David Ashley Leonard v. Kimberly Champion Leonard ( 2024 )

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Clerk of the Appellate Courts
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AT KNOXVILLE
May 15, 2024 Session
DAVID ASHLEY LEONARD v. KIMBERLY CHAMPION LEONARD
Appeal from the Chancery Court for Bradley County
No. 2021-CV-253 Jerri S. Bryant, Chancellor
No. E2023-01002-COA-R3-CV
In this divorce action, the wife appeals the trial court’s distribution of the marital estate,
the duration of the transitional alimony awarded to her, and the denial of her request for
attorney’s fees and expenses as alimony i solido. The husband challenges the trial
court’s decision to award any transitional alimony to the wife. Discerning no reversible
error, we affirm. We deny the parties’ respective requests for attorney’s fees on appeal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLaRTY, J., joined.
Philip M. Jacobs, Cleveland, Tennessee, for the appellant, Kimberly Champion Leonard.'
Jeremy M. Cothern, Bryson A. Lype, and Louis J. Bernsen, Chattanooga, Tennessee, for
the appellee, David Ashley Leonard.
OPINION
I. Factual and Procedural Background
The plaintiff, David Ashley Leonard (“Husband”), and the defendant, Kimberly
Champion Leonard (“Wife”), were married in October 2015. According to the trial
court’s judgment, this was the third marriage for Husband and the fourth for Wife. No
' The appellant testified at trial that her first name was “Kim,” and in her answer to the complaint for
divorce, stated that her name was Kim, “not ‘Kimberly.”” However, in the style of the case throughout
this action and in the appellant’s briefs on appeal, her given name is stated as “Kimberly.” For the sake of
consistency in this Opinion, we will refer to the appellant’s given name as “Kimberly” during the divorce
proceedings. No disrespect is intended.
FILED
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children were born to this marriage, and at the time of trial, neither party had any minor
children. The parties separated on July 11, 2021.
On July 27, 2021, Husband filed a complaint for divorce in the Bradley County
Chancery Court (“trial court”), alleging grounds pursuant to Tennessee Code Annotated §
36-4-101(a)(3) (adultery), (11) (inappropriate marital conduct), and (12) (indignities
rendering the spouse’s position intolerable), or in the alternative, (14) (irreconcilable
differences). Husband requested that he be awarded, inter alia, the improved real
property located at Lead Mine Valley Road in Cleveland, Tennessee (‘Marital
Residence”), attorney’s fees, and “his respective accounts, including but not limited to
bank accounts, savings accounts, pension accounts, 401(K) and/or retirement accounts,”
as well as an “equitable portion” of any accounts held by Wife.
The Bradley County General Sessions Court (“general sessions court”)
subsequently transferred a file to the trial court related to a petition for an order of
protection filed by Wife on July 13, 2021. Following a hearing conducted after the
general sessions court had transferred the case, the trial court entered a one-year order of
protection on September 1, 2021, barring Husband from having any contact with Wife.
The trial court also directed Husband to move out of the Marital Residence and to refrain
from coming around the home. In the order of protection, the trial court found that
Husband had abused or threatened to abuse Wife during an incident that occurred on July
11, 2021.
In the trial court, Husband filed a motion for exclusive possession of the marital
residence on August 18, 2021. He alleged that Wife had attacked him during the July 11,
3021 incident and that he had “suffered spine and neck injuries” and had been “forced to
vacate” the Marital Residence. Husband averred that he operated his business,
Warehouse Way Development, Inc. (“Warehouse Way”), out of the Marital Residence.
He also claimed that Wife had “written several checks to herself, her daughter, and her
daughter’s boyfriend” using the Warehouse Way checkbook. Wife filed a response to
Husband’s motion, acknowledging that she had written “a check for $14,000 to herself
out of the business account to protect her finances” and denying all other substantive
allegations. On August 24, 2021, Wife filed a motion for exclusive possession of the
Marital Residence, averring in part that she was the primary caretaker of the Marital
Residence. Husband filed a response denying Wife’s allegations. He reiterated his
request for exclusive possession of the Marital Residence.
On September 14, 2021, Wife filed an answer and counter-complaint, denying all
substantive allegations against her while admitting that the parties had irreconcilable
differences. In her counter-complaint, Wife alleged grounds for divorce of inappropriate
marital conduct, or in the alternative, irreconcilable differences. Wife requested
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“transitional, temporary, rehabilitative and/or permanent alimony, including but not
limited to her attorney’s fees... .” Husband filed a response to the counter-complaint,
denying Wife’s allegation of inappropriate marital conduct and again requesting an award
of attorney’s fees.
Wife filed a petition for contempt on November 9, 2021, alleging that Husband
had violated automatic statutory injunctions provided in Tennessee Code Annotated § 36-
4-106(d)(1) by applying to refinance the mortgage associated with the Marital Residence,
ceasing payment on the parties’ AT&T bill, cancelling the parties’ Ohio National Life
Insurance policy, and “open|ing]} an individual checking account to hide income from the
parties’ business.” Wife also alleged that Husband had violated the order of protection
by attempting to contact her through a third party. Husband filed a response to the
petition, admitting that he had opened a separate bank account but denying that this was
in violation of a statutory injunction. He denied all other substantive allegations.
Husband reiterated his allegation that Wife had withdrawn thousands of dollars from the
business bank account.
Wife filed a “Motion for Alimony Pendente Lite,” on February 25, 2022,
requesting that the trial court award to her $5,000.00 in attorney’s fees and enter an
“order designating which party is responsible for particular marital obligations.” As
evinced by a mediator’s report filed on May 17, 2022, the parties participated in
mediation without reaching any settlement.
On May 27, 2022, Wife filed a motion for attorney’s fees related to the order of
protection in the amount of $3,474.20. Wife subsequently filed a motion to extend the
order of protection to remain in effect through the resolution of divorce proceedings
pursuant to Tennessee Code Annotated § 36-3-603 (West July 1, 2017, to current). On
September 14, 2022, Wife filed a motion for appraisal of six self-storage warehouse
parcels and one vacant land parcel belonging to Warehouse Way. Wife requested an
award of $6,500.00 in “discretionary [costs], property division, and/or alimony” for
retention of an appraiser through The Haisten Group, LLC (“The Haisten Group”), to
perform the appraisal and cover potential costs of the appraiser’s testimony. Wife
concomitantly filed a motion to set the case for final hearing.
Husband filed an omnibus response to Wife’s motions on November 16, 2022,
agreeing solely with the motion to set a final hearing. He argued that the motion for
attorney’s fees related to the order of protection should be reserved for trial. He also
contended that Wife’s other three motions should be denied because (1) Wife had no
2 In Wife’s motion and the subsequent order authorizing retention of The Haisten Group, the appraisal
company was mistakenly referred to as “the Hastings Group.”
= BE
need for alimony pendente lite, her motion failed to account for funds she had withdrawn
from the Warehouse Way account, and Husband did not have the ability to pay; (2)
Tennessee Code Annotated § 36-3-603 was inapplicable because the complaint was filed
before the order of protection was entered and because no extension of the order of
protection was necessary; and (3) Warehouse Way was Husband’s separate property,
rendering an appraisal of its real property holdings unnecessary.
Following a hearing on Wife’s motions, the trial court entered an order on January
24, 2023. The court granted Wife’s motion for attorney’s fees provided that Wife’s
former counsel would submit a supplemental affidavit attesting that the fees requested
were related solely to the order of protection? The court denied the motion to extend the
order of protection, finding that Tennessee Code Annotated § 36-3-603 was inapplicable
and noting that the order of protection was no longer in effect. Pursuant to the alimony
factors provided in Tennessee Code Annotated § 36-5-121(i), the court determined that
Wife had demonstrated a need for alimony pendente lite and that Husband possessed the
ability to pay. The court directed Husband to pay the mortgage, insurance, taxes, and
maintenance costs for the Marital Residence; $6,500.00 in discretionary costs for Wife to
retain The Haisten Group; and $1,000.00 to Wife monthly. The court noted credibility
concerns with both parties’ testimonies and stated that “fejach party needs to tighten up
on what their actual bills are.” Upon consideration of Wife’s former counsel’s affidavit
and Husband’s objection to the affidavit, the trial court partially granted Wife’s motion
for attorney’s fees, awarding to Wife $2,429.20 in an order entered on February 8, 2023.
On June 2, 2023, Wife filed a motion for attorney’s fees and discretionary costs as
alimony in solido, Two days earlier, Wife’s current counsel had filed an affidavit of
reasonable attorney’s fees, reflecting a total balance owed of $24,299.00. On that same
day, Husband had filed a response in opposition to Wife’s motion for alimony in solido.
The trial court conducted a bench trial over the course of two days on April 23 and
25, 2023. In addition to the parties’ testimonies, the court heard testimony from
Husband’s son, D.L.; Husband’s daughter-in-law, B.L.; Wife’s sister, G.A.; and the
parties’ neighbor, S.B. Prior to trial, Husband had filed a trial brief with a copy of Wife’s
deposition testimony and an excerpt from Husband’s deposition testimony attached. At
trial, the parties presented various exhibits, including financial records for the parties and
* Upon Husband’s motion to disqualify Wife’s former counsel based on an alleged conflict of interest and
following a hearing, the trial court entered an agreed order on March 4, 2022, substituting Wife’s
appellate counsel in place of her former counsel, The trial court subsequently entered an order granting
Husband’s motion to disqualify Wife’s former counsel. Husband’s appellate counsel was substituted for
Husband’s initial counsel in an agreed order entered by the trial court on January 6, 2022.
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Warehouse Way, The Haisten Group’s appraisal, and a second appraisal of Warehouse
Way’s commercial property performed by the Henry B. Glascock Company.
In a final decree entered on June 6, 2023, the trial court granted a divorce to Wife
on grounds of inappropriate marital conduct and indignities rendering her position
intolerable. See Tenn. Code Ann. § 36-4-101(a)(11)-(12) (West 2007, to current). The
court found that the events of July 11, 2021, had been “the precursor to this divorce” and
that those events were “primarily Husband’s fault.” As to the parties’ respective financial
positions prior to the marriage, the court found that Wife had been employed as a
bookkeeper but had voluntarily resigned her employment a few months before meeting
Husband. Wife owned a home prior to the marriage, and she “testified that she netted
$12,000 from the sale of her separate residence after it was improved with Husband’s
money during the marriage.” The court found that “Wife’s net worth, prior to this
marriage, was between $12,000 and $17,000, including the equity in her home.” By
contrast, the court found that Husband had owned and managed two businesses prior to
the marriage: Warehouse Way and Golf Carts of Chattanooga (“Golf Carts”). He had
also owned a separate residence that became the parties’ shared residence during the first
three years of their marriage and was subsequently sold. The court found that
“Husband’s net worth prior to this marriage exceeded $1,000,000.” During the marriage,
Wife inherited approximately $56,000.00 from her mother, and this was undisputedly
listed by the parties as Wife’s separate property.
Overall, the trial court determined that “[t]his divorce involved a short-term
marriage between two (2) mature individuals” and that the parties should therefore “be
returned, as near as possible, to the positions they held prior to their marriage.” The court
specifically found that “Wife’s proposed division of the alleged marital estate was
unreasonable,” noting that under Wife’s proposal, she would have received the Marital
Residence free of debt plus additional marital assets, “including those the Court has
found to be Husband’s separate property.”
The parties presented a master asset list as an exhibit at trial. Utilizing this list as a
guide, the trial court set forth what it found to be an equitable distribution of the agreed-
upon marital property and then did the same with the disputed property items, awarding
each of those to Husband or Wife as the court found appropriate. Designation of the
Marital Residence was a point of contention throughout the divorce proceedings. The
court determined that because the Marital Residence had been acquired during the
marriage and titled in both parties’ names, it was presumed to be marital property and
that Husband had not rebutted this presumption. Finding the market value of the Marital
Residence to be $400,000.00 and the parties’ equity in it to be $128,000.00, the court
awarded the Marital Residence to Husband, along with the related debt.
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Although Wife conceded on the master asset list that Warehouse Way was
Husband’s separate property, she maintained that the Warehouse Way bank account was
marital because she had contributed to its management. The trial court determined that
both Warehouse Way and its account were Husband’s separate property, specifically
finding that Wife had failed to establish any significant contribution to Warehouse Way.
The court found that Wife had taken “somewhere between $30,000 and $40,000 from the
Warehouse Way bank account” “without Husband’s consent” and had “spent this money
during the pendency of the divorce.” It was undisputed that Husband had sold his other
business, Golf Carts, during the marriage. Wife had been employed for a time as a
bookkeeper for Golf Carts, and the trial court determined that she had been paid for her
work there.
The trial court awarded what it found to be $28,000.00 in marital personal
property to Husband and $14,000.00 in marital personal property to Wife. The court
determined, however, that Wife’s award “must be increased by including the $14,000
Wife took from the Warehouse Way account, the $6,500 she requested and received from
(the trial court] to have an appraiser value Warehouse Way, and $4,000 of alimony
pendente lite she received from Husband.” The court thereby concluded that Wife had
“approximately $94,000 of value between her separate property and her awarded portion
of the marital property after including these additional amounts.” The court awarded to
Wife an additional $25,000.00 in equity from the Marital Residence, which the court
permitted Husband to pay in twelve monthly installments to begin the month after the
divorce decree’s entry.
Regarding Wife’s request for spousal support, the trial court considered the factors
provided in Tennessee Code Annotated § 36-5-121(i) and awarded to Wife $1,500.00
monthly in transitional alimony for six months. The court also ordered that Wife would
be allowed to reside at the Marital Residence for six months following entry of the final
decree with the house payment and taxes paid by Husband.
Setting a separate hearing concerning Wife’s request for attorney’s fees as
alimony in solido, the trial court certified its final decree as a final judgment pursuant to
Tennessee Rule of Civil Procedure 54.02. Following a subsequent hearing, the court
entered an order on June 9, 2023, denying Wife’s request for attorney’s fees. Wife timely
appealed.
II. Issues Presented
Wife has presented four issues on appeal, which we have reordered and restated as
follows:
1. Whether the trial court erred in its division of the marital estate by
placing undue emphasis on the length of the matriage.
2. Whether the trial court abused its discretion by not awarding to Wife
a longer period of transitional alimony.
3. Whether the trial court abused its discretion by denying Wife’s
request for an award of attorney’s fees as alimony i solido.
4. Whether Wife should be awarded her attorney’s fees on appeal as
the economically disadvantaged spouse.
Husband has raised two additional issues, which we have likewise restated:
5. Whether the trial court erred by finding that Wife had the need for
spousal support and awarding to her a total of $9,000.00 in
transitional alimony.
6. Whether Husband is entitled to an award of attorney’s fees on appeal
because Wife’s appeal is frivolous.
Ill. Standard of Review
In a case involving the proper classification and distribution of assets incident to a
divorce, our Supreme Court has explained the applicable standard of appellate review as
follows:
This Court gives great weight to the decisions of the trial court in
dividing marital assets and “we 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.” Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App.
1996). As such, when dealing with the trial court’s findings of fact, we
review the record de novo with a presumption of correctness, and we must
honor those findings unless there is evidence which preponderates to the
contrary. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993). Because trial courts are in a far better position
than this Court to observe the demeanor of the witnesses, the weight, faith,
and credit to be given witnesses’ testimony lies in the first instance with the
trial court. Roberts v. Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App.
1991). Consequently, where issues of credibility and weight of testimony
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are involved, this Court will accord considerable deference to the trial
court’s factual findings. Jn re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct.
App. 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co., 984
S.W.2d 912, 915 (Tenn. 1999)). The trial court’s conclusions of law,
however, are accorded no presumption of correctness. Langschmidt v.
Langschmidt, 81 8.W.3d 741, 744-45 (Tenn. 2002).
Keyt v. Keyt, 244 §.W.3d 321, 327 (Tenn. 2007). See Manis v. Manis, 49 S.W.3d 295,
306 (Tenn. Ct. App. 2001) (holding that appellate courts reviewing a distribution of
marital property “ordinarily defer to the trial judge’s decision unless it is inconsistent
with the factors in Tenn. Code Ann. § 36-4-121(c) or is not supported by a preponderance
of the evidence.”), The valuation of a marital asset is a question of fact. Kinard v.
Kinard, 986 S.W.2d 220, 231 (Tenn. Ct. App. 1998).
Regarding spousal support, our Supreme Court has “repeatedly ... observed] that
trial courts have broad discretion to determine whether spousal support is needed and, if
so, the nature, amount, and duration of the award.” Gonsewski v. Gonsewski, 350 S.W.3d
99, 105 (Tenn. 2011). The High Court has further explained:
[A] trial court’s decision regarding spousal support is factually driven and
involves the careful balancing of many factors. Kinard v. Kinard, 986
S.W.2d 220, 235 (Tenn. Ct. App. 1998); see also Burlew |v. Burlew]|, 40
S.W.3d [465,] 470 [(Tenn. 2004)]; Robertson v. Robertson, 76 S.W.3d 337,
340-41 (Tenn. 2002). As a result, “{a]ppellate courts are generally
disinclined to second-guess a trial judge’s spousal support decision.”
Kinard, 986 S.W.2d at 234. Rather, “[t]he role of an appellate court in
reviewing an award of spousal support is to determine whether the trial
court applied the correct legal standard and reached a decision that is not
clearly unreasonable.” Broadbent v. Broadbent, 211 S.W.3d 216, 220
(Tenn. 2006). Appellate courts decline to second-guess a trial court’s
decision absent an abuse of discretion. Robertson, 76 S.W.3d at 343. An
abuse of discretion occurs when the trial court causes an injustice by
applying an incorrect legal standard, reaches an illogical result, resolves the
case on a clearly erroneous assessment of the evidence, or relies on
reasoning that causes an injustice. Wright ex rel. Wright v. Wright, 337
S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d 328,
335 (Tenn. 2010). This standard does not permit an appellate court to
substitute its judgment for that of the trial court, but “reflects an awareness
that the decision being reviewed involved a choice among several
acceptable alternatives,’ and thus ‘envisions a less rigorous review of the
lower court’s decision and a decreased likelihood that the decision will be
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reversed on appeal.’” Henderson, 318 S.W.3d at 335 (quoting Lee
Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)).
Consequently, when reviewing a discretionary decision by the trial court,
such as an alimony determination, the appellate court should presume that
the decision is correct and should review the evidence in the light most
favorable to the decision. Wright, 337 S.W.3d at 176; Henderson, 318
S.W.3d at 335.
Td. at 105-06 (footnotes omitted).
Respecting the trial court’s decision concerning attorney’s fees in a divorce action,
this Court has stated:
Our review of an award of attorney’s fees is guided by the principle that
“the allowance of attorney’s fees is largely in the discretion of the trial
court, and the appellate court will not interfere except upon a clear showing
of abuse of that discretion.’” Mimms v. Mimms, 234 S.W.3d 634, 641
(Tenn. Ct. App. 2007) (quoting Taylor v. Fezell, 158 S.W.3d 352, 359
(Tenn. 2005)). “Reversal of the trial court’s decision [regarding] attorney
fees at the trial level should occur ‘only when the trial court applies an
incorrect legal standard, reaches a decision that is illogical, bases its
decision on a clearly erroneous assessment of the evidence, or employs
reasoning that causes an injustice to the complaining party.” Church v.
Church, 346 S.W.3d 474, 487 (Tenn. Ct. App. 2010).
Hernandez v. Hernandez, No. E2012-02056-COA-R3-CV, 2013 WL 5436752, at *8
(Tenn. Ct. App. Sept. 27, 2013).
IV. Equitable Distribution of Marital Estate
Wife contends that the trial court erred in its distribution of the marital estate by
placing undue emphasis on the duration of the parties’ marriage. She argues that the
court did not adequately consider statutory factors regarding the relative ability of each
party to earn future income, Wife’s contributions to the parties’ assets, Wife’s age at the
time of the divorce, and the reduction in Wife’s Social Security benefits purportedly
caused by the marriage. See Tenn. Code Ann. § 36-4-121(c). Husband responds that the
trial court properly considered the “most relevant” statutory factors. He asserts that
although the trial court determined that the marriage was one of relatively short duration
and the parties should be returned as closely as possible to their respective pre-marriage
financial situations, the court actually placed Wife in a far better position than she had
been prior to the marriage. Upon careful review of the record and applicable authorities,
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we conclude that the trial court properly considered the relevant statutory factors and did
not abuse its discretion when distributing the marital estate.
The version of Tennessee Code Annotated § 36-4-121(c) (West July 1, 2018, to
March 30, 2022) in effect at the time the divorce complaint was filed provided:
(c) In making equitable division of marital property, the court shall
consider all relevant factors including:
(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;
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(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) In determining the value of an interest in a closely held
business or similar asset, all relevant evidence, including
valuation methods typically used with regard to such assets
without regard to whether the sale of the asset is reasonably
foreseeable. Depending on the characteristics of the asset,
such considerations could include, but would not be limited
to, a lack of marketability discount, a discount for lack of
control, and a control premium, if any should be relevant and
supported by the evidence;
(11) The amount of social security benefits available to each
spouse; and
(12) Such other factors as are necessary to consider the equities
between the parties.
In the instant action, the trial court found that the parties had been married for
approximately five years at the time of their separation and for seven years and Six
months at the time of trial. The court determined this to be a marriage of short duration.
See Ricketts v. Ricketts, No. M2005-00022-COA-R3-CV, 2006 WL 2842717, at *8
(Tenn. Ct. App. Oct. 3, 2006) (“Courts have considered marriages of five, seven, and
eight years to be of relatively ‘short’ duration.”) (citing examples). Regarding the effect
of a short-term marriage on the equitable distribution of a marital estate, this Court has
held:
Tenn. Code Ann. § 36-4-121(c)(1) permits trial courts to consider the
duration of the marriage. In cases involving a marriage of relatively short
duration, it is appropriate to divide the property in a way that, as nearly as
possible, places the parties in the same position they would have been in
had the marriage never taken place.
Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. Ct. App. 1988).
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As this Court subsequently explained:
Batson was a divorce case involving parties who were married a
little more than five years prior to their separation. In discussing the
division of marital property we noted:
A trial court’s division of marital property is to be guided by
the factors contained in Tenn. Code Ann. § 36-4-121(c).
However, an equitable property division is not necessarily an
equal one. It is not achieved by a mechanical application of
the statutory factors, but rather by considering and weighing
the most relevant factors in light of the unique facts of the
case.
Batson, 769 S.W.2d at 859. In determining that the marital property need
not be divided equally but, rather, that the parties should be restored to their
“pre-marriage financial condition,” we took into account a number of
specific considerations in addition to the length of the marriage. We
considered the fact that husband’s net worth was over ten times that of his
wife and his annual income was nine times larger than wife’s at the time of
their marriage; that the parties supported themselves during the marriage
primarily on husband’s income, that a large part of the marital property
consisted of the increase in value of husband’s retirement accounts, which
would be diminished if liquidated; and that the wife’s non-monetary
contributions were best considered as part of the award of separate
maintenance and support. Jd.
Although the duration of the marriage is listed as the first factor in Tenn.
Code Ann. § 36-4-121(c), “this should not [be] interpreted to mean that this
factor should always carry more weight than the others. The factors are not
listed in order of importance, and each is to be considered in relation to the
specific facts of each case.” Powell v. Powell, 124 S.W.3d 100, 108 n.8
(Tenn. Ct. App. 2003).
Bates v. Bates, No. M2010-02590-COA-R3-CV, 2012 WL 2412447, at *4 (Tenn, Ct.
App. June 26, 2012); see Howard v. Howard, No. E2014-01991-COA-R3-CV, 2015 WL
6551059, at *12 (Tenn. Ct. App. Oct. 29, 2015) (noting that the duration of a marriage
should be placed “in the context of other statutory factors to be considered by the trial
court’).
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Although in her principal brief Wife does not explain how she would have this
Court modify the distribution of marital property, she does explain in her reply brief that
she is asking this Court to adopt the proposed distribution she presented as an exhibit at
trial. Regarding the disputed marital property, Wife proposed at trial that she be awarded
the Marital Residence, half of the Warehouse Way checking account, a First Citizens
Bank checking account in her name, half of a First Horizon Bank checking account in
Husband’s name, half of the funds from the sale of a camper vehicle to Husband’s son, a
coffee table, and two end tables. Wife also proposed that the mortgage debt associated
with the Marital Residence be assessed to Husband and that he pay $2,500.00 in
transitional alimony to her until the mortgage debt was paid off and for an additional six
months thereafter.
In its final decree, the trial court expressly rejected Wife’s proposed distribution,
stating:
The Court specifically finds that Wife’s proposed division of the
alleged marital estate was unreasonable. Wife’s proposal was that she
receive the [Marital Residence] free of debt and receive alimony until the
(Marital Residence] was paid off and then for additional months after the
[Marital Residence] was paid off plus additional marital assets, including
those the Court has found to be Husband’s separate property.
The trial court awarded to Husband the Marital Residence while also determining that
Wife should receive $25,000.00 from Husband as a portion of the parties’ equity in the
Marital Residence.
On appeal, Wife submitted a Tennessce Court of Appeals Rule 7 table as an
appendix to her brief, indicating the valuation and distribution of assets as awarded by the
trial court.! The Rule 7 table indicates that among the other disputed items she requested
in her proposal, the trial court awarded to Wife her First Citizens Bank checking account
(valued at $7,253.00), half of the sale proceeds ($4,000.00) from the camper vehicle sale,
and the coffee table and end tables in dispute (valued at $50.00). The court awarded to
Husband his First Horizon checking account (valued at $2,632.15) and half of the sale
proceeds ($4,000.00) from the camper vehicle sale.
On appeal, neither party disputes the trial court’s determination that the Marital
Residence was marital property. According to the trial court’s findings, at the time of
trial the Marital Residence had a market value of approximately $400,000.00 and
4 Husband has presented no corrections to Wife’s Rule 7 table.
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provided the parties with approximately $128,000.00 in equity. The court assessed
Husband with the entire mortgage debt. Regarding the parties’ respective contributions
to the value of the Marital Residence, the court made the following specific findings of
fact:
In October 2018, Husband bought a farm located at. . . Lead Mine
Valley Road, Cleveland, Tennessee 37311 ({“Marital Residence’]) with his
separate funds but put Wife’s name on the deed. Husband’s separate funds
to acquire the [Marital Residence] included using a line-of-credit that
Husband’s company, Warehouse Way, held to fund the initial acquisition of
the [Marital Residence]. Wife claims to have deposited the proceeds from
the sale of her separate residence into the joint account, which Husband
disputes, but she acknowledged that she put no money into the acquisition
of the [Marital Residence]. Husband paid off the Warehouse Way line-of-
credit from the proceeds of the sale of his separate residence and has made
all house payments since the [Marital Residence] was acquired, even
following the parties’ separation. Wife’s credit was not used to acquire the
[Marital Residence]. So, the Wife did not contribute anything tangible to
the acquisition of the [Marital Residence], but her name was on the deed
and the parties treated the [Marital Residence] as their marital residence.
The trial court also found that following the parties’ separation, Wife had “received the
benefit of residing” at the Marital Residence while Husband had “paid all, or nearly all”
of the related expenses.
Wife acknowledged during trial that Warehouse Way was Husband’s separate
property, but she maintained that the related business bank account was marital property
due to her contributions to the business. In determining that the Warehouse Way bank
account was Husband’s separate property, the trial court specifically found:
Wife claimed during the marriage that she substantially increased the
value of Warehouse Way, but the Court finds there is no evidence to
support this contention. The Court finds that the management of
Warehouse Way primarily centered on collecting approximately six (6) rent
checks, which were deposited into the Warehouse Way account, and
managing the maintenance of the property. The Court finds that Wife
breached Husband’s trust and harmed Warehouse Way by withdrawing
money, without Husband’s consent, from Warehouse Way’s account, and
that this withdrawal unnecessarily caused Husband to incur a tax liability
and have related issues with his Social Security rights. The Court finds that
Wife did not substantially assist in the management of Warehouse Way nor
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increase its value and that Warehouse Way was, and remained, Husband’s
separate property.
When distributing the marital estate in this case, the trial court relied on this
Court’s decision in Webb v. Webb, No. W2021-01227-COA-R3-CV, 2023 WL 568331(Tenn. Ct. App. Jan. 27, 2023). A divorce case, Webb involved what this Court
determined to be a short-term marriage of six years’ duration at the time of trial. Jd. at
*2. Affirming the trial court’s distribution of the marital estate, the Webb Court cited
Batson for the principle that “it was appropriate [for the trial court] to ‘divide the
property in a way that, as nearly as possible, places the parties in the same position they
would have been in had the marriage never taken place.’” Jd. at *3 (quoting Batson, 769
S.W.2d at 859). The Webb Court also emphasized principles set forth in Batson that in a
short-term marriage, “each spouse’s contributions to the accumulation of assets during
the marriage is an important factor,” and “the significance and value of a spouse’s non-
monetary contributions is diminished.” /d.
In this action, the trial court summarized its overall distribution of the marital
estate as follows:
The Court finds that, as documented above, it has awarded $28,000
of marital personal property to Husband and $14,000 of marital personal
property to Wife. Wife's $14,000, however, must be increased by
including the $14,000 Wife took from the Warehouse Way account, the
$6,500 she requested and received from this Court to have an appraiser
value Warehouse Way, and $4,000 of alimony pendente lite she received
from Husband, and so she has approximately $94,000 of value between her
separate property and her awarded portion of the marital property after
including these additional amounts.
The Court, in accordance with Webb and Ricketts, finds that the
parties’ marriage is short-term under Tennessee law and that the parties
should be returned, as near as possible, to the positions they held prior to
their marriage. In making this equitable division, the Court takes into
account that Wife’s net worth was between $12,000 and $17,000 prior to
her marriage to Husband, she received at least $30,000 in gifts and other
money from Husband, she has used Husband’s money to subsidize her
mother’s care, her granddaughter’s tuition, and gave additional money to
her daughter, son-in-law, [B.L.], and [D.L.], she has been residing at the
[Marital Residence] for two (2) years at Husband’s expense while she has
not looked for employment, she has received $4,000 in alimony pendente
lite, and she has received $6,500 for an appraiser to appraise Husband’s
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separate property, Warehouse Way. The Court also takes into account that
Wife has property of $94,000 from her separate property and the marital
property awarded in this divorce. Husband, moreover, has created most, if
not all, of the marital property through his income from his businesses,
which were separate property, and acquired the [Marital Residence] with
his separate funds and paid all expenses related to the [Marital Residence]
from his income from separate assets. Additionally, Wife is unemployed,
as she was when she met Husband in February 2015, and has lived cost free
at the [Marital Residence] for two (2) years while she knew this marriage
was ending and yet she dd not seek out employment. While Husband’s net
worth is over $1,000,000, this does not mean that Wife should receive a
larger percentage of the marital estate when considered against Webb and
that line of cases. Accordingly, pursuant to Webb, the Court is to put the
parties back to their positions prior to marriage.
Taking into account all of the circumstances and the teachings of
Webb, the Court holds, in addition to the separate and marital property
previously awarded to Wife, that Wife shall be awarded an additional
$25,000 from the equity of the [Marital Residence] and that the Husband
shall be awarded the [Marital Residence]. Husband shall be permitted to
pay this $25,000 in equal monthly installments over twelve (12) months
(i.e., $2,083.33/month) beginning the month after the entry of this order.
Wife essentially argues that the trial court focused on the short duration of the
marriage at the expense of fully considering other relevant factors provided in Tennessee
Code Annotated § 36-4-121(c). Specifically, Wife asserts that the court “did not
adequately consider” (1) the relative ability of each party to acquire future income (factor
four), (2) Wife’s contributions to the marital assets and to Husband’s businesses (factor
five), (3) Wife’s age (factor two), and (4) the effect the marriage had on Wife’s Social
Security benefits (factor eleven). At the outset, we note that the trial court did not set
forth a factor-by-factor analysis in the section of its final decree devoted to the
distribution of marital property. However, upon review of the court’s order as a whole,
including its factual findings and analysis related to spousal support, we conclude that the
court did sufficiently consider the property distribution factors relied upon by Wife as
well as other relevant factors. See Larsen-Bail v. Ball, 301 S.W.3d 228, 235 (Tenn.
2010) (“Although the trial court did not track the exact language of the statutory factors,
its findings clearly reflect its consideration of the factors.”’).°
5 Our Supreme Court in Larsen-Ball nonetheless “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, 30\ S.W.3d 235 n.4.
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Regarding factor four (the relative ability of each party for future acquisitions of
capital assets and income), the trial court found that Wife had been unemployed since a
few months before she and Husband met in February 2015 and that she had remained
unemployed outside the home throughout the marriage and pendency of the divorce. In
its factual findings, the court stated that prior to meeting Husband, Wife “had worked for
a number of years as a bookkeeper for a construction company earning between
$52,000/year and $60,000/year in the last years of her employment.” She had
“voluntarily resigned her employment in December 2014 and withdrawn all of her
retirement savings and was living off of these funds and her other savings, which were
rapidly decreasing.” The court further found that during the marriage, Wife had been
employed part-time as a bookkeeper for Golf Carts and had collected rent deposits for
Warehouse Way. Despite what the court found to be Wife’s demonstrated earning
capacity, she did not seek employment during the pendency of the divorce, Within its
analysis of Wife’s need for spousal support, the court stated: “Rather than make
preparations to live as a single woman, Wife chose to request for this Court to award her
the marital residence . . . free and clear, half of Husband’s Warehouse Way bank account,
and alimony.” However, within the spousal support analysis, the court did find that
Husband had a higher earning capacity than Wife through his business income and that
he had greater financial resources than Wife.
In relation to factor five (the contribution of each party to the acquisition,
preservation, appreciation, depreciation or dissipation of marital or separate property),
Wife contends that the trial court did not adequately consider the care she provided to
Husband after he informed her that he had Parkinson’s disease, the care she provided to
the Marital Residence, or her contributions to Warehouse Way and Golf Carts. Trial
testimony was inconclusive regarding Husband's health. Wife testified that Husband had
informed her that a “Parkinson’s medicine” he had been prescribed had “made him sick”
and that he had been prescribed a different medication. She maintained that Husband had
told her that she should not work outside the home, other than for his businesses, because
she “needed to take care of him.” According to Wife, throughout the marriage, she
maintained the household and cooked for Husband. Husband disputed this testimony. In
its final decree, the trial court noted the “controversy over whether Husband had a
chronic debilitating illness” and found that Wife had not made “tangible contributions to
the marriage or to Husband’s separate property.” We reiterate that “(when a marriage is
short, the significance and value of a spouse’s non-monetary contributions is
diminished.” Batson, 769 S.W.2d at 859.
Concerning Husband’s businesses, the trial court found that Wife had worked as a
bookkeeper for Golf Carts and had collected rental deposits for Warehouse Way.
However, the court also credited Husband’s testimony that Wife had been paid for her
work with Golf Carts. Regarding Warehouse Way, the court found that Wife’s
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contributions had been minimal because she “did not substantially assist in the
management of Warehouse Way nor increase its value.” Moreover, the court found that
following the parties’ separation, “Wife took somewhere between $30,000 and $40,000
from the Warehouse Way bank account . . . without Husband’s consent” and that she
“spent this money during the pendency of the divorce.” The court credited Husband’s
testimony that Wife’s “unauthorized withdrawal reduced the Warehouse Way bank
account balance to a dangerously low amount.” Although the court did not make an
express finding of dissipation, it certainly considered Wife’s depletion of Warehouse
Way funds in opposition to what it found to have been a minimal contribution made by
Wife to the business. Additionally, the court determined that during the marriage, Wife
had “used Husband’s money to subsidize her mother’s care, her granddaughter’s tuition,
and [had given] additional money” to her daughter and son-in-law as well as to
Husband’s son and daughter-in-law. Contrary to Wife’s argument, the trial court
considered whether Wife’s actions had contributed to or depleted the parties’ assets and
found that overall, her actions had not contributed value.
Finally, Wife argues that the trial court failed to adequately consider her age
(factor two) and the effect the marriage had on the Social Security benefits available to
her (factor eleven). In analyzing spousal support factors, the trial court made specific
factual findings regarding the parties’ respective ages, stating: “Husband is older than
Wife as he is 67 and she is 63.” The court also noted that Wife was in “good health.”
Certainly, Wife’s age may be a consideration in her ability to obtain future employment
afier several years out of the workforce. However, as the trial court also found, Wife
presented no evidence of any attempt on her part to obtain employment during the
pendency of the divorce. Furthermore, Wife acknowledged that she had voluntarily left
her position as a bookkeeper with a construction company a few months prior to meeting
Husband in 2015. Here, she urges that she could have been receiving a higher amount of
Social Security benefits but for the marriage. This argument is highly speculative and is
not supported by any evidence presented by Wife other than her testimony that Husband
had preferred she not work outside the home or his businesses. We find Wife’s
arguments regarding the court’s consideration of her age and Social Security benefits to
be unavailing.
Wife also contends that the trial court should not have relied on Webb because the
facts of that case are distinguishable given that the parties in Webb had similar incomes
and the wife had a higher earning capacity than the husband. See Webb, 2023 WL
568331, at *3. By contrast, the trial court in the instant case found that Wife had a lower
income and earning capacity than Husband. Upon review, we disagree with Wife’s
implication that this factual distinction renders inapplicable the principles set forth in
Webb regarding a short-term marriage. As in Webb, the trial court in this case compared
the parties’ respective financial situations prior to the marriage, their current
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-circumstances, and other equitable distribution factors to return the parties as nearly as
possible to the positions they were in prior to the marriage. See id.Furthermore, Wife does not dispute the trial court’s findings that her net worth
prior to the marriage was between $12,000.00 and $17,000.00 while her separate property
and the marital property awarded to her in the divorce equaled $94,000.00 before the
court granted her an additional $25,000.00 in equity from the Marital Residence. In part,
this was due to an increase in the value of Wife’s separate property that was unrelated to
the marriage because she had inherited approximately $56,000.00 from her mother.
However, she had also increased her separate property during the marriage through gifts
given to her by Husband, and it is clear that her net worth will be appreciably more after
the divorce than it was prior to the marriage. Considering all the facts related to the
relevant factors, including the parties’ short-term marriage, we discern no abuse of
discretion in the trial court’s equitable distribution of the marital estate.
V. Alimony
Wife asserts that the trial court abused its discretion by not awarding her a longer
period of transitional alimony and by denying her request for an award of attorney's fees
and expenses as alimony in solido. Although Wife initially sought awards of alimony in
futuro and rehabilitative alimony in her counter-complaint, she has not raised an issue on
appeal regarding the court’s denial of these two types of spousal support. Husband raises
his own issue concerning transitional alimony, arguing that the trial court erred by
granting to Wife any alimony at all because Wife did not demonstrate a need for spousal
support. Accordingly, Husband also maintains that the trial court properly denied Wife’s
request for alimony in solido.
Tennessee law recognizes four types of spousal support: (1) alimony in futuro,
also known as periodic alimony; (2) alimony in solido, also known as lump-sum alimony;
(3) rehabilitative alimony; and (4) transitional alimony. Tenn. Code Ann. § 36-5-121(d)
(West March 31, 2022, to current); Mayfield v. Mayfield, 395 S.W.3d 108, 115 (Tenn.
2012). Our statutory scheme indicates a legislative preference favoring short-term
spousal support, rehabilitative and transitional alimony, over the long-term types of
support, alimony in fiuro and alimony in solido. See Tenn, Code Ann. § 36-5-
121(d)(2)-(3); Mayfield, 395 S.W.3d at 115; Riggs v. Riggs, 250 S.W.3d 453, 456 (Tenn.
Ct. App. 2007). Rehabilitative alimony “ig designed to increase an economically
disadvantaged spouse’s capacity for self-sufficiency.” See Mayfield, 395 S.W.3d at 115
(quoting Gonsewski, 350 S.W.3d at 109). By contrast, transitional alimony, awarded by
the trial court in the case at bar, “is appropriate when a court finds that rehabilitation is
not required but that the economically disadvantaged spouse needs financial assistance in
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adjusting to the economic consequences of the divorce.” See Gonsewski, 350 S.W.3d at
109 (citing Tenn. Code Ann. § 36-5-121(d)(4), (g)C); Riggs, 250 S.W.3d at 456 n.5).
Tennessee Code Annotated § 36-5-121(i) (West March 31, 2022, to current)
provides the following factors to be considered, as relevant, when determining whether
an award of spousal support is appropriate, and if so, “the nature, amount, length of term,
and manner of payment” to be awarded:
(1) The relative earning capacity, obligations, needs, and financial
resources of each party, including income from pension, profit
sharing or retirement plans and all other sources;
(2) The relative education and training of each party, the ability and
opportunity of each party to secure such education and training, and
the necessity of a party to secure further education and training to
improve such party’s earnings capacity to a reasonable level;
(3) The duration of the marriage;
(4) | The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited to,
physical disability or incapacity due to a chronic debilitating disease,
(6) The extent to which it would be undesirable for a party to seek
employment outside the home, because such party will be custodian
of a minor child of the marriage;
(7) The separate assets of each party, both real and personal, tangible
and intangible;
(8) The provisions made with regard to the marital property, as defined
in § 36-4-121;
(9) The standard of living of the parties established during the marriage;
(10) The extent to which each party has made such tangible and
intangible contributions to the marriage as monetary and homemaker
contributions, and tangible and intangible contributions by a party to
the education, training or increased earning power of the other party;
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(11) The relative fault of the parties, in cases where the court, in its
discretion, deems it appropriate to do so; and
(12) Such other factors, including the tax consequences to each party, as
are necessary to consider the equities between the parties.
As our Supreme Court has elucidated, “Tajlthough each of these factors must be
considered when relevant to the parties’ circumstances, ‘the two that are considered the
most important are the disadvantaged spouse’s need and the obligor spouse’s ability to
pay.’” Gonsewski, 350 S.W.3d at 110 (quoting Riggs, 250 S.W.3d at 457). Moreover,
this Court has confirmed that when “considering these two factors, the primary
consideration is the disadvantaged spouse’s need.” Murdock v. Murdock, No. W2019-
(0979-COA-R3-CV, 2022 WL 611024, at *14 (Tenn. Ct. App. Mar. 2, 2022). It is well
settled that “trial courts in Tennessee have broad discretion to determine whether spousal
support is needed and, if so, to determine the nature, amount, and duration of the award.”
Mayfield, 395 S.W.3d at 114; see also Fickle v, Fickle, 287 S.W.3d 723, 736 (Tenn. Ct.
App. 2008).
The trial court made the following specific findings of fact and conclusions of law
concerning Wife’s requests for spousal support:
In application of the factors, Wife received $6,500 toward her expert
and she was given the opportunity to transition into being single, but she
chose not to make preparations. See Tenn. Code Ann. § 36-5-121()(12).
Rather than make preparations to live as a single woman, Wife chose to
request for this Court to award her the [Marital Residence] (which is a
$4(0,000 property), free and clear, half of Husband’s Warehouse Way bank
account, and alimony. See Tenn. Code Ann, § 36-5-121(i)(12). Wife
admits that if she had obtained employment consistent with her
demonstrated earning capacity, that she would not need alimony. See Tenn.
Code Ann. § 36-5-121()(1). Wife admits she had cashed in her retirement
accounts prior to meeting Husband in February 2015. See Tenn. Code Ann.
§ 36-5-121(i)(12). Husband has a higher earning capacity than Wife (and
the Court finds that his income from Warehouse Way is higher than he
testified) and more financial resources. See Tenn. Code Ann. § 36-5-
121(i)(1). The parties presented proof related to their retirement accounts
and pensions, if any, in Exhibit 1. See Tenn. Code Ann. § 36-5-121(i)(7).
Wife has more education than Husband as she has some college education
whereas Husband only graduated from high school. See Tenn. Code Ann. §
36-5-121(i)(2). The parties separated after they had been married for 5 1/2
years and they had been married for nearly 7 years at the time of trial and
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so this is a short-term marriage. See Tenn. Code Ann. § 36-S-121(4)(3).
Husband is older than Wife as he is 67 and she is 63. See Tenn. Code Ann.
§ 36-5-121(i)(4). Wife is in good health, but there is a controversy over
whether Husband had a chronic debilitating illness or not. See Tenn. Code
Ann. § 36-5-121(i)(5). The parties do not have children together and
neither has minor children to care for that would make employment outside
the home improper. See Tenn. Code Ann. § 36-5-121(i)(6). The parties
enjoyed a nice standard of living during their marriage. See Tenn. Code
Ann. § 36-5-121(i)(9). Wife did not make tangible contributions to the
marriage or to Husband’s separate property. See Tenn. Code Ann. § 36-5-
121(i)(10). Wife, however, has been maintaining the [Marital Residence]
after the separation according to her testimony. See Tenn. Code Ann, § 36-
§-121(i)(10). Wife worked for Husband’s separate business, Golf Carts of
Chattanooga, for a time and was paid for her services. See Tenn. Code
Ann. § 36-5-121(i)(10). Husband is at fault for the divorce. See Tenn.
Code Ann. § 36-5-121(1)(11). There was no proof of tax consequences.
See Tenn. Code Ann. § 36-5-121(i)(12). The parties both had credibility
issues at trial. See Tenn. Code Ann. § 36-5-121(i)(12). Wife managed the
parties’ bank accounts and wrote at least $18,000 of checks to herself from
Warehouse Way without Husband’s permission. See Tenn. Code Ann. §
36-5-121(i)(12). Wife filed an under-oath request for exclusive possession
of the marital residence, and swore that she did not have any family in the
area, but then admitted that her sister (the same one that gave her $40,000)
lived 20 minutes away. See Tenn. Code Ann. § 36-5-121(i)(12). Husband
has been inconsistent about his income in this divorce. See Tenn. Code
Ann. § 36-5-121(i)(12).
Based on the application of the statutory factors, the Court finds that
Wife may continue to reside at the [Marital Residence] for up to six (6)
months. During these six (6) months, Husband will pay the house payment
and taxes for the [Marital Residence] and $1,500/month in transitional
alimony to Wife. Wife’s requests for alimony in futuro and/or
rehabilitative alimony are denied for lack of proof in this short-term
marriage.
Upon thorough review, we conclude that the evidence preponderates in favor of
the trial court’s findings that Wife had the need for and Husband had the ability to pay
transitional alimony in the amount of $1,500.00 monthly for a period of six months.
Notwithstanding Wife’s need for some spousal support, we also conclude that the
evidence supports the trial court’s finding that Wife had the resources to pay her
attorney’s fees and expenses incurred in the divorce. We discern no abuse of discretion
_p2 =
in either the trial court?s award to Wife of transitional alimony or the court’s denial of
Wife’s request for alimony in solido.
A. Transitional Alimony
Regarding transitional alimony, ‘Tennessee Code Annotated § 36-5-121(g)(1)
(West March 31, 2022, to current) provides:
Transitional alimony means a sum of money payable by one (1) party to, or
on behalf of, the other party for a determinate period of time. Transitional
alimony is awarded when the court finds that rehabilitation is not necessary,
but the economically disadvantaged spouse needs assistance to adjust to the
economic consequences of a divorce, legal separation or other proceeding
where spousal support may be awarded, such as a petition for an order of
protection.
As our Supreme Court has explained:
Simply put, this type of [transitional] alimony “aid[s] the person in the
transition to the status of a single person.” Mills v. Mills, No. M2009-
02474-COA-R3-CV, 2010 WL 3059170, at *5 (Tenn. Ct. App. Aug. 4,
2010); see also Montgomery v. Silberman, No. M2009-00853-COA-R3-
CV, 2009 WL 4113669, at *2 (Tenn. Ct. App. Nov. 24, 2009) (affirming
trial court’s award of transitional alimony to wife “to bridge the gap, so to
speak, between her married life and single life”); Engesser v. Engesser, 42
So. 3d 249, 251 (Fla. Dist. Ct. App. 2010) (en banc) (describing transitional
alimony as “[b]ridge-the-gap alimony” designed to “smooth the transition
of a spouse from married to single life”). In contrast to rehabilitative
alimony, which is designed to increase an economically disadvantaged
spouse’s capacity for self-sufficiency, transitional alimony is designed to
aid a spouse who already possesses the capacity for self-sufficiency but
needs financial assistance in adjusting to the economic consequences of
establishing and maintaining a household without the benefit of the other
spouse’s income. As such, transitional alimony is a form of short-term
support. Transitional alimony is payable for a definite period of time and
may be modified only upon certain circumstances: (1) the parties agree that
it may be modified; (2) the court provides for modification in the divorce
decree; or (3) the recipient spouse resides with a third person following the
divorce. Tenn. Code Ann. § 36-5-121(g)(2).
Gonsewski, 350 S.W.3d at 109.
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On appeal, Husband does not dispute the trial court’s finding that he had the
ability to pay the amount of support ordered. Instead, the parties’ arguments focus on
whether Wife demonstrated the need for transitional alimony. Wife argues that six
months is not enough time for her to transition from residing at the Marital Residence
(with related expenses paid) to the economic realities of her situation after the divorce.
Regarding her employment status, Wife states in her appellate brief:
Although the Final Decree notes that [Wife] admitted that if she had
obtained employment, she would not need alimony, [Wife] did not obtain
employment. Thus, [Wife] has a need for alimony.
Wife urges this Court to find that she “should have been awarded transitional alimony for
three years with [the] amount being paid each month cut in half for the third year.” Wife
maintains that this longer duration “would have further incentivized [her] to look for
work and to adjust to the consequences of divorce.”
Husband responds that Wife is inappropriately attempting to wield her
unemployment as a “sword” to obtain additional transitional alimony. He argues that
Wife was left with adequate resources from the marital estate and that she “only has
herself to blame” if she is unprepared for the economic realities of divorce because she
did not prepare during the pendency of the divorce, did not save funds she had obtained
during the marriage, and did not seek employment. Husband urges this Court to find that
the trial court erred by awarding any transitional alimony to Wife. Upon careful review,
we decline to do so.
The trial court properly considered all statutory factors, and its findings are
supported by the evidence. Although the court determined that Wife had benefited from
residing in the Marital Residence for two years without secking employment and while
Husband paid the related expenses, the court also found Husband at fault in the divorce
and noted Wife’s testimony that she had maintained the Marital Residence throughout the
divorce proceedings. Moreover, although Wife had the capacity for self-sufficiency, we
find no abuse of discretion in the trial court’s determination that Wife needed some
financial assistance to adjust to the economic consequences of establishing and
maintaining a household without the benefit of Husband’s income. See Gonsewski, 350
S.W.3d at 109.
As Husband points out, Wife’s proposal for three years of tapered transitional
alimony was not raised in the trial court. In support of her proposal, Wife relies on this
Court’s decision in April H. v. Scott H., No. M2018-00759-COA-R3-CV, 2019 WL
2085741, at *5 (Tenn. Ct. App. May 13, 2019), wherein this Court affirmed the trial
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court’s award of “$1,000 in transitional alimony for six months tapering to $500 per
month for six additional months.” In her reply brief, Wife explains that she offered April
H. as an “illustrative example of an award of transitional alimony that would be within
the range of acceptable alternatives given the fact that [Wife] was not awarded the
Marital Residence.” At trial, Wife proposed that she be awarded the Marital Residence
and $2,500.00 in transitional alimony while Husband paid the mortgage debt and for six
months beyond the resolution of that debt. On appeal, Wife argues that given the fact
that she was not awarded the Marital Residence, it was an abuse of discretion for the trial
court not to award her a longer duration of transitional alimony, and she presents the
tapered approach from April H. as a model of an “acceptable alternative[].”
The flaw in Wife’s argument is that upon the trial court’s application of the
statutory factors, the court had broad discretion to fashion an award of spousal support it
found appropriate to assist Wife in transitioning to the economic realities of divorce. See
April H., 2019 WL 2085741, at *3 (“[T]rial courts in Tennessee have broad discretion to
determine whether spousal support is needed and, if so, to determine the nature, amount,
and duration of the award.” (quoting Mayfield, 395 S.W.3d at | 14)). As Wife notes, the
April H. Court concluded in part that the trial court’s tapered approach would give the
wife, whom the trial court had found to have the ability and education to obtain sufficient
employment, “time to find employment and the motivation to do so.” April H., 2019 WL
2085741, at *5. However, this Court reached that conclusion while affirming the trial
court’s discretionary decision, not second-guessing or tweaking it. /d. Here, we
determine that the award of transitional alimony was supported by the evidence, and we
find no reason to second-guess or tweak it. See id.at *3 (“Appellate courts are generally
disinclined to second-guess a trial judge’s spousal support decision unless it is not
supported by the evidence.” (quoting Kinard, 986 S.W.2d at 234)). We affirm the trial
court’s award to Wife of transitional alimony in its entirety.
B. Alimony in Solido
Wife posits that the trial court abused its discretion by denying her request for an
award of attorney’s fees and expenses as an award of alimony in solido because
“requiring her to pay her attorney fees would deplete her assets.” Regarding such an
award, our Supreme Court has instructed:
It is well-settled that an award of attorney’s fees in a divorce case
constitutes alimony in solido. The decision whether to award attorney’s
fees is within the sound discretion of the trial court. As with any alimony
award, in deciding whether to award attorney’s fees as alimony in solido,
the trial court should consider the factors enumerated in Tennessee Code
Annotated section 36-5-121(i). A spouse with adequate property and
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income is not entitled to an award of alimony to pay attorney’s fees and
expenses. Such awards are appropriate only when the spouse seeking them
lacks sufficient funds to pay his or her own legal expenses or the spouse
would be required to deplete his or her resources in order to pay them.
Thus, where the spouse seeking such an award has demonstrated that he or
she is financially unable to procure counsel, and where the other spouse has
the ability to pay, the court may properly grant an award of attorney’s fees
as alimony.
Gonsewski, 350 S.W.3d at 113 (citations omitted). Alimony in solido “may be awarded
in lieu of or in addition to any other alimony award, in order to provide support, including
attorney fees, where appropriate.” Jd. at 108 (quoting Tenn. Code Ann, § 36-5-
121(d)(5)). “When reviewing the trial court’s decision to award attorney’s fees as
alimony in solido, we must consider the same factors contained in Tennessee Code
Annotated § 36-5-121(i) that we considered when analyzing the transitional alimony
award.” Buntin v. Buntin, 673 S.W.3d 593, 612 (Tenn. Ct. App. 2023).
We have previously determined that the trial court based its award to Wife of
transitional alimony upon application of the relevant statutory factors to the evidence
presented at trial. In its divorce decree, the court set Wife’s request for alimony in solido
for a subsequent hearing. Following this hearing, the court denied Wife’s request,
making the following specific findings:
[T]he Court hereby finds that [Wife's] net worth at the end of this marriage,
has increased approximately six (6) times. She has adequate funds from
which she can pay her attorney fees, based on her separate property which
was an inheritance and based upon the funds she has obtained from
[Husband]. This is a relatively short marriage and the Court relies on the
factors stated in its final decree in analyzing the need for alimony in solido.
[Husband] has supported and maintained [Wife] for two (2) years
during the parties’ separation, in addition to the five (5) years of marriage,
and after considering all of the factors, the Court finds [Wife] is not entitled
to other alimony in this case for the payment of attorney fees.
We determine that the evidence preponderates in favor of the trial court’s findings
regarding alimony in solido.
Wife argues that she should not be required to deplete funds received through her
inheritance and her portion of the marital estate to pay her attorney’s fees because she is
the economically disadvantaged spouse, her standard of living has decreased compared to
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the standard the parties enjoyed during the marriage, and she contributed to the marriage
as a homemaker. In analyzing the statutory factors, the trial court considered the
difference in the parties’ respective financial states prior to the marriage as well as the
parties’ standard of living during the marriage. The court also considered that Wife had
written “at least $18,000 of checks to herself from Warehouse Way without Husband’s
permission” and that she had received $40,000.00 in funds from her sister in addition to a
$56,000.00 inheritance from her mother. We agree with the trial court’s finding that
Wife had adequate resources to pay her attorney’s fees.
Additionally, as noted in a previous section of this Opinion, the trial court properly
weighed the short duration of the marriage when considering the parties’ relative
contributions. See Batson, 769 S.W.2d at 859 (“When a marriage is short, the
significance and value of a spouse’s non-monetary contributions is diminished.”). We
conclude that the trial court did not abuse its discretion in denying Wife’s request for
attorney’s fees and expenses as alimony in solido.
VI. Attorney’s Fees on Appeal
Wife requests an award of attorney’s fees on appeal, averring that she is an
economically disadvantaged spouse and that Husband has the ability to pay her attorney’s
fees. Husband opposes Wife’s request and seeks his own award of attorney’s fees on
appeal, asserting that Wife’s appeal is frivolous and devoid of merit pursuant to
Tennessee Code Annotated § 27-1-122. Wife replies that Husband’s request should be
denied because her appeal has merit.
As this Court has explained:
In divorce proceedings, the recovery of attorney’s fees by a litigant is
provided for by statute which provides that a spouse seeking enforcement
of an alimony or custody award in a decree may be granted attorney’s fees
in the discretion of the court before whom the action is pending. Tenn.
Code. Ann. [§] 36-5-103(c) (2003).
The discretion to award attorney’s fees on appeal in a proceeding of
this nature rests within the discretion of the Court. Archer v. Archer, 907
S.W.2d 412, 419 (Tenn. Ct. App. 1995). When considering a request for
attorney’s fees on appeal, we also consider the requesting party’s ability to
pay such fees, the requesting party’s success on appeal, whether the
6 Wife’s sister, G.A., testified that she expected Wife to pay back the $40,000.00 she had given Wife, but
G.A. also stated that she had never asked for the money to be repaid.
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requesting party sought the appeal in good faith, and any other equitable
factors relevant in a given case.
Chase yv. Chase, 670 S.W.3d 280, 304-05 (Tenn. Ct. App. 2022) (quoting Darvarmanesh
vy. Gharacholou, No. M2004-00262-COA-R3-CV, 2005 WL 1684050, at *16 (Tenn. Ct.
App. July 19, 2005)).
Regarding damages for frivolous appeals, Tennessee Code Annotated § 27-1-122
(West 1975 to current) provides:
When it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include but need not be limited to, costs, interest on
the judgment, and expenses incurred by the appellee as a result of the
appeal.
This Court has previously explained:
Parties should not be forced to bear the cost and vexation of baseless
appeals. Accordingly, in 1975, the Tennessee General Assembly enacted
Tenn. Code Ann. § 27-1-122 to enable appellate courts to award damages
against parties whose appeals are frivolous or are brought solely for the
purpose of delay. Determining whether to award these damages is a
discretionary decision.
A frivolous appeal is one that is devoid of merit or one that has no
reasonable chance of succeeding.
Young v. Barrow, 130 S.W.3d 59, 66-67 (Tenn. Ct. App. 2003) (internal citations
omitted).
Considering the resources distributed to Wife in the divorce, coupled with her
separate property and her overall lack of success on appeal, we exercise our discretion to
decline Wile’s request for attorney’s fees on appeal. However, we do not deem Wife’s
appeal to have been frivolous or devoid of merit. Therefore, we also decline Husband’s
request for attorney’s fees on appeal. Accordingly, each party will be responsible for his
or her own appellate attorney’s fees.
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VII. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court in its entirety.
We deny the parties’ respective requests for awards of attorney’s fees on appeal. We
remand this case to the trial court for enforcement of the judgment and collection of costs
below. Costs on appeal are assessed to the appellant, Kimberly Champion Leonard.
s/ Thomas R. Frierson, II
THOMAS R. FRIERSON, II, JUDGE
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