Susan Anne Ogles v. Thomas Wayne Ogles

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 23, 2014 Session
SUSAN ANNE OGLES v. THOMAS WAYNE OGLES
Direct Appeal from the Circuit Court for Coffee County
No. 3560-D L. Craig Johnson, Judge
No. M2013-02215-COA-R3-CV - Filed January 7, 2015
This is an appeal from a three-day divorce trial. The trial court classified and valued the
parties’ assets and divided the marital estate. The court awarded the wife $2,000 per month
in transitional alimony for a period of 14 months, and it denied the parties’ requests for
attorney’s fees. The wife appeals, challenging the trial court’s classification and valuation
of certain assets, the alimony award, and the trial court’s decision to deny her request for
attorney’s fees. Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
B RANDON O. G IBSON, J., delivered the opinion of the Court, in which R ICHARD H. D INKINS,
J., and W. N EAL M CB RAYER, J., joined.
William Andrew Lockhart and Randall W. Morrison, Tullahoma, Tennessee, for the
appellant, Susan Anne Ogles.
Roger James Bean, Tullahoma, Tennessee, for the appellee, Thomas Wayne Ogles.
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
Susan Anne Ogles (“Wife”) and Thomas Wayne Ogles (“Husband”) met in June 2001
and married in October 2001, when Wife was 54 years old and Husband was 56. This was
the fourth marriage for both parties. When the parties married, Husband owned a cattle
business and an 88-acre farm. He also owned a business called Quality Electric Service
(“QES”), which he began in 1972. QES employed about six to eight electricians at the time
of the marriage. Wife was working as a real estate broker for the Metropolitan Development
Housing Agency in Nashville, but she quit her job one year after the parties’ marriage,
against Husband’s wishes. Thereafter, Wife devoted a few hours a week to helping Husband
with QES and the cattle business, but she was not otherwise employed.
After eight years of marriage, the parties separated in June 2010. Wife filed a
complaint for divorce, alleging irreconcilable differences and inappropriate marital conduct.
Husband filed a counter-complaint for divorce, alleging the same. Wife claimed an interest
in the 88-acre farm, the cattle business, and QES, and she sought temporary and permanent
alimony and an award of attorney’s fees.
The parties entered into an agreed order providing that Wife would live in the marital
residence pending the final hearing, and Husband would live in a small guest house on the
farm. Husband agreed to pay Wife $500 per week as temporary support until the final
hearing, and he was also responsible for paying Wife’s health insurance premium, her
telephone bill, one-half of the electric bill for the marital residence, the water and gas bill,
and the utilities for the farm and the guest house. Wife was responsible for paying the other
half of the electric bill for the marital residence.
During the proceedings, the parties sold their cattle for roughly $350,000. By
agreement, they used the proceeds to pay various expenses and split the remainder. The
parties also agreed that the 88-acre farm was marital property subject to division and was
worth $537,000.1 However, the parties could not agree as to the ownership of QES or its
present value. Since the parties married in 2001, QES had expanded considerably. The
number of employees had increased from roughly six or eight to about 29. The number of
company vehicles increased from four or five to about 15 or 16. Wife asserted that she
substantially contributed to the increase in value of QES during the marriage, and therefore,
she should be awarded a portion of the increased value as marital property. Husband claimed
that Wife did not substantially contribute to the increase in value of QES during the marriage,
so the business should remain his separate property.
The divorce trial was held over the course of three days in March and April 2013. By
that time, the divorce case had been pending for over two and a half years, and the parties
had been married for eleven years. Both parties testified about the assets they accumulated
during the marriage, and they disputed whether certain items should be classified as marital
or separate property. They described their employment history and monthly expenses as
these subjects relate to the issue of alimony. Both parties presented expert testimony
1
The marital residence was constructed on the farm during the marriage. Wife sold a condo in
Florida and liquidated two retirement accounts, and the parties used the funds to pay off the construction loan
and/or mortgage on the marital home. Husband executed a quitclaim deed and conveyed an interest in the
home and farm to Wife.
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regarding the value of QES. The trial court also heard testimony from the accountant who
prepared the tax returns for QES, the field supervisor at QES, one of the farm hands
employed by Husband, and the woman Husband was dating at the time of trial.
On August 1, 2013, the trial court entered a detailed opinion spanning 24 pages, and
on November 18, 2013, the court entered an additional order clarifying its rulings on several
issues. The court found that “both parties have engaged in conduct that is considered
grounds for divorce.” The court classified the 88-acre farm as marital property and gave
Husband the option of purchasing Wife’s one-half interest in the farm for $268,500 or
auctioning the property. It noted that the proceeds from the cattle had already been equally
divided. The court specifically addressed numerous items of personal property and classified
them as separate or marital property. The trial court awarded Wife marital assets valued at
$420,034 and awarded Husband marital assets and debts with a net value of $450,262.
(These amounts did not include the funds already received from the sale of the cattle or the
value of QES.) The court classified QES as Husband’s separate property because it was
owned prior to the marriage; however, it classified the increase in value of QES during the
marriage as marital property subject to division. The court adopted the valuation of QES
proposed by Husband’s expert and valued the company at $260,000. The court concluded
that QES was worth $124,000 when the parties married in 2001. The court found that
Husband’s contribution to the preservation of QES and its increase in value exceeded the
contribution made by Wife during the marriage, so it awarded Husband 60% of the increase
in value and awarded Wife 40%. As a result, Husband was required to pay Wife $54,400 for
her share of the increased value of QES. The court awarded Wife transitional alimony for
14 months at $2,000 per month. Finally, the court found that both parties contributed to the
breakup of the marriage and had the ability to pay their own attorney’s fees. Wife timely
filed a notice of appeal.
II. I SSUES P RESENTED
Wife presents the following issues, which we have slightly restated, for review on
appeal:
1. Whether the trial court erred in assigning a value to QES;
2. Whether the trial court erred in designating certain items of property as
marital property rather than Wife’s separate property;
3. Whether the trial court erred by failing to award Wife an interest in
certain property acquired by Husband during the pendency of the
divorce proceeding;
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4. Whether the trial court erred in the type and amount of alimony
awarded to Wife;
5. Whether the trial court erred in declining to award Wife attorney and
expert fees.
For the following reasons, we affirm the decision of the circuit court and remand for further
proceedings.
III. S TANDARD OF R EVIEW
On appeal, a trial court’s factual findings are presumed to be correct, and we will not
overturn those factual findings unless the evidence preponderates against them. Tenn. R.
App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence to
preponderate against a trial court’s finding of fact, it must support another finding of fact
with greater convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App.
2005). When the resolution of issues depends on the truthfulness of witnesses, the
fact-finder, who has the opportunity to observe the witnesses in their manner and demeanor
while testifying, is in a far better position than this Court to decide those issues. Mach. Sales
Co. v. Diamondcut Forestry Prods., LLC, 102 S.W.3d 638, 643 (Tenn. Ct. App. 2002). “The
weight, faith, and credit to be given to any witness’s testimony lies in the first instance with
the trier of fact, and the credibility accorded will be given great weight by the appellate
court.” Id. We review a trial court’s conclusions of law under a de novo standard upon the
record with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d
87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815,
817 (Tenn. Ct. App. 1989)).
IV. D ISCUSSION
A. Valuing QES
Wife’s first contention on appeal is that the trial court erred in assigning a value of
$260,000 to QES.2 As noted above, both parties retained experts to evaluate QES and render
an opinion on its present value. Wife’s expert was Steve Maggart, a certified public
accountant and accredited business valuator who had been employed in the accounting field
2
Husband does not challenge the trial court’s decision to classify the increase in value as marital
property. Neither party challenges the trial court’s decision to divide the increase in value on a 60/40 basis,
nor do they challenge the trial court’s valuation of QES at $124,000 at the time of the marriage. Accordingly,
the only issue on appeal pertaining to QES is regarding its present value.
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since 1972. Mr. Maggart testified that there are several methods available for valuing a
business such as QES and said that he evaluated QES using several different approaches.
First, Mr. Maggart applied the book value method and determined that QES would be valued
at $274,000 using that approach. Next, Mr. Maggart applied the asset based method of
valuation and determined that QES would be valued at $378,000 under that approach. Mr.
Maggart then applied the capitalization of earnings method and several variations of that
method using data from a range of years. Using information from a five-year range in his
capitalization of earnings calculation, Mr. Maggart reached a value of $853,000. Using
information only from 2011, he reached a capitalization of earnings value of $610,000.
Using estimated figures for the year 2012, he calculated a value of $880,000. Using the
estimated figures for 2012 in the five-year calculation, he got a value of $774,000. Mr.
Maggart believed that the capitalization of earnings method was the most appropriate
approach for valuing QES but said that the asset value method should also be considered in
the analysis. After considering his conclusions from all of these various methods, Mr.
Maggart determined that $725,000 was “a fair number” and constituted his final opinion as
to the value of QES.
Husband’s expert was Gerald LeCroy, who was also a certified public accountant and
certified valuation analyst. He had been practicing since 1962. Mr. LeCroy also discussed
three fundamental approaches for valuing a business such as QES – a market approach, a net
asset approach, and a capitalized earnings approach. Mr. LeCroy determined that the market
approach was not an appropriate method for valuing QES. He applied the net asset value
method and determined that QES would be valued at $260,000 under that approach. He also
used the capitalization of earnings approach and determined that QES would be valued at
$245,000 under that method. Mr. LeCroy believed that the asset value approach was the
more appropriate method for valuing QES, for numerous reasons. Accordingly, Mr. LeCroy
opined that the fair market value of QES was $260,000.
Mr. LeCroy criticized Mr. Maggart’s valuation of QES at $725,000 and stated that no
reasonable person would buy QES for that amount. Conversely, Mr. Maggart criticized Mr.
LeCroy’s valuation at $260,000 and said that amount “to me makes no sense.”
The trial court accepted Mr. LeCroy’s valuation of $260,000 and found that he utilized
“the proper and most equitable method” of valuation of the business, for a number of
reasons. The trial court credited Mr. LeCroy’s testimony “that the adjusted debt-to-asset
value of Quality Electric Service was the proper standard to use in that contractors,
particularly small ones, are often sold at or near book value because barriers to entry are
minimal, causing many to start their own business, rather than purchasing existing
contractors.” The court also noted Mr. LeCroy’s testimony that “the capitalized earnings
method assumes a growth rate which is not normally achieved in small contracting businesses
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and, more importantly, contains a number of highly subjective estimates of working capital
requirements and the risk factors discussed by both expert witnesses.” The court found that
Wife’s expert, Mr. Maggart, “[s]uspectly” valued QES at $725,000, which, the court noted,
was $347,000 more than his calculation of the company’s net asset value and $465,000 more
than Mr. LeCroy’s calculation of net asset value. The court discussed Mr. LeCroy’s
testimony that this amount was attributable to goodwill, which would be based on Husband’s
earning capacity and not considered a marital asset subject to division. The court also found
that Mr. Maggart’s valuation “failed to properly reflect the risk to the company of several
factors,” including the fact that Husband was not bound by a noncompete agreement and the
fact that QES performed the vast majority of its work for one customer, a nationwide
homebuilder, who could terminate their contract without cause.
When dividing marital property, the trial court “should place a reasonable value on
each piece of property subject to division.” Owens v. Owens, 241 S.W.3d 478, 486 (Tenn.
Ct. App. 2007) (citing Davidson v. Davidson, No. M2003-01839-COA-R3-CV, 2005 WL
2860270, at *2 (Tenn. Ct. App. Oct. 31, 2005); Edmisten v. Edmisten, No. M2001-00081-
COA-R3-CV, 2003 WL 21077990, at *11 (Tenn. Ct. App. May 13, 2003)). This Court
reviews a trial court’s valuation of marital property as a question of fact. Woodward v.
Woodward, 240 S.W.3d 825, 828 (Tenn. Ct. App. 2007). In accordance with Tennessee Rule
of Appellate Procedure 13(d), the trial court’s valuation of marital property will be presumed
to be correct unless the evidence preponderates otherwise. Wallace v. Wallace, 733 S.W.2d
102, 107 (Tenn. Ct. App. 1987). Decisions as to the value of the parties’ assets are entitled
to great weight on appeal and will not be second-guessed unless they are not supported by
a preponderance of the evidence. Woodward, 240 S.W.3d at 828. “When a trial court is
confronted with conflicting valuation evidence, the court may place a value on the property
that is within the range of the values represented by all the relevant valuation evidence.” Id.
(citing Watters v. Watters, 959 S.W.2d 585, 589 (Tenn. Ct. App. 1997); Brock v. Brock, 941
S.W.2d 896, 902 (Tenn. Ct. App. 1996)); see also Wallace, 733 S.W.2d at 107 (“the trial
court, in its discretion, is free to place a value on a marital asset that is within the range of
the evidence submitted”).
“‘[T]here are a number of acceptable methods available” to determine the value of a
closely held corporation, Powell v. Powell, 124 S.W.3d 100, 104 (Tenn. Ct. App. 2003)
(quoting Wallace, 733 S.W.2d at 107), or in this case, a single-member LLC.3 Three of these
3
Where the owners of the LLC are a small group of family members, principles used in valuing
closely held corporations are “instructive” and “equally applicable.” Powell, 124 S.W.3d at 104; see also
Inzer v. Inzer, No. M2008-00222-COA-R3-CV, 2009 WL 2263818, at *4 (Tenn. Ct. App. July 28, 2009)
(explaining that an LLC is “a type of entity that is akin to a closely held corporation for purposes of valuing
it as a marital asset”).
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methods are the market value method, the asset value method, and the earnings value or
capitalization of earnings method, but “[t]here are still others,” such as the dividend method
and the liquidating value method. Wallace, 733 S.W.2d at 107 (citing B. Goldberg,
Valuation of Divorce Assets §§ 6.5-6.8 (1984)). “The choice of the proper method or
combination of methods” depends on the unique circumstances of each case. Id. “The courts
have not articulated a consistent approach to the valuation of this type of marital asset.” Id.
“Since valuation evidence is inherently subjective, a trial court’s valuation decisions need not
coincide precisely with the valuation opinions offered into evidence.” Owens, 241 S.W.3d
at 489 (citing Waits v. Waits, No. 01A01-9207-CV-00288, 1993 WL 49564, at *3 (Tenn. Ct.
App. Feb. 26, 1993)). Determining the value of these companies “is not an exact science.”
Wallace, 733 S.W.2d at 107. “It can be a difficult exercise for any court.” Edenfield v.
Edenfield, No. E2004-00929-COA-R3-CV, 2005 WL 2860289, at *8 (Tenn. Ct. App. Oct.
31, 2005). Again, “trial courts have wide latitude in determining the value of the marital
estate,” and “this discretion extends to choosing the method for valuation of a closely held
corporation.” Watson v. Watson, No. W2004-01014-COA-R3-CV, 2005 WL 1882413, at
*9 (Tenn. Ct. App. Aug. 9, 2005) (citing Irvine v. Irvine, No. 03A01-9304-CH-00168, 1993
WL 444584 (Tenn. Ct. App. Nov. 3, 1993)).
Wife argues that the trial court erred in concluding that the excess value reflected by
Mr. Maggart’s capitalization of earnings calculation was goodwill that would not be
considered a marital asset because, Wife claims, “there was little evidence that the goodwill
was directly attributable to [Husband]” as opposed to QES. We disagree with this assertion
and find that the weight of the evidence demonstrated that the goodwill was more attributable
to Husband personally than to QES. In Tennessee, the goodwill of a business, “dependent
as it is on the person and personality of the spouse practicing the profession, is not a part of
the marital estate.” Kerce v. Kerce, No. M2002-01744-COA-R3-CV, 2003 WL 22037526,
at *4 (Tenn. Ct. App. Aug. 29, 2003) (citing Smith v. Smith, 709 S.W.2d 588 (Tenn. Ct. App.
1985); Hazard v. Hazard, 833 S.W.2d 911 (Tenn. Ct. App. 1991); Enoch v. Enoch, 1987 WL
12042 (Tenn. Ct. App. June 10, 1987)).
The concept of professional good will evanesces when one attempts to
distinguish it from future earning capacity.
....
There is a disturbing inequity in compelling a professional practitioner to pay
a spouse a share of intangible assets at a judicially determined value that could
not be realized by a sale or another method of liquidating value.
Smith, 709 S.W.2d at 591-92 (quoting Holbrook v. Holbrook, 309 N.W.2d 343, 354-55 (Wis.
Ct. App. 1981)). Wife argues that the trial court should have assigned a specific value to the
amount of goodwill attributable to Husband and the amount attributable to QES. However,
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Wife did not present any evidence to that effect or ask the trial court to make such a
determination. Wife’s own expert could not really explain why his capitalization of income
approach yielded a value $350,000 higher than his asset value approach. When asked
whether the difference between the two figures represented an intangible asset such as
goodwill, Mr. Maggart said, “I haven’t tried to isolate any kind of intangibles. If you want
to do that then you’ve got to go through another whole sophisticated calculation.” Wife’s
attorney asked Mr. Maggart to estimate the percentage of goodwill attributable to Husband
personally and that attributable to the enterprise. Mr. Maggart responded, “I can’t do that.
I haven’t tried to do that and I don’t know how to do that.” Because Wife did not present any
evidence of the matters she contends the trial court should have found, we find no merit in
this argument on appeal. See Ramsey v. Ramsey, No. E2012-01940-COA-R3-CV, 2013 WL
5827648, at *4 (Tenn. Ct. App. Oct. 29, 2013) (no perm. app. filed) (stating that the burden
is on the parties to produce competent evidence of the value of a marital asset, “and the
parties are bound by the evidence they present”). However, we note that even Mr. Maggart
appeared to recognize that the difference between the experts’ values was goodwill
attributable to Husband personally. When explaining the difference between his value and
Mr. LeCroy’s value, Mr. Maggart stated:
[I]f you assume that the business is going to keep going and he’s going
to stay there and is going to continue to generate the earnings that it’s been
generating then you’ve got a value of $725,000 as a reasonable number.
If, on the other hand, you make the assumption that he’s not going to
be there, that he is going to leave and he’s going to go across the street and try
to take all the business of the company with him then the $260,000 would
make more sense because all that’s left is the assets of the company.
(Emphasis added.)
In the case before us, the evidence does not preponderate against the trial court’s
finding that the present value of QES is $260,000. The asset value approach utilized by Mr.
LeCroy and adopted by the trial court is accepted by Tennessee courts as a competent method
of determining the value of an LLC for the purpose of equitably distributing marital assets
in a divorce proceeding.4 The reasons given by Mr. LeCroy for adopting this valuation
method are persuasive. Because the trial court placed a value on QES within the range of
values presented by competent evidence, we decline to second-guess the trial court’s
decision. See Owens, 241 S.W.3d at 489.
4
We find no support for Wife’s argument that the trial court placed too much emphasis on Revenue
Ruling 59-60. “Although not bound by it, Tennessee courts suggest Revenue Ruling 59-60 provides standard
guidelines to value such a business.” Inzer, 2009 WL 2263818, at *6.
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B. Classification of Items as Marital or Separate Property
Next, Wife contends that the trial court erred in designating certain items of property
as marital property rather than Wife’s separate property. Wife claims that the items at issue
were gifts to her, and therefore, they should not have been included in the marital estate.
Questions regarding the classification of property as either marital or separate are
“inherently factual.” Owens, 241 S.W.3d at 485. Appellate courts “give considerable
deference to the trial court’s factual finding regarding the proper classification of an asset.”
Gaither v. Gaither, No. E2013-02681-COA-R3-CV, 2014 WL 5112797, at *5 (Tenn. Ct.
App. Oct. 13, 2014) (no perm. app. filed). The trial court is vested with wide discretion in
its classification of property, and its decision in that regard is given great weight on appeal.
McKin v. McKin, No. E2010-01061-COA-R3-CV, 2011 WL 529287, at *3 (Tenn. Ct. App.
Feb. 14, 2011); Dunlap v. Dunlap, 996 S.W.2d 803, 814 (Tenn. Ct. App. 1998)).
In Tennessee, assets acquired by either spouse during the marriage are presumed to
be marital property, and the party desiring to dispute this classification has the burden of
proving by a preponderance of the evidence that the disputed asset is separate property.
Gaither, 2014 WL 5112797, at *4 (citing Owens, 241 S.W.3d at 485). “Thus, the
classification of all assets acquired by either spouse during the marriage begins with the
presumption that the asset is marital.” Owens, 241 S.W.3d at 485. “Separate property”
includes “[p]roperty acquired by a spouse at any time by gift, bequest, devise or descent.”
Tenn. Code Ann. § 36-4-121(b)(2)(D). Accordingly, “[a] gift from one spouse to another
during the marriage is considered the donee spouse’s separate property.” Gaither, 2014 WL
5112797, at *5 (citing Denton v. Denton, 33 S.W.3d 229, 233 (Tenn. Ct. App. 2000); Batson
v. Batson, 769 S.W.2d 849, 859 (Tenn. Ct. App. 1989)). The burden of proving that a gift
was made is on the donee or the party asserting the gift. Dunlap, 996 S.W.2d at 814 (citing
Hansel v. Hansel, 939 S.W.2d 110, 112 (Tenn. Ct. App. 1996); Hartman v. Hartman, No.
03A01-9608-CV-00249, 1997 WL 176701, at *2 (Tenn. Ct. App. Apr. 10, 1997)). In order
to meet this burden, the donee must establish “‘intention by the donor to make a present
gift’” coupled with delivery of the gift. Id. at 815 (quoting Hansel, 939 S.W.2d at 112).
1. The Cadillac Escalade
The first asset Wife asserts is her separate property is a 2003 Cadillac Escalade. Wife
testified that she considered this vehicle her separate property because Husband gave it to her
as a Christmas gift with “a big red bow on it.” Wife testified that the parties considered the
Escalade “my truck,” but Husband testified that it was “ours.” Husband testified that the
Escalade was not a Christmas gift to Wife and that it was purchased by QES in mid-
December for tax purposes. He testified that there was a tv commercial running at that time
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that showed a vehicle with a red bow on it, and Wife suggested that they put a bow on the
Escalade when her family came to visit for Christmas. He said they did and “had some good
laughs out of it.” However, Husband insisted that the vehicle was not a gift to Wife. Wife
concedes that the Escalade was purchased with a check drawn on the QES account, and QES
paid the insurance and tags for the vehicle. The Escalade was carried on the books of QES
and depreciated as a company asset. The Escalade was included in the business valuations
of QES performed by both experts. The trial court found that the Escalade was the property
of QES rather than Wife’s separate property. The evidence does not preponderate against
this finding.
2. The Ford Ranger
Wife testified that a 2002 Ford Ranger pickup truck was her separate property as well.
She testified that she told Husband during the marriage that she wanted a little pickup truck
that she could use to drive around the farm, and Husband bought her the Ranger. When
asked if the Ranger was presented as a gift, Wife said it was. Husband denied that Wife
asked him to buy the truck. He testified that the Ranger was not a gift to Wife and that he
used it just as much as she did. The Ranger was purchased by QES, and QES maintained the
tags and insurance on the vehicle. Again, both experts included this vehicle in their business
valuation of QES. Based on the evidence presented, we conclude that the trial court did not
err in its classification of the Ranger as property belonging to QES rather than as Wife’s
separate property.
3. The John Deere Gator
Wife testified that she told Husband she wanted her “very own” Gator to use on the
farm, and Husband bought her one during the marriage. She said the parties considered it
hers but admitted that Husband also used it. Husband testified that the Gator was purchased
“for the farm” by the parties’ cattle business. Husband denied that Wife asked him to
purchase the Gator and denied that it was a gift to her. This evidence is sufficient to support
the trial court’s decision to classify the gator as marital property.
4. Jewelry
Finally, Wife disputes the trial court’s classification of two pieces of jewelry – a 10-
carat diamond necklace that cost approximately $10,000 and a pair of diamond earrings
worth $5,000. Wife claimed that these items were gifts to her. She admitted that she
purchased the necklace herself and wrote the check for it herself; however, she claimed that
Husband told her to pick it out for her birthday. Husband adamantly denied this. He claimed
that Wife became angry because he purchased a $20,000 cow for the farm, so she said she
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was going to buy a necklace. Wife admitted that she purchased the necklace after the parties’
discussion about the cow. She claimed the parties agreed that Husband could buy the cow
“and that I could go and buy the diamond necklace on my birthday, which I did. It was right
at my birthday. I had been shopping for it.” Husband denied the necklace was a gift and said
there was nothing he could do to stop Wife from buying the necklace for herself. As for the
earrings, Husband testified that they were not a gift from him and that he had no idea where
Wife bought them. Again, we find that the evidence does not preponderate against the trial
court’s classification of these assets as marital property.
C. Cattle
Wife also argues that the trial court should have included in the marital estate two
cows allegedly acquired by Husband during the divorce proceeding. After the parties sold
the cattle they owned jointly and during the pendency of the divorce, Husband purchased
several additional cattle. The trial court classified the cattle purchased by Husband during
the pendency of the divorce as marital property and accounted for them in its division of
property. However, Wife argues that the trial court failed to account for two cows that
Husband allegedly owned. At trial, Wife introduced photographs from a cattle show
depicting Husband and several other individuals standing beside the two cows. She also
obtained insurance documents reflecting that Husband maintained an insurance policy on
one-half of the value of these cows.
Wife confronted Husband about whether he owned the two cows, but Husband denied
any ownership interest in them. He did admit that one of the cows, Sheza Bonnie, was
named after his current girlfriend. Husband told Wife that the cows belonged to another
individual, Mr. Cooper, who owned a cattle farm in Georgia. Wife admitted at trial that the
two cows were registered to Mr. Cooper and/or his children. Mr. Cooper was also deposed,
and he testified about certain cattle that he and Husband owned as partners, but he did not
mention the two cows at issue. Husband’s girlfriend testified that she visited Mr. Cooper’s
cattle farm in Georgia with Husband and said that the Coopers named a calf after her while
she was there.
At trial, Husband testified that the two cows are “daughter[s]” of the “mama” cow he
owns, and if they win cattle shows it will make his cow more valuable. Husband said he had
an agreement with Mr. Cooper, whereby Husband would pay half of the show expenses for
the cows, and Husband would receive a heifer calf and a “flush”5 if the animals won. Thus,
Husband said that he had a lot to lose if something happened to one of the animals. Husband
said he was unable to purchase a policy of insurance on the life of the unborn heifer, but he
could insure the lives of the two cows being shown in order to protect his investment in the
show expenses. The trial judge must have believed Husband’s explanation because he did
5
A “flush” is the removal of an embryo in a cattle breeding operation.
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not include the two disputed cows in the marital estate. Giving due deference to the trial
court’s ability to gauge the parties’ credibility, we find no error in this decision.
D. Alimony
Having addressed the disputes as to marital property, we now move to the issue of
alimony. As previously noted, the trial court awarded Wife $2,000 per month in transitional
alimony for a period of 14 months. Wife argues that the trial court should have awarded her
a greater monthly sum of alimony in the form of long-term alimony in futuro.
The Tennessee Supreme Court set forth the standard that applies to our review of an
alimony decision in Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011):
For well over a century, Tennessee law has recognized that trial courts
should be accorded wide discretion in determining matters of spousal support.
See Robinson v. Robinson, 26 Tenn. (7 Hum.) 440, 443 (1846) (“Upon a
divorce ... the wife is entitled to a fair portion of her husband’s estate for her
support, and the amount thus to be appropriated is a matter within the legal
discretion of the chancellor. . . .”). This well-established principle still holds
true today, with this Court repeatedly and recently observing that trial courts
have broad discretion to determine whether spousal support is needed and, if
so, the nature, amount, and duration of the award. See, e.g., Bratton v.
Bratton, 136 S.W.3d 595, 605 (Tenn. 2004); Burlew v. Burlew, 40 S.W.3d
465, 470 (Tenn. 2001); Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn.
2000).
Equally well-established is the proposition that a trial court’s decision
regarding spousal support is factually driven and involves the careful
balancing of many factors. Kinard v. Kinard, 986 S.W.2d 220, 235 (Tenn. Ct.
App. 1998); see also Burlew, 40 S.W.3d at 470; Robertson v. Robertson, 76
S.W.3d 337, 340-41 (Tenn. 2002). As a result, “[a]ppellate courts are
generally disinclined to second-guess a trial judge’s spousal support decision.”
Kinard, 986 S.W.2d at 234. Rather, “[t]he role of an appellate court in
reviewing an award of spousal support is to determine whether the trial court
applied the correct legal standard and reached a decision that is not clearly
unreasonable.” Broadbent v. Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006).
Appellate courts decline to second-guess a trial court’s decision absent an
abuse of discretion. Robertson, 76 S.W.3d at 343. An abuse of discretion
occurs when the trial court causes an injustice by applying an incorrect legal
standard, reaches an illogical result, resolves the case on a clearly erroneous
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assessment of the evidence, or relies on reasoning that causes an injustice.
Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011);
Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010). This standard
does not permit an appellate court to substitute its judgment for that of the trial
court, but “‘reflects an awareness that the decision being reviewed involved
a choice among several acceptable alternatives,’ and thus ‘envisions a less
rigorous review of the lower court's decision and a decreased likelihood that
the decision will be reversed on appeal.’” Henderson, 318 S.W.3d at 335
(quoting Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)).
Consequently, when reviewing a discretionary decision by the trial court, such
as an alimony determination, the appellate court should presume that the
decision is correct and should review the evidence in the light most favorable
to the decision. Wright, 337 S.W.3d at 176; Henderson, 318 S.W.3d at 335.
Id. at 105-106.
There are several distinct types of alimony available under Tennessee law. Alimony
in futuro, also known as periodic alimony, is intended to provide support on a long term basis
or until the death or remarriage of the recipient. Gonsewski, 350 S.W.3d at 107 (citing Tenn.
Code Ann. § 36-5-121(f)(1)). However, the alimony statute reflects a legislative preference
favoring short-term spousal support over long-term spousal support. Id. at 106 (citing Tenn.
Code Ann. § 36-5-121(d)(2)-(3)). Transitional alimony is a form of short-term support. Id.
at 109. Transitional alimony is appropriate “when a court finds that rehabilitation is not
required but that the economically disadvantaged spouse needs financial assistance in
adjusting to the economic consequences of the divorce.” Id. (citing Tenn. Code Ann. § 36-5-
121(d)(4), (g)(1); Riggs v. Riggs, 250 S.W.3d 453, 456 n.5 (Tenn. Ct. App. 2007). “Simply
put, this type of alimony ‘aid[s] the person in the transition to the status of a single person.’”
Id. (quoting Mills v. Mills, No. M2009-02474-COA-R3-CV, 2010 WL 3059170, at *5 (Tenn.
Ct. App. Aug. 4, 2010)); see also Montgomery v. Silberman, No. M2009-00853-COA-R3-
CV, 2009 WL 4113669, at *2 (Tenn. Ct. App. Nov. 24, 2009) (affirming an award of
transitional alimony to a wife “to bridge the gap, so to speak, between her married life and
single life”).
In contrast to rehabilitative alimony, which is designed to increase an
economically disadvantaged spouse’s capacity for self-sufficiency, transitional
alimony is designed to aid a spouse who already possesses the capacity for
self-sufficiency but needs financial assistance in adjusting to the economic
consequences of establishing and maintaining a household without the benefit
of the other spouse’s income.
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Gonsewski, 350 S.W.3d at 109.
When deciding whether to award spousal support and, if so, determining the nature,
amount, length, and manner of payment, courts consider several factors, which are listed in
Tennessee Code Annotated section 36-5-121(i):
(1) The relative earning capacity, obligations, needs, and financial
resources of each party, including income from pension, profit sharing or
retirement plans and all other sources;
(2) The relative education and training of each party, the ability and
opportunity of each party to secure such education and training, and the
necessity of a party to secure further education and training to improve such
party’s earnings capacity to a reasonable level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited to,
physical disability or incapacity due to a chronic debilitating disease;
(6) The extent to which it would be undesirable for a party to seek
employment outside the home, because such party will be custodian of a minor
child of the marriage;
(7) The separate assets of each party, both real and personal, tangible
and intangible;
(8) The provisions made with regard to the marital property, as defined
in § 36-4-121;
(9) The standard of living of the parties established during the marriage;
(10) The extent to which each party has made such tangible and
intangible contributions to the marriage as monetary and homemaker
contributions, and tangible and intangible contributions by a party to the
education, training or increased earning power of the other party;
(11) The relative fault of the parties, in cases where the court, in its
discretion, deems it appropriate to do so; and
(12) Such other factors, including the tax consequences to each party,
as are necessary to consider the equities between the parties.
The most important factors are “the disadvantaged spouse’s need and the obligor spouse’s
ability to pay.” Gonsewski, 350 S.W.3d at 110. Applying the foregoing principles to the case
at bar, we do not find that the trial court abused its discretion by awarding Wife $2,000 per
month in transitional alimony for 14 months.
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When the divorce decree was entered, Husband was 68 years old, and Wife was 66.
Husband had a high school education and a few months of vocational school training; Wife
had a high school education and about two years of college education. When the parties met
in 2001, Wife was 54 years old and working in Nashville as a real estate broker for a Metro
housing agency for somewhere between $20 and $25 an hour. She was in the process of
divorcing her third husband and planned to move to Florida, obtain her real estate license
there, and continue selling real estate. Wife had worked for various realtors in the past and
was also employed as an assistant account executive and customer service supervisor at
Murray of Ohio. One year after the parties married, Wife quit her job with Metro, even
though Husband asked her not to quit working. Since 2002, Wife had not been employed
aside from her involvement with QES and the parties’ cattle business. However, she
maintained her real estate broker’s license in retired status. Wife testified that she had not
checked to see what steps would be necessary to take her license out of retired status, but she
testified that before she quit work in 2002, she was “grandfathered” so she was not required
to take continuing education courses. Wife testified at trial that she had not taken any steps
toward getting a job since the divorce complaint was filed over two and a half years earlier.
When Wife was asked if she had any intention of working, she replied, “Well, I’m 66 years
old, [counsel].” Wife testified that she did not believe that she could be gainfully employed
at this point in her life. Wife acknowledged that Husband was two years older than she was
and that he continued to work even though he suffered from a heart condition. Wife admitted
she was contacted by someone about an opportunity to work as a broker for a new company,
and she told them she was retired. She testified she did not think she “could go through all
that physically.” Wife testified that she suffered from osteoporosis, arthritis, and
degenerative disc disease, among other things, and said she tired easily and had difficulty
standing for long periods. She acknowledged, though, that her profile on a dating website
said she did not feel or act her age and that she enjoyed dancing, walking, hiking, and
exercising three to four times per week. The trial court found that “[Wife] has not shown that
she has any health or other conditions which would prevent her from working, and there is
no reason for her not to work outside of the home.” The evidence does not preponderate
against this finding.
The trial court found that Husband’s net income from the cattle business and QES in
2011 was $93,125. It found that Husband’s estimated net income for 2012 was
approximately $55,000, or $4,666 per month. Husband estimated his expenses at $4,633 per
month. At the time of trial, Wife was drawing $1,244 per month from social security and
approximately $83 per month from a retirement account. The trial court found that Wife was
earning about $40,000 a year, or $3,333 per month, when she was employed with Metro and
that she could pull her license out of retirement status “and continue to earn a living.” The
trial court found that Wife listed $4,460 in monthly expenses, but it noted that she was not
actually paying some of the expenses she listed, such as medical or dental insurance, property
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insurance, or $1,500 in rent. The court also noted that Wife’s expenses included $300 per
month for clothing, $150 for her hairdresser, and $150 for entertainment. The trial court
found that Wife was receiving liquid assets of approximately $360,000 from the parties’ real
estate and cattle, not to mention the funds she would receive for her share of QES. The court
noted that Wife was younger than Husband and had more education, and the marriage was
of a relatively short duration, in addition to the fact that both parties had been married several
times previously. The court also mentioned that Husband had been paying Wife temporary
support since the parties separated over two and a half years earlier, and Husband had paid
over $75,000 to Wife during that time in the form of $500 weekly payments and payment of
virtually all of Wife’s expenses. Considering all these factors, the trial court awarded Wife
$2,000 in transitional alimony for a period of 14 months.
We reject Wife’s assertion that the facts of this case support an award of alimony in
futuro. Again, “there is a statutory bias toward awarding transitional or rehabilitative
alimony over alimony in solido or in futuro.” Gonsewski, 350 S.W.3d at 109. Given the age
of the parties, their education, their employment history, the division of marital property, the
duration of the marriage, the parties’ relative contributions to the marriage and their
businesses, and the absence of minor children or a physical condition that would prevent
Wife from working, we are not inclined to second-guess the trial court’s decision not to
award alimony in futuro. Wife does not specify an amount of alimony that she believes the
trial court should have awarded but simply argues that the court erred in the “amount of
alimony awarded.” We find no abuse of discretion in the trial court’s decision to award
$2,000 per month.
Finally, Wife argues that the trial court abused its discretion by considering the
spousal support that she received during the divorce proceeding as one of the factors relevant
to its alimony award. Wife relies on Scarbrough v. Scarbrough, No. W1998-00167-COA-
R3-CV, 1999 WL 1567097, at *2 (Tenn. Ct. App. Dec. 14, 1999). In that case, a husband
argued on appeal that he was entitled to a credit against his alimony obligation for alimony
he paid during the divorce proceeding. This Court rejected his argument, stating,
We disagree with Husband’s argument that he should receive credit for
alimony previously paid by him. The payments were intended to support Wife
until the time that the divorce became final. Pendente lite awards are not
deducted from permanent alimony awards.
Id. at *5.
Here, the trial court did not deduct the pendente lite support from Husband’s alimony
obligation. The court simply noted when considering the issue of alimony that Husband had
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been paying Wife $500 per week, and most of her expenses, for 29 months while the divorce
case was pending, and Wife did not work during that time period, even though there was no
reason for Wife not to work outside the home. By statute, the court in awarding alimony is
authorized to weigh such factors “as are necessary to consider the equities between the
parties.” Tenn. Code Ann. § 36-5-121(i)(12). We find it was appropriate for the trial court
to consider the fact that Husband paid $75,000 in temporary support to Wife during the
lengthy divorce proceeding while she refused to work or even begin the process of searching
for a job. The trial court’s alimony award is affirmed.
E. Attorney’s Fees
Finally, Wife argues that the trial court erred in declining to award her attorney and
expert fees. The trial court ordered both parties to pay their own attorney’s fees because both
parties contributed to the breakup of the marriage, and both parties had “sufficient assets and
[the] ability to pay” their own fees.
The supreme court in Gonsewski set forth the following principles that guide our
review of the trial court’s decision on attorney’s fees:
It is well-settled that an award of attorney’s fees in a divorce case
constitutes alimony in solido. See Tenn. Code Ann. § 36-5-121(h)(1)
(“alimony in solido may include attorney fees, where appropriate”); Herrera
v. Herrera, 944 S.W.2d 379, 390 (Tenn. Ct. App. 1996). The decision whether
to award attorney’s fees is within the sound discretion of the trial court.
Crabtree, 16 S.W.3d at 361; Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn.
Ct. App. 1995). As with any alimony award, in deciding whether to award
attorney’s fees as alimony in solido, the trial court should consider the factors
enumerated in Tennessee Code Annotated section 36-5-121(i). A spouse with
adequate property and income is not entitled to an award of alimony to pay
attorney’s fees and expenses. Umstot v. Umstot, 968 S.W.2d 819, 824 (Tenn.
Ct. App. 1997). Such awards are appropriate only when the spouse seeking
them lacks sufficient funds to pay his or her own legal expenses, see
Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn. Ct. App. 1992), or the
spouse would be required to deplete his or her resources in order to pay them,
see Harwell v. Harwell, 612 S.W.2d 182, 185 (Tenn. Ct. App. 1980). Thus,
where the spouse seeking such an award has demonstrated that he or she is
financially unable to procure counsel, and where the other spouse has the
ability to pay, the court may properly grant an award of attorney's fees as
alimony. See id. at 185.
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Gonsewski, 350 S.W.3d at 113. Considering the trial court’s express findings regarding the
parties’ ability to pay their own attorney’s fees and their contribution to the demise of the
marriage, we find no abuse of discretion in the court’s decision to require both parties to pay
their own attorney’s fees. Wife does not cite any authority to support her request for expert
witness fees. We affirm the trial court’s decision to deny Wife’s request for Husband to pay
such fees.
V. C ONCLUSION
For the aforementioned reasons, we affirm the decision of the circuit court and remand
for further proceedings. Costs of this appeal are taxed to the appellant, Susan Anne Ogles,
for which execution may issue if necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
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