The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 18, 2008 Session
CAROL ANN VICK WATSON
v.
FRANK LEE WATSON, JR.
Appeal from the Chancery Court for Shelby County
No. CH-01-2398-1 Walter L. Evans, Chancellor
No. W2007-02735-COA-R3-CV - Filed May 27, 2009
This is the second appeal in this divorce case. The husband is a lawyer and the wife was a
homemaker during most of the marriage. After the divorce trial, the trial court divided the marital
estate, awarded the wife transitional alimony, and ordered each party to pay his or her own attorney’s
fees. The wife appealed and the husband cross-appealed. In the first appeal, the appellate court
reversed the trial court’s valuation of two marital assets, stock and a corporation, and remanded for
the trial court to re-value those assets. In addition, the trial court’s decision regarding the husband’s
alleged dissipation of marital assets was reversed, and that issue was remanded to the trial court for
reconsideration as well. The issues raised on alimony and attorney’s fees were not addressed in the
first appeal. On remand, the trial court found a debt owed by the corporation to the husband was
uncollectible and determined that the value of the corporation was zero. The trial court adjusted the
valuation of the wife’s interest in the stock and engaged in a detailed analysis of the husband’s
alleged dissipation of marital assets, finding no dissipation. On remand, the wife sought an award
of alimony in futuro. The trial court declined to award alimony in futuro but awarded the wife an
additional year of transitional alimony. Finally, the trial court declined the wife’s request for her
attorney’s fees. Both parties now appeal. We affirm the trial court’s finding that the husband did
not engage in dissipation, affirm the trial court’s increased property award to the wife, reflecting her
interest in the stock, reverse the trial court’s finding that the value of the corporation is zero, and
remand to the trial court for valuation of the corporation and division of that asset, modify the trial
court’s award of alimony by awarding the wife alimony in futuro when the transitional alimony ends,
affirm the trial court’s refusal to award the wife her attorney’s fees, and order the award of post-
judgment interest on the wife’s increased property award from the stock, dating from the date of the
judgment on remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part,
Reversed in Part, Modified, and Remanded
HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S, and
J. STEVEN STAFFORD , J., joined.
David E. Caywood and Holly Jackson Renken, Memphis, Tennessee, for the Plaintiff/Appellant
Carol Ann Vick Watson
Sam Berry Blair and Betty Campbell, Memphis, Tennessee, for the Defendant/Appellee Frank Lee
Watson, Jr.
OPINION
FACTS AND PROCEDURAL HISTORY
This is the second appeal in the divorce of Plaintiff/Appellant Carol Ann Vick Watson
(“Wife”) and Defendant/Appellee Frank Lee Watson, Jr. (“Husband”). The facts in this case are
more fully set forth in our first opinion. See Watson v. Watson, No. W2004-01014-COA-R3-CV,
2005 WL 1882413 (Tenn. Ct. App. Aug. 9, 2005).
Wife filed the initial complaint for divorce and Husband counterclaimed. At the time of the
divorce trial below, Husband was sixty-three years old and Wife was fifty-six years old. Husband
is a shareholder with the law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz, earning in
the range of $300,000 per year. Wife had been employed as a securities and commodities trader
some twenty years earlier, but upon the parties’ agreement quit to stay home and care for the parties’
learning-disabled son. The parties’ marital assets included the marital home, ten units of Vining
Sparks IBG stock, and a corporation owned by Husband, Randell Corporation. During the marriage,
Husband became romantically involved with a paralegal in his law firm; Wife asserted that
Husband’s expenditures related to this relationship were a dissipation of marital assets.
After the trial, the trial court filed its findings of fact and conclusions of law on February 17,
2004, and entered the final decree of divorce on March 17, 2004. The trial court, inter alia, divided
the marital estate and awarded Wife transitional alimony in the amount of $6,000 per month for the
first three years and $3,000 per month for the next three years. Each party was ordered to pay his
or her own attorney’s fees. Wife appealed the trial court’s decision and Husband cross-appealed.
In the first appeal, the trial court’s valuation of a marital asset, Randell Corporation,1 was
reversed, and the issue was remanded. Id. at *14. Specifically, the trial court was asked to consider
on remand the value of a receivable asset of Husband in the form of a debt owed by Randell
Corporation to Husband. Id. In the first appeal, it was noted that the report of the special master
appointed by the trial court to make a recommendation on Randell Corporation showed a negative
asset value for Randell Corporation of approximately negative $119,000. Id. at *9. The negative
value was predicated on Randell Corporation’s indebtedness to Husband in the amount of
approximately $419,000; however, the trial court did not include the receivable as an asset of
Husband. Id. This was found erroneous and reconsideration was directed on remand.
1
Randell Corporation is a commodities trading and cattle ranch operating entity located on substantial acreage
in Mississippi.
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The trial court’s valuation of another marital asset, Vining Sparks IBG stock was also
reversed. Id. at *14. In determining the net value of the stock, the trial court deducted the tax
consequences of a sale of the stock, despite Husband’s testimony that he did not intend to sell the
stock but would instead borrow the money to pay Wife for her interest in it. Id. at *10.
The trial court’s decision relating to Husband’s alleged dissipation of marital property was
reversed on appeal as well. Id. at *14. After the divorce trial, the trial court determined that any
dissipation of marital assets by Husband would not be considered in the distribution of the marital
estate, noting that during the time period in which Husband allegedly dissipated marital funds, he
provided monies to Wife that exceeded the amount allegedly dissipated. Id. at *12. The appellate
court interpreted this as indicating that the dissipated marital funds would not be considered because
of the monies Husband provided to Wife during the separation. This reasoning was found to be
erroneous, and the issue was remanded for the trial court to analyze Husband’s alleged dissipation
in accordance with this Court’s opinion in Ward v. Ward, No. W2001-01078-COA-R3-CV, 2002
WL 31845229 (Tenn. Ct. App. Dec. 19, 2002). Watson, 2005 WL 1882413, at *14. Finally,
because the case had been remanded for reconsideration of issues affecting the distribution of marital
property, the appellate court declined to address issues relating to the alimony award to Wife or the
trial court’s refusal to award her attorney’s fees. Id.
On November 6, 2007, the trial court entered its findings and order on remand. The trial
court recognized the $419,000 loan to Randell as a receivable of Husband, but determined that
Randell was unable to pay Husband the $419,000 it owed him. It found that selling Randell’s assets
to satisfy its indebtedness to Husband would cost more than $300,000 in taxes, closing costs, and
real estate brokerage fees. This meant that, upon liquidation, Randell would have a negative value,
and there would be no money to pay Husband. In light of this finding, the trial court reaffirmed its
prior determination that the value of Randell was zero and that Randell was unable to pay Husband
the $419,000 debt. As to the Vining Sparks IBG stock, the trial court adjusted its valuation of one-
half of the stock from a net value of $38,500 to $51,500. This new value included the $13,000 that
the trial court had previously deducted as a tax consequence of selling one-half of the units of stock.
On remand, the trial court also engaged in a careful Ward analysis of Husband’s alleged
dissipation of marital assets. In light of its detailed analysis, the trial court determined that Wife
failed to establish a prima facie case of dissipation, so the burden never shifted to Husband to show
that the expenditures at issue were appropriate. The trial court noted that even if Wife had
established a prima facie case, the expenditures would not constitute dissipation under the Ward
analysis. In the alternative, the trial court found that, even if the expenditures constituted dissipation,
this would not change its distribution of the marital estate.
In the proceedings on remand, Wife sought an award of alimony in futuro instead of
transitional alimony, noting Husband’s substantial earnings and the fact that she had largely been
out of the workforce for twenty years. The trial court did not award alimony in futuro, but awarded
Wife an additional year of transitional alimony in the amount of $3,000 per month. The trial court
declined to revise its previous order denying Wife an award of attorney’s fees. Wife then filed a
timely notice of appeal to this Court.
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ISSUES ON APPEAL AND STANDARD OF REVIEW
On appeal, Wife raises the following issues:2
1. Whether the trial court erred in finding that Husband did not engage in
dissipation of the parties’ assets.
2. Whether the trial court erred in confirming its prior determination that the
value of Randell is zero and that Randell is unable to pay the debt owed to
Husband.
3. Whether the trial court erred in its distribution of the marital property.
4. Whether the trial court erred in the amount and duration of alimony
awarded to Wife.
5. Whether the trial court erred in failing to award attorney’s fees and
expenses to Wife.
6. Whether the trial court erred in failing to award post-judgment interest on
the modification of the value of the Vining Sparks IBG stock awarded to
Wife.
Husband also raises two issues for our review. He asks us to consider whether the trial court erred
in awarding Wife an additional $13,000 for her interest in the Vining Sparks IBG stock and whether
the trial court erred in awarding Wife seven years of transitional alimony.
Because this case was tried by the trial court sitting without a jury, we review the trial court’s
findings of fact de novo upon the record with a presumption of correctness, unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.
2001). Some of the trial court’s factual findings are based on its determinations of the credibility
of the witnesses. This Court affords “great deference” to the trial court’s credibility determinations.
Keaton v. Hancock County Bd. of Educ., 119 S.W.3d 218, 223 (Tenn. Ct. App. 2003) (citation
omitted). Questions of law, however, are reviewed de novo with no presumption of correctness. S.
Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001) (citations
omitted).
2
Wife also asks that this case be reassigned to another jurist on remand. However, she cites no authority for
this proposition. We respectfully decline this request.
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ANALYSIS
Dissipation
We first address Wife’s argument that the trial court erred in concluding that Husband did
not engage in dissipation of marital assets. The factors for a court to consider when equitably
dividing the marital estate include “[t]he contribution of each party to the acquisition, preservation,
appreciation, depreciation or dissipation of the marital or separate property.” T.C.A. § 36-4-
121(c)(5) (2005) (emphasis added). The term “dissipation” is not defined in the statute. Black’s
Law Dictionary defines it as “[t]he use of an asset for an illegal or inequitable purpose, such as a
spouse’s use of community property for personal benefit when a divorce is imminent.” BLACK ’S
LAW DICTIONARY 486 (7th ed. 1999). The Ward case outlined the appropriate analysis for
allegations of dissipation:
Trial courts must distinguish between what marital expenditures are wasteful and
self-serving and those which may be ill-advised but not so far removed from
“normal” expenditures occurring previously within the marital relationship to render
them destructive.
In determining whether dissipation occurred, we find trial courts should
consider the following: (1) whether the evidence presented at trial supports the
alleged purpose of the various expenditures, and if so, (2) whether the alleged
purpose equates to dissipation under the circumstances. The first prong is an
objective test. To satisfy this test, the dissipating spouse can bring forward evidence,
such as receipts, vouchers, claims, or other similar evidence that independently
support the purpose as alleged. The second prong requires the court to make an
equitable determination based upon a number of factors. Those factors include: (1)
the typicality of the expenditure to this marriage; (2) the benefactor of the
expenditure, namely, whether it primarily benefitted the marriage or primarily
benefitted the sole dissipating spouse; (3) the proximity of the expenditure to the
breakdown of the marital relationship; (4) the amount of the expenditure.
Ward, 2002 WL 31845229, at *3 (internal citations omitted). A spouse who seeks to prove
dissipation must do so by a preponderance of the evidence. See Robinson v. Robinson, No. W2003-
01836-COA-R3-CV, 2005 WL 1105188, at *16 (Tenn. Ct. App. May 9, 2005). Earlier decisions
by this Court discuss the allocation of the burden of proof where dissipation is alleged:
The burden of persuasion and the initial burden of production in showing dissipation
is on the party making the allegation, and that party retains throughout the burden of
persuading the court that funds have been dissipated, but after that party establishes
a prima facie case that moneys have been dissipated, the burden shifts to the party
who spent the money to produce evidence sufficient to show that the expenditures
were appropriate.
Wiltse v. Wiltse, No. W2002-03132-COA-R3-CV, 2004 WL 1908803, at *4–5 (Tenn. Ct. App. Aug.
24, 2004) (citing 24 AM . JUR. 2D Divorce and Separation § 560 (1998)).
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In this case, Wife argues that Husband dissipated approximately $218,000 in marital assets
by spending money on himself and his paramour Houston Anderson (“Ms. Anderson”). The record
includes evidence that Husband paid for the couple’s meals at restaurants, paid for vacations with
Ms. Anderson, and bought gifts for her. Husband admitted that he spent some monies on Ms.
Anderson, but denied that he dissipated the $218,000 that Wife alleges. Husband testified at trial
that he spend approximately $25,000 on Ms. Anderson.
In the first appeal, the issue of dissipation was remanded to the trial court for reconsideration
because it appeared from the final order of divorce that the trial court had refused to consider the
issue of dissipation. In its original order, the trial court concluded that
[a]ny marital funds which [Husband] may have expended for or on behalf of his
paramour, Ms. Houston Anderson, will not be considered by this court as having any
bearing on the property distribution, because during the same period, [Wife] received
from [Husband] funds, greatly in excess of said expenditure, which she used for her
own benefit without accounting to [Husband] for same.
On remand, the trial court clarified its earlier conclusion on the alleged dissipation, and
engaged in a detailed Ward analysis of Husband’s expenditures. Little weight was given to evidence
submitted by Wife in the form of the Rule 10063 summaries of Husband’s expenditures. Indeed,
Wife acknowledged that her summaries included inaccuracies and that some seventy-five percent
of the alleged dissipation expenditures were listed as “miscellaneous” because Wife did not know
what was purchased or paid for by the expenditures. Therefore, the trial court concluded that Wife
had failed to satisfy the first prong of the Ward analysis, that is, failed to present evidence to support
the alleged purpose of the expenditures, and consequently that the burden never shifted to Husband
to show the appropriateness of the expenditures. See Ward, 2002 WL 31845229, at *3.
After reaching this conclusion, the trial court went on to conclude that, even if Wife had
satisfied the first prong of the Ward analysis, the expenditures at issue did not constitute dissipation
under the second prong of the Ward analysis. The trial court considered all four of the factors
enumerated in the second prong of the Ward analysis. See id. The trial court first addressed the
“typicality” factor, that is, whether the expenditure was typical to the parties’ marriage. See id.
After noting that Husband had admitted to spending approximately $25,000 on Ms. Anderson, the
trial court observed that Husband had spent money on similar travel and meals prior to the separation
and that many of the expenditures were for a combination of personal and business purposes. In
light of this, the trial court concluded that the expenditures were discretionary spending that was
typical of the parties’ marriage.
The trial court then addressed the “benefactor” factor, looking at whether the expenditure
primarily benefitted the marriage or the alleged dissipating spouse. See id. The trial court
determined that Wife indirectly benefitted from Husband’s expenditures because much of them were
for a combination of personal and business purposes, thus enabling Husband to provide Wife
temporary support while the parties were separated.
3
Tenn. R. Evid. 1006.
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The trial court next looked at the proximity of the expenditure to the breakdown of the
marital relationship. See id. The trial court found that the majority of the expenditures occurred
after the marriage was irretrievably broken, concluding that this Ward factor also weighed against
finding dissipation.
Finally, the trial court discussed the “amount” of the expenditures at issue. See id. The trial
court reiterated that it gave little weight to Wife’s evidence of dissipation and observed that the
$25,000 that Husband testified he spent on Ms. Anderson was small in relation to the pattern of
spending in this marriage. After reviewing all of the Ward factors, the trial court concluded that
Husband’s expenditures did not constitute dissipation.
Wife challenges the trial court’s findings on remand relative to the dissipation issue. She
argues that Husband’s expenditures were not typical, that she did not benefit from the expenditures,
that the expenditures occurred at times when the couple was having marital trouble, and that the
dissipation was substantial, amounting to approximately $218,000.
In finding that Husband did not engage in dissipation of marital assets, the trial court
applied the standard set forth in Ward in accordance with our previous decision. See Watson, 2005
WL 1882413, at *13. The trial court apparently credited Husband’s testimony on this issue and gave
little weight to Wife’s Rule 1006 summaries. Explicitly applying the Ward factors, the trial court
determined that Husband’s expenditures were discretionary spending, not dissipation. After
carefully reviewing the record on appeal, and giving appropriate deference to the trial court’s
determinations on the parties’ credibility, we find that the evidence supports “the trial court’s fact
and credibility driven decision on the dissipation issue.” Lane v. Lane, No. M2000-01135-COA-
R3-CV, 2001 WL 1523365, at *3 (Tenn. Ct. App. Nov. 30, 2001) (citation omitted). This
conclusion is based on the trial court’s application of the Ward factors, not the fact that Husband
provided support to Wife in excess of the amounts allegedly dissipated. See Watson, 2005 WL
1882413, at *13. On this basis, we affirm the trial court’s finding that Husband’s expenditures did
not constitute dissipation.
Stock
Husband argues on appeal that the trial court erred in awarding Wife an additional $13,000
for her interest in the Vining Sparks IBG stock. Husband notes that if Wife were to receive any
shares of the Vining Sparks IBG stock, she would be required to sell them back to Mr. Vining and
Mr. Sparks under the terms of the partnership agreement; in this case, tax liabilities would result,
making the trial court’s original award of $38,500 to Wife, reflecting the tax consequences, proper.
In this case, however, the trial court did not order that the stock be transferred to Wife. Rather, the
trial court awarded Husband the ten units of stock and awarded Wife half of the net value of the
stock. Because Husband testified that he did not intend to sell the stock and the trial court did not
order that it be sold, we affirm the trial court’s decision on this issue. See id. at *9–10.
Randell Corporation
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We next address whether the trial court erred in confirming its prior determination that
Randell Corporation is unable to pay the debt it owes to Husband, and that the value of the Randell
Corporation is zero. The trial court’s valuation of a marital asset is a question of fact and is entitled
to a presumption of correctness. Watters v. Watters, 959 S.W.2d 585, 589 (Tenn. Ct. App. 1997)
(citation omitted).
In the first appeal, we noted that
[t]he amount of this loan at the time of trial was $419,481.23, and the special
master’s testimony and report states that, if the court should adopt the -$119,111.00
[valuation] for the Randell Corporation, it must also recognize a corresponding
receivable asset to Husband in this amount. If the trial court did not recognize the
loan as a receivable asset for Husband, the special master stated that the loan should
not be recognized as a corporate liability in calculating the value of the Randell
Corporation.
Watson, 2005 WL 1882413, at *9. On remand, the trial court found:
4. The evidence established that Receivable [the corporation’s debt to
Husband] could not be paid by Randell to [H]usband even with the
liquidation of all of Randell’s assets including the land that is
Randell’s main asset.
5. [Husband] and the Special Master testified that the cost of liquidation
. . . would exceed $300,000. . . . Thus upon liquidation, Randell
would have a negative value in excess of $419,000 and thus could not
pay the Receivable.
***
7. Based upon the evidence before the Court, it was determined that,
taking into account the negative $119,111.00 value of Randell, no
funds would remain to pay the Receivable after deduction of the costs
of selling Randell’s assets and, thus, the value to the marital estate of
the Receivable was zero.
8. Based on this Court’s review of the undisputed testimony, this Court
. . . reconfirms its prior determination that the value of Randell is zero
and Randell is unable to pay any money to [Husband].
Thus, the trial court found that, in order to pay its debt to Husband, Randell would have to liquidate
its assets. However, if Randell liquidated its assets, the costs would consume the proceeds of
liquidation. This left Randell unable to pay the debt to Husband by liquidation or otherwise. From
this, the trial court determined that (a) Husband’s receivable from Randell was worthless, and (b)
the value of Randell Corporation was zero.
Based on the undisputed testimony from both Husband and the Special Master regarding the
cost of liquidating Randell’s assets, the preponderance of the evidence supports the trial court’s
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finding that Randell is unable to pay its debt to Husband. Thus, the trial court’s conclusion that “the
value to the marital estate of the Receivable was zero” is well-founded.
However, the trial court found at the same time that “the value of Randell is zero.” Therein
lies the problem. At trial, Special Master Lynn Evans testified that Randell’s debt to Husband had
to be treated the same way on Husband’s personal balance sheet and Randell Corporation’s balance
sheet:
The appropriate manner to handle [Randell Corporation’s debt to Husband] would
be to treat it the same way for both sets of books. If it’s set up as a liability in the
corporation, then it would be appropriate for it to be on the personal. If it’s left off
the personal, it should also be left off the corporation.
Here, the trial court properly found that Randell was simply unable to pay its debt to Husband. This
in effect removed the receivable from Husband’s list of assets. To be consistent, if Randell is not
expected to pay its debt to Husband, then, as we stated in the prior appeal in this case, “the loan
should not be recognized as a corporate liability in calculating the value of the Randell Corporation.”
See id.
Had Randell corporation been required to pay Husband the $419,000 debt it owed to him,
the Special Master found that Randell’s value would be a negative $119,000. If Randell will not be
required to pay the debt, the $419,000 amount of the liability must be added back into the value of
the corporation, giving Randell a positive asset valuation of some $300,000.4 Thus, while Husband’s
receivable from Randell Corporation may be worthless, Randell Corporation itself is not, and would
be considered an asset, awarded to Husband in the property division, with a value of approximately
$300,000.
In light of these findings, we now consider Wife’s argument on appeal that the trial court
erred in its distribution of the marital property. The division of marital property in divorce cases is
governed by Tennessee Code Annotated § 36-4-121, which generally provides that the trial court
is to divide the property equitably without regard to fault.5 The trial court has substantial discretion
4
The appellate record does not include evidence of the tax consequences to Randell Corporation of having its
$419,000 debt to Husband in effect “forgiven.”
5
Tennessee Code Annotated § 36-4-121(a)(1) reads in pertinent part as follows:
In all actions for divorce or legal separation, the court having jurisdiction thereof may, upon request
of either party, and prior to any determination as to whether it is appropriate to order the support and
maintenance of one (1) party by the other, equitably divide, distribute or assign the marital property
between the parties without regard to marital fault in proportions as the court deems just.
T.C.A. § 36-4-121(a)(1) (2005).
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when dividing the marital property, and its distribution will be given “great weight” on appeal.6 See
Sullivan v. Sullivan, 107 S.W.3d 507, 512 (Tenn. Ct. App. 2002) (citing Goodman v. Goodman,
8 S.W.3d 289, 298 (Tenn. Ct. App. 1999)). An appellate court is “disinclined to disturb the trial
court’s decision unless the distribution lacks proper evidentiary support or results from some error
of law or misapplication of statutory requirements and procedures.” Martin v. Martin, 155 S.W.3d
126, 129 (Tenn. Ct. App. 2004) (quoting Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App.
1996)). The division of the marital estate is not required to be equal in order to be equitable. See
Kinard v. Kinard, 986 S.W.2d 220, 230 (Tenn. Ct. App. 1998) (citations omitted).
Under the terms of the trial court’s order, Wife was awarded all of the equity in the marital
residence up to $120,000. She received almost all of the household goods and furnishings in the
marital residence, valued at approximately $100,000.7 Wife received half of the net cash surrender
value of the insurance policies on Husband’s life (approximately $20,850), half of the value of
Husband’s 401(k) retirement account with the Baker Donelson law firm (approximately $49,000)
and $51,500 for her net interest in the Vining Sparks IBG stock. She also received all bank and
investment accounts in her name (approximately $2,075) and all insurance policies on her life
(approximately $10,000). She also received her vehicle, valued at $500.8 In all, the value of Wife’s
6
In equitably dividing the marital estate, the trial court is to consider “all relevant factors,” including the
following:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability, earning capacity, estate,
financial liabilities and financial needs of each of the parties;
(3) The tangible or intangible 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.
T.C.A. § 36-4-121(c) (2005).
7
Husband received an original Farnsworth painting valued at approximately $10,000.
8
This is the net value of the vehicle, considering the remaining debt on the automobile loan.
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share of the marital property totaled approximately $343,925.9 As to liabilities, Wife was ordered
to pay all outstanding debt in her own name, which totaled approximately $21,130 and the parties’
approximately $15,000 debt to Wife’s mother, Margaret Vick. After considering the debt allocated
to Wife, her net share of the marital estate totaled approximately $307,795.
The trial court awarded Husband the household goods and furnishings in his apartment,
valued at approximately $40,000, plus a painting valued at approximately $10,000. He also received
all rights, title, and interest in the Randell Corporation deemed to have zero value. Husband received
all of the Vining Sparks IBG stock, subject to Wife’s $51,500 lien, representing half of the net value
of the stock. Husband received all of his stock in Baker Donelson, valued at approximately $22,000,
his entire 401(k) retirement account with Baker Donelson, subject to Wife’s $49,000 lien
(representing half of the value of the 401(k) account), and all of the insurance policies on his life,
subject to Wife’s $20,850 lien, representing half of the net cash surrender value. Husband received
the vehicles driven by him and by his son, valued at a total of approximately $2,000,10 and all of his
guns and sporting equipment, valued at approximately $11,165. Husband also received all bank and
investment accounts in his name, valued at approximately $2,272. In all, Husband’s share of the
marital property totaled approximately $208,787. Husband was ordered to pay all outstanding debts
in his name, including credit card debt, which totaled approximately $62,589, as well as two
business-related loans totaling $286,000. Husband was also ordered to pay the special master’s fee
of $7,185. Husband’s affidavit indicates that he was responsible for 2003 income taxes in the
amount of $40,000. This amounted to a total debt of approximately $395,774.11 Using the trial
court’s valuation of Randell Corporation, Husband’s net allocation of marital property would be a
negative $186,987.
However, as noted above, we have determined that, in light of the fact that Randell’s
$419,000 indebtedness to Husband must be considered, in essence, forgiven, Randell Corporation
would have a positive valuation. In light of the trial court’s division of the remainder of the marital
property, we find that the net value of Randell Corporation should be divided between the parties,
half to Wife and half to Husband. However, the record does not include evidence on the tax
consequences or other ramifications, to both Husband and Randell, of deeming Randell’s
indebtedness to Husband uncollectible.12 So we must remand this issue to the trial court. With this
modification, the trial court’s distribution of the marital property is affirmed as modified.
9
The $20,850 award of half of the net cash surrender values of the insurance policies on Husband’s life was
alimony in solido.
10
Again, this represents the net value, considering any outstanding automobile loans.
11
The distribution of the marital debt included other loans not listed separately because they were considered
in arriving at a net value of other assets. They include a $307,000 loan from First Tennessee Bank secured by the
Vining Sparks IBG stock, a $710,000 loan to Randell that Husband guaranteed, and various other smaller loans,
including automobile loans.
12
As with the tax consequences of selling the Vining Sparks stock, the trial court should consider on remand
whether Randell Corporation’s debt to Husband will in fact not be paid (forgiven from the standpoint of Randell, written
off from Husband’s standpoint), and any resulting tax consequences or other ramifications for Randell and Husband.
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Alimony
We now address Wife’s assertion that the trial court erred in not awarding her alimony in
futuro. In her complaint for divorce, Wife sought “alimony,” without specifying a type or amount.
At trial, Wife asked for transitional alimony for twelve years. The trial court awarded Wife
transitional alimony for a total of six years, $6,000 a month for three years and $3,000 a month for
the next three years. In the first appeal, Wife sought transitional alimony for ten years. The issue
of alimony was not addressed in this Court’s opinion in the first appeal because issues affecting the
property distribution were remanded to the trial court, with issues surrounding alimony to be
reconsidered in the context of the altered division of marital property.
On remand to the trial court, Wife sought alimony in futuro. The trial court did not award
Wife alimony in futuro, but instead awarded an additional year of transitional alimony. Wife now
asks this Court to award her alimony in futuro in the amount of $6,000 per month.
Husband argues that Wife is judicially estopped from seeking alimony in futuro, because at
trial she asked for transitional alimony. “Pursuant to the doctrine of judicial estoppel, a party will
not be permitted to take a position that is directly contrary to or inconsistent with a position
previously taken by the party where the party had or was chargeable with full knowledge of the facts
and where the conduct would prejudice another.” Guzman v. Alvares, 205 S.W.3d 375, 382 (Tenn.
2006) (citing Marcus v. Marcus, 993 S.W.2d 596, 602 (Tenn. 1999)).
Husband also argues that Wife has waived the issue of alimony in futuro because she failed
to raise this issue at trial or in the first appeal. The appellate court may treat issues that are not raised
on appeal as being waived. See Tenn. R. App. P. 13(b); Bing v. Baptist Mem’l Hosp.-Union City,
937 S.W.2d 922, 924 (Tenn. Ct. App. 1996). Issues that are not raised in the trial court may also be
deemed waived. See Tenn. R. App. P. 36(a); Alexander v. Armentrout, 24 S.W.3d 267, 272 (Tenn.
2000).
Husband points to no place in the record in which he argued to the trial court that Wife was
judicially estopped from seeking alimony in futuro or that Wife had waived the issue of alimony
in futuro, and we have found none. Under these circumstances, we must find that Husband has
waived the issues of judicial estoppel and waiver as to Wife’s request for alimony in futuro. See
Tenn. R. App. P. 36(a).
Having determined that the issue is properly before this Court, we now address Wife’s
argument that the trial court erred in declining to award her alimony in futuro. “Trial courts have
broad discretion to determine whether spousal support is needed and, if so, the appropriate type of
alimony, amount, and duration.” Neamtu v. Neamtu, No. M2008-00160-COA-R3-CV, 2009 WL
152540, at *5 (Tenn. Ct. App. Jan. 21, 2009) (citing Wynns v. Wynns, No.
M2007-00740-COA-R3-CV, 2008 WL 4415786, at *2 (Tenn. Ct. App. Sept. 26, 2008)). Appellate
courts are, therefore, reluctant to second guess a trial court’s decision regarding alimony “unless it
is not supported by the evidence or is contrary to the public policy embodied in the applicable
statutes.” Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct. App. 1994) (citations omitted).
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Tennessee Code Annotated § 36-5-121(i) outlines the factors to be considered in determining
whether to award alimony and, if so, the type and amount.13 The two most important factors are the
need of the disadvantaged spouse and the obligor spouse’s ability to pay. Avaritt v. Avaritt, No.
M2007-01804-COA-R3-CV, 2008 WL 4072087, at *2 (Tenn. Ct. App. Aug. 28, 2008) (citing Oakes
v. Oakes, 235 S.W.3d 152, 160 (Tenn. Ct. App.2007)). Although fault is an appropriate factor to
consider, alimony is not meant to be punitive. See T.C.A. § 36-5-121(i)(11) (2005); Tait v. Tait, 207
S.W.3d 270, 278 (Tenn. Ct. App. 2006) (citations omitted).
Here, Husband, age sixty-three at the time of trial, is a shareholder with the Baker Donelson
law firm, with earnings from the firm for the years 2001-2003 of approximately $296,000, $287,000,
and $303,000, respectively. At trial, Husband’s February 2004 affidavit stated that his most recent
draw from Baker Donelson at that time was approximately $13,000 per month, with a potential year
end distribution of up to $54,000. The average monthly distribution from the Vining Sparks IBG
stock awarded to Husband varied from zero to $4,750. The trial court found that Husband was in
good health and that his total overall income “averages between $350,000-$400,000 in yearly gross
income from his law firm, commodities trading company and the Vining Sparks IBG Securities
Company.”
In contrast, Wife last worked full time over twenty years ago as a securities and commodities
trader earning over seventy-five percent of her commissions from trades that she made on behalf of
Husband or Randell. Her securities and commodities trading licenses have long since lapsed. Wife
quit her job as a securities and commodities broker to stay home and care for the parties’ learning
13
Those factors include:
(1) The relative earning capacity, obligations, needs, and financial resources of each party, including
income from pension, profit sharing or retirement plans and all other sources;
(2) The relative education and training of each party, the ability and opportunity of each party to
secure such education and training, and the necessity of a party to secure further education and
training to improve such party’s earnings capacity to a reasonable level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited to, physical disability or incapacity
due to a chronic debilitating disease;
(6) The extent to which it would be undesirable for a party to seek employment outside the home,
because such party will be custodian of a minor child of the marriage;
(7) The separate assets of each party, both real and personal, tangible and intangible;
(8) The provisions made with regard to the marital property, as defined in § 36-4-121;
(9) The standard of living of the parties established during the marriage;
(10) The extent to which each party has made such tangible and intangible contributions to the
marriage as monetary and homemaker contributions, and tangible and intangible contributions by a
party to the education, training or increased earning power of the other party;
(11) The relative fault of the parties, in cases where the court, in its discretion, deems it appropriate
to do so; and
(12) Such other factors, including the tax consequences to each party, as are necessary to consider the
equities between the parties.
T.C.A. § 36-5-121(i) (2005).
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disabled son. This permitted Husband to focus on furthering his career. This family choice is
explicitly supported by the legislature. The alimony statute provides as follows:
Spouses have traditionally strengthened the family unit through private arrangements
whereby one (1) spouse focuses on nurturing the personal side of the marriage,
including the care and nurturing of the children, while the other spouse focuses
primarily on building the economic strength of the family unit. This arrangement
often results in economic detriment to the spouse who subordinated such spouse’s
own personal career for the benefit of the marriage. It is the public policy of this
state to encourage and support marriage, and to encourage family arrangements that
provide for the rearing of healthy and productive children who will become healthy
and productive citizens of our state.
T.C.A. § 36-5-121(c)(1) (2005).
Here, the trial court ordered an award of transitional alimony. Codified in 2003, transitional
alimony is a sum certain paid “for a determinate period of time.” T.C.A. § 36-5-121(g)(1) (2005).
It is “awarded when the court finds that rehabilitation is not necessary, but the economically
disadvantaged spouse needs assistance to adjust to the economic consequences of a divorce.” Id.;
see also T.C.A. § 36-5-121(d)(4) (2005). An award of transitional alimony is generally non-
modifiable. See T.C.A. § 36-5-121(g)(2) (2005).
In contrast, alimony in futuro is paid on a long term basis, generally “until death or
remarriage of the recipient.” T.C.A. § 36-5-121(f)(1) (2005). It is also paid to an economically
disadvantaged spouse when rehabilitation “is not feasible,” defined in the statute as “meaning that
the disadvantaged spouse is unable to achieve, with reasonable effort, an earning capacity that will
permit the spouse’s standard of living after the divorce to be reasonably 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.” Id. An award of alimony in futuro is subject to modification “upon
a showing of substantial and material change in circumstances.” T.C.A. § 36-5-121(f)(2)(A) (2005).
In the divorce decree, the trial court found that Wife, fifty-six years old at the time of trial,
was in good health, was a high school graduate “with previous training in marketing and/or securities
trading activities.” It noted that she had been a homemaker since 1985, when she ceased working
outside the home to care for the parties’ son. The trial court made no findings regarding Wife’s
potential for rehabilitation or her earning capacity.
In her testimony, Wife indicated that she believed that she could pass the required tests to
renew her licenses in securities and commodities trading, but was hampered because an employer
sponsor was necessary for her to take the tests, and she had had no success in finding one. From the
testimony it appears that Wife is able to work in some capacity, though it is unclear whether the
work would be in securities and/or commodities trading. It is clear that whatever work Wife is able
to secure, she will never approach a level of earnings remotely comparable to Husband.
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The alimony statutes define rehabilitation as attaining an earning capacity that permits the
economically disadvantaged spouse a standard of living that is “reasonably comparable to the
standard of living enjoyed during the marriage.” T.C.A. § 36-5-121(f)(1) (2005). It is clear that the
standard is not attainable by Wife, and indeed is probably not attainable by Husband. While
Husband is a respected lawyer and businessman with impressive earnings, the parties’ lifestyle
during the marriage simply did not reflect the truth of their financial circumstances. The proof
indicates that the assets owned by Husband were supported by cash flow, but were leveraged by a
crippling amount of debt, creating a facade of affluence. It appears from the record that neither party
will be able to maintain a standard of living after the divorce that is “reasonably comparable to the
standard of living enjoyed during the marriage.”
The alternate statutory definition of rehabilitation means that the economically disadvantaged
spouse attains an earning capacity that permits a standard of living that is “reasonably comparable
. . . to the post-divorce standard of living expected to be available to the other spouse.” Id. From
the record, it is unclear what Husband’s post-divorce standard of living will be. Much of the proof
on Husband’s alleged dissipation focused on Husband’s expenditures that involved his extra-martial
relationship, such as travel, housing and clothing expenses, restaurants and entertainment. While
such expenditures would appear extravagant in the face of the enormous debt load that Husband was
carrying during this time, the trial court found that this spending pattern was simply a continuation
of the spending in which Husband had engaged throughout the marriage, i.e., was “typical” to the
parties’ marriage. The record bears out this finding.
In the context of considering alimony, we then consider Husband’s “post-divorce” standard
of living and whether Wife will be able to attain a standard of living that is reasonably comparable,
given the allocation of the marital estate to her and her expected level of earnings. In reviewing
Husband’s expenditures during the parties’ separation, the trial court commented that “Husband
could not have maintained his professional lifestyle at the same level without these expenditures,”
even going so far as to find that the expenditures benefitted Wife. It is unclear whether the trial court
was indicating that Husband should be expected to continue to maintain such an expensive lifestyle,
even in the face of mountainous debt which, at the end of the day, must be paid.
This issue also impacts our evaluation of Husband’s ability to pay alimony in futuro to Wife,
one of the two most important factors. Counsel for Husband rightly emphasizes the amount of
indebtedness that was allocated to Husband in the trial court’s division of marital property. The debt
is daunting indeed, but the trial court could only have allocated it to Husband; he chose to incur it
and is the only party with any hope of repaying it. On top of paying off the debt, is Husband
expected to retain the facade of affluence in the name of maintaining a “professional” lifestyle?
Meanwhile Wife, having been out of the workforce for over twenty years to raise the parties’ son,
finds herself ill-equipped for any work other than an entry-level job.
The trial court specifically found that Wife needs support and that Husband is able to pay,
and the record supports those findings. We note that Wife received the lion’s share of the marital
property. However, after purchasing necessities such as a new home, her remaining marital property
will be insufficient to sustain her once the transitional alimony runs out, and, like Husband, Wife
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must make provisions for her eventual retirement. Therefore, from the record, we find that Wife will
have a continued need of support beyond the transitional alimony awarded by the trial court.
Based on the application of the factors enumerated in Section 36-5-121(i) to the facts of this
case, we must conclude that Wife is entitled to an award of alimony in futuro upon termination of
the transitional alimony. Therefore, we modify the trial court’s alimony award to include an award
of alimony in futuro in the amount of $1,500 per month upon termination of the transitional alimony
award.14
Attorney’s Fees
We next address whether the trial court erred in refusing to award Wife her attorney’s fees.
A trial court’s decision regarding an award of attorney’s fees is reviewed under an abuse of
discretion standard, and will only be reversed if the trial court abused its discretion. Owens v.
Owens, 241 S.W.3d 478, 496 (Tenn. Ct. App. 2007) (citing Aaron v. Aaron, 909 S.W.2d 408, 411
(Tenn. 1995); Eldridge v. Eldridge, 137 S.W.3d 1, 25 (Tenn. Ct. App. 2002)). A trial court abuses
its discretion when “its decision is not supported by the evidence, when it applies an incorrect legal
standard, [or] when it reaches a decision which is against logic or reasoning that causes an injustice
to the party complaining.” Id. (citing Biscan v. Brown, 160 S.W.3d 462, 468 (Tenn. 2005)).
An award of attorney’s fees usually takes the form of an award of alimony in solido. Yount
v. Yount, 91 S.W.3d 777, 783 (Tenn. Ct. App. 2002) (citing Storey v. Storey, 835 S.W.2d 593 (Tenn.
Ct. App. 1992)). “Accordingly, a trial court considering a request for attorney’s fees must consider
the factors contained in [Tennessee Code Annotated] § 36-5-121(i), with the most important factors
being the need of the economically disadvantaged spouse and the ability of the obligor spouse to
pay.” Owens, 241 S.W.3d at 495–96 (citing Eldridge, 137 S.W.3d at 24–25; Miller v. Miller, 81
S.W.3d 771, 775 (Tenn. Ct. App. 2001)). “It is considered most appropriate where the final decree
of divorce does not provide the obligee spouse with a source of funds, such as from property division
or alimony in solido, with which to pay his or her attorney.” Yount, 91 S.W.3d at 783 (citing
Houghland v. Houghland, 844 S.W.2d 619 (Tenn. Ct. App.1992)).
Wife argues that Husband should be ordered to pay her attorney’s fees because he paid some
of his own attorney’s fees from the assets of Randell Corporation, a marital asset. For this
proposition, Wife cites Aaron v. Aaron, 909 S.W.2d 408 (Tenn. 1995) and Hanover v. Hanover,
775 S.W.2d 612 (Tenn. Ct. App. 1989). Indeed, this is a factor for the trial court to consider in
determining whether to award a party attorney’s fees. See T.C.A. § 36-5-121(i)(12) (2005).
However, we also consider the share of marital property awarded to each party. In this case,
Wife received a generous share of the marital property. Her net allocation prior to any division of
the value of Randell Corporation totals over $300,000. Moreover, upon termination of Wife’s
14
In his brief, Husband argues persuasively that transitional alimony under Tennessee Code Annotated §§ 36-5-
121(d)(4) and 36-5-121(g)(1) was intended to be of a duration of two years or less, citing the legislative history on H.B.
1480 and S.B. 622 in 2003. As noted by Husband, the fact that transitional alimony is generally non-modifiable
supports the premise that it was intended to be short-term. However, in light of our award of alimony in futuro at the
end of the trial court’s award of transitional alimony in this case, we need not address Husband’s argument.
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transitional alimony, she will receive alimony in futuro in the amount of $1,500 per month. Based
on a consideration of the statutory factors, we find no error in the trial court’s refusal to order
Husband to pay Wife’s attorney’s fees.
Post-Judgment Interest
Finally, we address whether the trial court erred in failing to award post-judgment interest
on the additional $13,000 awarded to Wife as a result of the modified valuation of the Vining Sparks
IBG stock. The statute provides that “[i]nterest shall be computed on every judgment from the day
on which the jury or the court, sitting without a jury, returned the verdict without regard to a motion
for a new trial.” T.C.A. § 47-14-122 (2001). The award of post-judgment interest is mandatory and
the trial court may not refuse to make such an award. Vooys v. Turner, 49 S.W.3d 318, 322 (Tenn.
Ct. App. 2001) (citations omitted).
Wife argues that interest begins to accrue from the date that the party is entitled to the money,
see Williams v. Williams, No. E1999-02750-COA-R3-CV, 2000 WL 816821 (Tenn. Ct. App. June
23, 2000), and that Wife was entitled to the additional $13,000 at the time of the entry of the final
divorce decree on March 17, 2004. Husband, however, cites the case of Bunch v. Bunch, No.
03A01-9805-GS-00156, 1999 WL 172674 (Tenn. Ct. App. Mar. 24, 1999), and argues that the
interest did not begin to accrue until the entry of the judgment on remand, which occurred on
November 6, 2007.
In Bunch, this Court addressed a situation similar to that presented in this case. As in the
present case, Bunch was on appeal for the second time. Id. at *1. In the first appeal, this Court
determined that the trial court had undervalued one of the marital assets, and remanded the case to
the trial court for a redetermination of “the apportionment of marital assets.” Id. at *4. On remand,
the trial court determined that the wife was entitled to an additional award of $12,500. Id. at *1. In
the second appeal, the wife argued that she was entitled to an award of post-judgment interest from
the date of the original divorce decree. Id. at *4. In support of her position, she relied on Wade v.
Wade, 897 S.W.2d 702 (Tenn. Ct. App. 1994); Inman v. Alexander, 871 S.W.2d 153 (Tenn. Ct.
App. 1993); and Inman v. Inman, 840 S.W.2d 927 (Tenn. Ct. App. 1992). In those cases, post-
judgment interest was awarded from the date of the original judgment, not the date of the judgment
on remand. See Wade, 897 S.W.2d at 720; Inman v. Alexander, 871 S.W.2d at 153–54; Inman v.
Inman, 840 S.W.2d at 931.
The Bunch Court, however, distinguished the cases on which the wife relied. It noted that,
in those cases, “the appellate court modified the lower court’s judgment, i.e., changed specific
monetary awards therein.” Bunch, 1999 WL 172674, at *4. In Bunch, however, after determining
that one of the marital assets was undervalued, the appellate court had remanded the case to allow
the trial court to determine the proper distribution. Id. Therefore, the Bunch Court held that “the
date on which the trial court entered judgment after reapportioning the parties’ marital assets upon
remand . . . is the date upon which it ‘returned the verdict’ for purposes of [Tennessee Code
Annotated] § 47-14-122.” Id. at *5. Accordingly, the appellate court held that the wife was entitled
to interest from the date of the judgment on remand, not the date of the original judgment. Id.
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In the present case, as in Bunch, this Court did not modify the judgment of the trial court.
Rather, it remanded the case to the trial court for a reconsideration of the distribution of the marital
estate after determining that one of the marital assets was undervalued. See Watson, 2005 WL
1882413, at *10. Because this Court remanded the case to allow the trial court to make its own
decision regarding the distribution, the date of the judgment on remand, not the date of the original
divorce decree, is the date on which the trial court “returned the verdict” for the purposes of Section
47-14-122. See Bunch, 1999 WL 172674, at *5. Therefore, post-judgment interest on the additional
$13,000 awarded to Wife as her share of the marital estate began to accrue from November 6, 2007,
which was the date of the judgment on remand. On remand, the trial court is directed to award post-
judgment interest on the additional $13,000 from November 6, 2007, the date of the judgment on
the previous remand.
CONCLUSION
For the reasons stated above, we affirm the trial court’s finding that Husband did not
dissipate marital assets, affirm the trial court’s award of an additional $13,000 to Wife for her
interest in the Vining Sparks IBG stock, reverse the trial court’s finding that the value of Randell
Corporation is zero and remand the cause for allocation between the parties of the net value of
Randell, modify the trial court’s alimony award to include, upon expiration of the transitional
alimony, an award of alimony in futuro in the amount of $1,500 per month, affirm the trial court’s
refusal to award Wife her attorney’s fees, and order the award of post-judgment interest on Wife’s
award on the modified valuation of the Vining Sparks IBG stock from the date of the judgment on
remand on November 6, 2007.
The decision of the trial court is affirmed in part, reversed in part, modified, and remanded
as set forth above. The costs of this appeal are taxed equally to Carol Ann Vick Watson, and her
surety, and Frank Lee Watson, Jr., for which execution may issue if necessary.
___________________________________
HOLLY M. KIRBY, JUDGE
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