Andrews v. Andrews

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

April 21, 2010 Session

JAMES McKAY ANDREWS

v.

SUSIE HEASOOK CHO ANDREWS

Appeal from the Circuit Court for Shelby County

No. CT-000708-06 Walter C. Kurtz, Senior Judge

No. W2009-00161-COA-R3-CV - August 31, 2010

This is a divorce case. The plaintiff husband is a successful physician and the defendant wife

is a stay-at-home mother. They have one minor child. After twelve years of marriage, the

husband left the marital home and filed for divorce. The wife counter-claimed for divorce,

and protracted and contentious litigation ensued. The initial trial judge appointed a guardian

ad litem and an attorney ad litem. After several trial judges recused themselves, a senior

judge was assigned. After nearly three years of dispute, the case proceeded to trial. The trial

court granted a divorce to the wife; it found that she was economically disadvantaged but

capable of partial rehabilitation, and that the husband had the ability to pay spousal support.

The wife was awarded alimony in futuro, rehabilitative alimony, attorney fees as alimony in

solido, and discretionary costs. The husband appeals the award of alimony, attorney fees,

and costs. We affirm, finding no abuse of the trial court’s discretion under the

circumstances.

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

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J. and

J. S TEVEN S TAFFORD, J., joined.

Donald Capparella, Nashville, Tennessee, for the appellant, James McKay Andrews

Laura D. Rogers, Memphis, Tennessee, for the appellee, Susie Heasook Cho Andrews

OPINION

F ACTS AND P ROCEDURAL H ISTORY

Background

Plaintiff/Appellant James McKay Andrews, M.D. (“Husband”), and Defendant/Appellee

Susie Heasook Cho Andrews (“Wife”) married on December 30, 1993 in Atlanta, Georgia.1

It was Husband’s second marriage and Wife’s first marriage. Their marriage produced one

child, a son (“Son”), born in March 1995.

Husband earned his medical degree in 1985, completed an almost four-year residency in

internal medicine and then a two-and-a-half-year pulmonary residency, all in Memphis,

Tennessee. After completing his residencies, Husband moved to Oak Ridge, Tennessee to

work in private practice as a pulmonary physician. In Oak Ridge, Husband’s first marriage

ended in divorce, and he met Wife.

At the time of the marriage, Husband was thirty-four years old, and Wife was thirty-six years

old. Wife graduated from college with a degree in economics. After college, Wife worked

as a software salesperson for a computer company. When she met Husband, Wife had been

selling computer software for three or four years.

In 1993, Husband took a position with a multi-specialty practice in Canton, Georgia, a suburb

of Atlanta. Wife accompanied Husband to Georgia, and they married just before Husband

started his new job. Around the time the parties married, Wife left the workforce to be a full-

time homemaker. In March 1995, Wife gave birth to their son and remained at home to take

care of him.

Around the time of the son’s birth, Husband engaged in an extramarital affair with an

employee of the hospital in which he practiced. After Wife discovered the affair, the parties

resolved that they wanted to remain married. As a result, they spent several months attending

weekly counseling sessions with a psychiatrist.

The parties in fact remained married, but the emotional health of the relationship is the

subject of some dispute. From Wife’s standpoint, after she recovered from the initial distress

of learning of Husband’s infidelity, and after the intensive counseling, the couple returned

to a mostly normal status, with regular marital relations. Husband’s view of the relationship

differed greatly. From Husband’s perspective, despite the intensive counseling, Wife

1

Both Husband and Wife are represented on appeal by attorneys who did not represent them in the trial court.

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remained angry at Husband and punished him by making him tell all family members of his

indiscretion and by engaging in regular verbal abuse, even in the presence of the parties’ son.

From Husband’s description, he accepted Wife’s abuse out of guilt for having been

unfaithful. Husband said that he and Wife were seldom intimate. Both parties agree that

Husband worked long hours in his medical practice; Husband would later explain that his

long working hours were in part an escape from his unhappy home life.

For the next few years, the family continued to reside in Georgia. Husband eventually

became dissatisfied with his employment in Georgia. In 2001, the parties decided to move

to Memphis, so that Husband could join a medical practice with old friends and earn more

money.

In Memphis, Husband began practicing with Mid-South Pulmonary Specialists, P.C.

(“MSPS”). Initially, Husband was an employee of MSPS, but after two years he became a

partner. Typically, Husband worked a total of sixty hours over a span of four days each week

at MSPS. MSPS paid Husband a regular annual salary of $195,000 plus substantial quarterly

bonuses.

In addition to his practice at MSPS, Husband did “moonlighting” at St. Francis Hospital (“St.

Francis”) in Memphis. At St. Francis, Husband served as an in-house critical care doctor,

spending the night at the hospital the nights that he worked there. Typically, he worked at

St. Francis two weekends out of each month, as well as a few weeknights each month. From

his moonlighting at St. Francis, Husband earned from $12,000 to $15,000 per month.

Meanwhile, Wife continued as a homemaker and the primary caregiver for the parties’ son.

Son was enrolled in a private elementary school, and Wife volunteered almost daily at Son’s

school. She also regularly did volunteer work in the community.

In 2001, when the family moved to Memphis, they resided for a time in a rented house. In

2004, the parties purchased a home in Germantown, Tennessee, a suburb of Memphis.

Standing three stories tall, the Germantown house had 8100 square feet, at least five

bedrooms, a pool, and a theater room. The parties purchased the home for $1.35 million.

Once the parties purchased the Germantown house, they put their Georgia home on the

market for sale. It did not sell for some time.

After the family moved to Memphis, Husband began another extramarital relationship. The

relationship began towards the end of 2003, and continued for about three or four years.

Husband also engaged in another brief relationship as well. By all accounts, Wife remained

unaware of Husband’s extramarital relationships in Memphis until after the parties separated.

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Pretrial Proceedings

On February 7, 2006, Husband left the marital residence with little more than a few items of

clothing. Husband maintains that his departure came after an especially rancorous argument

in which Wife demanded that he move out of the parties’ home until the next month. By

Wife’s account, Husband simply left, with no warning. By all accounts, Husband did not talk

to the parties’ son about his departure until after it occurred.

At about the same time that Husband left the marital home, he apparently withdrew the

majority of the available funds from the parties’ joint bank accounts. He left about $2000

in one account for Wife’s use and apparently cancelled Wife’s access to the parties’ joint

credit cards.

Two days after he left the marital home, on February 9, 2006, Husband filed a complaint for

divorce in the Shelby County Circuit Court.2 In the complaint, Husband sought a divorce

on the grounds that Wife had engaged in inappropriate marital conduct and that irreconcilable

differences existed between the parties. He asked for an equitable division of the marital

estate and designation as the primary residential parent for the parties’ child. The complaint

requested an award of child support, alimony, and attorney fees, as well as the appointment

of a guardian ad litem.

The next day, Wife was served with a copy of the complaint. Around the same time, she

learned that she no longer had access to the parties’ funds. In response to Wife’s petition,

the trial court issued a mandatory injunction requiring Husband to deposit monies in an

account in Wife’s name. In addition, both parties were required to provide an accounting of

all funds in their possession or control. Wife also filed the first of many motions for an

interim award of attorney fees and litigation expenses,3 which was granted. A hearing before

the divorce referee on pendente lite support was set for early March 2006.

In anticipation of the pendente lite hearing before the divorce referee, both parties filed

affidavits of income and expenses. Husband’s affidavit stated that he earned a gross income

of $57,980 per month with expenses of $33,586 per month. Husband’s income figure did not

include income earned from St. Francis, and his expenses included expenses for Wife and

Son. Wife’s affidavit stated that she had no source of income and had expenses of $48,677

2

The notary public’s acknowledgment indicates that the notary public witnessed Husband sign the complaint

on February 6, 2006.

3

The record indicates that Wife filed four similar motions from May 2006 to July 2008. Some were granted

in part and others were denied.

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per month. After the hearing, the divorce referee recommended that Husband make

temporary support payments of $29,500 per month to Wife, and also pay the mortgages on

the parties’ Georgia and Germantown houses. Husband appealed the referee’s ruling for a

de novo hearing before the trial judge.

Meanwhile, Wife answered Husband’s complaint and counterclaimed for divorce. She

admitted irreconcilable differences, denied Husband’s other allegations, and asserted that

Husband had engaged in adultery and inappropriate marital conduct.4 Wife asked to be

designated as primary residential parent. She sought an equitable division of the marital

estate, alimony, child support, and attorney fees.

In March 2006, the trial court entered an order granting Husband parenting time with the

parties’ son every other weekend and every Tuesday evening. The order required Husband

to refrain from working during his parenting time.

On March 30, 2006, the trial court entered an interim order appointing an attorney as the

guardian ad litem (“GAL”) for the parties’ son. The GAL was ordered to investigate “all

relevant matters pertaining to the best interest of the child in the pending divorce” and to

provide the trial court with a comprehensive and detailed report of the investigation within

thirty days of trial. The order stated that the GAL was to act in accordance with the

American Bar Association’s Standards of Practice for Best Interests Attorneys representing

children in child custody cases,5 “unless otherwise set forth in this Order.” See American

Bar Association, Standards of Practice for Lawyers Representing Children in Custody Cases

§ 5 (2003) [hereinafter “A.B.A. Standards”].

In addition, with the consent of the parties, the order appointing the GAL included numerous

provisions addressing testimony by the GAL and use of the GAL’s report:

15. As necessary, the GAL shall submit a comprehensive and detailed Report

of the investigation pursuant to this Order to the Court and to Counsel for the

parties within thirty (30) days prior to trial. Such Report may be utilized by the

Court and the Court’s ultimate decision of the best interest of said child.

4

In her original counterclaim, Wife only asserted inappropriate marital conduct and irreconcilable differences

as grounds for divorce. Pursuant to a consent order, Wife subsequently amended her counterclaim to add

adultery as an additional ground for divorce.

5

The A.B.A. Standards describe a Best Interests Attorney and a Child’s Attorney: “[T]he Best Interests

Attorney investigates and advocates the best interests of the child as a lawyer in the litigation, while the

Child’s Attorney is a lawyer who represents the child as a client.” A.B.A. Standards, supra, § 2 cmt.

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16. Said investigative Report shall include a separate section of the GAL’s

conclusions and recommendations as to the best interest of said child which

may be considered by the Court and shall not be binding in any way upon the

Court.

17. Further, the parties acknowledge that the Report may contain hearsay.

The parties agree by consent to waive objection to hearsay contained in the

Report and as it relates to the testimony of the GAL.6

18. The Report of the GAL shall be forwarded to both Counsel for the parties

and to the Court, but shall not be filed with the Court without permission of

both parties and the Court and shall only be disseminated to the parties by

future order of the Court.

19. The parties shall not read the report of the GAL; however, the report may

be discussed with the parties. The parties shall not receive copies of the report

of the GAL.

20. The GAL may testify.7

21. The parties further stipulate that the GAL shall be deemed an expert for

the purposes of giving opinion testimony and recommendations and the GAL’s

qualifications shall not hereafter be an issue as to the admissibility of the

GAL’s testimony, but shall be admissible as to the proper amount of weight

to be given to the testimony by the Court.8

22. The Court retains its authority to exclude the opinion of the GAL in its

ultimate consideration or give the testimony the weight the Court deems

proper.

23. The parties further stipulate that the GAL shall be entitled to function both

as attorney for the best interests of the child and as witness, if necessary, and

that any potential or actual conflict of interest that arises as a result of this role

is hereby waived by consent of the parties. The parties thereby consent to

6

In Toms v. Toms, 98 S.W.3d 140, 144 (Tenn. 2003), the Tennessee Supreme Court held that the report of

a guardian ad litem constitutes hearsay.

7

The Supreme Court in Toms stated that, in lieu of admitting a guardian ad litem’s report into evidence, a

guardian ad litem “should testify . . . and be subject to cross-examination.” Toms, 98 S.W. 3d at 144. The

Toms Court said, however, that a guardian ad litem’s report could be “reviewed” by the trial court. Id.

8

The record does not indicate whether the GAL appointed in this case had specialized training or other

background that would qualify her as an expert, or the parameters of her stipulated area of expertise. The

A.B.A. Standards recommend that a lawyer representing children in custody cases, such as a Best Interests

Attorney, have training in areas such as children’s development, family dynamics and dysfunction, and

communicating with children. A.B.A. Standards, supra, § 6(B).

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waive objection under the cannons of ethics as it may relate to the testimony

of the GAL.9

The order required Husband to pay the GAL’s initial retainer, with additional fees considered

as child support.

Following the appointment, the GAL commenced her investigation. She interviewed both

parties and they provided her a list of thirty-six witnesses to interview. After the GAL

interviewed the parties, she was concerned by their starkly contrasting accounts of the

marriage, so she sought a Rule 35 psychological evaluation.10 To that end, a consent order

was entered requiring both parties to undergo a mental examination.

In the course of her investigation, the GAL received numerous documents concerning the

parties’ son and interviewed witnesses suggested by the parties. She met with Son on

multiple occasions, as well as Son’s therapist.

Meanwhile, in May 2006, the parties received an offer to purchase their Georgia house,

which had apparently been on the market since 2004. Eventually, the parties accepted the

offer and sold the house, netting proceeds of $375,063. The proceeds were placed in escrow.

A couple of months later, Husband purchased a separate residence in Memphis for about

$280,000, utilizing a 100% loan. During the pendency of the case, he made between

$140,000 and $150,000 in improvements to this house, including landscaping, a new

driveway, a new screened-in porch with a fireplace, as well as a hot tub, a big-screen

television, and sound system.

In July 2006, the trial court heard Husband’s appeal from the divorce referee’s ruling. After

the hearing, the trial court vacated the referee’s ruling and entered an order reducing

Husband’s pendente lite support obligation to $12,480 per month.11 Husband was ordered

to continue paying the mortgage on the Germantown house, and Wife was ordered to pay

Son’s tuition. The proceeds from the sale of the Georgia house were divided evenly;

however, Husband’s $46,000 accumulated arrearage on his pendente lite obligation under

the referee’s ruling was deducted from Husband’s share of the proceeds. Both parties were

ordered to pay their own attorney fees and litigation expenses from the proceeds.

9

The A.B.A. Standards state that a Best Interests Attorney advocates on behalf of the child in the litigation,

but is not a witness. A.B.A. Standards, supra, §§ 2 cmt., 3 cmt.

10

TENN . R. CIV . P. 35.

11

The trial court’s order specified that the support obligation was half alimony and half child support.

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By September 2006, the GAL had substantially completed her investigation and was prepared

to make a recommendation regarding the permanent parenting plan. In light of her

investigation, the GAL recommended that Wife be designated as primary residential parent

and that Husband have residential parenting time every other weekend and every Tuesday.

Although Husband was not happy with the GAL’s proposed parenting plan, he informed the

GAL that he would accede to her recommendation. Wife apparently did not directly respond

to the GAL’s recommended parenting plan.

The ensuing months, nay, years, brought a nearly never-ending succession of disputes, large

and small. Some were essentially property issues, such as disputes over whether the parties’

expansive Germantown home should be sold.12 Many disputes involved parenting issues,

with the parties’ only child as the unhappy pawn. The disputes ranged from the substantive

to the trivial, including Husband’s consumption of alcohol while Son was with him, which

parent should assist Son in preparing for tests, whether Son should attend an “away” summer

camp, whether Son’s clothes sent to Husband’s home were returned to Wife, and on and on.

For reasons that do not appear in the record, after the conclusion of her initial investigation,

the GAL became involved in virtually all of the parties’ ongoing disputes that concerned Son.

She dealt directly with the parties, Son, the therapists for Son and for both parties, and others,

essentially investigating and mediating or arbitrating each such dispute. The genesis of this

role is unclear, as it is not expressly contained in the description of the GAL’s role in the

order of appointment.13 Regardless of the reason, that is the role that evolved for the GAL.

Before long, a poisonous relationship developed between Wife and the GAL. Wife withdrew

from communicating directly with the GAL, the GAL expressed frustration and vexation

with Wife, which caused Wife to feel threatened by the GAL and seek removal of the GAL,

which further rankled the GAL and thwarted her mediation/facilitation efforts.

By May 2007, the conflict between Wife and the GAL had escalated to the point that the

GAL filed a motion for the appointment of an attorney ad litem (“AAL”). The motion was

granted and the trial court entered an order appointing the AAL. The order, however, had

no parameters for the authority of the AAL or even any description of the AAL’s role; the

12

Apparently the parties bought the Germantown home near the “top” of the market. As their dispute over

whether to sell the home dragged on, the housing market deteriorated, resulting in substantial “negative

equity” in the house, which made selling the house even more challenging. Meanwhile, the sizeable

mortgage payments and maintenance costs continued unabated.

13

There is some indication in the record that either Wife or Husband or their attorneys initially enlisted the

assistance of the GAL with complaints about the other party’s parenting or to arbitrate or mediate parenting

disputes.

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order simply stated that the AAL was “appointed for any purpose.” 14 As things turned out,

the AAL advocated and filed pleadings on behalf of the GAL. When the AAL filed

pleadings, such as discovery requests served on Wife, these drew objections from Wife, to

which the AAL responded with motions to compel. These exchanges provoked further

efforts by Wife to terminate the GAL, as well as a complaint against the GAL with the Board

of Professional Responsibility. And so on.

Wife’s conflicts with the GAL and the AAL did not deter the parties from engaging in

disputes with one another, in the form of a wide variety of motions, cross-motions, requests

for sanctions, petitions for contempt, motions to disqualify counsel, and other such pleadings,

and even the execution of a search warrant on a lawyer’s office. All of these were

interspersed with motions by Wife seeking the recusal of the trial judge. Mediation was

ordered, to no avail. Trial settings came and went; the case was set for trial, continued, and

reset at least six times.15 Both Husband and Wife changed lawyers. The ongoing

proceedings were punctuated by periodic requests by Wife to file an interlocutory appeal

pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure; the trial court granted one

such request, only to have permission to appeal denied by the appellate court.

In January 2008, the initial trial judge entered an order of recusal. Thereafter, the case

ricocheted among the different divisions of the Shelby County Circuit Court and the

Chancery Court. At various times, matters relating to the case were heard by five different

trial judges. In July 2008, the Tennessee Supreme Court entered an order assigning Senior

Judge Walter C. Kurtz to hear the case. Following the designation, Judge Kurtz entered a

scheduling order setting the case for trial in November 2008. Consonant with the order of

the initial trial judge, under Judge Kurtz’s scheduling order, the parties were required to file

supplemental accountings no less than two weeks before the scheduled trial.16 The parties

were also ordered to file updated affidavits of income and expenses prior to trial.

14

The order as initially drafted stated that the AAL was appointed “to advocate and protect the best interest

of the minor child at such times as the [GAL] may be called to testify in this cause.” This language was

crossed out and replaced with “for any purpose.”

15

The initial trial setting in June 2007 was utilized for the trial court to consider a temporary parenting plan.

The trial court adopted the GAL’s recommended parenting plan. The same hearing, however, spawned a

motion to terminate the GAL, a motion for Rule 11 sanctions, a motion for recusal of the trial judge, and a

motion for permission to file an interlocutory appeal. All of these motions were denied.

16

In anticipation of a trial date scheduled for October 2007, which was later continued, the parties had filed

accounting statements in accordance with the trial court’s prior order.

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In accordance with the scheduling order, in October 2008, the parties filed supplemental

accounting statements. The same month, Husband and Wife each filed a Rule 14(c) affidavit

of current income and expenses.17 Husband’s affidavit showed that he continued to earn

substantial income from his work at MSPS and St. Francis, but that his outflow was more

than he earned, in order to meet his pendente lite obligations, service the marital debt, and

pay his own monthly living expenses. In her affidavit, Wife stated that she remained a full-

time homemaker and caregiver for the parties’ son, with no separate source of income.

Wife’s affidavit asserted that she anticipated that her already considerable monthly expenses

would rise by some $20,000 per month after the divorce.

As the trial date approached, the parties’ proposed parenting plans differed only slightly on

the residential parenting schedule; they agreed that Husband would have residential parenting

time every other weekend plus one day, but differed in minor respects such as which day of

the week should be Husband’s extra day. They disagreed in a few other respects, such as

which parent should be the primary decision-maker in areas such as the son’s medical care.

Despite the many parenting disputes that had occurred, this had more or less been the status

of their proposed parenting plans since Husband indicated in the fall of 2006 that he would

acquiesce in the GAL’s interim recommended parenting plan.

As of the scheduled trial date, the parties’ Germantown house remained unsold, requiring

continued payment of the $8400 per month mortgage, plus substantial maintenance costs.

By the time of trial, the GAL filed a roughly 375-page report, half of which were her

interview summaries and recommendations, with the other half consisting of correspondence

with the parties and their attorneys, mostly on the countless parenting disputes, and various

exhibits. By September 30, 2008, a month before trial, the record indicates that the AAL’s

fees were over $78,000 and the GAL’s fees were over $138,000. The total attorney fees for

the parties, excluding the fees of the GAL and the AAL, were well over $675,000. Some of

these fees were paid in advance of trial, but much remained unpaid.

Trial

In November 2008, the trial court conducted a five-day bench trial. Issues pertaining to the

fees of the GAL and the AAL were reserved for a post-trial hearing. At trial, Judge Kurtz

heard testimony from thirteen witnesses, including Husband, Wife, and the GAL. Seventy-

nine exhibits were entered into evidence.

17

R. CIR . CT . THIRTIETH JUD . DIS . 14(c).

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The GAL testified at the outset of the trial, with direct examination by Husband’s trial

counsel, cross-examination by Wife’s attorney, and questions by the AAL. Much of the

questions directed to the GAL by the parties’ trial counsel related to the numerous conflicts

that had arisen, especially the conflicts between Wife and the GAL. The GAL felt that Wife

instigated unnecessary disputes and created conflicts with Husband’s allotted parenting time.

On several occasions, the trial judge sought to redirect the GAL’s testimony with statements

such as, “Let’s hone in on [Son]. I want to hear about [the GAL’s] meetings with [Son], how

he’s doing now, what her recommendations are for the parenting plan.” Ultimately, the GAL

outlined her recommendations. The parenting plan recommended by the GAL at trial was

much the same as that recommended in her September 2006 interim report.18 The GAL

indicated in her testimony that her proposed plan was acceptable to Husband. She said that

Wife, however, felt that the GAL’s proposed parenting plan allocated too much residential

parenting time to Husband.

Husband testified on his own behalf. In his testimony, he discussed his marriage to Wife, the

events precipitating his filing for divorce, his career and his ability to earn income, and the

marital estate.

Husband recounted that he and Wife married in December 1993 and their son was born in

March 1995. Early on, he said, the marriage was going “okay” until he made a “stupid

mistake” by having an affair. After that, despite intensive couples therapy, Wife frequently

had explosive rages in which she cursed, berated, and occasionally hit or slapped him.

Husband asserted that these outbursts sometimes occurred in Son’s presence, but Husband

tolerated them out of guilt over his transgression. By the time the family moved to Memphis

in 2001, Husband said, their relationship was a “shell of a marriage.” Husband said that he

occupied most of his time with work to avoid the constant “fighting, screaming, and yelling,”

but admitted that this approach had cost him a close relationship with Son. Husband claimed

“complete surprise” that a particularly vicious argument in the morning of February 7, 2006

resulted in him suddenly leaving the house and filing for divorce. On cross-examination,

however, Husband admitted that he had had several extramarital affairs, and in January 2006

had consulted with a divorce attorney.

Turning to his employment, Husband testified that he was still practicing at both MSPS and

St. Francis. He explained that MSPS is basically an expense-sharing arrangement among the

physician-owners, including himself. He was drawing a salary of $195,000 per year, payable

in bi-weekly installments, with quarterly bonuses based on the collections of MSPS

attributable to him. Due to the uneven cash flow, Husband said that he would often take out

“bridge” loans between the bonus payments. Husband described a sixty-hour work-week

18

At trial, the GAL recommended that Husband be designated primary residential parent during the summer.

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over four days per week at MSPS; he said that he is on-call a few weeknights and about one

weekend per month.

In 2001, Husband began doing “moonlighting” at St. Francis as an in-house critical care

doctor, earning anywhere from $12,000 to $15,000 per month. Prior to the parties’

separation, each month he would work two sixty-hour weekends and a few twelve-hour

weeknight shifts at Saint Francis, in addition to his MSPS work. After the parties’ separation

and during the pendency of the case, Husband had residential parenting time with Son every

other weekend. This affected the time available for him to do his moonlighting work at St.

Francis. Husband said that, while the divorce had been pending, he had been able to work

weekends at St. Francis only “about once every two or three months.” Consequently, his

income from St. Francis had diminished by about eighteen percent. In his trial testimony,

Husband maintained that he had not worked any weekends at St. Francis during 2008; he had

only worked weeknight shifts at St. Francis from 7 p.m. to 7 a.m., which made it “more

difficult . . . to be alert” for his primary duties at MSPS. Husband claimed that, due to

internal changes, St. Francis would no longer need his “moonlighting” services at all, at some

point after January 2009.

The parties’ tax returns were introduced into evidence during Husband’s testimony. They

showed that Husband earned total gross income of $506,715 in 2002 and $725,032 in 2003.

Of these totals, $95,825 in 2002 and $253,695 in 2003 came from “moonlighting” at St.

Francis. Around 2004, Husband became a partner at MSPS. After that, he earned total gross

income of $935,081 in 2004, $895,255 in 2005, $910,982 in 2006, and $839,327 in 2007.

During these years, the portion attributable to “moonlighting” at St. Francis was $236,855

in 2004, $215,080 in 2005, $177,028 in 2006, and $181,155 in 2007.

On cross-examination, three financial statements submitted by Husband to various financial

institutions for loan applications were entered into evidence. The first financial statement

was dated March 2004, on which Husband had handwritten the figure “$1,000,000” as his

total annual income. In another loan application dated November 2005, Husband signed a

financial statement indicating that he earned an income of one million dollars per year. In

an October 2005 application for a loan to purchase a Steinway grand piano, Husband had

represented that he earned a gross income of $90,000 per month, which annualized to over

one million dollars a year.

Husband explained that the income representations in the financial statements for the loan

applications were “guesstimate[s]” and “ballpark figure[s].” Husband insisted repeatedly that

he had “never in [his] life made a million dollars or more.” He added that “my tax returns

speak for themselves on what I really make.”

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On further cross-examination on his moonlighting income, Husband acknowledged that he

had “probably” testified to the divorce referee at the pendente lite support hearing that his

employment with St. Francis would end in March 2006. Husband’s counsel stipulated that

Husband had consistently represented throughout the proceedings that his income would at

some point be reduced because of impending changes at St. Francis. Husband said that he

had looked into other moonlighting jobs but had not found one that fit his schedule, including

his parenting schedule.

In his testimony, Husband also discussed the marital estate. In 2004, he and Wife purchased

the Germantown house for about $1.35 million. There was apparently no down payment; the

entire purchase price was financed with a 100% loan. By the time his motion to compel the

sale of the house was heard, the appraised value had dropped to $950,000; however, $1.3

million remained owing on the mortgage. The trial court at that time ordered that the house

be listed at $1.2 million. As a consequence, Husband said, the Germantown house never sold

and remained part of the marital estate. At the time of trial, $1.2 million was owed on the

mortgage, and Husband opined that the house at that point would sell for no more than

$800,000. Other than his retirement accounts and his separate residence in Memphis, 19

Husband said, the marital estate was severely encumbered with debt, resulting in a net

negative marital estate.

Wife testified as well. In her testimony, she discussed the parties’ marriage, their abrupt

separation, her relationship with the GAL, her work experience, and her income and

finances.

When Husband suddenly left the marital home in February 2006 and filed for divorce, Wife

testified, she was “shock[ed].” Although she and Husband occasionally argued, she

characterized their marriage as normal “most of the time.” She disagreed with Husband’s

assertion that they had a “shell of a marriage” in Memphis, calling this statement a “complete

lie.” In response to his allegation that she had frequent angry outbursts, Wife claimed that

she was kind to Husband but expected a married man not to have girlfriends.

Wife described her relationship with the GAL over the course of the protracted divorce

proceedings. At first, Wife said, she fully cooperated with the GAL and communicated

directly with her. At some point, Wife felt, the GAL became “threatening,” and Wife began

communicating with the GAL solely through her attorneys. As things deteriorated, Wife

said, the GAL threatened to address the trial court if Wife did not comply with her requests,

to take away Wife’s decision-making authority with regard to Son, and to have all of the

19

Husband’s pre-trial affidavit stated that his separate Memphis residence was worth $290,000 as of August

2007, with $280,000 owed on the mortgage.

-13-

GAL’s fees assessed against Wife. Overall, Wife believed, the GAL sought to overrule her

decisions as a mother. Without continued intrusion by the GAL, Wife claimed, she was

capable of cooperating with Husband on parenting issues.20

Wife described her educational background, work history, and expenses. Prior to marrying

Husband, Wife earned a college degree in economics and worked selling software for a

computer company. At Husband’s request, she left the workforce “way before” they married.

During the marriage, she was a stay-at-home wife and mother who supported Husband’s

success in his medical career. Wife spent her time volunteering at Son’s school, attending

Bible study classes, and performing volunteer community service. Wife admitted that, since

divorce proceedings were instituted, she had made no effort to re-enter the workforce or

update her knowledge of computer software. Wife explained that she had been overwhelmed

by the divorce process.

In her testimony, Wife adopted her Rule 14(c) affidavit of income and expenses, and

advocated the positions set forth in her pretrial brief. In her pretrial brief, Wife took the

position that selling the marital home in Germantown was not feasible, and so the home

should be awarded to her, along with sufficient alimony in futuro to pay the monthly

mortgage payment. In her Rule 14(c) affidavit, Wife said that her expenses at the time were

$12,480 per month. This did not include some large expenses, such as the mortgage and

upkeep on the marital home. If she were awarded the marital home, Wife noted, she would

need sufficient alimony to pay the $8400 per month mortgage. Wife calculated that her

expenses after the divorce would be $32,100 per month, including the sizeable mortgage

payment, estimated income taxes of some $9,000 per month, and her other expenses;

consequently, she sought an award of alimony in futuro of $30,000 per month.

Wife testified that, during the marriage, the parties had enjoyed a “good life-style,” enjoying

vacations to destinations such as Santa Domingo and taking a Disney cruise. Since the

parties’ separation, she claimed, she had scaled down her expenses, noting that she took Son

on a vacation trip to Dollywood in east Tennessee. On cross-examination, however, she

conceded that, since the separation, her vacation trips had also included destinations such as

beach resorts in South Carolina, the Bahamas, and Florida, and a ski resort in Winter Park,

Colorado.

At the conclusion of the proceedings, the trial court took the case under advisement.

20

Wife was cross-examined by the AAL on Wife’s criticism of the GAL. The questions did not appear to

relate directly to the parenting decisions before the trial court.

-14-

Trial Court Decision

In December 2008, the trial court entered a thirty-four page memorandum opinion and order

that granted a divorce to Wife, adopted a parenting plan, divided the marital estate, and

awarded alimony, child support, attorney fees, and discretionary costs to Wife.

At the outset of its opinion, the trial court capsulized the litigation:

This case has been marred by multiple judges, multiple lawyers, and a

regrettably hostile relationship between [Wife] and the [GAL]. That

relationship was so strained that a prior judge found it necessary to appoint an

attorney ad litem to represent the [GAL].

***

By most measures this case should not have dissolved into such

contentiousness and concomitant expense. The parties had a long-term

marriage and the plaintiff was a well-paid physician. His wife was able to

devote herself to the home and their son. . . . The son was perhaps somewhat

overprotected but otherwise a normal boy whose problems were no more than

any child who has had to suffer through his parents’ divorce. Just how this

case was derailed into such malevolence and expense is contested by the

parties. The wife blames the guardian ad litem and the husband. The husband

blames the wife. The guardian ad litem contends that the problems rest mostly

with [the wife]. The lawyers for both sides have contributed to this

environment of animosity.

The Court notes that the total cost of attorney’s fees in this case for the

parties’ multiple and successive lawyers, guardian ad litem and attorney ad

litem will be over $800,000, and perhaps as high as $1,000,000. Such cost is

a mark of the failure of the legal system to effectively deal with and minimize

the emotional and financial conflicts inherent in ending the parties’ marriage.

The trial court commented on the “weighty” roles in the litigation of both the GAL and the

AAL, contrary to the normally “circumspect role” of attorneys appointed for the benefit of

a child in a custody dispute. It noted, however, that the issue of the fees for the GAL and the

AAL had been reserved for later.

Utilizing the GAL’s recommended parenting plan as a basic framework, the trial court

adopted a parenting plan that incorporated many of the provisions of the temporary parenting

plan that had been in effect since June 2007, with modifications to address the problems that

had emerged. The parenting plan designated Wife as the primary residential parent, with

-15-

parenting time for Husband every other weekend plus Monday nights. The order directed

the parties to agree on a mediator, and terminated the involvement of Son’s therapist.

In dividing the parties’ property, Judge Kurtz noted that the marital estate was not

complicated, but the task of dividing it was rendered problematic by the $400,000 in negative

equity in the Germantown house. After reviewing the parties’ assets and liabilities, Husband

was awarded the house and ordered to sell it and to take on the remaining associated debt.

Pending the sale, Wife and Son were permitted to continue residing in the home, and Wife

was awarded $40,000 in alimony in solido for a down payment on a new house. Husband’s

retirement accounts were divided evenly. Respective bank accounts, vehicles, and debts

incurred other than attorney fees were allocated to each party. Husband was awarded his

separate Memphis residence and his ownership interest in MSPS, which the trial court valued

at $250,000.

After dividing the marital estate, the trial court considered Wife’s request for alimony. The

trial court found Wife to be economically disadvantaged and in need of support. The trial

court observed that Wife is “an intelligent, educated, and articulate person,” but noted she

had not worked outside the home since 1993 and her knowledge in her field had become

dated. It found that Wife could be rehabilitated to an extent, but concluded that “[s]he could

not, . . . even if rehabilitated, achieve an earning capacity that would allow her a standard of

living reasonably comparable to that enjoyed during the marriage or to [Husband’s] post-

divorce standard of living.” The trial court commented that, prior to separation, the parties

had enjoyed “quite a good lifestyle” and that Husband had continued to “live[] fairly well”

after their separation. After reviewing the parties’ accountings and Rule 14(c) statements of

income and expenses, the trial court found Wife’s statement of her current expenses as well

as her estimate of her post-divorce expenses, to be “excessive.” It also deemed Wife’s

accounting statements “difficult to follow” and “unreliable.”

The trial court then discussed Husband’s income and earning capacity:

[Husband] has a gross annual income of around $850,000. This

includes salary, bonuses, and second job. He is a highly-qualified physician

with a substantial earning capacity. He now contends that his income may

decrease because his “moonlighting” position may be curtailed or eliminated.

The Court would note, however, that in the last several years he has filled out

financial statements seeking loans where he stated his income was

approximately $1,000,000.00. At trial [Husband] testified that the one-million

annual income was an approximation and after all he was only seeking a loan.

The Court assumes some validity to these estimates, as a knowing false

-16-

information on a financial statement would in many instances be a criminal

offense. See, e.g., 18 U.S.C. § 1014.

Thus, the trial court considered Husband’s predictions regarding his St. Francis

“moonlighting” opportunities, the past income shown on his income tax returns, and the

income representations on the loan applications entered into evidence, and concluded that

Husband was capable of earning $850,000 per year. It acknowledged the problems created

by the debt on the Germantown house, but found overall that the marital estate division

would not overly burden Husband with debt.

In light of the above findings, the trial court then set Husband’s support obligation. It

awarded Wife rehabilitative alimony in the amount of $8000 per month for four years, and

$5000 per month for the following two years. Additionally, Wife was awarded $8500 per

month in alimony in futuro until her death or remarriage. Husband was also ordered to pay

$2100 per month in child support, $1250 per month into a trust account for Son’s college

expenses, and Son’s private school tuition.

The trial court turned to Wife’s request for attorney fees. It commented: “Any neutral

observer of legal proceedings would be appalled by the attorney’s fees in this case.” It

recapped the attorney fees incurred prior to trial as totaling $369,697 for Husband and

$308,953 for Wife.

In setting forth its reasoning on the award of attorney fees, the trial court specifically

referenced the factors in Rule 1.5 of the Rules of Professional Conduct and cited Chaffin v.

Ellis, 211 S.W.3d 264, 290-93 (Tenn. Ct. App. 2006). It observed that “lawyers from both

sides contribut[ed] to the aggravation between the parties rather than attempting to minimize

conflict.” (emphasis in original). The trial court specifically laid some of the blame on Wife

for repeatedly terminating lawyers. Ultimately, the trial court found “significant blame to be

shared by all,” but noted that Wife’s fault would “be reflected in the attorney’s fees

awarded.” The trial court then awarded Wife $186,000 in attorney fees as alimony in solido

and $15,000 in discretionary costs.21

After the trial court issued its memorandum opinion, a hearing was held on the assessment

of the GAL and AAL fees. Both submitted affidavits of fees incurred in the case. From her

appointment through the trial, the GAL fees totaled $160,127, with $99,448 remaining

unpaid. Similarly, the AAL fees from appointment through the trial totaled $98,243, and

$69,813 remained unpaid.

21

Only $2500 in discretionary costs were awarded to Wife in the December 2008 order. Pursuant to Wife’s

post-trial motion, the trial court awarded an additional $12,500 in costs in a separate order.

-17-

In support of the fee request by the GAL and the AAL, they submitted the affidavit of an

experienced Shelby County family law attorney, who explained that, based on the affiant’s

past experience, it was “routine” for the Shelby County trial courts to appoint a guardian ad

litem in “a high-conflict case involving children and parenting issues.” The affiant likewise

characterized it as “routine” for the Shelby County trial courts to appoint an attorney ad litem

“when the Court determines that either a child or a Guardian ad Litem is in need of same.”

In the affidavit, the attorney stated that, based on past experience before the initial trial judge

in this case, the initial trial judge would expect the guardian ad litem’s duties to include the

following:

F. Failing full cooperation by the parties, to notify the Court of said

failure in cooperation so that the problem can be addressed

(typically through the appointment of an Attorney ad Litem),

corrected, or sanctioned;

[G.] For the GAL to work with the parties to effectuate better

parenting and possible resolution, including having the GAL act

as a quasi-mediator to assist in resolving practical issues of

import such as education, health, visitation schedules, and extra-

curricular activity schedules.

Similarly, the affiant expressed the opinion that the initial trial judge in this case would

expect an attorney ad litem to perform duties that include the following:

A. Extensive discussion with the GAL and any witness, including

the child and the parties, that the AAL deems necessary;

B. Failing full cooperation by the parties with the GAL, the

issuance of discovery necessary to assist the GAL in obtaining

information necessary for the GAL to carry out her court-

ordered responsibilities;

C. Failing a parties’ [sic] compliance with discovery issued by the

AAL, notification of the Court regarding said failure so that the

problem could be addressed, corrected, or sanctioned;

D. To assist the GAL in work with counsel for the parties to

effectuate better parenting and possible resolution especially on

practical issues of import such as education, health, visitation

schedules, and extra-curricular activity schedules for the child,

but also on matters such as discovery disputes and legal

disagreements relevant to the child; and,

-18-

E. To provide the GAL (and ultimately the child) with competent,

experienced legal representation and protection.

The affiant expressed the opinion that the appointments of both the GAL and the AAL were

appropriate and that the fees requested were reasonable and necessary. Judge Kurtz took the

matter under advisement.

In March 2009, Judge Kurtz issued an order considering the matters raised in the fee request

for the GAL and the AAL, as well as Wife’s unresolved motions to remove the GAL and the

AAL.22 At the outset of the order, Judge Kurtz outlined the roles of a guardian ad litem and

an attorney ad litem, as discussed in Toms v. Toms, 209 S.W.3d 76 (Tenn. Ct. App. 2005).23

Quoting Keisling v. Keisling, 196 S.W.3d 703, 730 n.11 (Tenn. Ct. App. 2005), Judge Kurtz

also discussed the discretion afforded to a guardian ad litem, and the problems that arise

when a guardian ad litem “undertakes tasks or assumes a role that is overly-expansive, not

useful, or otherwise inappropriate,” citing as an example a situation in which a guardian ad

22

Judge Kurtz explained that, by the time he was made aware of Wife’s pending motion to remove the GAL

and the AAL, it was so close to the scheduled trial date that there was little point in resolving the motion

prior to trial.

23

The Toms Court cited Professor Janet Richards’ authoritative treatise on Tennessee family law:

In her treatise, Professor Richards discusses the roles of a guardian ad litem and an attorney

ad litem as follows:

In a custody dispute, the attorney representing each of the competing adults must

zealously represent the interests of that client. The interests of the adults are not always

consistent with the best interests of the child. The court, however is empowered to appoint

a representative for the child in the form of a guardian ad litem or an attorney ad litem. The

guardian ad litem may be an attorney or a specially trained non-lawyer such as the Court-

Appointed Special Advocates (CASA). The role of the guardian ad litem, whether attorney

or non-attorney, should be the same – to protect the child’s interest and to gather and present

facts for the court’s consideration. The role of the attorney ad litem, however, should be

that of any other attorney – to represent and advocate the child’s interests before the court,

including the calling and cross-examining of witnesses, etc. The guardian ad litem may

testify, the attorney ad litem should not. The guardian ad litem is guided by the child’s best

interest, irrespective of the child’s wishes; the attorney ad litem should advocate the wishes

of the client, assuming the child is sufficiently mature to make such a decision.

Unfortunately, Tennessee does not have a statute that clarifies the different roles of the

guardian ad litem and the attorney ad litem. Consequently, the roles have been blurred,

especially when an attorney is appointed as a guardian ad litem.

Toms, 209 S.W.3d at 80-81 (quoting JANET L. RICHARDS , RICHARDS ON TENNESSEE FAMILY LAW § 8-7 (2d

ed. 2004)).

-19-

litem “assumes the role of an arbitrator or special master of sorts, in effect determining the

outcome of lesser disputes between the parties.”

Summarizing the law on such guardians, Judge Kurtz stated:

None of the case law . . . gives the GAL authority to be a mediator,

om[]budsman, special master or a mini judge. The GAL is only to protect the

child’s interest and gather and present sufficient facts for the court’s

consideration: nothing more or nothing less.

Commenting specifically on the affidavit opining on the common practices and expectations

of the local trial courts and the initial trial judge, Judge Kurtz observed that it “speaks to an

expectation which does not appear in any court order and expresses a role for the GAL and

AAL beyond that authorized by the legal authorities.” Judge Kurtz recognized that a local

“legal culture ha[d] developed . . . in which the GALs have assumed authority beyond the

parameters set forth in the case law,” but added: “[W]hen push comes to shove the law must

trump culture.”

In the case at bar, the trial court openly questioned whether the appointment of a GAL had

been necessary. It noted that the parties’ son “was not a special needs child, was not abused,

and had no problems outside of a normal teenager going through a divorce with bickering

parents” and regardless of the animosity between the parents, “the custody/visitation decision

in this case was not difficult” and “could have been just as appropriately resolved without

input from a GAL and/or AAL.” However, considering the “bickering” between the parties

and the lawyers, and Wife’s attempts “to thwart court orders,” Judge Kurtz commented:

Perhaps there was an unstated expectation that the GAL would arbitrate

conflict and direct the parties so as to minimize conflicts. Instead of being a

fact-finder, she became an active participant in the poisonous dynamic

between the parties. She became a mini-judge, and her relationship with

[Wife] was so strained that she had to procure her own attorney (the AAL),

because for all practical purposes she became a third party to what was a two

party divorce.

Judge Kurtz then made the following findings regarding the GAL:

The GAL exceeded the scope of the appointment order and the role of the

GAL set forth in case law. . . . The investigation conducted by the GAL far

exceeded what was helpful to the Court. . . . Assuming that a GAL was

necessary, this Court would have expected [only] a 5-10 page report . . ..

-20-

The even bigger problem was the involvement of the GAL as a mediator or

om[]budsman throughout the pendency of this case. The time sheets as well

as the testimony of the GAL, [Wife], and [Husband] tell a story of countless

interventions and/or communications with the GAL over visitation disputes,

counseling appointments, selection of counselors, and the like. . . . The role

assumed by the GAL in this case was “beyond the purview of the traditional

role of the guardian ad litem.” [quoting Keisling, 196 S.W.3d at 730 n.11].

As to the AAL, Judge Kurtz made this finding:

The AAL assumed a role not contemplated by the law. There is no authority

for a GAL in a divorce case to have a lawyer represent her in the trial court.

The pleadings filed in this case clearly show that the AAL, after . . .

appointment, represented the GAL. . . . [The AAL] did not perform the role

contemplated for an AAL and there was no issue in this case that called for an

AAL.

The trial court noted that it had no criticism of the GAL’s “effort and . . . commitment to the

child,” and said that the AAL acted “in a highly professional manner in performing the role

. . . assumed.” It stated: “The issue is not whether they were both well-intended, but rather

did they exceed the boundaries drawn by the law for their respective roles.”

In view of these findings, the trial court awarded the GAL a fee of $7500, and awarded the

AAL a fee of $5000, both assessed two-thirds to Husband and one-third to Wife.24

Husband now appeals.

ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Husband argues that the trial court abused its discretion by awarding Wife

substantial rehabilitative and in futuro alimony. He argues that the trial court (1) rejected

Wife’s statement of need and accounting as excessive and unreliable, but never determined

what Wife’s need actually was, (2) grossly overstated Husband’s ability to pay, given the

marital debt allocated to him, (3) did not sufficiently consider the relatively short length of

the marriage, and (4) did not sufficiently consider Wife’s good health, education and age.

Husband also argues that the trial court abused its discretion in awarding Wife $186,000 in

alimony in solido for attorney fees and $15,000 in discretionary costs, in light of (1) Wife’s

24

The GAL had already received a fee of $71,000, bringing her total fee to $78,500, and the AAL had already

received a fee of $30,000, bringing the AAL’s total fee to $35,000.

-21-

egregious litigation strategy and her contentious battle with the GAL, thus increasing

attorney fees, and (2) the trial court’s other property, alimony, and debt allocation.

Wife argues that the trial court’s ruling should be affirmed, and she seeks an award of

attorney fees on appeal.

Since this case was tried by the trial court sitting without a jury, we review the trial court’s

findings of fact de novo with a presumption of correctness unless the evidence preponderates

otherwise. T ENN. R. A PP. P. 13(d); Hyneman v. Hyneman, 152 S.W.3d 549, 553 (Tenn. Ct.

App. 2003) (citing Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999)). We

afford “considerable deference” to the trial court’s determinations of credibility and the

weight given to oral testimony, “because the trial court has the opportunity to observe the

witnesses’ demeanor and hear the in-court testimony.” Interstate Mech. Contractors, Inc.

v. McIntosh, 229 S.W.3d 674, 678 (Tenn. 2007) (citing Tobitt v. Bridgestone/Firestone,

Inc., 59 S.W.3d 57, 61 (Tenn. 2001); McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.

Workers Comp. Panel 1995)).

“Determinations concerning the amount and duration of alimony are factually driven and

require a balancing of the various factors contained” in Tennessee Code Annotated §

36-5-121(i).25 Dube v. Dube, 104 S.W.3d 863, 868 (Tenn. Ct. App. 2002) (citing Herrera

v. Herrera, 944 S.W.2d 379, 387-88 (Tenn. Ct. App. 1996)). In setting alimony, the trial

court enjoys broad discretion. Goodman v. Goodman, 8 S.W.3d 289, 293 (Tenn. Ct. App.

1999) (citing Jones v. Jones, 784 S.W.2d 349, 352 (Tenn. Ct. App. 1989)). Consequently,

the trial court’s alimony decision will not be altered on appeal unless the trial court has

“manifestly abused its discretion.” Id. (citing Ingram v. Ingram, 721 S.W.2d 262, 264

(Tenn. Ct. App. 1986)).

An award of attorney fees and discretionary costs is likewise within the trial court’s

discretion and will not be altered on appeal unless the trial court has abused that discretion.

Tomanelli v. Tomanelli, No. E2007-01864-COA-R3-CV, 2008 WL 2811316, at *6 (Tenn.

Ct. App. July 22, 2008), no perm. app. (citing Sanders v. Gray, 989 S.W.2d 343, 345 (Tenn.

Ct. App. 1998)) (discretionary costs); Smith v. Smith, 984 S.W.2d 606, 610 (Tenn. Ct. App.

1997) (citing Storey v. Storey, 835 S.W.2d 593, 597 (Tenn. Ct. App. 1992)) (attorney fees).

Under the abuse of discretion standard, the trial court’s decision is affirmed “so long as

reasonable minds can disagree as to propriety of the decision made.” Eldridge v. Eldridge,

42 S.W.3d 82, 85 (Tenn. 2001) (citing State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State

25

At the time the Dube opinion was filed, the pertinent factors were found at Tennessee Code Annotated §

36-5-101(d)(1). See Dube, 104 S.W.3d at 868.

-22-

v. Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000)). This Court is not permitted “to substitute

its judgment for that of the trial court.” Id. (citing Myint v. Allstate Ins. Co., 970 S.W.2d

920, 927 (Tenn. 1998)). The trial court may abuse its discretion by applying an incorrect

legal standard or reaching a decision against logic or reasoning that causes an injustice to the

complaining party. Id. (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

The decision to award attorney fees incurred on appeal lies solely within the discretion of the

appellate court.26 Moses v. Moses, No. E2008-00257-COA-R3-CV, 2009 WL 838105, at

*10 (Tenn. Ct. App. Mar. 31, 2009), no perm. app. (citing Archer v. Archer, 907 S.W.2d

412, 419 (Tenn. Ct. App. 1995)).

A NALYSIS

Rehabilitative and In Futuro Alimony

Husband argues that the trial court abused its discretion in its award to Wife of “substantial”

rehabilitative and in futuro alimony. After reviewing the proceedings at some length,

Husband notes that, although the trial court criticized Wife’s Rule 14(c) statement of her

expected post-divorce expenses as “excessive,” it “never determined what her need actually

was,” but instead went straight to making its award of alimony. Husband argues that,

because the need of the obligee spouse is of primary importance in alimony decisions, the

trial court must establish the amount of Wife’s need in order to set the amount of support.

In support, Husband cites Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995) (“[T]he real

need of the spouse seeking the support is the single most important factor.”); Burnett v.

Burnett, No. W2007-00038-COA-R3-CV, 2008 WL 727579, at *17-19 (Tenn. Ct. App. Mar.

19, 2008) (remanding for trial court to establish the wife’s expenses and recalculate

alimony); Jekot v. Jekot, 232 S.W.3d 744, 752 (Tenn. Ct. App. 2007) (noting that award of

alimony must be commensurate with demonstrated need).

Husband argues as well that, in evaluating Husband’s ability to pay support, the trial court

erred in finding that he will be able to maintain an income of $850,000 per year. He notes

first that Husband’s average income, from his tax returns for six years, was $784,000 per

year, not $850,000 per year.27 He notes, too, that for Husband to continue earning at that

26

If the appellate court makes an award of attorney fees incurred on appeal, the cause is remanded to the trial

court for a determination of the amount of the fees, because such a determination may require an evidentiary

hearing.

27

In arriving at an average of $784,000 per year for six years, Husband focuses solely on his income from

MSPS and St. Francis. The parties’ tax returns list the following gross income amounts, which include, inter

(continued...)

-23-

level would require him to continue “moonlighting” at St. Francis. Husband argues that the

“moonlighting” income will not continue because (1) his job at St. Francis is to be eliminated

because of a staff change, (2) his every-other-weekend residential parenting time with Son

makes it impossible, and (3) at the time of trial, Husband was 49 years old and the working

hours required for such a schedule are too exhausting at his age and interfere with his

primary duties at MSPS.

Husband also argues that the alimony obligation set by the trial court was excessive in light

of the amount of debt allocated to him in the property division. Husband contends that he

was allocated $1.39 million in marital debt, with few offsetting assets. He notes that,

although the trial court placed a $250,000 value on his medical practice, he cannot use that

value to pay his obligations.

Finally, Husband contends that the alimony obligation is excessive in light of the length of

the marriage and Wife’s health, age, and educational level. With the amount of alimony

awarded, he argues, Wife will “lack[] any motivation to seek self-sufficiency, making

[Husband] in effect her indentured servant.” Overall, Husband contends, this Court should

either reverse the award of alimony, modify it downward, or remand for the trial court to

make a finding as to the dollar amount of Wife’s actual need.

In general, “[t]he purpose of spousal support is to aid the disadvantaged spouse to become

and remain self-sufficient and, when economic rehabilitation is not feasible, to mitigate the

harsh economic realities of divorce.” Owens v. Owens, 241 S.W.3d 478, 493-94 (Tenn. Ct.

App. 2007) (citing Earls v. Earls, 42 S.W.3d 877, 888 (Tenn. Ct. App. 2000)). Four types

of spousal support are recognized in Tennessee: alimony in futuro, alimony in solido,

rehabilitative alimony, and transitional alimony. See T.C.A. § 36-5-121(d)(1) (2005);

Owens, 241 S.W.3d at 493. There is a statutory preference for the award of rehabilitative

alimony. See T.C.A. § 36-5-121(d)(1), (d)(2) (2005).

Rehabilitative alimony is intended to assist the disadvantaged spouse in achieving economic

rehabilitation after the divorce. See Owens, 241 S.W.3d at 493 n.13. Under Tennessee Code

Annotated § 36-5-121(d)(2) and (e)(1), the term “rehabilitation” means that, with reasonable

efforts, the disadvantaged spouse will be able to achieve “an earning capacity that will permit

the economically disadvantaged spouse’s standard of living after the divorce to be reasonably

27

(...continued)

alia, capital gains, interest, and other income: $506,715 (2002); $725,032 (2003); $935,081 (2004); $895,255

(2005); $910,982 (2006); and $839,327 (2007). The average of these figures is $802,065 per year. We note

that the trial court apparently used Husband’s average income over a four-year period rather than a six-year

period.

-24-

comparable to the standard of living enjoyed during the marriage, or to the post-divorce

standard of living expected to be available to the other spouse.” T.C.A. § 36-5-121(d)(2),

(e)(1) (2005); accord Wiser v. Wiser, No. M2009-00620-COA-R3-CV, 2010 WL 2553652,

at *11-12 (Tenn. Ct. App. June 25, 2010). An award of rehabilitative alimony may

correspond with the disadvantaged spouse’s acquisition of additional education or training.

See Owens, 241 S.W.3d at 493 n.13.

Alimony in futuro is long-term periodic spousal support, typically payable until the death or

remarriage of the obligee spouse. T.C.A. § 36-5-121(f)(1) (2005). An award of alimony in

futuro is appropriate when the trial court finds “that there is relative economic disadvantage

and that rehabilitation is not feasible.” Id. An award of alimony in futuro concurrent with

an award of rehabilitative alimony may be appropriate when the trial court finds that the

economically disadvantaged spouse “may be only partially rehabilitated.” T.C.A. § 36-5-

121(d)(4) (2005).

“There are no hard and fast rules for spousal support decisions.” Owens, 241 S.W.3d at 493

(citing Manis v. Manis, 49 S.W.3d 295, 304 (Tenn. Ct. App. 2001); Anderton v. Anderton,

988 S.W.2d 675, 682 (Tenn. Ct. App. 1998); Crain v. Crain, 925 S.W.2d 232, 233 (Tenn.

Ct. App.1996)). In determining the propriety of a spousal support award as well as the

nature, amount and length of any such award, the trial court balances the factors codified at

Tennessee Code Annotated § 36-5-121(i).28 See Dube,104 S.W.3d at 868 (citing Herrera,

28

Tennessee Code Annotated § 36-5-121(i) list the following factors to be considered:

(1) The relative earning capacity, obligations, needs, and financial resources of each party,

including income from pension, profit sharing or retirement plans and all other sources;

(2) The relative education and training of each party, the ability and opportunity of each

party to secure such education and training, and the necessity of a party to secure further

education and training to improve such partys earnings capacity to a reasonable level;

(3) The duration of the marriage;

(4) The age and mental condition of each party;

(5) The physical condition of each party, including, but not limited to, physical disability

or incapacity due to a chronic debilitating disease;

(6) The extent to which it would be undesirable for a party to seek employment outside the

home, because such party will be custodian of a minor child of the marriage;

(7) The separate assets of each party, both real and personal, tangible and intangible;

(8) The provisions made with regard to the marital property, as defined in § 36-4-121;

(9) The standard of living of the parties established during the marriage;

(10) The extent to which each party has made such tangible and intangible contributions to

the marriage as monetary and homemaker contributions, and tangible and intangible

contributions by a party to the education, training or increased earning power of the other

party;

(continued...)

-25-

944 S.W.2d at 387-88). In general, the two most important factors are the need of the

economically disadvantaged spouse and the obligor’s ability to pay. Bratton v. Bratton, 136

S.W.3d 595, 604 (Tenn. 2004) (citing Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001)).

As Husband rightly notes, in this case, there was ample justification for the trial court’s

conclusion that Wife’s statement of expenses was excessive. Her alimony request of $30,000

per month was likewise excessive. And Husband is correct in observing that, while the trial

court discounted Wife’s accounting and her statement of expenses, it did not make a specific

finding of the amount of Wife’s need.

However, while the cases cited by Husband discuss the disadvantaged spouse’s need with

varying degrees of specificity, none hold that the trial court must make a precise “dollar

amount” finding of the obligee spouse’s need before it can make an award of alimony.

Moreover, the total alimony award in this case, including rehabilitative alimony, is $16,500

per month, about half of Wife’s “excessive” expense estimate, and in the long term, when

the rehabilitative alimony evaporates, the in futuro award of $8500 per month is about a

quarter of her expense estimate. Under these circumstances, the trial court’s failure to make

a finding on the specific amount of Wife’s need does not in and of itself render the alimony

award an abuse of discretion.

Reviewing the evidence pertinent to Husband’s ability to earn income, we must conclude that

the trial court’s finding was derived in part from its assessment of Husband’s credibility. The

tax returns entered into evidence show that, in the four years prior to the trial, Husband

earned an average gross income of $895,161 per year, with a significant percentage coming

from Husband’s “moonlighting” at St. Francis. Husband points to his testimony at trial that

he would soon be losing his “moonlighting” income, but he also acknowledged in his

testimony that he had consistently represented throughout the years of divorce proceedings

that his income from St. Francis would soon be reduced or eliminated. Moreover, the trial

court considered not one, but three financial statements in which Husband represented that

he earned $1 million or more per year. “When a trial court has seen and heard witnesses,

especially where issues of credibility and weight of oral testimony are involved, considerable

deference must be accorded to the trial court’s factual findings.” Woodward v. Woodward,

240 S.W.3d 825, 828 (Tenn. Ct. App. 2007) (citing Seals v. England/Corsair Upholstery

28

(...continued)

(11) The relative fault of the parties, in cases where the court, in its discretion, deems it

appropriate to do so; and

(12) Such other factors, including the tax consequences to each party, as are necessary to

consider the equities between the parties.

T.C.A. § 36-5-121(i) (2005).

-26-

Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)). We acknowledge that for Husband to

continue earning at the same level will no doubt require him to continue his brutal work

schedule, at least for the next several years. However, the appellate court is not permitted

to substitute its judgment for that of the trial court. Eldridge v. Eldridge, 42 S.W.3d 82, 85

(Tenn. 2001) (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998)). Having

carefully reviewed the record, and with appropriate deference to the trial court’s assessment

of Husband’s credibility, we cannot conclude that the evidence preponderates against the

finding that Husband can maintain an income of $850,000 per year.

Husband argues that his ability to pay is materially hampered by the debt allocated to him in

the trial court’s division of the marital estate. In setting Husband’s spousal support

obligation, the trial court stated expressly that it was aware of the ramifications of the

division of the marital estate property, including the marital debt. It said: “The Court does

recognize that not only does [Husband] now carry a lot of debt but that he will, of necessity,

be the one who must be given responsibility for the substantial negative equity on the marital

home.” We recognize as well that the debt is daunting, and that the parties accumulated little

in the way of assets to offset the substantial debt. However, with Husband earning $850,000

per year, despite the size of the overall debt, we cannot conclude that the trial court erred in

concluding that the amount of support awarded was not “more than [Husband] can pay.”

Beyond challenging the trial court’s analysis of Wife’s need and his ability to pay, Husband

argues that analysis of the statutory factors shows that the trial court erred in its award. He

argues that the parties were married only twelve years,29 that Wife was fifty-one at the time

of trial, in good health, educated, and experienced in the workforce, and that Son is an

adolescent in good health. He contends that this case lacks the long marriage, ill or disabled

spouse, or young child “ordinarily . . . needed to justify alimony in futuro.”

We perceive that Husband is in effect arguing that Wife does not need alimony because she

can be fully rehabilitated. If so, we must note that Husband proffered no evidence to support

a finding that Wife can be rehabilitated to a level that would permit her to achieve an earning

capacity sufficient to support a standard of living comparable to either the standard enjoyed

during the parties’ marriage or Husband’s post-divorce standard. See T.C.A. § 36-5-

121(e)(1); see also Osborne v. Osborne, 1986 WL 9567, at *2 (Tenn. Ct. App. Sept. 2, 1986)

(concluding that husband did not meet burden of proving rehabilitation was feasible). It is

undisputed that Wife became a full-time homemaker almost as soon as the parties married,

if not before, and remained as such for the duration of their marriage, with Husband’s

agreement. From our review of the record, we find that the evidence fully supports the trial

29

In his principle brief, Husband takes the position that the parties’ marriage ended with the filing of his

complaint for divorce in 2006.

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court’s finding that Wife can be rehabilitated to an extent, but she will never “achieve an

earning capacity that would allow her a standard of living reasonably comparable to that

enjoyed during the marriage or to [Husband’s] post-divorce standard of living.” A

concurrent award of alimony in futuro and rehabilitative alimony, such as that made in this

case, is appropriate when “a spouse may be only partially rehabilitated.” T.C.A. § 36-5-

121(d)(4) (2005).

In reviewing an alimony award, the role of the appellate court is to “determine whether the

trial court applied the correct legal standard and reached a decision that is not clearly

unreasonable.” Owens, 241 S.W.3d at 493 (citing Bogan v. Bogan, 60 S.W.3d 721, 733

(Tenn. 2001)). Again, the appellate court is not to substitute its judgment for that of the trial

court. Eldridge, 42 S.W.3d at 85 (citing Myint, 970 S.W.2d at 927). After a careful review

of the evidence in the record, we must conclude that the trial court applied the correct legal

standard and that the alimony award does not constitute an abuse of the trial court’s

discretion.

Attorney Fees and Discretionary Costs

Husband argues that the trial court abused its discretion in awarding Wife $186,000 in

attorney fees as alimony in solido and $15,000 in discretionary costs. Citing Goodman v.

Goodman, 8 S.W.3d 289 (Tenn. Ct. App. 1999), he asserts that the trial court improperly

awarded alimony in solido out of his future earnings rather than his share of the marital

estate.

Husband also contends that the amount of the award of attorney fees to Wife was an abuse

of discretion, given Wife’s “egregious” litigation strategy. He cites an injunction against

Wife issued early in the litigation, prohibiting Wife from contacting Husband’s work

colleagues to make derogatory comments about Husband. He argues that her monetary

demands were excessive and unreasonable throughout the litigation, and her changes in

lawyers and efforts to obtain the recusal of the initial trial judge resulted in delays which in

turn resulted in increased attorney fees for both parties.

Husband contends as well that Wife’s “long war against the GAL, and later the AAL,

unreasonably escalated the legal expenses in this case.” He contends that, after Wife’s first

attorney agreed to the appointment of the GAL, Wife “subsequently attacked the GAL and

her integrity and professionalism so strongly that the trial court had to appoint an attorney ad

litem to represent the GAL.” Husband observes that he and his attorneys “were often

spectators to the battle between [Wife] and her counsel with the GAL and AAL, and with

[Husband] sometimes as an unwilling participant.”

-28-

Husband points out that the trial court in its memorandum opinion specifically faulted Wife’s

litigation strategy, noting her failure to cooperate with the GAL after initially agreeing to the

GAL’s appointment. He acknowledges that the trial court did not award Wife all of the

attorney fees she sought, but argues that her fees were not cut nearly enough to discourage

such litigation tactics. He argues that this Court should require Wife “to pay the full freight

for her own fees.”

We note that the Goodman case, cited by Husband, cites Aleshire v. Aleshire, 642 S.W.2d

729 (Tenn. Ct. App. 1981), for the proposition that alimony in solido should be awarded out

of a spouse’s share of the marital estate and not from anticipated future earnings. See

Goodman, 8 S.W.3d at 297. Aleshire cites a Tennessee statute as authority. See Aleshire,

642 S.W.2d at 733 (“T.C.A. § 36-821 provides for alimony in solido to be paid out of the

present estate of the spouse and does not, in our opinion, contemplate the consideration of

an expectation of earnings as a part of that present estate.”). However, the statute cited in

Aleshire has since has been amended, and no longer has language so limiting an award of

alimony in solido. See T.C.A. § 36-5-121(h)(1) (2005).

The trial court’s decision to award attorney fees as alimony in solido, as with any other award

of alimony, is reviewed on appeal under an abuse of discretion standard. See Mathias v.

Mathias, No. E2006-02294-COA-R3-CV, 2008 WL 539227, at *12 (Tenn. Ct. App. Feb. 28,

2008), no perm. app. (citing Sandlin v. Sandlin, No. M2003-00775-COA-R3-CV, 2004 WL

1237273, at *5 (Tenn. Ct. App. June 3, 2004), no perm. app.). Likewise, the award of

discretionary costs is reviewed under an abuse of discretion standard. Tomanelli v.

Tomanelli, No. E2007-01864-COA-R3-CV, 2008 WL 2811316, at *6 (Tenn. Ct. App. July

22, 2008), no perm. app. (citing Sanders v. Gray, 989 S.W.2d 343, 345 (Tenn. Ct. App.

1998)). A party’s decision to engage in litigation tactics calculated to produce delay and

increase costs is a factor to be considered in connection with an award of attorney fees. See,

e.g., Hall v. Hall, No. E2007-02564-COA-R3-CV, 2008 WL 4613961, at *1 (Tenn. Ct. App.

Oct. 15, 2008), no perm. app. (citing Bauer v. Bauer, No. M2001-00266-COA-R3-CV, 2002

WL 256802, at *2 (Tenn. Ct. App. Feb. 22, 2002), no perm. app.; Long v. Long, 957 S.W.2d

825, 829 (Tenn. Ct. App. 1997); Gilliam v. Gilliam, 776 S.W.2d 81, 86-87 (Tenn. Ct. App.

1988)) (upholding assessment of attorney fees against the husband because of his litigation

tactics).

Husband’s arguments regarding Wife’s litigation choices are not without merit. Early in the

litigation, Wife adopted a pugnacious posture vis-a-vis a GAL who was acting at the behest

of the court. It cannot be said that either Wife or her attorneys sought to minimize conflict.

Her financial positions were consistently excessive and she resisted compromise on even

minor parenting issues.

-29-

Nevertheless, in reviewing the award of attorney fees, we are obliged to take a “bird’s eye”

view of the litigation as a whole. In awarding attorney fees and discretionary costs to Wife,

the trial court correctly noted that the delay in the case was caused by “both happenstance

and intent.” Although Wife changed attorneys more, both parties in fact changed attorneys

during the case, and the trial court found that the attorneys on both sides had created pretrial

disputes, filed overly-long, unnecessary pleadings, and overall “contributed to this

environment of animosity.” The record supports this finding. Moreover, we cannot ignore

Husband’s choice upon filing the divorce complaint to lock Wife out of access to the parties’

marital funds, a tactic that set a combative tone for the litigation at the outset.

The factors that appear to set this case apart from most divorce litigation relate to the GAL

and the AAL. The trial court observed: “This case is . . . unique because of the weighty

involvement of the guardian ad litem and then the attorney ad litem. The Court purposely

uses the word ‘weighty.’ ” This view is reflected in Judge Kurtz’s extensive findings relating

to the GAL and the AAL.

As noted in the memorandum opinion, although the order appointing the GAL stipulates to

the elimination of most expected objections to the trial testimony of the GAL or to her report,

it does not indicate that the GAL was expected to assume the role of a parenting mediator or,

in Judge Kurtz’s words, a “mini-judge.” The order appointing the AAL likewise does not

specify any role other than the traditional role of an attorney ad litem, namely, “to represent

and advocate the child’s interests before the court,” Toms v. Toms, 209 S.W.3d 76, 81 (Tenn.

Ct. App. 2005) (quoting J ANET L. R ICHARDS, R ICHARDS ON T ENNESSEE F AMILY L AW § 8-7

(2d ed. 2004)), except insofar as the order states generally that the AAL is appointed “for any

purpose.” The record indicates, however, that the GAL and the AAL, both experienced,

ethical, and respected family law attorneys, assumed these roles in accordance with unstated

but widely-understood expectations by local trial judges in general and by the initial

appointing trial judge in particular.30 Judge Kurtz clearly credited this explanation, finding

30

At the hearing on the fees of the GAL and the AAL, Husband’s trial counsel corroborated the explanation

of the GAL and the AAL for their roles in the litigation. Describing the evolution in the local culture over

many years, Husband’s attorney cited typical parenting disputes that arise in divorce cases, which become

moot by the time a hearing before the trial judge can be held, then stated:

What’s the best thing for the kid? Well, if you’ve got somebody in the middle like

a Guardian ad Litem, they can simply say, you people need to stop doing this. . . . [B]ecause

if you don’t stop doing this, I’m going to make a report to the Judge and that’s not going to

help you. . . . [I]f you don’t change your behavior, then the other party is going to take you

to Court and I’m going to be called upon to testify and I’m going to say something ugly

about you and then you’re going to lose your kid.

(continued...)

-30-

a local “legal culture” in which both guardians ad litem and attorneys ad litem would take

on such roles.

We are obliged to view the record in its entirety, and in particular to consider the overall

effect of the unusual roles of the GAL and the AAL. Judge Kurtz considered the proceedings

that preceded his appointment, and then viewed the parties, their attorneys, and the GAL and

AAL in the proceedings before him. After analyzing the caselaw on guardians ad litem and

attorneys ad litem, he issued extensive findings and conclusions of law on the authority of

the GAL and the AAL to act in these expanded, or non-traditional, capacities. From our

review of the record and the caselaw and other authorities, we do not disagree with either his

factual findings or his conclusions of law.31

To the point in this appeal, however well-intended the GAL and the AAL may have been,

their continuing “weighty” involvement in the parties’ parenting issues contributed

significantly to the overall amount of attorney fees generated, not simply their own fees.32

The blurred role of the GAL33 appeared to create confusion as to what the GAL’s function

30

(...continued)

. . . [T]hat’s why people like [the GAL] provide a benefit, both to the Courts and to

the parties . . . . [T]hat’s the way things have worked down here.

31

See Rule 40A of the Rules of the Supreme Court of the State of Tennessee (Appointment of Guardians ad

Litem in Custody Proceedings), a provisional rule that became effective on May 1, 2009, after the trial court

proceedings in this case. By order entered on April 30, 2010, the provisional rule will remain in effect

through December 31, 2010.

32

Judge Kurtz’s decision to award relatively little further fees to the GAL and the AAL, for their good faith

attempt to fulfill the expectations of the trial judges as they understood them, was not appealed. See Keisling

v. Keisling, 196 S.W.3d 703, 725-31 (Tenn. Ct. App. 2005) (discussing appeal by guardian ad litem of fee

award, where original trial judge who had appointed guardian had recused).

33

The A.B.A. Standards, referenced by the initial trial judge in the order appointing the GAL, eschew the use

of the term “guardian ad litem” in favor of “Best Interests Attorney” and “Child’s Attorney.” The

commentary to the Standards explains:

These Standards do not use the term “Guardian Ad Litem.” The role of “guardian

ad litem” has become too muddled . . .. It is a venerable legal concept that has often been

stretched beyond recognition to serve fundamentally new functions, such as parenting

coordinator, referee, facilitator, arbitrator, evaluator, mediator and advocate. Asking one

Guardian Ad Litem to perform several roles at once, to be all things to all people, is a messy,

ineffective expedient.

(continued...)

-31-

was,34 and other problems as well.35 The parties to the divorce and their lawyers were

obliged to react and respond not only to each other, but also to the actions of the GAL and/or

the AAL. We are constrained to note as well that Judge Kurtz’s findings and conclusions of

law about the GAL and the AAL make it more difficult to fault Wife for her persistent

questioning of the continued presence of the GAL in the divorce proceedings. Thus, no one

party can be blamed for an aggregate of attorney fees that is indeed “appall[ing].”

We recognize that the award of attorney fees to Wife is very substantial, particularly in light

of her contribution to the unnecessary contentiousness of the litigation. We are not at liberty,

however, to substitute our judgment for that of the trial judge. Eldridge v. Eldridge, 42

33

(...continued)

A.B.A. Standards, supra, § 2 cmt. The Introduction to the A.B.A. Standards states that a purpose of their

adoption was to build public confidence in a just and fair court system by ensuring that “all participants in

a case know the duties, powers and limitations of the appointed role.” A.B.A. Standards, supra, § 1.

34

At one point, as the GAL testified about her “day-long” meetings with Wife, her lawyers, and the Son’s

therapist to mediate parenting disputes, Wife’s attorney objected to the GAL’s testimony based on Rule 408

of the Tennessee Rules of Evidence, excluding evidence related to settlement or compromise negotiations.

The trial judge overruled it, adding: “I certainly don’t think the conversation of the guardian ad litem falls

under 408.” However, evidence of “conduct or statements made in the course of Rule 31 ADR Proceedings”

is inadmissible. TENN . R. SUP . CT . 31, § 7 (referencing Rule 408).

35

After her interim recommendation that Wife be designated as the primary residential parent, the GAL

testified that it had been “very difficult” for her to continue recommending to the trial court that Wife be

designated as the primary residential parent “despite all of the attacks, all the slander, all the innuendos, all

the indications that complaints were being filed against me, . . . and what was still going on . . . for two and-a-

half years.” She testified:

I think the easier thing would have been to say you don’t [re]ward a parent for bad behavior

and that it’s not going to stop unless you did something drastic like change your

recommendation from primary residential parental status to be awarded to dad.

The GAL stated that “[t]he only thing that stopped me” from changing her recommendation to the Court to

recommend that Husband be designated as the primary residential parent was the intervention of Son’s

therapist, who stressed to the GAL that, in light of the close bond between mother and son, if Husband were

designated as the primary residential parent, “all hell could break loose with the child.” In light of this, the

GAL said, her recommendation remained for the court to designate Wife as the primary residential parent.

Of course, any guardian ad litem may be subject to attack by a divorcing parent who disagrees with the

guardian ad litem’s recommendation to the court. However, a continuing role by the guardian ad litem as

mediator or parenting facilitator would appear to increase the likelihood that the unhappy parent may infer

that difficulties between the parent and the guardian ad litem, not directly related to parenting, could affect

the guardian’s recommendation to the court on parenting or custody issues. See supra n.30.

-32-

S.W.3d 82, 85 (Tenn. 2001) (citing Myint v. Allstate Ins. Co., 970 S.W.3d 920, 927 (Tenn.

1998)). Judge Kurtz stated in his well-done opinion that, in coming to a decision on the

parties’ financial matters, including the award of attorney fees, he took into consideration all

of the “statutory factors and . . . the parties’ income, expenses, substantial debts, prior

lifestyle, rehabilitation potential, [and] division of marital property.” From our review of all

of these factors, and of the record as a whole, the balance struck by Judge Kurtz in awarding

wife $186,000 of the $302,714 in attorney fees she requested, and in awarding her $15,000

of the $64,786 in discretionary costs that she requested, is within the range of reasonableness.

Under all of these circumstances, we cannot conclude that the trial court abused its discretion

in its award to Wife of attorney fees and of discretionary costs.

In her appellate brief, Wife requests attorney fees incurred on appeal. After considering this

request, we respectfully decline to award Wife attorney fees on appeal.

C ONCLUSION

The decision of the trial court is affirmed. The costs of this appeal are taxed to the Appellant

James McKay Andrews, for which execution may issue if necessary.

_________________________________

HOLLY M. KIRBY, JUDGE

-33-