Fiona Eischeid Flodin v. Tan Scott Flodin

06/26/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 20, 2019 Session
FIONA EISCHEID FLODIN v. TAN SCOTT FLODIN
Appeal from the Circuit Court for Hamilton County
No. 17D1397 L. Marie Williams, Judge
No. E2018-01499-COA-R3-CV
This appeal arises from a divorce. Fiona Eischeid Flodin (“Wife”) filed for divorce from
Tan Scott Flodin (“Husband”) in the Circuit Court for Hamilton County (“the Trial
Court”). Husband, in the latter years of the marriage, was unemployed by his choice.
Husband asserted that he contributed by helping Wife with her real estate business. Wife
asserted that Husband’s contributions were minimal and that he refused to work despite
her urging him to get a job. After a trial, the Trial Court entered an order finding, inter
alia, that Husband lived a life of leisure while Wife did the vast majority of the work both
for pay and at home. The Trial Court found all the witnesses credible except Husband.
The Trial Court proceeded to award Husband around 38% of the marital estate as well as
six months of transitional alimony at the rate of $2,000 per month. Husband appealed.
Husband argues on appeal that the Trial Court erred in its valuation of certain marital
assets, in its division of the marital estate, and in not awarding him more alimony than it
did. We find that the evidence does not preponderate against the Trial Court’s factual
findings. The values adopted by the Trial Court as to marital assets were within the range
of evidence presented. In addition, the Trial Court appropriately considered the relevant
factors in its decisions regarding alimony and the marital estate. We discern no abuse of
discretion or other error by the Trial Court. We, therefore, affirm the judgment of the
Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR. and THOMAS R. FRIERSON, II, JJ., joined.
Philip M. Jacobs, Cleveland, Tennessee, for the appellant, Tan Scott Flodin.
Phillip C. Lawrence, Chattanooga, Tennessee, for the appellee, Fiona Eischeid Flodin.
OPINION
Background
Husband and Wife, after dating for six years, were married in 2001. No children
were born of the marriage. Wife, originally a bartender, went on to become a successful
real estate agent. Wife earns $186,000 per year in her job. Wife also is college-educated.
Husband worked at a tile and granite company at the beginning of the marriage. The
most that Husband ever earned while working there was around $35,000. In 2009,
Husband was laid off. Husband asserts, as he has throughout, that he contributed to the
marriage by helping Wife with her business. Wife’s consistent position has been that
Husband’s contributions were minimal and that he refused to work despite her urging
him to get a job.
In either event, the marriage broke down. Shortly before the end of the marriage,
Husband became deeply upset upon discovering that Wife had kissed another man. In
June 2017, Wife filed for divorce. Wife’s brother thereafter came to live with her and
assist her. This case was tried in November of 2017. Trial centered on the parties’
respective contributions to the marriage, the valuation of marital assets, as well as
Husband’s prospects of making a living moving forward. We proceed to review the
pertinent testimony.
Wife, age 44, testified that she works as a real estate agent 10 to 12 hours a day,
seven days a week. Regarding Husband’s work history, Wife testified as follows:
Q. All right. And so did Mr. Flodin work for Pinnacle and The Tile Store
for a period of time during the marriage?
A. Yes, sir.
Q. What period was that?
A. Well, during -- he didn’t -- he hasn’t worked at The Tile Store since --
ten years. Nine -- nine years.
Q. Okay.
A. They actually -- they put him on a commission only, and he wasn’t
producing anything, and so they let him -- they let him go.
Q. What year was that?
A. It was probably 2008.
Q. Okay. What work did he do after 2008?
A. Nothing to get paid for.
Q. All right. There’s been a suggestion that he did something in your
business that was of value. What did he do to assist you?
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A. He would put up signs occasionally, go to the office, get lock boxes, put
in a check. When I shattered my heel, I couldn’t walk. I’d sit in the
driveway and he would open the door to people that I had introduced him to
[sic] to show the house because I was non-weightbearing.
Q. Well, how much time did this activity consume where he was assisting
you?
A. Maybe six hours a week. Maybe. Not even that. Sometimes I’d even
get my photographer to put up my signs or I’d put up my signs. So not a
lot. He doesn’t know how to turn on a computer, write a contract, get on
the MLS. When the Beck house was in operation, rental, I did every single
rental agreement on the computer. Printed off the receipts. Wrote the
receipts. Sent the people their directions. Wrote it on the calendar. Did -- I
mean, stack -- thousands of rental agreements in the 13 years that it was
owned. On top of my real estate.
Q. All right. In terms of what his activities were, he spent -- would you say
the six hours a week is an average or is that the most or. . .
A. If he spent more -- or less time playing video games and actually getting
a license and helping me, it might have been more.
Q. Well, what did he do to occupy himself from the time he quit working
until now?
A. Played hours and hours of Call of Duty, video games, watching Fox
News, watching pornography. He would clean the Beck house. That was
his job, is what he’s saying. It’s a two-bedroom house. It takes a
maximum of two hours to do it. And sometimes he would call me when
I’m working to come help him do it. He’d get my friends over to help him
clean. He’d wait to the last, knowing it was vacant and that check in was
coming in and he’d wait till the day of, when he had four days to do it. And
then complain that it was completely dirty and trashed and -- when he had
days to clean that two-bedroom house.
***
Q. Now, what encouragement did you give him about getting a job?
A. I asked multiple times. I said, I’m tired. I’m getting burned out. I’m
sick of paying for everything. I said, if you want to help, get your real
estate license. This was years ago. And he said, well, I didn’t graduate
high school. I said well, then -- I didn’t realize that at the time. And I said,
well, get your GED. Went and got a book. He never opened it.
Q. Do you know of any job applications that he made after he quit working
in the tile business?
-3-
A. No, sir. He worked at another tile store very briefly for, I think, a phone,
but they -- that didn’t last but a few months.
Q. What does he do on a daily basis? What is his routine?
A. He gets up; goes down to Mr. Zip and buys a 70 ounce diet Coke; starts
playing video games and watching Fox News. He’ll normally go to Krystal
and get breakfast at Krystal, like a biscuit and gravy or -- that’s stuff I don’t
like. We would go to lunch. I’d go back to showing houses, doing what I
do. He’d be -- sometimes I’d come home for lunch and he’d be in bed.
And I’d hear the dogs barking so I knew he was in bed taking a nap. And
he said he needed to have a nap. I witnessed him watching pornography.
And the Fox News was on 20 -- all -- all the time. I couldn’t stand it. He
wouldn’t go out with me, so I would go out with my friends, because he
wouldn’t never leave the house, basically.
Husband, age 51, took the stand. According to Husband, he and Wife agreed that
it would be better for him to help her with the real estate business than for him to get a
job, which was “plan B.” Husband contends that he played a major role in building the
marital residence, worked on the parties’ vacation rental property, and was a regular
“fixture” around Wife’s office helping Wife. Husband testified, in part:
Q. Okay. And what did Mrs. Flodin -- what was plan B to Mrs. Flodin?
A. A job.
Q. Okay. And what was plan A?
A. Plan A for me was to develop these -- keep these properties running and
clean the vacation rental.
Q. Okay. At any point after 2010 did she tell you that we needed to go to
plan B, which is you entering the work force?
A. Yes. Off and on. Whenever it would get slow in the real estate industry
in her real estate business when she would lose listings or sell everything
she had, she would bring up plan B.
Q. And leading up to the separation in 2017, was that a topic that was on
the table that you needed to get a job and plan B needed to go into play?
A. No. We hadn’t really talked about it that much, because I was so busy
working on the house.
Q. Okay. All right. Why didn’t you go back into the work force after
2010?
A. Because it was in my belief that the money I was making or was capable
was making was more or less a wash in the form of tax -- taxes. You know,
we’d have to pay somebody over a hundred dollars to clean the vacation
rental each time, which would defeat the purpose of having one in the
beginning. And she needed help showing houses and putting up signs,
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picking them up, some of which were Soddy Daisy all the way to
Coalmont, Tennessee, down into LaFayette. She couldn’t be two places at
one time. And we had pets and I had lawns to mow, bushes to cut, pressure
washing to do, decks to fix, you know. That’s why.
Q. How often would you have projects like fixing the deck where you got
paid by a third party between 2010 and 2017?
A. Where I got paid by a third party. There weren’t any.
Q. Okay. And how often were you mowing lawns for money?
A. I didn’t.
***
Q. Okay. There’s been testimony about your consumption of video games.
On average how much video games did you play and when would you play
those games?
A. I would usually get up at 6:00, sometimes 5:00 in the morning and play
for two or three hours until she gave me an assignment or I had some other
work to do around the house, like take the dogs to the vet or take myself to
the doctor, get the car washed so Fiona could show a house with it. I
always maintained the vacation rental. So there’s -- it’s almost daily.
Q. Okay. We’ll come back to that.
A. Okay.
Q. In terms of the video games, did you spend hours --
A. Yeah.
Q. Did you spend all day playing video games?
A. No.
Q. Tell the Court how much time you spent?
A. Yeah. I would play two or three hours per day. Uh-huh. And the
specific times I can tell you were in the mornings. Occasionally on -- in the
afternoon. And then after dark. Instead of going to a bar, I would stay
home and play the game and watch football.
Q. Okay.
A. Or watch Fox News.
Q. Was your consumption of video games an issue that Mrs. Flodin
expressed to you during the marriage that you needed to stop or curtail?
A. Yes.
Q. Did you comply with her wishes?
A. No.
***
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Q. All right. Why didn’t you go back and get your GED?
A. Why didn’t I? Because I figured Fiona and I were going to last forever
and just go ahead and -- it wasn’t out of my will to go and get one. But we
stayed pretty busy, you know.
Licensed clinical psychologist William Wray (“Wray”) testified for Husband.
Wray testified regarding Husband’s health problems and prospects for work. Wray
testified, in part:
Q. Can you detail that?
A. Yes. I found -- he reported to me several health problems. One was a --
a problem with insulin dependent diabetes. He described -- I typically hear
from folks that have insulin dependent diabetes -- that he would become
fatigued or confused at times and have to sometimes check his blood sugars
more regularly and, of course, watch his diet, that sort of thing. He gave
me a history of anxiety problems going back to childhood. He attributed --
he said the panic episodes first started related to childhood asthma. And
then he also described a family history that was not ideal where there were
some abandonment issues there. He said the recent problem in his marriage
and the pending divorce had exacerbated some of those anxiety issues. . . .
***
Q. Do you have any findings with reference to his age and how that directly
affects his capacity to work or the jobs that he can fulfill?
A. The main -- the main consideration I had, given his age -- and this is
pretty standard -- I felt he should not be doing heavy work. And beyond
that, you know, he was telling me about -- subjectively he was talking
about having problems with forward flexing with, you know, reaching with
much lifting. So really I looked at jobs that were lighter in demand, lifting,
moving 20 pounds. I found a good number of jobs within that category. I
did not mean for the listings that I have there to be exhaustive. So -- and
there may be other heavier jobs that he -- he could -- he could perform.
Q. Okay. Can you talk just briefly -- I think you rated him on your training
code configuration a 434 -- and just how that interplays with what jobs you
suggested he could obtain?
A. Yes. When you look at a job title, it will list the -- the level of
reasoning. And that’s on a six point scale. So a four would be, you know,
average kinds of abilities. And so really I looked at jobs that were within
those codes. Sometimes a person gets physically injured and they lack the
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reading, language, or math reasoning skills to act at lighter kinds of
employment.
Q. And did you draw a conclusion as to what jobs, though it’s not
exhaustive, you think that he could obtain at that income at what those jobs
produce in our economy?
A. I listed some general income information. And essentially what I found
was that the -- and I used the mean wage information for Chattanooga.
And this is updated in May of 2016. So it wasn’t fully current, but it was
the most current I could find. I found that -- and these are mean salaries for
Chattanooga. I found that for sales and related occupations the mean
hourly wage is $17.46 per hour. For building and grounds cleaning and
maintenance occupations, the mean hourly wage is $10.86 per hour. And
for construction occupations the mean hourly wage is 19.66 per hour. I
also give a reference, if you were looking at a particular job, where we
could look up a particular job title and get that mean salary information
from Chattanooga.
Mark Boatner (“Boatner”), a vocational rehabilitation counselor, testified for Wife
on the subject of Husband’s prospects for work. Boatner testified, in part:
Q. In addition to those jobs that Dr. Wray delineated in his report, what
other jobs, in your opinion, are available to Mr. Flodin and what salary
ranges do you feel would be appropriate for his level of skill?
A. Well, sir, I will say that looking at current census data for the
Chattanooga, metropolitan, statistical area, considering unskilled and semi-
skilled light strength rated jobs, there are over 41 and a half thousand trial
unskilled and semi-skilled light strength rated job titles existing in the
Chattanooga area. That’s 41,200. And these would have a salary range
anywhere from about 19 and a half thousand a year to about 30,000 a year.
There are also 10 and a half thousand unskilled and semi-skilled sedentary
strength rated jobs that would have similar salary range. And that could be
anything from working as a receptionist to do telemarketing work or data
entry or appointment clerks, things of that nature. There were also some
skilled jobs that I did not -- I mean, I looked at the, for instance, retail store
manager jobs that Mr. Flodin had done in the past for apparently over --
over five or six years or so and had some training there. In the Chattanooga
area and, again, the most current census data that’s available to folks like
myself and Dr. Wray is from May of 2016. This information from the
census bureau comes out annually in May, but it takes a while for the
software originators to get it updated. The most current data I’ve got is
mean salary for retail store managers in the Chattanooga area is 36,590, for
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instance. There are a number of other jobs, sales clerk jobs, just entry level
jobs that you would see at Walmart or the shoe store, or whatnot, these are
semi-skilled jobs at light level strength. They have a mean or average pay
of about $23,000 a year. There are other jobs that Mr. Flodin had done in
the past when he worked with the pest control service doing sales. Those
jobs, the mean annual income for folks that sell pest control services,
$43,590 in the Chattanooga area. And that’s pretty much the range. There
are some other jobs -- let’s see -- that are similar. And, again, I did not do a
full transformable skills analysis list, every possible job, but I think when I
say entry level up to semi-skilled jobs, that will be consistent with the past
work and the educational attainment. But for instance, jobs such as a sales
representative for home furnishings, selling kitchen supplies, kitchen
remodeling jobs, and furniture, the median -- or mean wage there is 57,400
a year in the Chattanooga area. So I listed a number of jobs kind of
piggybacking off of the jobs that Dr. Wray had noted from Mr. Flodin’s
past work.
Another area delved into at trial was the value of certain marital assets, including
the parties’ Manning Street property. Mark Hite (“Hite”), a real estate agent and expert
witness for Wife, testified that the Manning Street property was worth $620,000. Hite
stated, in part:
Q. How does the exercise that you’ve done in deriving an opinion of value
of the 403 East Manning Street house compare with what you do on a daily
basis in order to provide practical, objective advice to people you represent
as buyers and sellers?
A. It is the same process.
Q. All right.
MR. LAWRENCE: I’d offer him as an expert, Your Honor.
MR. JACOBS: My objection may go to weight and not admissibility, but
he’s not actually a real estate appraiser.
THE COURT: You anticipated my ruling completely. Yes. I understand
your qualifications challenge, and I understand we don’t have evidence of
certification as a real estate appraiser and that training. However, based on
his experience, I will accept his opinion as an expert and your objection
does go to weight.
MR. JACOBS: Thank you, Your Honor.
THE COURT: Okay.
BY MR. LAWRENCE:
Q. So you were describing the comparability of various properties to the
subject property in this case?
-8-
A. Yes, sir.
Q. And the criteria that you used to determine comparability relates to size,
is that right?
A. Size. Age. The school district in which the -- or the school zone,
particularly in Normal Park Elementary School, in which this property and
the seven other properties are located. And then from there the fit and
finishes, because as someone who does this daily, there are differences in
builder grade versus upgraded-type property like the subject property.
Q. Okay. And certainly Mr. Jacobs, opposing counsel, can ask you about
these various comparable sales, but after having evaluated the material that
you’ve reviewed, did you draw a conclusion as to the value of the 403 East
Manning Street residence?
A. Yes, sir, I did.
Q. And what did you conclude the value to be?
A. $620,000. And that was derived, number one, by taking the average
dollars per foot of the seven closed properties, which came in at $143.94
per foot, times what we have ascertained as the living square footage of
3900, which would place the property at 560,000. Then we compared room
by room, bathrooms, kitchen, fit and finishes, as well as curb appeal to the
seven comparables and upgraded an additional $60,000 as additional appeal
in a fair market appraisal, which estimated the house at $620,000.
Q. So on a purely mathematical basis using a multiplier of the average
square foot price by the square footage, the value would be less?
A. Yes, sir.
Q. But you have --
A. I’ve actually upgraded that based upon a careful examination of the
subject property versus the seven other homes that have sold.
Q. And is that based upon your experience and knowledge about the real
estate market in Hamilton County, Tennessee?
A. Yes, sir.
Another marital asset in focus was Wife’s 8.5% interest in Greater Downtown
Realty, LLC. Wife placed her stock’s total value at $134,400. Husband submitted
evidence from Linda Carlton (“Carlton”), the person who handles the company’s
finances, placing the stock’s value at $150,365.
In April 2018, the Trial Court entered its final judgment of divorce. The Trial
Court, recognizing the parties’ stipulation as to grounds, declared Husband and Wife
divorced. The Trial Court awarded Wife around 62% of the marital estate, which had a
net value of $940,113, to Husband’s 38%. The Trial Court also awarded transitional
alimony to Husband at the rate of $2,000 per month for six months or until the Beck lot
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was sold, whichever occurs first. The Trial Court attached to its judgment its detailed
memorandum opinion, which provides in pertinent part:
The Court heard many hours of testimony from the parties and from
witnesses with personal knowledge of the parties. The Court observed the
demeanor of the witnesses and weighed the testimony of the parties and
witnesses. The witnesses other than Tan Flodin were credible. They were-
straightforward when examined about the opportunities to observe the
parties. Mrs. Flodin was much more straightforward and consistent in her
answers than was Mr. Flodin.
Wife is 44 years of age . . . and Husband is 51 years of age . . . They
were married September 29, 2001, having been in a relationship for six
years prior to the marriage. This is a first marriage for both parties and
there are no children born of this marriage and neither party has any
children. Wife has earned a Bachelor’s Degree from UTC and completed
one year of a Master’s program. She had a double major in Psychology and
Sociology in college. She ceased her education to pursue a career selling
real estate beginning in 2000. While obtaining her education and
throughout her life, she had been employed. Husband completed 11 and
one-half years of high school and has taken no steps to obtain additional
education or to increase his earning power despite encouragement to do so
by his Wife.
At the time the parties met, Mrs. Flodin was a bartender at Sticky
Fingers restaurant and Mr. Flodin was a manager of a retail store. He lost
that job and at the time of the parties’ marriage in 2001, he was working in
the installation and fabrication aspect of a tile and granite company. He
also had worked in a pest control business and Mrs. Flodin was a real estate
agent.
Mrs. Flodin advanced in her real estate career. There is no dispute
that she consistently works diligently. The undisputed evidence established
she works seven days a week and often 10 to 12 hours a day at her work.
During the marriage, she invested $39,000.00 of marital assets which were
earned through her work endeavors to buy 6.5% of a Keller Williams
partnership. She subsequently increased her ownership share to 8.5%,
again using marital funds attained through her work endeavors. Mrs.
Flodin has greater vocational skills, employability, and earning capacity
than does Mr. Flodin.
Mr. Flodin last worked at a salaried position in 2008 or 2009, at
which time he went on a commission basis and subsequently was
discharged from that employment. Since that time, he has not worked at a
wage paying job despite evidence indicating he was a good employee and
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could be productive. From substantial credible evidence, the Court finds
that Husband simply prefers to play video games, watch Fox News, and
drink alcoholic beverages to working outside the home. He did little to
nothing to attempt to obtain employment after his discharge and limited his
contributions to the family endeavors to sometimes picking up checks,
putting out/picking up signs for Mrs. Flodin, and related runner type
activities a few hours each week. On a limited number of occasions, he
showed a house for her.
Until 2009, Mr. Flodin made an equal effort to contribute to the
fiscal health of the marriage. While his earnings did not equal those of
Mrs. Flodin, he expended a reasonable effort.
The Court finds no credible evidence that the parties made a joint
decision that Mr. Flodin would not be employed after his 2009 loss of job.
Mrs. Flodin encouraged and urged him to get a job. She recommended he
get a GED and a real estate license. He did neither. The Court finds Mrs.
Flodin assumed the responsibility for any and all financial needs or
obligations of the household. The contribution Mr. Flodin made to the
household was minimal after 2009. He did assist Mrs. Flodin in her real
estate business sporadically. His minimal contributions are despite his self-
proclaimed abilities to supervise construction and assist in construction as
well as assist his wife in her employment. He has displayed historically
strong skills in manufacturing and fabrication of tile and some skills in
sales. The evidence establishes he simply chose not to pursue those modes
of employment or develop others. Accordingly, his earning capacity is
substantially less than that of Mrs. Flodin. He claims his significant work
and supervision of the renovation projects were valuable contributions to
the marital estate. The Court finds his contentions are exaggerated. He did
not transfer those skills to wage earning or income generating endeavors.
Neither party has made a tangible or intangible contribution to the
education, training, or increased earning power of the other party. Mr.
Flodin’s occasional efforts in assisting his wife have not made any
significant contribution to her earning power.
Mrs. Flodin has a substantially greater ability for future acquisition
of capital assets and income.
The Court finds there is no dispute Mrs. Flodin made the majority of
the contributions to the acquisition, preservation, and appreciation of the
marital estate. As referenced above, Mr. Flodin did make some efforts in
improving the real estate investments of the parties and assisted her some in
her real estate. His time input was insubstantial. After 2009, Mrs. Flodin
was responsible for the most significant efforts in that regard.
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It is not unusual for the Court to, in accordance with the applicable
statute, find the contribution of a party who is not a wage earner but rather
stays at home to be considered as making an equal contribution to the
marriage. However, the evidence is clear Mr. Flodin did not contribute to
the marriage as a homemaker or, after 2009, as a wage earner. Mrs. Flodin
did all of the cooking, shopping, cleaning, and tending to the home. Mr.
Flodin, at most, cleaned a rental house on occasion, drove through Krystal
for his breakfast, and ran some errands for Mrs. Flodin.
Both parties have health issues which do not materially impede their
ability to earn: Mrs. Flodin suffers from Lupus and Sjogren’s Syndrome
and Husband is diabetic, has IBS, and complains of back pain. Mrs. Flodin
also is seeking the services of a psychologist for anxiety related to this
divorce. Neither party’s physical condition is an impediment to work. Mr.
Flodin was examined by Dr. William Wray for an employment assessment.
The opinions of Dr. Wray are based in large part on Mr. Flodin’s self-
reported symptoms of diabetes, anxiety, chronic back pain, and IBS and
how they interfere with his work. The Court finds Mr. Flodin historically
less than credible in his recitation of his medical history. The medical
records contain documentation of the diagnoses of these conditions but
little documentation of any limitation on his ability to earn. Rather, the
medical records document excessive alcohol intake and failure to abide by
medical recommendations.
This history is the basis of the assumptions made by Dr. Wray in
reaching his opinion that Mr. Flodin could earn a mean hourly wage
ranging from $10.87 to $19.66 per hour. Mark Boatner and Dr. Wray
identified job opportunities for Mr. Flodin. Accordingly, the Court finds
Mr. Flodin’s reasonable earning capacity is $18.00 an hour or $37,500.00 a
year.
Mrs. Flodin has demonstrated an earning capacity of approximately
$186,000.00 per year. While she has had substantial income, she also has
had substantial expenses related to her business. She has been paying to the
Husband $2,000.00 per month, provided him with a residence and paid
other expenses for a total of $4,826.12 under an alimony pendente lite
order.
***
There was much evidence concerning certain real properties which
are no longer owned by the parties. The Court finds the Beulah Avenue
property in St. Elmo which was purchased prior to the parties’ marriage, the
Brass Lantern Way vacant land, and the 612 Druid Drive properties were
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held during and appreciated during the marriage. There are substantial
disputes as to what contribution Mr. Flodin made to the appreciation or
improvement of these investments. The Court finds he made some
contributions. The proceeds from those investments eventually made their
way into the currently held real properties which are 403 Manning Street,
504 Beck Avenue, and the vacant lot at 504 Beck Avenue. The parties
have stipulated to a fair market value of the 504 Beck Avenue residence at
$292,910.00 and the Beck Avenue lot at $170,000.00. There is a mortgage
on the residence at 504 Beck Avenue of $44,460.00.
There is a dispute concerning the fair market value of 403 Manning
Street. The Court finds the Wife’s fair market value of $620,000.00
substantially more credible than that of the Husband’s speculative fair
market value. The testimony of Mark Hite substantiates the Wife’s
opinion.
***
In the case before the Court, Mr. Flodin is economically disadvantaged
compared to Mrs. Flodin. However, he has not suffered an economic
detriment for the benefit of the marriage. While he was working and
holding down a job, he was contributing economically to the marriage. It is
his contention that his efforts since 2009 have benefitted the marriage.
Mrs. Flodin testifies to the contrary.
It is the Court’s finding that Mr. Flodin’s contribution since 2009
has been minimal. He has contributed a nominal number of hours per week
to improving joint real estate investments of the parties and to assisting in
Mrs. Flodin’s career. However, those efforts have in no way approximated
what his holding a full-time job would have generated to the benefit of the
marriage or what he could have contributed to the well-being of the
marriage non-economically. Rather, he has chosen a life of leisure.
***
Transitional alimony has, in effect, been available to Mr. Flodin
through the alimony pendente lite. He has been provided in the division of
assets and liabilities with significant assistance to adjust to the economic
consequences of the divorce. Because he is being awarded the Beck
residence, he has a place to live. Because of the ordered sale of the lot, that
residence will have no encumbrance. He has the ability to earn $3,125 per
month. His reasonable needs can be met by his own income when
employed. If he utilizes the Beck Avenue property as a vacation rental
property, it will generate income as it has historically.
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The Court ORDERS transitional alimony for six months or until the
Beck lot is sold, whichever occurs first. This transitional alimony shall be
paid at the rate of $2,000.00 per month so Mr. Flodin has income until he is
able to obtain employment or the house is paid off. Until the Beck Avenue
lot is sold and the proceeds applied to the mortgage on the Beck Avenue
residence, Wife shall make the $808.00 monthly mortgage payment and
pay the insurance on the house. She shall cover Mr. Flodin’s health
insurance at the earlier of the end of six months or Mr. Flodin obtaining
employment.
***
The Court awards Husband $5,000.00 towards his attorney’s fee as
alimony in solido. Husband is capable of earning sufficient monies to
support himself in the lifestyle he enjoyed during his marriage. The Court
finds the alimony pendente lite paid to him served the function of
transitional alimony and the Court also ORDERS transitional alimony and
will not re-address that obligation.
Both parties filed motions to alter or amend the judgment. In July 2018, the Trial
Court entered its order disposing of the motions, stating:
The Court first will address the motion to alter or amend filed by the
plaintiff Fiona Flodin. She asks that certain lump sum payments be
permitted to be made out of the proceeds of the sale of the Beck Avenue
lot. The Court recognizes the plaintiff has borne most if not all of the
expense of the parties’ lifestyle throughout the marriage and throughout this
litigation. Accordingly, the Court finds her request reasonable and
ORDERS the lump sum payment of $5,000.00 to defendant’s attorney of
record and the sum of $32,000.00 to defendant shall be paid out of the
proceeds of the sale of the Beck Avenue property.
Next, plaintiff addresses her concern that the Court awarded the
defendant her First Tennessee Bank IRA as part of the equitable division of
the assets and liabilities. The Court appreciates her frustration that this
account was largely accumulated when Mr. Flodin did not have a job.
However, it is incumbent upon the Court to make a fair and equitable
distribution of the assets of the marriage. The Court finds this award
appropriate. Accordingly, the motion to alter or amend of plaintiff is
overruled as to her second request and granted as to her first.
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Defendant/Counter-plaintiff Tan Flodin’s motion to alter or amend
makes the following requests and the Court resolves each request as
follows:
(a) Defendant/Counter-plaintiff requests the 403 Manning Street real
estate be sold. This request is denied. The Court finds there was adequate
evidence to value it at trial and the Court does not feel it fair and equitable
to sell that property as opposed to letting the plaintiff retain her interest in
it.
(b) Mr. Flodin complains the actual value of the First Tennessee
Bank account number 9755 should be established as the value on the date
of trial and should be adjusted. The Court finds the evidence supports the
value of $64,000.00 which the Court assigned. This request is overruled.
(c) The Court is asked to change the value assigned to the 8.5
percent interest in the Greater Downtown Realty, LLC. The Court has
made a finding which is within the evidence and declines to alter or amend
this finding. This request is denied.
(d) Defendant/Counter-plaintiff seeks certain items of personal
property. He is awarded all of those requests except for the request for the
Lite Speed Titanium Mountain Bike.
Therefore, the defendant/counter-plaintiff’s motion is sustained in
part and denied in part as is that of the plaintiff.
Husband’s transitional alimony terminated in August of 2018. Husband timely appealed.
Discussion
Although not stated exactly as such, Husband raises the following issues on
appeal: 1) whether the Trial Court erred in valuing the marital property, specifically the
Manning Street property and the Greater Downtown Realty, LLC stock; 2) whether the
Trial Court abused its discretion by failing to distribute the marital property equitably;
and, 3) whether the Trial Court abused its discretion by failing to award Husband more
spousal support.
Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001). Insofar as the issues call for review of discretionary
decisions, we apply the abuse of discretion standard. “An abuse of discretion occurs
when the trial court causes an injustice by applying an incorrect legal standard, reaches
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an illogical result, resolves the case on a clearly erroneous assessment of the evidence, or
relies on reasoning that causes an injustice.” Gonsewski v. Gonsewski, 350 S.W.3d 99,
105 (Tenn. 2011). Regarding witness credibility, our Supreme Court has stated:
When it comes to live, in-court witnesses, appellate courts should
afford trial courts considerable deference when reviewing issues that hinge
on the witnesses’ credibility because trial courts are “uniquely positioned to
observe the demeanor and conduct of witnesses.” State v. Binette, 33
S.W.3d 215, 217 (Tenn. 2000). “[A]ppellate courts will not re-evaluate a
trial judge’s assessment of witness credibility absent clear and convincing
evidence to the contrary.” Wells v. Tennessee Bd. of Regents, 9 S.W.3d
779, 783 (Tenn. 1999); see also Hughes v. Metro. Gov’t of Nashville &
Davidson Cnty., 340 S.W.3d 352, 360 (Tenn. 2011). In order for evidence
to be clear and convincing, it must eliminate any “serious or substantial
doubt about the correctness of the conclusions drawn from the evidence.”
State v. Sexton, 368 S.W.3d 371, 404 (Tenn. 2012) (quoting Grindstaff v.
State, 297 S.W.3d 208, 221 (Tenn. 2009)). Whether the evidence is clear
and convincing is a question of law that appellate courts review de novo
without a presumption of correctness. Reid ex rel. Martiniano v. State, 396
S.W.3d 478, 515 (Tenn. 2013), (citing In re Bernard T., 319 S.W.3d 586,
596-97 (Tenn. 2010)), cert. denied, ––– U.S. ––––, 134 S. Ct. 224, 187
L. Ed. 2d 167 (2013).
Kelly v. Kelly, 445 S.W.3d 685, 692-93 (Tenn. 2014).
We first address whether the Trial Court erred in valuing the marital property,
specifically the Manning Street property and the Greater Downtown Realty, LLC stock.
In Neamtu v. Neamtu, No. M2008-00160-COA-R3-CV, 2009 WL 152540 (Tenn. Ct.
App. Jan. 21, 2009), no appl. perm. appeal filed, this Court discussed our standard of
review with respect to the valuation of marital assets. We stated:
Once property has been classified as marital property, the court
should place a reasonable value on property that is subject to division.
Edmisten v. Edmisten, No. M2001-00081-COA-R3-CV, 2003 WL
21077990, at *11 (Tenn. Ct. App. May 13, 2003). The parties have the
burden to provide competent valuation evidence. Kinard v. Kinard, 986
S.W.2d 220, 231 (Tenn. Ct. App. 1998). When valuation evidence is
conflicting, the court may place a value on the property that is within the
range of the values presented. Watters v. Watters, 959 S.W.2d 585, 589
(Tenn. Ct. App. 1997). Decisions regarding the value of marital property
are questions of fact, Kinard, 986 S.W.2d at 231; thus, they are not second-
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guessed on appeal unless they are not supported by a preponderance of the
evidence. Smith, 93 S.W.3d at 875.
Neamtu, 2009 WL 152540, at *4.
The Trial Court adopted Wife’s value of the Manning Street property of $620,000.
Husband suggests it should be valued above $720,000, but that the better solution would
be to list the home for sale to determine its fair market value. In this fashion, according
to Husband, “Wife could retain a first right of refusal for any offer and could buy
Husband out of his portion of the home once the fair market value is determined on the
open market.”
Husband also cites alleged problems with the testimony of Wife’s expert witness,
the real estate agent Hite. Husband states that Hite’s qualifications are suspect because
he is a real estate agent, not an appraiser. Husband also alleges that Hite is biased
because he is Wife’s colleague at Greater Downtown Realty and did not even charge
Wife for his appearance. Finally, Husband points out an inconsistency between the $150
per square foot value used by Hite for the Manning Street property with the $250 per
square value used when the parties stipulated the value of the Beck home. We address
each separate argument.
The Trial Court stated that it took into account the fact that Hite is a real estate
agent and not an appraiser. The Trial Court reckoned with this when weighing the
evidence. Hite also thoroughly explained his background and methods. In our view, the
Trial Court sufficiently considered Husband’s concerns about Hite’s qualifications. As to
Hite’s alleged bias in Wife’s favor, Husband has cited no law reflecting that an expert
witness’s testimony should be discounted totally because that expert is a colleague of the
party calling the expert to testify. The Trial Court found Hite to be credible. Husband’s
allegations of Hite’s bias are too ethereal and lack a concrete basis and do not rise to a
level sufficient to allow us to substitute our credibility determination for those of the Trial
Court as to Hite. Regarding the inconsistency between the value per square foot of the
Manning Street property and the Beck home, Husband states only that the inconsistency
is inappropriate because “the two homes [are] similarly situated.” However, exactly what
that means is unclear. Husband fails to adequately explain why it is necessary to apply
the same value per square foot for each property. Husband has not pointed to any
evidence in the record contradicting Wife’s valuation evidence. Instead, Husband
attempts only to poke holes in Hite’s testimony. We find no merit in Husband’s
arguments. The Trial Court had a sufficient evidentiary basis upon which to value the
Manning Street property at $620,000 as this value was within the range presented to the
Trial Court, and the evidence does not preponderate otherwise as to this finding.
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Next, Husband disputes the value adopted as to Wife’s 8.5% interest in Greater
Downtown Realty, LLC. Wife placed her stock’s overall value at $134,400. Husband
argues the better and more recent evidence comes directly from Carlton, the person
handling company finances. Carlton placed the stock’s worth at $150,365. Thus, two
competing values were put forward in evidence, and the Trial Court adopted Wife’s
value. The Trial Court, again, had a sufficient evidentiary basis upon which to adopt this
figure which was within the range of the values presented, and the evidence does not
preponderate against this finding. For perspective, Wife observes that this is a dispute
over around 2% of the net marital estate. We find no reversible error in the Trial Court’s
valuation of marital assets.
We next address whether the Trial Court abused its discretion and did not
distribute the marital property equitably. Husband argues that the Trial Court overlooked
key factors in dividing the marital estate 62% to 38% in favor of Wife. Husband asserts
that a division closer to 50/50 is in order. A trial court has wide discretion in dividing the
interest of the parties in marital property. Barnhill v. Barnhill, 826 S.W.2d 443, 449
(Tenn. Ct. App. 1991). Our Supreme Court has instructed:
[M]arital property must be divided equitably between the parties based on
the relevant factors enumerated in Tennessee Code Annotated section 36-4-
121(c) without regard to fault on the part of either party. Tenn. Code Ann.
§ 36-4-121(a)(1). Section 36-4-121(a)(1) requires an equitable division of
marital property, not an equal division. Robertson v. Robertson, 76 S.W.3d
337, 341 (Tenn. 2002).
Larsen-Ball v. Ball, 301 S.W.3d 228, 231 (Tenn. 2010) (emphasis in original).
Husband cites language from two factors as being especially relevant here. First,
Husband cites “[t]he age, physical and mental health, vocational skills, employability,
earning capacity, estate, financial liabilities and financial needs of each of the parties.”
Tenn. Code Ann. § 36-4-121(c)(2) (2017). Husband also cites “[t]he relative ability of
each party for future acquisitions of capital assets and income.” Tenn. Code Ann. § 36-4-
121(c)(4) (2017).
There is no doubt that Husband, as the Trial Court found, is economically
disadvantaged relative to Wife. Husband, lacking a college education and out of the
workforce for years by his choice, will be unlikely to match Wife in financial terms. This
would tend to support a division of the marital estate closer to 50/50 as Husband requests.
However, the Trial Court clearly placed significant weight on another factor:
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The contribution of each party to the acquisition, preservation, appreciation,
depreciation or dissipation of the marital or separate property, including the
contribution of a party to the marriage as homemaker, wage earner or
parent, with the contribution of a party as homemaker or wage earner to be
given the same weight if each party has fulfilled its role;
Tenn. Code Ann. § 36-4-121(c)(5)(A) (2017).
While Husband was employed earlier in the marriage, his contributions after 2009
were minimal at best. Husband protests that he did make significant contributions to the
real estate business, but the Trial Court did not credit his testimony and found otherwise.
Instead, the Trial Court credited the testimony of other witnesses, most notably Wife,
who testified as to Husband’s leisurely lifestyle in the back half of the marriage. The
Trial Court found further that Husband’s health problems would not prevent him from
working. To reiterate, after 2009, Husband neither fulfilled homemaking responsibilities
nor held a job. The 62/38 division of the marital estate reflects Wife’s overwhelming role
in growing the parties’ assets in contrast with Husband’s chosen leisurely lifestyle from
2009 onward. Although not an equal division, we cannot say it was not an equitable
division considering all relevant factors. We find no abuse of discretion in the Trial
Court’s division of the marital estate.
The final issue we address is whether the Trial Court abused its discretion by
failing to award Husband more spousal support. The Trial Court awarded Husband
$2,000 per month in transitional alimony for a maximum period of six months or until the
Beck lot was sold. In his brief, Husband requests $2,000 per month in transitional
alimony for a period of 60 months.
Concerning the existing preference toward rehabilitative or transitional alimony in
Tennessee, our Supreme Court has discussed:
Tennessee statutes concerning spousal support reflect a legislative
preference favoring rehabilitative or transitional alimony rather than
alimony in futuro or in solido. See Tenn. Code Ann. § 36-5-121(d)(2)-(3);
Gonsewski, 350 S.W.3d at 109. Not even long-term support is a guarantee
that the recipient spouse will be able to maintain the same standard of
living enjoyed before the divorce because “two persons living separately
incur more expenses than two persons living together.” Gonsewski, 350
S.W.3d at 108 (quoting Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct.
App. 1998)). Although the parties’ standard of living is a factor courts
must consider when making alimony determinations, see Tenn. Code Ann.
§ 36-5-121(i)(9), the economic reality is that the parties’ post-divorce assets
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and incomes often will not permit each spouse to maintain the same
standard of living after the divorce that the couple enjoyed during the
marriage. Gonsewski, 350 S.W.3d at 113. Decisions regarding the type,
length, and amount of alimony turn upon the unique facts of each case and
careful consideration of many factors, with two of the most important
factors being the disadvantaged spouse’s need and the obligor spouse’s
ability to pay. Id. at 109-10.
Mayfield v. Mayfield, 395 S.W.3d 108, 115-16 (Tenn. 2012).
In addition to arguing that the Trial Court failed to consider his need and Wife’s
ability to pay, Husband also challenges the Trial Court’s conclusion that he did not incur
an economic detriment for the benefit of the marriage. Tenn. Code Ann. § 36-5-121
provides:
The general assembly finds that the contributions to the marriage as
homemaker or parent are of equal dignity and importance as economic
contributions to the marriage. Further, where one (1) spouse suffers
economic detriment for the benefit of the marriage, the general assembly
finds that the economically disadvantaged spouse’s standard of living after
the divorce should be reasonably comparable to the standard of living
enjoyed during the marriage or to the post-divorce standard of living
expected to be available to the other spouse, considering the relevant
statutory factors and the equities between the parties.
Tenn. Code Ann. § 36-5-121(c)(2) (2017).
Husband’s additional arguments track the following statutory factors that courts
consider in alimony matters:
(3) The duration of the marriage;
***
(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;
***
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(11) The relative fault of the parties, in cases where the court, in its
discretion, deems it appropriate to do so; . . .
Tenn. Code Ann. § 36-5-121(i) (3), (8), (9) & (11) (2017).
Husband contends he needs more alimony on these bases: (1) the 16-year length of
the marriage; (2) he received only 38% of the marital estate; (3) reasons of health; and (4)
Wife kissed another man shortly before filing for divorce, she thus was “directly
responsible for the dissolution of the marriage.” Husband’s economic disadvantage
relative to Wife is apparent. In many instances, a discrepancy in abilities to earn such as
that seen here, and, in a marriage of such duration, might well justify a more extensive
award of alimony. However, given the Trial Court’s credibility determinations and its
resulting findings of fact, this is not such an instance.
Husband, after 2009, neither was a homemaker nor wage earner. Beyond that
point, he suffered no economic detriment for the benefit of the marriage. His
contributions were, as found by the Trial Court, “minimal.” Wife urged Husband to get a
job or earn his GED, but he would not. Wife, meanwhile, works 10 to 12 hours days 7
days a week in the real estate business. Wife also performed the vast majority, if not all,
of the work around the home. Husband, by contrast, pursued leisurely activities in lieu of
working. This consisted in large measure of playing video games for hours on end while
leisurely meandering through his days. Wife already has sustained Husband in his leisure
for years. To put it mildly, Husband is not a quintessential candidate for alimony.
And yet, the Trial Court did not deny Husband alimony altogether; it merely
limited its amount and duration. In addition, Husband has a home and roughly 38% of a
net marital estate worth $940,113. As found by the Trial Court, Husband has the capacity
to earn $37,500 per year notwithstanding his health problems. Husband is not being left
destitute. The cord of dependency on Wife, however, is being cut. The Trial Court
considered the statutory framework on alimony in exercising its discretion. We discern
no abuse of discretion or other error. We affirm the judgment of the Trial Court in its
entirety.
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Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Tan Scott Flodin, and his surety, if any.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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