Una P. Irvin v. Ernest J. Irvin, II ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 28, 2012 Session
UNA P. IRVIN v. ERNEST J. IRVIN, II
An Appeal from the Circuit Court for Montgomery County
No. DV 09-0084 John H. Gasaway, III, Judge
No. M2011-02424-COA-R3-CV - Filed November 30, 2012
This is the second appeal in this divorce case. During the parties’ ten-year marriage, they
had two children. The husband served in the military, stationed in several different places.
Eventually the family moved to Tennessee, where the wife worked part-time and took care
of the children while the husband was deployed. Just after the husband returned from his
deployment, the wife filed a petition for divorce, and the husband filed a cross-petition. The
parties reached an agreement on property issues, but no others. After a trial, the trial court
entered a final decree, found the husband at fault for the demise of the marriage, and granted
the wife a divorce. The final decree designated the wife as the children’s primary residential
parent, awarded the wife rehabilitative alimony, and divided the marital estate in accordance
with the parties’ agreement. The husband filed the first appeal. The appellate court dismissed
the first appeal for lack of a final order and remanded the case for resolution of several
issues. After a post-remand hearing, the trial court entered an order mostly reaffirming its
initial decision. However, in light of the wife’s post-remand admission of infidelity during
the marriage, the trial court declared the parties to be divorced, rather than granting the wife
a divorce. The husband again appeals, challenging the trial court’s failure to find the wife
at fault for the demise of the marriage, its designation of the wife as the children’s primary
residential parent, the award of rehabilitative alimony, the property division, and the award
of attorney fees in favor of the wife. We modify the award of alimony, but otherwise affirm
the decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is
Modified in Part, Affirmed as Modified, and Remanded
H OLLY M. K IRBY, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J., and
J. S TEVEN S TAFFORD, J., joined.
Donald Capparella, Nashville, Tennessee, for the Defendant/Appellant Ernest J. Irvin, II1
Lawrence J. Kamm, Nashville, Tennessee, for the Plaintiff/Appellee Una P. Irvin 2
OPINION
Background 3
On December 28, 1999, Plaintiff/Appellee Una P. Irvin (“Wife”) and Defendant/Appellant
Ernest J. Irvin, II (“Husband”) were married in Fayetteville, North Carolina. Two children
were born to the marriage — a daughter, born in September 2001, and a son, born in
November 2003. At the time of the first trial, Husband was 37 years old, and Wife was 33
years old. Wife graduated from East Carolina University in 2000 with a degree in family
community services. Wife is a licensed real estate agent, but at the time of trial, she was not
actively pursuing a career in real estate. Husband has a degree in science and economics.
He is a Major in the United States Army and has over nineteen years’ of military experience.
During the parties’ marriage, Husband was deployed many times, including five deployments
to Iraq, two to Afghanistan, and one to Kosovo and Bosnia. During the time period in
question, the family lived in Clarksville, Tennessee.
On January 21, 2009, after nine years of marriage, Wife filed a complaint for divorce in the
Circuit Court of Montgomery County. On February 3, 2009, Husband filed his answer and
a counter-complaint for divorce.
After the parties filed for divorce, they initially continued to live together in the marital
residence in Clarksville. This did not last long. On February 19, 2009, Wife filed a motion
seeking exclusive possession of the marital residence. On the same day, Wife filed her
answer to Husband’s counter-complaint for divorce, along with a sworn income and expense
statement. Husband opposed Wife’s motion for exclusive possession of the marital residence
and also filed his own income and expense statement.
On February 26, 2009, the trial court conducted a hearing on Wife’s motion for exclusive
possession of the marital residence. After the hearing, the trial court filed an order awarding
1
Husband’s appellate counsel did not represent him in the trial court below.
2
Wife’s appellate counsel did not represent her in the trial court below.
3
The background facts are taken from our opinion in the first appeal in this matter. See Irvin v. Irvin, No.
M2010-01962-COA-R3-CV, 2011 WL 2436507 (Tenn. Ct. App. June 15, 2011).
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Wife $2,500 per month in temporary spousal support.4 Because the parties and their children
were all still residing in the marital residence, the trial court saw no need for a temporary
parenting plan at that time. It denied Wife’s motion for exclusive possession of the marital
residence, in light of the fact that no physical violence had occurred and the parties were
occupying separate areas within the marital residence. The trial court found that the parties’
arrangement, with Husband living in the finished basement, had “worked well.” Husband
was allocated one hour per day of uninterrupted time with the children.
After the trial court denied Wife’s request for exclusive possession of the marital residence,
Wife told her father, Jess Thompson, that she was afraid of Husband and was scared that he
would “snap.” As Husband had no history of violence toward Wife, her fears were
apparently based on her perception that other military personnel were returning from
deployment with “post-traumatic stress.” Acting on Wife’s concerns, on March 19, 2009,
Wife’s father Jess Thompson filed a Congressional Inquiry on Husband with the office of
United States Senator Saxby Chambliss. The Inquiry asserted that Husband was “abusive
to the point of perhaps killing [Wife] and/or his children.” As a result of these allegations,
on March 24, 2009, a military order was entered, presumptively removing Husband from the
marital home, pending completion of an investigation. As a precautionary measure, a
mandatory 72-hour no-contact military order was entered, and Husband’s battalion
commander escorted him from the marital home.
The ensuing military investigation determined that there was no basis for the charges in the
Congressional Inquiry filed by Wife’s father. The record contains no evidence that Husband
suffers from post-traumatic stress disorder (“PTSD”), or that he has any tendency toward
violence. Despite this, Husband’s commander suggested that he not return to the marital
home to prevent escalation of the parties’ situation. Later, Husband was transferred by the
Army to a new duty station in Alabama. Wife remained in the marital home in Clarksville.
On March 13, 2009, Husband filed a proposed permanent parenting plan with the trial court.
Husband’s proposed plan designated him as the children’s primary residential parent. On
March 31, 2009, Husband filed a motion asking the trial court to enjoin Wife from
“continuing to make spurious allegations to the Husband’s Chain of Command and/or
Department of the Army.” That same day, Husband filed a separate motion asking the trial
court to adopt his proposed temporary parenting plan, pendente lite, based on Wife’s
misbehavior. Husband alleged that Wife had spoken ill of him in front of their children and
that she did not facilitate Husband’s relationship with the children.
4
Although the hearing was held on February 26, 2009, the order was not entered until December 7, 2009. The
record does not indicate the reason for the delay in entry of this order.
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Wife opposed Husband’s request for injunctive relief and specifically refuted Husband’s
allegations. On April 29, 2009, Wife filed her own proposed temporary parenting plan, in
which she sought to be designated as the primary residential parent. She also alleged that
Husband was controlling to the point of being abusive.
On May 11, 2009, Husband filed another motion, this one asking the trial court to allow him
to have the minor children evaluated by an expert of Husband’s choosing. Wife opposed this
motion as well.
On May 29, 2009, the trial court conducted a hearing on the pending motions. On June 29,
2009, it entered an order denying Husband’s motion to have the children evaluated by
Husband’s expert, and rejected his proposed temporary parenting plan. It did not expressly
address Husband’s request for injunctive relief. The trial court appointed Dr. Janie Berryman
to independently evaluate the children, and it appointed a guardian ad litem for the children
as well. The order designated Wife as the primary residential parent, pendente lite, and
awarded Husband alternate residential parenting time. The June 29, 2009 order is sparse on
findings of fact, but nevertheless stated:
The Court has considered the relevant factors enumerated in [Tennessee Code
Annotated §] 36-6-404 and finds, for the most part, that the parties are equally
weighted with regard to these factors. The Mother, however, has been the
primary caregiver for the minor children for the majority of their li[ves] as
Father has chosen, through his employment, to be away from his children the
majority of their li[ves]. Additionally, the children have resided here in
Clarksville for five years and the Court finds that it is not in their best interest
to relocate with father to the state of Alabama at this time. . . . The Court finds
that the Father should have access to the children at all reasonable times for
visitation prior to his relocation to Alabama.
On July 28, 2009, the parties engaged in mediation that was partially successful. The
mediator’s report, filed on July 31, 2009, indicated that the parties had reached a partial
agreement as to the property settlement, but that they could not agree on a parenting plan.
The parties filed a Memorandum of Understanding, or mediation agreement, and later a
Stipulation on how their settlement should be implemented.5
5
The Stipulation in the record had no date stamp, but the trial court referred to it having been “filed with the
Court on September 14, 2009.” For purposes of our analysis, we consider the Stipulation as “a valid part of
the appellate record . . . .” Irvin, 2011 WL 2436507, at *6.
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The trial on the issues of alimony, child support, and the parenting plan was conducted on
September 23, 24, and 28, 2009. At the close of the proof, the trial court made some findings
in a bench ruling. However, the final decree was not entered until May 27, 2010. Notably,
the trial court’s oral rulings at the conclusion of the trial were not incorporated by reference
into this final decree. Meanwhile, much had occurred between the time the oral ruling was
announced and the time the decree of divorce was entered.
On March 26, 2010, Husband filed a motion asking the trial court to enforce the parties’
mediation agreement, and also to enter a written order from the September 2009 trial.
Husband asserted that, despite the parties’ agreement that Wife would receive the marital
home and make the mortgage payments on it, she was 120 days in arrears in making those
payments. He asked the trial court to compel Wife to comply with the mediation agreement
and to make the mortgage payments, so as to avoid foreclosure on the home. Husband also
contended that Wife was refusing to comply with the trial court’s oral rulings, issued at the
conclusion of the September 28, 2009 trial, particularly the rulings related to Husband’s
alternate residential parenting time with the children.
On March 30, 2010, Wife filed her response to Husband’s motion, attaching a copy of the
Stipulation filed after the parties’ mediation. The Stipulation stated that Husband had agreed
to pay Wife “$42,500.00 as her share of the remaining assets, of which $2,500 has been
paid.” In reply, Husband filed a transcript of the trial court’s September 28, 2009 oral ruling.
On April 5, 2010, the trial court held a hearing on Husband’s motion, but did not resolve it.
Instead, the trial court set the case for further hearing, on April 27, 2010, to resolve all
outstanding issues.
On April 16, 2010, Husband filed a motion to clarify the record as to the Congressional
Inquiry filed by Wife’s father, asking the trial court to mark the Congressional Inquiry as
“Exhibit A,” because it was allegedly “considered and excluded by the court for reasons set
forth in the transcript.” Husband claimed in his motion: (1) “Counsel intended the
Congressional Inquiry to be marked for identification purposes only for the record”; (2)
“after the trial was over, Husband’s counsel was given back the Congressional Inquiry by a
courtroom officer”; (3) “Court had been adjourned”; and (4) “Counsel hereby requests that
the Court mark the attached as an exhibit that the Court excluded from evidence.”
On April 27, 2010, the trial court conducted the scheduled hearing to resolve all outstanding
issues. At the conclusion of the hearing, the trial court explained its view of the September
2009 oral ruling. It noted that the parties had agreed that Husband would pay Wife the sum
of $42,500 in cash by the end of September 2009 and observed that Husband had in fact not
done so. Consequently, the trial court reiterated that Husband was required to pay Wife
$42,500 in cash in accordance with their agreement, plus 10% interest accruing from
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September 30, 2009. Addressing Husband’s motion to clarify the record as to the
Congressional Inquiry, the trial court granted Husband’s motion from the bench and marked
the Congressional Inquiry for identification purposes only. However, there is no written
order in the appellate record adjudicating Husband’s motion to clarify.
A new development occurred shortly after this hearing. After Husband had spent some
parenting time with the parties’ children and returned the children to Wife’s home, Wife,
representing herself and without assistance of counsel, went to the General Sessions Court
of Montgomery County, Tennessee, and filed a new action against Husband. Wife gave no
notice to either Husband or his counsel of the new General Sessions Court proceedings.
Wife also failed to inform the General Sessions Court of the divorce proceedings that
remained pending in the Circuit Court. At the time, the Circuit Court had not yet entered the
final decree of divorce.
In the General Sessions pleadings she filed, Wife asserted that, during his most recent
parenting time with the parties’ children, Husband had choked the parties’ six-year-old son.
On the basis of this claim, Wife sought an order of protection against Husband, pursuant to
Tennessee Code Annotated § 36-3-601, et seq. Based on Wife’s allegations, on May 5, 2010,
the General Sessions Court issued an order of protection against Husband, forbidding him
from having any contact with either Wife or the parties’ children. Meanwhile, under the
Circuit Court’s ruling in the divorce proceedings, Husband’s summer residential parenting
time was scheduled to begin shortly. Once Husband learned of the General Sessions order
of protection, he filed a motion in the General Sessions Court asking for dismissal of the
order.
At the hearing in the General Sessions Court on Husband’s motion to dismiss, the General
Sessions judge heard evidence that the physician who had examined the parties’ son
regarding Wife’s allegation had observed “no visible marks” on the child. This physician
opined that domestic abuse was not indicated. The local police department and the
Tennessee Department of Children’s Services were both notified of Wife’s allegations;
neither took any action. Wife testified at the General Sessions hearing. In addition to
testifying on her original allegations, Wife’s testimony included an additional allegation,
namely, that Husband had had inappropriate physical contact with the parties’ seven-year-old
daughter.
Ultimately, the General Sessions judge held that Wife’s allegations of child abuse and sexual
abuse against Husband were unfounded. The General Sessions judge concluded that Wife
had misled the General Sessions Court in order to obtain an order of protection against
Husband, and that her actions were taken for the improper purpose of circumventing the
Circuit Court’s order awarding summer residential parenting time to Husband. Directing her
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remarks at Wife, the General Sessions judge concluded: “I think this is clearly a case of you
trying to use these children against your ex-husband.” Based on this conclusion, the General
Session judge dismissed the order of protection and assessed costs against Wife.
After the General Sessions Court dissolved the order of protection, but before the Circuit
Court entered the final divorce decree, Husband filed an expedited motion in the Circuit
Court, asking the trial court to enforce its order awarding him summer parenting time.
Husband’s motion cited Wife’s actions in filing the General Sessions proceedings and
obtaining an ex parte order of protection; Husband asserted that Wife filed the General
Sessions action “for the improper purpose of circumventing this Court’s recent final decree
of divorce.” In response, Wife filed a pro se pleading in which she attempted to explain the
ex parte order of protection. In this response, Wife again recited her belief that Husband was
suffering from PTSD. She asserted, without citing any proof, that Husband “will continue
to hurt not only his children, [but also] myself given the chance,” as well as “others around
him.”
On May 27, 2010, the trial court entered its written order from the September 2009 and April
27, 2010 hearings, including the parties’ final decree of divorce. In relevant part, the order
stated:
[T]he Court finds as follows:
1. . . . [T]hat the Husband is guilty of inappropriate marital conduct and that
in weighing his conduct against that alleged of the Wife, the Court finds that
his conduct preceded and was more egregious and damaging to the marriage
and therefore, the Husband’s Petition for Divorce is dismissed and the Wife
is awarded a divorce on the grounds of inappropriate marital conduct.
2. That the Court adopts and incorporates the Memorandum of Understanding
entered into between the parties in mediation dated July 28, 2009 (exhibit A)
into this Final Decree as resolving by agreement, many property issues
between the parties.
3. That the Court considered the relative factors set out in T.C.A. 36-6-404
wherein the Court found that the majority of the factors listed weighed equally
on the part of the Mother and Father with regard to determining a parenting
plan, however, the Court finds that the Mother has been the primary caregiver
for the minor children for the majority of their li[ves] and has exercised a
greater responsibility for caring for the children’s daily needs due to the
Father’s numerous and lengthy deployments through his military service.
Further, the court finds that these children have lived in Clarksville, Tennessee
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in a very stable and satisfactory environment for a significant period of their
lives and that the Father will be moving at least one more time through his
military service within a year of the date of the final decree. Considering all
of the factors, the Court finds that the Wife, Una P. Irvin, should be the
primary residential parent of the parties’ minor chil[dren] . . . .
4. That the parenting plan submitted by the Wife took into account more
realistically than the parenting plan submitted by the Husband the day-to-day
activities, given the distance between the parties. While the Court realizes that
there cannot be a parenting plan that pretends to give each of these parents
meaningful time on a day-to-day basis, there has to be every effort made so
that the Husband can have as much time with the children as possible. . . .
5. The Court orders that the Husband was to pay unto the Wife the sum of
$42,500.00 in cash for her interest in the remaining assets of the marriage and
for various and other sundry items stipulated between the parties and filed with
the Court on September 14, 2009 and enumerated to the Court on April 27,
2010. This cash payment to the Wife was due and payable by the end of
September, 2009. At that time, the Husband had paid $2,500.00. The
remaining balance of $40,000.00 accrued interest at 10% per annum beginning
October 1, 2009. The Husband paid an additional $5,000.00 on this judgment
on January 27, 2010, for which he will be given credit on the full judgment,
with interest, as of the date of that payment. The remaining balance will
continue to accrue interest at 10% [per] annum until paid in full by the
Husband. Additionally, the Husband will not be given credit against this
judgment for any mortgage payments he made after September 28, 2009 and
the remaining balance of $35,000.00 will continue to accrue interest at 10%
per annum.
6. The Court finds that the Wife is economically disadvantaged as opposed to
the Husband. The Court finds that the Wife wants to attend and complete a
post graduate degree to better improve[] her earning capacity on the open labor
market and the Court finds that this plan is appropriate. Considering the
Income and Expense statements of both the Husband and the Wife, the cash
available to the Wife upon this Court’s ruling of $42,500.00 and the Wife’s
plan, the Court orders that the Husband shall pay rehabilitative alimony to the
Wife in the amount of $500 per month, beginning November 1, 2009 and
continuing on the first day of every month thereafter, for a period of 42
months.
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...
9. That the Court approved the attorneys fees of the Wife’s counsel as
requested and awards a judgment to the Wife for [$]16,620.00 in attorneys fees
for which execution may issue.
Thus, the trial court determined that Husband was at fault for the demise of the marriage and
awarded the divorce to Wife based on Husband’s inappropriate marital conduct. The order
designated Wife as the children’s primary residential parent, awarded Wife $500 per month
in rehabilitative alimony for 42 months, and also awarded her $16,620 in attorney fees.
The parties’ mediation agreement was attached to the trial court’s order and incorporated into
it by reference. Pertinent to this appeal, the mediation agreement addressed the marital
residence, Husband’s military retirement, and the parties’ remaining retirement account:
1. The Wife shall receive all interest in the [marital residence], for which she
will be financially responsible. She shall refinance the mortgage or sell the
house within three years of the entry of the Final Decree of Divorce. As long
as the Husband is responsible on the mortgage, he shall have access to the
mortgage account, and if the mortgage becomes over sixty days in arrears, he
may make the delinquent payments, conditioned on the house being
immediately listed for sale, and that he will be reimbursed from the proceeds
of the sale for any payments that he makes.
2. The Husband shall receive either the IRA or the Thrift Savings Plan [“TSP”]
that is closest to the face balance of $36,000.00, as of the date of this
agreement. This is to equalize equity in the marital residence.
3. The Wife will receive twenty-five percent of the Husband’s military
retirement pension, based on a Major (04) with twenty years of service at
retirement. The Wife shall not receive any disability that does not offset
retirement, such as combat related disability.
4. The remaining retirement account not used to offset equity in the house
(IRA or TSP) shall be divided equally by Qualified Domestic Relations Order.
Paragraph five of the trial court’s order refers to the Stipulation signed by the parties and
filed with the court. The Stipulation states:
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1. That the parties have previously agreed to divide the marital estate, pursuant
to the Mediation Agreement;
2. In addition to receiving the marital home, two (2) vehicles, and the other
items in the [M]ediation [A]greement, the parties further agree that the WIFE
shall receive $42,500.00 as her share of the remaining assets, of which $2,500
has been paid.
Thus, the Stipulation referred back to the parties’ mediation agreement and the division of
the parties’ marital assets.
On June 25, 2010, Husband filed a motion to alter or amend the divorce decree, pursuant to
Rules 59 and 52.02 of the Tennessee Rules of Civil Procedure. Asserting “newly discovered
evidence,” Husband’s motion asked the trial court to amend the decree to designate Husband
as the children’s primary residential parent. Husband argued that Wife’s actions in obtaining
the ex parte order of protection in the General Sessions Court showed that Wife acted with
intent to obstruct Husband’s relationship with the parties’ children, and that the trial court
had erred in ignoring Wife’s previous attempts to do so. On this basis, Husband argued that
the trial court had erred in finding that Wife would facilitate and encourage a close and
continuing relationship between Husband and the children. Not surprisingly, Wife opposed
Husband’s motion to amend the decree.
On July 29, 2010, the trial court held a hearing on Husband’s motion to alter or amend. At
the hearing, the trial court noted that the events on which Husband based his motion had
occurred after the final hearing but before the trial court had entered its final decree. On this
basis, the trial court denied Husband’s motion to alter or amend. However, the trial court
advised counsel for Husband that Husband’s complaints about Wife’s behavior could be
raised in a petition to modify the final decree. After this, Husband then filed a notice of
appeal, seeking to appeal the trial court’s order on his motion to alter or amend, as well as
several other decisions made by the trial court.
On June 15, 2011, this Court issued a decision on Husband’s first appeal, determining that
the order from which Husband had appealed was not final, in that the trial court had never
entered a written order adjudicating Husband’s March 26, 2010 petition to enforce the
mediation agreement, i.e., the Memorandum of Understanding. Irvin, 2011 WL 2436507,
at *8. In its decision, the appellate court went on to describe other concerns about the trial
court’s orders, so as to avoid problems in the event that either party filed an appeal after
remand. Specifically, the appellate court noted that the trial court’s final decree was
ambiguous in light of “all of the permutations and possible interpretations of the court’s
order, the [M]emorandum of [U]nderstanding, and the ‘Stipulation,’ and specifically how
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these documents fit together to form the trial court’s decision.” Id. at *10-11. The appellate
court also noted that the trial court’s order did not include findings that were sufficient under
Rule 52.01 of the Tennessee Rules of Civil Procedure. Id. at *11-12. In addition, the
appellate court observed that, because the May 27, 2010 divorce decree was not a final order,
the issues raised in Husband’s motion to amend regarding Wife’s misconduct could have
been considered by the trial court in making its parenting decisions. For this reason, the
appellate court stated that the trial court could consider these issues on remand with respect
to the parties’ parenting arrangement. Thus, this Court dismissed Husband’s first appeal and
remanded the cause for further proceedings.
On August 19, 2011, after the case was remanded, Husband filed a motion in the trial court
pursuant to Rules 52.01 and 52.02 of the Tennessee Rules of Civil Procedure. The motion
asked the trial court to enter findings of fact, to consider new evidence, and to enter a final
decree of divorce. In light of the delay in entering a written divorce decree and the time
spent on the first appeal, the hearing on Husband’s Rule 52 motion was held almost two
years after the initial divorce trial, on September 7 and 29, 2011. At the hearing, Husband
asked the trial court to permit him to introduce evidence on a host of issues, including Wife’s
infidelity, the parties’ parenting arrangement, rehabilitative alimony, and the division of
marital assets. After considering this request, the trial court decided to consider only
evidence of events that had occurred after the September 2009 hearing, and added that any
evidence had to be “relevant, admissible evidence on an issue that is unresolved.” 6 With that
proviso, the trial court heard testimony from various witnesses.
At the post-remand hearing, Husband first submitted evidence that, contrary to her denials
at the divorce trial, Wife had in fact committed adultery during the marriage. Husband sought
to establish that Wife was not a credible witness, had lied to the trial court at the divorce trial,
and that Wife, and not Husband, was at fault for the parties’ divorce. As an offer of proof,7
Husband introduced the testimony of Wife’s paramour, David Wellette (“Mr. Wellette”). At
the September 2009 divorce trial, Wife had flatly denied any infidelity, and specifically
denied having a sexual relationship with Mr. Wellette, describing him as merely a “very good
6
The trial court made clear its opinion that the appellate court’s decision in the first appeal merely suggested,
and did not mandate, a new hearing on remand on the designation of the primary residential parent. After
reading the appellate court opinion, the trial judge stated: “[T]he comment that [the appellate court] made
that that issue is within the bosom of this court is not a mandate. It sounds more like just commentary on
the part of that court . . . . [I]f the appellate court wanted the trial court to make a finding of fact and
conclusion of law with regard to who the primary residential parent should be, it should have told the trial
court to do that.”
7
The trial court initially declined to permit Wellette’s testimony, but then permitted Husband to submit it as
an offer of proof.
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friend.” At the September 2011 post-remand hearing, however, Mr. Wellette testified that
he and Wife began a sexual relationship in November or December of 2008, before Wife
filed for divorce, and that it lasted for six to eight months. Their sexual encounters occurred,
he said, at his house, at her house, and at a hotel. Asked whether the parties’ children were
ever present when he and Wife spent the night together, Mr. Wellette responded that the
children “may have been in another room, but I wasn’t sure.”
Husband also submitted evidence on the parties’ comparative fitness to be designated as the
children’s primary residential parent. He submitted evidence that, at the time of the post-
remand hearing, Wife was romantically involved with Joseph Smith (“Mr. Smith”), whom
Husband claimed was not a positive influence on the parties’ children. Brenda Fauth (“Ms.
Fauth”), Wife’s next-door neighbor, friend, and former business partner, testified regarding
her concerns about Wife’s relationship with Mr. Smith. She recounted one incident in April
2010 in which Wife went out drinking with Mr. Smith, overslept the next morning, and
ultimately did not take the children to school that day. Ms. Fauth said that Wife no longer
allowed the parties’ children to associate with Ms. Fauth’s three children, because Ms. Fauth
had cautioned Wife against a romantic relationship with Mr. Smith. In contrast, Ms. Fauth
said that Husband encouraged a relationship between the parties’ children and the Fauth
children. Ms. Fauth and her husband, Jason Fauth, both testified that during the summer of
2011, while the children were with Husband in Alabama, it appeared that Wife did not live
in the marital residence. During the remainder of the year, they said, Mr. Smith’s vehicle
was “[m]ore often than not” parked at Wife’s home in the mornings, often three or four times
a week.
Ms. Fauth testified that, during the pendency of the parties’ divorce, she and Wife had co-
owned a business called the Pottery Room, a paint-it-yourself ceramic studio. Ms. Fauth said
that the business was started with $35,000 of Ms. Fauth’s money. Shortly before the
September 2009 divorce trial, however, Wife transferred her interest in the Pottery Room
back to Ms. Fauth, for no consideration. Since the September 2009 divorce trial, Ms. Fauth
testified, she had loaned Wife about $8,000 to pay the mortgage on the marital residence.
Mr. Smith testified at the hearing and corroborated Husband’s assertion that he and Wife
were romantically involved. He described himself as Wife’s boyfriend, and he estimated that
they had been together less than six months. Mr. Smith claimed that he had spent the night
at Wife’s house only once. Mr. Smith, 27 years old at the time of the hearing, testified that
he had three children from two previous relationships; he claimed that he financially
supported all three of his children. He said that he is “always with Mrs. Irvin and my child
[from a previous marriage]. . . . [W]e always act as a family basically because we’re trying
to start a relationship.” During the summer of 2011, Mr. Smith acknowledged, Wife spent
the night with him sometimes, but he could not recall how many times. He admitted that in
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September 2010, a charge of domestic abuse was filed against him by a previous girlfriend,
and in November 2010, he was charged with driving while under the influence of alcohol.
Mr. Smith asserted that the domestic abuse charge was dismissed and expunged from his
record.8
Husband also testified at the hearing. In his testimony, Husband submitted a proposed
division of the parties’ marital assets and testified about the value of the property listed.
Husband stated that, after he moved out of the marital residence in March 2009, but before
the September 2009 divorce trial, he paid a total of $12,501 in mortgage payments. After the
September 2009 trial, he noted, the trial court awarded Wife the marital residence and the
accompanying debt. After that, Husband stated, Wife routinely fell behind in making the
mortgage payments, and because he remained on the mortgage, her failure to pay timely
adversely affected Husband’s credit rating. He paid the mortgage in October 2009, and then
again in February 2010; by that time, the mortgage was over 120 days in arrears. Based on
Wife’s history of not paying the mortgage, in his proposed division of marital assets,
Husband requested that the marital home be sold. Husband’s proposed division of marital
assets also listed Wife’s one-half interest in the Pottery Room as a $17,500 marital asset;
Husband contended that Wife acquired her interest in the business during the parties’
marriage, so it should be subject to equitable division.
Husband also testified about the aftermath of the trial court’s award of rehabilitative alimony
to Wife. In the September 2009 divorce trial, Wife had told the trial court that she intended
to go back to school. Husband said that, pursuant to the trial court’s order, he had been
paying Wife $500 per month in rehabilitative alimony. However, she did not go back to
school as she represented to the trial court. For that reason, Husband asked the trial court to
reverse the award of rehabilitative alimony and to recharacterize the amount that Husband
had already paid to Wife as her marital property.
Husband also testified that he should be designated the children’s primary residential parent
instead of Wife, because he would better facilitate the children’s relationship with the other
parent. As an exhibit at the hearing, Husband filed a transcript of the General Sessions Court
hearing on Wife’s ex parte request for an order of protection. Even after the General
Sessions order of protection was dissolved, Husband asserted, Wife nevertheless filed the
defunct order of protection with the children’s school; Husband discovered this to his dismay
about a year later when he went to the children’s school to have lunch with them. Husband
testified about Wife’s more recent acts of obstruction, such as Wife being “periodically late
at pickup and drop-off” and having the children attend other events during his parenting time
when he visits them in Clarksville. When he spends parenting time with the children in
8
The expunged records were not admitted into evidence at trial.
-13-
Clarksville, Husband complained, “there’s always something they have to do. There’s
always some birthday party or some function that they must attend.” Husband also claimed
that Wife sometimes did not allow the children to talk to him on the telephone. Although he
calls and leaves messages for the children, Husband stated, he is “lucky if [he] talk[s] to them
once a week.” In contrast, when the children are with Husband, he asks every day if they
want to call their mother.
Husband also asserted that it was in the children’s best interest to live primarily with him,
because he understands what they need to be successful, and because he is the better
disciplinarian. Husband explained that the children “need a father figure in their life that’s
a responsible adult that understands right and wrong . . . .” Husband told the trial court that
he had chosen a school for the children in Alabama, and said that they have made friends
there.
Finally, Wife testified at the post-remand hearing. She admitted that, at the September 2009
divorce trial, she had lied when she denied having had a romantic relationship with Mr.
Wellette, and she conceded that she did in fact have an extramarital affair with him. Wife
claimed that she was unsure when the relationship started, but asserted that it lasted for only
three months. Nevertheless, she maintained that Husband was at fault for the demise of the
parties’ marriage. In light of Wife’s admission, however, the proposed findings of fact and
conclusions of law Wife submitted for the post-remand hearing indicated her position that
neither party should be adjudged at fault for the demise of the marriage.
At the time of the post-remand hearing, Wife was working a temporary, hourly-wage job.
Her gross income at the temporary job was $730.82 per month. Wife held a second job at
a retail store, also hourly wage, earning $8.58 per hour. She was asked whether she had
made any attempt to attend school since the September 2009 divorce trial. Wife responded
that she had not obtained any further education, explaining that after the trial she “looked into
it and realized at that time that I couldn’t do it because of all the legal stuff that was
continuing to go on.” Wife testified that she was planning to return to real estate business
at some point, so long as it did not interfere with her children’s schedule. As to the Pottery
Room business, Wife testified that she and Brenda Fauth had been equal partners in the
business, and that Ms. Fauth had contributed $35,000 to start the business. Wife explained,
however, that as of the time of the hearing, she had given her one-half interest back to Ms.
Fauth.
Wife testified that after the 2009 divorce trial, the trial court’s decision to designate her as
the children’s primary residential parent was the right decision. She said that, in her care, the
children were thriving and doing well in school, and that they liked their classmates and
teachers. She claimed that Husband did not exercise all of his allotted parenting time with
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the children; he had given up his Fridays on the first weekend of every month if he had just
previously seen the children. When he does travel to Clarksville, Wife stated, she allows
Husband to spend extra time with the children. Wife denied Husband’s assertion that she is
late picking up the children on a regular basis, and said that she calls or texts Husband
whenever she is going to be late.
Wife complained that Husband is not easy to work with, and that he does not give her
sufficient notice when he plans to come into town to spend time with the children. Wife
claimed that, when the children are with Husband, she does not often get to talk to the
children, “maybe twice a week and that’s it.” On the other hand, when the children are at
home with Wife, Husband speaks to them “about every other day” because Husband calls
“sometimes twice a day.”
In her testimony, Wife indicated that she intended to continue her relationship with Joseph
Smith. She described him as a “good role model” for her children and “a good person.”
Wife claimed, “Now, my children are happier than they have been in years. And a lot of that
has to do with the fact that Mr. Smith is a good person and he is a positive role model in their
lives.” She conceded, however, that the children’s happiness was due in part to her telling
the children that she was “going to do [her] best to have more of a positive relationship with
their father . . . .”
Wife claimed that, as soon as she discovered that the General Sessions order of protection
was still on file at the children’s school, she had it removed from the children’s school
records. She asserted that Husband’s claim that he was prevented from seeing the children
at school was simply not true.
Wife was asked about her consistent claim that Husband posed a threat to her or the children.
She responded, “I think he is going to snap if he doesn’t get his way. . . . I believe he suffers
from PTSD, and I do believe that, yes, he will snap one day. And what he will do once he
snaps, I don’t believe that it’s going to be pretty.” Wife explained that she nevertheless
continues to foster Husband’s relationship with the children because, while she continues to
believe that he needs counseling for anger management, she also “believe[s] that . . . the good
in him is going to come out.” Wife admitted that, despite the fact that the Tennessee
Department of Children’s Services was notified of her allegations in the proceedings in
General Sessions Court, the Department took no action against Husband. This concluded the
evidence presented at the post-remand hearing.
At the conclusion of the post-remand hearing, the trial court issued a comprehensive oral
ruling resolving most, but not all, of the issues presented. After Wife filed a motion noting
that some issues had not been resolved, on October 31, 2011, the trial court issued additional
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oral rulings on the remaining issues. Later that same day, the trial court entered a written
Final Decree, memorializing all of its oral rulings.
In the Final Decree, the trial court declared Husband and Wife to be divorced pursuant to
Tennessee Code Annotated § 36-4-129, assigning fault to neither party. The testimony of
Wife’s paramour, Mr. Wellette, was excluded and treated solely as an offer of proof.
Attached to the order were worksheets detailing the trial court’s division of the marital
property; the order directed that the marital home be sold and that the proceeds be divided
between the parties. The trial court rejected Husband’s request for an award or adjustment
in the division of the marital estate in the amount of mortgage payments and utility bills that
he paid after he left the marital home, except that the trial court allowed him to recover the
two payments made in October 2009 and February 2010.
The trial court did not significantly change the parenting arrangement set forth in the May
27, 2010 decree. Wife remained designated as the children’s primary residential parent,
although the Final Decree stated that Husband should “have as much time with the children
as possible.” The trial court attached a parenting plan to the Final Decree, allocating
Husband 114 days of alternate residential parenting time. Husband was ordered to pay Wife
$1,603 per month in child support based on his gross earning capacity of $9,065.34 per
month.
In the Final Decree, the trial court also reaffirmed its award of rehabilitative alimony to Wife
in the amount of $500 per month for 42 months, beginning November 2009. The trial court
found that “Wife is economically disadvantaged,” and that she “wants to attend and complete
a post graduate degree to better improve her earning capacity on the open labor market . . .
.” Finally, the trial court held that Wife’s original attorney fees of $16,620 plus her post-
remand attorney fees of $9,992.30 should be paid out of the marital estate.
Husband filed a motion for a stay of execution pending this appeal, which was granted by the
trial court. Husband now appeals the trial court’s Final Decree.
ISSUES ON A PPEAL AND S TANDARD OF R EVIEW
Husband raises several issues on appeal:
1. Whether the evidence preponderates against the trial court’s finding that
Wife was the parent who would better facilitate a relationship with Husband,
and whether the children’s best interest would be served by designating Wife
the primary residential parent of the children?
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2. Whether the trial court abused its discretion in not finding Wife at fault for
the demise of the marriage’
3. Whether the trial court erred in awarding rehabilitative alimony to Wife?
4. Whether the trial court erred in its division of marital property by failing to
consider the marital debt paid by Husband, and by failing to include the
Pottery Room in the equation as a marital asset?
5. Whether the trial court abused its discretion by awarding attorney fees to
Wife?
Generally, we review the trial court’s findings of fact de novo upon the record, presuming
those findings to be correct unless the evidence preponderates otherwise. Hass v. Knighton,
676 S.W.2d 554, 555 (Tenn. Ct. App. 1984). The trial court is accorded considerable
deference on findings of fact that were based on witness credibility, because the trial court
is in the best position to assess the witnesses. Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779,
783 (Tenn. 1999). Accordingly, we will not reverse the trial court’s findings insofar as they
are based on issues of witness credibility in the absence of clear and convincing evidence to
the contrary. Sullivan v. Sullivan, 107 S.W.3d 507, 510 (Tenn. Ct. App. 2002). “Clear and
convincing evidence is evidence that eliminates any substantial doubt and that produces in
the fact-finder’s mind a firm conviction as to the truth.” In re M.A.B., No. W2007-00453-
COA-R3-PT, 2007 WL 2353158, at *2 (Tenn. Ct. App. Aug. 20, 2007). Issues of law must
be reviewed de novo, with no deference given to the trial court’s conclusions of law.
Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). We will identify the standard of review
applicable to the specific issues in the context of our analysis below.
A NALYSIS
Primary Residential Parent
Husband first argues that the trial court erred in designating Wife as the primary residential
parent of the parties’ children. He contends that the evidence preponderates against the trial
court’s finding that Wife would be more likely to foster a close relationship between the
children and him, emphasizing her continued baseless assertions that Husband has PTSD and
a propensity for violence. He also asserts that Wife’s “serial dishonesty” undermines the
credibility of all of her testimony and reflects poorly on her fitness as a parent. In addition,
he argues that Mother’s relationship with Mr. Smith, who has a criminal history and three
children from two previous relationships, is a bad influence on the children, contrary to the
trial court’s findings. Overall, Husband argues, the evidence preponderates against the trial
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court’s factual findings, and the facts that are supported by the record regarding the statutory
factors point toward a finding that the children’s best interest would be served by designating
him as the children’s primary residential parent.
In making parenting decisions, the court’s paramount concern must be the welfare and best
interest of the children; parenting decisions must not be made to reward or punish parents.
See Adelsperger v. Adelsperger, 970 S.W.2d 482, 484-85 (Tenn. Ct. App. 1997). There are
currently two different statutes setting out non-exclusive lists of factors for the trial court to
apply when designating a primary residential parent and adopting a parenting plan consistent
with the child’s best interest. Tennessee Code Annotated § 36-6-106 sets forth factors for
courts to consider in divorce cases or any other proceeding that requires it “to make a custody
determination regarding a minor child.”9 Tennessee Code Annotated § 36-6-
9
The relevant factors are as follows:
(1) The love, affection and emotional ties existing between the parents or caregivers and the
child;
(2) The disposition of the parents or caregivers to provide the child with food, clothing,
medical care, education and other necessary care and the degree to which a parent or
caregiver has been the primary caregiver;
(3) The importance of continuity in the child’s life and the length of time the child has lived
in a stable, satisfactory environment; provided, that, where there is a finding, under
subdivision (a)(8), of child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual
abuse, as defined in § 37-1-602, by one (1) parent, and that a nonperpetrating parent or
caregiver has relocated in order to flee the perpetrating parent, that the relocation shall not
weigh against an award of custody;
(4) The stability of the family unit of the parents or caregivers;
(5) The mental and physical health of the parents or caregivers;
(6) The home, school and community record of the child;
(7)(A) The reasonable preference of the child, if twelve (12) years of age or older;
(B) The court may hear the preference of a younger child on request. The
preferences of older children should normally be given greater weight than
those of younger children;
(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other
person; provided, that, where there are allegations that one (1) parent has committed child
(continued...)
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404(b) sets forth factors that a trial court is to consider when determining the designation of
a primary residential parent and the division of residential parenting time.10
9
(...continued)
abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in §
37-1-602, against a family member, the court shall consider all evidence relevant to the
physical and emotional safety of the child, and determine, by a clear preponderance of the
evidence, whether such abuse has occurred. The court shall include in its decision a written
finding of all evidence, and all findings of facts connected to the evidence. In addition, the
court shall, where appropriate, refer any issues of abuse to the juvenile court for further
proceedings;
(9) The character and behavior of any other person who resides in or frequents the home of
a parent or caregiver and the person’s interactions with the child; and
(10) Each parent’s or caregiver’s past and potential for future performance of parenting
responsibilities, including the willingness and ability of each of the parents and caregivers
to facilitate and encourage a close and continuing parent-child relationship between the
child and both of the child’s parents, consistent with the best interest of the child. In
determining the willingness of each of the parents and caregivers to facilitate and encourage
a close and continuing parent-child relationship between the child and both of the child’s
parents, the court shall consider the likelihood of each parent and caregiver to honor and
facilitate court ordered parenting arrangements and rights, and the court shall further
consider any history of either parent or any caregiver denying parenting time to either parent
in violation of a court order.
Tenn. Code Ann. § 36-6-106(a) (Supp. 2012).
10
The statutory factors relevant to establishing a residential parenting schedule that is in the best interest of
the child are:
(1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a life of
service, and to compete successfully in the society that the child faces as an adult;
(2) The relative strength, nature, and stability of the child’s relationship with each parent,
including whether a parent has taken greater responsibility for performing parenting
responsibilities relating to the daily needs of the child;
(3) The willingness and ability of each of the parents to facilitate and encourage a close and
continuing parent-child relationship between the child and the other parent, consistent with
the best interests of the child;
(4) Willful refusal to attend a court-ordered parent education seminar may be considered by
the court as evidence of that parent’s lack of good faith in these proceedings;
(continued...)
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See Bryant v. Bryant, No. M2007-02386-COA-R3-CV, 2008 WL 4254364, at *5-6 (Tenn.
Ct. App. Sept. 16, 2008). The list of factors in Section 36-6-404(b) for the court to consider
in determining a parenting plan and residential schedule are substantially similar to the best-
interest factors set out in Section 36-6-106(a), and both statutes allow for consideration of
any other factors the court deems relevant. See Thompson v. Thompson, No. M2011-02438-
COA-R3-CV, 2012 WL 5266319, at *6 (Tenn. Ct. App. Oct. 24, 2012). “[I]n most cases,
10
(...continued)
(5) The disposition of each parent to provide the child with food, clothing, medical care,
education and other necessary care;
(6) The degree to which a parent has been the primary caregiver, defined as the parent who
has taken the greater responsibility for performing parental responsibilities;
(7) The love, affection, and emotional ties existing between each parent and the child;
(8) The emotional needs and developmental level of the child;
(9) The character and physical and emotional fitness of each parent as it relates to each
parent’s ability to parent or the welfare of the child;
(10) The child’s interaction and interrelationships with siblings and with significant adults,
as well as the child’s involvement with the child’s physical surroundings, school, or other
significant activities;
(11) The importance of continuity in the child’s life and the length of time the child has
lived in a stable, satisfactory environment;
(12) Evidence of physical or emotional abuse to the child, to the other parent or to any other
person;
(13) The character and behavior of any other person who resides in or frequents the home
of a parent and such person’s interactions with the child;
(14) The reasonable preference of the child if twelve (12) years of age or older. The court
may hear the preference of a younger child upon request. The preference of older children
should normally be given greater weight than those of younger children;
(15) Each parent’s employment schedule, and the court may make accommodations
consistent with those schedules; and
(16) Any other factors deemed relevant by the court.
Tenn. Code Ann. § 36-6-404(b) (2010).
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the analysis and the result would be the same regardless of which set of factors is applied.”
Id.
Trial courts have broad discretion to make decisions regarding parenting arrangements,
including the designation of the primary residential parent. Gaskill v. Gaskill, 936 S.W.2d
626, 631(Tenn. Ct. App. 1996). Given the discretion involved and the fact that the decision
often hinges on witness credibility, the appellate court reviews the trial court’s ruling under
the abuse of discretion standard. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001);
Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn. Ct. App. 2006). A trial court abuses its
discretion only when it applies an incorrect legal standard or reaches a decision that is against
logic or reasoning that causes an injustice to the complaining party. Eldridge, 42 S.W.3d at
85.
The trial court’s decision on this issue is reflected in its two decrees — the initial decree
entered on May 27, 2010, and the post-remand Final Decree entered on October 31, 2011.
See Cooper v. Tabb, 347 S.W.3d 207, 221-22 (Tenn. Ct. App. 2010) (reviewing the trial
court’s decision as set out in both a non-final 2006 order and the final 2009 order). We note
that, although much time passed between the two orders, the decision we review on appeal
is an initial determination on the parties’ parenting arrangement; it is not a decision on
modification that would require a material change in circumstances. Therefore, we consider
all of the evidence presented to the trial court, both at the September 2009 and September
2011 hearings, in reviewing the trial court’s designation of Wife as the primary residential
parent.
The statutes that govern parenting decisions in divorce cases provides explicitly that the trial
court must consider “[t]he willingness and ability of each of the parents to facilitate and
encourage a close and continuing parent-child relationship between the child and the other
parent, consistent with the best interests of the child.” Tenn. Code Ann. § 36-6-404(b)(3);
see § 36-6-106(a)(10) (listing the same factor as relevant in best-interest analysis);11 see also
Bowers v. Bowers, 956 S.W.2d 496, 498 (Tenn. Ct. App. 1997) (affirming award of primary
custody to father where evidence showed that mother continually attempted to shut father out
of child’s life). This Court has repeatedly affirmed trial court decisions to change the
designation of primary residential parent where, for example, the custodial parent has
persisted in levying baseless accusations of child abuse against the alternate residential
parent, so as to prevent sabotage of the children’s relationship with the alternate residential
11
The importance the legislature places on the continued involvement of both parents in the child’s life is
underscored by the recent amendment to Tenn. Code Ann.§ 36-6-106(a), directing the trial court to fashion
a parenting arrangement that “permits both parents to enjoy the maximum participation possible,” consistent
with the child’s best interest. Tenn. Code Ann. §36-6-106(a).
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parent by the accusing parent. See Byars v. Young, 327 S.W.3d 42, 49-50 (Tenn. Ct. App.
2010); see also Keisling v. Keisling, 196 S.W.3d 703, 722 (Tenn. Ct. App. 2005) (finding
that change in primary residential parent was necessitated by the mother’s unfounded
accusations of sexual abuse); Agee v. Agee, No. W2007-00314-COA-R3-CV, 2008 WL
2065996, at *7-8 (Tenn. Ct. App. May 16, 2008) (same); George v. Mullican, No. M2000-
01106-COA-R3-CV, 2001 WL 673700, at *1 (Tenn. Ct. App. June 18, 2001) (same).
In its October 31, 2011 Final Decree, the trial court held: “Both parties have tried to facilitate
a relationship with the other parent. The Court does not find that there has been an effort on
the part of either of them to frustrate the other’s relationship with the child or the children.”
Husband argues that the evidence preponderates against this finding and in favor of a finding
that Wife acted to obstruct his relationship with the parties’ children. We agree. It is
undisputed that in March 2009, after the trial court had refused to grant Wife’s request for
exclusive use of the marital residence, Wife’s father filed a Congressional Inquiry based on
Wife’s purported concerns, alleging that Husband was “abusive to the point of perhaps
killing [Wife] and/or his children.” These allegations resulted in Husband being removed
from the marital home for 72 hours. He never returned to the marital home.12 About a year
later, after the trial court awarded Husband alternate residential parenting time with the
children in Alabama during summer 2010, Wife went to the General Sessions Court and filed
the pro se petition, and obtained a protective order ex parte by alleging that Husband had
choked the parties’ son and had sexually abused their daughter. These allegations proved to
be baseless, and the General Sessions Court told Wife in open court that she had misled the
court and that she was “trying to use these children against [Husband].”13 Undeterred by this
setback, after Husband filed a motion in the trial court to enforce his summer visitation, Wife
continued to insist that Husband was suffering from PTSD and would hurt her, the children,
and “others around him.” Long after the ex parte General Sessions protective order had been
dismissed, it remained in the children’s school records until Husband attempted to visit them
for lunch at their school. Wife has never produced evidence to support her continued
allegations against Husband, and the trial court below did not credit them.
Respectfully, and with due deference to the trial court’s ability to see the witnesses and judge
their demeanor, it is difficult to see how Wife’s undisputed actions can be viewed as anything
other than calculated attempts to obstruct and interfere with Husband’s relationship with his
children. Although the trial court below correctly noted that it was technically not bound by
the findings of the General Sessions judge, the undisputed facts can lead to no conclusion
12
Coincidentally, the accusations against Husband by Wife and her father were made around the same time
Wife now admits she was having an affair with Mr. Wellette.
13
The Circuit Court discounted this finding of the General Sessions Court.
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other than the conclusion reached by the General Sessions judge. Wife’s actions during this
time period constitute egregious, unwarranted interference with the children’s relationship
with their father. If Wife’s testimony at the post-remand hearing is any indication, she
continues to believe that Husband suffers from PTSD and is a threat to their children, despite
the lack of any evidence to support this claimed belief. Given her blatant obstruction in the
past, this is cause for continued concern. We agree with Husband that the evidence
preponderates against the trial court’s finding that there had been no effort by Wife to
interfere with the children’s relationship with Husband, and that the parties are equally
willing to facilitate the children’s relationship with the other parent.
Husband also argues that Wife’s “serial dishonesty” and her relationship with Mr. Smith are
other factors that favor designating him as the primary residential parent. Certainly Wife’s
admitted false testimony in the divorce trial about her relationship with Mr. Wellette is
disturbing and would be considered in the trial court’s assessment of her overall truthfulness.
The trial court, however, is charged with the responsibility for making credibility
determinations about all of the witnesses at trial. The trial court may choose to discredit the
testimony of a witness or party on some issues and credit the testimony of the same witness
or party on other issues. Thus, Wife’s admitted untruthfulness about her infidelity does not
amount to the clear and convincing evidence required for an appellate court to reverse the
trial court’s decision to credit Wife’s testimony as it related to parenting and the children’s
welfare.
Regarding Wife’s relationship with Mr. Smith, the trial court stated in its oral ruling after the
post-remand hearing that Mr. Smith was not “a person whose character or behavior would
be detrimental to the children” based on his “demeanor, his truthfulness, [and] his veracity
or lack thereof.” In the written October 31, 2011 order, the trial court found specifically:
“The Court does not find anything about Mr. Joseph Smith that created a concern for this
Court that today he is of such character and that he behaves in such a way that the children
are detrimentally affected by his presence.”
The evidence on this issue was conflicting. Husband presented undisputed evidence that Mr.
Smith had criminal episodes in his background, and that he has three children from two
previous relationships. Wife, on the other hand, testified that Mr. Smith supported his
children, was a good person, and was a good influence on the parties’ children. No evidence
was presented to show that Mr. Smith was abusive to Wife or to the children, and no
evidence was presented to show that Mr. Smith’s presence caused difficulty in the
relationship between Husband and his children. Giving due deference to the trial court’s
credibility determinations, we cannot find that the evidence preponderates against the trial
court’s finding that Mr. Smith’s relationship with Wife was not detrimental to the parties’
children.
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Given all of the relevant factors, Husband argues vigorously that the trial court erred in
designating Wife as the children’s primary residential parent. The trial court considered all
relevant factors and based its decision on the evidence presented at the first trial, including
the guardian ad litem report and the children’s psychological evaluations, as well as the
testimony that was introduced at the post-remand hearing two years later. After considering
all of the evidence, the trial court found that, while most of the statutory factors did not favor
one parent over the other, Wife had taken a greater parental responsibility for the children’s
daily needs, and the children were in a stable, satisfactory environment with Wife, “not only
since birth, but when they were with both parents, but in the last two years they’ve been with
her primarily.” The undisputed evidence at the September 2009 trial showed that the
children were happy and thriving while living with Wife in Clarksville, and the evidence
presented at the September 2011 hearing showed nothing different. This is a significant
factor.
Moreover, even as to the parties’ relative willingness to facilitate the children’s relationship
with the other parent, on which we held that the trial court’s finding was not supported by
the evidence, we note that the evidence shows that Wife’s active interference with Husband’s
relationship with the parties’ children tapered off after the May 27, 2010 order. Husband
testified that, after that parenting plan went into effect, Wife’s alleged acts of interference
consisted of hindering his telephone visitation with the children, being frequently late to their
parenting time exchanges, and filling his parenting weekends with scheduled activities for
the children. Though Wife continued to espouse the unsupported belief that Husband
suffered from PTSD and posed some danger to the children, there was no evidence to suggest
that Wife acted on that belief by preventing Husband from exercising his parenting time with
the children. For her part, Wife testified she was making an effort to improve her
relationship with Husband for the benefit of the children, and that Husband was also late for
exchanges on occasion. The trial court credited both Husband’s and Wife’s testimony to
some extent, and on appeal we are required to defer to the trial court’s credibility
determinations absent clear and convincing evidence to the contrary.
Our decision on the trial court’s designation of primary residential parent must be driven by
our high standard of review on appeal. Given Wife’s flagrant, repeated acts of interference
with the children’s relationship with Husband before May 2010, our decision on this issue
at the trial-court level may very well have been different from the decision made by the trial
court below. On appeal, however, we are not permitted to substitute our judgement for that
of the trial judge. We may reverse the trial court’s designation of primary residential parent
only if it amounts to an abuse of the trial court’s discretion. Wife’s behavior makes this a
close question. However, given the weight rightfully accorded to the factor of continuity for
the children and their stability in Wife’s home, and given the fact that Wife did not continue
actively interfering with the children’s relationship with their father, we conclude that the
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trial court’s designation of Wife as the children’s primary residential parent was not an abuse
of the trial court’s discretion. Therefore, we affirm the trial court’s decision on this issue.
Fault
Husband next challenges the trial court’s decision to declare the parties to be divorced
without assigning fault to either party pursuant to Tennessee Code Annotated § 36-4-129.
That statute provides:
(b) The court may, upon stipulation to or proof of any ground of divorce
pursuant to § 36-4-101, grant a divorce to the party who was less at fault or,
if either or both parties are entitled to a divorce or if a divorce is to be granted
on the grounds of irreconcilable differences, declare the parties to be divorced,
rather than awarding a divorce to either party alone.
Tenn. Ct. App. § 36-4-129(b) (2010).
In the May 27, 2010 order after the divorce trial, the trial court initially granted the divorce
to Wife based on Husband’s inappropriate marital conduct. See Tenn. Code Ann. § 36-4-
101(11) (2010). In its oral ruling, the trial court explained: “Mr. Irvin was responsible for
an atmosphere of criticism . . .; second guessing; verbal insults; and unwarranted control.
And over the course of time this adversely affected the marriage and because of that, the
marriage has reached a point where it cannot be salvaged.” In its May 27, 2010 written
order, the trial court stated that, “in weighing [Husband’s] conduct against that alleged of the
Wife, the Court finds that his conduct preceded and was more egregious and damaging to the
marriage . . . .”
Later, after the September 29, 2011 post-remand hearing, the trial court reaffirmed its earlier
finding that Husband had engaged in inappropriate marital conduct during the parties’
marriage. Although the trial court found no evidence in the record of physical abuse, it stated
that Wife’s “testimony was replete with her insistence that over the course of the marriage,
he was controlling; that he was verbally insulting and abusive; that he was critical of what
he said she did; that he second-guessed her decisions with regard to household affairs and
parenting.” The trial court addressed Wife’s testimony acknowledging her untruthfulness
about her adulterous relationship with Mr. Wellette, noting that Wife “acknowledged that she
lied to the Court at the final hearing.” The trial court determined that Wife’s infidelity
constituted fault on her part, but also found that by the time this occurred, the marriage had
already deteriorated because of Husband’s conduct:
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[Wife’s] relationship with Mr. [Wellette], even if you consider it to have
started when he says it started, this marriage was — it was over. Did her
relationship help things? Of course not. Could they have salvaged it if it had
not happened? I certainly don’t believe so. Was it the cause of the dissolution
of the marriage? No. The marriage had dissolved at that point in time. It just
hadn’t been legally adjudicated.
Thus, in light of Wife’s admission, the trial court altered its previous ruling and declared the
parties to be divorced under the statute, assigning no fault to either party.14
On appeal, Husband argues that the evidence preponderates against the trial court’s ruling,
and that fault should have been assigned to Wife based on her false testimony and her
subsequent admission about her extramarital affair. In support of his position, Husband cites
Jekot v. Jekot, 232 S.W.3d 744 (Tenn. Ct. App. 2007). In Jekot, the trial court granted the
wife a divorce based on the grounds of the husband’s adultery. On appeal, the husband
argued that the trial court should have simply declared the parties divorced pursuant to
Section 36-4-129(b), because the evidence showed that the marriage had deteriorated long
before his affair began, and because the wife had also engaged in an extramarital affair
fifteen years before the divorce. Jekot, 232 S.W.3d at 753-54. The appellate court rejected
the husband’s argument, finding that it was within the trial court’s discretion to grant the wife
a divorce under the circumstances, “even where there is evidence that both parties engaged
in inappropriate marital conduct.” Id. at 754. Husband in the instant case argues that “[t]his
Court should follow the holding in Jekot, and find that [Wife] was at fault for the demise of
the marriage.”
Respectfully, Husband misconstrues the appellate court’s holding in Jekot. In Jekot, the
appellate court took care to apply the abuse of discretion standard to the trial court’s decision
in a situation where both parties had established that the other had engaged in inappropriate
marital conduct:
Pursuant to T.C.A. § 36-4-129(b), a trial court is given the discretion to grant
a divorce to either or both of the parties . . . .
...
14
The trial court’s October 31, 2011 order states simply: The Court declares that the Wife and Husband are
divorced with no fault attributed to either party . . . .” The reasoning behind this decision was explained
orally at the post-remand hearings on September 29, 2011, and October 31, 2011.
-26-
In Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001), the Tennessee
Supreme Court stated as follows regarding the abuse of discretion standard:
Under the abuse of discretion standard, a trial court’s ruling
“will be upheld so long as reasonable minds can disagree as to
propriety of the decision made.” State v. Scott, 33 S.W.3d 746,
752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 266, 273 (Tenn.
2000). A trial court abuses its discretion only when it “applie[s]
an incorrect legal standard, or reache[s] a decision which is
against logic or reasoning that cause[s] an injustice to the party
complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn.
1999). The abuse of discretion standard does not permit the
appellate court to substitute its judgment for that of the trial
court. Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn.
1998).
An abuse of discretion occurs when the lower court’s decision is without a
basis in law or fact and is, therefore, arbitrary, illogical, or unconscionable.
State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 191 (Tenn.
2000).
Id. at 753-54. Applying this standard, the Jekot Court reasoned that, even though the
husband’s factual allegations — that the marriage had been deteriorating and that the wife
had also had an affair — were supported by the evidence, the trial court’s decision to grant
the wife the divorce based on the husband’s conduct was not against logic or reasoning or
without basis in law. Instead, the appellate court noted that the wife’s affair was remote in
time, and that “it might reasonably be argued [that the husband’s infidelity] substantially
decreased the probability of future reconciliation.” Id. at 754. Therefore, the appellate court
held that the trial court did not abuse its discretion in finding the husband to be at fault and
in granting a divorce to the wife.
In the same way, we must apply the abuse of discretion standard to the trial court’s decision
to declare the parties divorced, without assigning fault to either party. Fault for the demise
of a marriage can take many forms; adultery is only one of them. Husband does not argue
on appeal that the evidence was insufficient to support a finding that he committed the
inappropriate marital conduct described by the trial court. He argues instead that fault should
have been assigned to Wife because her misconduct was the more egregious. We cannot
agree that the decision Husband urges on appeal was the only logical conclusion to be
reached from the facts presented to the trial court. Based on our review of the record, we
hold that the trial court’s decision was supported by the evidence and well within the trial
-27-
court’s discretion. Accordingly, we affirm the trial court’s decision to declare the parties
divorced pursuant to Section 36-4-129(b).
Rehabilitative Alimony
Husband next argues that the trial court erred in awarding rehabilitative alimony to Wife.
The trial court has wide latitude in making an award of alimony. Owens v. Owens, 241
S.W.3d 478, 490 (Tenn. Ct. App. 2007). An award of alimony depends on the circumstances
of each case; the recipient spouse’s need and the obligor spouse’s ability to pay are the
primary considerations. Burlew v. Burlew, 40 S.W.3d 465, 472 (Tenn. 2001). When
determining the type and amount of alimony to be awarded, the trial court must balance
several factors, including those enumerated in Section 36-5-121(i).15 The type and amount
15
That statute provides:
(i) In determining whether the granting of an order for payment of support and maintenance
to a party is appropriate, and in determining the nature, amount, length of term, and manner
of payment, the court shall consider all relevant factors, including:
(1) The relative earning capacity, obligations, needs, and financial resources of each party,
including income from pension, profit sharing or retirement plans and all other sources;
(2) The relative education and training of each party, the ability and opportunity of each
party to secure such education and training, and the necessity of a party to secure further
education and training to improve such party’s earnings capacity to a reasonable level;
(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
(continued...)
-28-
of an alimony award remain largely within the discretion of the trial court. Id. at 470.
“[R]ehabilitative alimony is intended to assist an economically disadvantaged spouse in
acquiring additional education or training which will enable the spouse to achieve a standard
of living comparable to the standard of living that existed during the marriage or the
post-divorce standard of living expected to be available to the other spouse. See Tenn. Code
Ann. § 36-5-121(e)(1). ” Gonseweski v. Gonseweski, 350 S.W.3d 99, 108 (Tenn. 2011). A
trial court’s award of alimony is reviewed on appeal under an abuse of discretion standard.
Berlew, 40 S.W.3d at 472.
In the May 27, 2010 decree, based on the evidence presented at the divorce trial, the trial
court found that Wife was economically disadvantaged as compared to Husband, and that
“Wife wants to attend and complete a post graduate degree to better improve[ ] her earning
capacity on the open labor market and the Court finds that this plan is appropriate.”
Premised on this factual finding, the trial court granted Wife rehabilitative alimony of $500
per month for 42 months beginning November 1, 2009.
At the October 31, 2011 post-remand hearing, Husband argued that Wife should not receive
rehabilitative alimony because Wife admitted in her testimony that she had not used the
money that she received in rehabilitative alimony to rehabilitate herself, but had instead
simply kept the money for herself.16 Wife’s testimony at the post-remand hearing indicated
that she no longer intended to rehabilitate herself via education, training or other means.
Nevertheless, the trial court refused to revisit the issue of alimony because Husband did not
raise it as an issue in the first appeal:
15
(...continued)
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.
Tenn. Code Ann. § 36-5-121(i) (Supp. 2012).
16
In her appellate brief, Wife notes that Husband did not raise the rehabilitative alimony issue in his Rule 52
motion for additional findings. Husband’s argument was made in open court, however, and Wife did not
object to the trial court’s consideration of this issue at the post-remand hearing.
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[Counsel for Husband]: The last ruling in this court, Your Honor, was that you
entered a final decree for rehabilitative alimony to the wife in the amount of
$500 per month for 42 months.
[Court]: Was that raised on appeal?
[Counsel for Husband]: It was not raised on appeal but it didn’t need to be
because there was no final order.
[Court]: Then I am not changing my previous ruling. It will be in the final
order as ruled upon.
In the October 31, 2011 Final Decree, the trial court adhered to the ruling in the first decree,
awarding Wife $500 per month for 42 months because she is an economically disadvantaged
spouse that intended “to attend and complete a post graduate degree . . . .”
On appeal, Husband argues that Wife should have been denied alimony based solely on her
fault in the demise of the marriage. See Tenn. Code Ann. § 36-5-121(i)(11). Even absent
a finding of fault, Husband claims, the evidence preponderates against the trial court’s
finding that Wife needed rehabilitative alimony to further her education, because Wife
admitted in the post-remand hearing that she no longer has plans to seek further education
or training. Husband claims that rehabilitative alimony is not justified for someone who does
not intend to rehabilitate herself. In addition, Husband claims, Wife did not demonstrate a
need for rehabilitative alimony where she did not put on proof of such a need at trial. Thus,
Husband urges us to reverse the trial court’s award of rehabilitative alimony and to give him
credit for the alimony he has wrongly paid to Wife. At the least, Husband maintains, Wife’s
alimony award should be discontinued.
We have determined that the trial court did not err in declaring the parties divorced and in
finding that the parties were both at fault for the demise of the marriage. In light of this,
although fault is a factor that may be considered in awarding alimony, we will not reverse
the award of rehabilitative alimony based solely on Wife’s portion of the shared fault.
We must hold, however, that the trial court erred in refusing to consider the issue of
rehabilitative alimony based on procedural grounds. As we concluded in the first appeal, the
May 27, 2010 order was not final. Thus, as noted by the trial court below, the entire case
remained in the bosom of the trial court, subject to revision by the trial court. See Irvin,
2011 WL 2436507, at *13 n.5. Thus, the post-remand award of rehabilitative alimony is an
initial award, and we review it as such. Moreover, Husband’s argument on the award of
rehabilitative alimony was not based on the evidence that was presented in the 2009 divorce
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trial. Rather, it was based on events as they occurred after the divorce trial, so he could not
have raised the issue as it is currently presented in the first appeal. This Court has recognized
“the unusual predicament presented by the inordinate amount of time” that can pass between
the entry of a trial court’s non-final orders over the course of one case. Hawkins v. O’Brien,
No. M2008-02289-COA-R3-CV, 2009 WL 2058802, at *4-5 (Tenn. Ct. App. July 15, 2009)
(citing Gorski v. Ragains, No. 01A01-9710-GS-00597, 1999 WL 511451, at *4 (Tenn. Ct.
App. 1999)). As stated by the Gorski court, “we cannot ignore the fact that all the parties’
circumstances are not the same as they were when they were last before the trial court.”
Gorski, 1999 WL 5114514, at *4. Thus, we find at the outset that the trial court erred in
holding that it was somehow procedurally barred from considering Husband’s argument on
the award of rehabilitative alimony.
We must now address whether the evidence preponderates against the factual finding that
Wife intended to seek further education, the finding upon which the award of rehabilitative
alimony was premised. In the 2009 divorce trial, Wife testified that she intended to pursue
a graduate degree. Wife explained that she had spoken to a college representative and was
planning to complete her degree in three years. She also testified that, if the trial court would
grant her rehabilitative alimony for that purpose, she would also sell real estate to supplement
her income. Husband had no evidence to rebut Wife’s testimony on her stated intent to take
actions in the future to rehabilitate herself. Thus, if only the evidence at the 2009 divorce
trial were considered, the trial court’s factual finding as to Wife’s need for rehabilitative
alimony for her plan to rehabilitate herself would be supported by the evidence.
However, a different story emerged after the case was remanded to the trial court. At the
September 2011 post-remand hearing, Wife testified that she had in fact made no attempt to
obtain further education or training since the 2009 hearing. Her stated reason was that she
“realized at that time that I couldn’t do it because of all the legal stuff that was continuing
to go on.”17 Wife said only that she might pursue a career in real estate, for which she needed
no additional education or training. This is directly contrary to the trial court’s October 31,
2011 factual finding, after remand, that Wife “wants to attend and complete a post graduate
degree to better improve[ ] her earning capacity . . . .” In light of Wife’s testimony in the
post-remand hearing, we must conclude that the overall evidence before the trial court
preponderates against this factual finding. As this was the stated basis for the trial court’s
17
In her appellate brief, Wife argues that, because of the stay that was imposed by this Court and because she
has “yet to receive one dime from the marital estate since the initial divorce,” Wife could not possibly have
afforded graduate school. First, Husband paid the monthly alimony to Wife, and this money was intended
to fund her post-graduate education. In addition, Wife did not testify that lack of money was the reason that
she did not attend graduate school; rather, she indicated that the time constraints involved in this lawsuit
prevented her from going to school, and that she intended to get back into the real estate business. Therefore,
this argument is without merit.
-31-
award of rehabilitative alimony to Wife, we must also conclude that the trial court abused its
discretion in failing to reverse its initial ruling on Wife’s request for rehabilitative alimony.
As we have indicated, rehabilitative alimony is intended to assist an economically
disadvantaged spouse “in acquiring additional education or training . . . .” Gonseweski, 350
S.W.3d at 108. Considering the evidence presented at the divorce trial as well as the
evidence submitted post-remand, we can only conclude that Wife does not intend to pursue
her initial stated plan of obtaining additional educational training. Under these
circumstances, the evidence in the record does not support the award of rehabilitative
alimony.
We note, however, that the trial court found that Wife is economically disadvantaged as
compared to Husband, and that this finding is supported in the record. Moreover, the
evidence in the record does not indicate that Wife was untruthful in her testimony in the 2009
divorce trial as to her intent to pursue further education, only that she did not follow through
on her original plan. An outright reversal of the award of rehabilitative alimony would
require Wife to repay all of the rehabilitative alimony she has received. From our review of
the record, this would work a real hardship on Wife. In this unusual circumstance, we
exercise our discretion to modify the trial court’s award of rehabilitative alimony rather than
reverse it in toto. We modify the award of rehabilitative alimony to terminate it as of the date
of Husband’s request that it be terminated, October 31, 2011. See Honeycutt v. Honeycutt,
152 S.W.3d 556, 566 (Tenn. Ct. App. 2003) (holding that the wife was no longer entitled to
alimony because she was cohabiting with another male, and her alimony refund to the
husband was measured from the time the husband filed his petition for modification).
Therefore, Husband’s alimony obligation is terminated effective October 31, 2011, and we
remand the case to trial court to determine of the amount of the refund of alimony that is due
to Husband.
Division of Marital Property
The trial court must consider all relevant factors in its distribution of marital property,
including those listed in Tennessee Code Annotated § 36-4-121(c).18 In dividing the marital
18
The factors set out in Tenn. Code Ann. § 36-4-121(c) are:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability, earning capacity,
estate, financial liabilities and financial needs of each of the parties;
(continued...)
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property, “[t]he trial court is empowered to do what is reasonable under the circumstances
and has broad discretion in the equitable division of the marital estate.” Keyt v. Keyt, 244
S.W.3d 321, 328 (Tenn. 2007) (citing Flannary v. Flannary, 121 S.W.3d 647, 650 (Tenn.
2003)). Therefore, we review the trial court’s division of marital property for an abuse of
discretion. As we have stated, a trial court has abused its discretion when it has applied an
incorrect legal standard or reached a decision that is against logic or reasoning that causes
an injustice to the complaining party. Eldridge, 42 S.W.3d at 85.
Husband argues that the trial court erred in not giving him credit in the division of marital
property for $12,501 in mortgage payments and $4,892 in utilities that he paid between
March 2009 and the September 2009 hearing, at which time the trial court ordered Wife to
make those payments. Although Husband was no longer living in the marital home, it
appears that Husband made these payments voluntarily. At the time, Wife and children were
living in the marital home, and Wife had no access to the bank accounts that held the marital
funds out of which the house and utility payments could be made. Husband made the
pendente lite payments for several reasons: to maintain the status quo, to benefit the parties’
children living in the home with Wife, and to protect his credit since he remained on the
mortgage.
18
(...continued)
(3) The tangible or intangible contributions by one (1) party to the education, training or
increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital assets and income;
(5) The contribution of each party to the acquisition, preservation, appreciation 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 his or her
role;
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of property is to
become effective;
(9) The tax consequences to each party; and
(10) Such other factors as are necessary to consider the equities between the parties.
Tenn. Code Ann. § 36-4-121(c) (Supp. 2012).
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We find that the trial court did not abuse its discretion in failing to give Husband credit for
these payments. Voluntary payments made to Wife during the pendency of the proceedings
are not listed as a factor that the trial court must consider in making an equitable division of
marital property. See Stolze v. Stolze, M2010-00818-COA-R3-CV, 2011 WL 1303382, at
*4 (Tenn. Ct. App. Apr. 5, 2011). Also, the payments were made with marital funds, which
belonged to both Husband and Wife. For these reasons, and in light of the overall property
division, we cannot conclude that the trial court abused its discretion in failing to give
Husband credit for these payments in the division of the marital estate.
Husband also argues that the trial court erred in failing to categorize the Pottery Room
business owned by Wife and Ms. Fauth as marital property subject to equitable division. The
evidence on this issue is undisputed. Ms. Fauth contributed $35,000 to start up the Pottery
Room business, and it was owned by a limited liability company in which Ms. Fauth and
Wife were members. Wife contributed no money to the business, and little evidence was
presented to show Ms. Fauth’s intent when she included Wife in her business venture. By
the time of the September 2011 post-remand hearing, Wife had given her half of the business
back to Ms. Fauth, and she did not receive any money in return for this interest. Husband
presented no evidence to show that the interest Wife transferred back to Ms. Fauth had any
monetary value.19 Therefore, we cannot conclude that the trial court erred in omitting the
Pottery Room business from its calculations on the division of the parties’ marital property.
Wife also raises two issues on appeal regarding the trial court’s division of the marital
estate.20 First, she argues that the trial court erred in giving Husband credit in the marital
property division for the mortgage payments he made in October 2009 and February 2010.
It appears that this decision was based on the fact that the trial court’s September 29, 2009
oral ruling, which incorporated the parties’ mediation agreement, required Wife to be
responsible for the mortgage payments. In other words, it appears that the trial court gave
19
Husband did not argue that Wife had dissipated this marital asset, or that she fraudulently transferred her
interest back to Ms. Fauth for an improper purpose.
20
In her appellate brief, Wife’s Statement of the Issues states simply: “The trial court made two errors in its
division of the marital estate.” In the Argument section of her brief, she identifies the two ways in which
she alleges that the trial court erred. The Tennessee Supreme Court has recently noted that, “appellate courts
prefer to know immediately what questions they are supposed to answer,” and that “[t]he issues should be
framed as specifically as the nature of the error will permit in order to avoid any potential risk of waiver.”
Hodge v. Craig, No. M2009-00930-SC-R11-CV, 2012 WL 4486315, at *6 (Tenn. Oct. 1, 2012). The Hodge
Court also noted that “an issue may be deemed waived when it is argued in the brief but is not designated
as an issue in accordance with Tenn. R. App. P. 27(a)(4).” Id. Wife’s Statement of the Issues is inadequate
because it does not identify the “two errors” she seeks to assert. Nevertheless, based on the circumstances
of this case, we exercise our discretion to address the issues raised by Wife in the Argument portion of her
appellate brief.
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Husband credit for those two payments because they were made on behalf of Wife. Wife
argues that this was erroneous, because when Husband made the two mortgage payments,
the trial court had not issued a written ruling, and its oral ruling was allegedly not
enforceable. Therefore, in Wife’s view, Husband was not satisfying Wife’s obligation at all;
he simply made two more voluntary mortgage payments, and they should be treated the same
as the pre-hearing mortgage payments made by Husband.
Wife makes much of the fact that the trial court’s September 2009 oral ruling requiring her
to make mortgage payments was unenforceable because it was not incorporated into a written
ruling until May 27, 2010. Indeed, this Court has stated: “A court speaks only through its
written judgments, duly entered upon its minutes. Therefore, no oral pronouncement is of
any effect unless and until made a part of a written judgment duly entered.” Sparkle
Laundry & Cleaners, Inc. v. Kelton, 595 S.W.2d 88, 93 (Tenn. Ct. App. 1979). This,
however, does not make the trial court’s oral rulings a nullity. The trial court’s oral
pronouncement was a small part of the trial court’s overall reasoning in its division of the
marital estate. Under these circumstances, we decline to hold that the trial court abused its
discretion in giving Husband credit for two house payments made after the September 2009
oral ruling.
Wife also argues that the trial court erred in awarding Husband the entire amount of the
equity in the 2008 Chevrolet Corvette.21 The relevant facts are undisputed. Husband bought
the Corvette in December 2009, after the trial court’s September 2009 oral ruling. By the
time of the September 2011 post-remand hearing, Husband had made almost two years of
payments on the vehicle. Wife claims that Husband made payments on the Corvette out of
marital funds, so she should have been awarded half of the value of the Corvette in the
division of marital property.
This argument is likewise without merit. We do not consider the trial court’s division of the
marital property piecemeal, we consider the entirety of the trial court’s distribution of marital
property and debt. This car was used by Husband for his personal use, and he made all of
the payments on the vehicle during the pendency of the litigation. Considering the overall
distribution of property to the parties, we cannot find that the trial court’s decision to award
Husband the entire interest in the Corvette was an abuse of its discretion.
21
It is unclear whether Wife objected to this finding in the trial court. We address it, however, out of an
abundance of caution.
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Attorney Fees
Husband argues that the trial court erred in awarding Wife attorney fees in this case. An
award of attorney fees in divorce litigation is alimony in solido. Herrera v. Herrera, 944
S.W.2d 379, 390 (Tenn. Ct. App. 1996). Thus, in contemplating such an award, the trial
court must again consider the relevant factors applicable to an award of alimony found in
Tennessee Code Annotated § 36-5-121(i). The trial court’s award of attorney fees is within
its sound discretion, and it will not be disturbed on appeal absent an abuse of that discretion.
Langschmidt v. Langschmidt, 81 S.W.3d 741, 751 (Tenn. 2002).
In this case, the trial court ordered that Wife’s attorney fees be paid out of the marital estate.
The trial court appears to have credited Wife’s argument that, at the end of the proceedings,
Husband had paid all of his attorney fees out of marital funds. Based on this fact, and also
based on Wife’s need and Husband’s ability to pay, the trial court allowed Wife the same
access to the marital coffers to pay her attorney fees. We find that this constituted an award
of alimony in solido for Wife.
On appeal, Husband argues that the trial court’s decision to allow Wife’s attorney fees to be
paid out of marital funds constituted an abuse of its discretion, because Wife repeatedly tried
to circumvent the authority of the trial court by her use of military channels to have Husband
removed from the home, and by going to the General Sessions Court to seek an unwarranted
order of protection. In addition, Husband argues, Wife filed unsuccessful and wasteful
motions for criminal contempt, and she lied to the trial court at the first hearing about her
adultery. Based on Wife’s egregious litigation strategies, Husband argues, the trial court
should have denied Wife an award of any attorney fees whatsoever. On appeal, he argues
that the entire attorney fee award should be reversed.
As we have stated, the trial court’s determination that Wife’s attorney fees should be paid is
a matter that falls within the trial court’s sound discretion. In making its decision on this
issue, the trial court must balance a variety of factors. From our review of the record as a
whole, under the circumstances of this case, we find that the trial court did not abuse its
discretion in its award of attorney fees to Wife.
Appellate Attorney Fees
Wife argues on appeal that Husband’s appeal is frivolous, and that she should be awarded
her attorney fees incurred on appeal pursuant to Tennessee Code Annotated § 27-1-122.22
22
That statute provided:
(continued...)
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A frivolous appeal is one that is devoid of merit or has little prospect for success. Robinson
v. Currey, 153 S.W.3d 32, 42 (Tenn. Ct. App. 2004). The decision to award damages for the
filing of a frivolous appeal rests in the sole discretion of this Court. Whalum v. Marshall,
224 S.W.3d 169, 180-81 (Tenn. Ct. App. 2006) (citing Banks v. St. Francis Hosp., 697
S.W.2d 340, 343 (Tenn. 1985)). Husband presented serious issues on appeal, and his appeal
was neither frivolous nor taken solely for purposes of delay. Therefore, we deny Wife’s
request for attorney fees on appeal.
C ONCLUSION
The decision of the trial court is modified in part, affirmed as modified, and remanded for
further proceedings consistent with this Opinion. Costs on appeal are to be taxed one-half
to Defendant/Appellant Ernest J. Irvin, II, and his surety, and one-half to Plaintiff/Appellee
Una P. Irvin, for which execution may issue, if necessary.
_________________________________
HOLLY M. KIRBY, JUDGE
22
(...continued)
When it appears to any reviewing court that the appeal from any court of record was
frivolous or taken solely for delay, the court may, either upon motion of a party or of its own
motion, award just damages against the appellant, which may include, but need not be
limited to, costs, interest on the judgment, and expenses incurred by the appellee as a result
of the appeal.
Tenn. Code Ann. § 27-1-122 (2000).
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