Alyson Leigh Amonette Eberting v. Jeffrey Jennings Eberting

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 8, 2011 Session

ALYSON LEIGH AMONETTE EBERTING v. JEFFREY JENNINGS

EBERTING

Appeal from the Chancery Court for Knox County

No. 171599-1 John F. Weaver, Chancellor

No. E2010-02471-COA-R3-CV - Filed February 27, 2012

After fourteen years of marriage, Alyson Leigh Amonette Eberting (“Wife”) sued Jeffrey

Jennings Eberting (“Husband”) for divorce. After a trial, the Trial Court entered its Final

Judgment for Divorce on August 12, 2010, which, inter alia, awarded Wife a divorce,

distributed the marital property, entered a Permanent Parenting Plan, awarded Wife

transitional alimony, and awarded Wife attorney’s fees as alimony in solido. Husband

appeals raising issues regarding the valuation of his orthodontic practice, the parenting plan,

and the award of Wife’s attorney’s fees. Wife raises issues concerning the overall property

division, and the amount of attorney fees and expenses awarded to Wife as alimony in solido.

We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;

Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,

P.J., and J OHN W. M CC LARTY, J., joined.

Jerrold L. Becker, Knoxville, Tennessee, for the appellant, Jeffrey Jennings Eberting.

Alyson Amonette Eberting, Esq., Knoxville, Tennessee, pro se appellee.

OPINION

Background

Husband and Wife were married in July of 1993. Wife sued Husband for

divorce in February of 2008. The case was tried over multiple days in January and

September of 2009, and February of 2010.

At the time of the marriage, Husband was in dental school and Wife was just

beginning law school. Both parties served in the Navy during the marriage. After

completing his Navy service, Husband began orthodontic school in 1999.

The parties’ first child was born in October of 1999. At that time, Husband

was in orthodontic school and Wife was in the Navy. Wife was the primary care-giver for

the parties’ child. The parties’ second child was born in September of 2001, days before

Wife completed her Navy service and Husband graduated from orthodontic school. The

parties moved to Knoxville less than one week after the birth of their second child. Wife

stayed home with the Children and was the primary care-giver from the time the parties

moved to Knoxville until December of 2002. In December of 2002 Wife began work as an

assistant city attorney in the City of Knoxville Law Department. The parties’ third child was

born in April of 2003.1

The parties purchased a house when they moved to Knoxville. In 2005, the

parties purchased real property on which they planned to build their dream house. Building

never started on their dream house because the parties were paying off the loan for

Husband’s new orthodontic practice.

When the parties moved to Knoxville, Husband purchased the existing

orthodontic practice of Dr. Thomas Pryse for $250,000. The purchase of Dr. Pryse’s practice

included equipment, patient accounts, staff, and goodwill. The purchase did not include

accounts receivable. Dr. Pryse’s practice encompassed two locations, one in Knoxville and

one in Maryville. Initially, Dr. Pryse was to continue working with Husband for the first year

after the sale. Dr. Pryse, however, required hip replacement surgery in March of 2002 and

complications arose resulting in Husband’s taking over the practice sooner than anticipated.

Approximately five months after he purchased Dr. Pryse’s practice, Husband negotiated to

buy another practice from Rupert Knierim for $400,000. These negotiations included

equipment, patient charts, and goodwill. Ultimately, Husband did not purchase Dr.

Knierim’s practice.

1

At times in this Opinion we refer to the parties’ three children collectively as “the Children.”

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In the fall of 2004, Husband began building a new office building for his

practice in Maryville. The property upon which the new building sits, 619 Smithview, is

owned by Tooth Enterprises, LLC an entity formed to own the 619 Smithview building.

Husband owns 50% of Tooth Enterprises, LLC and Wife owns the other 50%. Husband

purchased the land for 619 Smithview for $120,000 in 2002. The construction of the 619

Smithview building cost approximately $1.1 million. Husband had the building appraised

for purposes of this lawsuit at $950,000. Wife had the building appraised at $970,000.

Husband moved his practice into the new office building at 619 Smithview in

March of 2005. Husband then closed the practice’s Knoxville location and original

Maryville location. The new Maryville office at 619 Smithview is 6,400 square feet and has

a main treatment area with eight chairs, two additional chairs for records to be taken, two

individual rooms for new patient examinations and consultations, and a second floor which

holds a break room for employees, Husband’s personal office, and Husband’s personal music

studio where he keeps his musical instruments. Husband purchased approximately $300,000

in new state-of-the-art equipment for his practice around the time that he moved into the 619

Smithview building. Husband testified that he has purchased approximately half a million

dollars in new equipment for his practice since 2001.

When Husband had the original Maryville office, he was paying $3,000 per

month in rent. Husband arranged for the practice to pay Tooth Enterprises, LLC $11,000 a

month in rent for the 619 Smithview building. Husband testified that Tooth Enterprises, LLC

was set up, and the rent for 619 Smithview was set at $11,000 per month for tax purposes.

At the time Husband purchased the practice in 2001, Dr. Pryse was grossing

approximately $550,000 annually working four days a week. Approximately three years after

the purchase, in 2004, Husband had increased revenues of the practice from $550,000 to

$1,250,000. Husband testified that in 2007 his practice had “about $1,050,000 or

$1,060,000" in revenues. Husband testified that typically his patients commit to a treatment

program and the “[a]verage orthodontic treatment time is about two years, twenty-four

months.” Private pay patients pay around $5,400 or $5,500, and TennCare reimburses

Husband $3,600.

When the trial began, Husband’s practice was open on Monday, Tuesday, and

Wednesday from 8 a.m. to 5 p.m., on Thursday from 8 a.m. until noon and closed on

Thursday afternoons, and closed all day on Fridays. Husband was working only three and

a half days a week at that time. Husband testified that on Mondays, Tuesdays, and

Wednesdays, he would take a two hour lunch break. When he testified again nearer to the

end of trial, Husband admitted that at that time he was working only three days a week,

Tuesday, Wednesday, and Thursday from 8 to 5. When asked why he changed his schedule,

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Husband explained: “since I had to still be in Maryville on Thursdays for the Rotary Club

meetings, it just made sense.” Husband admitted that when he worked three and a half days

a week he was working twenty-five hours a week, and that under his three day schedule he

is working twenty-one hours per week.

Husband testified that he collects around 90% of his account receivables.

Husband admitted that although his expert valued the practice at $224,000, he would “be

upset at receiving that number …,” if he were to sell the practice. Husband also admitted that

if he were to sell his practice he would expect to sell his equipment, his patient charts, his

goodwill, and his accounts receivable. Husband’s financial statement dated June of 2004

showed the value of 70% of Husband’s practice to be $350,000. Husband testified that his

accountant came up with that value. On Husband’s financial statement dated August of

2006, Husband listed the value of 100% of his practice at $500,000 and his yearly salary,

bonuses, and commissions at $350,000.

Husband testified at trial that he draws a salary from his practice of $225,000

annually. Husband admitted that the practice also had purchased personal items for him

including a 40-inch LCD-HD TV, and paid for some of his personal expenses including car

payments, car repairs and maintenance, and gas. Husband admitted that sometimes he would

charge personal expenses to the practice credit card, and stated: “there are expenses that the

PC pays for on my personal behalf.” The practice pays fees for various associations Husband

belongs to including the American Association of Orthodontists, the Rotary Club of

Maryville, the American Association of Orthodontists Foundation, and Leadership Blount.

The practice also has paid for six season tickets for University of Tennessee (“UT”) football.

Husband admitted that the practice made a $3,000 donation to UT in order for Husband to

be allowed to purchase the season football tickets for the ticket value price. Husband

admitted that in 2006, in addition to this $3,000 donation, the practice paid $17,094 for these

six UT football tickets, which Husband stated was the actual cost of the tickets. In 2007 the

practice paid $1,863.69 for UT football tickets. In 2007, the practice paid $1,100 to

Parent/Child Services for the parties’ oldest daughter’s speech therapy. The practice paid

$972.25 for a cabinet and plastic insert dividers to store CDs, and Husband admitted at trial

that this was a personal expense. The practice pays Husband’s fitness club fees, and also has

paid for haircuts, LAWeight Loss fees, and clothing for Husband. The practice has paid for

Husband’s personal meals and Husband’s Blackberry. In 2008, the practice paid for a

massage for Husband, and flowers that Husband testified were for Wife and the Children for

Valentine’s Day.

Husband testified that the practice loaned $5,000 to Warren Scott, whom

Husband described as “computer technical support” person. When Mr. Scott paid back the

loan, Husband put the money into his personal account. The practice loaned April Belcher

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$2,000 and when the loan was paid back, Husband again put the money into his personal

account. The practice loaned Melinda Subring $1,200, which Husband testified never was

paid back.

Husband admitted at trial to having numerous adulterous affairs during the

marriage and to having sex with these women during his lunch hours and on Fridays when

he could have been spending time with the Children, who were in daycare or after-school

care. Husband admitted that until sometime during the pendency of this divorce litigation

he had always chosen to take Thursday afternoons and Fridays and spend them the way he

wanted to without the Children. Husband never picked up the Children early on Thursdays

or on Fridays. Husband also admitted that Wife did not know about his extra-marital affairs

at the time Husband was engaging in them. Husband admitted that even though he had been

asked during his deposition, he had lied about the number of extra-marital affairs he had

over the years. At trial he admitted to several more affairs than he previously had testified

about including one that occurred while Wife was pregnant with their first child, and one that

occurred while Husband was an orthodontic resident and Wife was working to support the

family. Husband admitted that he closed his office early one Tuesday and kept it closed on

Wednesday morning so that he could attend a concert in Atlanta with his girlfriend.

Extensive testimony was elicited about Husband’s numerous hobbies. Husband

began taking flying lessons in January of 2006. Husband started running in 1999, and in late

2006 and early 2007, he trained for a marathon. His training involved running five or six

miles a night three or four times a week, and doing a distance run of 18 to 20 miles on the

weekends. Wife cared for the Children while Husband was running. Husband did not run

in the marathon he was training for, but did run in a half-marathon in 2006 and another in

2007. Husband admitted that over the years he has spent considerable time going to concerts

during which time Wife has taken care of the Children. Husband stated: “some of the

concerts would be with my wife joining me, although that was infrequent.” Husband

admitted to using marijuana in April of 2006 during a Navy reunion. While Husband was

at that reunion, Wife was at home taking care of the Children.

Husband is required to have 30 hours of continuing education every two years

in order to maintain his orthodontia license. Husband obtained 80 hours every two years and

admitted that time obtaining these extra hours was time away from Wife and the Children.

Husband moved out of the marital residence in February of 2008. In August

of 2008, Husband became involved with the Foothills Community Players, a local theater

group. Husband is on the board of the Foothills Community Players. From late April to

early June of 2009, Husband was involved in producing a play. In early June of 2009 while

producing the play, Husband left the Children in his car on two successive nights while he

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went into the theater. The play practices were held in the Alumni Gym at Maryville College,

and the car was parked behind the gym. The play practices were from 6:30 or 7:00 p.m. until

10:30 on those nights. Husband stated “I was in the car 70 percent of the time with them.”

Husband admitted that he never asked Wife to keep the Children during this

time and never hired a babysitter either. Husband stated:

I dealt with the circumstances I had to at the time. A babysitter wasn’t

available for me. I had tried calling Laura Nashita. I didn’t have any other

babysitter at the time. And I didn’t feel comfortable going to [Wife] at the

time asking her to watch the kids in my stead.

Even though Husband claimed he was not comfortable contacting Wife about keeping the

Children, Husband admitted when asked that he had just asked Wife to switch two days and

that he could have asked Wife to switch for those nights also, but he chose not to do so.

Husband stated: “for the very same reason that if I had, I feel like that I would be talking

about how I put my interests ahead of my children. So I was sort of in a Catch 22.” Husband

admitted at trial that he put his own play production interests first and that he did not want

Wife to know that he was involved in the play.

Husband testified that one of the reasons he became involved with the theater

group was to promote his and the Children’s interest in theater. Husband admitted, however,

that his older daughter was in a drama performance in July but he did not attend because he

chose to go out of town to Virginia Beach with his girlfriend.

The Children attend school at Webb School in Knoxville. Even though Webb

requests that all parents attend a back to school meeting in August, Husband did not attend

the meeting in August of 2008. Husband testified that the meeting was for kindergarten for

the parties’ youngest child, and Husband stated that he already had gone to a similar meeting

two years earlier for one of the older children. Husband also claimed that he stayed home

because he had the Children that night and was unable to obtain child care. Husband

admitted that Wife had offered to obtain a babysitter for the Children so that Husband could

attend this meeting, and Husband declined that offer.

In March of 2009 Husband made an offensive remark to his older daughter

about her weight after one of the child’s soccer practices. The child was in the third grade

at the time, and she became very upset and started crying. With regard to the child’s weight,

Wife testified:

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Actually, she’s not overweight. Unfortunately, when she was playing soccer,

her dad came up during practice and patted her on the belly, kind of pointing

and saying, what’s that all about? And it was right in front of her friends. It

was very embarrassing. And she cried all the way home.… She was upset that

her daddy had pointed that out, especially in front of her friends, because she’s

not a fat little girl.

Husband admitted at trial that he was not sensitive to his daughter’s feelings when he made

that remark and that he regretted it.

In August of 2009 on one of the nights when he had the Children, Husband

took his girlfriend to a concert. He hired a babysitter to stay with the Children. The

babysitter was a fifteen year old who never had babysat with the Children before. Husband

testified: “She came over prior to the first baby-sitting event and played with the children for

about an hour while I met her father.” Husband admitted that he was away from the Children

that night for approximately seven hours.

Husband admitted that he also does karaoke and that he has to go out to engage

in that hobby. Husband admitted that he has a MySpace page and a FaceBook page and that

he spends quite a bit of time on his computer. Husband also admitted that he has had

multiple e-mail accounts including one called ‘orthogod,’ which he has used, and still was

using at the time of trial, to find women.

An exhibit was introduced at trial showing e-mails discussing sexual topics that

Husband had sent to one of his girlfriends on Father’s Day when Husband had the Children.

Husband admitted to having an e-mail exchange with one of his girlfriends in which he

stated: “This week is shit. I have the kids from Wednesday on and then fly out to Allentown

for the weekend. If we don’t meet tonight, then it will have to be next week, unless we do

quickie lunches.…” He testified that in that e-mail he “referred to the fact that I had a very

tight schedule that week, that it was a difficult week for me.”

Husband was asked about his daughter’s soccer practice that occurred right

before Labor Day. He attended the soccer practice during which the soccer coach informed

parents that the next soccer practice scheduled for the Friday of Labor Day weekend was

cancelled. Husband did not convey this information to Wife. When asked why he did not

tell Wife, Husband stated: “I did not convey that because I did not hear it at the time. I

missed it for some reason.” When asked if he failed to hear the information because he was

texting on his Blackberry instead of listening to the coach speaking to the parents, Husband

stated: “I don’t recall, sir.” Husband admitted that he texts on his Blackberry a lot. Husband

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admitted that Wife and the Children showed up for the soccer practice on that Friday night,

and Husband stated: “I apologized for inconveniencing [Wife].”

Husband admitted that the Children are doing well under the current schedule.

Husband admitted that he has no complaints about Wife’s parenting of the Children.

Husband admitted that for Christmas and birthdays Wife was the one who purchased the

presents, and when the Children had a birthday party to attend Wife also would purchase a

present. He also admitted that Wife purchased the Children’s school uniforms and clothing.

Wife testified about obtaining her job as an assistant city attorney in the City

of Knoxville Law Department. She stated that she obtained the job because Husband “was

starting to complain a little bit about money ….” Wife testified that she did not consider

working full time in private practice when she was searching for a job. She stated:

[M]y father is an attorney. My father works in private practice. He’s been in

a firm as well as a solo practitioner. I know the hours that it requires to do a

good job. And if I do a job, I want to do a good job. So my kids take first

priority and always have.… For the most part, my hours are 8 til 4:30. If

necessary, I am able to skip lunch so that if I need to be at the school in the

afternoons. Plus, the bosses I’ve had, the law directors I’ve had since I’ve

been here have been very good about letting me attend school functions, be it

VIP in kindergarten or working rehearsals for the class play. I have been able

to do those kinds of things. I don’t know how a private practice would be.

When asked what activities she was involved in prior to the separation, Wife

stated: “Work, church and home.… My kids take first priority. With three of them, with so

many extracurricular activities, that’s what I do. It’s my kids and church.” Wife testified that

prior to the separation:

[Husband] flew his plane; he ran, got ready for marathons; he met with

dentists. He had several dental associations where he would meet with them

on Tuesday night, sometimes Thursday night. So on those nights when he was

at those meetings, he wasn’t helping with the kids. What other activities? He

was a member of Blount Library on their board. He did Leadership Blount one

year, which is a high level of volunteer activity. He was in Rotary. He

currently is president of Rotary. I’m sure there are others. I just don’t know

all of them.… There were weekly meetings at lunch. He was on several

committees in Rotary, so he said he had meetings in the evenings for Rotary.

He would travel out of town for Rotary. He also traveled out of town for

Leadership Blount.

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Wife took care of the Children while Husband was engaged in his many activities.

Wife further testified:

He said he would run on Thursday afternoons and during his two-hour lunches,

he said he would run. But when you’re preparing for a marathon or half

marathon, which is what he was doing, you have to run like a 12-mile distance

or even up to an 18-mile distance at certain times during that preparation. And

that happened on many Saturdays. He would be gone for several hours doing

that.… [H]e went for several [flying] lessons. You actually have to put in a

certain number of hours in order to get your license. He had to actually fly.

He did a lot of that on Friday. I don’t know if he did it on weekends or not.

But definitely on those Fridays.… [H]e loves to play music. And so when he

would go into his office, he often times would be online downloading music.

He had a guitar; he had a piano. He got interested in karaoke contests. I don’t

know if that was around the American Idol time. But they would have karaoke

contests. And he would go to a place called Bull Feathers to participate in the

karaoke contests in the evenings during the week.

With regard to Husband’s involvement in Leadership Blount, Wife testified:

[Husband] met monthly. He may have met more often than that with the

smaller groups. But he definitely met monthly. It was an all day thing. He

also had to travel to Nashville for that. They had retreats that they would go

on. I couldn’t tell you any more than that. I just know that he was gone. He

was gone constantly because of Leadership Blount.

When asked how she managed getting the Children to two places at once while

Husband was engaged in his various activities, Wife stated:

Well, I took them or they - - And I tried to be in two places. Like you drop

[the oldest child] off at speech therapy, which is two hours. You drop her off,

and then I would drive the other ones to soccer practice, and then race back

across town to pick them up if he was at a - - pick [the oldest child] up if he

was at a meeting.

Husband takes a two hour lunch break. To Wife’s knowledge, prior to the

separation Husband never took advantage of Webb’s open door policy in order to have lunch

with the Children.

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Wife was asked what weekends were like prior to the separation, and she

stated:

Depending on what was going on, if it was soccer season, our Saturday

mornings were full of soccer. You would go have birthday parties. I would

run errands that needed to be done, as far as getting things for the kids, grocery

shopping, those kind of things, mowing the grass, doing work around the

house. I occasionally went and visited my family with the kids.

Wife was asked what Husband’s involvement with the Children was like on the weekends,

and she stated:

He was there, unless he was off doing his own activities like the running and

flying. He was there, but he wasn’t really there, you know. You can be in the

building but not really be focused on the kids. That was the kind of thing.…

He would be on the computer. He might be on the phone. At some point, he

bought a laptop computer, so he would be moving around on his laptop. He

started e-mailing on his phone. He occasionally would do a load of laundry,

so the laundry would pile up. He would mow the grass. So he might be

outside mowing the grass on the weekends.

Wife testified: “Most of the housecleaning, I did. We did, fortunately, have a housekeeper,

at that point in time, that came once a week that would do the big housekeeping things. But

the rest of the housecleaning was primarily my job.”

During the 2005-2006 school year, the oldest child was in first grade and the

younger children were in preschool and daycare. Wife would help the oldest child with

homework. When asked if Husband ever helped with homework, Wife stated: “Very rarely.”

Wife purchased the Children’s school supplies, clothing, Christmas gifts, and birthday gifts.

When the Children were sick, Wife was called. Wife took the Children to their medical

appointments.

When asked about the Children’s activities prior to the separation, Wife stated:

At that point in time in 2008, the girls had moved over to Webb. So [the older

daughter] was in second grade and [the younger daughter] was in kindergarten.

[Our son] had moved over to Nanny’s part-time - - well, full-time, but it

quickly changed from Nanny’s in the fall of 2007 I guess. That schedule, at

that point in time, was Monday afternoons [the younger daughter] started

dance, it was around 4:00, 4:15. So I would skip lunch every Monday, and I

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would go and pick up the girls; get [the younger daughter] ready for dance,

take her to her dance class. Run down Kingston Pike from her dance class,

which was in Farragut, to Nanny’s, which was right on Kingston Pike, I would

pick up [our son]. We would race back down to pick up [the younger

daughter] from dance.

At that point in time, I would change [the older daughter] into her dance

clothes because she had dance soon after. I would get them something to eat.

Before [Husband] moved out, he would roll into the parking lot where the

dance club was usually between 5:30 and 6:00, and he would take the younger

two home. [The older daughter], I would stay with [the older daughter]

another hour or so because she had two dance classes, one back to back. So

that was Mondays.… And we went to speech therapy on Tuesday nights. And

I would skip lunch because speech therapy was right at 4:30 to 5:00. And I

had to get them back all the way from Webb down Middlebrook. And so I

would skip lunch, pick up the girls, and take them - - take [the older daughter]

to speech therapy. And then at that point in time, [our son] was at Nanny’s - -

or I’m sorry - - at Tate’s, and so I would pick [our son] up as well.…

Wednesdays, depending on the time of the year, Wednesdays might be our

only time to get to go home and have dinner as a family. And so if we could

do that, we did that. If it was soccer season, we were likely to be on the soccer

field for a couple hours.

On Thursdays, the Children had soccer. On Friday evenings, the parties’ younger daughter

and son would have soccer games. When asked if she ever had missed a soccer practice,

Wife stated: “Not that I can recall.… I was either at another soccer practice or at speech

therapy.”

When asked what Husband’s involvement was with their daughter’s speech

therapy, Wife stated:

He went to the initial assessment with me. Well, she was assessed at school.

And after we got our report, we met with the speech auditory processing

therapist. And she discussed the plan of action. And then I would go every

week. And [Husband] - - I can’t remember when [Husband] first went. It was

after she had probably been in therapy a year or so before he ever went once.

And since then, I think he’s only been a couple times. Most of the time it’s

been to discuss when can we stop this therapy.

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Wife testified in detail about how she helped the Children with their

homework. Wife testified that Husband’s involvement with homework was “[v]ery

minimal.” Wife was asked who prepared meals on Thursday afternoons and Fridays when

Husband was off and she stated: “I usually prepared the family meals. He might order pizza

maybe. Occasionally, he would cook.” Wife testified: “In the evenings, [Husband] was

usually in his office on his computer in the evenings.” When asked what she would be doing

while Husband was in his office, she stated:

Depending on the time, I was cleaning up dishes, helping [our older daughter]

with her homework, playing a game with the kids, reading with the kids. We

tried not to watch a whole lot of television during the school week, but

occasionally they would get to watch a half hour of TV. So I would be in the

family room where they were.

Prior to the separation, Wife communicated with the Children’s teachers at

Webb and attended parent/teacher conferences. Wife also was the one who communicated

with the parties’ son’s daycare teachers prior to the separation. Wife testified that Husband

communicated with the teachers minimally and did not attend those parent/teacher

conferences. Husband could recall attending only one parent/teacher conference prior to the

separation.

Wife explained about kindergarten at Webb stating:

For example, in kindergarten they have a VIP program. Very Important Parent

is what they call it. And so they sign you up. Voluntarily or involuntarily they

sign you up on a calendar. Because I work, I contacted the teachers very early

on and said, is it okay that I ask for a particular day to work out my schedule?

And they were very gracious in doing that. The time commitment is just a

couple hours, usually from 9 to 11.

And I think they schedule that way so that you can go on to eat lunch

with your child right afterwards. When you eat lunch with them, then they

encourage you to leave because the transition is very smooth. They’re going

to go out and play. And at kindergarten, a lot of those kids have never been

away from their parents. So that transition was really good.

Usually, you volunteered once a month, once every other month,

depending on parental involvement. And they ask both parents to participate,

both the moms and the dads.

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Wife participated in the VIP program. When asked if Husband participated, Wife stated:

[Husband] did reluctantly. He was assigned VIP. He complained about it,

saying, we’re paying too much money for me to have to be doing this. But he

did go. I do recall a time when he was signed up and then for whatever reason

couldn’t go, and I had to go for him.

Husband admitted that he complained about the requirement that parents do VIP duty in their

child’s kindergarten classroom at Webb and admitted saying “as much as we’re paying

Webb, you know, I don’t see why I would have to go out there and help teach.” Wife

testified that Husband would have been a VIP on a Friday, which was his day off.

Wife would stay and have lunch with her child after being a VIP. She stated:

When I was there for VIP with [our younger daughter], I would stay for lunch.

I do know of one particular occasion that [Husband] was assigned to go to

VIP, and he did not stay. [Our daughter] was very upset about that.… He told

me later. I think he said he was either flying or having lunch with his

accountant.

Husband admitted that on one occasion when he was a VIP in his daughter’s kindergarten

class his daughter wanted him to stay and have lunch with her but he instead chose to leave

so he could go flying, and that his leaving upset his daughter. Husband admitted that he did

not put his daughter first on that occasion.

Wife testified about when Husband moved out of the marital residence stating:

He left. We didn’t really even talk about when he was going to see the kids

again. So a couple days later I sent an e-mail saying, here is what I propose.

It was every other weekend and dinner on Wednesday nights; not an overnight,

just have dinner with the kids. And of course, he could see them any time he

wanted to at their school activities. I never ever said he couldn’t. And I never

have said that. And then that’s pretty much what happened throughout the end

of February and throughout the month of March.… Towards the end of

March, at some point he made noises about how he wanted them for Thursday

night overnights. And he sent me an e-mail saying, My team thinks I need to

have more time with them. At that point in time, I believe he thought I was

going to move with the kids back to Middle Tennessee where my family was.

And I remember him saying, My team thinks that I need them. Because it

wasn’t that I want to spend more time with them or they need more time with

-13-

me. It was, My team thinks I need them.… I assume for legal purposes, he

didn’t want me to be able to move, so he wanted more time with the kids.…

I don’t know who his team was.

Wife further stated:

He started asking for Thursday night overnights. And I thought it was

important, especially for the kids and being the ages they were, that they spend

the night at the home, at their home, spend the night every night during the

school week at their home because of stability purposes. Once again, I have

got a situation where I have got a son who has got anger management issues

that we’re dealing with, and a daughter with auditory processing disorder.

And I’m the one who’s primarily doing the homework with them. It seemed

right, at that point in time and now, to have as much stability in life as

possible.

Wife and Husband reached an agreement that Husband would bring the

Children to church on his weekends so that the Children could attend church with Wife.

After Wife amended her complaint to allege adultery, Husband became angry and did not

bring the Children to church for several weeks. Husband then resumed bringing the

Children as per the agreement.

Wife testified that she and Husband reached a temporary agreement in August

of 2008 about the Children’s schedule and that they have been operating under this schedule

since that time. Wife testified that this schedule has worked “[f]or the most part, pretty well.

There have been a few missed homeworks and a few times when there has been a scramble

to get some things done. But for the most part, well.” Wife worked with her parents and

Husband’s parents to coordinate the Children’s summer schedule so that both sets of

grandparents would have time with the Children during the summer.

Wife’s proposed parenting plan included a provision that Husband be

responsible for ensuring that homework is completed for the Mondays following his

weekends and the Thursdays after he has had the Children overnight. Wife explained:

We put that because what I was finding was when we first started this, he had

Wednesday night dinners every other Wednesday night. And they would get

home about 7:30, which was around their bedtime, and he wouldn’t be getting

their homework done. And so I was sitting down with … my oldest child,

sometimes til 8:00 or 8:30 to 9:00 trying to get homework done when she was

already tired. And so homework is an ongoing situation with these children.

-14-

They have a lot of it. Webb is a difficult school, especially for [my oldest

child]. [My younger daughter] it seems to come more easily. She doesn’t have

as hard of a time getting her homework done. But for [my oldest], it’s an

ongoing struggle. And it’s going to be the same for [my son]. We just found

out this fall that he has auditory processing disorder as well.

Wife testified:

There have been times when their homework wasn’t done. An example

showed up in [our younger daughter’s] report card in kinder - - first grade

where she had reading assignments for the month of October. And that

particular time there was - - he had fall break, plus he had Wednesday nights,

and you’re suppose [sic] to read with the child every night and record it. It

didn’t happen at all the entire time. I was the only parent that did that with

her.… You were suppose [sic] to initial that they had read and report it back

on a - - there was a sheet of paper. And it was in her folder every day.… At

different times certain projects haven’t been done. At this point in time, if

there is a school project that’s more than a one day assignment, I have been

doing it with the children. The kids, in fact, pretty much say, we want to do

it with you, Mom, I think because they don’t want to stress their dad out on the

Wednesday nights he has them.

When asked if there had been lapses in terms of the Children completing homework when

they were with him, Husband stated: “It was never intentional.”

Wife testified about a book report that the younger daughter was required to

do for school stating:

The first part of the project was due last week. She finished her book. We

initialed that and signed off on that. The next step in the project was due

today.… [Husband] had the children this past weekend.… We had started the

second step on the project before she left on Thursday, because unfortunately,

he has got a habit of not doing those projects with the kids. So I was worried

if we saved it all up until Monday we wouldn’t be able to get it done. So we

did part of it, about half. Unfortunately, they had not done any of it over the

weekend. We had to stay up late last night to do the homework.

Husband admitted that there have a “been [a] few” occasions when he has had the Children

and homework was not completed. He also admitted that the younger daughter had missed

-15-

eight nights of reading, and often arrived at school without her reading sheet during the time

that she was in his care.

Wife testified that she discovered at the end of September of 2008 that

Husband was unaware that their older daughter’s spelling tests were on Thursdays, and had

not been working with the child, despite the fact that this information was in the child’s

folder and on the school website. Wife gave another example of Husband not checking

backpack folders stating:

I know he hasn’t checked their backpack folders every day. A recent example

is [our younger daughter]. And she’s in second grade now. They have this

program called Donuts for Dads, which is usually on a Friday. And this

particular weekend they were sent home, the paperwork for Donuts for Dad.

And you had to sign to make a reservation that you were going to be able to

come.

So on Monday night - - this just happened a few weeks ago - - Monday

night I opened up her backpack to check her homework, and it looked like it

hadn’t been touched all weekend. And the Donuts for Dad form wasn’t filled

out. I knew he was planning to attend because he had mentioned it to me. So

immediately, I had to call him and say, this form is due tomorrow. Are you

still planning to go? And so I had to fill out the form for him. I know he

didn’t look in the backpack, because he had it all weekend and hadn’t seen it.

When asked about the Children’s behavior after they have been at Husband’s

house, Wife stated:

There have been occasions where they have used profanity that I don’t think

is appropriate for their age. For example, [our older daughter] said, you’re

pissing me off, to her little sister. And based on [our younger daughter’s]

comment, her daddy told her that. They have been called stupid by their dad.

And they have used the word stupid more often than they ever did before.

Stupid is a bad word at our house. I know it may not be in everybody’s, but

it’s still a bad word in our house.

They have been mentioning, especially lately, conversations with their

dad about the trial and that their dad is telling them that we are fighting over

week-on/week-off. And they asked me, why you don’t want [sic] dad to have

week-on/week-off?

-16-

And so you can’t tell them. That’s not appropriate. I just pretty much

say that it’s an adult conversation that needs to be determined by the grown-

ups.

Husband testified: “I have not called them directly stupid. I said probably that something that

they did was stupid.” Husband admitted that he has cursed in front of the Children.

Wife testified that she does not talk to the Children about this litigation. Wife

stated:

I answer their questions as best I can, if they bring it up. But if it has to do

with court, if it has to do with divorce, if it has to do with seeing each other as

far as the amount of time, I simply say, you’re going to see your dad, you’re

going to see your mom, and we both love you. It’s not for their best interest

to know that we’re arguing. And when [our son] comes in and says, you’re

fighting with Dad, so I don’t have to tell you things, I just don’t see how that’s

helpful.

Wife was asked about adult issues that the Children had discussed with her and

she stated:

Well, other than using the language, the grown-up language that we talked

about yesterday, there have been issues with regard to the divorce and court,

issues with regard to [our younger daughter] - - We were at a soccer game.

And it was [Husband’s] weekend. And I simply gave [our younger daughter]

a hug and said, call me if you need me. I think they were working on some

homework.

And she responded, Daddy says we never need you.

And I didn’t even know what to say to that. It was just so surprising.

And they were getting in the car. And I noticed in my rearview mirror,

[Husband] was yelling loudly, I mean, I could hear it through the car, yelling

at her.

So that next day on a Sunday, they had a soccer party. And for

whatever reason, that was one of those Sundays he did not bring the children

to church. After that soccer party, the kids, at this point in time, were returning

home with me on Sunday afternoon to spend the night and then go back to

-17-

school, [our older daughter] brought up, you know, [our younger daughter] lied

about that; Daddy never said that.

And I said, you know, I’m here for you guys no matter what. And I just

left [sic] that go. Because what do you say at that point? Obviously, they have

been talking about it since [our younger daughter] made that comment.

Wife testified: “[Husband] has spent more time with those children in the past

two years than he spent in the six years before he left with the kids.” Wife testified that since

the separation, Husband has gone to lunch with the Children, taken them to some

appointments, attended the Children’s musicals, and attended more soccer practices and

games than before. Wife was asked what happens with the Children during days off of

school and in-service days and she stated:

For the most part, if it’s [Husband’s] weekend and it’s a Friday in-service, he

will take them. And what he does with them, I don’t know. If it’s an in-

service day where I have them or if it’s during the middle of the week, I

usually take off work. Which it is amazing, considering what he was doing in

January of 2008, right when he was moving out, there was a Martin Luther

King holiday - - I’m sorry - - President’s Day holiday, which the city doesn’t

get off, and there was an in-service day, so he had to watch the kids. And he

was complaining. We pay too much money for me to be having to watch those

kids, and even though it was his day off.

Wife testified that, since the separation, Husband has missed some of the

Children’s extracurricular activities. She stated: “He has missed soccer practices. He has

missed soccer games. He missed [our younger daughter’s] drama performance. He didn’t

go with [our son] to his assessment when he was assessed at Webb. He missed a

parent/teacher conference.” Wife testified that Husband missed soccer games in the spring

of 2008 because he was at a concert with his girlfriend.

Since the separation, Husband has attended some joint parent/teacher

conferences, and Wife testified:

[I]n [our older daughter’s] conference, right after Ms. Meyer has been talking

about how [our older daughter] is hearing a lot of adult information, and she’s

concerned about that and we need to watch that, [Husband] talked about, well,

everybody needs therapy, and went on to talk about his singing aspirations. He

did bring in that [our older daughter] loves to sing, but here is what I wanted

to do when I was a singer. And that was one child’s class.

-18-

In [our son’s] class, we’re sitting there, and they’re talking about all

these issues that [our son] is having. At which point I say, oh, maybe he has

auditory processing disorder that [our older daughter] does. And somehow the

topic got around to Tate’s. And [Husband] said something to the effect of,

well, I hope they’ve reserved a place in hell for Lewella Tate. And it’s like,

okay, I’m leaving this conference and talking to them another time.… We had

just left [our younger daughter’s] conference where he called his child a ball

buster, which I also don’t necessarily think is an appropriate way to call your

eight-year old.

Husband admitted that he made the comment about their younger daughter being a “nut

buster.”

Wife testified that prior to the separation, Husband would not make medical

appointments for the Children. Wife testified:

The only medical appointment that he has made since separation were

dermatological appointments for [our older daughter]. He scheduled - - and

I guess it was [an older daughter and son] appointment. He went to one and

then scheduled another appointment on a Friday morning. He didn’t let me

know about it until the Thursday before, and called and said, can you take

them? So I ended up taking [our older daughter] to her skin doctor

appointment.… I found out later that he was in Nashville at a concert and

didn’t get back. He was with his girlfriend at a concert.

When asked how she would describe Husband, Wife stated:

[Husband] has a short fuse. He gets angry quickly. He doesn’t have a lot of

patience. He is loud. He loves his children and they love him.… With regard

to [the Children], they need structure, and they need guidance and they need

to feel safe. He’s called them stupid. He’s flicked them on the top of the head.

He’s used inappropriate language around them. He’s left them alone in the car

for hours to the point where they were scared.

Wife testified further about the incident when Husband left the Children alone in the car at

night stating:

At that point in time, we had agreed that he would have the kids two nights

during that week, Wednesday and Thursday. He called a few days earlier and

asked if I would swap. And so I took the children. I agreed to take the

-19-

children on Thursday, and he took Tuesday. So he had them Tuesday and

Wednesday nights of that week. When I picked the kids up on Thursday, I

picked [our daughters] up first.… And [our older daughter] was very tired.…

I said, Why are you so tired?

And she said something about how she had to stay up until 10:00, which

upset me, because that’s way past their bedtime. Even during the summertime,

they usually don’t stay up that late during the week, because they go to

camp.… So at that point, [our older daughter] said that they had to sit in the

car for a bunch of hours the night before.… She said, we were down in

Maryville. Daddy was in a play - - or Daddy was watching a play.

And I just didn’t understand that, because he had asked me to swap

Thursday, and then kept Tuesday and Wednesday were his days, but still kept

them in the car those two days.

Wife testified about the Children’s birthdays since the separation stating:

I am basically the person who talks to the kids about what they want to do for

their birthday. You have to do a little bit of research. I get the invitations

ready. I typically get birthday presents. Now that he’s out of the home, he

gets his own birthday presents for the kids.… I always talk to him before we

set anything in stone and make sure he’s fine with the date. He’s always there

at the party, and certainly invited to the party. Unfortunately, I think it was last

year for [our son’s] birthday party at his preschool, [Husband] chose not to

come. We did a little party in the classroom. And I let him know of the time

and date.

Wife began dating someone during the pendency of this suit, and she testified

that she sees him on the weekends when she does not have the Children or occasionally for

lunch. Wife has not introduced this man to the Children. Wife testified that she never has

hired a babysitter so she could go on a date. She stated: “The only time I’ve had a babysitter

was because I had a work commitment.” Wife had hired a babysitter two times in the two

years prior to trial, and she explained: “I had to come before City Council to announce an

ordinance, I think it was the Booting Ordinance. And then I went to the school for an hour

for the parent conference that we discussed earlier.”

Angie Crabtree, the lower school director of the elementary school at Webb,

testified that she could not recall ever seeing Husband prior to the separation, but stated that

-20-

Husband has become more involved with the Children’s school events since the separation.

Ms. Crabtree testified that Wife always has been involved at Webb. Ms. Crabtree stated:

I have seen [Wife] volunteer for Webb Fest, which is a week long festivity that

we have like a homecoming. I have seen her volunteer in the cafeteria for

activities. I have seen her volunteer at holiday parties. I don’t know if she’s

been on field trips. But I also know that she’s attended other special events or

coffees that we have had at the school. I have seen her have lunch with her

children.

Ms. Crabtree stated that Wife has been involved consistently with Webb.

Much testimony was elicited about the value of Husband’s orthodontic

practice. Both parties produced experts who testified on this subject. William Robert Vance,

Jr., Wife’s expert, valued the practice after taking out the debt at $700,000. Mr. Vance gave

his opinion based on fair market value. When asked what was significant in terms of the

practice’s background, Mr. Vance stated:

Well, the practice that operates today was originally purchased from a Dr.

Pryse in August of 2001 for $250,000, which included equipment and patient

records and goodwill and that sort of thing, and the work force which was an

assembled work force, the patient charts, and, as I said, the operating

equipment. They had two locations, Knoxville downtown, and in Maryville,

not the location they’re in now. Seven full-time employees and one part-time

employee were retained in the purchase transaction.…

And all of that then was moved and consolidated into the Maryville

location after the new building was built. And my information is now that

there are five chairside assistants that produce revenue and braces for Dr.

Eberting.… [F]rom the information that I had, the revenues has [sic] more than

doubled, well, almost doubled from the gross revenues were about $550,000

at the time of the purchase. Now they are - - or as the last information we had,

the full year in 2007 was what we had at the time, it was a million sixty,

$1,060,000. Therefore, it’s more than doubled. And Dr. Eberting attributes

that to marketing efficiency and raising treatment fees.

Also, it would be attributed to the new location. It’s a state-of-the-art

facility, state-of-the-art brand new equipment. At least it was brand new back

in ’05. And it is apparently a very state-of-the-art operation now. It’s a 6,400

square-foot building that was built specifically for that purpose by Dr.

-21-

Eberting.… At the time, he was working only three and-a-half days a week.

It was not open for business Thursday afternoon or Friday. So he was still able

to produce $1,060,000 in revenue with a three and-a-half day week.

Mr. Vance also stated that the collection rate for the practice was “[a]pproximately 90

percent, which is - - I believe [Husband] said it was virtually 100 percent. But we’re using

90 percent here, which is also what he said in his deposition, which is about typical for

someone in the orthodontist practice at that level.”

When asked about goodwill, Mr. Vance stated:

Goodwill or blue sky, whatever you want to call it, it is enterprise goodwill.

It’s not personal, because it is a very basic tenet, I think, in logic that someone

is not going to purchase or pay for something of which they can obtain no

value.… It’s a catchall phrase. Just the basic definition of goodwill is what

a business or a practice sells for or what it’s valued at over and above its hard

assets; hard assets being cash, receivables, and equipment basically, minus the

debt. So if it sells for more than what those things were I just mentioned, well,

then it has some goodwill or it’s valued to have goodwill. And that goodwill

is sort of an all encompassing term that could include an assembled and highly

trained work force, equipment operating and in place, and a person is trained

to operate that equipment. That’s very important. Equipment in place and

operating is worth a lot more than the exact same equipment sitting in a box

or in a warehouse, because it’s in place and it’s operating. The location, a

state-of-the-art facility in a location, repetition, recognition by the community.

That’s all very important. So location and convenience. And of course, the

obvious one, the patient charts, the actual patient charts themselves have some

value. Plus all of the referrals and all that go along. The families that go along

with those patient charts and their neighbors and who they know and their

friends, that’s a good referral base. All of that rolled up together is goodwill,

which gives you a value over and above your hard assets.

Mr. Vance also testified:

if you take my $700,000 value number and break it down among the hard

assets, so to speak, cash, receivables, other deposits, and our estimate of fair

market value, the total hard assets, so to speak, are $514,487. And you’ll find

those numbers basically on the balance sheet someplace. Minus the accounts

payable, minus the installment debt equals a net equity of $269,000. And if

you subtract $269,000 from our $700,000 value, there is an implied goodwill

-22-

in there of $430,622, because, as I said, a value or selling price that’s over and

above, goodwill is the value over and above its hard assets, so to speak.

When asked if the amount of goodwill were subtracted from his $700,000 if the resulting

value would be $270,000, Mr. Vance stated: “That’s correct, if you went with a net asset

value method, which of course is not the real value of this company.” Mr. Vance also stated:

“If you were to strike the personal goodwill, this clearly has enterprise goodwill associated

with it. It’s not all personal to him.”

Husband’s expert, Walter James Lloyd, used an asset approach methodology

and valued the practice at $224,000. When asked about goodwill, Mr. Lloyd stated:

“Goodwill or intangible assets, which goodwill is one of, is the difference between whatever

the value is, in this particular case, [Mr. Vance] is saying it’s $700,000, and the actual

tangible assets, which I determine to be $224,000. So that difference would have to be

goodwill.” Mr. Lloyd explained “The asset approach, basically, is the assets, the adjusted

assets of the business less the liabilities.” When asked if it made sense that he valued the

practice at less than Husband paid for the practice in 2001, Mr. Lloyd stated:

I would be glad to answer that. Several things. One of which is the practice

is substantially different today. I mean, it’s like nine years have gone by. The

practice is substantially different today than it was back then. It’s in a different

location. It’s my understanding, from talking to Dr. Eberting, that $224,000

purchase price, or whatever was, was substantially related to the assets that

were in the practice at that time he bought it. So in other words, the assets

changed, the accounts receivable changes, the debt changes. So it’s a moving -

- it’s not a static value.

And a substantial portion of that purchase price that he paid back then

was related to a noncompete agreement. So I saw the - - I’ve got a copy of the

agreement. We’re not talking about a sale of the business. We’re talking

about what’s the value of this business to this marital estate. And there is no

noncompete agreement in this marital estate that I’m aware of. We’re not

talking about selling the business. So how that makes common sense is that

there is no - - very little similarity to the business that we’re appraising today

as to the business that was back in 2001.

After the trial, the Trial Court entered its Final Judgment for Divorce on

August 12, 2010, inter alia, awarding Wife a divorce, adopting a Permanent Parenting Plan,

setting child support, dividing the marital estate, awarding Wife transitional alimony of

$1,000 per month for ten years, and awarding Wife reasonable attorney’s fees as alimony in

-23-

solido. Husband filed a motion to alter or amend. After further hearing, the Trial Court

entered an order on October 29, 2010 nunc pro tunc to October 14, 2010, inter alia,

amending the Permanent Parenting Plan with regard to the commencement of the Easter and

Thanksgiving holidays, and awarding Wife attorney’s fees and litigation expenses in the

amount of $150,000 as alimony in solido. Husband appeals to this Court.

Discussion

Although not stated exactly as such, Husband raises three issues on appeal: 1)

whether the Trial Court erred in valuing Husband’s orthodontic practice; 2) whether the Trial

Court erred in not adopting Husband’s proposed parenting plan; and, 3) whether the Trial

Court erred in determining the amount of attorney’s fees awarded to Wife. Wife raises as

issues whether the Trial Court erred in distributing the marital estate, and whether the Trial

Court erred in not awarding her all of her requested attorney’s fees and expenses.

Our review is de novo upon the record, accompanied by a presumption of

correctness of the findings of fact of the trial court, unless the preponderance of the evidence

is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).

A trial court's conclusions of law are subject to a de novo review with no presumption of

correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.

2001).

We first consider whether the Trial Court erred in valuing Husband’s

orthodontic practice. With regard to this issue the Trial Court specifically found and held:

The main dispute between the parties in the area of property division

concerns the value of the husband’s orthodontia practice. The wife’s expert

testified that the practice has a value of $700,000.00. The husband’s expert

testified that the practice has a value of $224,000.00. The husband argues that

the figure of $224,000.00 is the value of the practice’s hard assets and that any

value above that figure represents goodwill which is not part of the marital

estate. The basic rationale, however, in the cases disallowing goodwill as a

component of the estate in valuing a professional practice results from the

inequity in compelling a professional practitioner to pay a spouse a share of an

intangible asset at a judicially determined value that could not be realized by

a sale or another method of liquidating value. See Smith v. Smith, 709 S.W.2d

588, 591-92 (Tenn. Ct. App. 1985) citing Holbrook v. Holbrook, 309 N.W.2d

343, 354-55 (Wis. App. 1981). However, in this case, it clearly appears

erroneous for the Court to value the orthodontia practice at a value of

$224,000.00 which is less than what the husband paid for the practice.

-24-

Granted the husband’s purchase of the practice included a non-competition

agreement from the selling orthodontist, but the husband testified that he

would not be willing to sell his practice for the price of $224,000.00 without

mentioning the inclusion or exclusion of a non-competition agreement. The

Court finds and concludes that the value of the practice lies between

$224,000.00 and $700,000.00. The husband himself, prior to the divorce,

consistently stated the value of the practice, of which he now holds one

hundred percent of the interest, to be $500,000.00 in his personal financial

statements. See Trial Exhibits 6, 7 and 8. See Carpenter v. Carpenter, 2008

WL 5424082 (Tenn. Ct. App. Dec. 31, 2008). There is certainly nothing unfair

to the husband in rejecting the value of $224,000.00 which he himself would

reject, and adopting the husband’s own value of $500,00.00 [sic] with which

this Court agrees.

Husband argues on appeal that the value assigned by Wife’s expert, Mr. Vance,

of $700,000 should not have been accepted by the Trial Court because it incorrectly included

good will. We agree that “professional good will is not a marital asset which would be

accounted for in making an equitable distribution of the marital estate.” Smith v. Smith, 709

S.W.2d 588, 592 (Tenn. Ct. App. 1985).

We disagree, however, with Husband’s assertion that the Trial Court was

compelled to have drawn its conclusion of the value of Husband’s practice from the range

between Mr. Vance’s opinion minus goodwill and Mr. Lloyd’s opinion. Such an assertion

assumes that these two opinions were the only evidence presented with regard to the value

of Husband’s practice. Such is not the case.

As stated by the Trial Court, other evidence regarding the value of Husband’s

practice was presented at trial. Testimony was elicited with regard to the price Husband paid

to purchase the practice from Dr. Pryse, a sale which the evidence shows did not include the

value of accounts receivable. Evidence also was elicited with regard to the 619 Smithview

building which was specially constructed to house Husband’s practice, and the state-of-the-

art equipment that Husband purchased when he moved the practice into the 619 Smithview

building. While the building and real estate at 619 Smithview are not part of Husband’s

orthodontic practice, the fact that Husband’s orthodontic practice is located in a building built

specifically for an orthodontic practice at the physical location chosen by Husband as being

where he wanted his practice located is relevant. In addition, evidence was presented about

how Husband had significantly increased revenues since purchasing the practice from Dr.

Pryse, despite working fewer hours than Dr. Pryse had worked. Evidence also was presented

showing the values that Husband had assigned to his practice on Husband’s recent financial

statements. Furthermore, we note that the value assigned to the practice by Husband’s expert

-25-

witness was less than what Husband paid for the practice years prior to moving the practice

into a state-of-the-art location built specifically for the practice with state-of-the-art

equipment purchased since Husband purchased the practice.

A trial judge, as the fact finder, is not required to check his or her common

sense at the door when considering evidence. The Trial Court had before it evidence of

values that Husband himself had applied to his practice, and had Husband’s own testimony

that he would be upset if he were to sell the practice and receive only the value assigned by

his expert. The Trial Court found a value for the practice that was within the range of values

presented by the evidence.

Even if we were to accept Husband’s assertion that the Trial Court was

compelled to find a value within the range presented by Mr. Vance’s opinion minus goodwill

and Mr. Lloyd’s opinion, which we do not, then the Trial Court could have accepted the

value of $270,000, the higher of these two values. This value is $230,000 less than the value

assigned by the Trial Court. Even if the Trial Court erred in assigning a value of $500,000

to Husband’s practice, which we hold it did not, we still would not say that this value renders

the overall distribution of this marital estate inequitable because the evidence still would not

preponderate against the Trial Court’s overall division of this marital estate as being an

equitable division.

Logically, we next consider Wife’s issue regarding whether the Trial Court

erred in distributing the marital estate. Wife argues she should have been awarded a greater

percentage of the marital estate. As our Supreme Court has explained:

This Court gives great weight to the decisions of the trial court in

dividing marital assets and “we are disinclined to disturb the trial court’s

decision unless the distribution lacks proper evidentiary support or results in

some error of law or misapplication of statutory requirements and procedures.”

Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996). As such,

when dealing with the trial court’s findings of fact, we review the record de

novo with a presumption of correctness, and we must honor those findings

unless there is evidence which preponderates to the contrary. Tenn[.] R. App.

P. 13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.

1993). Because trial courts are in a far better position than this Court to

observe the demeanor of the witnesses, the weight, faith, and credit to be given

witnesses’ testimony lies in the first instance with the trial court. Roberts v.

Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App. 1991). Consequently, where

issues of credibility and weight of testimony are involved, this Court will

accord considerable deference to the trial court’s factual findings. In re

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M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007) (citing Seals v.

England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)).

The trial court’s conclusions of law, however, are accorded no presumption of

correctness. Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn.

2002).

***

In a proceeding for divorce or legal separation, the trial court is authorized,

prior to determining the support and maintenance of one party by the other, to

“equitably divide, distribute or assign the marital property between the parties

without regard to marital fault in proportions as the court deems just.” Tenn.

Code Ann. § 36-4-121(a)(1) (2005). The trial court is empowered to do what

is reasonable under the circumstances and has broad discretion in the equitable

division of the marital estate. See Flannary v. Flannary, 121 S.W.3d 647, 650

(Tenn. 2003). The division of assets is not a mechanical process and trial

courts are afforded considerable discretion. Manis v. Manis, 49 S.W.3d 295,

306 (Tenn. Ct. App. 2001).

Keyt v. Keyt, 244 S.W3d 321, 327-28 (Tenn. 2007) (footnote omitted).

Further, our Supreme Court has instructed:

[M]arital property must be divided equitably between the parties based on the

relevant factors enumerated in Tennessee Code Annotated section 36-4-121(c)

without regard to fault on the part of either party. Tenn. Code Ann. §

36-4-121(a)(1). Section 36-4-121(a)(1) requires an equitable division of

marital property, not an equal division. Robertson v. Robertson, 76 S.W.3d

337, 341 (Tenn. 2002).

Larsen-Ball v. Ball, 301 S.W.3d 228, 231 (Tenn. 2010) (emphasis in original).

Tennessee Code Annotated § 36-4-121 (c) provides:

(c) In making equitable division of marital property, the court shall consider

all relevant factors including:

(1) The duration of the marriage;

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(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 contribution by one (1) party to the

education, training or increased earning power of the other party;

(4) The relative ability of each party for future acquisitions of capital

assets and income;

(5) The contribution of each party to the acquisition, preservation,

appreciation, 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;

(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.

Tenn. Code Ann. § 36-4-121(c) (2010).

In her brief on appeal, Wife asserts that she should have received 60% of the

marital estate rather than the 50% that the Trial Court awarded her because, she asserts,

several of the factors contained in Tenn. Code Ann. § 36-4-121(c) “favored Wife

substantially.” In essence, Wife is requesting this Court tweak the Trial Court’s distribution

of the marital estate. We decline to do so. The Trial Court considered all the relevant factors

in light of the evidence. A careful and thorough review of the record on appeal reveals no

reversible error in the Trial Court’s overall distribution of the marital estate.

Next we consider whether the Trial Court erred in not adopting Husband’s

proposed parenting plan. As pertinent to this issue, Tenn. Code Ann. § 36-6-106 provides:

(a) In a suit for annulment, divorce, separate maintenance, or in any other

proceeding requiring the court to make a custody determination regarding a

minor child, the determination shall be made on the basis of the best interest

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of the child. The court shall consider all relevant factors, including the

following, where applicable:

(1) The love, affection and emotional ties existing between the parents or

caregivers and the child;

(2) The disposition of the parents or caregivers to provide the child with food,

clothing, medical care, education and other necessary care and the degree to

which a parent or caregiver has been the primary caregiver;

(3) The importance of continuity in the child’s life and the length of time the

child has lived in a stable, satisfactory environment; provided, that, where

there is a finding, under subdivision (a)(8), of child abuse, as defined in § 39-

15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, by one

(1) parent, and that a nonperpetrating parent or caregiver has relocated in order

to flee the perpetrating parent, that the relocation shall not weigh against an

award of custody;

(4) The stability of the family unit of the parents or caregivers;

(5) The mental and physical health of the parents or caregivers;

(6) The home, school and community record of the child;

(7)(A) The reasonable preference of the child, if twelve (12) years of age or

older;

(B) The court may hear the preference of a younger child on request. The

preferences of older children should normally be given greater weight than

those of younger children;

(8) Evidence of physical or emotional abuse to the child, to the other parent or

to any other person; provided, that, where there are allegations that one (1)

parent has committed child abuse, as defined in § 39-15-401 or § 39-15-402,

or child sexual abuse, as defined in § 37-1-602, against a family member, the

court shall consider all evidence relevant to the physical and emotional safety

of the child, and determine, by a clear preponderance of the evidence, whether

such abuse has occurred.…

(9) The character and behavior of any other person who resides in or frequents

the home of a parent or caregiver and the person’s interactions with the child;

and

(10) Each parent’s or caregiver’s past and potential for future performance of

parenting responsibilities, including the willingness and ability of each of the

parents and caregivers to facilitate and encourage a close and continuing

parent-child relationship between the child and both of the child’s parents,

consistent with the best interest of the child.

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Tenn. Code Ann. § 36-6-106(a) (2010)2 . Pursuant to Tenn. Code Ann. § 36-6-404, when

entering a permanent parenting plan a court also shall consider:

(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

2

Tenn. Code Ann. § 36-6-106 was amended effective June of 2011. We must, and do, apply the

version of Tenn. Code Ann. § 36-6-106 in effect at the time the trial was held and the final order in this case

was entered.

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preference of older children should normally be given greater weight than

those of younger children;

(15) Each parent’s employment schedule, and the court may make

accommodations consistent with those schedules; and

(16) Any other factors deemed relevant by the court.

Tenn. Code Ann. § 36-6-404(b) (2010).

Husband raises two main arguments on appeal with regard to this issue. First,

Husband asserts that consideration of “the issue of infidelity and sexual impropriety is not

to be considered by the trial court in assessing custody decisions.” Husband is not entirely

correct. As this Court explained in Sutherland v. Sutherland: “Sexual infidelity or

indiscretion does not ipso facto disqualify a parent from being awarded custody. However,

when the parent’s sexual activities or indiscretion involve neglect of the minor child, such

neglect may be considered in relation to the best interest of the minor child.” Sutherland v.

Sutherland, 831 S.W.2d 283, 286 (Tenn. Ct. App. 1991).

Second, Husband argues that: “[t]here was no proof that an allowance of equal

co-parenting time with the parties was not in the best interest of the children.” We disagree.

With regard to parenting the Trial Court made very specific findings in its Memorandum

Opinion, which was incorporated into the Final Judgment for Divorce by reference, stating:

This [is] not a case where the Court has one loving parent and one

unloving parent. Both parents love their children, and their children love both

of their parents. The evidence establishes, without dispute, that the mother has

been a devoted, attentive mother to the fullest with no competing interest or

distraction. While working more hours than the father, the mother has been

the primary caretaker for the children. Throughout the marriage, the mother

permitted no interest to compete with her duties as a wife and mother. The

mother has managed to maintain her employment in a municipal law

department while remaining attentive to the needs and schedules of her

children.

On the other hand, the father, while active in his children’s lives, had

several interests in conflict with his parenting of the children. The father has

devoted time and energy to running and training for marathons, flying lessons,

musical interests, service clubs, professional organizations, e-mailing, and

sexual activity. The father has also rekindled his interest in participating in the

theater.

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Since the parties’ separation, the father has increased his involvement

with the children. However, he has not given up any of his competing

interests. In contrast, the mother from day one has devoted all of her time and

energy to the family. Even with respect to her job in a municipal legal

department, she obtained employment outside the home in 2001 because of the

husband’s concerns about finances.

The Court has considered all of the evidence, as well as the statutory

factors at Tenn. Code Ann. § 36-6-106, and finds and concludes that it is in the

children’s best interest that the Court adopt the parenting plan filed by the

mother on October 3, 2009, with the deletion of the language, “Father agrees

that the children are too young to be allowed to fly with him in his private

plane.”

The evidence in the record on appeal does not preponderate against these

detailed findings by the Trial Court. Furthermore, we note that although Husband has, to his

credit, made more of an effort to be involved in the Children’s lives since the separation,

Husband has on several occasions since the separation exercised extremely poor judgment

with regard to the Children. Most notably were the two instances when Husband left the

Children alone in a vehicle at night in a public parking lot. We shudder to think what type

of harm might have come to these very young children in those circumstances if the wrong

person had happened upon them. As already discussed, the record reveals numerous other

instances where Husband put his own desires above the wants and needs of the Children. We

need not discuss them all once again, but instead will list only a few as examples. The

evidence shows that Husband failed to stay to lunch with his daughter after doing VIP duty

in her classroom choosing instead to go flying, which upset his daughter. The evidence also

shows that Husband missed his daughter’s drama performance choosing instead to go out of

town with his girlfriend. Additionally, the record reveals that while Husband had the ability

to change his work schedule and did so to accommodate his Rotary meetings and at least one

date with his girlfriend, he never altered his work schedule to accommodate the Children or

to spend extra time with them.

The record on appeal clearly shows that the Trial Court considered all of the

relevant evidence in light of the applicable statutory factors when reaching its decision

regarding parenting. The evidence does not preponderate against the Trial Court’s findings

relative to this issue, and we find no reversible error in the Trial Court’s adopting the

parenting plan filed by Wife on October 3, 2009, with the deletion, by the Trial Court, of

specified language.

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Finally, we consider whether the Trial Court erred in determining the amount

of attorney’s fees and expenses awarded to Wife as alimony in solido. To begin, we note that

Husband does not contend that Wife should not have been awarded attorney’s fees. Rather,

Husband contends that the amount awarded should have been $75,000, not $150,000. Wife

argues that the Trial Court erred by not awarding her the entire amount of her requested

attorney’s fees and expenses.

Our Supreme Court has instructed:

It is well-settled that an award of attorney's fees in a divorce case

constitutes alimony in solido. See Tenn. Code Ann. § 36-5-121 (h)(1)

("alimony in solido may include attorney fees, where appropriate"); Herrera

v. Herrera, 944 S.W.2d 379, 390 (Tenn. Ct. App. 1996). The decision whether

to award attorney's fees is within the sound discretion of the trial court.

Crabtree [v. Crabtree], 16 S.W.3d [356,] 361 [(Tenn. 2000)]; Kincaid v.

Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995).

Gonsewski v. Gonsewski, 350 S.W.3d 99, 113 (Tenn. 2011). Our Supreme Court also has

given guidance with regard to discretionary decisions stating:

The abuse of discretion standard of review envisions a less rigorous

review of the lower court’s decision and a decreased likelihood that the

decision will be reversed on appeal. Beard v. Bd. of Prof’l Responsibility, 288

S.W.3d 838, 860 (Tenn. 2009); State ex rel. Jones v. Looper, 86 S.W.3d 189,

193 (Tenn. Ct. App. 2000). It reflects an awareness that the decision being

reviewed involved a choice among several acceptable alternatives. Overstreet

v. Shoney’s, Inc., 4 S.W.3d 694, 708 (Tenn. Ct. App. 1999). Thus, it does not

permit reviewing courts to second-guess the court below, White v. Vanderbilt

Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999), or to substitute their

discretion for the lower court’s, Henry v. Goins, 104 S.W.3d 475, 479 (Tenn.

2003); Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). The

abuse of discretion standard of review does not, however, immunize a lower

court’s decision from any meaningful appellate scrutiny. Boyd v. Comdata

Network, Inc., 88 S.W.3d 203, 211 (Tenn. Ct. App. 2002).

Discretionary decisions must take the applicable law and the relevant

facts into account. Konvalinka v. Chattanooga-Hamilton County Hosp. Auth.,

249 S.W.3d 346, 358 (Tenn. 2008); Ballard v. Herzke, 924 S.W.2d 652, 661

(Tenn. 1996). An abuse of discretion occurs when a court strays beyond the

applicable legal standards or when it fails to properly consider the factors

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customarily used to guide the particular discretionary decision. State v. Lewis,

235 S.W.3d 136, 141 (Tenn. 2007). A court abuses its discretion when it

causes an injustice to the party challenging the decision by (1) applying an

incorrect legal standard, (2) reaching an illogical or unreasonable decision, or

(3) basing its decision on a clearly erroneous assessment of the evidence. State

v. Ostein, 293 S.W.3d 519, 526 (Tenn. 2009); Konvalinka v.

Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d at 358; Doe 1 ex rel.

Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d at 42.

To avoid result-oriented decisions or seemingly irreconcilable

precedents, reviewing courts should review a lower court’s discretionary

decision to determine (1) whether the factual basis for the decision is properly

supported by evidence in the record, (2) whether the lower court properly

identified and applied the most appropriate legal principles applicable to the

decision, and (3) whether the lower court’s decision was within the range of

acceptable alternative dispositions. Flautt & Mann v. Council of Memphis,

285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008) (quoting BIF, a Div. of Gen.

Signal Controls, Inc. v. Service Constr. Co., No. 87-136-II, 1988 WL 72409,

at *3 (Tenn. Ct. App. July 13, 1988) (No Tenn. R. App. P. 11 application

filed)). When called upon to review a lower court’s discretionary decision, the

reviewing court should review the underlying factual findings using the

preponderance of the evidence standard contained in Tenn. R. App. P. 13(d)

and should review the lower court’s legal determinations de novo without any

presumption of correctness. Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600,

604 (Tenn. Ct. App. 2004); Boyd v. Comdata Network, Inc., 88 S.W.3d at 212.

Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524-25 (Tenn. 2010).

Husband does not contend on appeal that it was inappropriate to award Wife

some attorney’s fees. He does not argue that Wife failed to prove a need or that he does not

have the ability to pay. Nor does Husband contend that Wife failed to prove that the fees

charged were reasonable. Rather, Husband contends that the attorney’s fees requested by

Wife were excessive because they included charges for four attorneys and Wife’s valuation

expert. Husband further contends, in essence, that the “matters before the Court were not

novel, complicated or complex.”

Wife’s attorney filed an affidavit stating that Wife had incurred attorney’s fees

and costs of $276,787.90. The Trial Court held a hearing and then entered its order on

October 29, 2010 nunc pro tunc to October 14, 2010, inter alia, awarding Wife $150,000 in

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attorney’s fees as alimony in solido, an amount significantly less than the amount requested

by Wife.

The factual basis for the Trial Court’s award of attorney’s fees is properly

supported by evidence in the record, the Trial Court properly identified and applied the most

appropriate legal principles, and the Trial Court’s decision was within the range of acceptable

alternative dispositions. At a minimum, reasonable minds could disagree as to the propriety

of the Trial Court’s decision, the very essence of a discretionary decision. We find no abuse

of discretion in the Trial Court’s award to Wife of a portion, but not all, of her attorney’s fees

and expenses as alimony in solido.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the

Trial Court for collection of the costs below. The costs on appeal are assessed one-half

against the appellant, Jeffrey Jennings Eberting, and his surety; and one-half against the

appellee, Alyson Leigh Amonette Eberting.

_________________________________

D. MICHAEL SWINEY, JUDGE

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