Kacy Collums Davis v. Richard E. Davis, Jr.

10/13/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 8, 2021 Session
KACY COLLUMS DAVIS v. RICHARD E. DAVIS, JR.
Appeal from the Circuit Court for Shelby County
CT-002506-13 Rhynette N. Hurd, Judge
No. W2019-02245-COA-R3-CV
In this divorce case, Richard E. Davis, Jr. (“Husband”) challenges the trial court’s division
of the marital estate, the award of spousal support and attorney’s fees to Kacy Collums
Davis (“Wife”), and the trial court’s designation of Wife as primary residential parent.
Wife asserts that the trial court erred in its division of the marital estate, in declining to
award her 100% of her attorney’s fees, in denying her motion to disqualify the guardian ad
litem, in awarding the parties equal parenting time, and in calculating Husband’s income
for child support purposes. We modify the division of the marital estate (1) to correct a
miscalculation, agreed by the parties to have been a clerical error in the trial court’s order,
counting Wife’s retirement account twice; and (2) to reflect that Wife shall be responsible
for the debt for her first attorney’s fees, which is secured by a lien on the marital residence.
We affirm the trial court’s judgment in all other respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed as Modified; Case Remanded
KRISTI M. DAVIS, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and CARMA DENNIS MCGEE, J., joined.
Lara E. Butler and Elizabeth W. Fyke, Memphis, Tennessee, for the appellant, Richard E.
Davis, Jr.
Stevan L. Black, Vickie Hardy Jones, and Holly J. Renken, Memphis, Tennessee, for the
appellee, Kacy Collums Davis.
OPINION
I. BACKGROUND
The parties were married in 2003. They have five children, the eldest three of whom
were born to Mother and her first husband and adopted by Father after the marriage. These
three children had reached adulthood by the time of the divorce trial, which took place over
seven days in late 2018 and February of 2019. The youngest two children were born to the
parties during the marriage. The parties separated in January of 2013. Mother filed for
divorce in June of 2013. More than six years of highly contentious litigation followed.
According to the trial court’s findings of fact,
Wife [went] to great lengths to restrict Husband’s parenting time, including
accusing Husband of abusing the children, reporting Husband to DCS, and
accusing Husband of drinking.
None of Wife’s allegations against Husband have been substantiated.
Because of Wife’s efforts to limit Husband’s parenting time, Husband moved
to have the Court appoint a guardian ad litem.
(Numbering in original omitted). The trial court entered a consent order appointing Shari
M. Myers as guardian ad litem (“GAL”) for the children on April 25, 2014. Over the course
of the litigation, Husband filed numerous attempts to exercise and increase his parenting
time with the children. As found by the trial court, “Wife does not believe the minor
children can have a positive relationship with Husband, and, therefore, has resisted
vigorously Husband’s efforts for more parenting time.” The trial court also found that
“[d]uring the course of the proceedings, Wife has filed at least five contempt petitions
against Husband” and “[n]one of the contempt petitions have resulted in Husband being
found in contempt.”
On November 7, 2014, the trial court entered a consent order whereby the “parties
agree that for good cause, the children’s treating therapist shall be changed to Dr. Catherine
Collins,” each agreed to abide by the reasonable recommendations of Dr. Collins, and
Husband agreed to pay the costs of therapy and treatment.
On December 9, 2014, Wife’s first attorney withdrew from her representation and
filed an attorney’s lien “against all real estate, personal property, future payments . . . and
proceeds received by [Wife] in her divorce, for attorney’s fees and expenses due and owing
pursuant to a contract in the amount of $67,692.69.” By the time of trial, interest had
accrued on the unpaid fees, bringing the balance for the debt owed for fees to Wife’s first
attorney to $81,959.77.
2
In mid-2016, the trial court entered an order for a forensic psychological custodial
evaluation of the parents and the two youngest children. The order designates Dr. John
Ciocca as “the agreed Forensic Psychological Custodial Evaluator.” Dr. Ciocca testified
as follows regarding his conclusions:
I made the determination that both parents were fit, that the children were
attached to both parents. The father certainly did not represent a threat of
harm to the children, which was one of the original considerations of the case,
. . . and that there needed to be substantial time with the father in order to ̶
that their best interest would be served by having substantial time with both
of them.
* * *
[M]y recommendation was substantially equal time, and ideally it should
take the form of alternating weeks of parenting time for each parent
throughout the calendar year with adjustments made for routine holidays to
be alternated in some reasonable way.
The GAL filed a proposed parenting plan that incorporated the recommendations
and conclusions of Drs. Collins and Ciocca on April 18, 2018. The proposed plan provided
equal parenting time for the parties, an outcome that Wife continued to vigorously oppose.
She filed a motion to disqualify the GAL shortly thereafter, on May 25, 2018. As grounds,
Wife argued that Husband entered into a bartering agreement with the GAL whereby he
provided landscaping services in lieu of payment for her attorney fees as GAL. Wife did
not assert that the bartering payment agreement was improper, but that Husband and/or the
GAL should have informed her and the trial court of the agreement. Wife also alleged that
the GAL “has a personal relationship with Father” that created a potential conflict of
interest. The GAL opposed the motion to disqualify and denied any inappropriate or
unprofessional behavior on her part.
The trial court conducted a hearing on the motion to disqualify that lasted three days
in July of 2018. The court denied the motion, stating among other things that “it wasn’t
probably the best idea for this type of bartering to have occurred without the knowledge of
the other party, but there is in my view no requirement that the party who is required to pay
for the services of the guardian ad litem has to let the other party know how that is being
paid.” The trial court further found no conflict of interest or improper conduct by the GAL.
Witnesses at trial included the parties, Dr. Ciocca, Dr. Collins, Wife’s sister, Wife’s
first attorney, Husband’s brother-in-law, and Husband’s accountant. After the conclusion
of the trial, the trial court entered a permanent parenting plan order that designated Wife
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primary residential parent, and awarded each party 182.5 days parenting time per year with
“alternat[ing] uninterrupted week to week parenting time” from Friday to Friday and
evenly split holidays. The trial court found Husband’s gross monthly income to be $8,659
and Wife’s $2,530. Husband was ordered to pay $889 per month in child support, in
accordance with the child support guidelines.
Regarding its award of spousal support, the trial court considered the statutory
factors provided by Tenn. Code Ann. § 36-5-121 and awarded Wife transitional alimony
in the amount of $2,500 per month for five years. The trial court also awarded Wife $7,500
of her attorney’s fees as alimony in solido. In dividing the marital estate, the trial court
found all of the parties’ assets to be marital and awarded Husband property valued at
$279,250 (61.3% of the marital assets) and Wife $175,980 (38.7%).1 The court found the
value of the marital residence to be $600,000, encumbered by a mortgage of $317,500.
The divorce decree states that “[t]aking into consideration the attorney’s lien” filed against
the residence by Wife’s first attorney, “equity in the marital residence is now
approximately $200,500.00.”2 The trial court assigned marital debts totaling $221,123.38
to Husband (82.6% of the total debt), and $46,483.96 to Wife (17.4%). Included in this
division of debt was the trial court’s holding that “Husband and Wife shall each be
responsible for payment of one-half of the balance due to the GAL.” The net value of the
property awarded to Wife was $129,496.04 (69% of the net marital estate), and to Husband
$58,126.62 (31%).
The day after the trial court entered its findings of fact and conclusions of law,
Wife’s attorney filed a notice of attorney’s lien “in the amount of $321,059.17 [that]
attaches to all that is, or has been, recovered by or awarded to [Wife], whether the award
be alimony, attorney fees, money, division of assets, bank accounts, investment and/or
retirement accounts, chattels, realty, or interests or equities in chattels, realty or any other
property.” Following the trial court’s entry of final divorce decree, Husband timely filed
a notice of appeal to this Court.
II. ISSUES PRESENTED
Husband presents the following issues:
1
The parties agree that the trial court’s order contains a clerical error in counting Wife’s retirement account
twice, once valued at $18,230, and once at $18,000. These numbers reflect the corrected calculation, which
results in Wife’s award being $18,000 less than calculated by the trial court.
2
As found by the trial court, Wife’s first attorney testified that the amount of her lien at time of trial was
$81,959.77. The trial court appears to have rounded this number up slightly to $82,000 to reach the exact
valuation of $200,500 equity in the residence.
4
1. Whether the trial court erred in its classification and division of assets and debts of the
parties.
2. Whether the trial court erred in awarding alimony to Wife.
3. Whether the trial court erred in awarding attorney’s fees to Wife rather than Husband,
and in its allocation of responsibility to pay the GAL’s fees.
4. Whether the trial court erred by designating Wife the primary residential parent.
Wife raises the following issues:
1. Whether the trial court erred in its classification and division of the assets and debts of
the parties.
2. Whether the trial court erred in awarding Wife transitional alimony of $2,500 per month
for sixty months.
3. Whether the trial court erred in refusing to order Husband to pay 100% of Wife’s
attorney’s fees.
4. Whether the trial court erred by awarding equal parenting time to the parties.
5. Whether the trial court erred by denying Wife’s motion to disqualify the GAL.
6. Whether the trial court erred in its calculation of Husband’s income for child support
purposes.
7. Whether Wife should be awarded her attorney’s fees on appeal.
III. ANALYSIS
A. Classification and Division of Assets and Debts
Each party challenges the trial court’s classification and division of assets and debts.
Our Supreme Court has defined the applicable standard of review of issues regarding
property classification and division in divorce proceedings:
The classification of particular property as either separate or marital is a
question of fact to be determined in light of all relevant circumstances. See
Langford v. Langford, 220 Tenn. 600, 421 S.W.2d 632, 634 (1967);
Cutsinger v. Cutsinger, 917 S.W.2d 238, 241 (Tenn. Ct. App. 1995). This
Court gives great weight to a trial court’s decisions regarding the division of
marital assets, and we will not disturb the trial court’s ruling unless the
distribution lacks proper evidentiary support, misapplies statutory
requirements or procedures, or results in some error of law. Keyt v. Keyt,
244 S.W.3d 321, 327 (Tenn. 2007). As to 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.” Id. However, we accord no presumption of correctness to the
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trial court’s conclusions of law. Id.Snodgrass v. Snodgrass, 295 S.W.3d 240, 245-46 (Tenn. 2009).
After classifying and valuing marital property, a trial court must equitably divide it
between the parties. See Tenn. Code Ann. § 36-4-121(a)(1); Luplow v. Luplow, 450
S.W.3d 105, 109 (Tenn. Ct. App. 2014) (citing Miller v. Miller, 81 S.W.3d 771, 775 (Tenn.
Ct. App. 2001)). An equitable division of marital property does not require that the
property be divided equally. Id. at 109-10 (citing Robertson v. Robertson, 76 S.W.3d 337,
341 (Tenn. 2002)). Nor does it require that each party receive a share of every item
classified as marital property. Morton v. Morton, 182 S.W.3d 821, 833-34 (Tenn. Ct. App.
2005) (quoting King v. King, 986 S.W.2d 216, 219 (Tenn. Ct. App. 1998)). According to
Tenn. Code Ann. § 36-4-121(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;
(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
6
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. . . .
(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.
The trial court has broad discretion in devising an equitable division of marital property.
Flannary v. Flannary, 121 S.W.3d 647, 650 (Tenn. 2003). This Court will not overturn
the trial court’s determination unless “it is inconsistent with the statutory factors or lacks
proper evidentiary support.” Trezevant v. Trezevant, 568 S.W.3d 595, 607 (Tenn. Ct. App.
2018) (citing Baggett v. Baggett, 422 S.W.3d 537, 543 (Tenn. Ct. App. 2013)).
Husband appeals the trial court’s ruling regarding a single asset ̶ a 1978 Toyota
Landcruiser. The parties agree that he owned it prior to the marriage. During the course
of the marriage, Husband worked on restoring the Landcruiser, expending marital funds to
do so. Tenn. Code Ann. § 36-4-121(b)(1)(B)(i) provides that “‘[m]arital property’ includes
income from, and any increase in the value during the marriage of, property determined to
be separate property . . . if each party substantially contributed to its preservation and
appreciation.” As with nearly every conceivable issue in contention in this case, the
parties’ testimony sharply differed on the extent of the renovations to the Landcruiser.
Wife testified that it was not completely paid for at the time of the marriage, Husband paid
off the remaining debt during the marriage, and Husband “told me he spent around $25,000
restoring it.” Husband testified that it was fully paid for before the marriage and that the
work he did on it was relatively minor, including new paint, tires, stereo system, and seats.
The trial court had the opportunity to see and evaluate this conflicting testimony.
Although the trial court’s chart incorporating the specifics of its division describes
each party’s portion of the Landcruiser’s value as “one-half,” the order also clarifies and
specifies the court’s ruling as follows: “Husband [shall] have the restored Landcruiser
appraised by a qualified appraiser and shall pay Wife fifty percent of [the] difference
between the value before and after the restoration.” It thus appears that the trial court’s
award of the Landcruiser was in accordance with Tenn. Code Ann. § 36-4-121(b)(1)(B)(i),
and we do not find error in its decision to divide the amount of the increased value of the
vehicle resulting from restoration during the marriage.
The remaining issues present an unusual intersection of the principles governing the
division of a marital estate, spousal support, and attorney’s fees. Husband argues that the
effect of removing the amount of Wife’s debt to her first attorney from the equity in the
7
marital residence to be divided was an improper and unwarranted award of attorney’s fees
to Wife. The specific findings of fact by the trial court on this point are as follows:
In October 2014, the parties agreed Wife would move out, and Husband
would move back into the marital residence and make necessary repairs to
place the residence on the market. The parties intended with sale of the
marital property, which the parties purchased in 2010 for approximately
$410,000.00, that Husband would be reimbursed for his expenses related to
repairs, and, after payment of debt on the property and other costs, each party
would receive fifty percent of the remaining proceeds.
Before the parties could agree on a real estate agent, the attorney who
represented Wife until December 9, 2016, placed a lien against the marital
residence, a lien that is currently $81,959.77. The attorney holding the lien
agreed to release the lien to allow the house to be sold so long as the proceeds
were held with the Court pending resolution of the divorce.
The marital residence has not yet been sold. Using marital funds, Husband
made several unanticipated repairs to the residence, including work required
in 2017 because of a broken water line that caused significant damage to the
marital residence. The marital residence is now valued at approximately
$600,000.00. The balance on the mortgage is approximately $317,500.00.
Taking into consideration the attorney’s lien, equity in the marital residence
is now approximately $200,500.00.
(Numbering in original omitted; paragraphs reorganized). The trial court ordered:
Husband shall be allowed to remain in the marital residence; provided,
however, Husband shall within three months of entry of the Final Decree,
refinance the marital residence, relieving Wife of all liability and paying
Wife fifty percent of the equity, after payment of the attorney’s lien and any
fees related to the refinancing.
If within three months Husband is unable to refinance the marital residence
on reasonable terms with a reduction in the monthly mortgage payment, the
parties shall place the property on the market for sale with a qualified realtor.
Upon the sale of the home, the mortgage, realtor’s fees, attorney’s lien, and
customary and ordinary closing costs shall be paid in full, after which the
parties shall equally divide the proceeds.
(Emphasis added).
8
The effect of the trial court’s judgment in this regard is to make Husband responsible
for paying one-half of Wife’s $81,959.77 fee for her first attorney. As our Supreme Court
has stated,
It is well-settled that an award of attorney’s fees in a divorce case constitutes
alimony in solido. See Tenn. Code Ann. § 36–5–121(h)(1) (“alimony in
solido may include attorney fees, where appropriate”); Herrera v. Herrera,
944 S.W.2d 379, 390 (Tenn. Ct. App. 1996). . . . 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 income is not
entitled to an award of alimony to pay attorney’s fees and expenses. Umstot
v. Umstot, 968 S.W.2d 819, 824 (Tenn. Ct. App. 1997). Such awards are
appropriate only when the spouse seeking them lacks sufficient funds to pay
his or her own legal expenses, see Houghland v. Houghland, 844 S.W.2d
619, 623 (Tenn. Ct. App. 1992), or the spouse would be required to deplete
his or her resources in order to pay them, see Harwell v. Harwell, 612 S.W.2d
182, 185 (Tenn. Ct. App. 1980). 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. See id. at 185.
Gonsewski v. Gonsewski, 350 S.W.3d 99, 113 (Tenn. 2011) (emphasis added). This Court
has also held that in making an award of attorney’s fees as alimony in solido, “a court must
carefully consider the relevant factors set forth in Tenn. Code Ann. § 36-5-121(i).” Yattoni-
Prestwood v. Prestwood, 397 S.W.3d 583, 597 (Tenn. Ct. App. 2012); accord Ellis v. Ellis,
621 S.W.3d 700, 708 (Tenn. Ct. App. 2019). Because the trial court did not consider or
apply the statutory factors set forth in section 36-5-121(i) as required in making what is
clearly a $40,979.89 award of Wife’s attorney’s fees, it applied an incorrect legal standard.
We have determined that under the circumstances presented in this case, such an award is
unwarranted.
In the seminal Gonsewski case, the Supreme Court considered an award of
attorney’s fees in a contentious divorce action and stated:
The trial court declined to make such an award to either party because much
of the expense they incurred in litigating the case was due to numerous,
unnecessary filings resulting in numerous, unnecessary court hearings. The
Court of Appeals reversed and awarded Wife her attorney’s fees and
expenses, both in the trial court and on appeal, as a form of alimony in solido.
In our view, this was error.
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350 S.W.3d at 113. The Gonsewski Court, observing that “the procedural history of this
case militates against an award of attorney’s fees and expenses,” id., reviewed the
voluminous filings, allegations, and litigated arguments between the parties in that case,
and stated, “[w]e fully agree with the trial court that each party should bear the expense of
his or her litigiousness in what should have been a relatively uncomplicated, routine
divorce proceeding.” Id. at 114.
The procedural history of the present case has similarities to the situation presented
to the Supreme Court in Gonsewski. The voluminous size of the technical record and the
enormous legal bills incurred by both parties attest to their extraordinary litigiousness. As
found by the trial court, Wife filed “at least” five petitions for contempt against Husband,
none of which were successful. Wife made numerous allegations of abuse against
Husband, “including inappropriate contact with the children by Husband and by a young
female family member,” according to the trial court’s findings, which necessitated DCS
involvement; but the trial court found that “DCS investigations of the accusations have
resulted in no finding of abuse.” To provide one example, Wife’s response to the GAL’s
report and proposed parenting plan included, but was not limited to, the following: (1)
motion to disqualify the GAL; (2) subpoena to take deposition duces tecum of the GAL;
(3) motion to consider child’s preference and allow testimony of children; (4) motion to
transfer and assign the case to an out-of-county judge; (5) motion to exclude the testimony
of Dr. Ciocca, the custodial evaluator; and (6) a separate petition to disqualify the GAL
with accompanying memorandum of law, filed after Wife’s motion seeking the same result.
For his part, Husband also filed no small number of motions with the trial court. He
argues that most of them involved attempts to obtain and exercise visitation with his
children. Wife asserts that her litigiousness was motivated by her genuine fears for the
safety and welfare of the children. The parties were within their rights to fully and
strenuously litigate each issue, but in the absence of circumstances warranting an exception
to the application of the American Rule, they should each be responsible for their own
attorney’s fees. See, e.g., Coleman v. Coleman, No. W2011-00585-COA-R3-CV, 2015
WL 479830, at *6 (Tenn. Ct. App. Feb. 4, 2015) (quoting the trial court’s observation that
each side “can certainly engage in such a strategy” of using “every litigation arrow in his
quiver” but “must recognize that [he or] she cannot expect the other side to pay for it”).
We modify the trial court’s division to provide that the parties shall receive fifty percent of
the equity in the marital residence, without deducting the amount of the debt secured by an
attorney’s lien for fees charged by Wife’s first attorney. The effect of our ruling is that
each party is responsible for his or her own divorce attorney’s fees, with the exception of
the $7,500 award of alimony in solido, which the trial court ordered under a proper analysis
of the factors in Tenn. Code Ann. § 36-5-121, as will be discussed further below.
10
Husband argues that Wife’s litigation tactics were so unjustified and extreme that
they should be held to be a dissipation of the marital estate. The trial court denied this
request, and we agree. “Dissipation of assets” is statutorily defined at Tenn. Code Ann. §
36-4-121(5)(B) 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.” In Larson-Ball
v. Ball, 301 S.W.3d 228, 235 (Tenn. 2010), the Court explained the concept of dissipation
as follows:
Whether dissipation has occurred depends on the facts of the particular case.
24 Am.Jur.2d Divorce and Separation § 526 (2009). The party alleging
dissipation carries the initial burden of production and the burden of
persuasion at trial. Burden v. Burden, 250 S.W.3d 899, 919 (Tenn. Ct .App.
2007), perm. to app. denied, (Tenn. Feb. 25, 2008). Dissipation of marital
property occurs when one spouse wastes marital property and thereby
reduces the marital property available for equitable distribution. See Altman
v. Altman, 181 S.W.3d 676, 681–82 (Tenn. Ct. App .2005), perm. to app.
denied, (Tenn. Oct. 31, 2005). Dissipation “typically refers to the use of
funds after a marriage is irretrievably broken,” Broadbent v. Broadbent, 211
S.W.3d 216, 220 (Tenn. 2006), is made for a purpose unrelated to the
marriage, and is often intended to “hide, deplete, or divert” marital property.
Altman, 181 S.W.3d at 681-82. In determining whether dissipation has
occurred, trial courts must distinguish between dissipation and discretionary
spending. Burden, 250 S.W.3d at 919–20; 24 Am.Jur.2d Divorce and
Separation § 526 (2009). Discretionary spending might be ill-advised, but
unlike dissipation, discretionary spending is typical of the parties’
expenditures throughout the course of the marriage. Burden, 250 S.W.3d at
919-20.
Husband cites no legal authority whereby a Tennessee court has found the
expenditure of legal fees incurred in prosecuting or defending a divorce action to be
dissipation of marital assets. The sole case cited and relied upon by Husband, Beyer v.
Beyer, 428 S.W.3d 59, 83 (Tenn. Ct. App. 2013), found dissipation by a husband who paid
his former attorney to develop a separate civil action against his spouse for “parental
alienation syndrome.” This is a different situation from paying a divorce attorney for doing
legal work on the actual divorce case, as was the situation here. In this case, the trial court
found only that “[t]his litigation has dissipated the marital assets, and each party will have
to adjust their standard of living to make ends meet in the future.” Because “dissipation”
is in some ways a legally defined term of art, it may be more precise to say that the litigation
depleted the marital estate, which is certainly true. In any event, we decline to hold that
Wife dissipated the marital assets by incurring attorney’s fees for the divorce action.
11
Wife argues that the trial court erred in classifying some of the debts incurred by the
parties as marital. While the parties were still married but litigating the divorce, they each
borrowed money from family members. The trial court found that Wife had debts to her
mother and brother totaling $22,300, and Husband had borrowed $163,458.42 from his
parents. In dividing the marital estate, the court allocated Wife’s $22,300 debt to her, and
Husband’s $163,458.42 debt to him. Wife argues that each party took the borrowed money
and used it to pay attorney’s fees. Citing this Court’s observation in Rountree v. Rountree,
369 S.W.3d 122, 134 (Tenn. Ct, App. 2012) that “[a]ttorney fees incurred by each party
are not marital debt,” Wife asserts that these debts should not have been classified as
marital. The testimony in the record is unclear as to what proportion of the money
borrowed went to pay the parties’ attorneys. It is well-established that “‘marital debts’ are
all debts incurred by either or both spouses during the course of the marriage up to the date
of the final divorce hearing.” Alford v. Alford, 120 S.W.3d 810, 813 (Tenn. 2003); England
v. Lowry, No. E2019-01660-COA-R3-CV, 2020 WL 4355051, at *5 (Tenn. Ct. App. July
29, 2020). In the present case, if the debts were reclassified as separate as Wife requests,
nothing would change from a practical financial aspect, because the trial court assigned
each party 100% of his or her respective debts. Technically, the division of the marital
estate would be much closer to 50/50 if this classification modification happened, as Wife
asserts; but neither party would receive a dollar more or less than under the trial court’s
division as ordered. We find no error in the trial court’s classification and allocation of the
marital debt.
B. Award of Transitional Alimony and Alimony in Solido
Husband argues on appeal that the trial court erred in awarding spousal support to
Wife, both in the form of $2,500 per month in transitional alimony for five years, and
$7,500 of Wife’s attorney’s fees as alimony in solido. Wife argues that the alimony awards
were insufficient and should have been larger. Our standard of review of the trial court’s
spousal support decision is as stated by the Supreme Court:
For well over a century, Tennessee law has recognized that trial courts should
be accorded wide discretion in determining matters of spousal support. This
well-established principle still holds true today, with this Court repeatedly
and recently observing that trial courts have broad discretion to determine
whether spousal support is needed and, if so, the nature, amount, and duration
of the award.
Equally well-established is the proposition that 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, 40 S.W.3d at 470; Robertson v. Robertson,
12
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 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.
Gonsewski, 350 S.W.3d at 105-06 (internal citations and footnote omitted).
A trial court’s award of spousal support is governed by Tenn. Code Ann. § 36-5-
121(i), which provides:
In determining whether the granting of an order for payment of support and
maintenance to a party is appropriate, and in determining the nature, amount,
length of term, and manner of payment, the court shall consider all relevant
factors, including:
(1) The relative earning capacity, obligations, needs, and financial resources
of each party, including income from pension, profit sharing or retirement
plans and all other sources;
(2) The relative education and training of each party, the ability and
opportunity of each party to secure such education and training, and the
necessity of a party to secure further education and training to improve such
party’s earnings capacity to a reasonable level;
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(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited to,
physical disability or incapacity due to a chronic debilitating disease;
(6) The extent to which it would be undesirable for a party to seek
employment outside the home, because such party will be custodian of a
minor child of the marriage;
(7) The separate assets of each party, both real and personal, tangible and
intangible;
(8) The provisions made with regard to the marital property, as defined in §
36-4-121;
(9) The standard of living of the parties established during the marriage;
(10) The extent to which each party has made such tangible and intangible
contributions to the marriage as monetary and homemaker contributions, and
tangible and intangible contributions by a party to the education, training or
increased earning power of the other party;
(11) The relative fault of the parties, in cases where the court, in its discretion,
deems it appropriate to do so; and
(12) Such other factors, including the tax consequences to each party, as are
necessary to consider the equities between the parties.
At the time of trial, Husband was 46 years old and Wife was 44. Both were in
generally good health. Husband owns and operates a lawn care and landscaping business.
The trial court found his average income for the years 2016-2018 was $97,202.94, and that
his net income was around $8,300 per month. Wife was working about 32 hours per week
at a dental clinic, earning approximately $18.39 an hour. The parties stipulated that her
gross monthly income was $2,530.00. Among its extensive findings of fact, the trial court
stated as follows, in part pertinent to the section 36-5-121 spousal support analysis:
The parties have been married for fifteen years but have lived apart for five
years. Both parties are mentally and physically fit. They are both capable of
increasing their earnings.
Wife is intelligent, steadily employed, and has the ability to advance in her
career over time. Primarily because of the substantial expense of this
litigation, Wife has not achieved a comparable lifestyle to her lifestyle while
living with Husband. Her current [income] is several thousand dollars [per
month] less than Husband’s. Wife made significant contributions to the
marriage and family[,] allowing Husband to start and develop a lucrative
business.
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The income from Husband’s [business] fluctuates throughout the year and
on an annual basis. Husband has borne the lion’s share of the expense related
to this litigation and he has paid child support and marital expenses that
benefit Wife for the nearly six years of this litigation.
The Court finds that Wife is economically disadvantaged as compared to
Husband and temporarily needs funds to adjust to living post-divorce.
Because of the nature of Husband’s business, Husband has the ability to
increase his earnings.
The trial court found that the parties’ affidavits “anticipated expenses that far exceed what
they reasonably will be able to afford considering the[ir] incomes and debts,” and “each
party will have to adjust their standard of living to make ends meet in the future.” The
evidence does not preponderate against the trial court’s findings of fact.
It is axiomatic that “the two most important factors considered are the need of the
disadvantaged spouse and the obligor spouse’s ability to pay.” Perry v. Perry, 114 S.W.3d
465, 467 (Tenn. 2003); Gonsewski, 350 S.W.3d at 110. The trial court determined that
Wife had the need for, and Husband the ability to pay, transitional alimony of $2,500 per
month for five years, given the disparities in the parties’ respective incomes. Husband
argues that Wife’s large expenditures of time and money in litigation were mostly fruitless
and unwarranted attempts to alienate him from the children, pointing to these statements
made by Wife as examples of her attitude toward him and the divorce litigation:
Q: Do you take any responsibility for the litigation in this case being
dr[agged] out?
A: No.
Q: Do you take any responsibility for any problems whatsoever in the
marriage?
A: No, ma’am.
* * *
Q: Do you have any recollections of any positive experiences the children
had with their father?
A: I cannot recall any. Possibly when they were a baby in holding them.
When we went on vacation, he ̶ it was once a year, and he was usually
drinking heavily, so ̶
Q: And that’s a positive experience with the children?
15
A: No, it’s not.
Q: My question is . . . do you have any recollections of positive experiences ̶
A: I do not.
Q: ̶ for the children?
A: I do not.
Q: Zero?
A: Zero.
The trial court found that “Wife has demonstrated throughout the parties’ separation that
she is not willing to facilitate meaningful parenting time for Husband.” The court also said
that it considered “the relative fault of the parties,” but did not further elaborate.
Husband argues that the trial court should have awarded him attorney’s fees rather
than Wife. Wife argues that the trial court should have awarded her all of her attorney’s
fees. As already stated, it is apparent from the record that the trial court properly considered
and applied the statutory factors of Tenn. Code Ann. § 36-5-121 in awarding Wife $7,500
of her attorney’s fees as alimony in solido. Keeping in mind the deferential standard of
review emphasized by the Supreme Court in Gonsewski, we decline to hold that the trial
court abused its discretion in its spousal support decisions, and we affirm them.
C. Permanent Parenting Plan
Wife argues that the trial court erred in equally dividing the parenting time between
the parties, asserting that Husband’s time should have been less. Husband argues that the
trial court should have named him the primary residential parent instead of Wife. A trial
court’s decision regarding a parenting schedule is subject to review under the deferential
abuse of discretion standard. C.W.H. v. L.A.S., 538 S.W.3d 488, 495 (Tenn. 2017). As the
Supreme Court instructed in C.W.H.,
This Court has previously emphasized the limited scope of review to be
employed by an appellate court in reviewing a trial court’s factual
determinations in matters involving child custody and parenting plan
developments. Armbrister [v. Armbrister], 414 S.W.3d [685], 692-93
[(Tenn. 2013]. . . . Indeed, trial courts are in a better position to observe the
witnesses and assess their credibility; therefore, trial courts enjoy broad
discretion in formulating parenting plans. Id. at 693 (citing Massey-Holt v.
Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007)). “Thus, determining the
details of parenting plans is ‘peculiarly within the broad discretion of the trial
judge.’ ” Id. (quoting Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988)).
Appellate courts should not overturn a trial court’s decision merely because
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reasonable minds could reach a different conclusion. Eldridge v. Eldridge,
42 S.W.3d 82, 85 (Tenn. 2001).
Id. (emphasis in original).
A trial court making a custody determination must apply the following analysis
proscribed by Tenn. Code Ann. § 36-6-106:
(a) In a suit for annulment, divorce, separate maintenance, or in any other
proceeding requiring the court to make a custody determination regarding a
minor child, the determination shall be made on the basis of the best interest
of the child. In taking into account the child’s best interest, the court shall
order a custody arrangement that permits both parents to enjoy the maximum
participation possible in the life of the child consistent with the factors set
out in this subsection (a), the location of the residences of the parents, the
child’s need for stability and all other relevant factors. The court shall
consider all relevant factors, including the following, where applicable:
(1) The strength, nature, and stability of the child’s relationship with each
parent, including whether one (1) parent has performed the majority of
parenting responsibilities relating to the daily needs of the child;
(2) Each parent’s or caregiver’s past and potential for future performance of
parenting responsibilities, including the willingness and ability of each of the
parents and caregivers to facilitate and encourage a close and continuing
parent-child relationship between the child and both of the child’s parents,
consistent with the best interest of the child. In determining the willingness
of each of the parents and caregivers to facilitate and encourage a close and
continuing parent-child relationship between the child and both of the child’s
parents, the court shall consider the likelihood of each parent and caregiver
to honor and facilitate court ordered parenting arrangements and rights, and
the court shall further consider any history of either parent or any caregiver
denying parenting time to either parent in violation of a court order;
(3) Refusal to attend a court ordered parent education seminar may be
considered by the court as a lack of good faith effort in these proceedings;
(4) The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care;
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(5) The degree to which a parent has been the primary caregiver, defined as
the parent who has taken the greater responsibility for performing parental
responsibilities;
(6) The love, affection, and emotional ties existing between each parent and
the child;
(7) The emotional needs and developmental level of the child;
(8) The moral, physical, mental and emotional fitness of each parent as it
relates to their ability to parent the child. . . .
(9) The child’s interaction and interrelationships with siblings, other relatives
and step-relatives, and mentors, as well as the child’s involvement with the
child’s physical surroundings, school, or other significant activities;
(10) The importance of continuity in the child’s life and the length of time
the child has lived in a stable, satisfactory environment;
(11) Evidence of physical or emotional abuse to the child, to the other parent
or to any other person. The court shall, where appropriate, refer any issues
of abuse to juvenile court for further proceedings;
(12) The character and behavior of any other person who resides in or
frequents the home of a parent and such person’s interactions with the child;
(13) The reasonable preference of the child if twelve (12) years of age or
older. The court may hear the preference of a younger child upon request.
The preference of older children should normally be given greater weight
than those of younger children;
(14) Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules; and
(15) Any other factors deemed relevant by the court.
The trial court found as follows, in pertinent part:
Wife has performed the majority of parenting responsibilities related to the
daily needs of the children; however, the strength, nature, and stability of the
18
children’s relationship with Husband have been adversely affected by Wife’s
attempts to alienate the children from Husband.
Based on past performance and potential for future performance, Husband is
more willing to facilitate and encourage the children’s relationship with Wife
than Wife is willing to facilitate and encourage the children’s relationship
with Husband. Wife’s unwillingness to accept the opinion of professionals
and all evidence that Husband has remained sober suggests Wife may
continue with efforts to alienate the children from Husband.
* * *
Throughout the marriage, Wife has taken the greater responsibility for
performing parental responsibilities.
As reflected in the reports from professionals, love, affection, and emotional
ties exist between the children and both parents.
Both parents have the ability to meet the emotional and developmental needs
of the children provided Wife continues in counseling with a counselor she
trusts and accepts the professional advice of the counselor, and Husband
refrains from consumption of alcohol and remains in family counseling as
recommended by the counselor.
Although Husband has abused alcohol, he has demonstrated his ability to
refrain from drinking. The Court finds him morally, physically, mentally,
and emotionally fit to parent the children. Wife is a loving mother whose
concern regarding Husband’s drinking in the past has caused her mental and
emotional stress that, according to the professionals in the case, has impacted
the children’s relationship with Husband.
The children have a close relationship with their adult siblings and with other
members of Wife’s family. The children also have a close relationship with
members of Husband’s family.
The children have lived primarily with Wife at their maternal grandparents’
home. Though not ideal, Wife’s living arrangements have provided a stable
environment for the children.
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Although Wife alleges Husband’s behavior was abusive while he was
intoxicated, Husband has refrained from drinking (except for one glass of
wine in 2017) for over five years.
* * *
Both parties are able to adjust their employment schedules to accommodate
parenting; however, Husband works longer hours and does not have family
members in town who can take care of the children when Husband is not
available.
(Numbering in original omitted).
As already noted, the trial court’s ordered parenting plan was largely in accordance
with the recommendations of Dr. Collins, the children’s psychologist; Dr. Ciocca, the
forensic psychological custodial evaluator; and GAL Shari Myers. Dr. Ciocca testified that
he recommended a parenting schedule balanced between the parties in order to
perhaps neutralize existing trends that were moving in the direction of Father
becoming marginalized and possibly alienated. That’s the same reason I said
that the Court should consider the possibility of appointing Father as the
primary residential parent. Despite the fact that both parties could serve that
function.
Notwithstanding Dr. Ciocca’s rather mild suggestion that the trial court should “consider”
naming Husband primary residential parent, the trial court designated Wife in that capacity.
The record reflects that when the medical professionals expressed opinions that were
contrary to Wife’s, she strenuously objected and made every effort to limit the trial court’s
consideration of them. As found by the trial court,
Because of Husband’s drinking to excess for several years of the marriage,
Wife distrusts Husband and continues to be concerned, despite the opinion
of professionals to the contrary, that Husband is not properly managing his
alcoholism.
Wife does not agree with any professionals retained during the pendency of
the divorce. She does not trust their motives or their competence to assess
the circumstances of the case. Wife believes the professionals all unfairly
side with Husband and do not consider her perspective. The Court observed
no bias by any of the professionals retained in this case.
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* * *
Wife does not trust the opinions and recommendations of the GAL, the
children’s psychologist, or the parental evaluator retained in this case, each
of whom recommends reuniting the minor children with Husband for
substantial, unsupervised parenting time.
(Numbering in original omitted; paragraphs reorganized).
Wife argues that the evidence preponderates against the trial court’s characterization
of her behavior as “alienating” the children from Husband, pointing to this testimony of
Dr. Ciocca:
[S]ome of these trends that I saw happening in the family, none of which I
lay at the feet of the mother as ̶ as a conscious, willful effort, could create
down the time line alienation, which once it occurs is very difficult to reverse.
* * *
Q: You, I believe, have expressed the opinion that the mother has not been guilty of
an alienating behavior?
A: Not that I could observe.
* * *
Q: It’s not even close. Is that what you just said?
A: Yes. It’s not even close to alienation because in alienating ̶ in cases of full
parental alienation, children don’t visit with the other parent. And my concern is
that it could end up in that direction and we could end up in a pattern of refusal or ̶
for alienation.
It is evident that the trial court well understood the import of Dr. Ciocca’s testimony that
Wife “is not intentionally engaging in behaviors that could alienate the children” from the
following exchange:
THE COURT: Dr. Ciocca, are you saying that the impact may be that the
children, particularly over time, will become alienated, not so far as to be
estranged from their father and that not necessarily because the mother is
intending to do that, but because over time the children have developed a
21
protective attitude for the mother so that they behave a certain way to comply
with what they think she wants them to do?
A: Yes, ma’am. . . That’s exactly . . . the viewpoint I’ve been trying to
articulate. And my concern is that over time they could become estranged or
alienated. Estrangement is an in between phase. But, yeah, that’s exactly
what I was ̶ that’s exactly what I was trying to communicate, however
inartfully.
THE COURT: Okay. And you’re not blaming either one of the parents. It’s
just that this is a consequence of what’s happened over time, right?
A: Yes, that’s right.
THE COURT: Okay. And the mother may not be aware that this is the
impact it has on the children or that she ̶ what she’s doing?
A: Correct. Father takes responsibility for his problematic behavior during
the dissolution of the marriage. So I’m not saying I blame him, but he needs
to take responsibility for that. Mother needs to take responsibility for
whatever she was doing in the marriage.
In her arguments to the trial court and this Court, Wife emphatically and repeatedly
refers to Husband’s history of alcohol abuse, particularly the one glass of wine Husband
drank at a Super Bowl party in 2017. Husband admitted that he drank to excess during the
marriage. He testified that he stopped drinking when it became apparent that it would
become an impediment to gaining custody and visitation with his children. Wife did not
dispute that during the divorce litigation, Husband submitted to more than 40 tests for
alcohol use, all of which were negative. Many of these were hair follicle tests that were
said to reveal any alcohol use for the past 90 days. Husband admitted drinking a glass of
wine in 2017, which he reported to the GAL and Dr. Ciocca. The trial court found that
Husband, “concerned about being fit to see his children, . . . has been sober since late 2013.”
The evidence does not preponderate against this finding. The trial court was not persuaded
by Wife’s argument that Husband’s consumption of a glass of wine at the 2017 Super Bowl
party was a reasonable ground to restrict Husband’s visitation with his children, and neither
are we.
The evidence does not preponderate against the findings of fact underpinning the
trial court’s permanent parenting plan order. The trial court’s ruling of equal parenting
time for the parties comports with our legislature’s directive to “order a custody
arrangement that permits both parents to enjoy the maximum participation possible in the
22
life of the child[ren]” as warranted by the factual circumstances of the case. Tenn. Code
Ann. § 36-6-106(a). The judgment regarding the permanent parenting plan is affirmed.
D. Attempt to Disqualify GAL and Payment of GAL Fees
Wife filed both a motion and a petition to disqualify the GAL after the GAL filed a
proposed parenting plan recommending equal time for the parties and designating Husband
primary residential parent. Both Husband and the GAL opposed the motion, and as stated,
the hearing took three days of court to resolve. Wife argues on appeal that the GAL should
have been disqualified because she entered into a bartering agreement with Husband
without first seeking approval from the trial court or from Wife. The GAL questioned the
timing of Wife’s challenge to her, pointing out that by her own admissions in her pleadings,
Wife had known about the bartering arrangement for nearly a year before she filed her
motion to disqualify, but only filed it after the GAL filed the proposed parenting plan.
The trial court, after hearing and considering Wife’s arguments at length, held that
there was no legal authority that required Husband to seek approval or notify the court or
Wife of the bartering arrangement beforehand. The trial court ultimately found that
[t]he arrangement Husband had with the GAL helped to preserve assets of
the marital estate and substantially reduced the amount the parties still owe
for the GAL’s services. The bartering arrangement benefitted both parties
and should not be counted to increase or decrease the income of either party.
Our review of the record reveals that the trial court correctly declined to disqualify the
GAL because Wife did not demonstrate any legal ground for doing so. The GAL was not
made a material witness in the case as Wife argued, nor is there any proof in the record that
she acted improperly in her role as impartial advocate for the best interests of the children.
Husband argues on appeal that the trial court erred in ordering him to pay the
majority of the GAL fees, which totaled approximately $116,000. Wife argues that the
trial court erred by ordering the parties to evenly split the responsibility for paying the
outstanding balance owed the GAL at the end of the trial, which appears to be
approximately $37,382.92. “In awarding guardian ad litem fees in a custody case, the trial
court is given wide discretion, and this court will not interfere in the exercise of that
discretion absent a clear showing of abuse.” Keisling v. Keisling, 196 S.W.3d 703, 726
(Tenn. Ct. App. 2005). Husband argues that the GAL fees for litigating Wife’s ultimately
groundless motion to disqualify her amounted to around $20,000, and he should not be
forced to pay for that meritless and vexatious quest. He makes some valid points in this
regard, and the record bears out the trial court’s observation that “Husband has borne the
lion’s share of the expense related to this litigation.” On the other hand, his significantly
23
higher income places him in a better position than Wife to be able to pay these costs. We
do not find the trial court abused its “wide discretion” in its award of GAL fees.
E. Calculation of Husband’s Income
Wife argues that the trial court erred in calculating Husband’s income to be $8,659
per month. She claims it should be higher because of her allegation that Husband’s federal
income tax returns show that he has claimed an unknown amount of depreciation as an
expense of his landscaping business. We are not persuaded. Husband presented substantial
evidence of his income to the trial court, including the testimony of his accountant, who
explained at length the accounting of his tax calculations, apparently to the satisfaction of
the trial court. The evidence does not preponderate against the trial court’s finding of fact
regarding Husband’s monthly income.
F. Attorney’s Fees Incurred on Appeal
Finally, Wife asserts that she is entitled to attorney’s fees on appeal. This decision
is soundly within the discretion of this 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 requesting party sought the appeal in good faith, and any other
equitable factors relevant in a given case.” Chaffin v. Ellis, 211 S.W.3d 264, 294 (Tenn.
Ct. App. 2006) (citing Darvarmanesh v. Gharacholou, No. M2004-00262-COA-R3-CV,
2005 WL 1684050, at *16 (Tenn. Ct. App. July 19, 2005)). Under all of the circumstances
of this case, we respectfully decline to award Wife her attorney’s fees incurred on appeal.
V. CONCLUSION
The judgment of the trial court is modified to correct the clerical error that counted
Wife’s retirement account twice, and to reflect that Wife shall be responsible for the debt
for her first attorney’s fees. The judgment of the trial court is affirmed in all other respects.
Costs on appeal are assessed one-half to the appellant, Richard E. Davis, Jr., and one-half
to the appellee, Kacy Collums Davis, for which execution may issue if necessary.
_______________________________
KRISTI M. DAVIS, JUDGE
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