessary elements of a gift:
delivery, acceptance and Husband’s intent to gift to Wife. The proof also
clearly established that all of said transfers were without compensation, and
all of said transfers remained in Wife’s sole name and dominion and control
since gifted to Wife. Husband was not provided access to said funds
without Wife’s express consent after each gift was made to Wife.
“‘Separate property’ means . . . (D) Property acquired by a spouse at any time by
gift, bequest, devise or descent.” Tenn. Code Ann. § 36-4-121. Gifts from one spouse to
another during the marriage are not excluded from this definition. See id.; Hanover v.
Hanover, 775 S.W.2d 612, 617 (Tenn. Ct. App. 1989). There is a presumption that
property acquired by spouses during a marriage is marital property. Owens v. Owens,
241 S.W.3d. 478, 485 (Tenn. Ct. App. 2007). This presumption may be rebutted if a
party shows that the property was acquired, among other things, by gift. Dunlap v.
Dunlap, 996 S.W.2d 803, 814 (Tenn. Ct. App. 1998). The party asserting that they
acquired the property by gift has the burden of proving the essential elements of a gift by
clear and convincing evidence: (1) “the intention by the donor to make a present gift,”
and (2) “the delivery of the subject gift by which complete dominion and control of the
property [was] surrendered by the donor.” See Hansel v. Hansel, 939 S.W.2d 110, 112
(Tenn. Ct. App. 1997); Brewer v. Brewer, No. M2010-00768-COA-R3-CV, 2011 WL
532267 at *3 (Tenn. Ct. App. Feb. 14, 2011).
Husband asserts the principle that the testimony of a beneficiary, in this case Wife,
is not sufficient to establish a gift. However, “[i]ntent is determined from the totality of
the circumstances.” Id.; Harris v. Taylor, No. W2004-02855-COA-R3-CV, 2006 WL
772007, at *4 (Tenn. Ct. App. Mar. 28, 2006). We affirm the trial court’s finding that
Husband had the requisite intent to make a gift. Items acquired on birthdays, holidays or
anniversaries are generally found to belong to the spouse to whom they were given. Wife
explained and showed that the majority of these transfers were for exactly these types of
occasions. Also, Wife introduced several emails as exhibits at trial from Husband to
Wife in which he describes Wife’s money as “your” money. For years after writing these
checks to Wife, Husband never included these amounts on any personal financial
19
statements he made. Husband did not claim any interest in Wife’s accounts in response
to an interrogatory question that required him to list all items in which he had any
interest. On May 1, 2014, Husband, who was representing himself at the time, apparently
attempted to amend his discovery responses by hand-delivering a letter to Wife’s counsel
that stated in part: “Let this be clear, I claim 100% of everything that I have given her,
since our Marriage on September 1, 1990, and everything that she has bought or received
from me. Since that date is marital property, . . .” (Emphasis added.) Wife presented
ample evidence for the trial court to find that, for each of the transfers, Husband delivered
the check to Wife, Wife accepted the check, Husband did not put any restrictions on how
Wife was to spend the money, Husband never told Wife should would have to return the
money in the future, Husband told Wife she could do as she pleased with the funds, and
Husband’s name has never been on any account in which these monies were deposited or
on any asset Wife has purchased with these funds.
Based on the totality of these circumstances, we affirm the trial court’s holding
that Wife proved these transfers to be her separate property by virtue of gifts from
Husband. “Simply because the day of reckoning for the extravagance is at hand, we will
not infer that [Husband] did not intend to make a gift . . . .” Hanover, 775 S.W.2d at 617.
2. Dissipation of Marital Assets
During the divorce, Husband transferred approximately $2,100,000.00 to long-
time attorney and friend, Norman Klein. Mr. Klein is a lawyer in the Cayman Islands
with a practice focused on general corporate and commercial law and an emphasis in real
estate. According to Husband and Mr. Klein, in around 2004 the pair pursued a business
venture that involved the acquisition of property that came to be known as the
“Northwest Sound Property.” Sloane Properties, Ltd. (“Sloane Properties”) was formed
to conduct the transaction. Husband asserted that he and Mr. Klein were equal partners
in this deal. However, Mr. Klein did not want to be listed as an owner of this company
because his law firm was the registered agent for the property and he had incorporated
the entity. Mr. Klein and Husband asserted that Mr. Klein did not require any
documentation of his ownership in the deal because of his long-standing relationship with
Husband. According to Husband and Mr. Klein, the two split expenses related to the
property evenly, and they both contributed to the venture. Therefore, when the property
was sold in 2012, the two split the profit equally, with Mr. Klein’s portion being
$2,145,065.55.
The trial court held a hearing on August 3, 2015. At that hearing, the court and
counsel for Husband engaged in the following exchange:
20
THE COURT: I’ve already told Mr. Fishman and Mr. Trezevant short of a
written agreement or something with this man, here, testifying, such that he
is credible to me, all of that profit is going in Mr. Trezevant’s column.
MR. CAYWOOD: I’ve got an email from Mr. Norman [Klein] saying
there are no documents, an e-mail from him.
THE COURT: I understand that. We’ve already been over that
extensively, and I said to you, and to Mr. Fishman and Mr. Trezevant, short
of written documents not produced subsequent to this announcement, every
bit of that – or Mr. [Klein] sitting on this witness stand and convincing me,
credibly, that this man would give away half of several million dollars, that
is going in Mr. Trezevant’s column. I’ve already said that. Mr. Fishman
heard me.
At the same hearing, the court also opined:
You don’t do business like that over two million dollars and a handshake. I
just don’t buy it. I’m sorry.
That’s not an absolute judgment. I’m just telling you that there’s a question
in this Court’s mind about a lawyer who has represented this man, or been a
friend, with this man, getting two million dollars and a handshake.
The first thing one assumes is that it’s been put aside to be given back, or
portions of it given back, after this man gets his pay for doing it, to Mr.
Trezevant after the divorce. That’s a very logical conclusion, Mr. Fishman.
So you have to overcome that.
Tennessee Code Annotated section 36-4-121(c)(5)(B) provides that “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.”
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.
Tenn. Code Ann. § 36-4-121(c)(5). While there is no statutory definition of dissipation,
the term typically refers to the use of marital property for a purpose unrelated to the
marriage, often to “hide, deplete, or divert” marital property after a marriage is
irretrievably broken. Larsen-Ball v. Ball, 301 S.W.3d 228, 235 (Tenn. Ct. App. 2010).
“The concept of dissipation is based on waste.” Altman v. Altman, 181 S.W.3d 676, 681
21
(Tenn. Ct. App. 2005).
In determining whether dissipation has occurred, the court “must distinguish
between dissipation and discretionary spending.” Larsen-Ball, 301 S.W.3d at 235.
While discretionary spending may be ill-advised, “it is typical of the parties’ expenditures
throughout the course of the marriage.” Id. Expenditures that constitute dissipation, on
the other hand, are so far removed from normal expenditures that they can be
characterized as wasteful or self-serving. See Watson v. Watson, 309 S.W.3d 483, 490
(Tenn. Ct. App. 2009). In Watson, this Court discussed the appropriate analysis for
allegations of dissipation:
In determining whether dissipation occurred, we find trial courts should
consider the following: (1) whether the evidence presented at trial supports
the alleged purpose of the various expenditures, and if so, (2) whether the
alleged purpose equates to dissipation under the circumstances. The first
prong is an objective test. To satisfy this test, the dissipating spouse can
bring forward evidence, such as receipts, vouchers, claims, or other similar
evidence that independently support the purpose as alleged. The second
prong requires the court to make an equitable determination based upon a
number of factors. Those factors include: (1) the typicality of the
expenditure to this marriage; (2) the benefactor of the expenditure, namely,
whether it primarily benefitted the marriage or primarily benefitted the sole
dissipating spouse; (3) the proximity of the expenditure to the breakdown
of the marital relationship; (4) the amount of the expenditure.
Id. at 490-91 (quoting Ward v. Ward, No. W2001-01078-COA-R3-CV, 2002 WL
31845229, at *3 (Tenn. Ct. App. Dec. 19, 2012)). The party alleging dissipation has “the
initial burden of production and the burden of persuasion at trial.” Larsen-Ball, 301
S.W.3d at 235. Once the party alleging dissipation establishes that the money has been
dissipated, “the burden shifts to the party who spent the money to produce evidence to
show that the expenditures were appropriate.” Watson, 309 S.W.3d at 491 (quoting
Wiltse v. Wiltse, No. W2002-03132-COA-R3-CV, 2004 WL 1908803, at *4-5 (Tenn. Ct.
App. Aug. 24, 2004)). The trial court’s determination of whether a party dissipated
marital assets is a finding of fact. See Altman v. Altman, 181 S.W.3d 676, 682 (Tenn. Ct.
App. 2005). Dissipation is generally “intentional and purposeful conduct that has the
effect of reducing the funds available for distribution.” Id. (citation omitted). A court
may look at whether the spouse “intended to hide, deplete, or divert a marital asset.” Id.
(quoting Long v. Long, No. M2006-02526-COA-R3-CV, 2008 WL 2649645 at *9 (Tenn.
Ct. App. July 3, 2008)).
22
Husband argues that the trial court improperly put the burden on him to show that
there was no dissipation, rather than on Wife to show that there was. However, the
record shows sufficient evidence for a prima facie case of dissipation by showing that
Husband transferred more than $2 million during the course of the divorce to an associate
in the Cayman Islands without any evidence that Mr. Klein was entitled to that sum of
money. The spouse alleging dissipation has the burden of persuasion and the initial
burden of production to show that the other spouse engaged in “intentional, purposeful,
and wasteful conduct.” Berg v. Berg, No. M2013-00211-COA-R3-CV, 2014 WL
2931954 at *18 (Tenn. Ct. App. June 25, 2014). Once the party alleging dissipation has
established a prima facie case of dissipation, the burden shifts to the other spouse to show
the court that the expenditures were not dissipation. Id. Husband argues that Mr. Klein’s
deposition was sufficient affirmative evidence to show that he was an equal partner in the
North Sound Property.
We disagree. The trial court found that Husband wanted to the court to believe
that Mr. Klein gave Husband funds to purchase real estate that was owned exclusively by
Husband. Mr. Klein admitted that the North Sound Property was owned entirely by
Husband’s company, Sloane Properties, and that there were no documents that
substantiated the claim that he owned any portion of Sloane Properties or the North
Sound Properties. This is despite Mr. Klein’s expertise in the area of real estate. Mr.
Klein said that he trusted Husband would hold fifty percent of the shares of the Sloane
Properties for him by virtue of a “handshake deal.” Mr. Klein also testified he would not
recommend to his clients that they purchase real estate without a contract and that they
should enter into a binding agreement. The Cayman Islands has a rule of law similar to
the American “statute of frauds,” which requires contracts for the sale or purchase of real
property to be in writing. Moreover, Husband and Mr. Klein had differing stories about
whose idea this business venture was. When Sloane Properties borrowed $1,500,000.00
for a transaction related to the North Sound Properties, Mr. Klein was not a debtor on the
promissory note. Wife also gave the trial court various examples of how Mr. Klein’s
“contributions” to the venture were not what they seemed and that they did not actually
tie Mr. Klein to the deal. While Husband claims Mr. Klein was responsible for some of
the venture’s expenses, Husband was unable to identify what Mr. Klein’s expenses were
when asked about them at trial.
Based on the foregoing, we conclude that the evidence does not preponderate
against the trial court’s determination that Husband dissipated the more than $2 million
dollars that he transferred to Norman Klein during the divorce proceedings.
3. Valuation of Marital Estate
Next, Husband asserts that the trial court’s valuation of the marital property
23
awarded to him was $24 million too high. After identifying the marital property, the trial
court was vested with the task of valuing that property. Of great consequence in this
appeal is that there is a multi-million dollar disparity in the value assigned to the marital
estate by Husband versus the value assigned by Wife. At trial, Wife proffered a financial
statement prepared by Husband on July 16, 2012, which was more than four years before
the trial of this matter (the “Financial Statement”). Husband offered more than twenty
certified appraisals for several of the parties’ most valuable commercial and residential
properties. Ultimately, the trial court heavily relied on Husband’s July 2012 Financial
Statement and found the marital estate to be worth at least $44,339,611.00. The court
awarded Husband $34,204,026.00 and Wife $10,135,585.00 (plus alimony in solido and
in futuro in an attempt to equalize the distribution of marital assets). Husband says that
the 2012 Financial Statement (that he prepared) is unreliable and he used inflated figures
that are much higher than the actual value for the properties. This Financial Statement
was unsigned, unsworn, and unaudited, and was over 4 ½ years old at the time of the trial
court’s ruling. Husband testified that he substantially exaggerated the values that he put
on his properties on the 2012 Financial Statement. Husband argues that the trial court
used the inflated values for the property given to Husband but the more reasonable values
for the property given to Wife. Husband asserts that his equity was overvalued by more
than $24,000,000.00. Husband believes that the trial court did this to punish him, which
is not proper in the valuation and distribution of marital property.
At trial, two certified appraisers testified as to the value of some of the most
valuable commercial properties. One of these appraisers was Todd Glidewell, a
commercial appraiser for Valbridge Property Advisers. The effective dates for the
appraisals were 2015 and 2016. Appraisals by Mr. Glidewell compared to the trial
court’s ultimate valuation are:
Glidewell’s Appraisal Trial Court’s Value
Shops of Milan $1,760,000.006 $3,500.000.007
Oaks in Oakland $4,090,000.008 $5,600,000.009
6
The effective date of this valuation was January 21, 2015.
7
This valuation is based on Husband’s 2012 Financial Statement as well as an additional unsworn
financial statement by Husband dated January 2015.
8
The effective date of this valuation was February 18, 2015.
9
This valuation is based on Husband’s 2012 Financial Statement.
24
Sloane’s Square $2,650,000.0010 $6,262,000.0011
Market/Poplar Est. $30,000.0012 $500,000.0013
7092 Poplar House $160,000.0014 $650,000.0015
Abbington Center $1,200,000.0016 $1,900,000.0017
670 Riverside $430,000.0018 $430,000.0019
7038 Poplar $490,000.0020 $490,000.0021
The difference in the values that were submitted by Mr. Glidewell versus the value
adopted by the trial court was $8,522,000.00.
10
The effective date of this valuation was February 18, 2015.
11
This valuation is based on Husband’s 2012 Financial Statement.
12
The effective date of this valuation was February 25, 2015.
13
This valuation is based on Husband’s 2012 Financial Statement.
14
The effective date of this valuation was February 18, 2015.
15
This valuation is based on Husband’s 2012 Financial Statement.
16
The effective date of this valuation was August 16, 2016.
17
This valuation is based on Husband’s 2012 Financial Statement.
18
The effective date of this valuation was February 24, 2015.
19
This valuation was based on Husband’s June 28, 2015 financial statement. Husband complains that this
property was not subject to the inflated values of the 2012 Financial Statement and it was awarded to
Wife in the final property division.
20
The effective date of this valuation was February 11, 2014.
21
This valuation was based on Husband’s June 28, 2015 financial statement. Husband complains that this
property was not subject to the inflated values of the 2012 Financial Statement and it was awarded to
Wife in the final property division.
25
Rip Walker is another certified appraiser who appraised several commercial
properties for the parties and testified at trial. Mr. Walker disagreed with the values that
Husband placed on several properties in his 2012 Financial Statement.
Walker’s Appraisal Trial Court’s Value
Olivia’s Square $2,845,000.0022 $5,400,000.0023
Shops at Southaven $735,000.0024 $2,700,000.0025
615 West Poplar $820,000.0026 $1,700,000.0027
Hamilton Storage $950,000.0028 $1,200,000.0029
McCracken Road $1,400,000.0030 $2,000,000.0031
3400 Pleasant Hill Road $320,000.0032 $735,000.0033
22
The effective date of this valuation was May 9, 2015.
23
This valuation is based on Husband’s 2012 Financial Statement.
24
The effective date of this valuation was June 21, 2015.
25
This valuation is based on Husband’s 2012 Financial Statement.
26
The effective date of this valuation was May 4, 2015.
27
This valuation is based on Husband’s 2012 Financial Statement. This property was given to Wife in the
distribution of the marital estate.
28
The effective date of this valuation was January 28, 2015.
29
This valuation is based on Husband’s 2012 Financial Statement. It was also based on an unsworn
financial statement from Husband from December 31, 2013.
30
The effective date of this valuation was January 28, 2015.
31
This valuation is based on Husband’s 2012 Financial Statement as well as an additional unsworn
financial statement by Husband dated January 2015.
32
The effective date of this valuation was January 28, 2015.
26
0 Poplar View $865,000.0034 $2,100,000.0035
Hamilton Storage $4,380,000.0036 $4,700,000.0037
870 Rasco $785,000.0038
891 Rasco $145,000.0039 $1,200,000.0040
939 Rasco $200,000.0041
Highway 72 $300,000.0042 $300,000.0043
The difference in the values that were submitted by Mr. Walker versus the value adopted
by the trial court was $8,290,000.00.
33
This valuation is based on Husband’s 2012 Financial Statement as well as an additional unsworn
financial statement by Husband dated January 2015.
34
The effective date of this valuation was February 2, 2015.
35
This valuation is based on Husband’s 2012 Financial Statement as well as an additional unsworn
financial statement by Husband dated January 2015.
36
The effective date of this valuation was January 28, 2015.
37
This valuation is based on Husband’s 2012 Financial Statement as well as an additional unsworn
financial statement by Husband dated December 2013.
38
The effective date of this valuation was January 28, 2015.
39
The effective date of this valuation was August 18, 2016.
40
This valuation is based on Husband’s 2012 Financial Statement, which is a total of 870, 891, and 939
Rasco, as well as an additional unsworn financial statement by Husband dated December 2013.
41
The effective date of this valuation was August 18, 2016.
42
The effective date of this valuation was October 13, 2015.
43
This valuation was based on the October 19, 2015 appraisal. Husband complains that this property was
not subject to the inflated values of the 2012 Financial Statement and it was awarded to Wife in the final
property division.
27
Husband argues that the trial court erred as a matter of law in rejecting the
certified appraisals. The valuation of marital property is a question of fact for the trial
court and is presumed correct unless the evidence preponderates otherwise. Wallace v.
Wallace, 733 S.W.2d 102, 107 (Tenn. Ct. App. 1987). “The burden is on the parties to
produce competent evidence of value, and the parties are bound by the evidence they
present.” Id. Regarding the use of the Financial Statement, the trial court stated as
follows:
The July 16, 2012 financial statement was the last financial statement
submitted by Husband to a bank prior to the filing of the instant divorce
action. Moreover, even after Husband received the divorce appraisals,
Husband continued to disregard same with respect to the values he
presented to the bank on his final financial statement. As such, the Court
utilized the July 16, 2012 financial statement.
The trial court rejected the more recent certified appraisals in favor of the Financial
Statement with very little explanation. “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 factual
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.”
28
Lovlace, 418 S.W.3d at 35 (quoting 9C Federal Practice & Procedure § 2579, at 328).
Unfortunately, in this case, we cannot determine whether the trial court applied an
incorrect legal standard or relied on reasoning that caused an injustice because we do not
know what legal standard the court applied or what reasoning it employed. See Halliday
v. Halliday, No. M2011-01892-COA-R3-CV, 2012 WL 7170479, at *12 (Tenn. Ct. App.
Dec. 6, 2012), perm. app. denied (Tenn. Apr. 11, 2013) (explaining that “this Court
cannot determine whether the trial court abused its discretion” in the absence of factual
findings by the trial court). This Court is “left to wonder” about the basis of the trial
court’s decision, In re K.H., 2009 WL 1362314, at *8, and consequently, “we are unable
to conduct meaningful appellate review.” In re Estate of Bostic, No. E2016-00553-COA-
R3-CV, 2016 WL 7105213, at *5 (Tenn. Ct. App. Dec. 6, 2016) (no perm. app. filed).
Discretionary decisions of a trial court must take applicable facts and legal
principles into account and are not immune from meaningful review on appeal. See
Gooding v. Gooding, 477 S.W.3d 774 (Tenn. Ct. App. 2015). Considering the trial
court’s assessment and emphasis on Husband’s lack of credibility, it does not seem
reasonable to assign credibility to his financial statements without a more in depth
explanation for ignoring independent appraisals of the properties. Husband even testified
that he “grossly exaggerated” the values he put on his 2012 Financial Statement. Without
a clear explanation from the trial court regarding exactly what it found to be unreliable
within the appraisals themselves, it is impossible for us to know whether the court below
employed the correct legal standard. We find this to be particularly true in this case
where the court appears to have violated the statutory directive found in Tennessee Code
Annotated section 36-4-121(b)(1)(A), which instructs the court to value the marital
property as near as possible to the date it is divided. See also Owens v. Owens, 241
S.W.3d 478, 486 (Tenn. Ct. App. 2007). Wife did not object to the appraisals or to the
testimony of Mr. Glidewell or Mr. Walker at trial. She also did not submit competing
appraisals. As discussed in more detail in the section on criminal contempt below, there
were several instances prior to trial in which Wife accused Husband of not having certain
properties appraised, and they were then appraised. However, this does not mean that
once they were appraised that the appraisals were wrong. We are simply unwilling to
extrapolate from the Final Decree that because Husband and his agent were involved in
the appraisal process, there was sufficient evidence to throw out the certified appraisals
and instead rely on a 2012 Financial Statement prepared by Husband. The allegation that
Husband manipulated the appraisals is simply not to be found anywhere in the Final
Decree.
According to Wife, the appraisals relied heavily on information prepared and
provided by Husband. Husband has been found to be untrustworthy and attempted to
manipulate the divorce appraisals. However, as Husband points out, the trial court made
29
no finding in its Final Decree that Husband manipulated the twenty plus certified
appraisals that the court disregarded in valuing the properties. Wife cites to oral
statements made by the court that purportedly further explain the reason the court used
Husband’s 2012 Financial Statement rather than the Appraisals. In effect, the court
discussed its continued belief that Husband was not a credible witness and that the
Financial Statement was the last valuation of assets before the divorce began. However,
there are no findings to that effect in the written order. A trial court “speaks through its
order, not through the transcript.” In re Adoption of E.N.R., 42 S.W.3d 26, 31 (Tenn.
2001). Both parties make much of the trial court’s oral comments in a hearing on May
17, 2017, months after the Final Decree was entered in this matter. We agree with
Husband that the court’s commentary months after entry of the Final Decree cannot serve
to bolster an incomplete explanation of the court’s analysis in the Final Decree itself.
Appellate courts have two options when a trial court’s factual findings fail to
satisfy the Rule 52.01 requirement. One is to conduct an independent analysis of the
record and “determine where the preponderance of the evidence lies.” Lovlace, 418
S.W.3d at 36; See Town of Middleton v. City of Bolivar, No. W2011-01592-COA-R3-
CV, 2012 WL 2865960, at *26 (Tenn. Ct. App. July 13, 2012) (noting that “when faced
with a trial court’s failure to make specific findings, the appellate courts may ‘soldier on’
when the case involves a clear legal issue, or when the court’s decision is readily
ascertainable.”) (citations omitted). The alternative is to vacate the decision and remand
the case to the trial court with instructions to issue sufficient findings of fact and
conclusions of law. Husband asserts that, in addition to the staleness of his 2012
Financial Statement used by the courts, it was not specific enough to be considered
competent evidence. Unlike the certified appraisals, the Financial Statement did not
analyze specific factors such as current vacancy rates, interest rates, or comparable
properties. In light of the fact-intensive nature of the valuation of the marital property,
we deem it necessary to vacate and remand this matter for further analysis by the trial
court. We therefore vacate the trial court’s valuation of the parties’ marital property.
As a result, we must necessarily also vacate the distribution of marital property.
We are not opining that, on remand, the trial court is required to blindly accept the
appraisals that have already been performed in this case. In fact, many of these
appraisals are now more than two years old, and by statute courts must rely on values of
the marital property as close in time as possible to the division of marital property. While
we recognize the existence of appraisals in the record, we leave it to the discretion of the
trial court to determine whether updated appraisals are necessary or appropriate. We
remand this issue for the trial court to articulate detailed findings of fact and conclusions
of law regarding the analysis it employs to value and distribute the marital estate.
30
4. Award of Spousal Support
We now turn to Husband’s assertion that the trial court erred in awarding alimony
in solido and alimony in futuro to Wife. The trial court ordered Husband to pay Wife
$7,500,000.00 as alimony in solido over the course of five years, with that amount
accumulating interest at a rate of five percent per annum. The court also awarded Wife
alimony in futuro in the amount of $25,000.00 per month for the first 72 months of the
award and $20,000.00 per month for every month thereafter. However, any issues on
appeal related to alimony are pretermitted by our holding that the valuation of the marital
estate should be vacated. “In determining whether the granting of an order for payment
of support and maintenance to a party is appropriate, and in determining the nature,
amount, length of term, and manner of payment, the court shall consider all relevant
factors, including: . . . . (8) The provisions made with regard to the marital property, as
defined in § 36-4-121.” Tenn. Code Ann. § 36-5-121(i)(8). Because the trial court may
award spousal support only after the court has equitably divided the parties’ marital
property, the awards of alimony are vacated and remanded for reconsideration in light of
a proper valuation and distribution of the marital estate.
5. Wife’s Attorney’s Fees at Trial
Husband asserts that this Court must also reverse the trial court’s award of
$464,890.92 in attorney’s fees to Wife as a consequence of vacating the valuation and
division of the marital estate. In support of this award, the trial court lamented:
Plainly and simply, Husband has caused Wife to spend outrageous amounts
of time and money to discover, identify and classify the parties’ marital
estate.
....
Husband has been deceitful and dishonest, and his trial tactics have
exacerbated the fees tremendously. . . .
Based upon the foregoing, Husband shall be responsible for one half of all
of the attorney fees and suit expenses that Wife has incurred from the very
onset of this divorce.
(Emphasis in original.) Although our review of the record in this case supports the
sentiment of the trial court expressed above, we nevertheless vacate the court’s award of
attorney’s fees to Wife. In the context of a divorce, an award of attorney’s fees to an
economically disadvantaged spouse is generally considered an award of alimony in
31
solido. See Gonsewski v. Gonsewski, 350 S.W.3d 99 (Tenn. 2011). The trial court also
implicitly acknowledged its award of attorney’s fees to Wife as alimony in solido.
Therefore, the court’s award of attorney’s fees to Wife is also vacated by virtue of the
need to re-evaluate the marital estate. We vacate the award and remand for
reconsideration.
6. Criminal Contempt
In its Final Decree, the trial court found Husband guilty of 19 counts of criminal
contempt for hiding assets, unlawfully transferring assets, and lying to the court, among
other things. He was sentenced to 55 days in jail. His sentence is stayed pending appeal.
On appeal, Husband asserts that his convictions should also be overturned on the merits.
He also alleges that the trial court erred by not properly considering whether his
sentences should run concurrently or consecutively. Wife, on the other hand, contends
that Husband attempted on many occasions to hinder and obstruct justice. According to
Wife and the trial court, Husband did not want Wife or the trial court to know the full
extent of the marital estate. The court found that it not only caught Husband hiding
assets but, on occasion, also orchestrating the cover-up.
The steps required to punish an individual for criminal contempt are: (1) a finding
of guilt beyond a reasonable doubt; (2) a determination of the punishment for the
contempt; and (3) a determination of the manner in which the individual will serve their
sentence. In re: Sneed, 302 S.W.3d 825 (Tenn. 2010). When determining guilt in the
trial court, pursuant to Tennessee Code Annotated section 29-9-102(3), Husband was
presumed innocent until proven guilty beyond a reasonable doubt. However, on appeal,
Husband loses his presumption of innocence, and we review the trial court’s finding of
criminal contempt for whether there was any reasonable basis upon which the trial court
could have come to a determination of guilt beyond a reasonable doubt. See also, Black
v. Blount, 938 S.W.2d 394, 399 (Tenn. 1996); Tenn. R. App. P. 13(e). Tennessee Code
Annotated section 29-9-102 sets forth the scope of a court’s power to hold a person in
civil or criminal contempt:
The power of the several courts to issue attachments, and inflict
punishments for contempts of court, shall not be construed to extend to any
except the following cases:
(1) The willful misbehavior of any person in the presence of the court,
or so near thereto as to obstruct the administration of justice;
(2) The willful misbehavior of any of the officers of such courts, in their
official transactions;
32
(3) The willful disobedience of any officers of the such courts, party,
juror, witness, or any other person, to any lawful writ, process, order,
rule, decree, or command of such courts;
(4) Abuse of, or unlawful interference with, the process or
proceedings of the court;
(5) Willfully conversing with jurors in relation to the merits of the cause
of the trial of which they are engaged, or otherwise tampering with them; or
(6) Any other act or omission declared a contempt by law.
(Emphasis added.)
PROOF OF CRIMINAL CONTEMPT
The following is an analysis of the trial court’s findings on the merits of the 19
counts of criminal contempt against Husband.
A. 939 Rasco and 891 Rasco (Counts 1, 2, and 3)
The trial court’s first three findings of contempt against Husband relate to his
purchase of real estate in violation of the mandatory injunctions imposed by Tennessee
Code Annotated section 36-4-106(d)44 and what the court found to be Husband’s
deliberate attempts to conceal assets from Wife and the court. The trial court detailed its
findings on these matters as follows:
Husband was served with Wife’s Complaint for Absolute Divorce on
August 16, 2013. In violation of the statutory injunctions that went into
effect when Husband was served, Husband paid $198,277.59 on August 27,
2016 to purchase 939 Rasco Road.
In Interrogatory Number 9, Husband was asked to identify all real property
in which he had an interest. Husband identified 870 Rasco Road, however,
44
The temporary mandatory injunctions imposed by Tennessee Code Annotated section 36-4-106(d) go
into effect against both parties at the time of the filing and service of a petition for divorce. Among the
injunctions listed in this section is “[a]n 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.” Tenn. Code Ann. 36-4-
106(d)(1)(A).
33
Husband did not identify 939 or 891 Rasco Road. Husband claimed that
the parcel numbers for these properties were buried in the exhibits to his
Interrogatory Answers, however, there is no dispute that neither 939 nor
891 Rasco were identified by address.
Husband attempted to defend himself at trial by claiming that 939 and 891
Rasco were discussed in Husband’s deposition. A closer look at Husband’s
deposition reveals that (a) 939 and 891 Rasco were only discussed in
Husband’s deposition after counsel for Wife confronted Husband about
their omission, and (b) Husband wanted Wife and Wife’s counsel to believe
that “Hamilton Center Rasco Road” included all of his Rasco properties.
That is important when it comes to Husband’s September 2015 disclosure.
....
On September 22, 2015, this Court entered an Order. Paragraph One of
that Order provided as follows:
The Court orders the parties to file, under oath, by September
25, 2015, a physical description of each property, the value
placed by each party on the property or entity, if the property
has been appraised, the name of the appraiser, when the
appraisal was made and the appraisal value disclosed.
....
Trial Exhibit 45 reflects that, in response to this Court’s September 22,
2015 Order, Husband simply disclosed “Hamilton Storage – Rasco Road.”
Husband also indicated in his disclosure that “Hamilton Storage – Rasco
Road” had been appraised for $785,000. Husband contended at the divorce
trial that the entry of “Hamilton Storage – Rasco Road” at the value of
$785,000 included all of his Rasco Road properties. As evidenced by his
April 2015 deposition testimony, the Court has no question that this is
precisely what Husband hoped Wife would believe. Yet, there is also no
question that this is simply not true.
When Husband tendered Trial Exhibit 45, he had only appraised 870 Rasco
Road. . . . 870 Rasco Road was appraised for $785,000. Contrary to
Husband’s sworn testimony of October 14, 2016, the $785,000 appraisal of
870 Rasco Road did not include 939 Rasco Road, nor did it include 891
Rasco Road. The $785,000 value was strictly for 870 Rasco Road.
34
Husband failed completely to identify both 939 Rasco Road and 891 Rasco
Road in his September 2015 Court Ordered disclosure. Rather, he hoped
that Wife and the Court would buy his April 2015 deposition testimony that
939 and 891 Rasco were included in the appraised value of 870 Rasco.
Once again, the facts belie Mr. Trezevant’s testimony.
After Wife filed her October 14, 2014 Petition for Contempt, Husband
finally had 939 Rasco and 891 Rasco appraised. . . . 939 Rasco was
appraised for $200,000. 891 Rasco was appraised for $145,000.
At trial, Husband had the audacity to blame Wife and Wife’s counsel for
his own failure to omit 939 Rasco and 891 Rasco . . . . This Honorable
Court expressly finds that Husband’s purchase of 939 Rasco on August 27,
2013 was in willful violation of the statutory injunctions. This constitutes
one count of criminal contempt.
This Honorable Court further finds that Husband’s failure to disclose (and
purposeful attempt to conceal) his interest in and to 939 and 891 Rasco
Road, were in willful violation of the September 22, 2015 Order. This
constitutes two additional counts of criminal contempt.
(Internal citations omitted.)
Husband makes virtually no argument on appeal regarding the merits of Count 1
of contempt, in which the court found that he violated the mandatory injunction contained
in Tennessee Code Annotated section 36-4-106(d) by purchasing real estate after being
served with the divorce complaint and notice of injunctions. Regarding Counts 2 and 3,
which relate to Husband’s disclosure of his interest in 939 and 891 Rasco, Husband
asserts that these convictions “reveal no willfulness on Husband’s part.” He goes on to
argue that the full identities of these properties were eventually disclosed in the course of
trial, apparently implying that where there is no harm there is no foul.
The trial court, however, made the specific findings of fact set forth above that
support the allegation that Husband’s failure to disclose the full value of the “Hamilton
Center – Rasco Road” properties constituted deliberate attempts on more than one
occasion to conceal this information from Wife and the court. Our review of the record
does not preponderate against these findings. We also reject Husband’s suggestion that
his contemptuous behavior is negated in some way by the fact that Wife eventually
discovered the true nature of the Rasco Road properties and brought it to the court’s
attention. We affirm Husband’s convictions on Counts 1, 2, and 3.
35
Barb. 57 W. Virginia (Count 4)
The trial court held Husband in criminal contempt on Count 4 based on his failure
to disclose one of the two parcels that comprise the property known as “57 W. Virginia.”
The court found as follows with regard to Count 4:
Wife alleged in her October 14, 2015 Petition for Contempt that Husband
had only appraised one of the two parcels which make up 57 W. Virginia.
Lot 1, which ends in Parcel #0008 was revealed and appraised. Lot 2,
which ends in Parcel #0010 had not been revealed or appraised. Only after
Wife filed her Petition for Contempt did Husband have the Parcel ending in
#0010 appraised. That appraisal was effective August 30, 2016, and the
report was dated September 7, 2016.
Husband’s failure to identify the full property constitutes another willful
violation of the September 22, 2015 Order. This brings Husband’s overall
total thus far to four counts.
(Internal citations omitted.)
On appeal, Husband makes the same arguments relative to Count 4 that he made
with respect to Counts 2 and 3. In particular, Husband asserts that there is not proof
beyond a reasonable doubt that his failure to disclose parcel #0010 was willful.
However, the standard on which we review the trial court’s determination of criminal
contempt is not whether we would find Husband guilty of this count beyond a reasonable
doubt. Rather, it is whether there is any basis upon which the trier of fact could have
done so. Based upon our review of the record, including the multiple other instances in
which the trial court found that Husband was attempting to conceal assets, we determine
that there is sufficient evidence upon which a trier of fact could have found Husband’s
failure to have the full value of 57 W. Virginia appraised was willful. We therefore
affirm the trial court’s finding of contempt against Husband on Count 4.
C. 75 W. Virginia (Count 5)
The trial court found Husband guilty of Count 5 of criminal contempt because he
did not disclose his ownership interest in the property known as “75 W. Virginia.” On
appeal, as he did at trial, Husband contends that he did not willfully fail to disclose this
property. Rather, according to Husband, his sister and his business partner were the
actual owners of 75 W. Virginia, and Husband did not invest any marital money into the
property. The trial court found this explanation by Husband to be “outrageously false”
and “intended solely to deceive this Honorable Court.” In holding Husband guilty of
36
criminal contempt for failing to disclose his interest in 75 W. Virginia, the trial court
found the following:
At trial, counsel for Wife asked Husband about when he acquired 75
W. Virginia. Husband had the unmitigated gall to respond by stating that
counsel for Wife was “misleading the Courts” because he did not acquire
75 W. Virginia.
Husband attempted to suggest that he did not learn that he had an
interest in 75 W. Virginia until his sister came to testify at the divorce trial.
This is so patently false, it is offensive to the Court. First . . . Husband’s
sister never mentioned 75 W. Virginia by name. In fact, she testified that
she had no idea what became of the $15,000 that she allegedly gave to
Husband to invest (but also allegedly paid herself back out of their mother’s
estate). Moreover, Husband had already sworn in his August 30, 2016
discovery supplement that he had acquired an interest in 75 W. Virginia.
Trial Exhibit 51 reflects that the Quitclaim Deed for the acquisition of 75
W. Virginia was sent directly to Husband’s property at 7092 Poplar
Avenue.
This Honorable Court adopts and incorporates its entire discussion
regarding 75 W. Virginia from the “Separate Property” Section hereinabove
as if copied herein verbatim.45 There is absolutely no question that
Husband failed to disclose this property in response to the September 22,
2015 Order. This constitutes another count of criminal contempt. This
brings Husband’s overall total thus far to five counts.
(Internal citations omitted.)
Again, Husband makes a conclusory assertion on appeal that this count of
contempt against him should be reversed because there is no proof that his failure to
disclose 75 W. Virginia was “willful.” On the other hand, the trial court explained its
findings regarding 75 W. Virginia in substantial detail and concluded that “Husband’s
testimony regarding 75 W. Virginia was emblematic of Husband’s overall disregard for
his sworn oath.” The record does not preponderate against the trial court’s findings on
this count, and there is ample evidence by which a trier of fact could find Husband guilty
of contempt for his nondisclosure of 75 W. Virginia. We affirm Count 5 of criminal
contempt against Husband.
45
In the “Separate Property” portion of the Final Decree, the trial court articulated its reasons for rejecting
Husband’s contention any interest he owned in 75 W. Virginia was his separate property, including the
conflicting testimony of Husband and Husband’s sister regarding the acquisition of the property.
37
D. Abbington Center (Count 6)
Count 6 of criminal contempt against Husband relates to another instance in which
the trial court determined that Husband violated the statutory injunctions found in
Tennessee Code Annotated section 36-4-106(d) by purchasing, buying, or selling real
estate after being served with the divorce complaint and notice of injunctions:
Abbington Center conveyed property to the State of Tennessee in exchange
for $30,000. Husband did not seek Court approval prior to doing so, nor
timely inform the Court or Ms. Trezevant of same, which is yet another
violation of the statutory injunction. This brings Husband’s overall total
thus far to six counts.
(Internal citations omitted.)
Husband does not appear to make any substantive argument that this count should
be reversed on the merits other than his general argument that his criminal contempt
convictions should be reversed for lack of proof. Our review of the record supports the
trial court’s conclusion that Husband violated the injunction in Tennessee Code
Annotated section 36-4-106(d) with respect to the Abbington Center transaction.46 We
affirm Count 6 of criminal contempt against Husband.
E. Shops of Southaven (Counts 7 and 8)
The trial court found Husband guilty of criminal contempt in Count 7 and Count 8
for his involvement in the sale of property known as “Lot 2” of the “Shops of
Southaven.” The trial court explained its findings related thereto as follows:
Husband has a one-third ownership interest in Goodman Malone.
Goodman Malone owns the real estate known as The Shops of Southaven.
Husband had the Shops of Southaven appraised in June of 2015. That
appraisal reflects that 7.773 acres were appraised at $3,150,000, and that
Husband’s one-third was appraised for $735,000. Husband admitted that
this June 2015 appraisal included only Lot 1. The appraisal did not include
Lot 2, which constituted 0.08 acres, and Lot 4, which included 2.1 acres.
Despite that the Shops of Southaven appraisal was incomplete, Husband
used the $735,000 value in his disclosure pursuant to the September 22,
46
Although it is not directly addressed by the parties on appeal or by the trial court in its Final Decree,
“Abbington Center” appears in the record to be a business enterprise under Husband’s ownership and
control.
38
2015 Order. Wife thus raised these issues in her October 14, 2015 Petition
for Contempt. Only after Wife filed the Petition did Husband have the
remainder of the Shops of Southaven appraised, on November 20, 2015.
However, by the time that the Shops of Southaven were re-appraised in
November of 2015, Lot 2 had already been sold by Goodman Malone. Lot
2 was sold on July of 2015. Husband attempted to suggest that because he
was only a one-third owner, the other two partners sold the property
without his blessing. This is precisely what Husband wanted Wife and this
Court to believe. However, Trial Exhibit 259 told the actual story.
Trial Exhibit 259 was a May 19, 2015 email from Husband to attorney,
Neal Graham at Harris Shelton, regarding the sale of Lot 2. Husband
instructed Graham to strike through his name on the contract, and replace it
with the other two partners’ names. Husband explained in that email that
he couldn’t sell the property because of the divorce, but since Husband only
owned 33% of Goodman Malone, the other 66% “can do whatever they
want without my permission.” Husband then expressed his approval of the
terms. Then, Husband stated that “after the divorce is finalized, I’d like to
be paid a standard commission of 6% on the sales proceeds after the
detention area is resolved.”
Trial Exhibit 259 is the proverbial smoking gun, and it refutes
Husband’s sworn testimony entirely. Not only did Husband authorize
the sale of Lot 2, he orchestrated the cover-up . . . .
Husband’s part in the sale of Lot 2 was in willful violation of the statutory
injunctions. It was also a willful violation of this Court’s December 16,
2013 Order, which enjoined Husband from “entering into any contracts to
sell real estate or business without first obtaining [Wife’s] approval or
Court approval.” As such, this constitutes another count of criminal
contempt. Husband’s failure to disclose the sale constituted another willful
violation of this Court’s September 22, 2015 Order. That constitutes yet
another count of criminal contempt. This brings Husband’s total thus far to
eight counts.
(Emphasis added) (internal citations omitted).
Regarding Count 7, in which the trial court determined that Husband willfully
violated the statutory injunctions and the court’s December 16, 2013 order by selling Lot
2 of the Shops of Southaven without approval, Husband continues to assert on appeal that
39
he is not guilty on this count because his business partners were the ones who actually
signed the closing documents for the sale of Lot 2. However, the trial court went into
careful detail to explain its finding that Husband not only arranged for the sale of Lot 2,
he also “orchestrated the cover-up” by expressing his approval of the terms of the sale
and then having his lawyer strike through his name and replace it with his partners’
names. We reject any contention that Husband may circumvent orders of the trial court
by using his partners to violate the injunctions on his behalf. We affirm the trial court’s
findings with respect to Count 7 of criminal contempt.
Count 8 relates to the same set of facts, but the court found Husband guilty of an
additional count of criminal contempt for failing to disclose the sale of Lot 2 in violation
of the court’s order entered September 22, 2015. Husband argues that this conviction
was in error because the plain language of the September 2015 order did not require him
to disclose the sale of any property. The order did, however, require “the parties to file,
under oath by September 25, 2015, a physical description of each property, the value
placed by each party on the property or [entities], if the property has been appraised, the
name of the appraiser, when the appraisal was made and the appraisal value disclosed.”
Furthermore, the title of the court’s order was “Order Granting Plaintiff’s Motion to
Require Parties to Provide Information to the Court as to Certain Facts Surrounding Each
and Every Piece of Real Estate and Entity Owned by the Parties.” In reviewing the order
alleged to have been violated, we take into account not only the language of the order but
also “the circumstances surrounding the issuance of the order, including the audience to
whom the order is addressed.” Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth.,
249 S.W.3d 346, 354 (Tenn. 2008). Our review of the circumstances surrounding the
issuance of this order and violation of this order supports the trial court’s conclusion that
Husband may be found guilty of contempt for failing to disclose the sale of Lot 2.
Despite Husband’s assertions to the contrary, the trial court reasonably concluded that
Husband orchestrated the sale of Lot 2 by a company in which Husband owned an
interest. We determine that the trial court had a sufficient basis upon which to find
Husband guilty of Count 8 of criminal contempt.
F. Olivia’s Square (Count 9)
Count 9 of criminal contempt against Husband relates to another finding by the
trial court that Husband willfully violated the September 22, 2015 order of the court
requiring the parties to provide information, including appraisal values, for properties
owned by the parties. With respect to this count of contempt, the trial court held as
follows:
Husband had Olivia’s square appraised in June of 2015. Husband caused
only 3.24 acres (otherwise known as Lot 9) to be appraised in conjunction
40
with the Olivia’s Square appraisal. Those 3.24 acres were appraised for
$2,845,000. As such, in response to this Court’s Order of September 22,
2015, Husband reflected that the full value of Olivia’s Square was
$2,845,000.
However, the June 2015 appraisal of Olivia’s Square did not include Lot 8.
The tax assessor indicated that Lot 8 had a value of its own of $131,495.
Husband’s failure to disclose Lot 8 constituted a willful violation of this
Court’s September 22, 2015 Order. That constitutes yet another count of
criminal contempt. This brings Husband’s total thus far to nine counts.
(Internal citations omitted.)
Husband asserts that there is insufficient proof to sustain the conviction against
Husband for Count 9 of criminal contempt. More particularly, he contends that he did
not intentionally withhold the valuation of Lot 8 from the Court. To support this
contention, Husband points to the testimony of Rip Walker, the appraiser for the
property, who testified that he had previously done an appraisal for this property at the
request of a bank, and that the bank did not want Lot 8 to be included in the appraisal.
Husband also directs this Court to the testimony of his assistant, Cheryl Middleton, in
which Ms. Middleton asserts that this information was not intentionally withheld from
Wife.
However, the trial court heard the testimony of Mr. Walker and Ms. Middleton in
person at trial and still came to the conclusion that Husband willfully violated the court’s
order requiring him to disclose all information regarding, among other things, the
Olivia’s Square property. This is consistent with several other findings of the court in
which it determined that Husband failed to have entire properties appraised but provided
the incomplete appraisal to the court as though it reflected the entire value of the
property. In our view of the record, the trial court had a sufficient basis to find Husband
willfully violated its September 22, 2015 order by willfully failing to disclose the entire
value of Olivia’s Square. We, therefore, affirm Count 8 of criminal contempt against
Husband.
G. Cayman National Bank (Count 10)
Husband next argues that the trial court erred in finding him guilty of criminal
contempt for not producing information related to his Cayman Island business affairs as
had been previously ordered by the court. On this issue, the trial court found as follows:
41
Paragraphs One through Five of this Court’s Order of September 22, 2015
provided detailed requirements for Husband to produce documentation
regarding his Cayman Island loans and payment since January 1, 2012.
Those documents were actually ordered to be produced to counsel for Wife
by September 22, 2015. As of October 14, 2015, Husband still had not
produced same. As such, Wife was required to file a Petition for Contempt
to secure performance. Husband’s failure to produce the documentation by
September 22, 2015 as ordered constitutes another count of criminal
contempt. This brings Husband’s total thus far to ten counts.
(Internal citations omitted.)
Husband’s defense to this charge on appeal is essentially that, because Wife
eventually was given all of the information to which she was entitled, albeit after she was
forced to file a motion for contempt, he should not be held accountable for failing to
abide by the court’s order. Husband does not provide any explanation as to why, once
again, he failed to comply with an order of the court until after Wife filed a petition for
contempt. According to Husband, the court could not infer that this failure to produce the
requested information was willful on his part. We disagree. The record contains
adequate evidence upon which the trial court could determine that, in light of Husband’s
pattern of contemptuous behavior, he willfully violated the court’s September 22, 2015
order by not producing the court-ordered information. We affirm the trial court’s finding
on Count 10 of criminal contempt.
H. Company Emails (Count 11)
On August 14, 2014, Wife filed a motion to compel Husband to reinstate Wife’s
administrative authorization privileges to access company email accounts at Trezevant
Enterprises, Inc. and any related entities. Husband, who was representing himself at the
time, opposed Wife’s motion, stating in part that “Wife has never had administrative
authorization privileges to any business email account for [Trezevant] Enterprises, Inc. or
any other business Husband is associated with.” Husband even went so far as to say that
Wife’s suggestion that she had access to business emails in the past was “another attempt
by Wife to imply facts that don’t exist or misstate the truth.”
By order entered on September 22, 2015, the trial court granted Wife’s motion and
required Husband to do the following:
[Husband] is to allow [Wife] . . . access to all emails not covered by
attorney/client privilege or other privilege since the date the divorce was
filed; arrangements are to be made between counsel for this to take place
42
and to insure the integrity of the emails; in the event the parties cannot
agree, the matter shall be submitted to this Court and this Court shall then
set up appropriate guidelines.
In the Final Decree, the court held Husband in contempt for willfully failing to restore
Wife’s access to her business email account:
The September 22, 2015 Order obligated Husband to allow Wife “access to
all emails pertaining to the companies and entities since the date the divorce
was filed.” Husband testified as follows during the trial.
“Mr. Moscovitz, she never had e-mail – she never had business email. . . .
Kisha had kisha@aol.com. She’s never had access to e-mails, period.”
Once again, documentary evidence presented at trial revealed that
Husband’s testimony in this regard was simply not correct. Trial Exhibit
261 was an email from Husband to Wife, dated August 21, 2013. The
subject line was entitled “kisha@trezevant.com.” In the body of the
email, Husband informed Wife that she had “been removed to use the
above address.”
Husband’s failure to restore Wife’s email access was in willful violation of
the September 22, 2015 Order. This constitutes another count of criminal
contempt. This brings Husband’s total thus far to eleven counts.
(Internal citations omitted) (emphasis added).
On appeal, Husband argues that the order of the court was not clear enough for
him to be held in contempt for not allowing Wife access to her email accounts. However,
as we have previously stated, “[o]rders alleged to have been violated should be construed
using an objective standard that takes into account both the language of the order and the
circumstances surrounding the issuance of the order, including the audience to whom the
order is addressed.” Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249
S.W.3d 346, 354 (Tenn. 2008). Given the nature of the petition filed by Wife and the
record of proceedings surrounding the trial court’s order, including Husband’s incorrect
assertion that Wife had no work email account, the court’s order was sufficiently clear for
Husband to have known that he was required to restore Wife’s access to her email.
Given this, we cannot disagree with the trial court’s finding of contempt. We affirm the
trial court’s finding of contempt against Husband on Count 11.
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I. Life Insurance (Count 12)
During the pendency of the divorce proceedings, Wife learned that Husband
maintained a $500,000.00 life insurance policy on his life, which was payable to the
parties’ daughters upon his death. On September 22, 2015, the court granted Wife’s
motion to require Husband to either change the beneficiary designation to Wife on this
policy or to purchase a comparable policy naming Wife as the beneficiary of the new
policy.47 Husband apparently did not comply with this order of the court, and the trial
court found as follows:
The September 22, 2015 Order likewise required Husband to designate
Wife as the beneficiary of $500,000 worth of life insurance on Husband’s
life, or alternatively to buy a comparable policy. The Order required
Husband to accomplish the same within thirty days of August 28, 2015.
Husband stated repeatedly at trial that he provided this policy to counsel for
Wife in court, on September 12, 2016, at the commencement of this divorce
trial. However, the folder that Husband provided to counsel for Wife on
September 12, 2016 was marked into evidence. That folder contained
Husband’s hand written note that Husband was “missing new life insurance
policy,” and that Husband “will provide at contempt hearing.”
It does appear that, on the second day of trial, Mr. Fishman handed the
Court a policy of life insurance for $500,000, with an effective date of
February 22, 2016. That policy appears to have been marked as Trial
Exhibit 70.
As this Court pointed out at trial, Husband was ordered to have this policy
by September 27, 2015. Apparently, Husband did not procure this policy
until February 22, 2016. Husband’s failure to timely secure this insurance
constitutes another count of criminal contempt. This brings Husband’s
total thus far to twelve counts.
(Internal citations omitted.)
Husband asserts that there is insufficient proof to sustain a conviction for criminal
contempt against him on this count. According to Husband, “the trial court heard only
the arguments of counsel and no testimony from any witnesses about the status of
Husband’s life insurance policies. Without any competent proof that Husband violated
47
The Order was entered nunc pro tunc to August 28, 2015.
44
this Order, this conviction should be overturned.” In support of his argument, Husband
cites the case of State v. Henretta, 325 S.W.3d 112, 131 (Tenn. 2010), for the proposition
that the arguments of counsel do not constitute proof. However, Trial Exhibit 70 was the
$500,000.00 life insurance policy submitted by Husband’s counsel to the court on the
second day of trial. This policy showed an effective date of February 22, 2016, although
Husband had been ordered to procure this policy by September 27, 2015. In fact,
Husband does not even argue on appeal that he did actually comply with the court’s order
and properly secure a life insurance policy for the benefit of his Wife within the required
time frame. There is sufficient evidence in the record to support the trial court’s finding
of contempt on this issue, and we therefore affirm the trial court’s finding of Husband’s
guilt as to count Count 12.
K. False Representation Regarding Amount of Taxes Owed (Count 13)
Count 13 of criminal contempt against Husband is another one of several counts of
contempt related to what the trial court found to be Husband’s intentional
misrepresentations to the court throughout the divorce proceedings. Count 13 deals
specifically with Husband’s requests of the court to allow him to encroach into funds held
in escrow for the purposes of paying the parties’ property taxes. The court eventually
determined that, not only was Husband misleading the court about the amount of taxes
owed, he was also simultaneously concealing substantial assets that could have been used
to pay these taxes. In the Final Decree, the trial court detailed the following findings
related to Count 13:
On December 4, 2015, Husband filed a Motion with this Court. Husband
alleged in Paragraph One of that Motion that real estate taxes will be due
and owing on the parties’ properties in excess of $600,000 on or before
February 1, 2016. Husband submitted an Affidavit, wherein he swore
under oath that the allegations in that Motion were accurate.
Husband appeared in Court on December 15, 2015 regarding this Motion.
At that hearing (and under oath), Husband plainly and unequivocally
testified as follows. “I have $600,000 in property taxes due.” Husband
spoke of urgent and dire consequences if he was not allowed access to the
funds held in his attorney’s escrow account.
The Court expressly finds that Husband’s sworn statements in the Motion
and in open Court were not accurate. Wife incurred considerable attorney
fees for her attorney to investigate Husband’s sworn claims. Wife’s
counsel concluded that the unpaid portion of the taxes was only
$215,998.83, approximately $384,000 less than Husband had represented to
45
the Court.
Mr. Dilley, Husband’s auditor, did not know, nor was he informed, that
Husband had already paid $440,000 in real estate taxes in the final quarter
of 2015. He learned that in Court on February 5, 2016. So, the Court
instructed Mr. Dilley to investigate this issue further. On February 25,
2016, Mr. Dilley confirmed in a letter that Wife’s counsel was correct.
That letter stated, in pertinent part, that “[t]he above unpaid amount of
$215,998.83 agrees exactly to the unpaid amount provided by [Wife’s]
attorneys.” He further discovered information on two bank accounts,
neither of which were provided to him earlier, from which the taxes were
paid.
The proof further reflected that, at this very same time, Husband had over
$411,000 deposited in the Cayman Islands. Husband failed to disclose
those funds until August 30, 2016. Mr. Dilley testified that he did not
know about this $411,000 in February 2016, but that he would have wanted
to know this before coming to court on Husband’s behalf on the issue of
taxes in February 2016.
This Honorable Court expressly finds that Husband attempted to deceive
this Honorable Court with respect to the alleged amount of taxes owed, as
well as bank accounts and monies on deposit. As such, this Honorable
Court believes that the same constitutes another count of contempt. This
brings Husband’s total thus far to thirteen counts.
(Internal citations omitted.)
On appeal, Husband asserts that the trial court erred in holding him in contempt on
Counts 13, 14, 15, 16 17, and 18, which are all generally based on Husband’s intentional
misrepresentations to the trial court. Husband argues that “[m]aking a false statement to
a court, by itself, is not sufficient to sustain a conviction for criminal contempt.” In
support of this proposition, Husband cites to the case of Maples v. State, 565 S.W.2d 202,
204 (Tenn. 1978). While true, this statement cannot be considered in a vacuum. The
Maples court did not hold that a misrepresentation to a court cannot be the basis for
criminal contempt. Id.
In Maples, a husband admittedly instituted fraudulent divorce proceedings by
lying about the county in which his wife resided. Maples, 565 S.W.2d at 202. The
husband filed a complaint for divorce in Union County, Tennessee, wherein he made
sworn allegations that his wife was a resident of that county. Id. The husband then
46
testified at an oral hearing that his wife was a resident of Union County. Id. He was
eventually awarded a divorce. Id. The husband’s ex-wife subsequently died, and the
husband filed a petition pursuant to the Tennessee Rule of Civil Procedure 60, requesting
that the court set aside the divorce decree because it had been based on his false
testimony that he and his wife were residing in Union County at the time. Id. The trial
court did set aside the divorce, but it also found the husband guilty of contempt of court
for committing fraud upon the court. Id. Husband was later indicted on a charge of
perjury based on his false testimony at the divorce hearing. Id. at 203. The Tennessee
Supreme Court was then required to determine whether husband’s charges of criminal
contempt and perjury, which were based on the same false testimony at the divorce
hearing, violated the constitutional prohibition against double jeopardy. Id. The Maples
court held that, in light of the facts of the case at hand, a summary criminal contempt
finding did not prevent criminal prosecution for perjury based on the same conduct under
principles of double jeopardy. Id. at 204.
Returning to Husband’s contention that false statements alone are not sufficient
for a finding of contempt, the Maples court did distinguish the charge of perjury from
criminal contempt by noting that contempt requires an additional element of obstruction
of justice or interference with the process of the court. Id. Based the volumes upon
volumes of pleadings and transcripts of hearings in this case devoted to clearing up the
confusion caused by Husband’s misrepresentations of the contents and value of the
parties’ estate, we conclude that there is sufficient proof that Husband’s misconduct
hindered and obstructed the court in its administration of justice. We affirm Count 13 of
criminal contempt against Husband.
L. False Financial Statements (Counts 14, 15, 16, and 17)
The trial court also found Husband guilty of four additional counts of criminal
contempt for “deliberately misrepresent[ing]” his domestic net worth to the court on four
separate occasions. On these misrepresentations, the trial court found as follows:
Trial Exhibit 73 reflects that, during these divorce proceedings, Husband
provided markedly different financial statements to the Court than he was
providing to his lenders. Again, that Trial Exhibit is summarized as follows
(which, again, excludes the Cayman Island properties)
DATE TO WHOM NET
SUBMITTED WORTH
9/1/2013 Court $9,595,290.17
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12/31/2013 Bank $31,085,430.05
3/10/2014 Court $7,623,160.30
1/31/2015 Bank $25,196,030.32
6/28/2015 Court $8,653,178.33
8/01/2015 Bank $25,901,640.28
8/31/2015 Court $11,072,911.98
This Honorable Court expressly finds that Husband deliberately
misrepresented his domestic net worth to this Court on September 1, 2013,
March 10, 2014, June 28, 2015, and again on August 31, 2015. That
constitutes four additional counts of criminal contempt. That brings
Husband’s total thus far to seventeen counts.
(Internal citations omitted.)
Husband asserts that he cannot be held in contempt based on the trial court’s
findings for Counts 14-17 because they concerned only Husband’s opinions of his net
worth. According to Husband, because an opinion is not a statement of fact, it cannot
form the basis for a finding of criminal contempt against him. Husband fails to cite any
law to support this assertion other than a 1972 case about equitable estoppel. See Ryan v.
Lumbermen’s Mut. Cas. Co., 485 S.W.2d 548, 550-51 (Tenn. 1972) (noting that
“ordinarily misrepresentations of law, being nothing more than opinions of the person
making them, cannot be the basis of an equitable estoppel.”). Furthermore, the trial court
did not find Husband to be in criminal contempt for accidentally miscalculating his net
worth or giving a mistaken opinion that was made in good faith. Rather, the court
determined that Husband made a deliberate choice to undervalue his net worth in his
representations to the trial court. In our view of the record, the evidence does not
preponderate against the trial court’s findings on this point.
Husband also reasserts the same argument that he made with respect to Count 13,
in that his misrepresentations did not hinder the trial process. For the same reasons we
explained in our analysis of Count 13, we reject this contention with respect to Counts
14, 15, 16, and 17, and hold that the trial court had ample basis to determine that
Husband’s deliberate misrepresentations to the court obstructed the court’s ability to
carry out its duties and detracted from the authority of the court. We affirm the trial
court’s findings of criminal contempt against Husband for Count 14, Count 15, Count 16
and Count 17.
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M. Misrepresenting Holdings to the Court (Count 18)
Husband next asserts that this Court should reverse the trial court’s finding of
criminal contempt against him on Count 18. Finding that Husband again made a
deliberate misrepresentation to the court, the trial court held the following:
In his effort to deceive the Court into releasing $384,000 for taxes that have
already been paid, Husband caused Mr. Dilley to prepare a report which
Husband submitted to the Court. That report revealed that Mr. Dilley was
not aware of Husband’s bank accounts at SecurTrust Federal Credit Union
and Sycamore Bank. Mr. Dilley was not aware of those accounts until he
did research for the letter requested by the Court.
Trial Exhibit 75 demonstrates that Husband falsely represented his financial
condition in an attempt to secure funds. This is, in turn, an additional count
of contempt. This brings Husband’s total thus far to eighteen (18) counts of
criminal contempt.
(Internal citations omitted.)
Husband argues that Count 18 of contempt should be reversed for the same
reasons he gave related to Count 13. We reject those arguments with respect to Count 18
on the same bases outlined in our analysis of Count 13 above. Moreover, Husband
contends that Count 18 of criminal contempt should be reversed because it is duplicative
of Count 13. However, in our view, Husband committed two separate acts that constitute
contempt. There is evidence to support a finding that he lied about the amount of taxes
that were due on the parties’ real property, including concealing information from his
auditor. There is also sufficient evidence that Husband intentionally withheld
information that he had approximately $411,000.00 in a Cayman Island account at the
same time he represented to the court that he was in dire need of money to pay these
taxes. Husband’s actions in this regard are sufficient to form the basis for both Count 13
and Count 18 of criminal contempt. We affirm the trial court’s findings on Count 18.
N. 305 Kisha Condominium Complex (Count 19)
On September 19, 2014, the trial court entered a consent order granting Wife’s
petition for civil and criminal contempt against Husband. Therein, Husband agreed that
he was in criminal contempt for executing an option and sale agreement for Unit 305 of
the Kisha Condominium complex in the Cayman Islands. He also agreed that he was in
civil contempt for failing to comply with the divorce referee’s order and agreed to make
purge payments in the amount of $290,000.00 and to pay a portion of Wife’s attorney’s
49
fees. The issue of sentencing was reserved. In the Final Decree, the trial court addressed
this contempt finding as follows:
In Paragraph One (1) of this Court’s September 19, 2014 Consent Order,
this Honorable Court found Husband in contempt by virtue of Husband
entering into a Consent order.
Husband does not appear to make any argument on appeal related to the merits of
this contempt finding. We therefore affirm Count 19 of criminal contempt against
Husband.
SENTENCING FOR CRIMINAL CONTEMPT
In addition to Husband’s arguments as to the merits of his convictions, Husband
contends that the trial court committed reversible error by failing to follow the
requirements for sentencing in cases of criminal contempt. According to Tennessee Code
Annotated section 29-9-103: “(a) The punishment for contempt may be by fine or by
imprisonment, or both. (b) Where not otherwise specifically provided, the circuit,
chancery, and appellate courts are limited to a fine of fifty dollars ($50.00), and
imprisonment not exceeding ten (10) days . . .” The trial court’s determination of
sentencing for Husband’s contempt was as follows:
The Court reserved the sentencing for Husband’s contemptuous execution
of an Option and Sale Agreement for Unit 305 of the Kisha Condominium
Complex. The Court had hoped that a contempt finding with reserved
incarceration would encourage honest dealings and representations to the
Court and counsel in this litigation. Unfortunately, the Court’s indulgence
did nothing to deter Mr. Trezevant. This Court hereby sentences Husband
to serve ten days for criminal contempt as a result of the Petition heard on
September 19, 2014.
In addition to the contempt found above, the Court finds Mr. Trezevant
guilty of 18 additional contemptuous acts as set forth herein. This Court
finds that Mr. Trezevant could be caused to serve 180 days for all 18 counts
of contempt, in addition to the previously reserved 10 day sentence, in the
Shelby County jail, but this Court is cognizant of the fact that Mr.
Trezevant must conduct his business to produce income. However, this
Court finds Mr. Trezevant’s activities to be an example of blatant disregard
for the authority of this Court’s Orders and therefore requiring a substantial
sentence. Apparently, Mr. Trezevant needs further and more stringent
punishment to make an impression upon him. Each incarceration should
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and must be more than the prior one, until Mr. Trezevant understands that
he, and any other litigant who appears in a court of law, must abide by the
orders of that court unless and until a superior court overturns such order.
The total sentence is fifty-five (55) days to be served as follows[:]
Thirty-five (35) days consecutively, including ten (10) days from the
September 2014 contempt and twenty-five days from the remaining 18
contempt findings. The remaining twenty (20) days may be served on the
weekends . . . to report at 6:00 p.m. each Friday through Sunday at 6:00
p.m., for 20 days to complete the 55 day total sentence. If Husband arrives
late, or is refused entrance to the penal farm for any violation, he shall
immediately serve his remaining sentence on consecutive days until
completed.
Husband asserts that the trial court committed reversible error by neglecting to
consider the statutory factors in Tennessee Code Annotated section 40-35-115(b) in its
decision to impose consecutive sentences. The determination of whether to require
Husband to serve his sentences concurrently or consecutively is a matter left to the sound
discretion of the trial court. This Court has addressed that issue fairly recently in the case
of Simpkins v. Simpkins:
As Sneed instructs, we look to the sentencing considerations set forth
in Tennessee Code Annotated § 40-35-103 for guidance, wherein the
General Assembly states:
(1) Sentences involving confinement should be based on the
following considerations:
(A) Confinement is necessary to protect society by restraining
a defendant who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the
seriousness of the offense or confinement is particularly
suited to provide an effective deterrence to others likely to
commit similar offenses; or
(C) Measures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the
defendant;
51
(2) The sentence imposed should be no greater than that
deserved for the offense committed;
(3) Inequalities in sentences that are unrelated to a purpose of
this chapter should be avoided;
(4) The sentence imposed should be the least severe measure
necessary to achieve the purposes for which the sentence is
imposed;
(5) The potential or lack of potential for the rehabilitation or
treatment of the defendant should be considered in
determining the sentence alternative or length of a term to be
imposed. The length of a term of probation may reflect the
length of a treatment or rehabilitation program in which
participation is a condition of the sentence; and
(6) Trial judges are encouraged to use alternatives to
incarceration that include requirements of reparation, victim
compensation, community service or all of these.
Although the record clearly established Husband’s guilt of all fourteen
counts of criminal contempt, that fact alone does not justify the imposition
of the maximum sentence of ten days for each conviction or that all of the
sentences run consecutively to each other for an effective period of
confinement of 140 days. To the contrary, there is a presumption in favor of
concurrent sentencing as distinguished from consecutive sentencing.
See State v. Taylor, 739 S.W.2d 227, 230 (Tenn.1987) (holding that
consecutive sentences should not routinely be imposed in criminal cases
and the aggregate maximum of consecutive terms must be reasonably
related to the severity of the offenses involved). Further, the record
suggests the trial court did not consider the statutory criteria when
determining whether Husband’s multiple sentences should be served
concurrently or consecutively. See Tenn.Code Ann. § 40-35-115(a) (“If a
defendant is convicted of more than one (1) criminal offense, the court shall
order sentences to run consecutively or concurrently as provided by the
criteria in this section.”). Tennessee Code Annotated § 40-35-
115(b) provides that the court may order sentences to run consecutively if
the court finds by a preponderance of the evidence that:
52
(1) The defendant is a professional criminal who has
knowingly devoted the defendant’s life to criminal acts as a
major source of livelihood;
(2) The defendant is an offender whose record of criminal
activity is extensive;
(3) The defendant is a dangerous mentally abnormal person
so declared by a competent psychiatrist who concludes as a
result of an investigation prior to sentencing that the
defendant’s criminal conduct has been characterized by a
pattern of repetitive or compulsive behavior with heedless
indifference to consequences;
(4) The defendant is a dangerous offender whose behavior
indicates little or no regard for human life and no hesitation
about committing a crime in which the risk to human life is
high;
(5) The defendant is convicted of two (2) or more statutory
offenses involving sexual abuse of a minor with consideration
of the aggravating circumstances arising from the relationship
between the defendant and victim or victims, the time span of
defendant’s undetected sexual activity, the nature and scope
of the sexual acts and the extent of the residual, physical and
mental damage to the victim or victims;
(6) The defendant is sentenced for an offense committed
while on probation; or
(7) The defendant is sentenced for criminal contempt.
The only statutory factor that applies to Husband is that he is sentenced for
criminal contempt. While this may justify consecutive sentencing, at least
in part, this factor alone does not justify the imposition of the absolute
maximum sentence of 140 days. As we noted above, “[a]lthough statutory
criteria may support the imposition of consecutive sentences, the overall
length of the sentence must be ‘justly deserved in relation to the seriousness
of the offense[s],’ and ‘no greater than that deserved’ under the
circumstances.” In re Sneed, 302 S.W.3d 825, 828 (Tenn. 2010) (internal
citations omitted).
53
Simpkins v. Simpkins, 374 S.W.3d 413, 423-25 (Tenn. Ct. App. 2012).
We find nothing in the trial court’s order of sentencing that is inconsistent with the
statutory and case law directives outlined above. We acknowledge that there is a
presumption in favor of concurrent sentencing for convictions of criminal contempt. This
Court has the ability to modify a sentence that it considers to be excessive. See Thigpen
v. Thigpen, 874 S.W.2d 51, 54 (Tenn. Ct. App. 1993). For example, in the Simpkins case,
this Court agreed that the evidence was sufficient for a finding of guilt on fourteen
separate counts of criminal contempt. See Simpkins, 372 S.W.3d at 420-21. We
determined, however, that the imposition of the maximum sentence possible was
excessive and modified the sentence for contempt from 140 days to 49 days in jail.
Simpkins, 372 S.W.3d at 425-26. In Burris v. Burris, 512 S.W.3d 239 (Tenn. Ct. App.
2016), the trial court found the appellant guilty of thirty-seven counts of criminal
contempt and ordered that she serve 403 days in jail. This Court vacated that sentence
because the trial court failed to consider whether the sentence was excessive in light of
Simpkins. Burris, 512 S.W.3d at 257-58. However, those cases are distinguishable from
the case at bar. The maximum jail time Husband could have received would have been
190 days. He received less than half of that amount for his egregious behavior articulated
above. We find nothing excessive in this sentence. In fact, Husband never even
articulates why or how the sentence is excessive. Furthermore, in In re A.J., we noted
that:
In creating a consecutive sentence, the trial court relied on the statutory
criteria set out at Tennessee Code Annotated Section 40-35-115(b)(7) that
consecutive sentences may be imposed when a defendant is found guilty of
contempt.
This Court has previously upheld consecutive sentencing when the only
statutory factor present in the case was that the defendant had been
sentenced for contempt.
In re A.J., No. M2014-02287-COA-R3-JV, 2015 WL 6438671, at *4-5 (Tenn. Ct. App.
Oct. 22, 2015) (citing Simpkins, 374 S.W.3d at 425-26) (emphasis added).
Husband also points this Court to statements made by the trial court after the
Order was entered for the proposition that the trial court did not give adequate
consideration to the sentencing criteria. Husband pointed out repeatedly in his brief and
in oral argument that, with respect to other issues he raises on appeal, this Court should
not consider the statements by the trial court that were neither included in the Order nor
incorporated by reference therein. We decline Husband’s attempts to now use post-Order
statements by the trial court in support of his position.
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Husband also states in his brief that the trial court, in its Order, made “only vague
findings as to Husband’s ‘blatant disregard for the authority of this Court’s Orders’ and
that Husband ‘needs further and more stringent punishment to make an impression on
him.’” According to Husband, the trial court’s lack of specificity in determining its
sentence prevents this Court from engaging from any meaningful review of the sentence.
We disagree and find that the history of Husband’s activity in this case provided a
sufficient basis for this finding by the trial court.
We find no abuse of discretion in the trial court’s holding on Husband’s nineteen
counts of criminal contempt and the method and manner of his sentencing thereon.
7. Wife’s Attorney’s Fees on Appeal
Wife has requested that this Court award her attorney’s fees on appeal. The
determination of whether to award attorney’s fees on appeal is within the sole discretion
of the appellate court. Moses v. Moses, E2008-00257-COA-R3-CV, 2009 WL 838105, at
*10 (Tenn. Ct. App. Mar. 31, 2009) (no perm. app. filed) (citing Archer v. Archer, 907
S.W.2d 412, 419 (Tenn. Ct. App. 1995)). After considering Wife’s request, and in light
of the outcome of this appeal, we respectfully decline to do so.
IV. CONCLUSION
For the foregoing reasons, we affirm the trial court’s identification and
classification of marital property, as well as the trial court’s findings and sentencing
related to Husband’s criminal contempt. We vacate the trial court’s valuation and
distribution of the parties’ marital property and awards of alimony. We remand the case
to the trial court for further proceedings consistent with this Opinion. Costs of this appeal
are taxed one-half to the appellee, Kisha Dean Trezevant, and one-half to the appellant,
Stanley H. Trezevant, III, and his surety, for which execution may issue if necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
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