The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 12, 2013 Session
JENNIFER ANNE KRAUS v. BARRY MARTIN THOMAS
Appeal from the Circuit Court for Davidson County
No. 08D1698 Carol Soloman, Judge
No. M2012-00877-COA-R3-CV - Filed June 7, 2013
In this appeal from the Final Decree of Divorce, the father of the parties’ four minor children
challenges the division of marital property, the permanent parenting plan, an upward
deviation in child support of $16,875 per year to help pay for private school for three of the
children, and a $50,000 judgment for the mother’s attorney’s fees. We affirm the division of
the marital property and the parenting schedule. As for requiring the father to pay up to
$16,875 per year toward private school costs of three of the children, we have determined
that the trial court failed to apply the correct legal standard for such an upward deviation and
find that the father does not have the financial means to pay an upward deviation. As for
requiring the father to pay $50,000 of the mother’s attorney’s fees, we have determined that
she was given 60 percent of the marital assets and her income is substantially more than that
of the father’s, thus, applying the ability to pay and the need standard, we find no basis for
requiring the father to pay the mother’s attorney’s fees at trial or on appeal. Thus, we reverse
the award for attorney’s fees.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed in Part and Reversed in Part
F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, J.J., joined.
Gregory Dye Smith and Christopher Brett Jaeger, Nashville, Tennessee, for the appellant,
Barry Martin Thomas.
James Leroy Weatherly, Jr., for the appellee, Jennifer Anne Kraus.
OPINION
The parties in this action, Jennifer Kraus (“Mother”) and Barry Thomas (“Father”)
were married for fifteen years and have four minor children, ages 12, 10, 8, and 7.1 Father,
who was fifty-six years old at the time of the divorce, is employed as a satellite technician
for a television station in the Nashville area earning a salary of approximately $50,000 a year.
Father also receives approximately $12,996 a year in mandatory distributions from an
inherited IRA. Mother was forty-four years old at the time of trial and works for the same
television station as a television reporter and weekend anchor. It is undisputed that Mother’s
income is substantially greater than Father’s income.
Mother initiated the divorce proceedings by filing for divorce on June 13, 2008, citing
irreconcilable differences; Father filed an answer.2 An agreed order was entered during the
pendency of the divorce proceedings naming Mother as the primary residential parent and
ordering Father to pay $1,500 in pendente lite support.
A trial was held over five days in September and October of 2011, and February of
2012. The trial court issued its Final Order on April 2, 2012, which declared the parties
divorced pursuant to Tennessee Code Annotated § 36-4-129. Mother was designated the
primary residential parent and she was awarded 280 days of parenting time, Father was
awarded 85 days. Mother was given sole decision-making authority over the children’s non-
emergency health care and extracurricular activities. The parties were given joint decision-
making over the children’s religious upbringing. Father was ordered to pay child support of
$625.00 per month until the youngest child finished preschool and then Father’s obligation
would increase to $1,252 per month.
Mother was also vested with sole decision-making authority regarding the education
of the minor children and whether the three older children would remain in private school.
If the three older children remained in private school, Father was ordered to make an
application to the school for financial aid. Further, both parents were ordered to seek
financial assistance from the Doris Fox Generation Skipping Irrevocable Trust, of which
Father and the children were the beneficiaries, seeking distributions sufficient to cover the
1
Father has one child from a previous marriage and this child is not at issue in this appeal.
2
Mother subsequently filed an Amended and Supplemental Complaint alleging additional grounds
for divorce; Father answered denying the additional grounds and asserting grounds upon which he should
be granted the divorce. These additional grounds are not relevant to this appeal as the parties were declared
divorced pursuant to Tennessee Code Annotated § 36-4-129.
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remaining expenses.3 The order specified that in the event the Trustee, in its discretion, paid
less than the remaining expense for private schooling for the three children, and Mother
decided to leave the children in private school, Father was ordered to pay 75% of the
educational expenses or $16,875.00 per school year for the three oldest children, whichever
is less; Mother was required to pay any additional expenses. The court reserved any ruling
regarding private education of the youngest child, who was not yet in the first grade.
The trial court awarded Mother 60% of the marital property and ordered Father to pay
Mother’s attorney’s fees of $50,000.
This appeal by Father followed. Father challenges the division of marital property, the
permanent parenting plan, the upward deviation of child support requiring him to pay
$16,875 per year for private school tuition, and the award of Mother’s attorney’s fees.
Mother requests her attorney’s fees on appeal. We shall address each issue in turn.
A NALYSIS
I. P ARENTING S CHEDULE
Father appeals the trial court’s parenting schedule, which gave Mother 280 days of
parenting time and Father 85 days. Father argues that the parenting schedule adopted by the
trial court failed to maximize his parenting time as required by Tennessee Code Annotated
§ 36-6-401.
This court reviews decisions in divorce cases de novo with a presumption that the trial
court’s findings of fact are correct unless the evidence preponderates otherwise. Kendrick v.
Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); Nichols v. Nichols, 792 S.W.2d 713, 716
(Tenn. 1990). Appellate courts are reluctant to second-guess a trial court’s determination
regarding parenting schedules.4 See Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn.
Ct. App. 1997). “Trial courts have broad discretion in devising permanent parenting plans
and designating the primary residential parent. In reaching such decisions the courts should
consider the unique circumstances of each case.” Burton v. Burton, No. E2007-02904-
COA-R3-CV, 2009 WL 302301, at *2 (Tenn. Ct. App. Feb. 9, 2009) (citing Parker, 986
3
Prior to the institution of these divorce proceedings, another family trust had been paying the
children’s private school tuition and costs.
4
Older decisions from our courts refer to custody or visitation agreements, however, we now refer
to such arrangements as parenting plans or parenting schedules; the cases cited, however, remain on point
for the substantive law.
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S.W.2d at 563); see also Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App. 2001). A
trial court’s conclusions of law are subject to a de novo review with no presumption of
correctness. Nelson, 66 S.W.3d at 901 (citing Ganzevoort v. Russell, 949 S.W.2d 293, 296
(Tenn. 1997)).
Trial courts have broad discretion to fashion parenting plans that best suit the unique
circumstances of each case. See Parker, 986 S.W.2d at 563. Furthermore, it is not the role
of the appellate courts to “tweak [parenting plans] . . . in the hopes of achieving a more
reasonable result than the trial court.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001).
Decisions regarding parenting schedules often hinge on subtle factors, such as the
parents’ demeanor and credibility during the proceedings. Adelsperger, 970 S.W.2d at 485.
Thus, a trial court’s decision regarding a parenting plan will be set aside only when it “falls
outside the spectrum of rulings that might reasonably result from an application of the correct
legal standards to the evidence found in the record.” Eldridge, 42 S.W.3d at 88.
The trial court designated Mother as the primary residential parent and she was given
280 days of parenting time. Father was given 85 days of parenting time, which was every
other weekend from 6:00 p.m. on Friday until 6:00 p.m. on Sunday, alternating holidays,
alternating spring break and fall break, and two non-consecutive weeks every summer. The
trial court stated that it was not comfortable giving Father additional parenting time. Father
wanted additional parenting time on the weekends when Mother was working as the morning
weekend television anchor. The court denied this request stating it would result in Mother
having limited time with the children due to her work schedule. The trial court further stated
that Father needed counseling to learn how to work with the family as a unit, noting that
Father had made negative comments about Mother in front of the children. The court stated
that Father could “earn” more time with the children if he committed himself to counseling
and could demonstrate that he was capable of having a constructive impact on the lives of
the children if he spent more time with them.
Tennessee Code Annotated § 36-6-404(b) sets forth the considerations the trial court
should make when determining the parenting time of the parties:
(b) Any permanent parenting plan shall include a residential schedule as
defined in § 36-6-402. The court shall make residential provisions for each
child, consistent with the child’s developmental level and the family’s social
and economic circumstances, which encourage each parent to maintain a
loving, stable, and nurturing relationship with the child. The child’s residential
schedule shall be consistent with this part. If the limitations of § 36-6-406 are
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not dispositive of the child’s residential schedule, the court shall consider the
following factors:
(1) The parent’s ability to instruct, inspire, and encourage the child to prepare
for a life of service, and to compete successfully in the society 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;
(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
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(16) Any other factors deemed relevant by the court.
Father’s primary argument on appeal is that he should be awarded parenting time on
every weekend since Mother works Saturday and Sunday mornings, during which time the
children are cared for by the maternal grandparents. Mother counters stating that she works
only three hours on Saturday mornings and two hours on Sunday mornings and that she is
able to exercise her parenting time with the children as soon as she gets off the air. Further,
Mother argues that she has always been the primary caretaker of the children, she is the
parent who organizes family activities, enrolls the children in extracurricular activities, and
she is the one primarily responsible for taking the children to their extracurricular activities.
We recognize that the parenting schedule adopted by the trial court affords Mother
substantially more time with the parties’ four children; however, the evidence in the record,
when considered in conjunction with the factors set forth at Tennessee Code Annotated § 36-
6-404(b), supports this parenting schedule. As a practical matter, Father’s work schedule
rendered mid-week parenting time too unpredictable because his job responsibilities often
required that he work late on weekdays, including Friday evenings. There is also evidence
that Father made very negative comments about Mother in the presence of the children,
which made cooperation between the parties regarding the children unnecessarily difficult.
See Tenn. Code Ann. § 36-6-404(b)(3). It is also relevant that Mother was the primary
caretaker of the children and the impetus for their involvement in extracurricular activities
and community events. See Tenn. Code Ann. § 36-6-404(b)(6). In contrast, the trial court
found that Father “withdrew” from his involvement in the children’s activities as a result of
the problems in the parties’ marriage. Father believed the children were involved in too
much, despite that each child was only involved in one activity each. Mother testified that
Father often did not participate in family activities or dinners during the marriage, instead
choosing to merely watch television alone. Id. We also note that the trial court encouraged
Father to attend counseling, stating such counseling may provide a basis upon which
increase his potential for more parenting time in the future.5
5
The trial court stated that obtaining counseling may help Father “earn” more parenting time in the
future, thus, it could be argued in a future hearing that successfully completing counseling was reasonably
anticipated. If that occurred, Father may be precluded from asserting it constituted a substantial and material
change of circumstance in order to obtain more parenting time. See Tenn. Code Ann. § 36-6-101(a)(2)(B).
Therefore, it is important to note that this well-intended statement by the trial court should not be construed
as “reasonably anticipated” and, thus, impede Father from petitioning for additional parenting time based
upon a substantial and material change of circumstance. We made a similar observation in Duke v. Duke, No.
M2009-02401-COA-R3-CV, 2012 WL 1971144, at *3-4 (Tenn. Ct. App. June 1, 2012) (perm. app. denied.
Oct. 18, 2012), wherein this court was concerned that a father who struggled with addiction and was
encouraged by the trial court to achieve sobriety in order to obtain additional parenting time, would be unable
(continued...)
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As stated earlier, we review the trial court’s findings of fact with the presumption they
are correct unless the evidence preponderates otherwise, Kendrick, 90 S.W.3d at 570, and we
have concluded that the evidence does not preponderate against the court’s findings in this
case. Furthermore, the trial court has broad discretion in devising permanent parenting plans
and designating the primary residential parent, we are reluctant to second-guess a trial court’s
determination regarding parenting schedules, and it is not the role of this court to “tweak”
parenting plans. See Parker, 986 S.W.2d at 563; Adelsperger, 970 S.W.2d at 485; Eldridge,
42 S.W.3d at 88. Thus, based on our review of the record and the applicable factors, we
affirm the plan and parenting schedule adopted by the trial court.
II. E XTRAORDINARY E DUCATIONAL E XPENSES FOR P RIVATE S CHOOL
Father asserts the trial court erred by ordering him to pay an upward deviation in child
support for private school expenses in an annual amount of the lesser of $16,875.00 or 75%
of the additional expenses. Father further asserts that the trial court did not consider or apply
the child support guidelines in ordering him to pay private school tuition and expenses that
greatly exceed his financial means and which, without including his presumptive child
support obligation and additional insurance obligations, represent more than one-fourth of
Father’s gross income.
Before we begin our analysis, it must be noted that the parties’ three older children
were in private school during the marriage, thus, it would appear that the parents have the
financial means to keep the children in private school absent a downturn in their collective
incomes. However, the record reveals that the parents paid only a modest amount of the costs
of the children’s private education. In fact, the costs of private education, the tuition of which
was $15,000 per child per school year, were paid by an educational trust created by Father’s
aunt and grandmother. The initial corpus of that trust was $150,000, but during the pendency
of these proceedings, the assets of that trust were depleted by the costs of the children’s
private education. The only trust that remains is the Doris Fox Generation Skipping
Irrevocable Trust, of which Father and all five of his children are beneficiaries; however, this
trust has never made a financial contribution to defray the costs of the children’s private
education.
Whether the Doris Fox Trust chooses to make distributions to pay some or all of the
private school expenses lies in the sole discretion of the trustee, which is an independent
5
(...continued)
to assert his sobriety constituted a substantial and material change. We noted that should the father become
sober, the fact that the trial court reasonably anticipated that sobriety would not prevent an otherwise
meritorious petition for modification pursuant to Tennessee Code Annotated § 36-6-101(a)(2)(B). Id. at *4.
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corporate institution. Significantly, neither Father, Mother nor the children have any control
over the trustee’s decision. Therefore, we may not assume that the Doris Fox Trust will make
any contributions, and yet we do not want to assume that it will not. Thus, we must determine
whether an upward deviation for extraordinary educational expenses for private school is
appropriate and, if so, how much to deviate should the Doris Fox Trust not cover the costs
of the private school tuition.6
The courts look to the Child Support Guidelines promulgated by the Tennessee
Department of Human Services in accordance with Tennessee Code Annotated § 36-5-101(e)
to make such determinations. Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App.
2005). The statute requires the court to apply the Child Support Guidelines as a rebuttable
presumption. Tenn. Code Ann. § 36-5-101(e)(1)(A); Tenn. Comp. R. & Regs. 1240-2-4-
.07(1)(a) (2008). A court may order a deviation from the amount of support if the deviation
complies with the requirements of the Child Support Guidelines, and “[t]he amount or
method of such deviation is within the discretion of the tribunal.” Tenn. Comp. R. & Regs.
1240-2-4-.07(1)(b). However, the trial court is required to “state in its order the basis for the
deviation and the amount the child support order would have been without the deviation.”
Id. “In deviating from the Guidelines, primary consideration must be given to the best interest
of the child for whom support under these Guidelines is being determined.” Id.
The Child Support Guidelines further provide:
(c) When ordering a deviation from the presumptive amount of child support
established by the Guidelines, the tribunal’s order shall contain written
findings of fact stating:
1. The reasons for the change or deviation from the presumptive
amount of child support that would have been paid pursuant to
the Guidelines; and
2. The amount of child support that would have been required
under the Guidelines if the presumptive amount had not been
rebutted; and
6
Father argues that permitting distributions from the irrevocable trust would destroy the trust;
however, that decision resides solely within the discretion of the trustee of the irrevocable trust, and as the
trial court itself recognized, the court does not have the authority to direct the trust to make any distributions
or payments for the children’s extraordinary education expenses. The trustee has the sole discretion on how
much, if any, money should be distributed and whether such distributions would be to the detriment of the
trust.
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3. How, in its determination,
i) Application of the Guidelines would be unjust
or inappropriate in the particular case before the
tribunal; and
(ii) The best interests of the child for whom
support is being determined will be served by
deviation from the presumptive guideline amount.
Tenn. Comp. R. & Regs. 1240–2–4–.07(1)(a)–(c) (2008).
When making a determination regarding a request for deviation, the Child Support
Guidelines provide that the trial court:
[S]hall consider all available income of the parents as defined by this chapter
and shall make a written finding that an amount of child support other than the
amount calculated under the Guidelines is reasonably necessary to provide for
the needs of the minor child or children for whom support is being determined
in the case immediately under consideration.
Tenn. Comp. R. & Regs. 1240–2–4–.07(2)(a) (2008).
The Guidelines also specifically address education expenses as a deviation from the
standard child support amounts:
(d) Extraordinary Expenses.
The Schedule includes average child rearing expenditures for families based
upon the parents’ monthly combined income and number of children.
Extraordinary expenses are in excess of these average amounts and are highly
variable among families. For these reasons, extraordinary expenses are
considered on a case-by-case basis in the calculation of support and are added
to the basic support award as a deviation so that the actual amount of the
expense is considered in the calculation of the final child support order for
only those families actually incurring the expense. These expenses may be, but
are not required to be, divided between the parents according to each parent’s
[Percentage of Income].
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1. Extraordinary Educational Expenses.
(i) Extraordinary educational expenses may be added to the
presumptive child support as a deviation. Extraordinary
education expenses include, but are not limited to, tuition, room
and board, lab fees, books, fees, and other reasonable and
necessary expenses associated with special needs education or
private elementary and/or secondary schooling that are
appropriate to the parents’ financial abilities and to the lifestyle
of the child if the parents and child were living together.
(ii) In determining the amount of deviation for extraordinary
educational expenses, scholarships, grants, stipends, and other
cost-reducing programs received by or on behalf of the child
shall be considered.
(iii) If a deviation is allowed for extraordinary educational
expenses, a monthly average of these expenses shall be based on
evidence of prior or anticipated expenses and entered on the
Worksheet in the deviation section.
Tenn. Comp. R. & Regs. 1240–2–4–.07(2)(d) (2008).
In this case the trial court did not reference the Child Support Guidelines, although
the court stated that continuing private school education would be in the best interest of the
three oldest children.7 We agree that it is in the children’s best interests to remain in their
present school where they are excelling; nevertheless, the threshold question in this case is
whether the parents have the financial means to pay for the three children’s private schooling
in the event they cannot obtain sufficient financial aid and sufficient distributions from the
Doris Fox Generation Skipping Irrevocable Trust.
In the Permanent Parenting Plan, the trial court stated the following in regard to the
private school tuition:
The Mother has been vested with sole decision making authority
regarding the educations of the minor children. The children are the
beneficiaries of the Doris Fox Generation Skipping Irrevocable Trust as is the
Father. If the Mother elects for the children to continue in their private school
7
The trial court reserved the issue of private schooling for the youngest child.
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education then the Mother in her capacity as the primary custodian of the
children and Father in his capacity as Father of the children shall make
application to the children’s school for financial aid. Thereafter the parties
shall make application to the Trust for distributions sufficient to pay the
private school education expenses not covered by financial aid. In the event the
Trustee in the exercise of its discretion pays less than the entire remaining
expense the Mother shall elect whether the children shall attend private school
or public school. If she elects private school, the liability of the Father for
education expenses will be 75% of the remaining expense or $16,875.00 per
school year for the three oldest children, whichever is less. Any additional
remaining tuition would be the responsibility of the Mother. The Court
reserves any ruling regarding the private education of the youngest child. . . .
In the event the Mother’s portion of the educational expenses exceed
$5,625 per school year for the three oldest children, she may elect to send the
children to public school. However, because the oldest child is in the fifth
grade at Oak Hill School, she shall be allowed to complete her elementary
education at Oak Hill School. The parents shall make an application for
financial aid, an application for disbursement from the Trust and shall share
on a 75/25 basis father/mother any remaining private education expense for the
oldest child to complete Oak Hill School.
In the event the children do not continue private school for their
elementary education due to the inability to obtain sufficient financial aid from
the school, and sufficient distributions from the trust, the Mother is vested with
authority to enroll the children in any private school for high school education
that she determines to be appropriate. In that event the parties shall make
application for financial aid, shall make application for distribution from the
Trust and shall be responsible for any remaining education expense 75/25
father/mother until the children graduate from high school.
Except for the above analysis, we are unable to find anything in this record that
reveals whether the trial court conducted the thorough analysis for a deviation as is required
by the Child Support Guidelines and case law. In the case of In re Andrea A.R., No. M2011-
00574-COA-R3-JV, 2012 Wl 397475, *7 (Tenn. Ct. App. Feb. 7, 2012), this court noted:
The extraordinary education expense guidelines mandate that the trial court
shall, first, consider “whether the private elementary or secondary schooling
is ‘appropriate to the parents’ financial abilities and . . . to the lifestyle of the
child if the parents and the child were living together.”’ [Richardson v.
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Spanos, 189 S.W.3d 720, 728 (Tenn. Ct. App. 2005)] (quoting Tenn. Comp.
R. & Regs. 1240-2-4-.07(2)(d)(1)(ii) (2005)). If the court finds private
schooling is appropriate, then the trial court is required to calculate the
extraordinary education expenses separately and add them to the base child
support award. Id. (citing Tenn. Comp. R. & Regs. 1240-2-4-.07(2)(d)).
Thus, if financial aid and distributions from the Doris Fox Trust do not cover the entire costs,
it is incumbent upon this court to conduct the requisite analysis to determine whether an
upward deviation is appropriate in order to fund the extraordinary expense of private
schooling.
The costs of extraordinary expenses may be divided according to the parents’
Percentage of Income. Tenn. Comp. R. & Regs. 1240-2-4-.07(2)(d). In this case, Mother
earns substantially more income than Father. Father has a gross monthly salary of $4,138.55,
and he receives monthly distributions from an IRA of $1,083. Thus, his monthly gross
income is $5,221.55 and his annual gross income is $62,658.60.
Father’s base child support obligation is $1,252 per month, which is $15,024 annually.
Additionally, Father is required to pay premiums for life insurance, and one half of the cost
of summer camp and the children’s unpaid medical costs. The record indicates that the cost
of the life insurance Father must maintain for the children’s benefit is $4,400 a year, that
Father’s share of the 2011 summer camp for three of the children was $2,465, and that
Father’s share of the medical, dental and pharmaceutical expenses that are not covered by
insurance was estimated to be $600 a year. These additional expenses bring Father’s annual
obligations to approximately $22,500 per year. When Father’s potential obligation of $16,875
per year for private schooling for the three older children is added, his court ordered financial
obligations are in excess of $39,000 per year.
Father’s gross annual income is $62,660; however, after income tax and social
security obligations are deducted, which total approximately $869 a month and $10,440 per
year, his net annual income is only $52,220. The total of Father’s court ordered obligations
of $39,000 represents 74% of Father’s annual net income of $52,220, an amount that greatly
exceeds Father’s financial means. Accordingly, a substantial reduction or elimination of the
upward deviation for private schooling is necessary.
If we reduce the upward deviation of $16,875 by half, to $8,437.50, then Father’s
court ordered obligations are reduced from $39,000 per year to $30,562.50, which represents
58% of Father’s net income. If we eliminate the upward deviation for private schooling, then
Father’s obligations are reduced to $22,500 per year, which represents 43% of Father’s net
income, leaving Father with $2,476 per month to pay his other monthly expenses.
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On his Income and Expense declaration, Father states that his expenses, if the upward
deviation is included, exceed his net income by $2,524 a month. If the upward deviation of
private schooling is eliminated, $1,406.25 a month, Father’s monthly expenses would still
exceed his monthly net income, at least by his calculations. Although some of the listed
expenses were eliminated or reduced as a result of the divorce due, in part, to the allocation
of child support obligations and the sale of the marital residence, Father’s financial means
are not sufficient to justify an upward deviation for extraordinary educational expenses of
his child support.
As noted earlier in our discussion of the guidelines for extraordinary educational
expenses, such expenses may be added to the presumptive child support as a deviation
provided such expenses are appropriate to the parents’ financial abilities and to the lifestyle
of the children if the parents and child were living together. Tenn. Comp. R. & Regs.
1240–2–4–.07(2)(d). In this case, the record clearly indicates that, if the parents were still
living together, the proposed extraordinary educational expenses for the three children who
are presently in private school, not to mention a fourth who may go to private school, are not
appropriate when we consider the parents’ financial abilities.8 See id.
Accordingly, the facts preponderate against any upward deviation of Father’s child
support obligations for private schooling; accordingly the award of an upward deviation is
reversed. This decision, however, does not affect Mother’s right to determine whether the
children remain in private school, nor does it relieve Father of the obligation to apply for
financial aid and for distributions from the Doris Fox Trust. Hopefully, such aid and/or
distributions will be sufficient to allow the children to continue their private education if that
is Mother’s desire.
III. M ARITAL P ROPERTY
Father argues that the trial court erred in its division of the marital property, awarding
60% to Mother and 40% to Father. He contends the trial court failed to consider the factors
set forth at Tennessee Code Annotated § 36-4-121(c) when dividing the marital property.
The division of the parties’ marital estate begins with the classification of the property
as separate or marital property. Miller v. Miller, 81 S.W.3d 771, 775 (Tenn. Ct. App. 2001).
Tennessee is a “dual property” state, thus, property cannot be included in the marital estate
8
The gross income of both parents, including Father’s salary, his IRA income, and Mother’s salary,
is approximately $150,000 annually, which is a handsome sum but it is insufficient to pay the costs for three
children to attend private school, which exceeds $45,000 annually, not to mention four should the youngest
child also attend private school, which would increase the cost of tuition alone to $60,000 annually.
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unless it is deemed “marital property.” Smith v. Smith, 93 S.W.3d 871, 875-76 (Tenn. Ct.
App. 2002). The definition of “marital property” is found in Tenn. Code Ann. § 36-4-
121(b)(1)(A). “Separate property,” as defined in Tenn. Code Ann. § 36-4-121(b)(2)(A)-(F),
is not marital property. Therefore, separate property should not be included in the marital
estate. Snodgrass v. Snodgrass, 295 S.W.3d 240, 246 (Tenn. 2009). Property classification
is a question of fact. Bilyeau v. Bilyeau, 196 S.W.3d 131, 135 (Tenn. Ct. App. 2005). Thus,
we review the trial court’s classification using the familiar standard of review in Tennessee
Rule of Appellate Procedure 13(d).
Once property has been classified as marital property, the court should place a
reasonable value on property that is subject to division. Edmisten v. Edmisten, No.
M2001-00081-COA-R3-CV, 2003 WL 21077990, at *11 (Tenn. Ct. App. May 13, 2003).
The parties have the burden to provide competent valuation evidence. Kinard v. Kinard, 986
S.W.2d 220, 231 (Tenn. Ct. App. 1998). When valuation evidence is conflicting, the court
may place a value on the property that is within the range of the values presented. See
Watters v. Watters, 959 S.W.2d 585, 589 (Tenn. Ct. App. 1997). Decisions regarding the
value of marital property are questions of fact; thus, they are not second-guessed on appeal
unless they are not supported by a preponderance of the evidence. Kinard, 986 S.W.2d at
231.
Once the marital property has been valued, the trial court is to divide the marital
property in an equitable manner. Tenn. Code Ann. § 36-4-121(a)(1); Miller, 81 S.W.3d at
775. A division of marital property in an equitable manner does not require that the property
be divided equally. Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn. 2002). “Dividing a
marital estate is not a mechanical process but rather is guided by considering the factors in
Tennessee Code Annotated § 36-4-121(c).” Kinard, 986 S.W.2d at 230. “Trial courts have
wide latitude in fashioning an equitable division of marital property.” Id. Therefore, this
court accords great weight to the trial court’s division of marital property. Wilson v. Moore,
929 S.W.2d 367, 372 (Tenn. Ct. App. 1996). Thus, we defer to the trial court’s division of
the marital estate unless it is inconsistent with the factors in Tennessee Code Annotated §
36-4-121(c) or is not supported by a preponderance of the evidence. Brown v. Brown, 913
S.W.2d 163, 168 (Tenn. Ct. App. 1994).
In this case, the marital property consisted of the marital residence, a separate
residence Mother purchased during the pendency of the divorce, the parties’ bank accounts,
investment accounts, retirement accounts, life insurance policies, and vehicles. The total
value of the marital assets was listed as $1,048,882.35. Thus, the value of Mother’s 60%
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share of the marital assets is $619,653.79 and Father’s is $429,228.56.9
The trial court based its decision on the substantial contribution of Mother to the
marriage as spouse, wage earner, parent, and her role of living in the marital residence with
Father, and the substantial separate assets of Father in comparison to Mother’s separate
assets, which are modest. Tennessee Code Annotated § 36-4-121(c) sets forth the following
factors to be considered when dividing the marital property of the parties:
(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;
(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)(A) The contribution of each party to the acquisition, preservation,
appreciation, depreciation or dissipation of the marital or separate property,
including the contribution of a party to the marriage as homemaker, wage
earner or parent, with the contribution of a party as homemaker or wage earner
to be given the same weight if each party has fulfilled its role;
(B) For purposes of this subdivision (c)(5), dissipation of assets means
wasteful expenditures which reduce the marital property available for equitable
distributions and which are made for a purpose contrary to the marriage either
before or after a complaint for divorce or legal separation has been filed.
(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, costs associated with the reasonably
foreseeable sale of the asset, and other reasonably foreseeable expenses
associated with the asset;
(10) The amount of social security benefits available to each spouse; and
(11) Such other factors as are necessary to consider the equities between the
parties.
9
While the parties’ values contained in their briefs vary, there is no real dispute as to the value of the
property divided in the divorce, merely, the division of the property by the trial court. In its order, the trial
court stated that it used Mother’s submitted statement of assets and liabilities and thus we shall use the values
of Mother’s.
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Based upon our review of the record, we find the 60/40 division of the marital assets
is not inequitable, particularly in light of Father’s separate assets. This is because the trial
court’s decision is consistent with the factors set forth at Tennessee Code Annotated § 36-4-
121(c). Specifically, the trial court correctly considered the separate assets of the parties as
set forth as a factor in Tennessee Code Annotated § 36-4-121(c)(6). Mother’s separate assets
amounted to only $17,578.38, while Father had separate assets of $380,945.30.10 Further, the
trial court found that Mother contributed more to the marriage as wage earner and parent,
taking a far more active role in the children’s lives. Tenn. Code Ann. § 36-4-121(c)(5). We
also acknowledge that Father earns less income than Mother; however, his substantial
separate assets and the retirement benefits guaranteed Father as a beneficiary of the trust, are
proper considerations in the division of the marital property. While Father argues the
economic consequences of the divorce are harsher on him due to the trial court’s requirement
that he pay a substantial portion of private school tuition, one half the children’s uncovered
medical expenses, maintaining a life insurance policy benefitting the children, and one half
of the children’s summer camp expenses, as discussed previously, we have held Father is not
responsible for any additional child support in the form of an upward deviation for the
children’s private school tuition. Further, Mother is also responsible for the other half of the
children’s expenses.
Finding the evidence does not preponderate against the trial court’s decision, see
Brown, 913 S.W.2d at 168, we affirm the division of the marital property.
IV. A TTORNEY’S F EES
Father asserts the trial court erred in requiring him to pay Mother’s attorney’s fees of
$50,000 from his share of the marital property division.
An award of attorney’s fees is appropriate when the disadvantaged spouse’s income
is not sufficient to pay her attorney’s fees and the divorce fails to provide her with a revenue
source, such as from the property division, or assets from which to pay her attorney’s fees.
Yount v. Yount, 91 S.W.3d 777, 783 (Tenn. Ct. App.2002).
Attorney’s fees in a divorce action constitute alimony in solido. Id.; Wilder v. Wilder,
66 S.W.3d 892, 894 (Tenn. Ct. App.2001); Herrera, 944 S.W.2d at 390; Houghland v.
Houghland, 844 S.W.2d 619, 623 (Tenn. Ct. App.1992); Storey v. Storey, 835 S.W.2d 593,
597 (Tenn. Ct. App.1992). When determining whether to award attorney’s fees, the trial court
10
We note that the parties disagree somewhat as to the value of the separate property by Father.
However, the amount of the disagreement is minimal and does not bear upon this opinion.
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must consider the relevant factors regarding alimony set forth in Tennessee Code Annotated
§ 36-5-121(i). Failey v. Failey, No. M2006-02510-COA-R3-CV, 2008 WL 933202, at *5
(Tenn. Ct. App. Apr. 7, 2008) (citing Echols v. Echols, No. E2006-02319-COA-R3-CV,
2007 WL 1756711, at *7 (Tenn. Ct. App. June 19, 2007) (no Tenn. R. App. P. 11 application
filed)).
Trial courts are afforded wide discretion in determining whether there is a need for
alimony, and if so, the nature, amount, and duration of the award. Gonsewski v. Gonsewski,
350 S.W.3d 99, 105 (Tenn. 2011) (citing Bratton v. Bratton, 136 S.W.3d 595, 605 (Tenn.
2004); Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001); Crabtree v. Crabtree, 16 S.W.3d
356, 360 (Tenn. 2000)). A trial court’s decision to award alimony in solido will not be
disturbed on appeal. Id. An abuse of discretion occurs when the trial court “causes an
injustice by applying an incorrect legal standard, reaches an illogical result, resolves the case
on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an
injustice.” Id. (emphasis added) (citing Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176
(Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010)).
The trial court awarded Mother her attorney’s fees upon the finding that she did not
have the financial resources to pay her attorney’s fees; however, Mother was awarded 60%
of the marital property, which will include 60% of the cash proceeds that will result from the
sale of the marital residence valued at $207,033.95. Additionally, Mother’s income is
substantially greater than Father’s income, even if you include the mandatory distributions
from his IRA. We, therefore, find that the trial court’s justification for awarding Mother her
attorney’s fees constitutes a clearly erroneous assessment of the evidence. See Gonsewski,
350 S.W.3d at 105; see also Wright, 337 S.W.3d at 176. Therefore, we reverse the award to
Mother of her attorney’s fees incurred in the trial court.
Mother also seeks to recover her attorney’s fees incurred on appeal. “Whether to
award attorney’s fees on appeal is a matter within the sole discretion of this Court.” Hill v.
Hill, No. M2006-02753-COA-R3-CV, 2007 WL 4404097, at *6 (Tenn. Ct. App. Dec. 17,
2007) (citing Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App .1995)). In determining
whether an award is appropriate, we take into consideration “the ability of the requesting
party to pay the accrued fees, the requesting party’s success in the appeal, whether the
requesting party sought the appeal in good faith, and any other equitable factor that need be
considered.” Id. at *6 (citing Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 WL
22071454, at *10 (Tenn. Ct. App. Sept. 3, 2003)).
Both parties have pursued this appeal in good faith and Mother and Father have both
enjoyed success on some of the material issues in this appeal. Thus, these factors favor the
parties equally. Further, we have already determined that Mother’s income is substantially
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greater than Father’s income, and Mother was awarded substantial assets in the division of
the marital estate, some of which may be used to pay her attorney’s fees on appeal.
Accordingly, we respectfully deny Mother’s request to recover her attorney’s fees incurred
on appeal.
I N C ONCLUSION
The judgment of the trial court is affirmed in part, reversed in part, and remanded for
further proceedings consistent with this opinion. Costs of appeal are assessed against both
parties equally.
______________________________
FRANK G. CLEMENT, JR., JUDGE
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