Louise Helen Pack Dover v. Norris Lee Dover ( 2020 )

12/08/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 13, 2020 Session
LOUISE HELEN PACK DOVER v. NORRIS LEE DOVER
Appeal from the Chancery Court for Knox County
No. 172548-2 Clarence Pridemore, Jr., Chancellor
No. E2019-01891-COA-R3-CV
__________________________________
Following a bench trial, the Chancery Court for Knox County (“trial court”) granted the
divorce of Louise Helen Pack Dover (“Wife”) from Norris L. Dover (“Husband”) on the
basis of inappropriate marital conduct. The trial court classified several real properties,
largely purchased by Husband before the marriage, as Husband’s separate assets and
concluded that no transmutation occurred during the marriage. The trial court also
classified Husband’s 401(k), which was established before the marriage, as a marital asset
and ordered the parties to divide it equally. The trial court then awarded Wife alimony in
solido in the amount of $5,000.00 per month for thirty-six months. We conclude that the
trial court erred in the classification of the real properties at issue as well as its classification
of Husband’s 401(k). Because the division of marital property will change substantially as
a result of this opinion, we vacate the trial court’s division of the parties’ marital estate and
the alimony award. We therefore reverse in part, affirm in part, vacate in part, and remand
for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed
in Part, Affirmed in Part, Vacated in Part and Remanded for Further Proceedings
KRISTI M. DAVIS, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY,
C.J., and KENNY W. ARMSTRONG, J., joined.
Jerrold L. Becker and Emily K. Stulce, Knoxville, Tennessee, for the appellant, Norris L.
Dover.
Allison Easterday Alexander and Haleigh E. Chastain, Knoxville, Tennessee, for the
appellee, Louise Helen Pack Dover.
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OPINION
Background
Husband and Wife married in June of 2000 and have two children.1 Wife has a high
school diploma but does not have a college degree. Before the marriage, Wife worked
briefly in advertising and then in interior design, but she left full-time employment after
the birth of the parties’ son in June of 2002. Since then Wife has worked sporadically in
interior design, but it is undisputed that Wife served as the primary caregiver to the parties’
children and did not earn significant income during the marriage. Husband, on the other
hand, graduated from medical school in the 1980’s and began a lucrative career as an
anesthesiologist with Parkwest Medical Center2 (“Parkwest”) in 1986.
Husband purchased a home in Farragut, Tennessee in 1989 (the “Lookout Point
residence”), and this is the home in which the parties resided together until they separated
in 2010. Husband bought the home for $339,000.00, and the parties agree that it was fully
paid off three years into the marriage, in 2003. The only remaining debt on the Lookout
Point residence is a home equity line of credit (“HELOC”) that was taken out by Husband
in 2002 and by the time of trial had an outstanding balance of $145,000.00. In addition to
the Lookout Point residence, Husband purchased property in Burnsville, North Carolina
(the “Cabin”) in 1993 for approximately $150,000.00. When Husband bought the property,
there was a structure on it that was being used as a barn by the previous owner, although it
is not entirely clear from the record what state this structure was in before the marriage.
Husband testified, however, that the structure “was not a house then.” Husband owns
additional residential property in Burnsville, North Carolina (the “Church Street
property”), and has an ownership interest in two other properties in the same area; however,
no issues on appeal pertain to the two additional properties. Further, Husband began a
401(k) through his employment prior to the marriage, although the record does not
conclusively establish the balance of that account at the time of the marriage.
During the marriage, Wife cared for the parties’ children while Husband worked
long hours, often working every day for two weeks straight on twelve to fourteen-hour
shifts. The parties enjoyed a very comfortable lifestyle, with Husband at times earning
over $900,000.00 per year. Husband’s paychecks were deposited into the parties’ joint
bank account, which both Husband and Wife used to pay household expenses. Early in the
marriage, the parties used money from their joint bank account to extensively renovate the
Lookout Point residence. Likewise, the parties undertook extensive improvements to the
Cabin, such as adding additional floors and a full kitchen. Total improvements to the Cabin
cost approximately $429,000.00, and the Cabin appraised at $440,000.00. Like the
1
No issues regarding custody or support of the children are disputed on appeal.
2
At different points in the record, the parties refer to Husband’s employer as Parkwest, Covenant,
and Anesthesia Medical Alliance of East Tennessee. For ease of reference, we refer to Husband’s employer
in this opinion as “Parkwest.”
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Lookout Point residence, the funds for the improvements to the Cabin came from the
parties’ joint checking account, and Wife was very involved in the renovations. Husband
testified at trial that the purpose of improving the Cabin was to use it as a vacation home
for the family, and Wife confirmed that the parties often took the children to the Cabin for
weekends and when Husband had time off.
The final real property at issue, the Church Street property, was originally purchased
by Husband and Husband’s brother in March of 2000, shortly before the parties married.
Husband contributed money towards the down payment, and the deed reflects that Husband
at that time had an undivided one-half interest in the property. In November of 2000,
however, approximately five months after the parties married, the parties used $65,000.00
in marital funds to pay off the remainder of the mortgage and acquire the Church Street
property in full. The parties then used approximately $150,000.00 of marital funds to
substantially improve the Church Street property.
Wife originally filed for divorce from Husband in 2008; however, the parties
reconciled and remained living together in the Lookout Point residence until October of
2010. Wife maintains that Husband was physically and emotionally abusive to her and the
children throughout the marriage, and she testified at trial that a violent episode in October
of 2010 prompted Wife to reinitiate divorce proceedings. Husband answered Wife’s
complaint on October 28, 2010 and counterclaimed for divorce on the bases of
irreconcilable differences and inappropriate marital conduct. An ex parte order of
protection was entered against Husband on October 25, 2010, and later in the proceedings,
Husband agreed to a lifetime order of protection. As a result of the abuse allegations by
Wife, Husband was asked to leave his medical practice.3 Husband has not worked since
2010 despite having interviewed for and considered several jobs. Husband testified at trial
that at one point he hoped for reconciliation with his family and did not want to return to
work because he thought the demanding hours might interfere with the reconciliation.
With regard to another potential job, Husband testified that he did not accept because of
the risk of liability for malpractice. Husband’s anesthesiology license lapsed in 2012, and
Husband has not sought any employment since that time. Likewise, Wife never resumed
working full-time outside the home and remains the sole caretaker of the parties’ children.
While Husband engaged in some limited supervised visitation with the children for a period
of time after the parties separated, by the time of trial Husband had not seen the children
in several years.
An agreed order for pendente lite support was entered on December 16, 2011, in
which Husband agreed to pay $5,000.00 per month in child support, $4,000.00 per month
in spousal support, property taxes on all of the real properties, the homeowner’s insurance
3
Specifically, Husband testified that he was told by Parkwest that he could either retire, resign, or
be fired after his employer discovered the order of protection.
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on the Lookout Point residence,4 car insurance on all of the parties’ vehicles, the HELOC
payments due on the Lookout Point residence, utilities and other expenses related to the
North Carolina properties, all tuition and expenses related to the children’s private school,
boarding fees for the parties’ horses, and all out-of-pocket medical or dental expenses for
the children. Wife was ordered to pay her personal living expenses, utilities and
maintenance expenses at the Lookout Point residence, her own medical and health related
bills, and any recreational and/or therapeutic expenses for herself and the children. Since
this order was entered, Husband has paid Wife $9,000.00 every month in support plus
$1,000.00 per month for the children’s private school tuition. However, on at least one
occasion, the trial court found that Husband had willfully disobeyed court orders and
ordered Husband to pay Wife’s attorney’s fees arising from the resultant motions. Further,
Husband had to be ordered twice by the trial court to complete Wife’s discovery requests.
Consequently, this case became significantly protracted, and by the time of trial the parties
had been living apart for almost seven years.
A bench trial occurred over several days in 2017, concluding on May 1, 2017.
Several witnesses testified, including the parties. Wife’s proof largely showed that Wife’s
contributions to the marriage came in the form of caring for the parties’ children and
maintaining the household. Wife testified that she earned money from interior design jobs
sporadically but that she would cancel jobs when they interfered with the children’s busy
schedules. Because Father no longer has any contact with his children, Mother is their sole
caretaker, and she testified that her days are consumed with their various activities. Both
children are heavily involved in sports, and Wife and both children travel several weekends
out of each month for the son’s travel baseball league. The son’s therapist testified that
son’s heavy involvement in sports is imperative to his mental health, which suffered
significantly as a result of witnessing Husband’s abuse of Wife. Wife also offered proof
regarding the renovations to the Lookout Point residence, the Cabin, and the Church Street
property in furtherance of her theory that the properties, although largely purchased by
Husband before the marriage, transmutated into marital property during the marriage.
In contrast, Husband testified that he did not intend for any of the real properties to
be marital, that they are all titled in his name only, and that Wife’s credit was not used to
finance or renovate any of the properties. It was undisputed, however, that all three
properties underwent renovations with funds from the parties’ joint bank account during
the marriage and that expenses for all properties were also paid out of the joint bank
account. Both parties maintained at trial that they are incapable of holding full-time
employment; Wife because she is nearing retirement age and is the sole caregiver for the
parties’ children, and Husband because of the mandatory retirement age for
anesthesiologists, which Husband testified is 65.5
4
Wife and the children have resided in the Lookout Point residence during the pendency of this
case.
5
Husband was 63 at the time of trial. Wife was 54.
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The trial court entered its initial findings of fact and conclusions of law on
November 30, 2017. The trial court noted that Husband and Wife now have equal income-
earning ability because while Wife has no college degree and very little work experience,
Husband is unable to continue in anesthesiology due to the mandatory retirement age.
Nonetheless, the trial court cited the domestic abuse by Husband and found that Husband
was largely at fault for the divorce. The trial court awarded Wife $5,000.00 in alimony per
month for thirty-six months. Wife was also awarded half of the funds that remained in the
parties’ joint bank account, which at the time of trial had a balance of $255,000.00.6
With regard to the real properties, the trial court found that both the Lookout Point
residence and the Cabin were Husband’s separate property and that no transmutation had
occurred. However, because both properties were renovated during the marriage, the trial
court awarded Wife one-half of the cost of the renovations for each property. Husband
was ordered to remain responsible for the HELOC on the Lookout Point residence.7
Addressing the Church Street property, the trial court noted that $65,000.00 in
marital funds was used to fully acquire the property and that an additional $150,000.00 in
marital funds was used to renovate the property. Ultimately, however, the trial court
classified the Church Street property as Husband’s separate asset and held that Wife is not
entitled to any share of this property. As to Husband’s 401(k), the trial court classified the
account as a marital asset and ordered the parties to divide it equally. The amount of the
401(k) at the time of trial was approximately $1,391,308.85. The trial court also found that
Husband did not dissipate the parties’ marital assets during the period of separation before
trial, despite the proof showing that Husband engaged in high-risk stock trading after the
parties separated. Finally, the trial court ordered both parties to pay their own attorney’s
fees.
Although the trial court entered its initial findings of fact and conclusions of law in
November of 2017, the issue of child support was left outstanding and was referred to a
child support magistrate. Consequently, a final order could not be entered, and the case
languished. Both parties filed post-trial motions. Husband essentially asked the trial court
to amend its findings of fact and conclusions of law as to Husband’s 401(k) and to
reconsider its alimony award to Wife. Wife asked the trial court to alter or amend its
classification of the Lookout Point residence, the Cabin, and the Church Street property as
Husband’s separate assets. Additionally, Wife asked the trial court to enter a judgment
against Husband for $127,500.00 based on the fact that after trial, but before a final
judgment could be entered, Husband spent the remaining funds in the parties’ joint bank
6
Wife testified that she was not allowed access to the joint account after the separation and that she
depends on Husband to send her support payments.
7
It is undisputed that funds from the HELOC were not actually used to improve the Lookout Point
residence; rather, the parties used the HELOC to pay other expenses such as buying cars, paying off
outstanding bills from Wife’s previous divorce, and investing in the stock market.
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account, which was a marital asset but to which Wife had not had access since the parties
separated. Wife later made the same request with regard to Husband’s 401(k), arguing that
since trial, Husband had withdrawn $163,000.00 from the account. Wife asserted she was
entitled to an offset of $163,000.00.
The trial court heard arguments on the parties’ motions and entered amended
findings and conclusions on November 20, 2018. However, the trial court’s decision
regarding the alimony, the 401(k), and the division of real property did not change. On
September 26, 2019, the trial court entered the final decree of divorce in which it denied
all outstanding motions and declined to award Wife any offsets for Husband’s post-trial
spending. Husband timely appealed to this Court.
Issues
Husband raises two issues on appeal:
1. Whether the trial court erred in awarding Wife $5,000.00 per month for
thirty-six months in alimony.
2. Whether the trial court erred in classifying Husband’s 401(k) as a marital
asset and dividing it equally between the parties.
Wife also raises a host of issues on appeal, which are slightly restated as follows:
3. Whether the trial court erred in classifying the Lookout Point residence as
Husband’s separate property.
4. Whether the trial court erred in classifying the Cabin as Husband’s separate
property.
5. Whether the trial court erred in classifying the Church Street property as
Husband’s separate property.
6. Whether the trial court erred in declining to award Wife alimony in futuro.
7. Whether the trial court erred in concluding that Husband did not dissipate
the parties’ marital assets.
8. Whether the trial court erred in denying Wife’s motion for an additional
award of $127,500.00 based upon Husband’s withdrawal of funds from the
parties’ joint checking account between trial and the entry of the final decree
of divorce.
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9. Whether the trial court erred in denying Wife’s motion for an additional
award of $163,000.00 based upon Husband’s withdrawal of funds from his
401(k) between trial and the entry of the final decree of divorce.
10. Whether the trial court erred in declining to award Wife her attorney’s fees
at trial.
11. Whether Wife is entitled to her attorney’s fees incurred on appeal.
Discussion
A. Classification and Division of Property
1. Classification
The bulk of the issues on appeal deal with the trial court’s classification and division
of the parties’ assets. “Trial courts are vested with a great deal of discretion when
classifying and dividing the marital estate, and their decisions are entitled to great weight
on appeal.” Eldridge v. Eldridge, 137 S.W.3d 1, 12 (Tenn. Ct. App. 2002). As such, this
Court will not interfere “unless the [trial] court’s decision is contrary to the preponderance
of the evidence or is based on an error of law[.]” Id.
It is helpful to begin with a brief overview of our divorce jurisprudence. As a “dual
property” state, Tennessee distinguishes between separate property and marital property.
Id. (citing Batson v. Batson, 769 S.W.2d 849, 856 (Tenn. Ct. App. 1988)). In a divorce
action, only marital property is subject to division between the parties. Id. at 13 (citing
Tenn. Code Ann. § 36-4-121); see also Keyt v. Keyt, 244 S.W.3d 321, 328 (Tenn. 2007)
(“[C]ourts do not have the authority to make an equitable distribution of separate
property[.]” (citing Cutsinger v. Cutsinger, 917 S.W.2d 238, 241 (Tenn. Ct. App. 1995))).
It is therefore “of primary importance for the trial court to classify property as separate or
marital” before it can equitably divide the property between the parties. Eldridge, 137
S.W.3d at 12–13 (citing Brock v. Brock, 941 S.W.2d 896, 900 (Tenn. Ct. App. 1996)).
Separate property is:
(A) All real and personal property owned by a spouse before marriage,
including, but not limited to, assets held in individual retirement accounts
(IRAs) as that term is defined in the Internal Revenue Code of 1986 (26
U.S.C.), as amended;
(B) Property acquired in exchange for property acquired before the marriage;
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(C) Income from and appreciation of property owned by a spouse before
marriage except when characterized as marital property under subdivision
(b)(1);
(D) Property acquired by a spouse at any time by gift, bequest, devise or
descent;
(E) Pain and suffering awards, victim of crime compensation awards, future
medical expenses, and future lost wages; and
(F) Property acquired by a spouse after an order of legal separation where the
court has made a final disposition of property.
Tenn. Code Ann. § 36-4-121(b)(2). Marital property is defined in pertinent part as:
(A) [A]ll real and personal property, both tangible and intangible, acquired
by either or both spouses during the course of the marriage up to the date of
the final divorce hearing and owned by either or both spouses as of the date
of filing of a complaint for divorce[.]
(B)(i) “Marital property” includes income from, and any increase in the value
during the marriage of, property determined to be separate property in
accordance with subdivision (b)(2) if each party substantially contributed to
its preservation and appreciation[.]
Tenn. Code Ann. § 36-4-121(b)(1).
“Nonetheless, it is well-settled that separate property is not indelibly separate;
rather, separate property can be treated in ‘such a way as to give evidence of an intention
that it is to become marital property.’” Carter v. Browne, No. W2019-00429-COA-R3-
CV, 2019 WL 424201, at *9 (Tenn. Ct. App. Feb. 4, 2019) (quoting Smith v. Smith, 93
S.W.3d 871, 875 (Tenn. Ct. App. 2002)); see also Eldridge, 137 S.W.3d at 13 (“[S]eparate
property can become part of the marital estate due to the parties’ treatment of the separate
property.”). This change can occur through transmutation or commingling. Eldridge, 137
S.W.3d at 13. Our Supreme Court has explained transmutation and commingling as
follows:
Separate property becomes marital property by commingling if inextricably
mingled with marital property or with the separate property of the other
spouse. If the separate property continues to be segregated or can be traced
into its product, commingling does not occur.... Transmutation occurs when
separate property is treated in such a way as to give evidence of an intention
that it become marital property.... The rationale underlying these doctrines
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is that dealing with property in these ways creates a rebuttable presumption
of a gift to the marital estate. This presumption is based also upon the
provision in many marital property statutes that property acquired during the
marriage is presumed to be marital. The presumption can be rebutted by
evidence of circumstances or communications clearly indicating an intent
that the property remain separate.
Langschmidt v. Langschmidt, 81 S.W.3d 741, 747 (Tenn. 2002) (citing 2 Homer H.
Clark, The Law of Domestic Relations in the United States § 16.2 at 185 (2d ed. 1987)).
Transmutation often occurs when a spouse purchases real property prior to the marriage
and the parties then use the property as the marital residence and undertake significant
improvements to the property during the marriage. See, e.g., Lewis v. Lewis, No. W2019-
00542-COA-R3-CV, 2020 WL 4668091, at *4 (Tenn. Ct. App. Aug. 11, 2020) (collecting
cases); Carter, 2019 WL 424201, at *12 (concluding that home owned by wife prior to
marriage became marital property through transmutation when “parties made the decision
to improve the property together [and used] marital funds to make purchases for the
renovations”); Hayes v. Hayes, No. W2010-02015-COA-R3-CV, 2012 WL 4936282, at
*12 (Tenn. Ct. App. Oct. 18, 2012) (holding that home purchased by wife prior to marriage
converted into marital property after “both parties borrowed money from the equity in the
home” and “[h]usband consistently made significant improvements to the home”). We
look to the following factors to determine whether a home owned by a spouse prior to
marriage has become marital property through transmutation:
(1) the use of the property as a marital residence; (2) the ongoing
maintenance and management of the property by both parties; (3)
placing the title to the property in joint ownership; and (4) using the
credit of the non-owner spouse to improve the property.
Hayes, 2012 WL 4936282, at *12 (citing Fox v. Fox, No. M2004-02616-COA-R3-CV,
2006 WL 2535407, at *5 (Tenn. Ct. App. Sept. 1, 2006)). No single factor is determinative,
and whether transmutation has occurred depends on the particular facts and circumstances
of each case. Id.
In the present case, the parties dispute the classification of several assets. We begin
with the real properties.8
8
At the outset of this section, we note that at times during the litigation the parties have disagreed
on the exact value of the real properties at issue as well as the exact amount spent on renovations and
improvements. Nonetheless, the trial court made findings regarding the value of each of the real properties
as well as the amount of money spent improving them. Neither Husband nor Wife has raised as an issue
on appeal the trial court’s valuation of the real properties or their improvements, and as such we do not
reevaluate those findings here.
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a. The Lookout Point residence
On appeal, Husband argues that the trial court correctly classified the Lookout Point
residence as his separate property, while Wife asserts that the home became a marital asset
through transmutation. Addressing the Lookout Point residence, the trial court found, in
relevant part, the following:
This Court finds the residence located at 10900 Lookout Point was
owned by the Husband prior to the marriage and was purchased by him in
1989 for approximately $339,000.00. The mortgage for the Lookout Point
residence was paid off approximately three years into the marriage. The
Court finds that Husband never transferred nor intended to transfer title of
this property to Wife. This Court also finds that Wife’s credit was never used
to purchase, or improve the marital residence. . . .The monies used for the
upkeep and maintenance in the operation of the marital home came from the
parties’ joint funds which were earned by the Husband during the marriage
and prior to the time of the separation.
This Court finds Husband has continued to pay the taxes on the marital
residence since the time of the parties’ separation in October of 2010. Also,
approximately $169,911.20 was spent on renovations and improvements of
the marital residence during the time of the marriage. The most recent
appraised value of the marital residence was $600,000.00.
The marital residence was purchased by Husband in 1989 as separate
marital property and Husband has continued to treat it as separate marital
property and no transmutation or co[m]mingling has occurred.
Addressing the increased value of the Lookout Point residence, the trial court explained:
As the Court has previously noted, [the funds for renovation] were
expended from the parties’ marital funds which were earned by Husband
with Wife making no monetary contribution, but contributions in the form of
helping to pick out fabrics and other design elements of the renovation and
remodeling. No proof of any substantial contribution by Wife to the increase
in value was presented.
Having thoroughly reviewed the record, we must conclude that the evidence
preponderates against the trial court’s finding that the Lookout Point residence remained
Husband’s separate property. First, it is undisputed that the parties used the Lookout Point
residence as their family home. Second, both parties contributed to ongoing management
and maintenance of the property, both during the marriage and during the period of
separation before trial. It is undisputed that when the parties resided together, Husband
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worked long hours and Wife cared for the home as well as the parties’ children. The record
demonstrates that Wife paid bills for the home out of the parties’ joint bank account, helped
plan renovations on the home, planted flowers, etc. Wife was also ordered by the trial court
early in the litigation to pay for the utilities and maintenance expenses on the home while
she and the children continued residing there. The record clearly reflects that Wife
contributed greatly to the ongoing management and maintenance of the Lookout Point
residence.
The third transmutation factor, whether the home is titled jointly, obviously militates
against a finding of transmutation in this case because the Lookout Point residence is titled
in Husband’s name only. However, it is well-established that “record ownership of an asset
does not always control its classification.” Malmquist v. Malmquist, No. W2007-02373-
COA-R3-CV, 2011 WL 1087206, at *25 (Tenn. Ct. App. Mar. 25, 2011); see also Altman
v. Altman, 181 S.W.3d 676, 680–81 (Tenn. Ct. App. 2005) (“[T]he classification of
property does not depend on the state of its record title but on the conduct of the parties.”).
Moreover, the fourth factor strongly favors a finding of transmutation in light of the proof
that the parties did substantial renovations on the Lookout Point residence with marital
funds. Wife was heavily involved in the improvement process and often wrote checks out
the parties’ joint bank account to pay for the improvements. Wife also testified that many
of the renovations were done to make the Lookout Point residence more amenable to Wife
and the children. For instance, Wife testified that the master bathroom and the laundry
room were completely renovated to her specifications and that a play space for the children
was added near the laundry room. Although both the trial court and Husband make much
of the fact that Wife’s credit was never used to fund the improvements, this is inapposite
in light of the fact that no party’s credit was needed because the renovations were paid for
outright with marital funds.9
While Husband asserts that he never intended for the Lookout Point residence to
become a marital asset, the only evidence offered to this effect was Husband’s testimony,
which Wife disputed. Absent any additional evidence from Husband, it appears his “intent
to keep [the home] as his separate property surfaced only after the demise of the marriage.”
Phipps v. Phipps, No. E2014-00922-COA-R3-CV, 2015 WL 335843, at *5 (Tenn. Ct. App.
Jan. 27, 2015). Indeed, Husband’s conduct during the marriage suggests otherwise. Under
all of these circumstances, we must conclude that the evidence in the record preponderates
against the trial court’s finding that the Lookout Point residence remained Husband’s
9
Taking a position incongruent with both our statutes and well-settled case law, the trial court and
Husband also rely heavily on the fact that the money spent on the improvements, although it came from the
parties’ joint bank account, was earned by Husband with “no financial contribution” from Wife. However,
the money used on the improvements was marital. See Tenn. Code Ann. § 36-4-121(b)(1)(A) (“‘Marital
property’ means all real and personal property, both tangible and intangible, acquired by either or both
spouses during the course of the marriage.”); Lewis v. Lewis, No. W2019-00542-COA-R3-CV, 2020 WL
4668091, at *4 (Tenn. Ct. App. Aug. 11, 2020) (“Significant to this case, a spouse’s earnings are marital
property, regardless of whether they are deposited into a joint or separate bank account.”).
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separate property. We hold that the evidence preponderates in favor of a finding that the
Lookout Point residence became marital property and should have been included in the
parties’ marital estate for purposes of the trial court’s division of property.
b. The Cabin
With respect to the Cabin, which was also purchased by Husband before the
marriage, the trial court found the following:
Husband purchased the property referred [sic] by the parties as [the
Cabin] located at 6634 Highway 80 S. in Burnsville, North Carolina, prior to
the marriage. . . .Wife’s credit was never used to purchase or renovate this
property, and Husband never intended to make Wife a co-owner of this
property.
During the time of the marriage, approximately $360,000.00 of
marital funds were expended on renovations. Additionally, there was a barn
constructed using marital funds on the property that cost approximately
$69,000.00. The most recent appraisal of the property is $440,000.00. There
is no debt owed on this property.
The Court finds that Husband purchased the property located at 6634
Highway 80 S. in Burnsville, North Carolina, as separate property and
Husband has continued to treat it as separate marital property and no
transmutation or co[m]mingling has occurred. It is the Court’s opinion the
6634 Highway 80 South property is the separate property of Husband and
shall therefore be awarded to him as his separate asset.
The Court finds there has been an approximate increase in value of
$290,000.00 since the purchase of the property in 1993. . . . As this Court has
previously noted, approximately $36,000.00 [sic] was expended from the
parties’ marital funds which were earned by Husband, with Wife making no
monetary contribution but contributions in the form of helping to pick out
fabrics and other design elements of the renovation and remodeling. No proof
of any substantial contribution by Wife to the increase in value was
presented.
We must again conclude that the trial court’s findings are unsupported by the record.
Although the Cabin was not used as the primary marital residence, the parties frequented
the Cabin on the weekends and during weeks Husband was off work. Husband himself
testified that the parties undertook the extensive renovations on the Cabin so that it could
be used as a family vacation home sufficient to accommodate the parties’ children.
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It is also undisputed that at the time Husband bought the Cabin, it was a plot of land
with a small, almost makeshift cabin that the previous owner used as a barn. Husband
testified that the structure was not a suitable home at the time it was purchased. The record
suggests it was not until after the parties married and expended a considerable amount of
time and money on the renovations that the Cabin became the valuable real property it is
now. Again, both Husband and the trial court rely heavily on the fact that the Cabin was
not titled in Wife’s name, as well as the fact that Wife’s credit was not used to improve the
property. Like the Lookout Point residence, however, no party’s credit was used to
improve the property because the parties were able to pay for all improvements up front.
Also like the Lookout Point residence, Wife was heavily involved in the renovations, and
they were to done to her specifications. A full kitchen was added, as well as additional
bedrooms for the parties’ children, which evidences a clear intent to use the Cabin for
family purposes. In light of the parties’ conduct and their treatment of the Cabin, we are
unpersuaded by the fact that the Cabin was not titled in Wife’s name. See Altman, 181
S.W.3d at 680–81.
The trial court again gives undue weight to the fact that Wife did not financially
contribute to the parties’ estate during the marriage, noting that Wife’s contribution to the
improvements to the Cabin came only in the form of “pick[ing] out fabrics and other design
elements[.]” However, the record does not support this finding in light of the fact that the
improvements were paid for with marital funds. Lewis, 2020 WL 4668091, at *4
(explaining that “[a] spouse’s earnings are marital property[,]” and that the use of marital
funds to improve a property is persuasive evidence of transmutation).
Consequently, we conclude that the evidence preponderates against the trial court’s
finding that the Cabin remained Husband’s separate asset. Rather, the evidence
preponderates in favor of a finding that the Cabin became marital property through
transmutation and should have been included in the parties’ marital estate for purposes of
the division of property.
c. The Church Street property
Finally, the trial court also classified the Church Street property as Husband’s
separate asset and awarded Wife no share:
Husband’s name was on the deed to the Church Street property
prior to the marriage. Husband’s brother had granted him a one-half
interest in the property via warranty deed dated March 2, 2000.
Husband’s brother deeded the remaining one-half interest in the
property to Husband approximately seven months after the parties
married.
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Marital funds were used in the approximate amount of
$65,000.00 in order to help Husband’s brother avoid foreclosure
on the property. However, Wife’s name was never placed on the
deed for the Church Street property, nor was Wife’s credit ever used
in acquiring this property.
The parties spent approximately $150,000.00 of marital
funds in renovating the Church Street property. The appraised
value of the Church Street property is $145,000.00. . . . Husband has
been paying the taxes on this property as well as utility payments on
the property. . . . The Court is aware that approximately $65,000.00
of marital funds were used to avoid foreclosure on this property, and
an additional $150,000.00 of marital funds were used for the
renovation this property. However, these funds were earned by
Husband with no financial contribution by Wife. . . . Therefore, this
Court finds Wife is not entitled to any share of this property and it
shall be awarded to Husband as his separate property.
Like the Lookout Point residence and the Cabin, we conclude that the evidence
preponderates against the trial court’s findings as to the Church Street property. It is
undisputed that Husband acquired a one-half undivided interest in the Church Street
property shortly before the marriage. However, the parties acquired the Church Street
property in full after they married, using $65,000.00 in marital funds. Consequently, only
part of Husband’s interest in the Church Street property could be considered separate
property because it was acquired before the marriage. See Tenn. Code Ann. § 36-4-
121(b)(2). The trial court therefore erred in classifying the Church Street property as
Husband’s entirely separate asset. See Climer v. Climer, No. W2018-01910-COA-R3-CV,
2020 WL 468915, at *5 (Tenn. Ct. App. Jan. 29, 2020) (“As a general rule, assets acquired
by either spouse during the marriage are presumed to be marital property.” (citing Williams
v. Williams, No. W2018-00800-COA-R3-CV, 2019 WL 1375218, at *6 (Tenn. Ct. App.
Mar. 26, 2019))). In any event, this error is inapposite because we conclude that any
interest Husband had in the Church Street property as his separate asset became marital
property through transmutation.
For the same reasons addressed with regard to the Lookout Point residence and the
Cabin, we conclude that the Church Street property transmutated fully into marital property
during the marriage based upon the conduct of the parties. The parties used $65,000.00 in
marital funds to purchase the property in full in November of 2000, and then proceeded to
spend another $150,000.00 in marital funds on substantial renovations. Wife testified that
she helped manage the renovations, and Husband did not offer anything to dispute that
testimony, nor did Husband dispute that the taxes, utilities, and general upkeep of the
Church Street property have been paid for with marital funds. Although it is not clear from
the record how much time the parties spent together at the Church Street property, Husband
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testified that they purchased the property so that the family might have another place to
stay when visiting Burnsville, North Carolina.10 Yet again, Husband’s conduct speaks
louder than his uncorroborated assertion at trial that the Church Street property remained
separate.
In light of the substantial efforts and marital funds expended on improving the
Church Street property, we conclude that the evidence preponderates against the trial
court’s finding that the Church Street property is Husband’s separate asset and find that the
property transmutated into marital property during the marriage. See Lewis, 2020 WL
4668091, at *4.
“As the proponent of transmutation, Wife [had] the burden of establishing same.”
Wright v. Wright, No. W2018-02163-COA-R3-CV, 2020 WL 1079266, at *10 (Tenn. Ct.
App. Mar. 6, 2020) (citing Nesbitt v. Nesbitt, No. M2006-02645-COA-R3-CV, 2009 WL
112538, at *9 (Tenn. Ct. App. Jan. 14, 2009)). Wife met her burden by offering proof that
the parties treated the Lookout Point residence, the Cabin, and the Church Street property
as marital property not only by substantially improving each property, but by improving
the properties specifically to make them more suitable for family use. While Husband
testified that he did not intend for the real properties to become joint properties, this
allegation “surfaced only after the demise of the marriage” and finds no other support in
the record. Phipps, 2015 WL 335843, at *5. More importantly, the record establishes that
Husband’s own conduct during the marriage evinced an intention that the real properties
be treated as marital. We conclude that the trial court erred in classifying the Lookout
Point residence, the Cabin, and the Church Street property as Husband’s separate property,
and we hold that all three properties should have been included in the parties’ marital estate
for purposes of an equitable division. The trial court’s decision as to the classification of
all three properties is therefore reversed.
Having resolved the issues regarding the parties’ real properties, we turn to the next
asset at issue, Husband’s 401(k).
d. Husband’s 401(k)
Tenn. Code Ann. section 36-4-121(b)(2)(A) provides that “[s]eparate property”
means . . . [a]ll real and personal property owned by a spouse before marriage[.]” On the
other hand, marital property includes “the value of . . . retirement and other fringe benefit
rights accrued as a result of employment during the marriage[.]” Tenn. Code Ann. § 36-4-
121(b)(1)(B)(ii). With regard to 401(k) accounts, our Supreme Court has previously held
that “the portion of a 401(k) account existing on the date of marriage remains separate
property.” Snodgrass v. Snodgrass, 295 S.W.3d 240, 251, 255 (Tenn. 2009); see also
Erdman v. Erdman, No. M2018-01668-COA-R3-CV, 2019 WL 6716305, at *2 (Tenn. Ct.
10
Father and his family are from Burnsville.
- 15 -
App. Dec. 10, 2019) (noting that premarital balance of husband’s 401(k) was “without a
doubt . . . his separate property at the time of marriage”). “Once the property is determined
to be a pension, stock option, retirement or other fringe benefit right relating to
employment, the issue becomes one of determining the value of that benefit that accrued
during the marriage.” Snodgrass, 295 S.W.3d at 247–48. Courts are then “directed by
statute to identify gains in a 401(k) attributable to premarital separate property and those
gains attributable to contributions made during the marriage.” Erdman, 2019 WL 6716305,
at *3 (citing Tenn. Code Ann. § 36-4-121(b)(1)(B)(iii)). “Indeed, [section 36-4-
121(b)(1)(B)(iii)] states as follows:”
The account balance, accrued benefit, or other value of vested and unvested
pension benefits, vested and unvested stock option rights, retirement, and
other fringe benefits accrued as a result of employment prior to the marriage,
together with the appreciation of the value, shall be “separate property.” In
determining appreciation for purposes of this subdivision (b)(1)(B)(iii), the
court shall utilize any reasonable method of accounting to attribute
postmarital appreciation to the value of the premarital benefits, even though
contributions have been made to the account or accounts during the marriage,
and even though the contributions have appreciated in value during the
marriage; provided, however, the contributions made during the marriage, if
made as a result of employment during the marriage and the appreciation
attributable to these contributions, would be “marital property.” When
determining appreciation pursuant to this subdivision (b)(1)(B)(iii), the
concepts of commingling and transmutation shall not apply[.]
Id. (bracketing in original).
In the present case, the trial court classified Husband’s entire 401(k) as a marital
asset and ordered the parties to divide it equally:
The Husband has a 401(k) account that was established prior to the
marriage. However, the Court was unable to determine the value of the
401(k), if any, at the time of the parties’ marriage. Without being able to
determine the value at the time of the marriage, this Court is of the opinion
that a fair and equitable division of the 401(k) would be a 50/50 even split
between the parties.
On appeal, Husband asserts that the trial court erred in concluding that because it
could not determine the exact premarital value of the 401(k) in light of the conflicting
evidence, the 401(k) should be classified as a marital asset and divided equally. Because
it is clear that Husband’s 401(k) was part marital and part separate, we agree with Husband.
It is undisputed that Husband’s 401(k) has a premarital component that was established
before the parties married in 2000. Husband also does not dispute that contributions were
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made to the 401(k) during the marriage and that Wife is entitled to a portion of the account.
See Tenn. Code Ann. § 36-4-121(b)(1)(B)(ii). Consequently, the pertinent issues here are
the balance of Husband’s 401(k) at the time of the marriage, and the appreciation
attributable to the premarital and postmarital contributions. Erdman, 2019 WL 6716305,
at *3; Tenn. Code Ann. § 36-4-121(b)(1)(B)(iii).
The value given an asset by the trial court is a question of fact that we afford great
weight on appeal. Powell v. Powell, 124 S.W.3d 100, 103 (Tenn. Ct. App. 2003) (citing
Wallace v. Wallace, 733 S.W.2d 102, 107 (Tenn. Ct. App. 1987)). An asset’s value is
assigned “by considering all the relevant evidence regarding value[,]” keeping in mind that
the parties bear the burden of producing competent evidence of value. Id. at 104. When
the parties offer conflicting evidence of value, the trial court “may assign a value that is
within the range of values supported by the evidence.” Id. at 106 (citing Ray v. Ray, 916
S.W.2d 469, 470 (Tenn. Ct. App. 1995)).
At the time of trial, the balance of the 401(k) was $1,391,308.85. Wife testified that
she believed the value of the 401(k) at the time of marriage was $385,000.00. Wife also
offered a 2003 statement from the 401(k) reflecting that the balance was $468,000.00 as of
May of 2003. Husband testified that he believed the balance of the 401(k) at the time of
marriage was $656,080.66, but offered no further proof as to that amount.11 Accordingly,
depending upon which party’s proof the trial court credits, the range of values supported
by the evidence as to the premarital component of the 401(k) was $385,000.00 to
$656,080.66. Neither party, however, offered proof as to the appreciation attributable to
the premarital value or the postmarital contributions, nor did the trial court make any
findings on same.
In light of the undisputed evidence that Husband’s 401(k) has a premarital
component that remained his separate asset, the trial court’s decision to classify the entire
401(k) as a marital asset is an error of law that warrants reversal. See Snodgrass, 295
S.W.3d at 251 (“That portion of a 401(k) account existing on the date of marriage remains
separate property.”); Erdman, 2019 WL 6716305, at *2 (“[P]roperty cannot be included in
the marital estate unless it meets the definition of ‘marital property’ contained within the
Tennessee Code.” (quoting Bewick v. Bewick, No. M2015-02009-COA-R3-CV, 2017 WL
568544, at *7 (Tenn. Ct. App. Feb. 13, 2017))); see also Eldridge, 137 S.W.3d at 12 (noting
that a trial court’s classification of assets may be reversed when based on an error of law).
The trial court’s classification of Husband’s 401(k) must be reversed and remanded so that
the trial court can determine the premarital value of the 401(k), as well as the appreciation
11
Husband attempted to offer further evidence regarding the balance of his 401(k) at trial; however,
Wife’s counsel objected on the ground of completeness because a portion of the account statement was
missing. The trial court sustained Wife’s objection. Husband has not raised the trial court’s ruling on that
objection as an issue on appeal. Consequently, the only evidence in the record from Husband as to the
value of the 401(k) at the time of marriage is his own testimony.
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attributable to the premarital and postmarital contributions. 12 Tenn. Code Ann. § 36-4-
121(b)(1)(B)(iii).
2. Equitable Division
“The division of marital property is essentially a three-step process.” Melvin v.
Johnson-Melvin, No. M2004-02106-COA-R3-CV, 2006 WL 1132042, at *10 (Tenn. Ct.
App. Apr. 27, 2006). The first step, which we have already addressed, requires the trial
court to classify the parties’ property as separate or marital, and the second step is to value
the marital property. Id. The final step is to equitably divide the marital property in
accordance with the factors provided in Tenn. Code Ann. section 36-4-121(c). Id.
“Following this approach generally yields consistent and equitable results.” Id.
In the case at bar, the first step in this equation, classification, was substantially
incorrect. This Court has previously held that when a significant marital asset’s
classification changes on appeal, it may be necessary “to remand the case to the trial court
for reconsideration of its equitable division of the marital estate in light of” the holding.
See, e.g., Carter, 2019 WL 424201, at *12 (vacating and remanding the trial court’s
division of marital property based upon the reclassification of a significant piece of real
property); Hayes, 2012 WL 4936282, at *13 (same).
Here, several assets of substantial value have changed classification on appeal, and
such significant changes to “the marital estate may change the manner in which the trial
court would choose to divide the rest of the parties’ assets and debts.” Hayes, 2012 WL
4936282, at *13. Accordingly, we deem it prudent to remand the case to the trial court for
reconsideration of its equitable division of the marital estate. Id.
While we have concluded that the trial court must reconsider the equitable division
of marital property on remand, Wife has raised an independent issue regarding equitable
division that can be decided on appeal. Specifically, Wife asserts that Husband dissipated
marital assets through irresponsible investment strategies after the parties separated.
Because the trial court made detailed findings of fact and conclusions of law on this issue,
and in the interest of resolving this protracted litigation, we will consider whether the trial
court correctly reached its conclusion on this narrow issue.
Whether a party has dissipated marital or separate assets is one of the factors a trial
court should consider in equitably dividing a marital estate. Tenn. Code Ann. § 36-4-
121(c)(5). Regarding dissipation of assets, our Supreme Court has previously explained:
12
In its discretion, the trial court is free to take additional proof, including expert proof, to resolve
this issue. Erdman, 2019 WL 6716305, at *3.
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Whether dissipation has occurred depends on the facts of the
particular case. 24 Am. Jur. 2d Divorce and Separation § 526 (2009). The
party alleging dissipation carries the initial burden of production and the
burden of persuasion at trial. Burden v. Burden, 250 S.W.3d 899, 919 (Tenn.
Ct. App. 2007), perm. to app. denied, (Tenn. Feb. 25, 2008). Dissipation of
marital property occurs when one spouse wastes marital property and thereby
reduces the marital property available for equitable distribution. See Altman
v. Altman, 181 S.W.3d 676, 681–82 (Tenn. Ct. App. 2005), perm. to app.
denied, (Tenn. Oct. 31, 2005). Dissipation “typically refers to the use of
funds after a marriage is irretrievably broken,” Broadbent v. Broadbent, 211
S.W.3d 216, 220 (Tenn. 2006), is made for a purpose unrelated to the
marriage, and is often intended to “hide, deplete, or divert” marital
property. Altman, 181 S.W.3d at 681–82. In determining whether dissipation
has occurred, trial courts must distinguish between dissipation and
discretionary spending. Burden, 250 S.W.3d at 919–20; 24 Am. Jur. 2d
Divorce and Separation § 526 (2009). Discretionary spending might be ill-
advised, but unlike dissipation, discretionary spending is typical of the
parties’ expenditures throughout the course of the marriage. Burden, 250
S.W.3d at 919–20.
Larsen-Ball v. Ball, 301 S.W.3d 228, 235 (Tenn. 2010). Whether dissipation has occurred
is a fact-specific analysis, but the most common factors to consider include:
(1) whether the expenditure benefitted the marriage or was made for a
purpose entirely unrelated to the marriage; (2) whether the expenditure or
transaction occurred when the parties were experiencing marital difficulties
or were contemplating divorce; (3) whether the expenditure was excessive or
de minimis; and (4) whether the dissipating party intended to hide, deplete,
or divert a marital asset.
Altman, 181 S.W.3d at 682 (citing Halkiades v. Halkiades, No. W2004-00226-COA-R3-
CV, 2004 WL 3021092, at *4 (Tenn. Ct. App. Dec. 29, 2004)).
Here, Wife’s dissipation claim is based on proof showing Husband engaged in high-
risk investing after the parties separated, resulting in losses to the overall marital estate.
Both parties offered expert proof at trial regarding Husband’s investment strategies, and
the trial court made the following relevant findings:
Much argument has been made concerning Husband investing in high
risk investments. However, it is not this Court’s position to judge the
investment acumen of Husband. There was no testimony presented to show
Husband made these high risk investments with the intent of dissipating the
marital estate.
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The trial court’s findings are supported by the record as to this issue. While Wife
offered expert proof at trial that Husband’s investment decisions after the demise of the
marriage were fairly risky and resulted in losses to the marital estate, Husband offered
competing proof that he was simply following the advice of his longtime financial advisor.
Wife offered no proof that Husband’s intent was to drain or deplete marital assets, and
Husband testified that this was never his intention. Although we agree with Wife that
Husband’s actions were not ideal given the circumstances, the record shows that his
behavior “was typical of the parties’ expenditures throughout the course of the marriage.”
Larsen-Ball, 301 S.W.2d at 235. Indeed, Husband testified that he lost money in the stock
market both before and during his marriage to Wife, and Wife offered nothing to dispute
this testimony. There is simply no evidence in the record that Husband’s investment
decisions made after the parties separated were made with intent to deplete marital funds
or different from his behavior during the marriage.
Accordingly, we conclude that the evidence does not preponderate against the trial
court’s finding that Husband did not dissipate the marital estate as a whole through his
investment strategy, and this portion of the trial court’s ruling is affirmed.
One final note is in order regarding equitable division of the parties’ marital estate
on remand. In its amended findings of fact and conclusions of law addressing division of
the parties’ property, the trial court repeatedly states that Wife made no financial
contributions to the family, and at several points notes that the money in the parties’ joint
checking account was money earned by Husband, through his employment, with no
contribution from Wife. In the trial court’s conclusions addressing division of property,
the only reference to Wife’s contributions to the marriage is a brief statement: “Wife’s
contribution to the family has been as a homemaker and otherwise limited her contributions
financially to the family and marriage.” The trial court’s conclusions addressing the
division of property ascribe more weight to Husband’s role as wage earner than to Wife’s
role as homemaker.13 Wife, however, has been the sole caregiver to the parties’ children
because Husband has not had contact with the children in several years and has not had
unsupervised visitation with them since 2010. Contrary to the findings of the trial court
and Husband’s contentions on appeal, Wife’s contribution to the family has been both
meaningful and substantial.
We need not expound further on this issue in light of our decision to vacate and
remand the division of the parties’ marital estate; however, failure to consider Husband’s
13
Much of the problematic language in the trial court’s order appears to have been adopted almost
verbatim from Husband’s proposed findings of fact and conclusions of law. This trial court has previously
been cautioned regarding the perils of entering findings and conclusions “nearly identical to those submitted
by [counsel.]” F&M Mktg. Servs., Inc. v. Christenberry Trucking and Farm, Inc., No. E2015-00266-COA-
R3-CV, 2015 WL 6122872, at *7 (Tenn. Ct. App. Oct. 19, 2015). Those perils are particularly evident here
because Husband’s proposed findings and conclusions place more weight on Husband’s role as wage
earner, a clear error of law.
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and Wife’s contributions equally would be a serious error of law in light of the longstanding
policy recognizing “the equal dignity and importance of the contributions to the family of
the homemaker and the breadwinner.” Shackelford v. Shackelford, No. M2018-01178-
COA-R3-CV, 2019 WL 2151684, at *12 (Tenn. Ct. App. May 16, 2019); see also Tenn.
Code Ann. § 36-4-121(c)(5)(a) (providing that contributions of the homemaker and wage
earner are given the same weight in the division of property if each party fulfills their
role). It is our sincere hope that the trial court will remedy this error in dividing the marital
estate on remand so as to avoid future appeals.
B. Wife’s Post-Trial Motions
We turn next to Wife’s post-trial motions, in which Wife essentially asked the trial
court to revise its findings of fact and conclusions of law based upon Wife’s averment that
Husband depleted two marital assets between the conclusion of trial and the entry of the
final order.14 Wife’s first motion was filed on May 25, 2018, and alleged that Husband had
used the parties’ joint checking account, which was undisputedly a marital asset, entirely
on Husband’s own expenses, including his support obligations. Later, but still before the
entry of the final decree of divorce, Wife made the same request with regard to Husband’s
401(k), from which Wife alleged Husband had withdrawn $163,000.00 since trial.15
At the outset, we note that Wife has couched her motions as Rule 59.04 motions to
alter or amend a judgment. However, at the time the motions were filed, there was no final
order because the issue of child support was not resolved and the final decree of divorce
had therefore not been entered. See Shofner v. Shofner, 181 S.W.3d 703, 712 (Tenn. Ct.
App. 2004) (“A final judgment is primarily one that fully adjudicates all the claims between
all the parties.” (citing Tenn. R. App. P. 3(a))). The trial court’s order was interlocutory at
the time and, consequently, Wife’s motions were substantively motions to revise an
interlocutory order pursuant to Tenn. R. Civ. P. 54.02. See Harris v. Chern, 33 S.W.3d
741, 744 (Tenn. 2000) (explaining that Rule 54.02 addresses interlocutory orders and
“confers upon the trial court ‘the privilege of reversing itself up to and including the date
of entry of a final judgment’” (quoting Louis Dreyfus Corp. v. Austin Co., 868 S.W.2d 649,
653 (Tenn. Ct. App. 1993))); Carter v. Carter, No. M2012-00342-COA-R3-CV, 2012 WL
14
It appears from the record that the substantial delay in entering the final order in this case is due
to the trial court declining to rule on child support and instead referring that issue to a child support
magistrate. Child support was not fully decided until May of 2019, over two years after the conclusion of
trial.
15
Wife’s second motion does not appear in the record. However, it is otherwise clear from the
record that Wife raised this issue in the trial court, and Husband has not asserted that Wife waived this
issue. We therefore consider whether the trial court erred in denying Wife’s second motion,
notwithstanding the absence of the actual motion from the record. See First Cmty. Bank, N.A. v. First
Tennessee Bank, N.A., 489 S.W.3d 369, 401 (Tenn. 2015) (“[D]etermining whether parties have waived
their right to raise an issue on appeal should not exalt form over substance . . . [a]ppellate courts must
carefully review the record to determine whether a party is actually raising an issue for the first time on
appeal.” (quoting Powell v. Cmty. Health Sys., 312 S.W.3d 496, 511 (Tenn. 2010))).
- 21 -
6743816, at *9 (Tenn. Ct. App. Dec. 28, 2012) (applying Rule 54.02 in the context of a
post-divorce matter and noting that “a non-final order is subject to revision at any time
before the entry of the judgment”). We treat Wife’s motions according to the substance
rather than Wife’s characterization. Ferguson v. Brown, 291 S.W.3d 381, 387 (Tenn. Ct.
App. 2008); In re Estate of Vaughn, No. W2018-01600-COA-R3-CV, 2019 WL 3812419,
at *6 (Tenn. Ct. App. Aug. 14, 2019) (collecting cases in which this Court considered Rule
59.04 motions under Rule 54.02 when the timing of the motion rendered Rule 54.02
applicable). In so treating Wife’s motions, we review the trial court’s denial of the motions
for an abuse of discretion. Harris, 33 S.W.3d at 746. Under this standard, the trial court’s
ruling “will be upheld so long as reasonable minds can disagree as to the propriety of the
decision[.]” Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012) (quoting
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)).
On appeal, Wife asserts that the trial court erred in denying her motions to revise
and asks this Court to enter a judgment in her favor for $127,500.00, half the value of the
joint checking account as it existed at the time of trial, as well as an additional $163,000.00
offset to account for the money spent from the 401(k). The record reflects that Husband
does not dispute spending Wife’s portion of the joint bank account, although he asserts that
his spending was appropriate because it went towards Wife’s support payments. Wife
argues that by Husband’s logic, she has been forced to pay for half of her own support
because the money for her alimony has been paid from a marital asset, rather than being
paid out of Husband’s many separate assets. The record does not reveal the reasons for
Husband’s withdrawals from the 401(k).
Unfortunately, we are without the benefit of any findings or analysis explaining the
trial court’s reason for denying Wife’s motions, rendering it difficult to determine whether
reasonable minds can disagree as to the decision. See Trezevant v. Trezevant, 568 S.W.3d
595, 622 (Tenn. Ct. App. 2018) (noting that this Court cannot determine whether a trial
court abused its discretion in the absence of factual findings by the trial court). Although
there is no dispute that the trial court heard Wife’s motions prior to entering the final decree
of divorce, the trial court did not enter an order on the motions. Rather, the final decree
states that all outstanding motions are dismissed and that the parties’ joint bank account
and the 401(k) are marital assets that should be divided equally. So, although the trial
clearly denied Wife’s motions, neither the final decree nor the amended findings of fact
and conclusions of law provide any explanation as to why.16
16
After the final decree of divorce was entered on September 26, 2019, a notice of appeal to this
Court was filed within thirty days. Well after the filing of the notice of appeal, on December 2, 2019, the
trial court entered an order titled “Order From Hearing Prior to Entry of Final Order for Divorce[,]” in
which the trial court purportedly denied Wife’s requests by stating that “Wife should not be entitled to an
offset for the funds withdrawn after the trial but before the entry of the Final Judgment.” We need not reach
the issue of whether the trial court retained subject matter jurisdiction to enter such an order because the
trial court had already denied all outstanding motions in its final decree. In any event, the December 2,
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Considering the foregoing, we simply cannot conclude that the trial court correctly
denied Wife’s motions, primarily because the trial court made no findings of fact or
conclusions of law addressing its ruling. See Harris, 33 S.W.3d at 754 (noting that when
trial courts rule on a Rule 54.02 motion, they “should make adequate findings of fact and
conclusions of law on the record to support their rulings”); Trezevant, 568 S.W.3d at 622
(explaining that when this Court is “left to wonder about the trial court’s decision[,]” we
are unable to conduct a meaningful appellate review). Husband has admitted to spending
Wife’s portion of the joint checking account on her own spousal support and, as we
perceive it, Husband’s actions warrant judicial attention in the trial court’s overall
distribution of marital property. This is especially true in light of the fact that the parties
agree that the checking account has been depleted entirely, and “by statute courts must rely
on the values of marital property as close in time as possible to the division of marital
property.” Trezevant, 568 S.W.3d at 623; see also Barton v. Barton, No. E2019-01136-
COA-R3-CV, 2020 WL 6580562, at *11 (Tenn. Ct. App. Nov. 10, 2020) (“Time does not
stand still, and we are mindful of the fact that the ‘value placed on marital property should,
as near as possible, reflect the value of the property on the date that it is divided.’” (quoting
Dobbs v. Dobbs, No. M2011-01523-COA-R3-CV, 2012 WL 3201938, at *3 n.3 (Tenn. Ct.
App. Aug. 7, 2012))).
Nonetheless, we are unable to determine from the record whether the trial court
abused its discretion in the absence of factual findings or conclusions of law. Moreover,
because the overall division of marital property is vacated and remanded for
reconsideration, we conclude that the trial court’s decision to deny Wife’s motions should
also be vacated and remanded for further consideration. On remand, the trial court must
make findings of fact and conclusions of law regarding whether Wife is entitled to any
offsets based upon Husband’s post-trial spending, and determine whether and to what
extent those findings affect the overall redistribution of the marital estate.17
C. Spousal Support
Turning to the issue of alimony, the trial court awarded Wife $5,000.00 per month
for thirty-six months as alimony in solido and denied Wife’s request for attorney’s fees.
While Husband asserts that the trial court erred in granting Wife alimony at all, Wife posits
2019 order is inapposite because the trial court’s findings as to this issue in both the final decree of divorce
and the December 2019 order are insufficient for meaningful appellate review.
17
The extent to which the trial court needs updated proof as to the valuation of the bank account,
the 401(k), and the remainder of the parties’ assets is left to the discretion of the trial court. See Barton,
2020 WL 6580562, at *11.
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that she should have been awarded alimony in futuro and that the trial court erred in
declining to award Wife her attorney’s fees.18
When a trial court determines whether and to what extent alimony is appropriate, it
must apply the statutory factors enumerated in Tenn. Code Ann. section 36-5-121(i).
Rather than tax the length of this opinion with a discussion of these factors, we note at the
outset that one of the alimony factors is “the provisions made with regard to the marital
property, as defined in § 36-4-121.” Tenn. Code Ann. § 36-5-121(i)(8). The trial court
must consider the manner in which the marital estate is divided when determining alimony,
and “the trial court may award spousal support only after the court has equitably divided
the parties’ marital property.” Trezevant, 568 S.W.3d at 624; see also Umstot v. Umstot,
968 S.W.2d 819, 824 (Tenn. Ct. App. 1997) (“A spouse with adequate property and income
is not entitled to an award of additional alimony[.]”). As such, it is sometimes necessary
to remand a trial court’s decision on alimony “by virtue of the need to re-evaluate the
marital estate.” Id.; see also Barton, 2020 WL 6580562, at *11 (vacating the trial court’s
award of attorney’s fees to wife after determining that issues of estate valuation and
distribution required reconsideration).
In the present case, our decision to remand this matter for reconsideration of the
division of marital property substantially alters the equities between the parties;
accordingly, Wife’s need for and Husband’s ability to pay alimony may very well change
on remand as well. Although this may not ring true for every case, it is especially true here
because neither party has worked in many years nor has plans to work. The property each
party takes with them from the marriage, therefore, will very much dictate their financial
standing. Consequently, we vacate and remand the trial court’s decision as to alimony and
Wife’s attorney’s fees.
D. Attorney’s Fees Incurred on Appeal
Finally, Wife asserts that she is entitled to attorney’s fees on appeal. This decision
is soundly within the discretion of this Court. Archer v. Archer, 907 S.W.2d 412, 419
(Tenn. Ct. App. 1995). “When considering a request for attorney’s fees on appeal, we also
consider the requesting party’s ability to pay such fees, the requesting party’s success on
appeal, whether the requesting party sought the appeal in good faith, and any other
equitable factors relevant in a given case.” Chaffin v. Ellis, 211 S.W.3d 264, 294 (Tenn.
Ct. App. 2006) (citing Darvarmanesh v. Gharacholou, No. M2004-00262-COA-R3-CV,
2005 WL 1684050, at *16 (Tenn. Ct. App. July 19, 2005)). Under all of the circumstances
of this case, we respectfully decline to award Wife her attorney’s fees incurred on appeal.
18
In divorce proceedings, an “award of attorney’s fees to an economically disadvantaged spouse is
generally considered an award of alimony in solido.” Trezevant, 568 S.W.3d at 624 (citing Gonsewski v.
Gonsewski, 350 S.W.3d 99 (Tenn. 2011)).
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Conclusion
The judgment of the Knox County Chancery Court is hereby reversed in part,
affirmed in part, vacated in part, and remanded for further proceedings consistent with this
opinion. Costs of this appeal are taxed equally between the appellant, Norris L. Dover, and
the appellee, Louise Helen Pack Dover, for which execution may issue if necessary.
KRISTI M. DAVIS, JUDGE
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