Dawn Larsen Niceley v. James Jacob Niceley, IV

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 21, 2002 Session
DAWN LARSEN NICELEY v. JAMES JACOB NICELEY, IV
Appeal from the Chancery Court for Robertson County
No. 15531 Carol Catalano, Chancellor
No. M2001-02182-COA-R3-CV - Filed March 14, 2003
After a sixteen-year marriage and one child, Husband and Wife both filed for divorce. After hearing
the evidence, the trial court fashioned a parenting plan which named Husband the primary residential
parent during the school year and named Wife the primary residential parent during the summer and
most holidays and school breaks; valued and divided the marital property; and awarded Wife
attorney’s fees as alimony in solido. We affirm the parenting plan and the distribution of marital
property but reverse the award of attorney’s fees because the trial court found Wife was not
economically disadvantaged.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed in Part, Reversed in Part, and Remanded
PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and JAMES L. WEATHERFORD , SR. J., joined.
Phillip Mark Walker, Goodlettsville, Tennessee, for the appellant, Dawn Larsen Niceley.
Christina Brasher, Springfield, Tennessee, for the appellee, James Jacob Niceley, IV.
OPINION
Jacob Niceley, IV (“Husband”) and Dawn Niceley (“Wife”) were married on August 16,
1984, in Forsyth, Missouri. During the early years of the marriage, the parties resided in several
states, including Illinois. The couple finally settled in Tennessee.
For the first year or two of the marriage, Husband was in school and Wife worked. Wife had
a bachelor’s degree in Theater and Speech when the couple got married, and approximately five
years later, she decided to return to school to obtain a Master’s Degree in Theater and Speech. She
enrolled in Austin Peay State University while the couple was living in Clarksville, Tennessee.
During that time, Husband supported the family, traveling some 80 miles round trip daily into
Nashville to work. Wife received her Master’s Degree after approximately two (2) years. She then
worked for a time at Austin Peay State University and at various other jobs. In 1993, their child, a
son, was born.
That same year, Husband and Wife purchased a fifty (50) acre farm in Greenbrier, Tennessee.
Husband, a recording engineer, was making about $19,000 a year at this time and was attempting
to establish himself in the music industry and start a business. In 1995, Husband invested in a start-
up business, Audio Services, Inc., with $7,000. He is a 20% shareholder of the business. Audio
Services, Inc. owns a parcel of real estate on Music Row with a building that houses a music studio.
The property was purchased for approximately $600,000. In addition to his ownership in Audio
Services, Husband also does free-lance work as a recording engineer using the name “Like to Hear
it Music.”
After Wife discovered that she could not teach more than three (3) years at the college level
without a doctorate, the parties agreed that the Wife should pursue her doctorate. Because there were
no universities in Tennessee that offered a doctorate in her field, Husband and Wife agreed that she
would obtain a degree in Theater and Speech from Southern Illinois University, which was
approximately three and a half hours away from the couple’s home by car. Their child was three
years of age at the time Wife began her doctoral program in 1996.
The original plan was for the parties to share in the care of their child during Wife’s
attendance at school in Illinois. They attempted this arrangement in the first year of Wife’s doctorate
program, when Husband and Wife were to take turns caring for their three year old, each taking care
of him one week at a time. This plan fell through when they were unable to keep babysitters for
alternate weeks, and the child remained primarily with Husband during the week. Wife spent every
weekend and summer at the marital residence in Greenbrier.
During her first summer home from Illinois, Wife worked at a summer theater program at
Volunteer State Community College. During the second year of her doctorate program, the child
stayed with his father in Greenbrier and attended Belmont Day School. Wife still came home every
weekend during this second year. Wife returned home again for the second summer and once again
worked at the summer theater program at Volunteer State. When Wife returned to Illinois for her
final semester of school, she took their son with her and enrolled him in a private kindergarten. She
and the child made the trip home to Greenbrier every weekend. Wife completed her doctoral
program in December of 1998, having amassed student loans in the amount of $3,471.61 and
$11,072.69. After obtaining her doctorate, Wife became employed as an Assistant Professor of
theater and speech at Volunteer State Community College. She continued to work at the summer
theater program at Volunteer State. In the fall of 1999, Wife was employed at Middle Tennessee
State University. The parties’ child rode the bus to school most mornings, and Wife picked him up
from a babysitter on her way home from work.
In November of 1999, Husband told Wife that he did not want to be married to her anymore.
The parties attended marriage counseling with a licensed clinical social worker from November of
1999 to April of 2000 on a weekly basis, completing 26 sessions of marital counseling.
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In July of 2000 Wife filed a complaint for absolute divorce in the Chancery Court for
Robertson County. Shortly thereafter, Husband filed a complaint for divorce. The cases were
consolidated by agreed order. The trial court also entered an agreed pendente lite order which
provided for support for Wife and the parties’ child. Several months later, Husband attempted to
reduce the pendente lite support, but the trial court dismissed the motion.
Prior to the trial, Wife filed a proposed parenting plan requesting primary residential time
with the child. Husband did not file his proposed parenting plan requesting primary residential time
until the end of the second day of trial and only after the trial court requested that Husband do so.
At the trial, both parents offered testimony as to their relationship with their child.
At the time of the trial, Wife had applied for a job in Missouri and had completed the first
round of interviews. She expressed a desire to move to Missouri if she obtained the job, because her
salary would increase by $5,000 to $10,000 a year. Wife was employed at Volunteer State
Community College at that time, earning approximately $32,792 a year plus state retirement and
health benefits. Her retirement through her employer was valued at $16,562.52 and her 401k was
valued at $800. While Husband’s earning history was somewhat erratic, the testimony showed the
average of his last three years of income to be $33,250. Husband had a Guardian Mutual Fund
valued at $2,970.80 at the time of the hearing and no other retirement benefits of any kind.
Husband owned a 1967 GTO automobile which he purchased prior to the marriage. Wife
had Bank of America stock and household furnishings that were given to her prior to the marriage.
Husband drove a 1987 Toyota four wheel drive truck and Wife drove a 1988 Volkswagen Cabriolet.
The parties accumulated approximately $14,000 in school loans during the marriage to pay for
Wife’s education. Husband’s undergraduate education loans, totaling approximately $10,000, were
paid in full during the marriage. There was testimony at the trial as to the profit and loss statements
of Audio Services, Inc. Husband testified that the registered S-corporation was operating at a loss
and that the investors would be extremely lucky to recoup their initial investment.
The trial court made lengthy findings regarding the distribution of marital assets and child
custody. The court found Husband was guilty of inappropriate marital conduct and awarded Wife
an absolute divorce. The trial court awarded Husband his Guardian Mutual Fund, valued at
$2,970.80 and awarded Wife her retirement accounts valued at $16,565.52 and $801.58 as well as
her savings account valued at $1,000. The court distributed the rest of the marital property and
awarded each party his or her separate property. The trial court ordered that the marital residence
be sold and the proceeds split after paying off the couple’s line of credit, the first mortgage, the
Wife’s student loans, and the judgment against Husband for a portion of Wife’s attorney’s fees in
the amount of $4,630. Husband was not required to pay rehabilitative or in futuro alimony to Wife,
but was ordered to pay Wife’s attorney’s fees in the amount of $4,630 for and as alimony in solido.
As to child custody, the trial court entered a final parenting plan which granted primary
residential custody to Husband during the school year and granted visitation to Wife one night every
week and every other weekend. During the summer, however, Wife was given primary residential
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custody and Husband was given visitation every other weekend. The parenting plan also gave
visitation to Wife on the majority of the holidays, including two weeks of Christmas vacation and
spring break. The trial court ordered the parties to cooperate in making major decisions regarding
the child, determined that neither party should pay the other child support, granted Wife the right to
receive the tax deduction for the child, and ordered Wife to maintain insurance on the child and pay
any extraordinary medical expenses not covered by insurance. In fashioning the plan, the trial court
specifically noted that the child was to spend the majority of residential time with Husband.
After the final order was issued by the trial court, the marital residence was sold. Sometime
thereafter, Husband filed a motion to compel due to Wife’s refusal to sign the checks held in escrow
from the sale of the marital residence. Wife filed a motion to clarify the court’s ruling regarding the
parenting plan. After a hearing on the motions, the trial court ordered Wife to sign the checks and
clarified the parenting plan in a later order which was incorporated into the final decree. The trial
court clarified the Parenting Plan by noting that it intended Wife to have the child every Wednesday
night only during the school year, that Wife was also to have visitation with the child every
prescheduled school free day from 8:00 a.m. to 8:00 p.m., that Husband’s summer visitation on the
weekends was the same as Wife’s weekend visitation during the school year, that each party is
encouraged to provide additional visitation times, and that should a parent miss a scheduled
visitation time, the other parent should allow them to make up that time at a later date. The trial
court also determined that Husband could remove the child from his present school and enroll him
in school in Davidson County.
In this appeal, Wife raises two primary issues: (1) residential schedule of the child; and (2)
division of marital property. Husband appeals the trial court’s award of attorney’s fees.
I. Residential Schedule of Child
This case was decided shortly after the effective date of the new parenting plan legislation,
see Tenn. Code Ann. § 36-6-401 et seq., and there is no dispute that the legislation applies herein.
Under the new parenting plan legislation, any final decree in an action for absolute divorce involving
a minor child must incorporate a permanent parenting plan. A parenting plan is defined in Tenn.
Code Ann. § 36-6-402(3) as “a written plan for the parenting and best interests of the child, including
the allocation of parenting responsibilities and the establishment of a residential schedule, as well
as an award of child support consistent with title 36, chapter 5.” According to Tenn. Code Ann. §
36-6-404, a permanent parenting plan shall:
(a)(1) Provide for the child’s changing needs as the child grows and matures, in a
way that minimizes the need for further modifications to the permanent parenting
plan;
(2) Establish the authority and responsibilities of each parent with respect to the
child, consistent with the criteria in this part;
(3) Minimize the child’s exposure to harmful parental conflict;
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(4) Provide for a process for dispute resolution, before court action, unless precluded
or limited by § 36-6-406; . . .
(5) Allocate decision-making authority to one (1) or both parties regarding the child’s
education, health care, extracurricular activities, and religious upbringing. The
parties may incorporate an agreement related to the care and growth of the child in
these specified areas, or in other areas, into their plan, consistent with the criteria in
this part. Regardless of the allocation of decision making in the parenting plan, the
parties may agree that either parent may make emergency decisions affecting the
health or safety of the child.
(6) Provide that each parent may make the day-to-day decisions regarding the care
of the child while the child is residing with that parent.
(7) Provide that when mutual decision making is designated but cannot be achieved,
the parties shall make a good faith effort to resolve the issue through the appropriate
dispute resolution process, subject to the exception set forth in subdivision (a)(4)(F)
....
Under the legislation, the court is to determine a residential schedule, which designates the
primary residential parent and designates in which parent’s home the child will reside on given days
during the year. Tenn. Code Ann. § 36-6-402(5). A residential schedule is defined as:
. . . the schedule of when the child is in each parent’s physical care, and it shall
designate the primary residential parent [the parent with whom the child resides more
than 50% of the time]; in addition, the residential schedule shall designate in which
parent’s home each minor child shall reside on given days of the year, including
provisions for holidays, birthdays of family members, vacations, and other special
occasions, consistent with the criteria of this part; provided, that nothing contained
herein shall be construed to modify any provision of § 36-6-108; . . . .
Tenn. Code Ann. § 36-6-402(5). When fashioning the residential schedule, the court is instructed
to take into account the factors listed in Tenn. Code Ann. § 36-6-404(b), which states:
. . . the court shall make residential provisions for each child, consistent with the
child’s developmental level and the family’s social and economic circumstances,
which encourage each parent to maintain a loving, stable, and nurturing relationship
with the child. The child’s residential schedule shall be consistent with this part. If
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the limitations of § 36-6-406 are not dispositive of the child’s residential schedule,1
the court shall consider the following factors:
(1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a
life of service, and to compete successfully in the society which the child faces as an
adult;
(2) The relative strength, nature, and stability of the child’s relationship with each
parent, including whether a parent has taken greater responsibility for performing
parenting responsibilities relating to the daily needs of the child;
(3) The willingness and ability of each of the parents to facilitate and encourage a
close and continuing parent-child relationship between the child and the other parent,
consistent with the best interests of the child;
(4) Willful refusal to attend a court-ordered parent education seminar may be
considered by the court as evidence of that parent’s lack of good faith in these
proceedings;
(5) The disposition of each parent to provide the child with food, clothing, medical
care, education, and other necessary care;
(6) The degree to which a parent has been the primary caregiver, defined as the parent
who has taken the greater responsibility for performing parental responsibilities;
(7) The love, affection, and emotional ties existing between each parent and the
child;
(8) The emotional needs and developmental level of the child;
(9) The character and physical and emotional fitness of each parent as it relates to
each parent’s ability to parent or the welfare of the child;
(10) The child’s interaction and interrelationships with siblings and with significant
adults, as well as the child’s involvement with the child’s physical surroundings,
school, or other significant activities;
(11) The importance of continuity in the child’s life and the length of time the child
has lived in a stable, satisfactory environment;
(12) Evidence of physical or emotional abuse to the child, to the other parent or to
any other person;
(13) The character and behavior of any other person who resides in or frequents the
home of a parent and such person’s interactions with the child;
(14) The reasonable preference of the child if twelve (12) years of age or older. . . .
1
Tenn. Code Ann. § 36-6-406 instructs a court to limit the re sidential time for a parent tha t has engaged in
certain specified conduct or exhibits certain traits, including, but not limited to: (1) willful abandonment; (2) physical
or sexual abuse; (3 ) emotiona l abuse; (4) neglec t or nonperformanc e of parental duties; or (5) an emotional or physical
impairment which interferes with parental responsibilities. Neither party herein argues that the trial court should have
utilized T enn. C ode Ann. § 36-6 -406 to limit resid ential time with either parent.
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(15) Each parent’s employment schedule, and the court may make accommodations
consistent with those schedules; and
(16) Any other factors deemed relevant by the court.
These factors incorporate those set out in Tenn. Code Ann. § 36-6-106 (the statute which
previously guided the trial court in custody determinations) as well as factors established by the
courts. The primary concern in determinations of a child’s residential placement remains the best
interests of the child, and consideration of the factors under Tenn. Code Ann. § 36-6-404(b) still
necessitates a comparative analysis.
Thus, by statute as well as case law, the welfare and best interests of the children are the
paramount concern in custody and residential placement determinations, and the goal of any such
decision is to place the child in an environment that will best serve his or her needs. Parker v.
Parker, 986 S.W.2d 557, 562 (Tenn. 1999); Lentz v. Lentz, 717 S.W.2d 876, 877 (Tenn. 1986); Luke
v. Luke, 651 S.W.2d 219, 221 (Tenn. 1983). The General Assembly has found that “[t]he best
interests of the child are served by a parenting arrangement that best maintains a child’s emotional
growth, health and stability, and physical care.” Tenn. Code Ann. § 36-6-401(a). The aim of a
custodial or residential arrangement is to promote the child’s welfare by creating an environment that
promotes a nurturing relationship with each parent. Tenn. Code Ann. § 36-6-404(b); Aaby v.
Strange, 924 S.W.2d 623, 629 (Tenn. 1996).
Trial courts must exercise broad discretion in child custody matters. Parker, 986 S.W.2d at
563. Like a custody decision, a determination of the best residential placement plan for a child must
turn on the particular facts of each case. Such decisions often hinge on the trial court’s assessment
of the demeanor and credibility of the parents and other witnesses. Adelsperger v. Adelsperger, 970
S.W.2d 482, 485 (Tenn. Ct. App. 1997). The trial court is in a far better position than this court to
observe the demeanor of the witnesses and resolve the issues in the case that are based on the
credibility of the witnesses. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995);
Whitacker v. Whitacker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997).
Because of the discretion given trial courts in this area and because of the fact specific nature
of such decisions, appellate courts are reluctant to second-guess a trial court’s determination
regarding custody and visitation. Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App. 2001);
Rutherford v. Rutherford, 971 S.W.2d 955, 956 (Tenn. Ct. App. 1997) (quoting Gaskill v. Gaskill,
936 S.W.2d 626, 631(Tenn. Ct. App. 1996)). Accordingly, this court will decline to disturb the
parenting plan fashioned by the trial court herein unless that decision is based on a material error of
law or the evidence preponderates against it. Adelsperger, 970 S.W.2d at 485.
Herein, the trial court essentially determined that the Husband would be the primary
residential parent during the school year and the Wife would be the primary residential parent during
the summer. The child is to reside with Wife for two weeks during Christmas vacation and during
spring break. Each parent was given liberal visitation during the time the child was residing with
the other parent.
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Wife asserts that the plan ordered by the trial court is not in the child’s best interests and that
the trial court did not consider all of the applicable factors. In its final order, the trial court made
extensive findings of fact which recapitulated the testimony at the hearing on a number of issues
regarding grounds for divorce, parenting, and property division. It is apparent from the order that
the trial court listened attentively to all the evidence, drew factual conclusions, and weighed those
conclusions. After studying the trial court’s oral findings and final order, we conclude that the trial
court considered the relevant factors when fashioning the parenting plan. For example, the trial court
recited the history of the parties’ child rearing responsibilities, noting that the parties’ decision for
Wife to pursue an advanced degree and work in the Toby show each summer at Volunteer State, both
of which were desired by Wife and encouraged by Husband, resulted in Husband assuming a great
deal of responsibility for caring for the parties’ child. The trial court found that both parents had an
equal opportunity to care for the child and that they were equally fit parents.
Similarly, although Wife argues that the trial court gave undue weight to the parties’ work
schedules, the court is directed by Tenn. Code Ann. § 36-6-404(b)(15) to consider “each parent’s
employment schedule” and is authorized to “make accommodations consistent with those
schedules.” We find no error in the trial court’s consideration of the parties’ work schedules.
In addition to her argument that the court failed to adequately consider the required factors,
Wife essentially disagrees with the trial court’s conclusions regarding those factors and the overall
decision. We interpret Wife’s position as an argument that the evidence preponderates against the
trial court’s findings. The evidence in this case includes some disputes of fact. It also involves
weighing the various facts in designing a residential placement plan that will serve the child’s best
interests. As discussed earlier, the trial court extensively discussed the evidence herein as well as
explaining its application of the facts. Both parties presented testimony and made arguments about
the other’s failings, sometimes directed to establishing grounds for divorce, but some with relevance
to the parenting skills of each. No purpose is served by our recounting the details of those arguments
herein. The trial court found both parents were fit, and the evidence does not preponderate against
that finding.
We have reviewed the evidence presented in this case, including the testimony from both
Husband and Wife, as well as other witnesses, and find that the evidence does not preponderate
against the trial court’s findings. We find that the trial court fashioned a parenting plan designed to
serve the child’s best interests.
II. Division of Marital Property
Wife’s complaint with the division of marital property is that the trial court did not value and
include in the marital property Husband’s share of Audio Services, Inc. and Husband’s checking
account containing income from his solely owned business, Like To Hear It Music.
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Upon the dissolution of a marriage, courts are called upon to divide the assets the parties
accumulated during the marriage. Such decisions are very fact-specific, and many circumstances
surrounding the property, the parties, and the marriage itself play a role. After classification of the
parties’ property as either marital or separate, the trial court is charged with equitably dividing,
distributing, or assigning the marital property in “proportions as the court deems just.” Tenn. Code
Ann. § 36-4-121(a)(1). The court is to consider several factors in its distribution. Tenn. Code Ann.
§ 36-4-121(c) (listing the factors to be considered). The court may consider any other factors
necessary in determining the equities between the parties, Tenn. Code Ann. § 36-4-121(c)(11),
except that division of the marital property is to be made without regard to marital fault. Tenn. Code
Ann. § 36-4-121(a)(1).
The court’s distribution of property “is not achieved by a mechanical application of the
statutory factors, but rather by considering and weighing the most relevant factors in light of the
unique facts of the case.” Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. Ct. App. 1988). An
equitable distribution is not necessarily an equal one. Word v. Word, 937 S.W.2d 931, 933 (Tenn.
Ct. App. 1996). Thus, a division is not rendered inequitable simply because it is not precisely equal.
Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn. 1996); Kinard v. Kinard, 986 S.W.2d 220, 230 (Tenn.
Ct. App. 1998). Similarly, equity does not require that each party receive a share of every piece of
marital property. King v. King, 986 S.W.2d 216, 219 (Tenn. Ct. App. 1998); Brown v. Brown, 913
S.W.2d 163, 168 (Tenn. Ct. App. 1994).
In the case herein, after hearing extensive testimony, the trial court made specific findings
as to the classification and value of property. The court found that the marital home had equity of
approximately $94,000. The trial court awarded each party an equal share in the net proceeds from
the sale of the home after specified deductions, including Wife’s student loans, estimating each share
at $39,727.85. The court then totaled the “semi-liquid assets” accrued by the parties during the
marriage, namely their retirement accounts, at $20,340.90, and determined that that amount should
be divided equally. The court then directed how the total due each party was to be paid, essentially
identifying the assets awarded to each to reach the total. Wife was also awarded the bulk of the
household furnishings.
The trial court’s written order does not refer to either party’s checking account and does not
mention Husband’s interest in Audio Services. With regard to Husband’s checking account,
Husband argues that the trial court did not abuse its discretion in awarding him the balance of the
checking account. Wife argues that the trial court failed to include Husband’s checking account,
which she maintains includes proceeds from his business as a freelance engineer, and failed to
consider it in the distribution of the marital estate.
Wife avers the checking account contained $5,882.14 at the time of the hearing, relying on
a bank statement dated March 31, 2000, almost one year prior to the date of the trial on the matter.
Husband’s testimony at trial was that the balance of the account at the time of trial was
approximately five or six hundred dollars and the money in the account had been used primarily to
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pay for household expenses during the pendency of the divorce proceedings. We note that Husband
had been ordered to pay pendente lite support during this time.
Although the practical effect of the trial court’s distribution of property may have been to
award each party the amounts in his or her own checking account, the order is not explicit in that
regard. We find that Husband’s testimony regarding the amount remaining in his checking account
at the time of the trial was unrefuted. Thus, at most, the trial court failed to include $500 to $600
in the marital estate. We cannot find that an award to Husband of that amount was inequitable.
Although the final order does not specifically mention Husband’s interest in Audio Services,
the trial court stated the following from the bench:
I cannot determine what [Husband’s] interest in the music studio actually amounts
to in dollars and cents. Instead, like I told you already, I averaged his income for the
last four years, which included his income from the music studio and from his
engineering private employment. And so the Court cannot award [Wife] a portion
of any interest that does not appear to exist that has a value. It’s more debts and
obligations, as it appears, than value. So he keeps his interest in his music studio, his
20 percent interest in this Audio Services doing business as 17 Grand.
We interpret these remarks as including the interest in the marital estate, valuing it at zero,
and awarding it to Husband. There is no dispute that Husband’s interest in Audio Services is marital
property. The disputed issues are the value of that interest and the award to Husband of the entire
interest. If the evidence does not preponderate against the trial court’s determination that the interest
is without positive value, then no real issue is created by its award entirely to Husband.
Husband testified regarding his interest in Audio Services, which was a 20% interest, and
about the business itself from its inception. He testified that the business had no positive value and
that the “company was struggling to keep the company cash flow going and had been forced to
drastically cut back on expenses,” including staff and salary. Essentially, Husband’s testimony was
that his interest, or stock, in the business was worthless and had a negative value. In his testimony,
Husband introduced financial statements and profit and loss statements of the company which he had
been provided.
Husband testified that the company had been started in 1995 and that since its inception the
industry had changed due to the Internet. He stated that the company had “just gone upside down.”
The company has shown a net loss every year of its existence ranging from $130,000 to $300,000.
The company was struggling to keep cash flow going and had cut back staff to one person three days
a week. Husband testified that, if liquidated at the time of his testimony, the company would still
owe some $300,000 to its creditors. Essentially, Husband testified that his interest in the company
has no present liquid value, that no value can be presently realized and may never be realized
because of the inability of the company to earn income or show a profit.
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Wife introduced no testimony as to the value of Husband’s interest in the business, but relied
on cross-examination of Husband. On appeal, she relies on the company’s financial statements
which reflect the shareholders’ equity as company liabilities. She argues that these stock entries
represent a true value of Husband’s share of the company, which she places at $87,400.
As part of its responsibility to divide the martial estate equitably, the trial court must
determine the value of the property included. The value to be placed on an asset is a question of fact.
Kinard, 986 S.W.2d at 231; Wallace v. Wallace, 733 S.W.2d 102, 107 (Tenn. Ct. App. 1987).
Parties and their witnesses often do not agree on the value of specific items in the marital estate, and,
in that situation, trial courts may place a value on the property that is within the range of the values
presented by the evidence. Wallace, 733 S.W.2d at 107. Appellate courts review valuation findings
as other findings of fact, and a trial court’s determination of value will be presumed to be correct
unless the evidence preponderates against it. Tenn. R. App. P. 13(d).
“Determining the value of a closely held corporation is not an exact science,” and a number
of acceptable methods exist. Wallace, 733 S.W.2d at 107. This court has approved, among other
methods, that provided by the Internal Revenue Service, which includes consideration of nine
factors. Id. (citing Rev. Rul. 59-60, 1959-1 C.B. 237). Included among those factors are the nature
of the business and its history since its inception, the economic status of the industry, earnings, and
dividends and dividend paying capacity. Husband’s testimony addresses these factors, and no
evidence was introduced to refute his testimony. When asked if the company had a positive balance,
Husband replied, “At this point in time, there is no positive balance of the company.”
Our review of the evidence leads us to conclude that the trial court’s valuation of Husband’s
interest in Audio Services at zero is within the range of values presented and is supported by the
evidence.
The trial court’s goal in a divorce case is to divide the marital property in an essentially
equitable manner, and equity in such cases is dependent on the facts of each case. The fairness of
a particular division of property between two divorcing parties is judged upon its final results.
Watters v. Watters, 959 S.W.2d 585, 591 (Tenn. Ct. App. 1997). Because dividing a marital estate
is a process guided by considering all relevant factors, including those listed in Tenn. Code Ann. §
36-4-121(c), in light of the facts of a particular case, a trial court has a great deal of discretion
concerning the manner in which it divides marital property. Smith v. Smith, 984 S.W.2d 606, 609
(Tenn. Ct. App. 1997); Wallace, 733 S.W.2d at 106. Appellate courts ordinarily defer to the trial
judge’s decision unless it is inconsistent with the factors in Tenn. Code Ann. § 36-4-121(c), or is not
supported by a preponderance of the evidence. Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn. Ct.
App. 1996); Brown, 913 S.W.2d at 168.
The trial court divided the marital property in an equitable manner. Because we determine
that the evidence does not preponderate against the trial court’s division of marital property, we
affirm the trial court’s decision.
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III. Attorney’s Fees Awarded as Alimony
The trial court ordered Husband to pay Wife’s attorney’s fees in the amount of $4,630 as
alimony in solido.2 Husband avers on appeal that because the trial court specifically found Wife was
not economically disadvantaged, she is not entitled to any type of alimony.
Tennessee follows the American Rule requiring “litigants to pay their own attorney’s fees
in the absence of a statute or contractual provision otherwise.” State v. Brown & Williamson
Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000); John Kohl & Co. v. Dearborn & Ewing, 977
S.W.2d 528, 534 (Tenn. 1998).
Historically, an award of attorney’s fees in divorce cases was based on the theory that the
wife was entitled to an award of attorney’s fees because, where the husband provided the only
financial support to the family, the award of attorney’s fees in divorce cases allowed the wife access
to the court system. According to BENSON TRIMBLE , TENNESSEE DIVORCE AUTHORITIES § 4-8
(1966):
In Tennessee, attorney fees are treated as part of the expenses incident to the cause
of divorce, and are generally allowed to the wife whether she be complainant or
defendant in a suit for a divorce. They follow, and are usually adjudicated with, the
allowance of alimony and costs to the wife, but are not in themselves the substantive
objects of the litigation. Clements v. Holmes, 22 Tenn. App. 230, 238, 120 S.W.2d
988; Sanders v. Sanders, 40 Tenn. App. 20, 37, 288 S.W.2d 473, 57 A.L.R. 2d 932;
Shy v. Shy, 54 Tenn. 125; Winslow v. Winslow, 133 Tenn. 663, 667, 182 S.W. 241.
In 1983, our Supreme Court explained the basis for awarding attorney’s fees in divorce cases
as follows:
It was established over a century ago that trial courts have wide discretion in
requiring a husband to pay for the reasonable necessities of his wife, including
expenses of divorce litigation. The right to an allowance of legal expenses is not
absolute. It is conditioned upon a lack of resources to prosecute or defend a suit in
good faith. This rule is to enable the wife, when destitute of means of her own, to
obtain justice and to prevent its denial. Thompson v. Thompson, 40 Tenn. 527, 529
2
Tennessee law recognizes three distinct types of alim ony or spousal sup port. Self v. Self, 861 S.W.2d 360, 361-
62 (Tenn. 1993 ). Alimony may be in solido, in futuro, or rehabilitative. Alimo ny in solido promotes the twin goals of
certainty and fina lity through an award o f a fixed amou nt withou t cond itions. Waddey v. Waddey, 6 S.W.3d 230, 232
(Tenn. 199 9); Self, 861 S.W .2d at 362 . That fixed amount may be paid in a single lump sum payment, or it may be paid
in perio dic installments. Isbell v. Isbell, 816 S.W.2d 735, 738 (Te nn. 19 91). Alimo ny in solido is not mo difiable even
upon a showing of changed circumstances, including such events as remarriage or the increased fortunes of the recipient
spouse. Self, 861 S.W.2d at 362; Towner v. Towner, 858 S.W .2d 8 88, 8 90 (Tenn. 19 93); Grissom v. Grissom, 15 S.W.3d
474, 477 (Te nn. Ct. A pp. 1 999 ). “A typical purp ose o f such an award would be to adjust the distribution of the parties’
marital property.” Burlew v. Burlew, 40 S.W .3d 465, 471 (Tenn. 2001 ).
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(1859). If a spouse does not have separate property of her own which is adequate to
defray the expenses of suit, certainly she should not be denied access to the courts
because she is unable to procure counsel.
Fox v. Fox, 657 S.W.2d 747, 749 (Tenn. 1983).3
In more recent years, it has become well settled that an award of attorney’s fees in divorce
cases is considered alimony or spousal support, generally characterized as alimony in solido. Yount
v. Yount, 91 S.W.3d 777, 783 (Tenn. Ct. App. 2002); Miller v. Miller, 81 S.W.3d 771, 775 (Tenn.
Ct. App. 2001); Wilder v. Wilder, 66 S.W.3d 892, 894 (Tenn. Ct. App. 2001); Sanella v. Sanella, 993
S.W.2d 73, 76 (Tenn. Ct. App. 1999), overruled on other grounds by Bogan v. Bogan, 60 S.W.3d
721 (Tenn. 2001); Kinard, 986 S.W.2d at 235-36; Smith, 984 S.W.2d at 610; Long v. Long, 957
S.W.2d 825, 829 (Tenn. Ct. App. 1997); Herrera v. Herrera, 944 S.W.2d 379, 390 (Tenn. Ct. App.
1996); Smith v. Smith, 912 S.W.2d 155, 161 (Tenn. Ct. App. 1995); Storey v. Storey, 835 S.W.2d
593, 597 (Tenn. Ct. App. 1992); Cranford v. Cranford, 772 S.W.2d 48, 52 (Tenn. Ct. App. 1989),
overruled on other grounds by Bogan, 60 S.W.3d at 730; Gilliam v. Gilliam, 776 S.W.2d 81, 86
(Tenn. Ct. App. 1988). Like other spousal support, an award of attorney’s fees is available to either
spouse.
Alimony or spousal support is authorized by statute, and a number of cases cite as the basis
for attorney’s fees as an award of alimony Tenn. Code Ann. § 36-5-101(a)(1), which authorizes
courts to order “suitable support and maintenance of either spouse by the other spouse . . . according
to the nature of the case and the circumstances of the parties. . . .” See, e.g., Mitts v. Mitts, 39
S.W.3d 142, 147 (Tenn. Ct. App. 2000); Smith, 912 S.W.2d at 160-61; Gilliam, 776 S.W.2d at 86.
See also JANET L. RICHARDS, RICHARDS ON TENNESSEE FAMILY LAW § 14-3(a)(2) (1997). Thus,
the American Rule is satisfied by statutory authority for the award of support upon divorce.
Because attorney’s fees are considered alimony or spousal support, an award of such fees is
subject to the same factors that must be considered in the award of any other type of alimony. Yount,
91 S.W.3d at 783; Lindsey v. Lindsey, 976 S.W.2d 175, 181 (Tenn. Ct. App. 1997). Therefore, the
statutory factors listed in Tenn. Code Ann. § 36-5-101(d)(1) are to be considered in a determination
of whether to award attorney’s fees. Langschmidt v. Langschmidt, 81 S.W.3d 741, 751 (Tenn.
2000); Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995).
There are no hard and fast rules for spousal support decisions, and such determinations
require a “careful balancing” of the relevant factors. Anderton v. Anderton, 988 S.W.2d 675, 682-83
(Tenn. Ct. App. 1998). Initial decisions regarding the entitlement to spousal support, as well as the
amount and duration of spousal support, hinge on the unique facts of each case and require a careful
balancing of all relevant factors. Robertson v. Robertson, 76 S.W.3d 337, 338 (Tenn. 2002); Watters
3
The concern that a spouse without financial means should not be denied access to the courts continues to be
addressed by the statutory provision for pen den te lite supp ort, including sums necessary “to ena ble suc h spo use to
prosecute or defend the suit” found in Tenn. Cod e Ann. § 36-5-101(i).
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v. Watters, 22 S.W.3d 817, 821 (Tenn. Ct. App. 1999). Among these factors, the two considered to
be the most important are the disadvantaged spouse’s need and the obligor spouse’s ability to pay.
Robertson, 76 S.W.3d at 342; Bogan, 60 S.W.3d at 730; Manis v. Manis, 49 S.W.3d 295, 304 (Tenn.
Ct. App. 2001). Of these two factors, the disadvantaged spouse’s need is the threshold
consideration.
While there is no absolute formula for determining the amount of alimony, “the real
need of the spouse seeking the support is the single most important factor. In
addition to the need of the disadvantaged spouse, the courts most often consider the
ability of the obligor spouse to provide support.”
Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995) (quoting Cranford, 772 S.W.2d at 50).
As with other forms of spousal support, the need of the spouse requesting the award of
attorney’s fees is the single most important factor. Miller, 81 S.W.3d at 775; Watters, 22 S.W.3d
at 821. The obligor spouse’s ability to pay is also an important consideration. Miller, 81 S.W.3d
at 775; Hazard v. Hazard, 833 S.W.2d 911, 917 (Tenn. Ct. App. 1991). Courts have held that in
determining whether to award attorney’s fees as spousal support, the most important factors are the
real need of the disadvantaged spouse, a demonstrated financial inability to obtain counsel, and the
ability of the obligor spouse to pay. Wilder, 66 S.W.3d at 895; Cranford, 772 S.W.2d at 50. In a
recent opinion, the Supreme Court reaffirmed the holding in Fox that an award of attorney’s fees “is
conditioned upon a lack of resources to prosecute or defend a suit in good faith . . .” and that such
an award is to ensure access to the courts. Langschmidt, 81 S.W.3d at 751 (quoting Fox, 657 S.W.2d
at 749).
Consequently, a spouse with adequate property and income is not entitled to an award of
additional alimony to compensate for attorney’s fees and expenses. Lindsey, 976 S.W.2d at 181;
Duncan v. Duncan, 686 S.W.2d 568, 573 (Tenn. Ct. App. 1984). If a party has adequate property
and income, or is awarded adequate property from the divorce, from which to pay their own
expenses, an award of attorney’s fees may not be appropriate, after consideration of all relevant
factors. Wilder, 66 S.W.3d at 895; Koja v. Koja, 42 S.W.3d 94, 98 (Tenn. Ct. App. 2000); Umstot
v. Umstot, 968 S.W.2d 819, 824 (Tenn. Ct. App. 1997); Houghland v. Houghland, 844 S.W.2d 619,
623-24 (Tenn. Ct. App. 1992); Ingram v. Ingram, 721 S.W.2d 262, 264 (Tenn. Ct. App. 1986). The
award of attorney’s fees as additional alimony is most appropriate where the divorce does not
provide the obligee spouse with a source of funds, such as from property division, with which to pay
his or her attorney’s fees. Yount, 91 S.W.3d at 783. Additionally, if a spouse receives alimony as
a result of the divorce and will be forced to deplete those funds, designed to sustain that spouse, just
in order to pay attorney’s fees, an award of attorney’s fees is appropriate. Batson, 769 S.W.2d at
862. Thus, the primary focus is on whether the requesting spouse has the ability to pay his or her
own fees; and, if not, whether the other spouse has the resources to do so. Houghland, 844 S.W.2d
at 623.
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Because support decisions are factually driven and involve considering and balancing
numerous factors, appellate courts give wide latitude to the trial court’s discretion. Miller, 81
S.W.3d at 774; Cranford, 772 S.W.2d at 50. Trial courts have broad discretion to determine whether
spousal support is needed and, if so, its nature, amount and duration. Burlew v. Burlew, 40 S.W.3d
465, 470 (Tenn. 2001). Appellate courts are generally disinclined to second-guess a trial court’s
spousal support decision unless it is not supported by the evidence or is contrary to public policies
reflected in the applicable statutes. Bogan, 60 S.W.3d at 733; Kinard, 986 S.W.2d at 234-35;
Brown, 913 S.W.2d at 169. Our role is to determine whether the award reflects a proper application
of the relevant legal principles and that it is not clearly unreasonable. Bogan, 60 S.W.3d at 733.
When the trial court has set forth its factual findings in the record, we will presume the correctness
of those findings so long as the evidence does not preponderate against them. Tenn. R. App. P.
13(d); Bogan, 60 S.W.3d at 733; Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000).
An award of attorney’s fees as alimony, like an award of other support, is considered to be
within the sound discretion of the trial court. Loyd v. Loyd, 860 S.W.2d 409, 413 (Tenn. Ct. App.
1993); Wallace, 733 S.W.2d at 110-11. Consequently, such an award will not be reversed on appeal
if that discretion is not abused. Yount, 91 S.W.3d at 783; Garfinkle v. Garfinkle, 945 S.W.2d 744,
748 (Tenn. Ct. App. 1996); Lyon v. Lyon, 765 S.W.2d 759, 762-63 (Tenn. Ct. App. 1988). Although
other standards of review have been expressed in some cases, the Tennessee Supreme Court has
made it clear that “[t]he allowance of attorney’s fees is largely in the discretion of the trial court, and
the appellate court will not interfere except upon a clear showing of abuse of that discretion.” Aaron,
909 S.W.2d at 411 (citing Storey, 835 S.W.2d at 597 and Crouch v. Crouch, 53 Tenn. App. 594,
606, 385 S.W.2d 288, 293 (Tenn. Ct. App. 1964)).
Under the abuse of discretion standard, a trial court’s ruling “will be upheld so long
as reasonable minds can disagree as to the propriety of the decision made.” A trial
court abuses its discretion only when it “applies an incorrect legal standard, or
reaches a decision which is against logic or reasoning or that causes an injustice to
the party complaining.” The abuse of discretion standard does not permit the
appellate court to substitute its judgment for that of the trial court.
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted).
In the case herein, the trial court examined Wife’s statement of income and expenses and
determined that Wife’s salary was sufficient to meet her needs. The court also found that the parties’
incomes were roughly equal. The court then specifically found that Wife was not economically
disadvantaged compared to Husband and declined to award Wife any alimony.4 The trial court’s
findings continued:
4
W ife had requested rehabilitative alimony, and the court’s order specifically denies “any rehabilitative
alimony.”
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The Court does find, however, that it is [Husband’s] dissatisfaction with [Wife’s]
absence, although he encouraged it; it’s [Husband’s] dissatisfaction with [Wife]
leaving him with so many responsibilities for their home and their child, although he
encouraged that; it’s those things that caused him to withdraw from the marriage and
make [Wife] feel like she should be leaving notes in a peach tree for somebody to
care for her and file for this divorce. Therefore, the Court orders that [Husband] pay
on her attorney’s fees $4,630 as alimony in solido.
Among the statutory factors contained in Tenn. Code Ann. § 36-5-101(d)(1) which a court
should consider in deciding whether to award alimony and, therefore, whether to award attorney’s
fees as alimony are: the relative earning capacity, obligations, needs, and financial resources of each
party; the relative education and training of each party; the ability and opportunity and necessity of
each party to secure such education and training in order to improve such party’s earning capacity
to a reasonable level; and the separate assets of each party and the marital property awarded each in
the divorce. These factors also relate to the threshold question in an alimony award of whether one
spouse is economically disadvantaged in relation to the other. Tenn. Code Ann. § 36-5-101(d)(1).
Relative economic disadvantage incorporates the principles of need and ability to pay, which are the
primary factors in any award of alimony.
The trial court’s factual findings regarding the parties’ economic parity, considering the past
earnings and the earning potential of each, their educational levels, and the property each had after
the divorce, is supported by the evidence. We agree with the trial court that Wife has not
demonstrated that she is economically disadvantaged or that she has a need for additional income
through alimony. These findings support the trial court’s denial of rehabilitative alimony, which
Wife has not appealed, but they also support a denial of additional alimony as attorney’s fees. Wife
has not demonstrated that she is unable to pay her attorney’s fees out of her income or separate
property or the share of marital property awarded to her. Thus, Wife has failed to establish the
primary factor necessary to an award of attorney’s fees as alimony.
It is clear from the order that the trial court awarded the attorney’s fees because of the trial
court’s findings that it was Husband whose conduct precipitated the divorce. While the evidence
could just as easily support a conclusion that the parties were equally responsible for the breakup of
their marriage, we cannot say that the evidence preponderates against the trial court’s factual finding
on this issue. Essentially, the trial court found that Husband was at fault and awarded attorney’s fees
on the basis of that finding.
The fault of the parties is one of the factors which may be considered in an award of alimony
and, consequently, an award of attorney’s fees as alimony. Tenn. Code Ann. § 36-5-101(d)(1)(K);
Inman v. Inman, 811 S.W.2d 870, 874 (Tenn. 1991); Yount, 91 S.W.3d at 783; Robertson v.
Robertson, No. 03A01-9711-CV-00511, 1998 Tenn. App. LEXIS 761, at *25 (Tenn. Ct. App. Nov.
9, 1998) (holding that the trial court abused its discretion in failing to award the wife attorney’s fees
because of the difference in the parties’ incomes and because the husband’s misconduct was the
cause of the divorce and resulting litigation), rev’d on other grounds by Robertson v. Robertson, 76
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S.W.3d 337, 344 (Tenn. 2002) (reversing the Court of Appeals’ decision regarding the type of
alimony which was appropriate, but affirming the Court of Appeals’ decision in all other respects).
However, fault alone is not sufficient to justify an award of attorney’s fees in the absence of
a demonstrated need for the alimony. Wilder, 66 S.W.3d at 895. In Wilder, this court found that the
trial court did not address the husband’s need for attorney’s fees and the wife’s ability to pay, but
instead focused singularly upon the wife’s behavior and fault in the breakup of the marriage. Id.
This court concluded that “while fault is a factor to be considered, it must not be applied in a
punitive manner against a guilty party in determining the award of alimony.” Id. (citing Fisher v.
Fisher, 648 S.W.2d 244, 247 (Tenn. 1983); Gilliam, 776 S.W.2d at 81)). Similarly, in Lindsey v.
Lindsey, this court noted that the trial court could properly consider the relative fault of the parties
in awarding the wife attorney’s fees, but also noted that “a spouse with adequate property and
income is not entitled to an award of additional alimony to compensate for attorney’s fees and
expenses.” Lindsey, 976 S.W.2d at 181.
In Gray v. Gray, No. E2001-02470-COA-R3-CV, 2002 Tenn. App. LEXIS 675 (Tenn. Ct.
App. Sept. 19, 2002) (no Tenn. R. App. P. 11 application filed), this court applied the principles of
Wilder and Lindsey to reverse an award of attorney’s fees where the trial court did not inquire into
the wife’s financial need, noting that such an inquiry would have shown that the property awarded
her in the divorce was sufficient to allow her to pay such fees. Id. at *36. This court declined to
review the trial court’s finding that the husband was at fault in the divorce, “because even if such
findings are valid they constitute an inadequate basis for the award of attorney’s fees as such an
award is inappropriate absent showing a need on the part of [the wife].” Id.
Attorney’s fees in a divorce case are not awarded on a “prevailing party” theory. Thus, fault
in the breakup of the marriage alone does not justify an award of such fees as spousal support
because a spouse with adequate property and income is not entitled to an award of additional
alimony for attorney’s fees. Lindsey, 976 S.W.2d at 181.
We reverse the trial court’s award of attorney’s fees to Wife because the trial court found that
Wife was not economically disadvantaged so as to justify an award of rehabilitative alimony and
awarded the fees solely on the basis of Husband’s fault, even though there is no evidence that Wife
cannot pay the fees. In the absence of proven need on the part of Wife, the award of attorney’s fees
as alimony is not based upon applicable legal principles.
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IV. Conclusion
We affirm the trial court’s parenting plan and distribution of marital property. We reverse
the trial court’s award of attorney’s fees to Wife as alimony in solido. Costs are taxed to the
appellant, Dawn Larsen Niceley.
____________________________________
PATRICIA J. COTTRELL, JUDGE
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