Pamela Diane Stark v. Joe Edward Stark

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 1, 2022
PAMELA DIANE STARK v. JOE EDWARD STARK
Appeal from the Circuit Court for Shelby County
No. CT-002958-18 Robert Samual Weiss, Judge FILED
MAY 3 1 2022
No. W2020-01692-COA-R3-CV Clerk of th rts
Rec'd By
This appeal arises from a cornplaint for divorce filed in 2018. The multi-faceted litigation
ofthis matter included three interspousal tort claims tried together with the divorce action,
the adjudication of a motion for an order ofprotection and a petition for a restraining order,
two contempt proceedings, two motions to recuse, interlocutory appeals to this Court, the
denial of permission to appeal by the Tennessee Supreme Court, and the denial of certiorari
by the United States Supreme Court. Proceedings in the trial court also precipitated two
federal court actions. Following a six-day trial in 2020 and a stay of proceedings pending
the Supreme Court's order on Wife's application for a writ of certiorari, the trial court
entered final judgment in the matter in November 2021. Wife appeals the trial court's
classification, valuation, and division ofproperty. Wife also appeals the trial court's denial
of her second motion to recuse. Discerning no evidence of bias, we affirm the trial court's
denial of Wife's second motion to recuse. The trial court's classification, valuation, and
division of property is reversed in part, and affirmed in part as modified.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed in part as modified; Reversed in part; and Remanded
KENNY ARMSTRONG,J., delivered the opinion ofthe court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and JOHN W.MCCLARTY, J.,joined.
Pamela Diane Stark, Blue Eye, Missouri, appellant, pro se.
Melissa C. Berry and Michelle S. Crawford, Memphis, Tennessee, for the appellee, Joe
Edward Stark.
MEMORANDUM OPINION'
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
The protracted litigation ofthis divorce action included the adjudication ofthree tort
claims asserted by Wife; Husband's petition for an order of protection; Husband's petition
for a restraining order; two motions for recusal filed by Wife; a petition for civil or criminal
contempt filed by Husband; and two orders ofcontempt against Wife. Additionally, during
the pendency ofthis lawsuit in the trial court, Wife filed federal declaratory and civil rights
actions seeking relief from a restraining order imposed against her by the trial court in
2019. See Stark v. Weiss, No: 2:19-cv-02406-JTF-tmp, 2019 WL 6348455 (W.D. Tenn.
Nov. 27, 2019)(granting Defendant's rnotion to dismiss). She also filed a federal action
against Husband, counsel for Husband, the Memphis and Shelby County District
Attorney's Office, the Memphis Police Department, and the Mayor of Memphis. Wife's
complaint asserted a number of claims of official misconduct, conspiracy to violate her
First Amendment Rights under the United States Constitution, and violation of First
Amendment,equal protection, and due process rights under the United States Constitution.
See Stark v. City ofMemphis, No. 2:19-cv-2396-JTF-trnp, 2021 WL 597880(W.D. Tenn.
Feb. 16, 2021) (Defendants' motions to dismiss granted in part and denied in part).2
Notwithstanding the multi-faceted litigation of this matter, the background facts relevant
to our disposition of the issues raised on appeal are largely undisputed.
A. Background Facts
Appellant Pamela Diane Stark ("Wife") and Appellee Joe Edward Stark
("Husband") met through work when Wife was an assistant district attorney in the Shelby
County District Attorney General's Office and Husband was a sergeant in the Homicide
Division of the Memphis City Police Department ("MPD"). The parties became
romantically involved in 2010, and in 2011 Husband rnoved into Wife's home on Brittany
Lane in Atoka, Tennessee ("the Brittany Lane property"). Husband and his previous wife
were divorced in April 2013, and the parties married in May 2013. It was Husband's
second marriage and Wife's third. Wife was approximately 48 years old when the parties
married; Husband was 54. Wife and Husband both have children from previous marriages,
I Rule 10 of the Rules of the Court of Appeals provides:
This Court, with the concurrence of alljudges participating in the case, may affirm,
reverse or modify the actions of the trial court by memorandurn opinion when a formal
opinion would have no precedential value. When a case is decided
by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not
be published, and shall not be cited or relied on for any reason in any unrelated case.
2 Appellant/Wife and Appellee/Husband both reference the federal actions in their briefs, citing the
Record "generally."
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but no children were born of this marriage.
In June 2014, the parties purchased a horne on McLean Avenue in Memphis ("the
Memphis residence") that was divided into two apartments and included a guest house.
Although the Mernphis residence was titled jointly, the mortgage was in Wife's name only.
The residence, particularly the guest house, needed substantial repair and renovation.
The Brittany Lane property was listed for sale in March 2015. However, Wife
withdrew it from the market in April 2015, when Husband left the marriage, leased an
apartment, and expended significant sums to furnish the apartment. Husband asserts the
parties were residing in the Brittany Lane property when they separated; Wife asserts that
they had relocated to the Memphis residence and that she moved back to the Brittany Lane
property after Husband left the Memphis residence. The upstairs apartment in the
Memphis residence was rented at a rate of $300 per month, and Wife paid the mortgages
on both properties from her employment income and the rental incorne. Wife completed
renovations on the guest house at the Memphis residence, and in November 2015 the guest
house was rented at a rate of$500 per month.
In April 2016, the Brittany Lane property was rented to Wife's daughter for $1,000
per month, which arnount Wife testified equaled approximately 70 percent ofthe mortgage
payment. Wife filed her first complaint for divorce in April 2016. Wife asserts she moved
into the downstairs apartment in the Memphis residence before filing the complaint. After
a separation of approximately one year, the parties reconciled in May 2016, and Wife
nonsuited her complaint for divorce. Husband asserts that he returned to the Brittany Lane
property when he returned to the rnarriage; Wife asserts that he returned to the Memphis
residence.
The parties resided together in the Memphis residence for approximately 11 months
until they separated again in March 2017. Husband again inoved out of the Memphis
residence, leased an apartment, and again expended sums to furnish the apartment. Wife
filed a second complaint for divorce shortly thereafter. The parties reconciled after a
separation of nine or ten months, however, and Wife nonsuited her second complaint for
divorce. The parties resided together in the Memphis residence until June 2018, when they
separated for the third and final time following a physical altercation between them on June
17.
In the meantime, while the parties were separated in 2015, Husband enrolled in the
Deferred Retirement Option Plan ("DROP") offered by the City of Memphis ("City")
under its pension ordinance. The DROP program permits a City employee, who paid into
the City's pension plan for at least 25 years, to defer retirement for one, two or three years.
At the end of the deferment period, retirement is mandatory. During the deferment period,
the City deposits the pension payments that the ernployee would have received had he/she
not deferred retirement into an interest-bearing DROP account. Under the City's pension
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ordinance, a married enrollee's spouse automatically is narned as beneficiary of the
account. Husband enrolled in the DROP in July 2015. The City subsequently offered
participants an opportunity to temporarily suspend or "freeze" participation for up to two
years, and Husband suspended participation in Novernber 2015. The City did not deposit
funds into the DROP account while it was frozen, and Husband paid into the City's pension
plan during the freeze period. Husband resumed participation in the prograrn in November
2017, and his mandatory retirernent date under the DROP was set for July 15, 2020. From
July through November 2015, and from November 2017 to July 2020, the City deposited
funds that Husband would have received as pension payments into the DROP account.
Husband received his full salary and did not pay into the City's pension plan while
participating in the DROP program.
The parties agree that the only significant assets owned by Husband and/or Wife —
as either separate or marital property — are the Brittany Lane property, the Memphis
residence, their respective pensions, Husband's DROP account, Husband's leave/bonus
compensation, a 2011 Jeep Cornpass, and a 2017 Jeep Renegade.
B. Procedural History
This case has a lengthy procedural history. Following review of the entire record
transmitted to this Court, we confine our discussion of the procedural history to those
portions that are relevant to our disposition of the issues raised on appeal. We observe,
that much of the litigation in this case arises frorn Husband's January 2019 petition for a
restraining order and the trial court's March 2019 orders granting Husband's petition and
finding Wife in contempt. Because that history is integrally related to one of the issues
raised by Wife on appeal, we recite that portion of the procedural history in detail.
The physical altercation between the parties in June 2018 precipitated Wife's third
complaint for divorce.3 In her June 29, 2018, complaint, Wife alleged irreconcilable
differences and inappropriate marital conduct as grounds for divorce. Notice of the
rnandatory temporary injunctions prescribed by Tennessee Code Annotated section 36-4-
106 was issued to the parties on the same day.
Husband filed an amended answer in August 2018 and denied allegations of
inappropriate marital conduct. He alleged Wife was guilty ofinappropriate marital conduct
and counter-complained for divorce. In December 2018, the trial court granted Wife's
motion to amend her complaint to include an "interspousal tort action." In her amended
complaint, Wife added claims for battery and intentional infliction of emotional distress
3 It appears from the record that Wife filed her first complaint for divorce in April 2016 and
nonsuited it in November 2016. It appears that Wife filed her second complaint for divorce in May 2017
and nonsuited it in December 2017.
4
and prayed for damages. She also alleged that she had supported Husband and had assisted
Husband to pay off his debt, and that Husband had promised to pay off Wife's student
loans upon receiving funds from his DROP account. She asserted claims for fraudulent
inducement and/or promissory estoppel and/or unjust enrichment and sought damages in
the arnount of her student loan balance. Husband answered in January 2019 and asserted
that Wife had failed to state a claim with respect to her tort claims. Husband denied Wife's
allegations of inappropriate marital conduct and the allegations asserted in Wife's tort
claims.
In January 2019, Wife filed notices to take several depositions, including
depositions of four of Husband's colleagues from the MPD. She caused subpoenas to be
issued for depositions to be taken at the Memphis residence, where Wife continued to
reside. She also sought to depose Husband at the Memphis residence. In response, on
January 9, Husband filed a motion for a protective order and asserted that requiring
Husband and his colleagues to appear for depositions at the parties' former marital
residence would cause hirn "embarrassment or annoyance, oppression, and an undue
burden." Husband sought a protective order requiring Wife to take the depositions at the
courthouse or another public building. Husband also sought an order requiring his
deposition to be taken audio-visually or in the presence of a bailiff in light of Wife's
allegations of domestic violence. He also prayed for attorney's fees. Wife filed her
response in opposition to Husband's petition on January 14.
On January 15,2019,Husband filed a petition for a restraining order. In his petition,
Husband asserted that Wife had posted a Facebook post accusing him of domestic violence
and disparaging the MPD's handling and investigation of the June 2018 altercation. He
attached a copy of the post to his petition. Husband asserted that the post would cause him
immediate and irreparable harrn, including possible loss of his position with the MPD. He
also prayed for attorney's fees incurred in bringing the petition. In her response, Wife
asserted that the MPD had been aware of her allegations of domestic violence since July 1,
2018, when she gave an audio-recorded statement to an officer with the Domestic Violence
Unit.4 She further asserted that her post on social media was political commentary made
in response to an unrelated December 2018 fatal shooting and was protected speech under
the United States and Tennessee Constitutions.
Over Wife's objections, the trial court heard Husband's rnotion for a protective
order on January 25, 2019. By order entered February 13, 2019, the trial court granted
Husband's motion for a protective order and ordered any depositions of Husband and his
colleagues to be taken at the Shelby County Courthouse. The trial court found Husband's
4 The record contains a transcription of the statement given by Wife to the MPD on July 1, 2018,
in response to the complaint of domestic violence made by Husband against Wife following the June 2018
altercation. In her statement, Wife asserted that she was the victim and Husband was the aggressor. The
record also contains a letter dated June 25, 2018,from Husband to his superior at the MPD concerning the
June 17 incident and Wife's activity on Facebook.
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request that his deposition be taken audio-visually or in the presence of a bailiff to be
reasonable under the circurnstances. The trial court reserved Husband's request for
attorney's fees.
The trial court heard Husband's petition for a restraining order on February 7, 2019.
At the hearing, Husband asserted that the mandatory injunction provided by Tennessee
Code Annotated Section 36-4-106 should extend to social media websites.5 Wife did not
deny posting the Facebook post. She also did not deny that she had written a letter to the
Mayor of Memphis alleging that the MPD had mishandled its investigation of the June
2018 altercation.6 She asserted that the December 2018 Facebook post did not disparage
Husband, that it disparaged Husband's employer, and that it was political cornmentary.
Wife asserted:
I have an absolute right to rnake allegations that I have been a victim of
corruption frorn the Police Department. And for you to rule otherwise is far
outside this divorce proceeding. Everything that has been brought before this
[c]ourt including the letter to the mayor is my attempt to get somebody to
look at what the Memphis Police Departrnent has done. And I have an
absolute right to do that, Judge. An absolute right.
From the bench, the trial court ordered Wife to remove the Facebook post
that day. Wife refused, stating,
Well, Your Honor,I will just with all candor to the [c]ourt say you might as
well take me into custody right now. I have contacted the FBI as well as
having contacted the mayor of Memphis to try and get this addressed. I am
5 Section 36-4-106(d)(1) provides, in pertinent part:
Upon the filing of a petition for divorce or legal separation, and upon personal
service of the complaint and summons on the respondent or upon waiver and acceptance
of service by the respondent, the following temporary injunctions shall be in effect against
both parties until the final decree of divorce or order of legal separation is entered, the
petition is dismissed, the parties reach agreement, or until the court niodifies or dissolves
the injunction, written notice of which shall be served with the complaint:
• • •
(C) An injunction restraining both parties from harassing, threatening, assaulting
or abusing the other and from rnaking disparaging remarks about thc other to or in the
presence of any children of the parties or to either party's employer[.]
6 The record contains a letter dated January 17,2019,from Wife to Memphis Mayor Jirn Strickland.
In her letter, Wife asserted that she was "a victim, first of domestic violence, then of the misconduct of the
Memphis Police Department."
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saying that I am a victim ofcorruption from the Memphis Police Department,
and I am going to pursue every course of action I have and . . .
The trial court interrupted and asked Wife whether she intended to remove
the post. Wife responded, "I am not." The trial court ordered Wife to be taken into
custody and held the court in recess. When the hearing resumed, the trial court again
asked Wife whether she intended to comply with the court's order, and Wife again
declared that she would not. The trial court found Wife to be in direct contempt of
court and ordered that she be held in custody until she agreed to remove the
Facebook post and apologize to the court. The court again ordered a recess. After
being held in custody for approximately four hours, Wife agreed to remove the
Facebook post and was released from custody.
The trial court granted Husband's petition for restraining order on February 13,
2019. The trial court found that Wife had contacted Husband's supervisors, including
Memphis Mayor Jirn Strickland, in contravention of the rnandatory injunction issued
pursuant to Section 36-4-106 and "that the sole purpose of making this (Facebook) post
and contacting [Husband's] employer was to harass [Husband]" in contravention of the
injunction. The trial court further found that Wife "put on no defense proof only arguing
that she had a right to post the staternents." The trial court ordered Wife to remove the
December 2018 Facebook post and enjoined her from inaking any public allegations
against Husband on any social media platform or to his employer. On March 8, Husband
filed a inotion to amend the court's order on his petition for restraining order. The trial
court heard Husband's motion to amend and several discovery and scheduling motions on
March 29, 2019. On April 9, the trial court entered an order denying Husband's motion to
amend the restraining order and ordering discovery to be completed prior to trial. The trial
court scheduled the matter to be heard on September 12, 2019.
The trial court entered its order on direct civil contempt on March 29, 2019. On
April 14, 2019, Wife filed a notice of appeal of the trial court's orders on contempt and
Husband's petition for restraining order in this Court. In January 2020, we dismissed
Wife's appeal of the trial court's order granting Husband's petition for a restraining order
upon finding Wife's appeal had not been properly perfected. Stark v. Stark, No. W2019-
00650-COA-R3-CV, 2020 WL 507644, at *3 (Tenn. Ct. App. Jan. 31, 2020),perm. app.
denied(Tenn. Aug. 10, 2020), cert. denied, 141 S. Ct. 1687(2021). We dismissed Wife's
appeal ofthe trial court's order finding her in contempt as moot and upon determining that
Wife had not shown "specific collateral consequences resulting from the trial court's
finding of contempt." Id. at *7.
In the meantime, Wife filed a motion to recuse following entry of the trial court's
order on contempt on March 29, 2019. In her motion, Wife alleged that the trial court's
order on contempt, combined with its decisions granting Husband's motion for protective
order and Husband's petition for restraining order, dernonstrated bias that warranted
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recusal. On April 17, Wife filed a supplemental motion to recuse under Tennessee
Supreme Court Rule 10B. The trial court denied Wife's motions to recuse by order
entered May 3, 2019, and Wife filed a notice of appeal in this Court on May 22. On
June 18, 2019, a different panel of this Court affirmed the trial court's denial of
Wife's motion to recuse. Stark v. Stark, No. W2019-00901-COA-T10B-CV,2019
WL 2515925, at *11 (Tenn. Ct. App. June 18, 2019).
In July 2019,Husband filed a petition for civil and criminal contempt and for
determination of the reserved issue of attorney's fees. In his petition, Husband
asserted that Wife had posted images on social media suggesting that she had been
silenced and that Wife continued to reference her allegations of domestic violence
in the context of his employment. Husband asserted that an article entitled "Former
prosecutor: Memphis police 'destroyed my career' after domestic assault involving
officer" was published in the Mernphis Cornmercial Appeal in June 2019, and that
the article "feature[d] photographs and statements obtained through interviews with
Wifell" Husband attached copies ofthe Facebook post and the Commercial Appeal
article to his petition. The trial court issued a Fiat and Notice of Hearing setting
Husband's petition to be heard on August 16, 2019. On August 13, Wife filed a
rnotion for a stay and/or continuance. At the August 16 hearing on Husband's
contempt petition, the trial court noted that Wife had filed an action in the United
States District Court for the Western District of Tennessee ("federal court") and
continued the matter. The court also continued the trial scheduled for September
12, 2019.
On August 28, Wife filed a motion in this Court to stay proceedings
pertaining to the restraining order. On September 7,2019, we denied Wife's motion
for failure to comply with Rule 7 of the Tennessee Rules of Appellate Procedure.
The trial court held a status conference on October 16 and set the rnatter to be tried
on December 5, 2019.
On October 17, 2019, Husband moved for a hearing date on his July 2019
petition for civil and criminal conternpt and for determination ofthe reserved issue
of attorney's fees. Following a hearing on November 1, the trial court continued
the matter upon determining that Wife "was not in agreernent with the Court hearing
the pending Petition for Civil and Criminal Contempt and for Determination of
Reserved Attorney Fees at the Divorce trial setting in light of the pending appeal
and the pending Federal Court case against the Court." The trial court further found
that Husband's petition for contempt and the underlying divorce action were
"inherently linked" and that "it would be illogical to hear the [d]ivorce trial prior to
the pending [p]etition and further it would not be a good use ofjudicial resources to
not try the rnatters together."
In its November 1, 2019, order, the trial court accordingly continued the
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matter and set a status conference for January 15, 2020. The status conference was held on
January 15, and the matter was set to be tried on April 30, 2020. Wife did not appear at
the status conference on January 15 but appeared on January 16. On January 23, Wife filed
a motion to compel Husband to release a transcript of the January 15 proceedings and
asserted that the court's calendar on the clerk's website had reflected a hearing date of
January 16. On February 11, Husband filed a motion for scheduling order. Following a
hearing on February 21, the trial court entered a scheduling order and scheduled the matter
to be heard on April 30, 2020. On February 24, the trial court entered an order granting
Wife's motion to compel, noting that the court's November 1, 2019 order set the hearing
for January 15 and that "the clerk inadvertently posted the matter for hearing on the 15th
and 16th of January on the online calendar." In the meantime, on February 19, 2020, Wife
filed a motion to dismiss Husband's petition for civil and criminal contempt or, in the
alternative, for a bill of particulars/more definitive statement. On March 13, Husband filed
a motion for arguments to be heard.
On March 20, 2020, Wife filed a rnotion to alter or amend the restraining order and
contempt order. In her motion, Wife asserted, "[a]s a content-based, speaker-based, and
overbroad restriction on speech, Tennessee Code Annotated § 36-4-106(d)(3) is
unconstitutional and contravenes the First Arnendment, and the temporary restraining order
that the Court issued based on that statute should be dissolved as void."7 She further
asserted that, as applied to Wife,the section is an unconstitutional restraint in contravention
ofthe First Amendment ofthe United States Constitution and Article I, Sections 19 and 23
ofthe Tennessee Constitution. Wife also asserted that the trial court's order directing her
to remove the December 2018 Facebook post and enjoining her from making further
allegations against Husband on any social media platform "are unconstitutional, content-
based, speaker-based, prior restraints that contravene the First Amendment and Article I,
Section 19 and 23 of the Tennessee Constitution."
On March 20, 2020, Wife also filed a response to Husband's motion for arguments
on Wife's motion to dismiss the petition for civil and criminal contempt. In her response,
Wife noted that the trial court had set an April 3, 2020 deadline for all motions to be filed
on all non-dispositive matters. Wife argued that her petition to dismiss Husband's
contempt petition and her motion to alter or amend the restraining order should be heard at
the same time because resolution of her motion to alter or amend could render her motion
to dismiss moot. Wife additionally asserted that counsel for Husband had approached the
7 Tennessee Code Annotated Section 36-4-106(d)(3) provides:
The temporary injunctions provided in this section shall only apply to the spousal
parties narned in the petition and shall not apply to any third party named in the petition;
provided, however, that nothing in this subsection (d) shall preclude any party from
applying to the court for an order of injunctive or extraordinary relief against any other
party named in any petition as provided by law or rule.
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court ex parte and had "directly commented to this Court concerning information pending
adjudication[1" She noted that the Tennessee Supreme Court had ordered that no in-person
hearings be held until after March 31, 2020, in response to COVID-19,and asserted,"Wife
is unwilling to agree to have any proceeding in this matter go forward without the absolute
ability to observe first hand all that transpires. While the current situation necessitated by
COVID-19 is unfortunate, surely even defense counsel does not suggest that this was
orchestrated by Wife."
A status conference was held on March 30, 2020. By order entered April 20,2020,
the trial court set Wife's motion to disrniss Husband's petition for civil and criminal
contempt or, in the alternative, motion for bill of particulars/more definite statements,
Husband's rnotion for argurnents on Wife's motion and for attorney's fees, and Wife's
rnotion to alter or amend the restraining order and contempt order to be heard on May 14,
2020. Wife's claim for divorce, Husband's counter-claim for divorce, and Wife's tort
claims were set to be tried on June 10, 2020.
On May 5, 2020, Wife filed a memorandum oflaw in support of her petition to alter
or amend the 2019 restraining order and order on contempt. The State of Tennessee filed
a motion to intervene to defend the constitutionality of the statute, and the trial court
granted the State's motion on May 29, 2020. In its partial response to Wife's motion to
alter or amend the restraining order, the State argued that Wife had waived any challenge
to the constitutionality of section 36-4-106(d)(3) by failing to raise it earlier; that the
divorce was set to be heard on June 10 and the matter would become moot following entry
ofthe final decree of divorce; and that the trial court "likely lack[ed]jurisdiction" because
the matter was pending on appeal.
On May 6, 2020, Wife filed a motion to modify the scheduling order with respect
to discovery and to continue the hearing on the divorce petitions to July 2020. On May 12,
Husband filed his response to Wife's motion to alter or amend the restraining order and
contempt order and his response to Wife's motion to modify the scheduling order.
The trial court heard Wife's motion to dismiss Husband's petition for civil and
criminal contempt or, in the alternative, motion for bill of particulars/more definitive
stateinent; Husband's inotion for arguments; and Wife's response to Husband's motion for
argurnents via Zoom on May 14, 2020. By order entered on May 18, the trial court denied
Wife's motion to dismiss; denied her motion for more definite statement with respect to
the allegations of criminal contempt; and granted Wife's motion for more definite
staternent with respect to Husband's allegations of civil contempt. The trial court ordered
Husband to identify which Facebook posts allegedly formed the basis of civil contempt.
The court again reserved the issue of attorney's fees. Husband filed his definite statement
pertaining to civil contempt on May 21. Husband identified a February 7, 2019 Facebook
post, which he submitted was an edited version of Wife's December 2018 post; a May 9,
2019 post, which was subsequently deleted; and a May 16, 2019 post, which also was
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deleted.
On June 5, 2020,the trial court heard Wife's March 20 motion to alter or amend the
restraining order and the contempt order, the State's partial response, and Husband's
rnotion in opposition. On June 8, the trial court stayed the proceedings for lack of
jurisdiction because Wife's application for perrnission to appeal this Court's January 2020
judgment was pending in the Tennessee Supreme Court. The trial court likewise stayed
Husband's July 2019 petition for civil and criminal conternpt. In its order, the trial court
noted that Wife had raised the question of a potential conflict with respect to intervention
by the Tennessee Attorney General in the matter because the Attorney General's office had
defended the court in the earlier litigation in federal court. The trial court specifically found
that intervening counsel for the State was based in the Nashville office and had no
interaction with counsel based in the Memphis office, who had participated in the litigation
in federal court. The court again reserved the issue of attorney's fees. On June 8, in a
separate order, the trial court also denied Wife's May 6 motion to modify the discovery
scheduling order.
Wife's complaint for divorce, Husband's counter-complaint for divorce, and Wife's
tort claims were heard over six days in June and July 2020. The trial court entered the final
decree of divorce on November 24, 2020. The trial court found that both parties had
contributed to the deinise of the marriage and were entitled to a divorce pursuant to
Tennessee Code Annotated section 36-4-129. The trial court dismissed Wife's claim for
the intentional infliction ofemotional distress for failure to establish the elements necessary
to support the claim. The trial court found that that although "there was clearly unwanted
touching by [Husband]" during the course of the June 2018 altercation, "both parties were
in contact with the other," and Wife had not carried her burden of proof to support her
claiin of battery or proven any damages related to "the contact." The court also disinissed
Wife's claims of fraudulent inducement or promissory fraud upon determining that,
although the parties rnight have discussed using Husband's retirement funds to pay off
Wife's student debt, any such discussion was in the course of"plans, dreams and hopes for
the future." The court also found that there was no written documentation to memorialize
an agreement and dismissed Wife's claim. The trial court classified and divided the parties'
property, and it awarded Husband attorney's fees in the amount of$38,709. The trial court
denied Wife's request for alimony. Husband's petition for civil and criminal contempt and
Wife's inotion to alter or amend the restraining order and order ofcontempt were reserved.
Wife filed a notice of appeal to this Court on December 22, 2020.
In the meantime, in August 2020, the Tennessee Supreme Court denied Wife's
application to appeal this Court's January 2020 judgement on the trial court's 2019
restraining order and order on conternpt. On November 6, 2020, Husband filed a motion
to set a hearing date on his petition for civil and criminal contempt. On November 18,
Wife filed a second motion to recuse in the trial court. The trial court denied Wife's second
motion to recuse on December 14, 2020. On December 18, the trial court heard Wife's
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motion to alter or amend the restraining order and contempt order, Husband's response,
and the State's partial response to Wife's motion. On January 18,2021, Wife filed a motion
to stay the trial court's bench rulings pending the United States Supreme Court's review of
her application for a writ of certiorari. In her motion to stay, Wife asserted that, in her
November 18, 2020 second motion to recuse, she had requested, in the alternative, a stay
of proceedings pending appellate review and that the court had not ruled on her request.
By order entered January 21, 2021, the trial court denied Wife's rnotion to alter or
amend the 2019 restraining order and order on contempt. The trial court determined that
Husband's petition for civil and criminal conternpt was not moot and had been specifically
reserved in the final decree ofdivorce; that the temporary injunction provided by Tennessee
Code Annotated section 36-4-106(d) was constitutionally valid and enforceable by the
court when attached to the summons and properly served; and that the injunctive relief
granted by the court ordering Wife to remove the December 2018 Facebook post was
narrowly tailored injunctive relief properly granted under Rule 65.07 of the Tennessee
Rules of Civil Procedure.
The Suprerne Court denied Wife's application for certiorari in March 2021,8 and the
trial court heard Husband's petition for civil and criminal contempt on August 10, 2021.
By order entered September 30, 2021, the trial court found Wife guilty of criminal
conternpt ofthe court's on-going mandatory injunction for 1)knowingly and intentionally
participating in the creation of the June 2019 Commercial Appeal article; and 2) willfully
posting on Facebook, in May 2019, a slightly modified version ofthe post she was ordered
to remove on February 7, 2019. The court ordered Wife to perform 160 hours of
community service with the Farnily Safe Center (or a comparable agency representing
victims of abuse)to be completed by December 31, 2022. The court also ordered Wife to
pay Husband's attorney's fees and expenses related to the petition in the arnount of$3,500.
On Novernber 15, 2021, the trial court stayed execution on the judgment pending appeal.9
On November 15, the trial court also granted Wife's motion for additional findings and
confirmed a judgment in the amount of $48,464.64 in favor of Husband, plus post-
judgment interest to begin after the expiry of a 180-day period. The trial court specifically
denied any remaining claims or requests for relief.
On March 11, 2022, Husband/Appellee submitted a motion for consideration of
post-judgment facts in this Court. We denied the motion on March 15,2022. Briefing was
completed by the parties on March 29, 2022, and this appeal was docketed to be submitted
on the briefs on April 1, 2022.
8 Stark v. Stark, 141 S. Ct. 1687(2021).
9 The trial court's September 2021 order on contempt has been separately appealed and is
not before us here.
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II. ISSUES PRESENTED
Wife raises the following issues for review, as stated in her brief:
I. Whether the Trial Court's division ofthe marital estate is inequitable.
a. Whether the Trial Court improperly classified the assets and debts subject to
marital division
b. Whether the Trial Court irnproperly valued various assets
c. Whether the Trial Court irnproperly divided the marital estate
II. The Trial Court's comments as well as evidentiary, procedural and ethical
errors constitute a bias against Ms. Stark and create an appearance of impropriety
that taints the Court's ruling on each issue and prevented Ms. Stark from receiving
a fair adjudication of her tort actions.
III. STANDARD OF REVIEW
This case was tried without a jury. Accordingly, under Rule 13(d) of the Tennessee
Rules of Appellate Procedure, our review of the trial court's findings of fact is de novo
upon the record with a presumption of correctness unless the evidence preponderates
otherwise. Allstate Ins. Co. v. Tarrant, 363 S.W.3d 508,512(Tenn. 2012). The evidence
preponderates against the trial court's findings of fact when it supports another finding
"with greater convincing effect." Hardeman Cnty. v. Mclntyre, 420 S.W.3d 742, 749
(Tenn. Ct. App. 2013)(citation omitted). The trial court's findings offact must,therefore,
contain sufficient underlying facts to clearly disclose the basis of the trial court's
determinations. Lovelace v. Coley,418 S.W.3d 1, 34(Tenn. 2013)(citations omitted). We
review the trial court's conclusions of law de novo with no presumption of correctness.
Rogers v. Louisville Land Co., 367 S.W.3d 196, 204(Tenn. 2012).
IV. ANALYSIS
A. Classification, Valuation, and Division of Property
We turn first to the trial court's classification and valuation ofthe parties' property
and the division of marital property. In her brief to this Court, Wife asserts that the trial
court erred in its classification of the Brittany Lane property as marital property under the
doctrine oftransmutation, that it erred by classifying Husband's attorney's fees as marital
debt, and that it erred by excluding the parties' pensions when it divided the rnarital
property. She also contends that the trial court erred in determining the value of assets and
that the trial court transposed the award ofthe parties' vehicles, which impacted the overall
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division of property.
Under our divorce statutes,the trial court must classify the parties' property as either
marital or separate before dividing marital property. Batson v. Batson, 769 S.W.2d 849,
856 (Tenn. Ct. App. 1988)(citation omitted). The classification of property is essential
because only marital property may be divided between the parties. Id. "Thus, as a first
order of business, it is incumbent on the trial court to classify the property, to give each
party their separate property, and then to divide the marital property equitably." Id.(citation omitted). The classification of property is a question of fact that must be
determined in light of the relevant circumstances. Snodgrass v. Snodgrass, 295 S.W.3d
240, 245(Tenn. 2009)(citations omitted).
The Tennessee Code defines separate property as:
(A) All real and personal property owned by a spouse before marriage,
including, but not limited to, assets held in individual retirement accounts
(IRAs) as that term is defined in the Internal Revenue Code of 1986 (26
U.S.C.), as arnended;
(B)Property acquired in exchange for property acquired before the marriage;
(C) Income from and appreciation of property owned by a spouse before
marriage except when characterized as marital property under subdivision
(b)(1);
(D) Property acquired by a spouse at any time by gift, bequest, devise or
descent;
(E)Pain and suffering awards, victim of crime compensation awards, future
rnedical expenses, and future lost wages; and
(F)Property acquired by a spouse after an order oflegal separation where the
court has made a final disposition of property.
Tenn. Code Ann. § 36-4-121(b)(2)(footnote ornitted). We turn first to the trial court's
classification of the Brittany Lane property as marital property under the doctrine of
transmutation.
1. Classification of the Brittany Lane Property
"[A]ssets acquired by either spouse prior to the marriage are presumed to be
separate property." Owens v. Owens, 241 S.W.3d 478, 485 (Tenn. Ct. App. 2007).
However, the trial court in this case determined that the Brittany Lane property owned by
Wife prior to the parties' marriage had become rnarital property under the doctrine of
transmutation. Under that doctrine, separate property may become rnarital property if the
parties treat it in a way that evidences an intent to make it part of the marital estate.
Langschmidt v. Langschmidt, 81 S.W.3d 741, 747 (Tenn. 2002) (quotation omitted);
Eldridge v. Eldridge, 137 S.W.3d 1, 13(Tenn. Ct. App. 2002). Whether transrnutation has
- 14 -
occurred is a question offact. Id. The factors most often considered to determine whether
transmutation of real property has occurred are:
(1) the use of the property as a marital residence; (2) the ongoing
maintenance and management ofthe property by both parties;(3)placing the
title to the property in joint ownership; and (4) using the credit of the non-
owner spouse to improve the property.
Luplow v. Luplow, 450 S.W.3d 105, 114(Tenn. Ct. App. 2014)(quoting Fox v. Fox, No.
M2004-01616-COA-R3-CV, 2006 WL 2535407, at *5 (Tenn. Ct. App. Sept. 1, 2006)).
The party asserting that transrnutation has occurred carries the burden of proof at trial to
demonstrate "an intent of the parties that the separate property be treated as marital
property." Nesbitt v. Nesbitt, M2006-02645-COA-R3-CV,2009 WL 112538, at *9(Tenn.
Ct. App. Jan. 14, 2009)(citing Keyt v. Keyt, 244 S.W.3d 321, 328 n. 7(Tenn. 2007)).
In this case, it is undisputed that Husband moved into Wife's Brittany Lane property
in 2011, while he was still married to his first wife, and the trial court made few findings
to support its determination that the property had become marital property. In its
November 2020 order, the trial court found:
Wife purchased the Brittany Lane Property in 2005, and the parties lived in
the property pre-rnarriage and continued to live there after the marriage until
they moved into the house on McLean [in Memphis]in early 2016. The Court
finds the Brittany Lane Property was held out as the martial home and both
parties contributed to its maintenance and upkeep. The Court finds that the
Brittany Lane Property was transmuted from separate property to marital
property.
The trial court made no additional, underlying findings to support its conclusion that the
Brittany Lane property was transmuted into marital property. The trial court determined
that the Brittany Lane property was encumbered by a mortgage in the amount of $66,876
and that the fair market value of the property was $215,000. The trial court awarded 76
percent of the equity in the property to Wife and 24 percent to Husband.
As noted above, the parties separated and reconciled twice before Wife, acting pro
se,1° filed a third complaint for divorce on June 29, 2018. Although the parties were
married for seven years when the trial court entered the final decree ofdivorce in this matter
in November 2020, they were married for only five years when Wife filed her third
complaint for divorce. During those five years, the parties separated twice—the first time
for approximately one year and the second time for nearly ten months. The parties have
10 In cornpliance with Local Rule 21, in October 2018 Wife provided notice to the court that she is
a licensed attorney practicing in Shelby County.
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not cohabitated since Wife filed her June 2018 complaint for divorce, and it is undisputed
that they lived together for only 40 months of their seven-year marriage.
Upon review of the record, we observe that title to the Brittany Lane property was
not placed in joint ownership and that the parties resided in the property for fewer than two
years of the rnarriage. Wife rnaintains that the parties relocated from the Britany Lane
property to the Memphis residence in early 2015 before they separated in April 2015. She
asserts that Husband rnoved out of the Memphis residence when he left the marriage the
first tirne; that the upstairs apartrnent was rented to a friend; and that she moved back to
the Brittany Lane property while undertaking repairs and renovations on the Memphis
residence. Wife further rnaintains that she completed the necessary repairs to the guest
house while the parties were separated and that she eventually rented the guest house to a
friend in Novernber 2015. She asserts that she relocated to the downstairs apartment in the
Memphis residence and rented the Brittany Lane property to her daughter in April 2016.
Wife also asserts that when Husband returned to the marriage in May 2016, he returned to
the Memphis residence.
At the June 2020 divorce hearing, Husband initially testified that the parties were
living in the Brittany Lane property when they separated in April 2015. He subsequently
testified that he did not recall when the parties moved to Memphis or whether they were
living in Memphis or at the Brittany Lane property when they separated in 2015. Husband
also testified that he told Wife,"at one time, that you know,I really didn't feel cornfortable
living at the house because that's where her and her husband were at, you know." Husband
stated that he had less of "an issue with it" when he "got to know [Wife's previous]
husband," but did not testify as to whether he communicated his decreasing discomfort to
Wife.
With respect to the maintenance and management of the Brittany Lane property,
Husband testified that he removed the popcorn ceilings from the property prior to the
rnarriage, and that he performed general maintenance including unclogging the sink and
toilet and mowing the grass before the parties separated in April 2015. Husband testified
that he painted the Brittany Lane property, but did not testify with respect to whether the
painting was cornpleted during the course ofthe marriage. Wife acknowledges in her brief
to this Court that Husband contributed somewhat to the on-going general rnaintenance of
the property, and Husband testified that he replaced a deck board "every once in a while"
and that "there was other things in the house that I may have done, but not a whole lot of
rnaintenance. It was ... it was in pretty good shape." He testified that the parties
entertained at the Brittany Lane property, although their family guests consisted of Wife's
family. Husband testified that, although Wife had access to his bank accounts during the
periods that the parties were not separated, "she generally used her account" to pay the
bills. He stated, "occasionally, she would get money out of my account, but that was—
that wasn't very often." He did not testify as to whether Wife used funds from Husband's
accounts to pay for expenses associated with the maintenance of or hnprovernents to the
- 16
property as opposed to general household expenses. Husband testified that the countertops
were replaced while the parties were separated and that he "was not involved with that."
He similarly testified that Wife "put carpet—or put flooring in" prior to renting the property
to her daughter and that he "wasn't involved in it." Husband also acknowledged removing
Wife from his accounts during the parties' separations and that he did not reinstate her to
the accounts after the second separation in 2017. We note the following exchange:
Q. Now,Mr. Stark, you freely admit that during the 41-some months that
you and Ms. Stark have been separated during this 81-inonth marriage, you
didn't contribute to any of the bills or mortgage payments or anything
associated with either one of the properties, correct?
A. Yes.
Q. And you left Ms. Stark to make those payments on her own?
A. Yes.
We further observe Husband's responses to questions posed by his counsel at the February
7, 2019, hearing in the trial court:
Q. Do you(and Wife) have any assets together?
A. We have a house together in Midtown and a Jeep Cherokee.
Q. That's it?
A. Yes.
There is no dispute that the Brittany Lane property was titled in Wife's name, that
she owned it for seven years prior to the parties' marriage, and that Husband's credit was
not used to improve the property. The parties resided in the property for less than two
years of their seven-year marriage, and Husband's testiinony indicates that he assumed no
responsibility for the property after the parties married other than to perform basic
maintenance. Additionally, Husband acknowledges that he entered the lnarriage with
substantial debt and financial obligations to his first wife, and that Wife paid for the
expenses at the Brittany Lane property.
Notwithstanding statements made in pleadings and in his brief to this Court,
Husband's testimony belies any joint "managemenr or substantial decision-making
responsibilities with respect to the Brittany Lane property. Husband's testimony clearly
demonstrates that he did not consider the Brittany Lane property to be marital property
when the parties separated in 2018, and it is well-settled that statements made in pleadings,
statement of counsel, and briefs to this Court do not constitute evidence. Metro. Gov't. of
Nashville and Davidson Cnty. v. ShacIdett, 554 S.W.2d 601,605 (Tenn. 1977); Greer v.
City ofMemphis, 356 S.W.3d 917, 923 (Tenn. Ct. App. 2010). The status of property in
a divorce action, depends "on the conduct ofthe parties."' ,Inns v. Stanton,43 S.W.3d 510,
513 (Tenn. Ct. App. 2000) (quoting Hand v. Hand, C/A No. 01A01-9607-CH-00325,
1997 WL 187310, at *3 (Tenn. Ct. App. April 18, 1997)) (internal quotation marks
- 17 -
ornitted). Upon review of the record, we find that Husband failed to carry his burden of
proof to demonstrate that the Brittany Lane property became marital property under the
doctrine of transmutation. Contrary to the trial court's determination, the Brittany Lane
property is Wife's separate property and is not subject to division.
2. Valuation of Assets
We turn next to Wife's assertion that the trial court erred in its valuation of the
parties' marital property. The trial court must consider all relevant evidence when
determining the value of a marital asset. Powell v. Powell, 124 S.W.3d 100, 105 (Tenn.
Ct. App. 2003)(quotation omitted). The parties carry the burden to produce evidence of
value. Id. When the evidence conflicts, the trial court "may assign a value that is within
range of values supported by the evidence." Id. at 105-106.
The Motor Vehicles
As an initial matter, Wife submits that the spreadsheet attached to the trial court's
order transposed the award of vehicles to the parties, thereby affecting the value of the
property award to each party. We agree. Wife is properly awarded the Jeep Renegade,
which has an equity value of $4,697; the Jeep Compass, valued at $8,000, is awarded to
Husband.
Wife's Savings and Checking Accounts
Wife also subrnits that the trial court erred by over-valuing her savings and checking
accounts. She contends that the trial court relied on Husband's marital balance sheet,
which reflected balances from March 2020. She argues that the balances changed
significantly between March and the June 2020 hearing because she expended significant
amounts between the date of valuation and the date of trial.
As a practical rnatter, the trial court must assign, or the parties must agree to, some
valuation date. See Telfer v. Telfer, 558 S.W.3d 643, 656 (Tenn. Ct. App. 2018).
Following a hearing on February 21, 2020, the trial court entered a scheduling order
requiring most discovery to be completed by March 2020 and witness depositions to be
concluded by April 10, 2020. The trial court valued Wife's accounts within the time set
by the scheduling order based on values submitted at that thne, and we accordingly discern
no error.
The Memphis Residence
The spreadsheet incorporated into the trial court's order assigns a fair market value
of$165,000 and a debt of$111,188 to the Memphis residence. Wife submits that the debt
assigned to the residence is a typographical error. She contends that, although the debt
18
recited on the spreadsheet "appears within a note on [the] updated spreadsheer that Wife
submitted to the court on the last day oftrial, it was "clearly a clerical error." She submits
that "the mortgage balance submitted by [Husband] at trial noting a mortgage balance as
of February 2020 of $120,193.02" is consistent with her trial memorandum, which "listed
the mortgage balance as $119,188.41." We observe that the marital balance sheet
submitted by Husband recites a fair market value of$177,000 for the Memphis residence,
while the trial court determined the fair rnarket value to be $165,000. The trial court
assigned an equity amount of$53,812 to the Memphis residence. Using Husband's values,
the equity value would be approximately $57,000. We can assign no error to the trial court
for using the values submitted by Wife on her updated spreadsheet.
Husband's DROP Account and Leave/Bonus Payout
The trial court valued Husband's DROP account at $131,825.48 and his leave/bonus
compensation payout at $45,737.45. When it valued the assets for purposes of dividing
the marital estate, the trial court reduced those values by 22 percent in consideration of
potential tax consequences to Husband. The trial court awarded 24 percent ofthe after-tax
"marital equity" of both assets to Wife and 76 percent to Husband.
Wife contends that the trial court erred by reducing the gross value of Husband's
DROP account and leave/bonus compensation when valuing those assets. Wife does not
argue that the trial court erred by considering the tax consequences associated with the
assets when dividing the marital estate. Rather, she submits that the potential tax
consequences are relevant to the division of property, not to the value of the marital
property. Wife also submits that there was no evidence to support a reduction in the amount
of 22 percent. Husband, on the other hand, contends in his brief that the assets should be
considered as an element of his pension and "divided pursuant to the marital fraction."
However, he points to no evidence to support a tax reduction in the arnount of 22 percent.
Tennessee Code Annotated section 36-4-121(c)(9) requires the trial court to
consider "[t]he tax consequences to each party, costs associated with the reasonably
foreseeable sale ofthe asset, and other reasonably foreseeable expenses associated with the
asset" when equitably dividing the marital estate. This Court has stated that "the tax effects
associated with a particular asset can become relevant when the court divides the marital
estate, but not when it assigns values to the respective marital assets." Clark v. Clark,
M2006-00934-COA-R3-CV, 2007 WL 1462226, at *4 (Tenn. Ct. App. May 18, 2007).
Thus, the tax consequences should not be incorporated into the calculation of an asset's
value. Id.In this case, Husband's DROP account and accumulated leave/bonus payout are the
only substantial liquid assets to be divided between the parties, and the trial court is
statutorily required to consider the tax consequences of these assets when it divides the
marital estate. Following the June 2020 trial ofthis case, the trial court rnade the following
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oral ruling on July 2:
The DROP money and vacation, sick, bonus time will all be taxable events,
and the Court cannot guess what will actually be received. Accordingly,
within five days ofreceipt, husband shall provide documentation ofwhat was
received, and the - whatever the—again,the numbers that I have just relayed
are guidance for the—for now, but, ultimately, whatever the amount—
whatever the amount is, is the amount and should be divided on, again, 76/24
percent basis.
Husband shall provide documentation of what was received. In light of the
fact that wife will be responsible for paying husband's share or—husband
his share of the residences and the attorney fees, wife shall only receive
$6,000 from that sum. The balance of the DROP and vacation owed to her
will be credited against the attorney fees.
Construing the trial court's oral ruling, the final decree of divorce, and the division of
property spreadsheet together, we cannot conclude that the trial court erred in valuing the
accounts. It appears the trial court valued the assets at "fair market value," divided them
on a "76/24 percent basis[,]" and effectively reduced the amount to be awarded to each
party by 22 percent in consideration of the potential tax consequences to Husband. The
fair market values assigned by the trial court are supported by the record, and we
accordingly affirm those values.
We turn next to Wife's assertion that the record contains no evidence to support a
22 percent reduction for taxes. Husband testified that "from what [he] understood, [the
DROP payout is] going to be $133,000 at the end[] ... [and t]hey take 20,000 out
automatically for taxes." He also testified, "And I have been told keep 10,000 out more,
because with the end ofthe year, you're going to need it. Because when you add the DROP
and you add rny buy-out and what I have made this year so far, it's going to put me in a
whole new tax bracket, which is 32 percent taxes."
Following the trial court's oral ruling on July 2, on July 15 Husband's counsel
emailed the trial judge regarding Husband's leave/bonus payout and DROP account. She
indicated that the gross payout from Husband's leave/bonus payout would be $45,737.45
and the gross DROP payout would be $131,825.48. Counsel also supplied a calculation of
the net payout assuming a tax rate of 32 percent. The record contains an MPD final pay
calculation worksheet that recites a total leave/bonus payout in the amount of $45,737.45.
The payout calculation does not include a calculation of the tax liability associated with
the payout.
The trial court implicitly rejected the 32 percent rate asserted by Husband, applied
a 22 percent tax rate, and reduced both parties' shares by 22 percent. In his brief to this
- 20 -
Court, Husband points to no proof to support the trial court's application of a 22 percent
reduction for taxes. Husband states in his brief:
Husband contends the trial court, using the facts of the case, equitably
divided the money accrued during the marriage to both Wife and Husband
using a sort of marital fraction taking into account the amount of time the
parties lived separately juxtaposed with the total length of the marriage.
However, Wife received a payout ofthe same nature in February 2019 during
the midst ofthese divorce proceedings. Husband would submit that the Court
should have offset Wife's award of Husband's accrued vacation, sick, and
bonus time with the amounts Wife received but were not equitably divided
with Husband.
Notwithstanding the assertions in Husband's brief, Husband raised no issues for our
review. Accordingly, to the extent Husband is asserting error with respect to the trial
court's determination, the issue is waived. See Childress v. Union Realty Co., 97 S.W.3d
573, 578 (Tenn. Ct. App. 2002) (citation omitted) (stating that an issue is waived if it
is not raised in the staternent of the issues, even if the issue is argued in the party's
appellate brief). We additionally note that Husband submits in his brief that the trial court
did not err in the valuation or division of assets.
The "party relying on tax consequences" bears "the burden of introducing
competent proof on the subject[.]" Clark v. Clark, No. M2006-00934-COA-R3-CV, 2007
WL 146226, at *6(Tenn. Ct. App. May 18,2007)(citing Cf. Kinard v. Kinard,986 S.W.2d
220, 231 (Tenn. Ct. App. 1998))(discussing burden of proof on the issue of valuation of a
note ofindebtedness on business). Other than speculating at trial about what he was "told"
to expect, it appears that Husband introduced no proof of the tax consequences of his
leave/bonus payout.
As in Clark, the tax consequences associated with Husband's leave/bonus payout
in this case are "speculative and unsupported in the record." See Clark, 2007 WL 146226,
at *5. In Clark, we held that the trial court's order "reflected this reality when it declined
to factor ...taxes into the property division because there was'no cornpetent proofthereof
at trial.'" Id. In the current case, the trial court provided no basis for its application of a
22 percent reduction in the amount awarded to Wife frorn Husband's leave/bonus payout.
Upon review of the record, however, we observe that the DROP election forrn
completed by Husband in June 2015 provides for a "mandatory twenty percent(20%)tax
withholding[.]" The record also contains a letter from the City's pension coordinator stating
that Husband was expected to retire on July 15, 2020, and that as of June, 19, 2020,
Husband's estimated DROP account balance was $131,825.48. It further states,
"[Husband] has the option to rollover or receive a lump sum (taxed 20%)of his total DROP
amount." Thus,the record supports a conclusion that a 20 percent tax liability is associated
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with the DROP account.
Attorney's Fees
We turn next to Wife's assertion that the trial court erred by classifying Husband's
attorney's fees as marital debt and dividing the fees equally between the parties in the
division of marital property. We begin our discussion of this issue by noting that the final
decree of divorce entered by the trial court in November 2020 orders Wife to pay half of
Husband's attorney's fees and provides that the award of attorney's fees "owed by Wife to
Husband shall be considered a domestic support obligation and shall be non-dischargeable
in bankruptcy." However, the decree also provides that "the martial assets should be
divided in accordance with the Stark Asset Spreadsheet attached hereto and incorporated
as Exhibit A and in accordance with the remaining paragraphs set out herein." The
spreadsheet incorporated into the trial court's order includes Husband's attorney's fees as
rnarital debt and assigns one-half ofthose fees to each party.
Marital debt is subject to equitable division in a divorce action. Alford v. Alford,
120 S.W.3d 810, 813(Tenn. 2003). Under the statutes existing when this matter was tried,
however, attorney fees incurred by the parties in a divorce action are not marital debt."
Rountree v. Rountree, 369 S.W.3d 122, 134 (Tenn. Ct. App. 2012) (citation omitted).
Rather, attorney's fees in a divorce action may be awarded as alimony in solido.
Gonsewski v. Gonsewski, 350 S.W.3d 99, 113(Tenn. 2011). The Gonsewski court stated:
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. 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.
11 We observe that Tennessee Code Annotated Section 36-4-121 was arnended effective March 31,
fees and
2022, to provide, in relevant part, that marital debt lilncludes debt incurred to pay attorney
s, and unpaid attorney fees and expenses incurred in
expenses incurred in connection with the proceeding
hearing and any proceeding s brought pursuant
connection with the proceedings through the date ofthe final
2022);
to Rule 59 of the Tennessee Rules of Civil Procedure[.] Tenn. Code Ann. § 36-4-121(b)(3)(West
2022 Tenn. Pub. Acts 762.
- 22 -
Id.(internal citations ornitted). The determination of whether attorney's fees are warranted
as an award of alimony in solido is within the sound discretion of the trial court. Id.However, an award of alimony is not one of the statutory factors to be considered
by the trial court when dividing the marital estate. Murdock v. Murdock, No. W2019-
00979-COA-R3-CV, 2022 WL 611024, at *11 (Tenn. Ct. App. Mar. 2, 2022). We have
noted:
it is clear that the legislature did not intend the award of spousal support to
be a consideration in the equitable division of the marital estate; however, it
did intend the division of rnarital property to be considered in awarding
alimony. Because the division of marital property is a consideration in the
award ofspousal support,the trial court was correct to first divide the marital
estate before considering the award of alimony.
Id.Husband asserts that the trial court's award of attorney's fees in this case "was
actually an equalization of marital funds/assets that had been spent" by Husband. He cites
Aaron v. Aaron, 909 S.W.2d 408 (Tenn. 1995), for the proposition that he is entitled to
attorney's fees because Wife "paid nothing" while he incurred substantial fees and the trial
court found those fees to be reasonable. Husband argues, in the alternative, that "Wife's
litigation tactics caused him to incur unnecessary attorney fees, all of which were within
the trial court's discretion to award in the nature of alimony."
Aaron is inapposite to this case. The husband in Aaron held an MBA,had 25 years
of professional experience, and his gross average incorne was approximately $295,000 per
year. The wife did not have a college degree and had never been employed outside the
home. The trial court awarded wife a divorce on the grounds of inappropriate marital
conduct, ordered husband to pay alimony infuturo, and "further ordereir husband to pay
wife's attorney's fees. Aaron v. Aaron, 909 S.W.2d 408, 409 (Tenn. 1995). On appeal,
this Court "relieved Mr. Aaron ofthe obligation to pay Ms. Aaron's attorney's fees; rather,
it ordered the attorney's fees be paid from the proceeds ofthe sale of a marital asset(realty
located in Polk County, Georgia) before the proceeds were equally divided between the
parties." Id. The supreme court reinstated the trial court's award of attorney's fees to wife
upon determining that husband had paid his attorney's fees from marital assets. The Aaron
court found that wife effectively had paid half of husband's attorney's fees "even though
she ha[d] no obligation to pay [those] fees." Id. at 411. The Aaron court opined, "by
ordering her attorney's fees to be paid out of marital assets, the Court of Appeals has, in
fact, required Ms. Aaron to pay one-half of her own fees in addition to one-half of
Mr. Aaron' fees. This is not what the trial court had in mind[1" Id.In the current case, however, Wife used no martial assets to pay attorney's fees, and
Husband accordingly did not effectively pay half of those fees. Husband's assertion that
23
he is entitled to one-half of his attorney's fees because Wife represented herself and "paid
nothing" is not supported by Aaron. Husband's argument stands for the proposition that
the parties' attorney's fees should be regarded as marital debt. The statues applicable to
this case do not support that proposition.
The final decree of divorce provides:
Husband's obligation to pay twenty-four percent (24%) of his DROP and
Retirement Payout to Wife shall be offset by Wife's obligation to pay
Husband $38,708.96 in attorney's fees and his share of the equity in the real
property. However, Wife shall receive $6,000.00 from Husband's
Retirement Payout. After offsetting Husband's DROP and Retirement
Payout obligation with Wife's share ofHusband's attorney fee obligation and
paying Husband for his share ofthe equity in the real property, any remaining
amounts due and owing Husband shall be paid by Wife within one hundred
and eighty days (180) of the entry of this Final Decree Any amounts which
remain still due and owing to Husband,by Wife after one hundred and eighty
days (180) shall be reduced to judgment in favor of Husband for which let
execution issue if necessary, and shall be in the nature of a domestic support
obligation which is non-dischargeable in bankruptcy.
Thus, the trial court characterized the award of attorney's fees to Husband as a "domestic
support obligation," but it also divided the fees between the parties as "share[s]" in the
context of the division of property. Additionally, as noted, the spreadsheet incorporated
into the final decree includes Husband's attorney's fees in the calculation of the division
of marital property.
Whether the trial court intended the award of attorney's fees to constitute an award
of alimony in solido or a division of marital debt requires us to interpret the judgment.
"The interpretation of a judgment is a question of law." Pruitt v. Pruitt, 293 S.W.3d 537,
544 (Tenn. Ct. App. 2008)(citation omitted). Our review of this judgment accordingly
is de novo with no presumption ofcorrectness. Rogers v. Louisville Land Co., 367 S.W.3d
196, 204(Tenn. 2012). It is well-settled that:
Judgments are to be construed like other written instruments, the
determinative factor being the intention ofthe court as gathered from all parts
of the judgment. Such construction should be given to a judgment as will
give force and effect to every word of it, if possible, and make its several
parts consistent, effective and reasonable.
Blue Cross-Blue Shield ofTennessee v. Eddins,516 S.W.2d 76,78(Tenn. 1974)(quoting
Branch v. Branch, 249 S.W.2d 581, 582-583 (Tenn. Ct. App. 1952))(internal citations
omitted).
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The trial court's judgment in this case, read in conjunction with the spreadsheet
incorporated into the judgment, indicates that the trial court treated Husband's attorney's
fees as marital debt. Additionally, the trial court ruled orally on July 9, 2020, and stated,
"[f]rorn the [c]ourt's perspective, there are four major assets and one major debt that the
[c]ourt needs to divide: the marital residence [in Mernphis]; the [Brittany Lane] property;
[H]usband's DROP money; his bonus time; and [H]usband's attorney's fees." Even if we
were to construe the award of attorney's fees to Husband as an award of alimony in solido
based on the court's characterization of the award as a "domestic support obligation" of
sorne nature, we observe that the trial court made no findings with respect to whether an
award of attorney's fees as alirnony in solido is appropriate or necessary in this case.
Husband relies on Gilliam v. Gilliam, 776 S.W.2d 81 (Tenn. Ct. App. 1988), for the
proposition that he is entitled to attorney's fees as an award of alimony in solido because
Wife "used the judicial process as a retaliatory weapon against Husband." The Gilliam
court found that the defendant/husband in that case had testified that "retaliation is a 'mode
of life.'" Gilliam, 776 S.W.2d at 86. The Gilliam court further observed that husband had
abused the discovery process, made false responses to interrogatories and in depositions,
and had "consistently engaged in a course of legal stone-walling and obstructive tactics in
an attempt to not only wear down Wife, but to deplete her assets as well." Id. at 87. The
court in Gilliam found that plaintiff/wife had been "penalizee by "defendant's evasive
tactics, false responses, atternpts to hide assets, false allegations and complete
unwillingness to cooperate." Id. at 87. The trial court in Gilliam also found that the
defendant husband was "clearly at fault for the collapse of th[e] marriage, and that during
the process of dissolution Wife was subjected to extreme cruel and inhuman treatment."
Id. at 86. The Gilliam court affirmed a cash award of attorney's fees to wife as alimony in
solido upon finding that requiring wife to use rnarital property to pay attorney's fees would
"totally extinguish [her] liquid assets." Id. at 87. The court emphasized, "[t]his is not in
any way to indicate that a litigant should not be free to fight his cause with zeal to the extent
necessary to prevail. In this case it appears that Husband went beyond the bounds of
reason." Id. at 86.
Notwithstanding the complexity of the litigation in this matter, the attorney's fees
awarded in this case were confined to the proceedings in the trial court. We observe that
the divorce proceedings were complicated by Husband's petition for a restraining order,
Wife's alleged disregard of the restraining order, and Wife's tort claims, which were
adjudicated within the divorce action. Husband does not direct us to any attempt on his
part to bifurcate the tort action frorn the divorce proceedings, and that issue is not before
us. Additionally, Husband continued to pursue his petition for civil and criminal conteinpt
against Wife long after the final decree of divorce was entered in this matter.
Unlike the court in Guilliam, here the trial court made no findings with respect to
whether Wife intentionally used the judicial process to wear down Husband or to deplete
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his assets. Further, the trial court found that both parties "contributed to fault in the
divorce." Upon review ofthe record, we agree. As noted, the trial court in this case made
no findings to support an award of alimony in solido. Rather the trial court divided
Husband's attorney's fees as marital debt and assigned one-half to each party.
Accordingly, we reverse the award of attorney's fees to Husband.
3. Division of Marital Property
"Trial courts have wide latitude in fashioning an equitable division of marital
property[1"Ludlow v. Ludlow,450 S.W.3d 105, 110(Tenn. Ct. App. 2014)(citing Fisher
v. Fisher, 648 S.W.2d 244,246(Tenn. 1983)). Therefore, we give great weight to the trial
court's determination regarding that division. Id. However, our determination that neither
the Brittany Lane property nor Husband's attorney's fees are subject to division as part of
the marital estate requires reconsideration of the division of rnarital property in this case.
See Flannary v. Flannary, 121 S.W.3d 647, 651 (Tenn. 2003)(holding that the equitable
division of marital property may be reconsidered in light ofthe reclassification of property
by the appellate court). Although the division of marital property generally is within the
purview of the trial court, in the interests ofjudicial econorny and in view of the already
protracted litigation in this case, we will resolve this issue based on the record and the proof
adduced at trial.
It is well-settled that the division of marital property in a divorce action rnust be
equitable. See, e.g., Brown v Brown,577 S.W.3d 206,212(Tenn. Ct. App.2018)(citations
omitted). "An equitable division of marital property does not require a precisely
equal division of marital assets, but requires a fair final result." Hankins v. Hankins, No.
W2009-00240-COA-R3-CV, 2010 WL 1172204, at *4 (Tenn. Ct. App. Mar. 26, 2010)
(citing Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn. 2002); Batson v. Batson, 769
S.W.2d 849, 859(Tenn. Ct. App. 1988)). Accordingly, we- have repeatedly noted that‘"[a]
trial court is charged not with making an equitable division of each separate marital asset
but rather with making an equitable division ofthe entire marital estate.'" Tarver v. Tarver,
No. W2017-01556-COA-R3-CV, 2019 WL 1200274, at *13 (Tenn. Ct. App. Mar. 13,
2019)(quoting Givens v. Givens, No. E2016-00865-COA-R3-CV, 2017 WL 4339489, at
*8(Tenn. Ct. App. Sept. 29, 2017)).
The Tennessee Code requires the trial court to consider all relevant factors when
equitably dividing marital property, 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;
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(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 ofthe separate property of each party;
(7)The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of
property is to become effective;
(9)The tax consequences to each party, costs associated with the reasonably
foreseeable sale of the asset, and other reasonably foreseeable expenses
associated with the asset;
(10) 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 ofthe 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 ofcontrol, 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.
Tenn. Code Ann. § 36-4-121(c).
The trial court found:
This was not a long marriage. The parties married on May 28, 2013, which
under normal circumstances would have equated to a seven-year marriage,
but this was not a normal marriage. The parties both acknowledge that this
has been a turbulent marriage from almost the start, with Wife filing and
pursuing two other Divorce Complaints prior to the current filing, which was
filed in June,2018. Because ofthe rocky relationship and the repeated filings
the parties have been together less time [than] they were apart, having been
together for only 40 ofthe last 84 rnonths.
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The parties do not dispute the trial court's characterization of their marriage as short and
turbulent. Generally, "in a marriage of short duration, trial courts attempt to place the
parties as nearly as possible in the financial positions they occupied before the marriage
took place." Broadbent v. Broadbent,211 S.W.3d 216, 222(Tenn. 2006). However,"the
division of marital property is not a mechanical process, Larsen-Ball v. Ball, 301 S.W.3d
228, 234(Tenn. 2010)(citation omitted), and the duration ofthe marriage is but one factor
to be considered by the trial court when dividing marital assets, particularly when one
spouse has contributed substantially to the value ofthose assets. See Powell v. Powell, 124
S.W.3d 100, 108 (Tenn. Ct. App. 2003). "Rather, the trial court should weigh the most
relevant factors in light ofthe facts ofeach case." Larsen-Ball,301 S.W.3d at 234(citation
omitted). The relevant factors include "the actions of the parties" with respect to the
parties' assets during the marriage. Flannary v. Flannary, 121 S.W.3d 647, 651 (Tenn.
2003).
Although they were legally married for seven years, as discussed above, the parties
have not lived together since June 2018; they were separated twice for a total ofnearly two
years between April 2015 and June 2018; and their finances were separated for much of
the marriage. Additionally, the parties were both employed prior to the marriage, during
the course ofthe marriage, and throughout the course ofthe proceedings in the trial court—
Wife as an attorney and Husband as a sergeant in the homicide division of the MPD. Both
have separate property and access to pensions upon retirement. Our review of the record
supports the trial court's characterization of this marriage as "turbulent."
The parties have three significant marital assets: the Memphis residence, Husband's
leave/bonus compensation that accrued during the marriage, and the DROP account. They
also have two vehicles, their separately held checking and savings accounts, and the marital
portion of their pensions. Husband's separate property includes a time share in Branson,
two smaller retirement accounts that he owned prior to the marriage, and the non-marital
portion of his pension with the MPD. In addition to the non-marital portion of her pension,
Wife's separate property includes a Camaro, and, in light of the foregoing, the Brittany
Lane property.
As observed above, the trial found that Husband "did not contribute to the parties'
marital assets during the periods of separation[J" and it is undisputed that marital assets
were used to pay debts that Husband incurred prior to the marriage. It is also undisputed
that Wife incurred student loan debt prior to the marriage, that Husband incurred additional
debt while the parties were separated in 2015-2016 and in 2017, and that marital assets
were used to pay the expenses of both parties during the course of the marriage. The
testimony indicates that the parties maintained individual bank accounts and credit cards,
and their financial accounts remained largely separate during the periods of separation and
after the 2017 separation. Husband did not contribute to the expenses associated with
improvements made to the Memphis residence during the periods of separation, and in his
brief Husband acknowledges that the renovations to the guest house were completed by
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Wife and her brothcr. With the foregoing in rnind, we turn to the division of the marital
estate.
The Pensions, Savings and Checking Accounts
Wife asserts that the trial court improperly excluded the value of the parties'
pensions from consideration when it divided the martial estate. Her argument, as we
understand it, is that a calculation ofthe value ofthe marital portion ofthe parties' pensions
is necessary to determine the equitable division of martial property. Wife asserts that,
should she elect to begin drawing her pension at age fifty-five, her monthly pension value
would be $783 and the marital value would be $298 per month. She asserts that if she
elects to receive pension benefits at age fifty-five, over the course of ten years, she will
receive $35,760 from the marital portion of her pension, and Husband will receive
$160,200 from the marital portion of his pension over the sarne ten-year period. Wife
acknowledges, however, that if she delays retirement until age 65, her monthly pension
benefit would be $2,156.41. At the June trial of this matter, Wife testified,
I can either begin receiving benefits when I'm 65 in the arnount of$2,156.41;
or I can start receiving them next rnonth when I'm 55, but I'll only receive
$782.35. Obviously,for obvious reasons,I had always intended on deferring
it to 65, but at this point, given I don't have any income in the foreseeable
next few months, I may have to opt to change it to be 55.
Husband, on the other hand, asserts in his briefthat the parties had inore "pensionable years
of service before the marriage than after, that they were separated for a considerable
portion of the marriage, and that Wife received a "payout of the same nature [as his leave
compensation]in February 2019H" He also contends that the trial court should have offset
the award to Wife of a portion of Husband's accumulated leave/bonus compensation with
accrued leave and bonus tiine amounts paid out to Wife when she changed employment in
2019. Husband further contends that the rnartial fraction of Wife's pension would amount
to $711.61 per month, that the marital fraction ofhis pension would amount to $578.99 per
month, and that an equal division of those amounts would result in Wife owing Husband
$66.31 per month. Additionally, although Husband does not dispute that the DROP fund
was established during the marriage or that a portion of the funds deposited into it are
marital, he contends that the DROP account should be included in the calculation of the
fraction of his pension that is martial property.
As discussed above,to the extent that Husband contends that the trial court erred in
its valuation or division of property, Husband's issue is waived. Husband raised no issues
for our review and asserted that "the trial court properly classified, valued and divided the
property ofthe parties[.]"
As Wife asserts, the trial court appears not to have classified the parties' pensions
- 29 -
as either rnarital or separate, but awarded each party his or her respective pension. Under
the Tennessee Code, the value of a pension that accrues from employment during a
rnarriage is marital property, Tenn. Code Ann. § 36-4-121(b)(1)(B)(i), and the parties agree
that a portion of their respective pensions is marital property. Although the spreadsheet
attached to the decree of divorce does not include the parties' pensions, the table contained
in Wife's brief in accordance with Rule 7 of the Tennessee Rules of Appellate Procedure
reflects that the trial court valued Husband's pension income at $3,735 per month and
Wife's at $2,156 per rnonth. The evidence supports the trial court's valuation of the
expected rnonthly incorne that each pension will provide. Because the parties acknowledge
that a portion of their respective pensions is marital property, we perceive the trial court's
award as implicitly awarding each party the martial portion oftheir pension. In light ofthe
totality of the record and the factors enumerated in the Tennessee Code, the trial court's
decision to award each party the marital portion of their pension is not inequitable.
Similarly, the trial court's award to each party of their respective savings and
checking accounts without classifying thern as either separate or marital works no inequity
in this case. The value ofthose accounts, the equity associated with the parties' vehicles,
and the incoine each party may expect to receive from his or her respective pension,
however, rnust be considered when construing an equitable division of the remainder of
the parties' marital property.
The Memphis Residence
The Memphis residence was the parties' marital residence when they separated in
2018 and is clearly marital property because it was acquired during the marriage and is
jointly titled. However, the mortgage associated with the Mernphis residence is in Wife's
name only; Wife resided in the property frorn 2015 through the course of the divorce
proceedings; and Husband resided in the property only intermittently for brief periods
between lengthy separations. It appears that Wife completed most of the repairs and
renovations on the property, and Husband did not contribute to the property while the
parties were separated. The trial court deterinined that the marital equity in the Memphis
residence was $53,812 and awarded 76 percent of the property ($40,897) to Wife and 24
percent ($12,915) to Husband. In light of the equities of this case, we reverse the trial
court's division of the Mernphis residence and award the property to Wife in total.
Leave/Bonus Compensation
We turn next to the accrued leave/bonus cornpensation that will be paid to Husband
upon retirement. The trial court determined that the fair market/gross value of the benefit
was $45,737. After applying a 22 percent reduction for taxes, the trial court determined
that the rnarital equity value of Husband's leave/bonus compensation was $35,675. The
trial court awarded 76 percent($27,113)to Husband and 24 percent($8,562)to Wife.
- 30 -
As discussed above, Wife asserts that the record contains no evidence to support a
22 percent tax liability, and Husband points us to none. We observe that Wife did not
contribute to the acquisition of this asset, and, notwithstanding proof of a definitive
amount, a tax liability will attach to the asset. In light of the totality of this record, we
reverse the trial court's division of Husband's leave/bonus compensation and award it to
Husband in total.
Husband's DROP Account
We next consider Husband's DROP account. The trial court found that the gross
value of the DROP account was $131,828 and deterrnined that the equity value was
$102,824. The trial court awarded 76 percent of the DROP ($78,146)to Husband and 24
percent($24,678)to Wife. As discussed above, however, the proof reasonably supports a
reduction of 20 percent in consideration of the tax consequences associated with this asset.
Accordingly, we turn to the equitable division of this asset in light of the circumstances in
this case.
As discussed above,the DROP offers Memphis employees, who have paid into the
City's pension plan for at least 25 years, the opportunity to defer retirement for a maximum
ofthree years. Pension amounts that the employee would have received had he/she retired
are deposited into a DROP account during the deferment period. At the June 2020 trial of
this matter, the Pension Coordinator for the City of Memphis testified that participation in
the DROP program requires the participant to retire in one, two, or three years and that
Husband entered the DROP plan in July 2015. She testified that, although the decision to
enter the DROP is irrevocable, the City Council permitted a "freeze period," and Husband
froze participation in the DROP in November 2015 and unfroze it in November 2017. She
further testified that the funds paid into the DROP account constitute "the (deferred)
pension money" and that "instead of going to the employee, because they're deferring it,
it's actually set aside for them" in the DROP account. She also testified that participation
in the DROP did not impact Husband's expected post-retirement pension.
The DROP Freeze Cancellation Forrn contained in the record provides that, during
the freeze period, the City's payrnents to the DROP account were suspended, and Husband
was required to make employee contributions to the City's pension. Husband earned
creditable service as an ernployee during the freeze period, however. When the freeze
period ended, the City's payments to the DROP account were based on a recalculation of
Husband's pension benefits in light of the additional creditable service time.
As Husband asserts, although the DROP account was established during the course
ofthe marriage, most ofthe years of service required to participate in the program accrued
prior to the marriage. However,the DROP account essentially served as an interest-bearing
savings account into which the City deposited Husband's deferred pension amounts while
Husband continued to receive his regular salary. In return, Husband agreed to retire in July
- 31 -
2020. Additionally, Husband was not required to pay into the City's pension account while
actively participating in the DROP, but he gained additional creditable service during the
"freeze" period which impacted his pension benefits.
Under the circuinstances ofthis case and in light ofthe foregoing, we affirm the trial
court's division of Husband's DROP account awarding 24 percent of the total account to
Wife. The award to Wife shall be reduced by 20 percent in consideration of the tax
consequences associated with the account that are supported by proof in the record. The
remainder of the DROP account is awarded to Husband.
Upon review ofthe record and in consideration ofthe factors set-forth in section 36-
4-121, including the duration ofthis marriage; the parties pensions, savings, and checking
accounts; the parties' separate property, including Wife's Brittany Lane property; the value
ofthe vehicle awarded to each party; the award to Wife of the marital Memphis residence;
the award to Husband of his leave/bonus compensation; Husband's mandatory retirement;
the parties' respective earning capacities; the parties' respective contributions to the
marriage; and the parties' contributions to the acquisition of the inarital estate, we are
satisfied that the foregoing modified division of marital property is equitable under the
circuinstances.
B. Bias and Dismissal of Wife's Tort Claims
Finally, we turn to Wife's assertion that the trial court exhibited bias against her
which impacted its disposition of Wife's interspousal tort clairns. Wife asserts that she
overheard a conversation during a lunch break in the course of the June 2020 proceedings
in which the trial judge defended his treatment of a courtroom clerk by stating "loudly and
forcefully" that "Pam Stark is doing everything she can to delay this." She submits,
[Wife] immediately placed this on the record when the court returned from
recess. Though the court made comments explaining his conversation;
however, it did not deny any of the staternents [Wife] stated she had heard.
The court denied bias and indicated it could impartially adjudicate the issues.
However, the same day the court prohibited [Wife] from attempting to
impeach [Husband's] credibility indicating that it had already made
credibility determinations. Given this was cross-examination of[Husband],
the traditional tiine during which impeachment occurs, it seemed apparent
which way those determinations had fallen. Wife did not file a written
motion, as the court had already ruled from the bench and the trial was well
underway. After trial, there was nothing for thejudge to recuse himselffrom.
However, once the court indicated that it could hear the Contempt Petition it
had previously stayed, [Wife] filed a written motion . . . prior to the court
entering the Final Decree of Divorce.
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(Wife's citations to the record ornitted.)
Wife asserts that "[t]he rulings at trial, taken in context with comments the court
rnade concerning [Wife], establish a bias against [Wife] which prevented her from having
her tort action heard before a neutral tribunal." She submits that "[t]he court made it
blatantly clear from the onset that it viewed [Wife's] tort claims at best as part and parcel
with the divorce." She relies on Kemp v. Kemp, 723 S.W.2d 138 (Tenn. Ct. App. 1986),
for the proposition that "[t]hough case law indicates that potential overlap requires [an]
interspousal tort action to either be tried prior to or simultaneous with any pending divorce
action, that does not make them one action." Wife asserts that, with respect to the
adjudication of her tort claims, the trial court prevented her from impeaching Husband's
credibility, prohibited her from introducing relevant evidence and calling police officers as
witnesses, and "discredited all of[Wife's] testimony."
Wife also points to the trial court's rulings related to the 2019 order of contempt as
further evidence of bias. In her brief, Wife asserts:
Since [Wife's] public comments concerning MPD were brought to the
court's attention, interactions have been turnultuous. The court has made
clear that it neither approved of[Wife] or her comments. While the court's
approval is certainly not required, the court's disapproval has played out
through its rulings.
1) The court used [Wife's] allegations of domestic assault to issue an order
of protection against her, requiring that depositions be taken at the
courthouse in the presence of a bailiff.
2)The court found [Wife] violated the rnandatory injunction by subpoenaing
[Husband's] supervisor, a person with knowledge of the case, for a
deposition.
3)The court granted a restraining order clearly violative ofthe United States
Constitution and Tennessee Constitution.
4)The court held [Wife] in contempt without any procedural due process.
5) The court has repeatedly mischaracterized [Husband's] actions on
February 7, 2019.
6)The court entertained ex parte communications with opposing counsel and
set the case for trial in [Wife's] absence.
(Wife's citations to the record ornitted.)
Wife submits that, because the courtroom was closed due to COVID pandemic
restrictions, she "was alone in the seemingly hostile environment." She asserts that her tort
claims "turn mainly on credibility issues" and that "the appearance of bias renders the
dismissal of these actions suspect." Wife relies on Rule 42 of the Tennessee Rules of
- 33 -
Criminal Procedure and Cook v. State, 606 S.W.3d 247 (Tenn. 2020), in support of her
argument that bias and/or the appearance of bias mandated recusal in this case. She
contends that "a reasonable person hearing [the trial court's] comments would not have
been surprised by the outcome of her case." She also submits that the trial court's second
order on contempt in September 2021 "add[s] insult to injury."
Insofar as Wife relies on events considered on appeal ofthe trial court's March 2019
order on contempt and May 2019 order denying her first motion to recuse, those matters
are not before us here. We addressed the trial court's denial of Wife's first motion to recuse
in Stark v. Stark, No. W2019-00901-COA-T10B-CV, 2019 WL 2515925(Tenn. Ct. App.
2019)("Stark P'), and we will not revisit that issue here. Additionally, the provisions of
the Tennessee Code of Judicial Conduct Rule 2.11 and the case law governing the recusal
based on bias were fully set-forth in Stark I, and we see no reason to repeat that analysis
here.
In Stark I, we observed:
Rather than take issue with the trial court's substantive rulings, Wife
contends that the trial court's "rulings have repeatedly exceeded the relief
sought by opposing counsel and create an appearance of both bias and
prejudice which require his recusal." Wife also asserts that the trial court's
decisions show that he has prejudged the issues remaining in the case. As an
initial matter, we note that throughout her petition for recusal appeal, Wife
takes issue with several inferences and implications that she asserts are
evident from the trial court's rulings.
Stark I, 2019 WL 2515925, at *8.
Wife rnakes similar arguments here. Wife contends that the trial court's staternent
that Wife was "doing everything she can to delay this," combined with the court's rulings
as a whole, created an appearance of bias. Wife does not ask us to review any substantive
ruling, finding of fact or conclusion of law by the trial court. She did not raise dismissal
of her tort claims as an issue for review in her Statement ofthe Issues. She asserts that the
trial court was biased against her and that her tort claims were not heard by a neutral
tribunal. The gravamen of Wife's argument, as we perceive it, is that the trial court erred
in denying her second motion to recuse.
As we noted in Stark I, a trial court's "unfavorable impression of a party[J"
standing alone, is not"evidence ofimpermissible prejudgment." Id. at *10. Further,"even
where a trial judge actually develops a bias from in-court interactions, such a bias must be
so pervasive as to deny the litigant the right to a fair trial to warrant recusal." Id.(citation
omitted). Moreover,"[i]n general, a trial court's unfavorable or even erroneous rulings are
insufficient to show bias."Id. at *11.
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Notwithstanding the comrnents made by the trial judge to his clerk, the transcript
contains no evidence to dernonstrate bias. The trial court permitted Wife leeway to call
witnesses via Zoom and, despite the pandemic, held lengthy hearings. Although the trial
court limited Wife with respect to questions it found irrelevant or redundant, Wife had
ample opportunity to impeach Husband over the course of the six-day hearing of this
matter.
To the extent that Wife relies on Kemp v. Kemp for the proposition that the trial
court erred by not treating her divorce complaint and tort claims as separate and distinct
proceedings, that reliance is misplaced. In Kemp, this Court held that the plaintiffs tort
action against her forrner husband was bared by the doctrine of res judicata where "the
facts underlying the domestic altercation were exarnined in a [prior] divorce action." Kemp
v. Kemp, 723 S.W.2d 138, 139 (Tenn. Ct. App. 1986). The Kemp court observed: "The
cause of action under which the plaintiff recovered medical expenses and lost wages in the
divorce litigation technically was not the same—she sued for divorce—but, in effect, she
prevailed on a tort claim." Id. As in the current case, the Kemp plaintiff/wife's claims for
damages arising from spousal assault were heard within the divorce action.
Although the transcripts of the proceedings in this case reveal the trial court's
occasional impatience and even irritation, such expressions "'are within the bounds of what
irnperfect men and women ... sometimes display.'" In re Estate ofDorning, No. M2020-
00787-COA-T10B-CV, 2020 WL 3481538, at * 4(quoting Liteky v. U.S., 510 U.S. 540,
555-56 (1994)). Furthermore, we observe that the trial court's occasional impatience and
irritation was directed at both parties during the course of the many hearings in this case.
Moreover, despite Wife's assertion that the trial court "prohibited her from introducing any
evidence which reflected poorly on[Husband,]"the record transmitted to this Court reflects
otherwise.
In her brief, Wife asserts:
It is not difficult to understand why an impartial tribunal is pivotal to the
concept ofjustice and faith in the judicial system. Judges after all are vested
with the power to divest litigants of life, liberty and property. However,
despite the universal recognition of this concept, it is often a right without
much remedy. Trial courts are vested with broad discretionary power and
presumption in the correctness of their rulings.
• • •
Thus,an appellant's fate is left to an argument that must be tempered to avoid
any staternents considered derogatory, a transcript which cannot reflect
inflection, pitch, tone, volume or body language and judicial rulings which
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are presumed correct. Even these are subject to rebuffs of"should expect to
incur the wrath of the judge," or "every ruling by necessity involves some
measure of bias" under a standard where "even, repeated and continuous
erroneous rulings are insufficienr to show bias. Eldridge citing Wilson v.
Wilson, 987 S.W.2d 555, 562(Tenn. Ct. App. 1998)[.]
As Wife asserts, "the black robe is not a magic cape that removes the frailties of human
nature." In this case, however, notwithstanding the trial court's comments to his clerk in a
private conversation overheard by Wife, the record contains no evidence of impropriety.
Even viewing the trial court's June 2020 comrnents together with the assertions made by
Wife in her first motion to recuse, we find no evidence of bias. Therefore, we affirm the
trial court's denial of Wife's second motion to recuse and its dismissal of Wife's tort
claims. Wife's request for relief in the form ofremand of her tort clairns is denied.
Iv. CONCLUSION
For the foregoing reasons, we affirm the trial court's judgment dismissing Wife's
claims of battery, intentional infliction ofemotional distress, fraudulent inducement and/or
promissory estoppel and/or unjust enrichment. The trial court's classification of the
Brittany Lane property as marital property under the doctrine oftransmutation is reversed.
The Brittany Lane property is awarded to Wife as her separate property. We also reverse
the trial court's classification and division of Husband's attorney's fees as marital debt,
and its judgment ordering Wife to pay one-half of those fees. The rernainder of the trial
court's valuation and division of marital property is affirmed as modified, to wit:
Wife is awarded the Brittany Lane property in total as her separate property;
The parties are awarded the marital portion of their respective pensions, in
total;
The parties are awarded their respective savings/checking accounts;
Wife is awarded the 2017 Jeep Renegadc and Husband is awarded the 2011
Jeep Cornpass;
Wife is awarded the marital residence in Memphis, Tennessce, in total;
Husband is awarded his leave/bonus compensation, in total;
Wife is awarded 24 percent of Husband's DROP account. The pre-tax
arnount awarded to Wife from the DROP account will be reduced by 20
percent in consideration ofHusband's tax liability as supported by the record.
Except as provided with respect to the DROP account, any indebtedness,tax,
insurance or other financial liability attached to an asset will be the
responsibility ofthe party receiving that asset.
Husband's request for attorney's fees on appeal is denied. Costs on appeal are taxed
one-half to the Appellee, Joe Edward Stark, and one-half to the Appellant, Pamela Diane
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Stark, for all of which execution may issue if necessary. This matter is remanded to the
trial court for entry of a judgment consistent with this Opinion. Further proceedings in the
trial court, if any, are limited to those strictly necessary for entry of a judgment as provided
herein.
s/ Kenny Armstrong
KENNY ARMSTRONG,JUDGE
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