Lori Ann Amacher v. Stanley Dwight Amacher ( 2021 )

01/27/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 2, 2020
LORI ANN AMACHER v. STANLEY DWIGHT AMACHER
Appeal from the Chancery Court for Franklin County
No. 19-796 Melissa T. Blevins-Willis, Judge
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No. M2019-02251-COA-R3-CV
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This is a divorce case. Appellant Wife appeals the trial court’s division of property,
arguing that the court erred in: (1) classifying the appreciation of her separate property as
marital property; (2) excluding from the marital estate certain real property that Husband
transferred to his father; (3) not finding that Husband dissipated the marital estate; and (4)
inequitably dividing the estate. Wife argues that alimony in solido should have been
granted in light of the inequitable division and that she should have been awarded her
attorney’s fees. Wife also requests attorney’s fees incurred in this appeal. We affirm the
trial court’s exclusion of the transferred property from the marital estate. We also
conclude that Wife failed to prove dissipation by a preponderance of the evidence.
However, we vacate the property division and remand for additional findings of fact with
respect to the appreciation of Wife’s separate property, and for a reconsideration of the
property division. The reconsideration of the property division necessitates a
reconsideration of alimony; thus, we vacate the trial court’s denial of alimony in solido
and remand for proceedings consistent with this opinion. We award Wife’s attorney fees
for this appeal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
in Part; Vacated in Part; Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ANDY D. BENNETT, J., joined.
C. Kelly Wilson, Shelbyville, Tennessee, and Thomas F. Bloom, Nashville, Tennessee,
for the appellant, Lori Ann Amacher.
Robert S. Peters, Winchester, Tennessee, for the appellee, Stanley Dwight Amacher.
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
Appellant Lori Ann Amacher (“Wife”) and Appellee Stanley Dwight Amacher
(“Husband”) were married on September 14, 1981. Two children were born to the
marriage, both of whom had reached the age of majority before the filing of the
complaint for divorce.
Less than a year before Husband and Wife married, Husband formed A&M
Corporation (“A&M” or “the Corporation”), a general contracting company that
primarily works in pipeline and utility construction.1 Husband is licensed as a municipal
and utility contractor. Prior to the marriage, Wife completed a program of study at the
Cumberland School of Medical Technology and worked as a lab technician in a hospital
until 1981. She testified that, after the marriage, Husband did not want her to continue
working outside the home so that she could be a stay-at-home mother. Wife did work for
A&M, however, preparing bids, managing payroll, and performing other administrative
tasks. The parties had a good quality of life during their marriage, traveling frequently
and purchasing luxury items, such as a small airplane and a $150,000 Gulfstream coach.
Husband testified that the parties had been living separately for about a year prior
to Wife’s filing for divorce in 2014, and they had lived separately for the five or six years
preceding the trial. During the separation, Husband continued living in the marital home,
a 227-acre farm. He testified that he essentially ended operation of A&M at the end of
the 2014 fiscal year, citing difficulty in obtaining bonds due to the divorce and increased
costs. At the time of the hearing, Husband was farming. Wife purchased a home after
the parties separated. With some contribution from Husband, Wife renovated this
property. Wife’s income is generated by rental properties. The parties’ have a marital
estate of over $2 million dollars.
There were several delays between the filing for divorce and the trial. On Wife’s
motion, the trial court set hearings in February and September 2015 on Husband’s failure
to file full and complete responses to the Interrogatories and his failure to file full and
complete responses to requests for production of documents. The following year, in
September 2016, the trial court appointed a special master to marshal, inventory, and
appraise the parties’ assets; the trial court adopted the special master’s report, which
determined the values of most of the parties’ property. A trial on the divorce complaint
was held on May 9, 2019, at which Husband, Wife, the parties’ son, Josh Amacher, and
expert witness, David Brown, CPA, testified. Husband’s testimony from depositions
1
At the time of incorporation, Husband and Phillip McAfee were each 50% shareholders; after a
short time, the two ended their business relationship, and Husband became the sole shareholder.
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taken in March 2016 and March 2018 was entered into evidence, as was the deposition
testimony of Pam Spencer, bookkeeper for A&M. The parties stipulated that both had
grounds for divorce. The trial court entered its final order on November 25, in which it
awarded Husband: (1) the marital residence, valued at $1.2 million; (2) the $48,000 cash
value of his life insurance policy; and (3) personal property valued at $243,450 to
account for Husbands “premarital investment” in A&M. The Wife received: (1) her
home as separate property, along with its appreciation of $156,000, which the trial court
deemed marital property; (2) rental and commercial properties valued at $275,000; (3)
bank stock valued at $235,000; and (4) assorted vehicles. The trial court ordered
Husband to pay Wife’s health insurance (up to $1,000 per month) as transitional alimony
until March 31, 2020. The trial court denied Wife’s request for alimony in solido,
including attorney’s fees. Wife appeals.
II. ISSUES
Wife raises the following issues for review:
1. Whether the trial court abused its discretion in the division of marital property,
which inequitably favors Husband as well as by[:]
a. improperly classifying the appreciation in value of Wife’s home as marital
property,
b. excluding the Lincoln Road rental property that Husband conveyed to his
father shortly before the divorce, and
c. not deducting Husband’s dissipation of marital property from his share of
the marital estate.
2. Whether the trial court abused its discretion in failing to award alimony to
Wife based upon the statutory factors and in order to render the division of
marital property equitable.
3. Whether the trial court abused its discretion in failing to award attorney’s fees
to Wife based upon her financial need as well as because of Husband’s evasive
and dilatory conduct which increased the cost of litigation.
4. Whether Wife should be awarded attorney’s fees incurred on appeal.
Husband asks that the trial court be affirmed in all respects and raises no additional issues
on appeal.
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III. STANDARD OF REVIEW
Because this case was tried by the trial court, sitting without a jury, we review the
trial court’s findings of fact de novo on the record of the trial court, accompanied by a
presumption of the correctness of these findings, unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d); Kelly v. Kelly, 445 S.W.3d 685, 691-92 (Tenn. 2014).
“For the evidence to preponderate against a trial court’s finding of fact, it must support
another finding of fact with greater convincing effect.” Hardeman Cnty. v. McIntyre,
420 S.W.3d 742, 749 (Tenn. Ct. App. 2013) (citing Watson v. Watson, 196 S.W.3d 695,
701 (Tenn. Ct. App. 2005)). With respect to the trial court’s conclusions of law, our
review is de novo with no presumption of correctness. Kelly, 445 S.W.3d at 692.
IV. ANALYSIS
A. Division of the Marital Estate
Wife raises several issues under the umbrella of property division. We will first
address the question of whether the trial court erred by designating the appreciation of
Wife’s home as marital property.
1. Classification
Tennessee is a “dual property” state because its domestic relations law recognizes
both martial and separate property. Larsen-Ball v. Ball, 301 S.W.3d 228, 231 (Tenn.
2010). Because separate property is not subject to division, in making a property division
in a divorce, the trial court must first classify property as marital or separate property then
divide the marital property equitably. Larsen-Ball, 301 S.W.3d at 231. The
classification of an asset as marital or separate property is a question of fact. Stratienko
v. Stratienko, 529 S.W.3d 389, 398-99 (Tenn. Ct. App. 2017). Accordingly, our review
is de novo with a presumption of correctness unless the evidence preponderates
otherwise. See Tenn. R. App. P. 13(d).
a. The appreciation in the value of Wife’s home
Wife argues that the trial court erred in classifying the appreciation of Wife’s
home on Country Club Drive (“the Country Club home”) as marital, rather than separate,
property.
The appreciation in value of a spouse’s separate property can become marital
property where both spouses have substantially contributed to its preservation and
appreciation. Tenn. Code Ann. § 36-4-121(b)(1)(B). “The contributions may be direct or
indirect, but must be ‘real and significant’” and “there must be some link between the
spouses’ contributions and the appreciation in the value of the separate property.” Keyt v.
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Keyt, 244 S.W.3d 321, 329 (Tenn. 2007). Whether a spouse made substantial
contributions to the preservation and appreciation of separate property is a question of
fact.” Mitts v. Mitts, 39 S.W.3d 142, 145 (Tenn. Ct. App. 2000).
In her list of disputed marital assets, Wife set the value of the Country Club home
at $268,000, and Husband does not dispute this value.2 She purchased the home for
$130,000 in 2015, after the parties separated, and it is titled solely in her name. The trial
court classified the Country Club home as Wife’s separate property because she paid for
it using her separate property; this finding is supported by Wife’s testimony that she
borrowed the purchase price against a certificate of deposit given to her by her father.
See Tenn. Code Ann. § 36-4-121(b)(2)(D); Keyt, 244 S.W.3d at 328 n. 7 (Tenn. 2007).
The evidence does not preponderate against the trial court’s finding that the Country Club
home is Wife’s separate property, and the only issue on appeal is the designation of the
appreciation as marital property.3 Wife used an additional $60,000 of her separate
property to renovate the home,4 for a total investment, by Wife, of $190,000 for the
purchase and improvement of the Country Club home. Wife stated that she hired a
designer and workers to remodel the home. She also offered into evidence a ledger
showing payments, totaling $15,783.41, that Husband made toward the remodeling
expenses. Husband’s testimony was that he “kind of designed” and spent $20,000 toward
the improvements.5
2
In her brief, Wife transposes some of the numbers, listing the value as $286,000. This affects
the computations in her brief.
3
At trial, Husband did not dispute that the Country Club home itself is Wife’s separate property.
Husband testified:
Q. [A]s far as you are concerned, you are not making any claim to that house, except for
the appreciation and the amount that you have put into it; isn’t that right?
A. Right.
On appeal, Husband seems to assert that the entire value of the home is marital property. However, at the
trial level, Husband presented no evidence to dispute that the Country Club home was purchased with
Wife’s separate property. Furthermore, Husband does not raise a specific issue asserting that the entire
value of Country Club home is marital property. As such, we will not address his assertion that the entire
value of the Country Club home is marital property and will address only the classification of the
appreciation on the property. See Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn. 2006) (stating that
“[i]ssues not raised in the trial court cannot be raised for the first time on appeal”); Tenn. R. App. P. 13(b)
(“Review generally will extend only to those issues presented for review.”)
4
This $60,000 was part of Wife’s proceeds from the sale of some duplexes owned by the parties.
Husband and Wife each received $72,000 as their separate property from the sale, and Husband does not
dispute that the parties’ respective proceeds from the sale of the duplexes are separate property.
5
At trial, Husband testified, “I’ve got over $20,000 worth of bills sitting right over there on that
desk,” but those bills were not entered into evidence.
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A trial court’s “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.” Cain-Swope v. Swope, 523 S.W.3d 79, 86
(Tenn. Ct. App. 2016) (citation omitted). The trial court made no findings of fact
regarding the Country Club home in its order. The trial court’s Assets and Liability
Division (Exhibit A to the order) shows appreciation in value of $156,000, which the
court deemed marital property. It is unclear how the court arrived at that specific
number. In addition, the court credited Husband with a contribution of $15,783.00, the
amount of money that he spent on improvements to the Country Club home as
documented by the ledger entered into evidence by Wife; yet, the trial court failed to
credit Wife with the $60,000 in separate property she used in renovating the home.
Furthermore, there is no evidence from which to trace the funds spent by Husband to his
separate property. Regardless of whether the money expended by Husband was marital
or separate property, crediting him with the dollar amount of his contribution, without
subtracting that amount from the appreciation, resulted in a “double-dipping” for the
Husband.
If the trial court fails to explain the factual basis for its decisions, the appellate
court may remand the case with instructions to make the requisite findings of fact and
conclusions of law and enter judgment accordingly. Cain-Swope, 523 S.W.3d at 86. The
trial court made no factual findings to explain its determination that the increase in value
of the Country Club home is marital property; accordingly, we remand for factual
findings and reconsideration of this issue. On remand, the trial court shall: (1) make a
determination of whether both spouses have substantially contributed to the appreciation,
as required by Tennessee Code Annotated § 36-4-121(b)(1)(B); (2) indicate what facts
support that conclusion; (3) determine whether Husband’s financial contribution to the
Country Club home was from marital or separate property; (4) include Wife’s $60,000
expenditure in the analysis; (5) show the basis for determining the appreciation of the
Country Club home; and (6) set forth any other facts underlying its determination as to
whether the appreciation is marital or separate property. To this end, the trial court may
reopen proof.
b. The Lincoln Street Property
We next consider Wife’s argument that certain property that Husband transferred
to his father prior to the Wife’s filing for divorce should be included in the marital estate.
The property, located on West Lincoln Street, consists of three commercial buildings that
are rented for income (“the Lincoln Street property”). Wife characterizes the transfer as a
“sham transaction” because Husband “retained all indicia of ownership;” as such, she
argues that the Lincoln Street property should be classified as marital property.” With
respect to the Lincoln Street property, the trial court found:
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Testimony was also offered relative to a commercial building
located at West Lincoln Street in Tullahoma that Husband’s father held for
30 or more years before he conveyed it to [Husband]. Though this building
was deeded to Husband during the marriage, Husband’s name alone was on
the deed. At the time Husband received the building from his father, he
testified that he had a promissory note with his father but after three years,
he made no payments on the note. Though Wife argued that Husband
deeded the property back to his father due to this divorce proceeding, it
does not negate the appearance that this property was treated as a gift to
Husband from his father. There was insufficient testimony relative to
significant contributions by Wife to this property. Based on the foregoing,
the Court does not find the value of the building to be appropriate for
division.
Husband and Wife both testified regarding the Lincoln Street property.6
According to Husband’s testimony, in or around 2011,7 he purchased the property from
his father, who carried the note for $250,000. In his March 2016 deposition, Husband
testified that he did not make payments on the note; however, at trial, Husband testified
that he paid for one year. When he could not afford to continue payments after losing his
“biggest renter,” Husband deeded the property back to his father. Wife testified that after
Husband transferred the property back to his father, Husband still collected rent, which
he deposited into the account used for Husband’s and Wife’s other rental income. Wife
further stated that Husband paid insurance and property taxes on the Lincoln Street
property. In his March 2016 deposition, Husband testified that he still managed the
property for his father. Husband’s testimony that he managed the property for his father
is consistent with collecting and depositing rental payments and paying insurance and
taxes. Therefore, the evidence, though limited, does not preponderate against the trial
court’s finding that the Lincoln Street property was not part of the marital estate.
Accordingly, we affirm the trial court in this regard and turn to the court’s division of the
marital estate.
2. Division
Marital property must be divided equitably based on the relevant statutory factors,
without regard to fault. See Tenn. Code Ann. § 36-4-121(a)(1).8 A division of marital
6
Husband’s father was not joined as a third party, nor did he testify.
7
Husband testified in the March 2016 deposition that he purchased the property “probably” in the
last five years. He also stated that there was a land sale contract, promissory note, and an amortization
schedule, none of which are in the record. There are no deeds for the property among the several deeds in
the record.
8
The statutory factors, at the time Wife filed for divorce, were:
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property in an equitable manner does not require that the property be divided equally.
Larson-Ball, 301 S.W.3d at 231.9 On appeal, we give “great weight to the trial court’s
division of marital property and are disinclined to disturb the trial court’s decision unless
the distribution lacks proper evidentiary support or results in some error of law or
misapplication of statutory requirements and procedures.” Id. at 234 (quotation marks
and citations omitted). As we have explained:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability, earning
capacity, estate, financial liabilities and financial needs of each of the parties;
(3) The tangible or intangible contribution by one (1) party to the education, training or
increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital assets and income;
(5) (A) The contribution of each party to the acquisition, preservation, appreciation,
depreciation or dissipation of the marital or separate property, including the
contribution of a party to the marriage as homemaker, wage earner or parent, with the
contribution of a party as homemaker or wage earner to be given the same weight if
each party has fulfilled its role;
(B) For purposes of this subdivision (c)(5), dissipation of assets means wasteful
expenditures which reduce the marital property available for equitable distributions
and which are made for a purpose contrary to the marriage either before or after a
complaint for divorce or legal separation has been filed.
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of property is to
become effective;
(9) The tax consequences to each party, costs associated with the reasonably foreseeable
sale of the asset, and other reasonably foreseeable expenses associated with the asset;
(10) The amount of social security benefits available to each spouse; and
(11) Such other factors as are necessary to consider the equities between the parties.
Tenn. Code. Ann. § 36-4-121(c) (2011). Our Supreme Court has “encourage[d] trial courts to
make specific findings of fact with respect to each statutory factor enumerated in Tennessee Code
Annotated section 36-4-121(c) to aid in the disposition of cases on appeal.” Larsen-Ball, 301 S.W.3d at235 n. 4. We respectfully repeat this encouragement.
9
Wife erroneously asserts that “it is presumed that an equal division is an equitable division.”
She cites Bookout v. Bookout, 954 S.W.2d 730 (Tenn. Ct. App. 1997), as support and arguing that “[the]
presumption has not been rebutted in this case.” Respectfully, Wife misinterprets the holding in Bookout.
Contrary to Wife’s position, in Bookout, this Court stated that no such presumption exists:
The appellant argues that there is “a very strong presumption favoring equal division” of
marital assets. . . . We find no such presumption. There is, however a presumption that
marital property is owned equally.
954 S.W.2d at 731.
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[I]t is not our role to tweak the manner in which a trial court has divided the
marital property. Rather, our role is to determine whether the trial court
applied the correct legal standards, whether the manner in which the trial
court weighed the factors in Tenn. Code Ann. § 36-4-121(c) is consistent
with logic and reason, and whether the trial court’s division of the marital
property is equitable.
Owens v. Owens, 241 S.W.3d 478, 490 (Tenn. Ct. App. 2007) (citations omitted).
a. Dissipation
Wife argues that the trial court erred in failing to find that Husband dissipated
marital assets by: (1) transferring proceeds from the sale of corporate assets in the amount
of $150,000 to his son, Josh Amacher, approximately eight months before Wife filed for
divorce; and (2) by borrowing money from A&M.
The dissipation of marital or separate property is a factor that courts shall consider
when making an equitable division of marital property. Tenn. Code Ann. § 36-4-
121(c)(5)(A). Dissipation is statutorily defined as “wasteful expenditures which reduce
the marital property available for equitable distributions and which are made for a
purpose contrary to the marriage either before or after a complaint for divorce or legal
separation has been filed.” Tenn. Code Ann. § 36-4-121(c)(5)(B). The Tennessee
Supreme Court has explained:
Dissipation of marital property occurs when one spouse wastes marital
property and thereby reduces the marital property available for equitable
distribution. Dissipation typically refers to the use of funds after a marriage
is irretrievably broken, is made for a purpose unrelated to the marriage, and
is often intended to hide, deplete, or divert marital property. In determining
whether dissipation has occurred, trial courts must distinguish between
dissipation and discretionary spending. Discretionary spending might be
ill-advised, but unlike dissipation, discretionary spending is typical of the
parties’ expenditures throughout the course of the marriage.
Larsen-Ball, 301 S.W.3d at 235 (quotation marks and citations omitted). The party
alleging dissipation carries the initial burden of production and the burden of persuasion
at trial. Id. “A spouse who seeks to prove dissipation must do so by a preponderance of
the evidence.” Watson v. Watson, 309 S.W.3d 483, 491 (Tenn. Ct. App. 2009).
i. $150,000 Transfer to Josh Amacher
We will first examine the $150,000 that Wife alleges was transferred in 2014 by
Husband from A&M to the parties’ son, Josh Amacher. Josh Amacher testified at trial
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that he never received $150,000 from the Corporation. According to his testimony, he
was “on” an account that was used for corporation expenses because he worked for the
Corporation for seventeen years. He made phone transfers from that account when he
needed to pay expenses for business projects, mostly for “emergency purposes.” This
kept him from having to pay from his own money and then seek reimbursement. He
testified that did not know whether a $150,000 deposit was made to that account, and he
never saw the statements for that account. Husband testified that he did not give
$150,000 to Josh Amacher; rather, he stated that the disputed funds were deposited in an
account that was held jointly by his son and him. According to Husband, the $150,000
was a loan from A&M. He stated that because Wife had been “threatening and unstable,”
he transferred the money from the Corporation to a personal account “to keep her from
absconding with it.” Husband testified that he used the money to pay bills. In his March
2018 deposition, Husband stated, “That’s why you got the . . . bank statements right
there. You can look and see where it went.” The bank statements were entered as an
exhibit to the deposition, but are not part of the record on appeal. There is no other
evidence to show for what purpose(s) the $150,000 was used.
The trial court made no specific determination as to whether there was dissipation.
However, the evidence does not preponderate against the trial court’s conclusion that
“Husband’s testimony was not impeached that he used the money to pay family bills, and
the parties’ son denied the receipt of funds for his use.” Moreover, from our review, we
conclude that Wife did not meet her burden to show dissipation by a preponderance of
the evidence. See Watson, 309 S.W.3d at 491.
ii. Loans from A&M to Husband
According to the A&M balance sheet, Husband owed approximately $33,000 to
the Corporation from 2005 to 2018.10 In 2014, the year Wife filed for divorce, that
number increased to $330,421.71.11 While this drastic increase, coupled with the timing,
raises questions concerning the purpose of the loans, there is no evidence concerning how
the funds were used. Thus, we conclude that Wife failed to meet her burden at trial to
prove dissipation by a preponderance of the evidence. See id. Notwithstanding this fact,
the loans are relevant to the issue of the equitable division of marital property insofar as
they are assets of the Corporation. We now turn to the question of equitable division.
10
The specific amount fluctuated very little during those years i.e., $32,928.26 was owed from
2005 until 2013. The lack of fluctuation suggests that, although the loan remained outstanding, no
interest accrued during this time.
11
According to Husband’s testimony, $150,000 of this amount was deposited in Husband and
Josh Amacher’s joint bank account.
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b. Equitable Division
Wife argues that, regardless of how this Court decides the dissipation issues, the
trial court’s division of the marital estate was “illogical, contrary to the evidence
presented in regard to the statutory factors, and grossly inequitable in favor of the
Husband.” She argues that, under the facts of this case, an equitable division is an equal
division.
A review of the relevant statutory factors establishes the following. The parties
had been married approximately thirty-three years at the time of the filing of the
complaint for divorce, and they were separated approximately five years during the
pendency of the divorce. At the time of the trial, Husband was sixty-two years old, and
Wife was sixty-one. Husband testified that he has no significant health problems. Wife
has a number of significant health issues, including heart disease, COPD, bladder
problems, and anxiety. She has had several surgeries and takes a number of medications
for these conditions. Husband worked throughout the marriage in construction and was
sole owner of the Corporation. He testified that he recently stopped working in that field
and now his income is solely derived from farming and annual dividends from bank
stock. Husband reported a net monthly income of $2,000, which the trial court did not
find credible.12 Although Wife has training in the field of medical technology, she has
not worked in that field since the parties married in 1981. During the marriage, Wife
primarily worked in the home. However, on occasion, she also worked for the
Corporation, managing payroll, bookkeeping, scheduling jobs, preparing bids, and
performing other tasks related to the administration of the business. Due to her health
issues and her years out of the workplace, her capacity to earn a living is minimal. Her
current income is from the rental properties owned by the parties. She reports a gross
monthly income from the rental properties of $2,550 and reports a monthly shortfall of
$1,342.
The trial court divided the personal property of the Corporation between the
parties by first assigning property valued at $243,450 to Husband as his separate
property—an amount reflecting the value of the Corporation before the marriage (Exhibit
B to the trial court’s order).13 Wife’s separate property consisted of a CD in the amount
of $130,000, a value which is presently subsumed into the Country Club home value, as
she borrowed against this CD to purchase the home.
12
In its order, the court stated that Husband’s income and expense statement, “failed to set forth
adequate information regarding Husband’s true income and expenses.”
13
This amount is based on Husband’s testimony that he invested approximately $75,000 and had
approximately $200,000 worth of equipment at the time he married his Wife in 1981.
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The trial court divided the marital estate as follows:14
Assets Marital value / equity To Husband To Wife
Farm 1,200,000 1,200,000
Rental properties (406 & 410
Oakwood, 522 Noblitt, 704 E. 278,000
278,000
Grundy) and commercial
property on Polk St.
Country Club home 156,00015 156,000
Contribution by Husband to
15,78316
Country Club home
Cash value of Husband’s life
48,000 48,000
insurance
2001 Gulfstream Motor Home 30,000 30,000
People’s State Bank Stock 235,000 235,000
Wife’s automobile: Maxima
-12,00017
(debt)
1994 Jaguar 1,000 1,000
2005 Lincoln 5,500 5,500
Based on the above, the trial court valued the divisible marital estate at $1,941,500. The
trial court divided the marital estate such that Husband received assets valued at
14
This information is from the Asset and Liability Division, identified as Exhibit A to the trial
court’s order. With the exception of the marital value of the Country Club home, the parties stipulated to
these values.
15
The value of marital equity is to be reconsidered on remand.
16
Whether these are separate funds or to be considered part of the appreciated value of the
Country Club home is to be reconsidered on remand.
17
It is not entirely clear to this Court, but our examination of Exhibit A suggests that the $12,000
debt on Wife’s Maxima is assigned to the Wife. If there is no equity value in the automobile, this further
reduces the value of Wife’s portion of the marital estate.
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$1,248,000 (64 percent of the estate). Wife received assets that the trial court valued at
$721,283, although that amount should have been reduced by $15,783 to account for the
trial court’s determination that Husband’s contribution to the real property should be
treated as an asset assigned to Wife. As such, Wife nets $705,500 in marital property (36
percent of the estate).18
While a division of property is not rendered inequitable simply because it is not
mathematically equal, Larson-Ball, 301 S.W.3d at 231, we are of the opinion that, based
on the statutory factors, a division somewhat closer to equal division of the marital estate
would be more appropriate and equitable given the: (1) the length of the marriage; (2) the
value of the parties’ separate property; (3) Wife’s limited earning power; and (4) her
monthly shortfall.19 With regard to the equity of the allocation of marital estate, the trial
court explained:
The appraisal of the farm was stipulated at $1,200,000.00; this
causes an appearance of unequal allocation of the marital equity. However,
the Court does not find this to be the case. There is tax debt not considered
because an accurate value of the tax liability was not established despite
expert testimony, for which Husband will be responsible. In addition,
Husband is receiving property with no evidence presented regarding the
marketability of the property should he choose to liquidate the same.
Additionally, Wife testified that she did not want the property. The proof
was simply that the land was appropriate for farming. With Wife’s receipt
of her home, all rental/commercial properties (except the value of the West
Lincoln property, which is addressed below) and denial of Husband’s claim
for 100% of value of the home being marital,[20] she is receiving a greater
investment with monthly income.
From the record, it is unclear how the trial court concluded that Wife received a greater
“investment” when no evidence was presented regarding the tax liability or the
“marketability” of the property. As such, we conclude that there is insufficient
evidentiary support for the trial court’s conclusion. See Larson-Ball, 301 S.W.3d at 231.
We recognize that, in certain regards, the parties did not present the most complete
evidence. Nonetheless, we conclude that the connection between the evidence and the
trial court’s conclusions are unclear at times, and its order is incomplete in some respects.
18
These calculations do not include the value of A&M property.
19
The trial court correctly considered that Wife was assigned income-generating property, but the
court’s order does not show that it considered that the income was not sufficient to meet Wife’s expenses.
20
It is unclear to us to what “denial” this refers. Husband did not, at the trial level, claim that 100
percent of the Country Club home was marital. See supra note 3.
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As we have previously determined, remand is needed to make factual findings regarding
the Country Club home. We further conclude that, on remand, the trial court should re-
examine and reiterate its findings with respect to the Corporation.
The trial court found that the Corporation was marital property, stating:
CAO Holdings, Inc. v. Trost, 333 S.W. 3d 73[, 89 n. 13 (Tenn. 2010)], set
forth 12 factors to be considered in determining whether to disregard the
corporate veil. Of these factors, this Court placed great weight upon the
following: the non-issuance of stock certificates; the sole ownership of
stock by one individual; the use of the same office or business location; the
employment of the same employees or attorneys; the use of the corporation
as an instrumentality or business conduit for an individual or another
corporation; and the diversion of corporate assets by or to a stockholder or
other entity to the detriment of creditors, or the manipulation of assets and
liabilities in another.
The evidence supports the trial court’s piercing of the corporate veil and its finding that
the Corporation was marital property.21 Husband testified that he was the sole
shareholder. Wife’s and Josh Amacher’s undisputed testimony was that they had no
control of corporate funds. The evidence shows that the line between personal and
corporate expenses was unclear. Both Husband and Wife testified that when Husband
needed money, he would borrow it from A&M. Pam Spencer was the bookkeeper for
A&M as well as the parties’ personal bookkeeper.22 Her testimony exposed a pattern of
transfers between Husband and A&M that were indicated as loans in the Corporation’s
books, with no interest, amortization schedule, or any sort of repayment agreement. Ms.
Spencer testified that Husband’s and Wife’s personal credit cards were sometimes paid
from the Corporation. Husband, at one point, traded a corporation-owned vehicle on the
purchase of a new vehicle titled to him personally; this transaction was then added to the
Corporation’s books as a loan to Husband. CPA David Brown testified that this was not
standard accounting practice for corporations and, indeed, “not []acceptable under any
accounting standard.”23 The Corporation’s balance sheet shows a sharp uptick in loans
to Husband beginning in 2014, the year Wife filed for divorce. It is not at all clear from
21
Husband argued at trial that the Corporation was not marital property, but did not raise the
issue on appeal. We address the question here briefly for the sake of context.
22
However, Ms. Spencer did not prepare tax returns for the Corporation nor for the Amachers
personally, nor did she give tax advice.
23
Mr. Brown was admitted as an expert witness for Wife, without objection from Husband.
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the record the purpose of those loans, and the trial court found that “Husband’s testimony
was evasive with regard to his corporate finances.”24
In accordance with the foregoing, the trial court found “that all personal property
[of A&M] is marital for purposes of division.” The trial court, having assigned a portion
of the Corporation as Husband’s separate property, as explained above, divided the
remaining corporate property, listed on Exhibit C, “in kind,” which the trial court
explained, “will be accomplished by alternating choice. Wife will receive the first choice,
Husband receiving the second then moving forward in the same manner until no personal
property remains.” However, despite having pierced the corporate veil, the trial court did
not include, as part of the marital estate, the Corporation’s other assets, such as the
$67,834 checking account balance, as shown on the A&M Balance sheet (designated as
Trial Exhibit 13), or the debts owed to the Corporation. The trial court did address the
corporate liabilities, finding that it was equitable for the Husband to be solely responsible
for the financial liabilities of the Corporation. The single liability, according to the
balance sheet, is a debt owing to Husband, in the amount of $64,000. We cannot
identify in the trial court’s order the facts that underlie its decision to divide only the
tangible property and not the Corporation’s receivables and cash accounts. In the absence
of any explanation, we conclude that the trial court’s decision was illogical;
consequently, we remand for reconsideration of the value and the division of the
Corporation’s financial assets and factual findings to support the trial court’s conclusions.
See Owens, 241 S.W.3d at 490. To this end, the trial court is not precluded from
reopening proof.
Based on the foregoing, we vacate the trial court’s division of marital property.
Due to the need for additional factual findings which will bear on the division, we
remand to the trial court for reconsideration in accordance with this opinion.
C. Alimony
Wife argues that the trial court erred by not awarding alimony to render the
division of marital property equitable. Wife further argues that the trial court erred in
failing to award her attorney’s fees based on her financial need and because Husband’s
“evasive and dilatory conduct . . . increased the cost of litigation.”
Trial courts have broad discretion in awarding spousal support. Gonsewski v.
Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). “Appellate courts are generally
disinclined to second-guess a trial judge’s spousal support decision,” absent a trial court’s
abuse of discretion. Id. (citation omitted). “Rather, the role of an appellate court in
24
Appellate courts “are required to defer to the trial court’s credibility findings, including those
that are implicit in its holdings.” Williams v. City of Burns, 465 S.W.3d 96, 120 (Tenn. 2015)
(citing Richards v. Liberty Mut. Ins. Co., 70 S.W.3d 729, 733–34 (Tenn. 2002)).
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reviewing an award of spousal support is to determine whether the trial court applied the
correct legal standard and reached a decision that is not clearly unreasonable.” Id. All
relevant statutory factors in Tennessee Code Annotated § 35-5-121(i) are to be
considered by the trial court, but “[t]he need of the recipient spouse and the obligor
spouse’s ability to pay are the primary considerations in the determination of an award of
alimony.” Id. at 110. “[A]n award of attorney’s fees in a divorce case constitutes
alimony in solido,” and, thus, is subject to the same considerations as other awards of
alimony. Gonsewski, 350 S.W.3d at 113.
In its order, the trial court considered each statutory factor. Based on its findings,
the trial court ordered Husband to pay Wife’s health insurance, up to $1,000 per month,
through March 31, 2020 (i.e., for the four months following the court’s order), as
transitional support. The trial court also ordered Husband to pay the property taxes on all
properties through 2019, as alimony in solido. The trial court denied further alimony in
solido “based on the receipt of income generating assets received by [Wife] in this
divorce[, and because] she is receiving the ability to secure timely liquidity through the
receipt of bank stock whereas Husband is not.” The court further denied an award of
attorney’s fees, stating “Wife is receiving significant and sufficient assets by this Order to
pay her attorney fees.”
Among the factors the court must consider in determining awards of alimony are
the parties’ separate property and the division of marital property. Tenn. Code Ann. §
36-5-121(i)(7), (8). Therefore, in light of our remand to the trial court to reconsider its
division of the parties’ marital property, the court also must re-consider its award of
alimony, including Wife’s attorney’s fees. On remand, the trial court should consider
whether alimony in solido is an appropriate remedy to address an inequitable division of
marital property. In making its determination, the trial court must make factual findings
concerning whether Wife would be forced to deplete assets intended for her future
support in order to pay her attorney’s fees. See Owens, 241 S.W.3d at 496.
D. Attorney’s fees on appeal
Wife also seeks to recover her attorney’s fees incurred on appeal. Whether to
award attorney’s fees on appeal is within this court’s sole discretion. Davis v. Davis, 138
S.W.3d 886, 890 (Tenn. Ct. App. 2003). When considering a request for attorney’s fees,
we look at “the requesting party’s ability to pay, the requesting party’s success on appeal,
whether the appeal was taken in good faith, and any other relevant equitable factors.”
Culbertson v. Culbertson, 455 S.W.3d 107, 158 (Tenn. Ct. App. 2014) (citing Moran v.
Willensky, 339 S.W.3d 651, 666 (Tenn. Ct. App. 2010)). Taking into account our
disposition of this case, the likelihood that Wife will incur additional attorney’s fees on
remand, and Wife’s limited income, we award Wife her attorney’s fees for this appeal.
We remand to the trial court for a determination of the amount of reasonable attorney’s
fees incurred on appeal.
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V. CONCLUSION
Based on the foregoing, we vacate the trial court’s finding that the appreciation in
the value of the Country Club home is marital property; we remand for findings of fact
with respect to whether both parties substantially contributed to the appreciated value and
any other facts bearing on the resolution of the issue. We affirm the trial court’s finding
that the Lincoln Street property transferred to Husband’s father is not part of the marital
estate. We conclude that Wife did not prove dissipation, but that the trial court should
consider the debts owed to the Corporation and its other financial assets in dividing the
marital property. We, therefore, vacate the division of marital property and direct the
trial court to achieve an equitable division and to make additional factual findings to
explain the division. As the property division will affect the alimony analysis, we vacate
the trial court’s alimony award and remand for reconsideration of that issue in light of
any adjustments made to the property division. Wife is awarded her attorney’s fees
incurred in this appeal, and we remand for determination of reasonable fees and entry of
judgment on same. Costs of this appeal are taxed one-half to Appellant, Lori Ann
Amacher, and one-half to Appellee, Stanley Dwight Amacher, for all of which execution
may issue if necessary.
s/ Kenny Armstrong
KENNY ARMSTRONG, JUDGE
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